Bill Text: CA AB1023 | 2011-2012 | Regular Session | Chaptered
Bill Title: Maintenance of the codes.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2011-09-21 - Chaptered by Secretary of State - Chapter 296, Statutes of 2011. [AB1023 Detail]
Download: California-2011-AB1023-Chaptered.html
BILL NUMBER: AB 1023 CHAPTERED
BILL TEXT
CHAPTER 296
FILED WITH SECRETARY OF STATE SEPTEMBER 21, 2011
APPROVED BY GOVERNOR SEPTEMBER 20, 2011
PASSED THE SENATE AUGUST 18, 2011
PASSED THE ASSEMBLY AUGUST 25, 2011
AMENDED IN SENATE JULY 12, 2011
AMENDED IN SENATE JUNE 23, 2011
INTRODUCED BY Assembly Member Wagner
FEBRUARY 18, 2011
An act to amend Sections 114, 809, 901, 3501, 3769.3, 4207,
6140.38, 6322.1, 7056, 7065, 7068.1, 7071, 7155, 8030.4, 19164,
19481.5, 19501, 19532.2, 19604.5, 19605.73, 19614.5, 23358.2,
23368.1, 23378.1, 25608, and 25658 of, and to repeal Sections 6731.1,
6731.2, 8726.1, and 8761.1 of, the Business and Professions Code, to
amend Sections 798.23.5, 799.1, 1195, and 3344.1 of the Civil Code,
to amend Sections 170.9, 425.17, 630.01, 630.08, 877, 1010.6, and
1094.5 of the Code of Civil Procedure, to amend Sections 10400,
10404, 14501, 14502, and 14504 of, and to amend the heading of Part 9
(commencing with Section 10400) of Division 2 of Title 1 of, the
Corporations Code, to amend Sections 1630, 12001.6, 17250.30, 37222,
41203, 41204, 41320.1, 41326, 41500, 44237, 45330, 51223.3, 51913,
66152, 66739.6, 67365, 68074, 89090, 92630, and 99221.5 of, and to
repeal Sections 37222.10, 37222.11, 37222.12, 37222.13, and 37222.14
of, the Education Code, to amend Sections 332.5, 337, 2151, 3103.5,
6950, 7110, 8002.5, 8121, 10735, 12108, 13207, and 13208 of the
Elections Code, to amend Section 1390 of the Evidence Code, to amend
Sections 4326, 5616, and 6228 of the Family Code, to amend Sections
1805, 1822, 14315, 17345.1, 22349.1, 22352, and 22355 of the
Financial Code, to amend Sections 2250, 2942, and 6612 of the Fish
and Game Code, to amend Sections 481, 11504, 13184, 79691, and 79702
of the Food and Agricultural Code, to amend Sections 831.7, 901,
912.5, 935.9, 3254.5, 6585, 7513.87, 7514, 11019.5, 12517, 12627,
14661.1, 15439, 19829.7, 20037.14, 21369.2, 22874.1, 56853.6,
63049.67, 66484, 72011, 76000.10, 100521 of, to repeal Sections 7480
and 11544 of, to repeal the heading of Article 10 (commencing with
former Section 58300) of Chapter 1 of Division 1 of Title 6 of, and
to amend and renumber Sections 7514 and 18929.96 of, the Government
Code, to amend Section 1150 of the Harbors and Navigation Code, to
amend Sections 1357.51, 1365, 1367.002, 1385.01, 1399.834, 1399.835,
1506, 1777, 1788, 1793.90, 1797.172, 1797.217, 8016, 11364, 16500,
25214.2, 25214.3, 25250.50, 25250.54, 25250.56, 25996, 33331.4,
33334.25, 33420.1, 33684, 41999, 44272.3, 44559.11, 50843.5, 51058.5,
102247, 103605, 103625, 115113, 120335, 120955, 121025, and 124982
of the Health and Safety Code, to amend Sections 557.5, 787.1,
1063.75, 10112.2, 10112.3, 10112.4, 10113.95, 10120.3, 10181, 10713,
10959, 10960, 12389, and 12739.53 of the Insurance Code, to amend
Sections 1509, 1695, and 1771.3 of the Labor Code, to amend Section
987.58 of the Military and Veterans Code, to amend Sections 166,
171d, 326.3, 330.1, 381, 597y, 602, 626.95, 647.7, 653.56, 829.5,
830.8, 833.5, 903.4, 1201.3, 1203.066, 4852.03, 4852.17, 4854,
5023.2, 6030, 6228, 11180, 12022, 12022.5, 12022.7, 12022.85, 16880,
25105, 25650, 26020, 26175, 29010, 29065, 29115, 29142, 29510, 29615,
29855, 30105, 31315, 31910, and 32105 of, and to repeal Section 594
of, the Penal Code, to amend Sections 16062 and 21355 of the Probate
Code, to amend Sections 2203, 6802, 6804, 6808, 10295.2, 20133, and
20193 of, and to amend the heading of Article 32 (commencing with
Section 20520) of Chapter 1 of Part 3 of Division 2 of, the Public
Contract Code, to amend Sections 667, 4186, 4512.5, 4590, 5073.5,
6308, 6362, 7555, 14574, 29735, 32330, 41800, 44820, and 71560 of the
Public Resources Code, to amend Sections 345.5, 2827, 2851, 8381,
and 100351 of the Public Utilities Code, to amend Sections 69.5,
7104, 17561, 18639, 19141, 19191, 19192, 19194, 23153, 23663, 23685,
24422, and 24875 of, and to repeal Section 24875.5 of, the Revenue
and Taxation Code, to amend Sections 143, 182.2, and 1188 of, and
repeal Sections 5898.15 and 5898.23 of, the Streets and Highways
Code, to amend Sections 1088.5, 1269, 1755, 1757, 3011, 3701, and
15002 of the Unemployment Insurance Code, to amend Sections 5007,
11205.4, 12509, 12804.9, 12804.11, 13352, 13557, 29004, 34515,
40305.5, and 41501 of the Vehicle Code, to amend Sections 1126,
12986, 13385, 85031, 85034, and 85230 of the Water Code, to amend
Sections 366.24, 4360, 4695.2, 5778, 10850.4, 11327.5, 11453, 12201,
12301.06, 12305.87, 14043.1, 14132.275, 14165.50, 14166.20,
14167.352, 14167.354, 14182, 14182.1, 15657.5, 15910, 15910.2, 15911,
18293, 18951, and 18987.7 of the Welfare and Institutions Code, to
amend Section 2 of Chapter 166 of the Statutes of 2009, to amend
Section 1 of Chapter 191 of the Statutes of 2010, to amend Section 2
of Chapter 251 of the Statutes of 2010, to amend Section 1 of Chapter
321 of the Statutes of 2010, to amend Section 2 of Chapter 377 of
the Statutes of 2010, to amend Section 3 of Chapter 431 of the
Statutes of 2010, to amend Section 2 of Chapter 716 of the Statutes
of 2010, and to amend Section 173 of Chapter 717 of the Statutes of
2010, relating to the maintenance of the codes.
LEGISLATIVE COUNSEL'S DIGEST
AB 1023, Wagner. 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 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 114 of the Business and Professions Code is
amended to read:
114. (a) Notwithstanding any other provision of this code, any
licensee or registrant of any board, commission, or bureau within the
department whose license expired while the licensee or registrant
was on active duty as a member of the California National Guard or
the United States Armed Forces, may, upon application, reinstate his
or her license or registration without examination or penalty,
provided that all of the following requirements are satisfied:
(1) His or her license or registration was valid at the time he or
she entered the California National Guard or the United States Armed
Forces.
(2) The application for reinstatement is made while serving in the
California National Guard or the United States Armed Forces, or not
later than one year from the date of discharge from active service or
return to inactive military status.
(3) The application for reinstatement is accompanied by an
affidavit showing the date of entrance into the service, whether
still in the service, or date of discharge, and the renewal fee for
the current renewal period in which the application is filed is paid.
(b) If application for reinstatement is filed more than one year
after discharge or return to inactive status, the applicant, in the
discretion of the licensing agency, may be required to pass an
examination.
(c) If application for reinstatement is filed and the licensing
agency determines that the applicant has not actively engaged in the
practice of his or her profession while on active duty, then the
licensing agency may require the applicant to pass an examination.
(d) Unless otherwise specifically provided in this code, any
licensee or registrant who, either part time or full time, practices
in this state the profession or vocation for which he or she is
licensed or registered shall be required to maintain his or her
license in good standing even though he or she is in military
service.
For the purposes in this section, time spent by a licensee in
receiving treatment or hospitalization in any veterans' facility
during which he or she is prevented from practicing his or her
profession or vocation shall be excluded from said period of one
year.
SEC. 2. Section 809 of the Business and Professions Code is
amended to read:
809. (a) The Legislature hereby finds and declares the following:
(1) In 1986, Congress enacted the Health Care Quality Improvement
Act of 1986 (42 U.S.C. Sec. 11101 et seq.), to encourage physicians
to engage in effective professional peer review, but giving each
state the opportunity to "opt-out" of some of the provisions of the
federal act.
(2) Because of deficiencies in the federal act and the possible
adverse interpretations by the courts of the federal act, it is
preferable for California to "opt-out" of the federal act and design
its own peer review system.
(3) Peer review, fairly conducted, is essential to preserving the
highest standards of medical practice.
(4) Peer review that is not conducted fairly results in harm to
both patients and healing arts practitioners by limiting access to
care.
(5) Peer review, fairly conducted, will aid the appropriate state
licensing boards in their responsibility to regulate and discipline
errant healing arts practitioners.
(6) To protect the health and welfare of the people of California,
it is the policy of the State of California to exclude, through the
peer review mechanism as provided for by California law, those
healing arts practitioners who provide substandard care or who engage
in professional misconduct, regardless of the effect of that
exclusion on competition.
(7) It is the intent of the Legislature that peer review of
professional health care services be done efficiently, on an ongoing
basis, and with an emphasis on early detection of potential quality
problems and resolutions through informal educational interventions.
(8) Sections 809 to 809.8, inclusive, shall not affect the
respective responsibilities of the organized medical staff or the
governing body of an acute care hospital with respect to peer review
in the acute care hospital setting. It is the intent of the
Legislature that written provisions implementing Sections 809 to
809.8, inclusive, in the acute care hospital setting shall be
included in medical staff bylaws that shall be adopted by a vote of
the members of the organized medical staff and shall be subject to
governing body approval, which approval shall not be withheld
unreasonably.
(9) (A) The Legislature thus finds and declares that the laws of
this state pertaining to the peer review of healing arts
practitioners shall apply in lieu of Section 11101 and following of
Title 42 of the United States Code, because the laws of this state
provide a more careful articulation of the protections for both those
undertaking peer review activity and those subject to review, and
better integrate public and private systems of peer review.
Therefore, California exercises its right to opt out of specified
provisions of the Health Care Quality Improvement Act of 1986
relating to professional review actions, pursuant to Section 11111(c)
(2)(B) of Title 42 of the United States Code. This election shall not
affect the availability of any immunity under California law.
(B) The Legislature further declares that it is not the intent or
purpose of Sections 809 to 809.8, inclusive, to opt out of any
mandatory national data bank established pursuant to Section 11131
and following of Title 42 of the United States Code.
(b) For the purpose of this section and Sections 809.1 to 809.8,
inclusive, "healing arts practitioner" or "licentiate" means a
physician and surgeon, podiatrist, clinical psychologist, marriage
and family therapist, clinical social worker, or dentist; and "peer
review body" means a peer review body as specified in paragraph (1)
of subdivision (a) of Section 805, and includes any designee of the
peer review body.
SEC. 3. Section 901 of the Business and Professions Code is
amended to read:
901. (a) For purposes of this section, the following provisions
apply:
(1) "Board" means the applicable healing arts board, under this
division or an initiative act referred to in this division,
responsible for the licensure or regulation in this state of the
respective health care practitioners.
(2) "Health care practitioner" means any person who engages in
acts that are subject to licensure or regulation under this division
or under any initiative act referred to in this division.
(3) "Sponsored event" means an event, not to exceed 10 calendar
days, administered by either a sponsoring entity or a local
government, or both, through which health care is provided to the
public without compensation to the health care practitioner.
(4) "Sponsoring entity" means a nonprofit organization organized
pursuant to Section 501(c)(3) of the Internal Revenue Code or a
community-based organization.
(5) "Uninsured or underinsured person" means a person who does not
have health care coverage, including private coverage or coverage
through a program funded in whole or in part by a governmental
entity, or a person who has health care coverage, but the coverage is
not adequate to obtain those health care services offered by the
health care practitioner under this section.
(b) A health care practitioner licensed or certified in good
standing in another state, district, or territory of the United
States who offers or provides health care services for which he or
she is licensed or certified is exempt from the requirement for
licensure if all of the following requirements are met:
(1) Prior to providing those services, he or she does all of the
following:
(A) Obtains authorization from the board to participate in the
sponsored event after submitting to the board a copy of his or her
valid license or certificate from each state in which he or she holds
licensure or certification and a photographic identification issued
by one of the states in which he or she holds licensure or
certification. The board shall notify the sponsoring entity, within
20 calendar days of receiving a request for authorization, whether
that request is approved or denied, provided that, if the board
receives a request for authorization less than 20 days prior to the
date of the sponsored event, the board shall make reasonable efforts
to notify the sponsoring entity whether that request is approved or
denied prior to the date of that sponsored event.
(B) Satisfies the following requirements:
(i) The health care practitioner has not committed any act or been
convicted of a crime constituting grounds for denial of licensure or
registration under Section 480 and is in good standing in each state
in which he or she holds licensure or certification.
(ii) The health care practitioner has the appropriate education
and experience to participate in a sponsored event, as determined by
the board.
(iii) The health care practitioner shall agree to comply with all
applicable practice requirements set forth in this division and the
regulations adopted pursuant to this division.
(C) Submits to the board, on a form prescribed by the board, a
request for authorization to practice without a license, and pays a
fee, in an amount determined by the board by regulation, which shall
be available, upon appropriation, to cover the cost of developing the
authorization process and processing the request.
(2) The services are provided under all of the following
circumstances:
(A) To uninsured or underinsured persons.
(B) On a short-term voluntary basis, not to exceed a
10-calendar-day period per sponsored event.
(C) In association with a sponsoring entity that complies with
subdivision (d).
(D) Without charge to the recipient or to a third party on behalf
of the recipient.
(c) The board may deny a health care practitioner authorization to
practice without a license if the health care practitioner fails to
comply with this section or for any act that would be grounds for
denial of an application for licensure.
(d) A sponsoring entity seeking to provide, or arrange for the
provision of, health care services under this section shall do both
of the following:
(1) Register with each applicable board under this division for
which an out-of-state health care practitioner is participating in
the sponsored event by completing a registration form that shall
include all of the following:
(A) The name of the sponsoring entity.
(B) The name of the principal individual or individuals who are
the officers or organizational officials responsible for the
operation of the sponsoring entity.
(C) The address, including street, city, ZIP Code, and county, of
the sponsoring entity's principal office and each individual listed
pursuant to subparagraph (B).
(D) The telephone number for the principal office of the
sponsoring entity and each individual listed pursuant to subparagraph
(B).
(E) Any additional information required by the board.
(2) Provide the information listed in paragraph (1) to the county
health department of the county in which the health care services
will be provided, along with any additional information that may be
required by that department.
(e) The sponsoring entity shall notify the board and the county
health department described in paragraph (2) of subdivision (d) in
writing of any change to the information required under subdivision
(d) within 30 calendar days of the change.
(f) Within 15 calendar days of the provision of health care
services pursuant to this section, the sponsoring entity shall file a
report with the board and the county health department of the county
in which the health care services were provided. This report shall
contain the date, place, type, and general description of the care
provided, along with a listing of the health care practitioners who
participated in providing that care.
(g) The sponsoring entity shall maintain a list of health care
practitioners associated with the provision of health care services
under this section. The sponsoring entity shall maintain a copy of
each health care practitioner's current license or certification and
shall require each health care practitioner to attest in writing that
his or her license or certificate is not suspended or revoked
pursuant to disciplinary proceedings in any jurisdiction. The
sponsoring entity shall maintain these records for a period of at
least five years following the provision of health care services
under this section and shall, upon request, furnish those records to
the board or any county health department.
(h) A contract of liability insurance issued, amended, or renewed
in this state on or after January 1, 2011, shall not exclude coverage
of a health care practitioner or a sponsoring entity that provides,
or arranges for the provision of, health care services under this
section, provided that the practitioner or entity complies with this
section.
(i) Subdivision (b) shall not be construed to authorize a health
care practitioner to render care outside the scope of practice
authorized by his or her license or certificate or this division.
(j) (1) The board may terminate authorization for a health care
practitioner to provide health care services pursuant to this section
for failure to comply with this section, any applicable practice
requirement set forth in this division, any regulations adopted
pursuant to this division, or for any act that would be grounds for
discipline if done by a licensee of that board.
(2) The board shall provide both the sponsoring entity and the
health care practitioner with a written notice of termination
including the basis for that termination. The health care
practitioner may, within 30 days after the date of the receipt of
notice of termination, file a written appeal to the board. The appeal
shall include any documentation the health care practitioner wishes
to present to the board.
(3) A health care practitioner whose authorization to provide
health care services pursuant to this section has been terminated
shall not provide health care services pursuant to this section
unless and until a subsequent request for authorization has been
approved by the board. A health care practitioner who provides health
care services in violation of this paragraph shall be deemed to be
practicing health care in violation of the applicable provisions of
this division, and be subject to any applicable administrative,
civil, or criminal fines, penalties, and other sanctions provided in
this division.
(k) 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.
(l) This section shall remain in effect only until January 1,
2014, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2014, deletes or extends
that date.
SEC. 4. Section 3501 of the Business and Professions Code is
amended to read:
3501. (a) As used in this chapter:
(1) "Board" means the Medical Board of California.
(2) "Approved program" means a program for the education of
physician assistants that has been formally approved by the
committee.
(3) "Trainee" means a person who is currently enrolled in an
approved program.
(4) "Physician assistant" means a person who meets the
requirements of this chapter and is licensed by the committee.
(5) "Supervising physician" means a physician and surgeon licensed
by the board or by the Osteopathic Medical Board of California who
supervises one or more physician assistants, who possesses a current
valid license to practice medicine, and who is not currently on
disciplinary probation for improper use of a physician assistant.
(6) "Supervision" means that a licensed physician and surgeon
oversees the activities of, and accepts responsibility for, the
medical services rendered by a physician assistant.
(7) "Committee" or "examining committee" means the Physician
Assistant Committee.
(8) "Regulations" means the rules and regulations as set forth in
Chapter 13.8 (commencing with Section 1399.500) of Title 16 of the
California Code of Regulations.
(9) "Routine visual screening" means uninvasive nonpharmacological
simple testing for visual acuity, visual field defects, color
blindness, and depth perception.
(10) "Program manager" means the staff manager of the diversion
program, as designated by the executive officer of the board. The
program manager shall have background experience in dealing with
substance abuse issues.
(11) "Delegation of services agreement" means the writing that
delegates to a physician assistant from a supervising physician the
medical services the physician assistant is authorized to perform
consistent with subdivision (a) of Section 1399.540 of Title 16 of
the California Code of Regulations.
(12) "Other specified medical services" means tests or
examinations performed or ordered by a physician assistant practicing
in compliance with this chapter or regulations of the board
promulgated under this chapter.
(b) A physician assistant acts as an agent of the supervising
physician when performing any activity authorized by this chapter or
regulations promulgated by the board under this chapter.
SEC. 5. Section 3769.3 of the Business and Professions Code is
amended to read:
3769.3. (a) Notwithstanding any other provision, the board may,
by stipulation with the affected licensee, issue a public reprimand,
after it has conducted an investigation, in lieu of filing or
prosecuting a formal accusation.
(b) The stipulation shall contain the authority, grounds, and
causes and circumstances for taking such action and by way of waiving
the affected licensee's rights, inform the licensee of his or her
rights to have a formal accusation filed and stipulate to a
settlement thereafter or have the matter in the statement of issues
heard before an administrative law judge in accordance with the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code).
(c) The stipulation shall be public information and shall be used
as evidence in any future disciplinary or penalty action taken by the
board.
SEC. 6. Section 4207 of the Business and Professions Code is
amended to read:
4207. (a) Upon receipt of an application for a license and the
applicable fee, the board shall make a thorough investigation to
determine whether the applicant is qualified for the license being
sought. The board shall also determine whether this article has been
complied with, and shall investigate all matters directly related to
the issuance of the license that may affect the public welfare.
(b) The board shall not investigate matters connected with the
operation of a premises other than those matters solely related to
the furnishing of dangerous drugs or dangerous devices that might
adversely affect the public welfare.
(c) The board shall deny an application for a license if the
applicant does not qualify for the license being sought.
(d) Notwithstanding any other provision of law, the board may
request any information it deems necessary to complete the
application investigation required by this section, and a request for
information that the board deems necessary in carrying out this
section in any application or related form devised by the board shall
not be required to be adopted by regulation pursuant to the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code).
SEC. 7. Section 6140.38 of the Business and Professions Code is
amended to read:
6140.38. (a) The State Bar shall report to the Senate Committee
on Judiciary and the Assembly Committee on Judiciary on or before
April 1, 2010, and annually thereafter, on the impact of the changes
made to Section 6008.6 by Chapter 2 of the Statutes of 2010. In
addition to a description of the impact of those changes, the report
shall include, with specificity, the following: (1) the projects that
previously would have been required to comply with Article 4
(commencing with Section 10335) of Chapter 2 of Part 2 of Division 2
of the Public Contract Code, but are no longer subject to that
requirement because the contract amount is between fifty thousand
dollars ($50,000) and one hundred thousand dollars ($100,000); and
(2) whether the changes have improved the efficiency of the
contracting process. The report required by this section may be
included with the report described in Section 6140.36.
(b) This section shall remain in effect only until January 1,
2014, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2014, deletes or extends
that date.
SEC. 8. Section 6322.1 of the Business and Professions Code, as
amended by Section 1 of Chapter 720 of the Statutes of 2010, is
amended to read:
6322.1. (a) Until the end of the moratorium described in Section
70601 of the Government Code, the board of supervisors of any county
may increase, as provided in this section, the amount distributed to
its county law library fund from the uniform filing fees listed in
Section 6321 whenever it determines that the increase is necessary to
defray the expenses of the law library.
Any increase in the amount distributed to the law library fund in
any county under this subdivision shall not be effective until
January 1 of the next year after the adoption by the board of
supervisors of the increase. The amount of the increase in any
calendar year shall be no greater than three dollars ($3) over the
previous calendar year. A copy of the action of the board of
supervisors that establishes the increase shall be provided to the
Administrative Office of the Courts as soon as it becomes available
but no later than December 15 of the year before the increased
distribution goes into effect.
(b) Distribution changes after January 1, 2008, shall be
determined by the process described in Section 70601 of the
Government Code.
(c) (1) In an action or proceeding in which a claim for money
damages falls within the monetary jurisdiction of the small claims
court and is filed by an assignee who is prohibited from filing or
maintaining a claim pursuant to Section 116.420 of the Code of Civil
Procedure, the uniform filing fee shall be reduced by forty-four
dollars ($44) to one hundred eighty-one dollars ($181) if the
complaint contains a declaration under penalty of perjury, executed
by the party requesting the reduction in fees, that the case
qualifies for the lower fee because the claim for money damages will
not exceed the monetary jurisdiction of small claims court and is
filed by an assignee of the claim.
(2) When the uniform filing fee is reduced as provided under this
subdivision, the amount distributed from each uniform filing fee to
the law library fund in the county shall be as follows:
Jurisdiction Amount
Alameda........................ $12.00
Alpine......................... 1.00
Amador......................... 6.00
Butte.......................... 12.00
Calaveras...................... 7.00
Colusa......................... 12.00
Contra Costa................... 8.00
Del Norte...................... 6.00
El Dorado...................... 9.00
Fresno......................... 9.00
Glenn.......................... 6.00
Humboldt....................... 12.00
Imperial....................... 12.00
Inyo........................... 6.00
Kern........................... 12.00
Kings.......................... 12.00
Lake........................... 12.00
Lassen......................... 12.00
Los Angeles.................... 5.00
Madera......................... 12.00
Marin.......................... 12.00
Mariposa....................... 4.00
Mendocino...................... 12.00
Merced......................... 12.00
Modoc.......................... 6.00
Mono........................... 6.00
Monterey....................... 10.00
Napa........................... 12.00
Nevada......................... 7.00
Orange......................... 8.00
Placer......................... 7.00
Plumas......................... 6.00
Riverside...................... 12.00
Sacramento..................... 8.50
San Benito..................... 6.00
San Bernardino................. 12.00
San Diego...................... 12.00
San Francisco.................. 12.00
San Joaquin.................... 10.00
San Luis Obispo................ 12.00
San Mateo...................... 12.00
Santa Barbara.................. 12.00
Santa Clara.................... 8.00
Santa Cruz..................... 12.00
Shasta......................... 8.50
Sierra......................... 9.00
Siskiyou....................... 8.00
Solano......................... 9.00
Sonoma......................... 12.00
Stanislaus..................... 6.50
Sutter......................... 1.00
Tehama......................... 9.00
Trinity........................ 6.00
Tulare......................... 12.00
Tuolumne....................... 2.00
Ventura........................ 12.00
Yolo........................... 10.00
Yuba........................... 7.00
The increases described in subdivision (a) do not apply to the law
library distributions in this subdivision.
(3) Notwithstanding subdivision (d) of Section 68085.4 of the
Government Code, when the uniform filing fee is reduced as provided
in this subdivision, the amounts distributed to dispute resolution
programs, the State Court Facilities Construction Fund, the Judges'
Retirement Fund, children's waiting rooms, and the Equal Access Fund
shall remain as provided under subdivisions (b) and (c) of Section
68085.4 of the Government Code and shall not be changed. Only the
amounts distributed to the Trial Court Trust Fund, the law libraries,
and the Immediate and Critical Needs Account of the State Court
Facilities Construction Fund shall be adjusted. The amount
distributed from each uniform filing fee under this section to the
Immediate and Critical Needs
Account of the State Court Facilities Construction Fund, established
in Section 70371.5 of the Government Code, shall be eleven dollars
($11). If the fee is further reduced below one hundred eighty-one
dollars ($181), as with a partial waiver or partial payment, the
proportional reductions described in subdivision (g) of Section
68085.1 of the Government Code shall apply.
(d) Distributions under this section to the law library fund in
each county shall be used only for the purposes authorized by this
chapter.
(e) As used in this section and Section 6321, "law library fund"
includes a law library account described in the second paragraph of
Section 6320.
(f) This section shall become inoperative on July 1, 2013, and, as
of January 1, 2014, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2014, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 9. Section 6322.1 of the Business and Professions Code, as
added by Section 2 of Chapter 720 of the Statutes of 2010, is amended
to read:
6322.1. (a) Until the end of the moratorium described in Section
70601 of the Government Code, the board of supervisors of any county
may increase, as provided in this section, the amount distributed to
its county law library fund from the uniform filing fees listed in
Section 6321 whenever it determines that the increase is necessary to
defray the expenses of the law library.
Any increase in the amount distributed to the law library fund in
any county under this subdivision shall not be effective until
January 1 of the next year after the adoption by the board of
supervisors of the increase. The amount of the increase in any
calendar year shall be no greater than three dollars ($3) over the
previous calendar year. A copy of the action of the board of
supervisors that establishes the increase shall be provided to the
Administrative Office of the Courts as soon as it becomes available
but no later than December 15 of the year before the increased
distribution goes into effect.
(b) Distribution changes after January 1, 2008, shall be
determined by the process described in Section 70601 of the
Government Code.
(c) (1) In an action or proceeding in which a claim for money
damages falls within the monetary jurisdiction of the small claims
court and is filed by an assignee who is prohibited from filing or
maintaining a claim pursuant to Section 116.420 of the Code of Civil
Procedure, the uniform filing fee shall be reduced by twenty-four
dollars ($24) to one hundred eighty-one dollars ($181) if the
complaint contains a declaration under penalty of perjury, executed
by the party requesting the reduction in fees, that the case
qualifies for the lower fee because the claim for money damages will
not exceed the monetary jurisdiction of small claims court and is
filed by an assignee of the claim.
(2) When the uniform filing fee is reduced as provided under this
subdivision, the amount distributed from each uniform filing fee to
the law library fund in the county shall be as follows:
Jurisdiction Amount
Alameda........................ $12.00
Alpine......................... 1.00
Amador......................... 6.00
Butte.......................... 12.00
Calaveras...................... 7.00
Colusa......................... 12.00
Contra Costa................... 8.00
Del Norte...................... 6.00
El Dorado...................... 9.00
Fresno......................... 9.00
Glenn.......................... 6.00
Humboldt....................... 12.00
Imperial....................... 12.00
Inyo........................... 6.00
Kern........................... 12.00
Kings.......................... 12.00
Lake........................... 12.00
Lassen......................... 12.00
Los Angeles.................... 5.00
Madera......................... 12.00
Marin.......................... 12.00
Mariposa....................... 4.00
Mendocino...................... 12.00
Merced......................... 12.00
Modoc.......................... 6.00
Mono........................... 6.00
Monterey....................... 10.00
Napa........................... 12.00
Nevada......................... 7.00
Orange......................... 8.00
Placer......................... 7.00
Plumas......................... 6.00
Riverside...................... 12.00
Sacramento..................... 8.50
San Benito..................... 6.00
San Bernardino................. 12.00
San Diego...................... 12.00
San Francisco.................. 12.00
San Joaquin.................... 10.00
San Luis Obispo................ 12.00
San Mateo...................... 12.00
Santa Barbara.................. 12.00
Santa Clara.................... 8.00
Santa Cruz..................... 12.00
Shasta......................... 8.50
Sierra......................... 9.00
Siskiyou....................... 8.00
Solano......................... 9.00
Sonoma......................... 12.00
Stanislaus..................... 6.50
Sutter......................... 1.00
Tehama......................... 9.00
Trinity........................ 6.00
Tulare......................... 12.00
Tuolumne....................... 2.00
Ventura........................ 12.00
Yolo........................... 10.00
Yuba........................... 7.00
The increases described in subdivision (a) do not apply to the law
library distributions in this subdivision.
(3) Notwithstanding subdivision (d) of Section 68085.4 of the
Government Code, when the uniform filing fee is reduced as provided
in this subdivision, the amounts distributed to dispute resolution
programs, the State Court Facilities Construction Fund, the Judges'
Retirement Fund, children's waiting rooms, and the Equal Access Fund
shall remain as provided under subdivisions (b) and (c) of Section
68085.4 of the Government Code and shall not be changed. Only the
amounts distributed to the Trial Court Trust Fund, the law libraries,
and the Immediate and Critical Needs Account of the State Court
Facilities Construction Fund shall be adjusted. The amount
distributed from each uniform filing fee under this section to the
Immediate and Critical Needs Account of the State Court Facilities
Construction Fund, established in Section 70371.5 of the Government
Code, shall be eleven dollars ($11). If the fee is further reduced
below one hundred eighty-one dollars ($181), as with a partial waiver
or partial payment, the proportional reductions described in
subdivision (g) of Section 68085.1 of the Government Code shall
apply.
(d) Distributions under this section to the law library fund in
each county shall be used only for the purposes authorized by this
chapter.
(e) As used in this section and Section 6321, "law library fund"
includes a law library account described in the second paragraph of
Section 6320.
(f) This section shall become operative on July 1, 2013.
SEC. 10. Section 6731.1 of the Business and Professions Code, as
added by Chapter 625 of the Statutes of 1983, is repealed.
SEC. 11. Section 6731.2 of the Business and Professions Code, as
added by Chapter 625 of the Statutes of 1983, is repealed.
SEC. 12. Section 7056 of the Business and Professions Code is
amended to read:
7056. A general engineering contractor is a contractor whose
principal contracting business is in connection with fixed works
requiring specialized engineering knowledge and skill, including the
following divisions or subjects: irrigation, drainage, water power,
water supply, flood control, inland waterways, harbors, docks and
wharves, shipyards and ports, dams and hydroelectric projects,
levees, river control and reclamation works, railroads, highways,
streets and roads, tunnels, airports and airways, sewers and sewage
disposal plants and systems, waste reduction plants, bridges,
overpasses, underpasses and other similar works, pipelines and other
systems for the transmission of petroleum and other liquid or gaseous
substances, parks, playgrounds and other recreational works,
refineries, chemical plants and similar industrial plants requiring
specialized engineering knowledge and skill, powerhouses, powerplants
and other utility plants and installations, mines and metallurgical
plants, land leveling and earthmoving projects, excavating, grading,
trenching, paving and surfacing work and cement and concrete works in
connection with the above-mentioned fixed works.
SEC. 13. Section 7065 of the Business and Professions Code is
amended to read:
7065. (a) Under rules and regulations adopted by the board and
approved by the director, the registrar shall investigate, classify,
and qualify applicants for contractors' licenses by written
examination. This examination shall include questions designed to
show that the applicant has the necessary degree of knowledge
required by Section 7068 and shall include pertinent questions
relating to the laws of this state and the contracting business and
trade.
(b) Contractors' licenses are to be issued to individual owners,
partnerships, corporations, and limited liability companies in
accordance with this chapter.
(1) Every person who is an officer, member, responsible manager,
or director of a corporation or limited liability company seeking
licensure under this chapter shall be listed on the application as a
member of the personnel of record.
(2) Every person who is a member of a partnership seeking
licensure under this chapter shall be listed on the application as a
member of the personnel record.
(c) An applicant shall qualify for licensure in accordance with
this subdivision as follows:
(1) An individual owner may qualify by examination for a
contractor's license upon the appearance of the owner or a qualifying
individual appearing as a responsible managing employee on behalf of
the owner.
(2) A partnership may qualify by examination for a contractor's
license upon the appearance of a partner or a qualifying individual
appearing as a responsible managing employee on behalf of the
partnership.
(3) A corporation may qualify by examination for a contractor's
license upon the appearance of a qualifying individual appearing
either as a responsible managing officer or a responsible managing
employee on behalf of the corporation.
(4) A limited liability company may qualify by examination for a
contractor's license upon the appearance of a qualifying individual
appearing as a responsible managing officer, a responsible managing
manager, a responsible managing member, or a responsible managing
employee on behalf of the company.
(d) No examination shall be required of a qualifying individual
if, within the five-year period immediately preceding the application
for licensure, the qualifying individual has either personally
passed the written examination for the same classification being
applied for, or has served as the qualifying individual for a
licensee whose license was in good standing at any time during the
five-year period immediately preceding the application for licensure
and in the same classification being applied for.
SEC. 14. Section 7068.1 of the Business and Professions Code is
amended to read:
7068.1. The person qualifying on behalf of an individual or firm
under paragraph (1), (2), (3), or (4) of subdivision (b) of Section
7068 shall be responsible for exercising that direct supervision and
control of his or her employer's or principal's construction
operations as is necessary to secure full compliance with this
chapter and the rules and regulations of the board relating to the
construction operations. This person shall not act in the capacity of
the qualifying person for an additional individual or firm unless
one of the following conditions exists:
(a) There is a common ownership of at least 20 percent of the
equity of each individual or firm for which the person acts in a
qualifying capacity.
(b) The additional firm is a subsidiary of or a joint venture with
the first. "Subsidiary," as used in this subdivision, means any firm
at least 20 percent of the equity of which is owned by the other
firm.
(c) With respect to a firm under paragraph (2), (3), or (4) of
subdivision (b) of Section 7068, the majority of the partners,
officers, or managers are the same.
(d) Notwithstanding subdivisions (a), (b), and (c), a qualifying
individual may act as the qualifier for no more than three firms in
any one-year period.
"Firm," as used in this section, means a partnership, a limited
partnership, a corporation, a limited liability company, or any other
combination or organization described in Section 7068.
"Person," as used in this section, is limited to natural persons,
notwithstanding the definition of "person" in Section 7025.
The board shall require every applicant or licensee qualifying by
the appearance of a qualifying individual to submit detailed
information on the qualifying individual's duties and
responsibilities for supervision and control of the applicant's
construction operations.
SEC. 15. Section 7071 of the Business and Professions Code is
amended to read:
7071. No license shall be issued to a corporation, partnership,
limited liability company, or other combination or organization if a
responsible officer or director of the corporation, or other
combination or organization, or a partner of the partnership, or a
manager or officer of the limited liability company, or any member of
an organization seeking licensure under this chapter does not meet
the qualifications required of an applicant other than those
qualifications relating to knowledge and experience.
SEC. 16. Section 7155 of the Business and Professions Code is
amended to read:
7155. Violation of any provision of this chapter by a home
improvement salesperson constitutes cause for disciplinary action.
The registrar may suspend or revoke the registration of the home
improvement salesperson if he or she is found to be in violation. The
disciplinary proceedings shall be conducted in accordance with
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code.
SEC. 17. Section 8030.4 of the Business and Professions Code is
amended to read:
8030.4. As used in this chapter:
(a) "Qualified legal services project" means a nonprofit project
incorporated and operated exclusively in California that provides as
its primary purpose and function legal services without charge to
indigent persons, has a board of directors or advisory board composed
of both attorneys and consumers of legal services, and provides for
community participation in legal services programming. Legal services
projects funded either in whole or in part by the Legal Services
Corporation or with Older Americans Act funds are presumed to be
qualified legal services projects for the purposes of this chapter.
(b) "Qualified support center" means an incorporated nonprofit
legal services center, having an office or offices in California,
which office or offices provide legal services or technical
assistance without charge to qualified legal services projects and
their clients on a multicounty basis in California. Support centers
funded either in whole or in part by the Legal Services Corporation
or with Older Americans Act funds are presumed to be qualified legal
services projects for the purposes of this chapter.
(c) "Other qualified project" means a nonprofit organization
formed for charitable or other public purposes, not receiving funds
from the Legal Services Corporation or pursuant to the Older
Americans Act, which organization or association provides free legal
services to indigent persons.
(d) "Pro bono attorney" means any attorney, law firm, or legal
corporation, licensed to practice law in this state, that undertakes,
without charge to the party, the representation of an indigent
person, referred by a qualified legal services project, qualified
support center, or other qualified project, in a case not considered
to be fee generating, as defined in this chapter.
(e) "Applicant" means a qualified legal services project,
qualified support center, other qualified project, or pro bono
attorney applying to receive funds from the Transcript Reimbursement
Fund established by this chapter. The term "applicant" shall not
include a person appearing pro se to represent himself or herself at
any stage of a case.
(f) (1) "Indigent person" means any of the following:
(A) A person whose income is 125 percent or less of the current
poverty threshold established by the Office of Management and Budget
of the United States.
(B) A person who is eligible for supplemental security income.
(C) A person who is eligible for, or receiving, free services
under the Older Americans Act or the Developmentally Disabled
Assistance Act.
(D) A person whose income is 75 percent or less of the maximum
level of income for lower income households as defined in Section
50079.5 of the Health and Safety Code, for purposes of a program that
provides legal assistance by an attorney in private practice on a
pro bono basis.
(E) A person who qualifies for a waiver of fees pursuant to
Section 68632 of the Government Code.
(2) For the purposes of this subdivision, the income of a person
who is disabled shall be determined after deducting the costs of
medical and other disability-related special expenses.
(g) "Fee-generating case" means any case or matter that, if
undertaken on behalf of an eligible client by an attorney in private
practice, reasonably may be expected to result in payment of a fee
for legal services from an award to a client, from public funds, or
from an opposing party. A reasonable expectation as to payment of a
legal fee exists wherever a client enters into a contingent fee
agreement with his or her lawyer. If there is no contingent fee
agreement, a case is not considered fee generating if adequate
representation is deemed to be unavailable because of the occurrence
of any of the following circumstances:
(1) If the applicant has determined that referral is not possible
because of any of the following:
(A) The case has been rejected by the local lawyer referral
service, or if there is no such service, by two private attorneys who
have experience in the subject matter of the case.
(B) Neither the referral service nor any lawyer will consider the
case without payment of a consultation fee.
(C) The case is of the type that private attorneys in the area
ordinarily do not accept or do not accept without prepayment of a
fee.
(D) Emergency circumstances compel immediate action before
referral can be made, but the client is advised that, if appropriate
and consistent with professional responsibility, referral will be
attempted at a later time.
(2) If recovery of damages is not the principal object of the case
and a request for damages is merely ancillary to an action for
equitable or other nonpecuniary relief or inclusion of a counterclaim
requesting damages is necessary for effective defense or because of
applicable rules governing joinder of counterclaims.
(3) If a court appoints an applicant or an employee of an
applicant pursuant to a statute or a court rule or practice of equal
applicability to all attorneys in the jurisdiction.
(4) In any case involving the rights of a claimant under a public
supported benefit program for which entitlement to benefit is based
on need.
(h) "Legal Services Corporation" means the Legal Services
Corporation established under the Legal Services Corporation Act of
1974, Public Law 93-355, as amended.
(i) "Supplemental security income recipient" means an individual
receiving or eligible to receive payments under Title XVI of the
Social Security Act, Public Law 92-603, as amended, or payment under
Chapter 3 (commencing with Section 12000) of Part 3 of Division 9 of
the Welfare and Institutions Code.
(j) "Lawyer referral service" means a lawyer referral program
authorized by the State Bar of California pursuant to the rules of
professional conduct.
(k) "Older Americans Act" means the Older Americans Act of 1965,
Public Law 89-73, as amended.
(l) "Rules of professional conduct" means those rules adopted by
the State Bar of California pursuant to Sections 6076 and 6077.
(m) "Certified shorthand reporter" means a shorthand reporter
certified pursuant to Article 3 (commencing with Section 8020)
performing shorthand reporting services pursuant to Section 8017.
(n) "Case" means a single legal proceeding from its inception,
through all levels of hearing, trial, and appeal, until its ultimate
conclusion and disposition.
(o) "Developmentally Disabled Assistance Act" means the
Developmentally Disabled Assistance and Bill of Rights Act of 1975
(P.L. 94-103), as amended.
(p) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
SEC. 18. Section 8726.1 of the Business and Professions Code, as
added by Chapter 625 of the Statutes of 1983, is repealed.
SEC. 19. Section 8761.1 of the Business and Professions Code, as
added by Chapter 625 of the Statutes of 1983, is repealed.
SEC. 20. Section 19164 of the Business and Professions Code is
amended to read:
19164. The bureau may, by regulation, establish insulation
material standards governing the quality of all insulation material
sold or installed within this state, including those properties that
affect the safety and thermal performance of insulation material
during application and in the use intended. The standards shall
specify the initial performance of the insulation material and the
performance expected during the design life of the insulation
material. Until the bureau has adopted these regulations, the
regulations of the State Energy Resources Conservation and
Development Commission in effect on the effective date of this
section relating to those standards shall remain in full force and
effect. However, wherever those regulations specify that the
commission shall perform an act, the bureau instead shall perform the
act.
Prior to establishing the standards and procedures required by
this chapter, the bureau shall conduct at least two public hearings,
and shall invite the State Energy Resources Conservation and
Development Commission, the State Fire Marshal, manufacturers,
distributors, and licensed installers of insulation materials, and
appropriate members of the public to participate in the hearings.
Immediately upon adoption of the standards and procedures, the bureau
shall provide a copy of the standards to the State Energy Resources
Conservation and Development Commission, and the Contractors' State
License Board. Within 30 days after receipt of the bureau's
standards, the Contractors' State License Board shall notify all
state licensed contractors who install insulation of the standards.
Insulation standards adopted by the bureau, pursuant to this
section, and by the State Energy Resources Conservation and
Development Commission, pursuant to Section 25402 of the Public
Resources Code, which are building standards, as defined in Section
25488.5 of the Public Resources Code, shall be submitted to the
California Building Standards Commission for approval pursuant to,
and are governed by, the California Building Standards Law (Part 2.5
(commencing with Section 18901) of Division 13 of the Health and
Safety Code). The building standards adopted by the bureau and
published in the California Building Standards Code shall comply
with, and be enforced as provided in, this section.
SEC. 21. Section 19481.5 of the Business and Professions Code is
amended to read:
19481.5. (a) Notwithstanding any other provision of law, no
license shall be issued to conduct a horse racing meeting upon a
track unless the track has been inspected by the board within 30 days
prior to the date of application for a license and the track has
been approved by the board as conforming to the racetrack safety
standards set forth in subdivision (a) of Section 19481.
(b) The board shall adopt regulations to establish standards
governing the employee housing provided to backstretch personnel at
licensed racetracks. These regulations shall be commensurate with the
housing standards established in the Employee Housing Act (Part 1
(commencing with Section 17000) of Division 13 of the Health and
Safety Code), and shall consider the following:
(1) The health and safety of the human and equine population and
the necessity for humans and horses to live in close proximity.
(2) The housing needs of state or county facilities with live
racing meetings of no more than 43 days in duration that do not
operate as year-round training facilities. The board shall
specifically consider the different needs of these facilities
compared to permanent facilities or other state and county facilities
that function on a year-round basis, including state and county fair
facilities that operate as year-round training facilities where
horses are stabled and workers live.
(3) Compliance of facilities with racing meetings of 19 days or
less, even if they operate as a year-round training facility, with
this subdivision shall be contingent on funding in the Budget Act of
2002 (Chapter 379 of the Statutes of 2002).
(c) Commencing January 1, 2004, the board, with assistance from
the California Department of Housing and Community Development or a
local building department or other local entity designated by the
jurisdiction in which the racetrack is located, shall annually
inspect the living conditions of backstretch employee housing to
ensure compliance with the housing standards established by the
board, the findings or results of which shall be submitted to the
board. No license shall be issued to a racing association to conduct
a horse race meeting unless the board has inspected the housing
conditions that exist on the racetrack's backstretch and determined
the living conditions to be in compliance with the standards
established by the board in subdivision (b).
(d) The board may assess a reasonable fee upon racing
associations to defray the costs associated with the inspections
provided for in subdivision (c).
SEC. 22. Section 19501 of the Business and Professions Code is
amended to read:
19501. (a) The Legislature finds and declares the following:
(1) Professional jockeys are vital to the horse racing industry
and the work they perform is very dangerous.
(2) The minimum wage that jockeys receive in a horse race is
established by the board as a minimum jockey riding fee. Jockeys may
earn additional compensation if the horse they are racing is a
winning mount, a second place mount, or a third place mount.
(3) The minimum jockey riding fee has not kept up with inflation
or the cost of living. Since 1970, the state minimum wage has
increased at more than twice the rate that the average jockey riding
fee increased over the same period.
(4) The riding fee should be increased at least as much on a
percentage basis as the state minimum wage, so that the average
full-time jockey can earn an income sufficient to provide for the
basic necessities of life.
(b) (1) Effective January 1, 2010, the scale of minimum jockey
riding fees for losing mounts established by the board shall be
increased by ten dollars ($10) per mount from the rate in effect on
December 31, 2009. Effective January 1, 2012, the scale of minimum
jockey riding fees for losing mounts established by the board shall
be increased by ten dollars ($10) per mount from the rate in effect
on December 31, 2011, except the three lowest fees on the scale shall
be increased by five dollars ($5) per mount. Thereafter, the scale
of minimum jockey riding fees for losing mounts shall be increased
whenever the state minimum wage is increased by the percentage of
that increase.
(2) Effective January 1, 2010, the minimum amount awarded to the
jockey who finishes second or third in a race shall be increased by
ten dollars ($10) over the amount required to be paid on December 31,
2009. Effective January 1, 2012, the minimum amount awarded to the
jockey who finishes second or third in a race shall be increased by
five dollars ($5) over the amount required to be paid on December 31,
2011. This subdivision shall apply to races in which the purse is
nine thousand nine hundred ninety-nine dollars ($9,999) or less.
(c) No jockey shall be paid less than the minimum jockey riding
fees established pursuant to this section.
(d) Nothing in this section prohibits the board from increasing
the minimum jockey riding fee above the minimum level required by
this section.
SEC. 23. Section 19532.2 of the Business and Professions Code is
amended to read:
19532.2. Notwithstanding any other provision of law, commencing
July 1, 2010, if a racetrack located in the central zone is not
available for use by a thoroughbred association that was licensed by
the board to conduct a live race meet at that racetrack in 2009, the
board shall be authorized to allocate racing dates to that
association to be operated at a racetrack in the central zone or
southern zone for racing in 2010, or thereafter, in accordance with
the rules and regulations of the board, provided, however, that the
number of racing dates allocated pursuant to this section does not
exceed the number of racing dates that became unavailable at the
central zone racetrack.
SEC. 24. Section 19604.5 of the Business and Professions Code is
amended to read:
19604.5. (a) As used in this section, the following definitions
apply:
(1) "Back" means to wager on a selected outcome occurring in a
given market.
(2) "Board" means the California Horse Racing Board.
(3) "Corrective wager" means an exchange wager placed by the
exchange wagering licensee in a given market, under circumstances
approved by the board, in order to address the impact on that market
of the cancellation or voiding of a given matched wager or a given
part of a matched wager.
(4) "Exchange" means a system operated by an exchange wagering
licensee in which the exchange wagering licensee maintains one or
more markets in which persons may back or lay a selected outcome.
(5) "Exchange revenues" means all charges, fees, income, payments,
revenues, and deductions of any kind assessed or collected by, or
paid or delivered to, an exchange wagering licensee in connection
with the submission of any exchange wagers to the exchange wagering
licensee by residents of California and residents of jurisdictions
outside of California on the results of horse races conducted in
California, and by residents of California on the results of horse
races conducted outside of California.
(6) "Exchange wagers" means wagers submitted to an exchange
wagering licensee to be posted in a market on an exchange.
(7) "Exchange wagering" means a form of parimutuel wagering in
which two or more persons place identically opposing wagers in a
given market.
(8) "Exchange wagering account" means the account established with
an exchange wagering licensee by a person participating in exchange
wagering. An exchange wagering account may only be established or
maintained with an exchange wagering licensee by a natural person.
(9) "Exchange wagering agreement" means a written agreement by and
among the applicable exchange wagering licensee, the applicable
racing association or racing fair conducting live racing in this
state, and the horsemen's organization responsible for negotiating
purse agreements for the breed on which exchange wagers are accepted,
provided that the terms and conditions for the permitted use of the
signal by the exchange wagering licensee, and the compensation to the
applicable racing association or racing fair and the horsemen's
organization, include provisions for, but are not limited to, all of
the following:
(A) Calculation of any and all amounts earned and payable to the
applicable racing association or racing fair and horsemen's
organization.
(B) Audit rights and conditions.
(C) Duration terms.
(D) Contractual remedies.
(10) "Exchange wagering licensee" means a person located within or
outside of California that is authorized to offer exchange wagering
to residents of California pursuant to this section.
(11) "Identically opposing wagers" means wagers in which one or
more persons offer to lay a selected outcome at the same price at
which one or more persons offer to back that same outcome, with the
amount subject to the lay being proportionately commensurate to the
amount subject to the back.
(12) "Lay" means to wager on a selected outcome not occurring in a
given market.
(13) "Market" means, in relation to a given horse race or a given
set of horse races, a particular outcome that is subject to exchange
wagering as determined by an exchange wagering licensee.
(14) "Matched wager" means the wager that is formed when two or
more persons are confirmed by the exchange operator as having placed
identically opposing wagers in a given market on the exchange.
(15) "Net winnings" means the aggregate amounts payable to a
person as a result of that person's winning matched wagers in a pool
less the aggregate amount paid by that person as a result of that
person's losing matched wagers in that pool.
(16) "Parimutuel" means any system whereby wagers with respect to
the outcome of a horse race are placed with, or in, a wagering pool
conducted by an authorized person, and in which the participants are
wagering with each other and not against the person conducting the
wagering pool.
(17) "Person" means any individual, partnership, corporation,
limited liability company, or other association or organization.
(18) "Pool" means the total of all matched wagers in a given
market.
(19) "Price" means the odds for a given exchange wager.
(20) "Unmatched wager" means a wager or portion of a wager placed
in a given market within an exchange that does not become part of a
matched wager because there are not one or more available exchange
wagers in that market with which to form one or more identically
opposing wagers.
(21) "Zone" has the same meaning as defined in Section 19530.5, as
modified by subdivision (f) of Section 19601, except that for the
purposes of this section the combined central and southern zones
shall be considered one "central/southern" zone.
(b) Notwithstanding any other law, rule, or regulation, exchange
wagering by residents of California and residents of jurisdictions
outside of California on the results of horse races conducted in
California, and by residents of California on the results of horse
races conducted outside of California, shall be lawful provided that
all of the following apply:
(1) Exchange wagering shall only be conducted by an exchange
wagering licensee pursuant to a valid exchange wagering license
issued by the board.
(2) No exchange wagering licensee shall accept exchange wagers on
races conducted in California from a resident of California or a
resident of a jurisdiction outside California, or conducted outside
California from a resident of California, unless an exchange wagering
agreement exists allowing these wagers.
(3) Exchange wagering shall be conducted pursuant to and in
compliance with the provisions of the Interstate Horseracing Act of
1978 (15 U.S.C. Sec. 3001 et seq.), as amended, this section, all
applicable federal laws, and rules and regulations promulgated by the
board pursuant to this section.
(4) An exchange wagering licensee may only offer exchange wagering
on thoroughbred horse races, whether these thoroughbred races are
conducted within or outside of this state, to persons whose primary
residence address is in the northern zone of this state if it has an
exchange wagering agreement with (A) the racing association or racing
fair located in the northern zone authorized by the board to conduct
a live thoroughbred racing meeting in accordance with the provisions
of Article 4 (commencing with Section 19480) at that time, or during
the calendar period, when the exchange wagering licensee is offering
exchange wagering to persons whose primary residence is in the
northern zone of this state, and (B) the horsemen's organization
responsible for negotiating purse agreements for a live thoroughbred
racing meeting.
(5) An exchange wagering licensee may only offer exchange wagering
on thoroughbred horse races, whether these thoroughbred races are
conducted within or outside of this state, to persons whose primary
residence address is in the central/southern zone of this state if it
has an exchange wagering agreement with (A) the racing association
or racing fair located in the central/southern zone authorized by the
board to conduct a live thoroughbred racing meeting in accordance
with the provisions of Article 4 (commencing with Section 19480) at
that time, or during the calendar period, when the exchange wagering
licensee is offering exchange wagering to persons whose primary
residence is in the central/southern zone of this state, and (B) the
horsemen's organization responsible for negotiating purse agreements
for a live thoroughbred racing meeting.
(6) An exchange wagering licensee may only offer exchange wagering
on quarter horse races, whether these quarter horse races are
conducted within or outside of this state, to persons whose primary
residence address is in this state if it has an exchange wagering
agreement with (A) the racing association or racing fair located in
the state authorized by the board to conduct a live quarter horse
racing meeting in accordance with the provisions of Article 4
(commencing with Section 19480) at that time, or during the calendar
period, when the exchange wagering licensee is offering exchange
wagering to persons whose primary residence is this state, and (B)
the horsemen's organization responsible for negotiating purse
agreements for the live quarter horse racing meeting.
(7) An exchange wagering licensee may only offer exchange wagering
on standardbred horse races, whether these standardbred horse races
are conducted within or outside of this state, to persons whose
primary residence address is in this state if it has an exchange
wagering agreement with (A) the racing association or racing fair
located in the state authorized by the board to conduct a live
standardbred racing meeting in accordance with the provisions of
Article 4 (commencing with Section 19480) at that time, or during the
calendar period, when the exchange wagering licensee is offering
exchange wagering to persons whose primary residence is this state,
and (B) the horsemen's organization responsible for negotiating purse
agreements for the live standardbred racing meeting.
(8) Exchange wagers are submitted to, and accepted by, an exchange
wagering licensee in person, by direct telephone call, or by
communication through other electronic media.
(c) A person shall not be permitted to open an exchange wagering
account, or place an exchange wager, except in accordance with
federal law, this section, and rules and regulations promulgated by
the board. Only natural persons with valid exchange wagering accounts
may place wagers through an exchange. To establish an exchange
wagering account, a person shall be at least 18 years of age and a
resident of California or of another jurisdiction within which the
placement of exchange wagers would not be unlawful under United
States federal law or the law of that jurisdiction.
(d) The board shall approve, as part of the exchange wagering
licensee's application for an exchange wagering license, security
policies and safeguards to ensure player protection and integrity,
including, but not limited to, provisions governing the acceptance of
electronic applications for persons establishing exchange wagering
accounts, location and age verification confirmation for persons
establishing exchange wagering accounts, the use of identifying
factors to ensure security of individual accounts, and the
requirements for management of funds in exchange wagering accounts.
An exchange wagering licensee may not accept a wager, or series of
wagers, if the results of the wager or wagers would create a
liability for the exchange wagering accountholder that is in excess
of the funds on deposit in the exchange wagering account of that
holder.
(e) Notwithstanding any other law, rule, or regulation:
(1) The board shall have full power to prescribe rules,
regulations, and conditions under which exchange wagering may be
conducted in California consistent with this section, including the
manner in which exchange wagers may be accepted and the requirements
for any person to participate in exchange wagering.
(2) Prior to promulgating rules, regulations, and conditions under
which exchange wagering may be conducted in California, the board
shall consider studies or comments submitted by interested parties on
the impact of exchange wagering on parimutuel betting and the
economics of the California horse racing industry to assist the board
in developing rules, regulations, and conditions for exchange
wagering that are in the best interest of the public and the
California horse racing industry. The board may set a timeframe for
comments and studies to be submitted by interested parties and for
the board to consider the studies and comments so as to allow
sufficient time, in the discretion of the board, to allow for the
promulgation of rules, regulations, and conditions for exchange
wagering and the issuance of licenses for exchange wagering prior to
May 1, 2012.
(3) Notwithstanding paragraph (1), the board shall adopt the
following rules:
(A) An owner, authorized agent, trainer, jockey, jockey's agent,
driver, or stable employee shall not place an exchange wager to lay
any entrant in a horse race that is owned in whole or part by that
owner or the owner represented by that authorized agent, trained by
that trainer or stable employee, ridden by that jockey or the jockey
represented by that jockey's agent, or driven by that driver.
(B) No exchange wagers shall be placed on a market after the
conclusion of a live race. Exchange wagering on previously run races
is prohibited.
(C) The exchange wagering licensee shall provide a person with
information on the race, including the track where the race will take
place and the names of the participating horses, before the person
may place an exchange wager.
(D) The exchange wagering licensee shall require the person making
the exchange wager to select the specific race and horse for the
wager. The use of automatic, quick-pick, or similar features to aid
in the placing of a wager shall be prohibited.
(E) The results of a wager shall not be displayed through the use
of video or mechanical reels or other slot machine or casino game
themes, including, but not limited to, dice games, wheel games, card
games, and lotto.
(4) The board shall have full power to prescribe rules,
regulations, and conditions under which all exchange wagering
licenses are issued or renewed in California, including requiring an
annual audit of the exchange wagering licensee's books and records
pertaining to exchange wagering, and to revoke, suspend, or refuse to
renew a license pursuant to the authority granted to the board in
this chapter.
(5) The board may reasonably require licensure or registration of
officers or directors of any exchange wagering licensee.
(6) The board may recover any costs associated with the licensing
or regulation of exchange wagering from the exchange wagering
licensee by imposing an assessment on the exchange wagering licensee
in an amount that does not exceed the reasonable costs associated
with the licensing or regulation of exchange wagering. Funds received
pursuant to this subdivision shall be deposited in the Horse Racing
Fund, to be available upon appropriation by the Legislature for the
sole purpose of regulating exchange wagering.
(f) (1) The board shall not approve an application for an original
or renewal license as an exchange wagering licensee unless the
entity, if requested in writing by a bona fide labor organization no
later than 90 days prior to licensing, has entered into a contractual
agreement with that labor organization that provides all of the
following:
(A) The labor organization has historically represented employees
who accept or process any form of wagering at the nearest horse
racing meeting located in California.
(B) The agreement establishes the method by which the exchange
wagering licensee will agree to recognize and bargain in good faith
with a labor organization which has demonstrated majority status by
submitting authorization cards signed by those employees who accept
or process any form of wagering for which a California exchange
wagering license is required.
(C) The agreement requires the exchange wagering licensee to
maintain its neutrality concerning the choice of those employees who
accept or process any form of wagering for which a California
exchange wagering license is required and whether or not to authorize
the labor organization to represent them with regard to wages,
hours, and other terms and conditions of employment.
(D) The agreement applies to those classifications of employees
who accept or process wagers for which a California exchange wagering
license is required, whether the facility is located within or
outside of California.
(2) (A) The agreement required by paragraph (1) shall not be
conditioned by either party upon the other party agreeing to matters
outside the requirements of paragraph (1).
(B) The requirement in paragraph (1) shall not apply to an
exchange wagering licensee that has entered into a collective
bargaining agreement with a bona fide labor organization that is the
exclusive bargaining representative of employees who accept or
process parimutuel wagers on races for which an exchange wagering
license is required, whether the facility is located within or
outside of California.
(3) Permanent state or county employees and nonprofit
organizations that have historically performed certain services at
county, state, or district fairs may continue to provide those
services.
(4) Parimutuel clerks employed by racing associations or fairs or
employees of exchange wagering licensees who accept or process any
form of wagers who are laid off due to lack of work shall have
preferential hiring rights for new positions with their employer in
occupations whose duties include accepting or processing any form of
wagers, or the operation, repair, service, or maintenance of
equipment that accepts or processes any form of wagering at a
racetrack, satellite wagering facility, or exchange wagering licensee
licensed by the board. The preferential hiring rights established by
this paragraph shall be conditioned upon the employee meeting the
minimum qualification requirements of the new job.
(g) Notwithstanding any other law, rule, or regulation, an
exchange wagering licensee shall not be required to include any pools
of exchange wagers in the wagering pools at the racing association
or racing fair conducting the races, nor shall an exchange wagering
licensee be required to retain, withhold, or take out any amounts
from any exchange wagers, except as expressly set forth in the
applicable exchange wagering agreement.
(h) Subject to the approval of the board, an exchange wagering
licensee shall be permitted to collect exchange revenues in the
manner and amounts determined by the exchange wagering licensee,
including, but not limited to, assessing a surcharge on any person's
net winnings.
(i) Notwithstanding any other law, rule, or regulation, the board
shall require all of the following:
(1) Each exchange wagering licensee shall distribute all moneys in
each pool, net of any fees, charges, or deductions of any kind
assessed or collected by the exchange wagering licensee in connection
with matched wagers in that pool, at the conclusion of the race or
races associated with that pool.
(2) Each exchange wagering licensee shall distribute the portions
of the exchange wagering licensee's exchange revenues as may be
required pursuant to the exchange wagering agreement pursuant to
paragraphs (2) to (7), inclusive, of subdivision (b).
(3) Fifty percent of the amounts received by a racing association
or racing fair from exchange wagering shall be paid to horsemen
participating in the meetings conducted by that racing association or
racing fair in the form of purses. The allocation of amounts
received by a racing association or racing fair from exchange
wagering between that racing association or racing fair and the
horsemen participating in the meetings conducted by that racing
association or racing fair may be modified by a written agreement
between those entities.
(4) In addition to payments set forth in paragraphs (1) and (2),
each exchange wagering licensee shall distribute, on an annual basis,
an amount equal to the greater of (A) one hundred thousand dollars
($100,000), or (B) an amount equal to 0.001 multiplied by the total
amount of exchange revenues collected by the exchange wagering
licensee in that calendar year. The distribution shall be made at the
direction of the board pursuant to Section 19612.9. This paragraph
shall become inoperative on January 1, 2021, and, as of that date, is
repealed, unless a later enacted statute that is enacted before
January 1, 2021, deletes or extends that date.
(j) An exchange wagering licensee may cancel or allow to be
canceled any unmatched wagers, without cause, at any time.
(k) The board may prescribe rules governing when an exchange
wagering licensee may cancel or void a matched wager or part of a
matched wager, and the actions which an exchange wagering licensee
may take when all or part of a matched wager is canceled or voided.
The rules may include, but are not limited to, permitting the
exchange wagering licensee to place corrective wagers under
circumstances approved in the rules adopted by the board. Exchange
wagers placed on a market after the start of a race shall be lawful
if authorized by the board, racing association, or racing fair
conducting the races, and the horsemen's organization responsible for
negotiating purse agreements for the breed on which the exchange
wager is made.
(l) The provisions of this section shall be deemed to be
severable, and if any phrase, clause, sentence, or provision of this
section is declared to be unconstitutional or the applicability
thereof to any person is held invalid, the remainder of this section
shall not thereby be deemed to be unconstitutional or invalid.
(m) The board shall promulgate administrative rules and
regulations to effectuate the purposes of this section.
(n) No exchange wagering licensee may accept exchange wagers
pursuant to this section prior to May 1, 2012.
SEC. 25. Section 19605.73 of the Business and Professions Code is
amended to read:
19605.73. (a) Thoroughbred racing associations, fairs, and the
organization responsible for contracting with thoroughbred racing
associations and fairs with respect to the conduct of racing
meetings, may form a private, statewide marketing organization to
market and promote thoroughbred and fair horse racing, including, but
not limited to, the establishment and maintenance of an Internet Web
site featuring California thoroughbred and fair racing, the
establishment and administration of players incentive programs for
those who wager on thoroughbred association and fair races, and
promotional activities at satellite wagering facilities to increase
their attendance and handle. While the promotional activities at
satellite wagering facilities shall be funded by the marketing
organization, they shall be implemented and coordinated by
representatives of the satellite wagering facilities and the
thoroughbred racing associations or fairs then conducting a live race
meet. The organization shall consist of the following members: two
members, one from the northern zone and one from the combined central
and southern zones, appointed by the thoroughbred racetracks; two
members, one from the northern zone and one from the combined central
and southern zones, appointed by the owners' organization
responsible for contracting with associations and fairs with respect
to the conduct of racing meetings; and two members, one from the
northern zone and one from the combined central and southern zones,
appointed by the organization representing racing and satellite
fairs.
(b) The marketing organization formed pursuant to subdivision (a)
shall, by November 1 of each year, submit a written report to the
board on a statewide marketing and promotion plan for the upcoming
calendar year. In addition, the organization shall annually present
to the board at the board's
November meeting a verbal report on the statewide marketing and
promotion plan for the upcoming calendar year. The plan shall be
implemented as determined by the organization. The organization shall
receive input from all interested industry participants and may
utilize outside consultants.
(c) In addition to the distributions specified in subdivisions (a)
and (b) of Section 19605.7, subdivisions (a) and (b) of Section
19605.71, and Section 19605.72, for thoroughbred and fair meetings
only, from the amount that would normally be available for
commissions and purses, an amount not to exceed 0.25 percent of the
total amount handled by each satellite wagering facility shall be
distributed to the marketing organization formed pursuant to
subdivision (a) for the purposes set forth therein. The amounts
initially distributed to the marketing organization formed pursuant
to subdivision (a) shall be 0.2 percent of the total amount handled
by satellite wagering facilities for thoroughbred and fair meetings
only. The amount distributable to the marketing organization may be
adjusted by the board, in its discretion. However, the adjusted
amounts may not exceed an aggregate of 0.25 percent of the total
amount handled by satellite wagering facilities for thoroughbred and
fair meetings only. Any of the promotion funds that are not expended
in the year in which they are collected may be expended in the
following year. If promotion funds expended in any one year exceed
the amount collected for that year, the funds expended in the
following year shall be reduced by the excess amount. The marketing
organization, on a quarterly basis, shall submit to the board a
written report that accounts for all receipts and expenditures of the
promotion funds for the previous three months.
(d) This section shall remain in effect only until January 1,
2014, and, as of that date, is repealed, unless a later enacted
statute that is enacted before January 1, 2014, deletes or extends
that date. Any moneys held by the organization shall, in the event
this section is repealed, be distributed to the organization formed
pursuant to Section 19608.2, for purposes of that section.
SEC. 26. Section 19614.5 of the Business and Professions Code is
amended to read:
19614.5. Notwithstanding Section 19614, any county or district
agricultural association fair which is licensed to conduct racing
meetings for the first time on or after January 1, 1979, may retain
the license fee applicable to its meeting for payment of a capital
expense loan incurred for the purpose of preparing its facilities for
horseracing. This license fee retention shall be applicable only
during the loan period and only so long as all the moneys retained
are used to pay off the loan for the capital expenses.
SEC. 27. Section 23358.2 of the Business and Professions Code is
amended to read:
23358.2. Notwithstanding any other provision of this division, a
winegrower or brandy manufacturer, at his or her licensed premises
where the sale of wine or brandy is authorized or permitted, when
selling to consumers, may sell only wine or brandy which is produced
or bottled by such licensee, or wine or brandy which is produced for
or is produced and packaged for such licensee, and which is sold
under a brand name owned by such licensee. The rights and privileges
of a winegrower or brandy manufacturer to be issued and to hold an
off-sale beer and wine license for any of his or her licensed
premises, or for other premises, shall not in any way be changed or
affected, or be construed to be changed or affected, by the
provisions of this section.
SEC. 28. Section 23368.1 of the Business and Professions Code is
amended to read:
23368.1. A distilled spirits rectifier's general license
authorizes the person to whom issued to cut, blend, rectify, mix,
flavor, and color distilled spirits, and whether so cut, blended,
mixed, flavored, or colored by him or any other person to package,
label, export, and sell the distilled spirits to distilled spirits
manufacturers, distilled spirits manufacturer's agents, distilled
spirits wholesalers, distilled spirits general importers, rectifiers,
and distilled spirits general rectifiers.
No distilled spirits rectifier's general license shall be issued
to any person who holds an interest, directly or indirectly, in an
on-sale or off-sale general license. The number of distilled spirits
rectifier's general licenses which may be issued shall not be limited
by the provisions of Section 23820.
A distilled spirits rectifier's general license may be issued to
the same premises for which a manufacturer's, manufacturer's agent,
importer's, rectifier's, or wholesaler's license has been issued and
is in effect whether issued to the same person or another person.
The fee for a distilled spirits rectifier's general license shall
be two hundred seventy-six dollars ($276), which shall be deposited
in the Alcohol Beverage Control Fund.
SEC. 29. Section 23378.1 of the Business and Professions Code is
amended to read:
23378.1. (a) A California brandy wholesaler's license may be
issued only to the holder of a beer and wine wholesaler's license,
and authorizes the person to whom it is issued (hereafter in this
section called "licensee") to sell only brandy produced in California
to persons holding licenses authorizing the sale of brandy, and to
export that brandy, subject to all of the following conditions:
(1) The licensee shall:
(A) Maintain warehouse space either owned or leased by him or her
or dedicated to his or her use in a public warehouse which space is
sufficient to store at one time a stock of California brandy whose
cost of acquisition is one hundred thousand dollars ($100,000) or
more.
(B) Maintain at all times in his or her warehouse either owned or
leased by him or her or in space dedicated to his or her use in a
public warehouse a stock of California brandy whose cost of
acquisition is one hundred thousand dollars ($100,000) or more. If a
licensee has more than one licensed premise, he or she shall be
required to maintain warehouse space for and a stock of California
brandy whose cost of acquisition is one hundred thousand dollars
($100,000) or more only in connection with one licensed premise. For
each of the remaining licensed premises, the licensee shall be
required to maintain warehouse space for and a stock of California
brandy whose cost of acquisition is thirty thousand dollars ($30,000)
or more. The stock of California brandy required by this paragraph
shall be owned by the licensee, not held on consignment, and not
acquired pursuant to a prior agreement to sell it to a specific
licensee or licensees.
(2) The licensee shall sell California brandy to retailers
generally, rather than a few selected retailers. A licensee who sells
to 25 percent of the retailers in the county where his or her
California brandy wholesale licensed premises are located, or a
licensee whose total volume of sales of California brandy to
retailers during any 12-month period consists of 50 percent or more
of individual sales in quantities of 10 cases or less, shall be
conclusively presumed to be selling to retailers generally.
(3) The licensee may sell only one California brandy of one
winegrower, which brandy is produced or bottled by the winegrower, or
which is produced for, or is produced and packaged for, the
winegrower, and is sold under a brand name owned or controlled by the
winegrower.
(4) The licensee, under the authority of his or her beer and wine
wholesaler's license, shall stock and offer to sell to retailers a
complete product line of California wines of the winegrower whose
brandy the licensee handles. A "complete product line" for the
purposes of this paragraph means all of the types of wines sold under
a particular label.
(b) The number of California brandy wholesaler's licenses which
may be issued shall not be limited by any rule of the department
relating to the number which may be issued in any county, nor shall
those licenses be included in any formula used by the department in
determining the number of distilled spirits wholesaler's licenses
which may be issued in a county.
(c) The fee for a California brandy wholesaler's license shall be
two hundred seventy-six dollars ($276) per year, which shall be
deposited in the Alcohol Beverage Control Fund.
SEC. 30. Section 25608 of the Business and Professions Code is
amended to read:
25608. (a) Every person who possesses, consumes, sells, gives, or
delivers to any other person, any alcoholic beverage in or on any
public schoolhouse or any of the grounds of the schoolhouse, is
guilty of a misdemeanor. This section does not, however, make it
unlawful for any person to acquire, possess, or use any alcoholic
beverage in or on any public schoolhouse, or on any grounds of the
schoolhouse, if any of the following applies:
(1) The alcoholic beverage possessed, consumed, or sold, pursuant
to a license obtained under this division is wine that is produced by
a bonded winery owned or operated as part of an instructional
program in viticulture and enology.
(2) The alcoholic beverage is acquired, possessed, or used in
connection with a course of instruction given at the school and the
person has been authorized to acquire, possess, or use it by the
governing body or other administrative head of the school.
(3) The public schoolhouse is surplus school property and the
grounds of the schoolhouse are leased to a lessee that is a general
law city with a population of less than 50,000, or the public
schoolhouse is surplus school property and the grounds of the
schoolhouse are located in an unincorporated area and are leased to a
lessee that is a civic organization, and the property is to be used
for community center purposes and no public school education is to be
conducted on the property by either the lessor or the lessee and the
property is not being used by persons under 21 years of age for
recreational purposes at any time during which alcoholic beverages
are being sold or consumed on the premises.
(4) The alcoholic beverages are acquired, possessed, or used
during events at a college-owned or college-operated veterans stadium
with a capacity of over 12,000 people, located in a county with a
population of over 6,000,000 people. As used in this paragraph,
"events" means football games sponsored by a college, other than a
public community college, or other events sponsored by noncollege
groups.
(5) The alcoholic beverages are acquired, possessed, or used
during an event not sponsored by any college at a performing arts
facility built on property owned by a community college district and
leased to a nonprofit organization that is a public benefit
corporation formed under Part 2 (commencing with Section 5110) of
Division 2 of Title 1 of the Corporations Code. As used in this
paragraph, "performing arts facility" means an auditorium with more
than 300 permanent seats.
(6) The alcoholic beverage is wine for sacramental or other
religious purposes and is used only during authorized religious
services held on or before January 1, 1995.
(7) The alcoholic beverages are acquired, possessed, or used
during an event at a community center owned by a community services
district and the event is not held at a time when students are
attending a public school-sponsored activity at the center.
(8) The alcoholic beverage is wine that is acquired, possessed, or
used during an event sponsored by a community college district or an
organization operated for the benefit of the community college
district where the college district maintains both an instructional
program in viticulture on no less than five acres of land owned by
the district and an instructional program in enology, which includes
sales and marketing.
(9) The alcoholic beverage is acquired, possessed, or used at a
professional minor league baseball game conducted at the stadium of a
community college located in a county with a population of fewer
than 250,000 inhabitants, and the baseball game is conducted pursuant
to a contract between the community college district and a
professional sports organization.
(10) The alcoholic beverages are acquired, possessed, or used
during events at a college-owned or college-operated stadium or other
facility. As used in this paragraph, "events" means fundraisers held
to benefit a nonprofit corporation that has obtained a license
pursuant to this division for the event. "Events" does not include
football games or other athletic contests sponsored by any college or
public community college. This paragraph shall not apply to any
public education facility in which any grade from kindergarten to
grade 12, inclusive, is schooled.
(11) The alcoholic beverages are possessed, consumed, or sold,
pursuant to a license, permit, or authorization obtained under this
division, for an event held at an overnight retreat facility owned
and operated by a county office of education or a school district at
times when pupils are not on the grounds.
(12) The grounds of the public schoolhouse on which the alcoholic
beverage is acquired, possessed, used, or consumed is property that
has been developed and is used for residential facilities or housing
that is offered for rent, lease, or sale exclusively to faculty or
staff of a public school or community college.
(13) The grounds of a public schoolhouse on which the alcoholic
beverage is acquired, possessed, used, or consumed is property of a
community college that is leased, licensed, or otherwise provided for
use as a water conservation demonstration garden and community
passive recreation resource by a joint powers agency comprised of
public agencies, including the community college, and the event at
which the alcoholic beverage is acquired, possessed, used, or
consumed is conducted pursuant to a written policy adopted by the
governing body of the joint powers agency and no public funds are
used for the purchase or provision of the alcoholic beverage.
(14) The alcoholic beverage is beer or wine acquired, possessed,
used, sold, or consumed only in connection with a course of
instruction, sponsored dinner, or meal demonstration given as part of
a culinary arts program at a campus of a California community
college and the person has been authorized to acquire, possess, use,
sell, or consume the beer or wine by the governing body or other
administrative head of the school.
(15) The alcoholic beverages are possessed, consumed, or sold,
pursuant to a license or permit obtained under this division, for
special events held at the facilities of a public community college,
located in a county of the first class, a county of the fourth class,
or a county of the tenth class, during the special event. As used in
this paragraph, "special event" means festivals, shows, private
parties, concerts, theatrical productions, and other events held on
the premises of the public community college, pursuant to a license
or permit, and for which the principal attendees are members of the
general public or invited guests and not students of the public
community college.
(16) The alcoholic beverages are acquired, possessed, or used
during an event at a community college-owned facility in which any
grade from kindergarten to grade 12, inclusive, is schooled, if the
event is held at a time when pupils in any grades from kindergarten
to grade 12, inclusive, are not present at the facility. As used in
this paragraph, "events" include fundraisers held to benefit a
nonprofit corporation that has obtained a license pursuant to this
division for the event.
(b) Any person convicted of a violation of this section shall, in
addition to the penalty imposed for the misdemeanor, be barred from
having or receiving any privilege of the use of public school
property which is accorded by Article 2 (commencing with Section
82537) of Chapter 8 of Part 49 of Division 7 of Title 3 of the
Education Code.
SEC. 31. 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 21 years of
age is guilty of a misdemeanor.
(b) Except as provided in Section 25667, any person under 21 years
of age who purchases any alcoholic beverage, or any person under 21
years of age 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 21 years of age, and the person
under 21 years of age 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 21
years of age to consume any alcoholic beverage in the on-sale
premises, whether or not the licensee has knowledge that the person
is under 21 years of age, is guilty of a misdemeanor.
(e) (1) Except as otherwise provided in paragraph (2) or (3), or
Section 25667, 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), where
prosecution of the previous violation was not barred pursuant to
Section 25667, 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 of one thousand dollars ($1,000), or by
both imprisonment and fine.
(f) Persons under 21 years of age may be used by peace officers in
the enforcement of this section to apprehend licensees, or employees
or agents of licensees, or other persons who sell or furnish
alcoholic beverages to minors. Notwithstanding subdivision (b), any
person under 21 years of age 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 21 years of age 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 21
years of age. 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 to licensees and the department 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 or the imposition of penalties under any other provision
of law, including, but not limited to, Section 272 of the Penal Code
and Section 13202.5 of the Vehicle Code.
SEC. 32. Section 798.23.5 of the Civil Code is amended to read:
798.23.5. (a) (1) Management shall permit a homeowner to rent his
or her home that serves as the homeowner's primary residence or
sublet his or her space, under the circumstances described in
paragraph (2) and subject to the requirements of this section.
(2) A homeowner shall be permitted to rent or sublet pursuant to
paragraph (1) if a medical emergency or medical treatment requires
the homeowner to be absent from his or her home and this is confirmed
in writing by an attending physician.
(b) The following provisions shall apply to a rental or sublease
pursuant to this section:
(1) The minimum term of the rental or sublease shall be six
months, unless the management approves a shorter term, but no greater
than 12 months, unless management approves a longer term.
(2) The management may require approval of a prospective renter or
sublessee, subject to the process and restrictions provided by
subdivision (a) of Section 798.74 for prospective purchasers of
mobilehomes. A prospective sublessee shall comply with any rule or
regulation limiting residency based on age requirements, pursuant to
Section 798.76. The management may charge a prospective sublessee a
credit screening fee for the actual cost of any personal reference
check or consumer credit report that is provided by a consumer credit
reporting agency, as defined in Section 1785.3, if the management or
his or her agent requires that personal reference check or consumer
credit report.
(3) The renter or sublessee shall comply with all rules and
regulations of the park. The failure of a renter or sublessee to
comply with the rules and regulations of the park may result in the
termination of the homeowner's tenancy in the mobilehome park, in
accordance with Section 798.56. A homeowner's tenancy may not be
terminated under this paragraph if the homeowner completes an action
for unlawful detainer or executes a judgment for possession, pursuant
to Chapter 4 (commencing with Section 1159) of Title 3 of Part 3 of
the Code of Civil Procedure within 60 days of the homeowner receiving
notice of termination of tenancy.
(4) The homeowner shall remain liable for the mobilehome park rent
and other park charges.
(5) The management may require the homeowner to reside in the
mobilehome park for a term of one year before management permits the
renting or subletting of a mobilehome or mobilehome space.
(6) Notwithstanding subdivision (a) of Section 798.39, if a
security deposit has been refunded to the homeowner pursuant to
subdivision (b) or (c) of Section 798.39, the management may require
the homeowner to resubmit a security deposit in an amount or value
not to exceed two months' rent in addition to the first month's rent.
Management may retain this security deposit for the duration of the
term of the rental or sublease.
(7) The homeowner shall keep his or her current address and
telephone number on file with the management during the term of
rental or sublease. If applicable, the homeowner may provide the
name, address, and telephone number of his or her legal
representative.
(c) A homeowner may not charge a renter or sublessee more than an
amount necessary to cover the cost of space rent, utilities, and
scheduled loan payments on the mobilehome, if any.
SEC. 33. Section 799.1 of the Civil Code is amended to read:
799.1. (a) Except as provided in subdivision (b), this article
shall govern the rights of a resident who has an ownership interest
in the subdivision, cooperative, or condominium for mobilehomes, or a
resident-owned mobilehome park in which his or her mobilehome is
located or installed. In a subdivision, cooperative, or condominium
for mobilehomes, or a resident-owned mobilehome park, Article 1
(commencing with Section 798) to Article 8 (commencing with Section
798.84), inclusive, shall apply only to a resident who does not have
an ownership interest in the subdivision, cooperative, or condominium
for mobilehomes, or the resident-owned mobilehome park, in which his
or her mobilehome is located or installed.
(b) Notwithstanding subdivision (a), in a mobilehome park owned
and operated by a nonprofit mutual benefit corporation, established
pursuant to Section 11010.8 of the Business and Professions Code,
whose members consist of park residents where there is no recorded
condominium plan, tract, parcel map, or declaration, Article 1
(commencing with Section 798) to Article 8 (commencing with Section
798.84), inclusive, shall govern the rights of members who are
residents that have a rental agreement with the corporation.
SEC. 34. Section 1195 of the Civil Code is amended to read:
1195. (a) Proof of the execution of an instrument, when not
acknowledged, may be made any of the following:
(1) By the party executing it, or either of them.
(2) By a subscribing witness.
(3) By other witnesses, in cases mentioned in Section 1198.
(b) Proof of the execution of a grant deed, mortgage, deed of
trust, quitclaim deed, or security agreement is not permitted
pursuant to Section 27287 of the Government Code, though proof of the
execution of a trustee's deed or deed of reconveyance is permitted.
(c) Any certificate for proof of execution taken within this state
may be in the following form, although the use of other,
substantially similar forms is not precluded:
State of California )
ss.
County of __________ )
On ____ (date), before me, the undersigned, a notary public for
the state, personally appeared ____ (subscribing witness's name),
personally known to me (or proved to me on the oath of ____ credible
witness's name], who is personally known to me) to be the person
whose name is subscribed to the within instrument, as a witness
thereto, who, being by me duly sworn, deposed and said that he/she
was present and saw ____ (names] of principals]), the same person(s)
described in and whose name(s) is/are subscribed to the within and
annexed instrument in his/her/their authorized capacity(ies) as (a)
party(ies) thereto, execute the same, and that said affiant
subscribed his/her name to the within instrument as a witness at the
request of ____ (names] of principals]).
WITNESS my hand and official seal.
Signature_____________________________ (Seal)
SEC. 35. Section 3344.1 of the Civil Code is amended to read:
3344.1. (a) (1) Any person who uses a deceased personality's
name, voice, signature, photograph, or likeness, in any manner, on or
in products, merchandise, or goods, or for purposes of advertising
or selling, or soliciting purchases of, products, merchandise, goods,
or services, without prior consent from the person or persons
specified in subdivision (c), shall be liable for any damages
sustained by the person or persons injured as a result thereof. In
addition, in any action brought under this section, the person who
violated the section shall be liable to the injured party or parties
in an amount equal to the greater of seven hundred fifty dollars
($750) or the actual damages suffered by the injured party or
parties, as a result of the unauthorized use, and any profits from
the unauthorized use that are attributable to the use and are not
taken into account in computing the actual damages. In establishing
these profits, the injured party or parties shall be required to
present proof only of the gross revenue attributable to the use, and
the person who violated the section is required to prove his or her
deductible expenses. Punitive damages may also be awarded to the
injured party or parties. The prevailing party or parties in any
action under this section shall also be entitled to attorney's fees
and costs.
(2) For purposes of this subdivision, a play, book, magazine,
newspaper, musical composition, audiovisual work, radio or television
program, single and original work of art, work of political or
newsworthy value, or an advertisement or commercial announcement for
any of these works, shall not be considered a product, article of
merchandise, good, or service if it is fictional or nonfictional
entertainment, or a dramatic, literary, or musical work.
(3) If a work that is protected under paragraph (2) includes
within it a use in connection with a product, article of merchandise,
good, or service, this use shall not be exempt under this
subdivision, notwithstanding the unprotected use's inclusion in a
work otherwise exempt under this subdivision, if the claimant proves
that this use is so directly connected with a product, article of
merchandise, good, or service as to constitute an act of advertising,
selling, or soliciting purchases of that product, article of
merchandise, good, or service by the deceased personality without
prior consent from the person or persons specified in subdivision
(c).
(b) The rights recognized under this section are property rights,
freely transferable or descendible, in whole or in part, by contract
or by means of any trust or any other testamentary instrument,
executed before or after January 1, 1985. The rights recognized under
this section shall be deemed to have existed at the time of death of
any deceased personality who died prior to January 1, 1985, and,
except as provided in subdivision (o), shall vest in the persons
entitled to these property rights under the testamentary instrument
of the deceased personality effective as of the date of his or her
death. In the absence of an express transfer in a testamentary
instrument of the deceased personality's rights in his or her name,
voice, signature, photograph, or likeness, a provision in the
testamentary instrument that provides for the disposition of the
residue of the deceased personality's assets shall be effective to
transfer the rights recognized under this section in accordance with
the terms of that provision. The rights established by this section
shall also be freely transferable or descendible by contract, trust,
or any other testamentary instrument by any subsequent owner of the
deceased personality's rights as recognized by this section. Nothing
in this section shall be construed to render invalid or unenforceable
any contract entered into by a deceased personality during his or
her lifetime by which the deceased personality assigned the rights,
in whole or in part, to use his or her name, voice, signature,
photograph, or likeness, regardless of whether the contract was
entered into before or after January 1, 1985.
(c) The consent required by this section shall be exercisable by
the person or persons to whom the right of consent, or portion
thereof, has been transferred in accordance with subdivision (b), or
if no transfer has occurred, then by the person or persons to whom
the right of consent, or portion thereof, has passed in accordance
with subdivision (d).
(d) Subject to subdivisions (b) and (c), after the death of any
person, the rights under this section shall belong to the following
person or persons and may be exercised, on behalf of and for the
benefit of all of those persons, by those persons who, in the
aggregate, are entitled to more than a one-half interest in the
rights:
(1) The entire interest in those rights belongs to the surviving
spouse of the deceased personality unless there are any surviving
children or grandchildren of the deceased personality, in which case
one-half of the entire interest in those rights belongs to the
surviving spouse.
(2) The entire interest in those rights belongs to the surviving
children of the deceased personality and to the surviving children of
any dead child of the deceased personality unless the deceased
personality has a surviving spouse, in which case the ownership of a
one-half interest in rights is divided among the surviving children
and grandchildren.
(3) If there is no surviving spouse, and no surviving children or
grandchildren, then the entire interest in those rights belongs to
the surviving parent or parents of the deceased personality.
(4) The rights of the deceased personality's children and
grandchildren are in all cases divided among them and exercisable in
the manner provided in Section 240 of the Probate Code according to
the number of the deceased personality's children represented. The
share of the children of a dead child of a deceased personality can
be exercised only by the action of a majority of them.
(e) If any deceased personality does not transfer his or her
rights under this section by contract, or by means of a trust or
testamentary instrument, and there are no surviving persons as
described in subdivision (d), then the rights set forth in
subdivision (a) shall terminate.
(f) (1) A successor in interest to the rights of a deceased
personality under this section or a licensee thereof shall not
recover damages for a use prohibited by this section that occurs
before the successor in interest or licensee registers a claim of the
rights under paragraph (2).
(2) Any person claiming to be a successor in interest to the
rights of a deceased personality under this section or a licensee
thereof may register that claim with the Secretary of State on a form
prescribed by the Secretary of State and upon payment of a fee as
set forth in subdivision (d) of Section 12195 of the Government Code.
The form shall be verified and shall include the name and date of
death of the deceased personality, the name and address of the
claimant, the basis of the claim, and the rights claimed.
(3) Upon receipt and after filing of any document under this
section, the Secretary of State shall post the document along with
the entire registry of persons claiming to be a successor in interest
to the rights of a deceased personality or a registered licensee
under this section upon the Secretary of State's Internet Web site.
The Secretary of State may microfilm or reproduce by other techniques
any of the filings or documents and destroy the original filing or
document. The microfilm or other reproduction of any document under
this section shall be admissible in any court of law. The microfilm
or other reproduction of any document may be destroyed by the
Secretary of State 70 years after the death of the personality named
therein.
(4) Claims registered under this subdivision shall be public
records.
(g) An action shall not be brought under this section by reason of
any use of a deceased personality's name, voice, signature,
photograph, or likeness occurring after the expiration of 70 years
after the death of the deceased personality.
(h) As used in this section, "deceased personality" means any
natural person whose name, voice, signature, photograph, or likeness
has commercial value at the time of his or her death, or because of
his or her death, whether or not during the lifetime of that natural
person the person used his or her name, voice, signature, photograph,
or likeness on or in products, merchandise, or goods, or for
purposes of advertising or selling, or solicitation of purchase of,
products, merchandise, goods, or services. A "deceased personality"
shall include, without limitation, any such natural person who has
died within 70 years prior to January 1, 1985.
(i) As used in this section, "photograph" means any photograph or
photographic reproduction, still or moving, or any videotape or live
television transmission, of any person, such that the deceased
personality is readily identifiable. A deceased personality shall be
deemed to be readily identifiable from a photograph if one who views
the photograph with the naked eye can reasonably determine who the
person depicted in the photograph is.
(j) For purposes of this section, the use of a name, voice,
signature, photograph, or likeness in connection with any news,
public affairs, or sports broadcast or account, or any political
campaign, shall not constitute a use for which consent is required
under subdivision (a).
(k) The use of a name, voice, signature, photograph, or likeness
in a commercial medium shall not constitute a use for which consent
is required under subdivision (a) solely because the material
containing the use is commercially sponsored or contains paid
advertising. Rather, it shall be a question of fact whether or not
the use of the deceased personality's name, voice, signature,
photograph, or likeness was so directly connected with the commercial
sponsorship or with the paid advertising as to constitute a use for
which consent is required under subdivision (a).
(l) Nothing in this section shall apply to the owners or employees
of any medium used for advertising, including, but not limited to,
newspapers, magazines, radio and television networks and stations,
cable television systems, billboards, and transit advertisements, by
whom any advertisement or solicitation in violation of this section
is published or disseminated, unless it is established that the
owners or employees had knowledge of the unauthorized use of the
deceased personality's name, voice, signature, photograph, or
likeness as prohibited by this section.
(m) The remedies provided for in this section are cumulative and
shall be in addition to any others provided for by law.
(n) This section shall apply to the adjudication of liability and
the imposition of any damages or other remedies in cases in which the
liability, damages, and other remedies arise from acts occurring
directly in this state. For purposes of this section, acts giving
rise to liability shall be limited to the use, on or in products,
merchandise, goods, or services, or the advertising or selling, or
soliciting purchases of, products, merchandise, goods, or services
prohibited by this section.
(o) Notwithstanding any provision of this section to the contrary,
if an action was taken prior to May 1, 2007, to exercise rights
recognized under this section relating to a deceased personality who
died prior to January 1, 1985, by a person described in subdivision
(d), other than a person who was disinherited by the deceased
personality in a testamentary instrument, and the exercise of those
rights was not challenged successfully in a court action by a person
described in subdivision (b), that exercise shall not be affected by
subdivision (b). In that case, the rights that would otherwise vest
in one or more persons described in subdivision (b) shall vest solely
in the person or persons described in subdivision (d), other than a
person disinherited by the deceased personality in a testamentary
instrument, for all future purposes.
(p) The rights recognized by this section are expressly made
retroactive, including to those deceased personalities who died
before January 1, 1985.
SEC. 36. Section 170.9 of the Code of Civil Procedure is amended
to read:
170.9. (a) A judge shall not accept gifts from a single source in
a calendar year with a total value of more than two hundred fifty
dollars ($250). This section shall not be construed to authorize the
receipt of gifts that would otherwise be prohibited by the Code of
Judicial Ethics adopted by the California Supreme Court or any other
law.
(b) This section shall not prohibit or limit the following:
(1) Payments, advances, or reimbursements for travel and related
lodging and subsistence permitted by subdivision (e).
(2) Wedding gifts and gifts exchanged between individuals on
birthdays, holidays, and other similar occasions, if the gifts
exchanged are not substantially disproportionate in value.
(3) A gift, bequest, favor, or loan from a person whose
preexisting relationship with a judge would prevent the judge from
hearing a case involving that person, under the Code of Judicial
Ethics adopted by the California Supreme Court.
(c) For purposes of this section, "judge" includes all of the
following:
(1) Judges of the superior courts.
(2) Justices of the courts of appeal and the Supreme Court.
(3) Subordinate judicial officers, as defined in Section 71601 of
the Government Code.
(d) The gift limitation amounts in this section shall be adjusted
biennially by the Commission on Judicial Performance to reflect
changes in the Consumer Price Index, rounded to the nearest ten
dollars ($10).
(e) Payments, advances, or reimbursements for travel, including
actual transportation and related lodging and subsistence that is
reasonably related to a judicial or governmental purpose, or to an
issue of state, national, or international public policy, are not
prohibited or limited by this section if any of the following apply:
(1) The travel is in connection with a speech, practice
demonstration, or group or panel discussion given or participated in
by the judge, the lodging and subsistence expenses are limited to the
day immediately preceding, the day of, and the day immediately
following the speech, demonstration, or discussion, and the travel is
within the United States.
(2) The travel is provided by a government, a governmental agency
or authority, a foreign government, a foreign bar association, an
international service organization, a bona fide public or private
educational institution, as defined in Section 203 of the Revenue and
Taxation Code, or a nonprofit charitable or religious organization
that is exempt from taxation under Section 501(c)(3) of the Internal
Revenue Code, or by a person domiciled outside the United States who
substantially satisfies the requirements for tax-exempt status under
Section 501(c)(3) of the Internal Revenue Code.
For purposes of this section, "foreign bar association" means an
association of attorneys located outside the United States (A) that
performs functions substantially equivalent to those performed by
state or local bar associations in this state and (B) that permits
membership by attorneys in that country representing various legal
specialties and does not limit membership to attorneys generally
representing one side or another in litigation. "International
service organization" means a bona fide international service
organization of which the judge is a member. A judge who accepts
travel payments from an international service organization pursuant
to this subdivision shall not preside over or participate in
decisions affecting that organization, its state or local chapters,
or its local members.
(3) The travel is provided by a state or local bar association or
judges professional association in connection with testimony before a
governmental body or attendance at any professional function hosted
by the bar association or judges professional association, the
lodging and subsistence expenses are limited to the day immediately
preceding, the day of, and the day immediately following the
professional function.
(f) Payments, advances, and reimbursements for travel not
described in subdivision (e) are subject to the limit in subdivision
(a).
(g) No judge shall accept any honorarium.
(h) "Honorarium" means a payment made in consideration for any
speech given, article published, or attendance at a public or private
conference, convention, meeting, social event, meal, or like
gathering.
(i) "Honorarium" does not include earned income for personal
services that are customarily provided in connection with the
practice of a bona fide business, trade, or profession, such as
teaching or writing for a publisher, and does not include fees or
other things of value received pursuant to Section 94.5 of the Penal
Code for performance of a marriage.
For purposes of this section, "teaching" shall include
presentations to impart educational information to lawyers in events
qualifying for credit under mandatory continuing legal education, to
students in bona fide educational institutions, and to associations
or groups of judges.
(j) Subdivisions (a) and (e) shall apply to all payments,
advances, and reimbursements for travel and related lodging and
subsistence.
(k) This section does not apply to any honorarium that is not used
and, within 30 days after receipt, is either returned to the donor
or delivered to the Controller for deposit in the General Fund
without being claimed as a deduction from income for tax purposes.
( l ) "Gift" means a payment to the extent that
consideration of equal or greater value is not received and includes
a rebate or discount in the price of anything of value unless the
rebate or discount is made in the regular course of business to
members of the public without regard to official status. A person,
other than a defendant in a criminal action, who claims that a
payment is not a gift by reason of receipt of consideration has the
burden of proving that the consideration received is of equal or
greater value. However, the term "gift" does not include any of the
following:
(1) Informational material such as books, reports, pamphlets,
calendars, periodicals, cassettes and discs, or free or reduced-price
admission, tuition, or registration, for informational conferences
or seminars. No payment for travel or reimbursement for any expenses
shall be deemed "informational material."
(2) Gifts that are not used and, within 30 days after receipt, are
returned to the donor or delivered to a charitable organization
without being claimed as a charitable contribution for tax purposes.
(3) Gifts from a judge's spouse, child, parent, grandparent,
grandchild, brother, sister, parent-in-law, brother-in-law,
sister-in-law, nephew, niece, aunt, uncle, or first cousin or the
spouse of any such person. However, a gift from any of those persons
shall be considered a gift if the donor is acting as an agent or
intermediary for a person not covered by this paragraph.
(4) Campaign contributions required to be reported under Chapter 4
(commencing with Section 84100) of Title 9 of the Government Code.
(5) Any devise or inheritance.
(6) Personalized plaques and trophies with an individual value of
less than two hundred fifty dollars ($250).
(7) Admission to events hosted by state or local bar associations
or judges professional associations, and provision of related food
and beverages at those events, when attendance does not require
"travel," as described in paragraph (3) of subdivision (e).
(m) The Commission on Judicial Performance shall enforce the
prohibitions of this section with regard to judges of the superior
courts and justices of the courts of appeal and the Supreme Court.
With regard to subordinate judicial officers, consistent with Section
18.1 of Article VI of the California Constitution, the court
employing the subordinate judicial officer shall exercise initial
jurisdiction to enforce the prohibitions of this section, and the
Commission on Judicial Performance shall exercise discretionary
jurisdiction with respect to the enforcement of the prohibitions of
this section.
SEC. 36.5. Section 425.17 of the Code of Civil Procedure is
amended to read:
425.17. (a) The Legislature finds and declares that there has
been a disturbing abuse of Section 425.16, the California Anti-SLAPP
Law, which has undermined the exercise of the constitutional rights
of freedom of speech and petition for the redress of grievances,
contrary to the purpose and intent of Section 425.16. The Legislature
finds and declares that it is in the public interest to encourage
continued participation in matters of public significance, and that
this participation should not be chilled through abuse of the
judicial process or Section 425.16.
(b) Section 425.16 does not apply to any action brought solely in
the public interest or on behalf of the general public if all of the
following conditions exist:
(1) The plaintiff does not seek any relief greater than or
different from the relief sought for the general public or a class of
which the plaintiff is a member. A claim for attorney's fees, costs,
or penalties does not constitute greater or different relief for
purposes of this subdivision.
(2) The action, if successful, would enforce an important right
affecting the public interest, and would confer a significant
benefit, whether pecuniary or nonpecuniary, on the general public or
a large class of persons.
(3) Private enforcement is necessary and places a disproportionate
financial burden on the plaintiff in relation to the plaintiff's
stake in the matter.
(c) Section 425.16 does not apply to any cause of action brought
against a person primarily engaged in the business of selling or
leasing goods or services, including, but not limited to, insurance,
securities, or financial instruments, arising from any statement or
conduct by that person if both of the following conditions exist:
(1) The statement or conduct consists of representations of fact
about that person's or a business competitor's business operations,
goods, or services, that is made for the purpose of obtaining
approval for, promoting, or securing sales or leases of, or
commercial transactions in, the person's goods or services, or the
statement or conduct was made in the course of delivering the person'
s goods or services.
(2) The intended audience is an actual or potential buyer or
customer, or a person likely to repeat the statement to, or otherwise
influence, an actual or potential buyer or customer, or the
statement or conduct arose out of or within the context of a
regulatory approval process, proceeding, or investigation, except
where the statement or conduct was made by a telephone corporation in
the course of a proceeding before the California Public Utilities
Commission and is the subject of a lawsuit brought by a competitor,
notwithstanding that the conduct or statement concerns an important
public issue.
(d) Subdivisions (b) and (c) do not apply to any of the following:
(1) Any person enumerated in subdivision (b) of Section 2 of
Article I of the California Constitution or Section 1070 of the
Evidence Code, or any person engaged in the dissemination of ideas or
expression in any book or academic journal, while engaged in the
gathering, receiving, or processing of information for communication
to the public.
(2) Any action against any person or entity based upon the
creation, dissemination, exhibition, advertisement, or other similar
promotion of any dramatic, literary, musical, political, or artistic
work, including, but not limited to, a motion picture or television
program, or an article published in a newspaper or magazine of
general circulation.
(3) Any nonprofit organization that receives more than 50 percent
of its annual revenues from federal, state, or local government
grants, awards, programs, or reimbursements for services rendered.
(e) If any trial court denies a special motion to strike on the
grounds that the action or cause of action is exempt pursuant to this
section, the appeal provisions in subdivision (i) of Section 425.16
and paragraph (13) of subdivision (a) of Section 904.1 do not apply
to that action or cause of action.
SEC. 37. Section 630.01 of the Code of Civil Procedure is amended
to read:
630.01. For purposes of this chapter:
(a) "Expedited jury trial" means a consensual, binding jury trial
before a reduced jury panel and a judicial officer.
(b) "High/low agreement" means a written agreement entered into by
the parties that specifies a minimum amount of damages that a
plaintiff is guaranteed to receive from the defendant, and a maximum
amount of damages that the defendant will be liable for, regardless
of the ultimate verdict returned by the jury. Neither the existence
of, nor the amounts contained in, any high/low agreements may be
disclosed to the jury.
(c) "Post-trial motions" does not include motions relating to
costs and attorney's fees, motions to correct a judgment for a
clerical error, and motions to enforce a judgment.
SEC. 38. Section 630.08 of the Code of Civil Procedure is amended
to read:
630.08. (a) By agreeing to participate in the expedited jury
trial process, the parties agree to waive any motions for directed
verdict, motions to set aside the verdict or any judgment rendered by
the jury, or motions for a new trial on the basis of inadequate or
excessive damages.
(b) The court shall not set aside any verdict or any judgment,
shall not direct that judgment be entered in favor of a party
entitled to judgment as a matter of law, and shall not order a new
trial, except on the
grounds stated in Section 630.09.
SEC. 39. Section 877 of the Code of Civil Procedure is amended to
read:
877. Where a release, dismissal with or without prejudice, or a
covenant not to sue or not to enforce judgment is given in good faith
before verdict or judgment to one or more of a number of tortfeasors
claimed to be liable for the same tort, or to one or more other
co-obligors mutually subject to contribution rights, it shall have
the following effect:
(a) It shall not discharge any other such party from liability
unless its terms so provide, but it shall reduce the claims against
the others in the amount stipulated by the release, the dismissal or
the covenant, or in the amount of the consideration paid for it,
whichever is the greater.
(b) It shall discharge the party to whom it is given from all
liability for any contribution to any other parties.
(c) This section shall not apply to co-obligors who have expressly
agreed in writing to an apportionment of liability for losses or
claims among themselves.
(d) This section shall not apply to a release, dismissal with or
without prejudice, or a covenant not to sue or not to enforce
judgment given to a co-obligor on an alleged contract debt where the
contract was made prior to January 1, 1988.
SEC. 40. Section 1010.6 of the Code of Civil Procedure is amended
to read:
1010.6. (a) A document may be served electronically in an action
filed with the court as provided in this section, in accordance with
rules adopted pursuant to subdivision (d).
(1) For purposes of this section:
(A) "Electronic service" means service of a document, on a party
or other person, by either electronic transmission or electronic
notification. Electronic service may be performed directly by a
party, by an agent of a party, including the party's attorney, or
through an electronic filing service provider.
(B) "Electronic transmission" means the transmission of a document
by electronic means to the electronic service address at or through
which a party or other person has authorized electronic service.
(C) "Electronic notification" means the notification of the party
or other person that a document is served by sending an electronic
message to the electronic address at or through which the party or
other person has authorized electronic service, specifying the exact
name of the document served, and providing a hyperlink at which the
served document may be viewed and downloaded.
(2) If a document may be served by mail, express mail, overnight
delivery, or facsimile transmission, electronic service of the
document is authorized when a party has agreed to accept service
electronically in that action.
(3) In any action in which a party has agreed to accept electronic
service under paragraph (2), or in which the court has ordered
electronic service under subdivision (c), the court may
electronically serve any document issued by the court that is not
required to be personally served in the same manner that parties
electronically serve documents. The electronic service of documents
by the court shall have the same legal effect as service by mail,
except as provided in paragraph (4).
(4) Electronic service of a document is complete at the time of
the electronic transmission of the document or at the time that the
electronic notification of service of the document is sent. However,
any period of notice, or any right or duty to do any act or make any
response within any period or on a date certain after the service of
the document, which time period or date is prescribed by statute or
rule of court, shall be extended after service by electronic means by
two court days, but the extension shall not apply to extend the time
for filing any of the following:
(A) A notice of intention to move for new trial.
(B) A notice of intention to move to vacate judgment under Section
663a.
(C) A notice of appeal.
This extension applies in the absence of a specific exception
provided by any other statute or rule of court.
(b) A trial court may adopt local rules permitting electronic
filing of documents, subject to rules adopted pursuant to subdivision
(d) and the following conditions:
(1) A document that is filed electronically shall have the same
legal effect as an original paper document.
(2) (A) When a document to be filed requires the signature, not
under penalty of perjury, of an attorney or a self-represented party,
the document shall be deemed to have been signed by that attorney or
self-represented party if filed electronically.
(B) When a document to be filed requires the signature, under
penalty of perjury, of any person, the document shall be deemed to
have been signed by that person if filed electronically and if a
printed form of the document has been signed by that person prior to,
or on the same day as, the date of filing. The attorney or person
filing the document represents, by the act of filing, that the
declarant has complied with this section. The attorney or person
filing the document shall maintain the printed form of the document
bearing the original signature and make it available for review and
copying upon the request of the court or any party to the action or
proceeding in which it is filed.
(3) Any document that is electronically filed with the court after
the close of business on any day shall be deemed to have been filed
on the next court day. "Close of business," as used in this
paragraph, shall mean 5 p.m. or the time at which the court would not
accept filing at the court's filing counter, whichever is earlier.
(4) The court receiving a document filed electronically shall
issue a confirmation that the document has been received and filed.
The confirmation shall serve as proof that the document has been
filed.
(5) Upon electronic filing of a complaint, petition, or other
document that must be served with a summons, a trial court, upon
request of the party filing the action, shall issue a summons with
the court seal and the case number. The court shall keep the summons
in its records and may electronically transmit a copy of the summons
to the requesting party. Personal service of a printed form of the
electronic summons shall have the same legal effect as personal
service of an original summons. If a trial court plans to
electronically transmit a summons to the party filing a complaint,
the court shall immediately upon receipt of the complaint notify the
attorney or party that a summons will be electronically transmitted
to the electronic address given by the person filing the complaint.
(6) The court shall permit a party or attorney to file an
application for waiver of court fees and costs, in lieu of requiring
the payment of the filing fee, as part of the process involving the
electronic filing of a document. The court shall consider and
determine the application in accordance with Sections 68630 to 68641,
inclusive, of the Government Code and shall not require the party or
attorney to submit any documentation other than that set forth in
Sections 68630 to 68641, inclusive, of the Government Code. Nothing
in this section shall require the court to waive a filing fee that is
not otherwise waivable.
(c) If a trial court adopts rules conforming to subdivision (b),
it may provide by order that all parties to an action file and serve
documents electronically in a class action, a consolidated action, or
a group of actions, a coordinated action, or an action that is
deemed complex under Judicial Council rules, provided that the trial
court's order does not cause undue hardship or significant prejudice
to any party in the action.
(d) The Judicial Council shall adopt uniform rules for the
electronic filing and service of documents in the trial courts of the
state, which shall include statewide policies on vendor contracts,
privacy, and access to public records, and rules relating to the
integrity of electronic service. These rules shall conform to the
conditions set forth in this section, as amended from time to time.
SEC. 41. Section 1094.5 of the Code of Civil Procedure is amended
to read:
1094.5. (a) Where the writ is issued for the purpose of inquiring
into the validity of any final administrative order or decision made
as the result of a proceeding in which by law a hearing is required
to be given, evidence is required to be taken, and discretion in the
determination of facts is vested in the inferior tribunal,
corporation, board, or officer, the case shall be heard by the court
sitting without a jury. All or part of the record of the proceedings
before the inferior tribunal, corporation, board, or officer may be
filed with the petition, may be filed with respondent's points and
authorities, or may be ordered to be filed by the court. Except when
otherwise prescribed by statute, the cost of preparing the record
shall be borne by the petitioner. Where the petitioner has proceeded
pursuant to Article 6 (commencing with Section 68630) of Chapter 2 of
Title 8 of the Government Code and the Rules of Court implementing
that section and where the transcript is necessary to a proper review
of the administrative proceedings, the cost of preparing the
transcript shall be borne by the respondent. Where the party seeking
the writ has proceeded pursuant to Section 1088.5, the administrative
record shall be filed as expeditiously as possible, and may be filed
with the petition, or by the respondent after payment of the costs
by the petitioner, where required, or as otherwise directed by the
court. If the expense of preparing all or any part of the record has
been borne by the prevailing party, the expense shall be taxable as
costs.
(b) The inquiry in such a case shall extend to the questions
whether the respondent has proceeded without, or in excess of,
jurisdiction; whether there was a fair trial; and whether there was
any prejudicial abuse of discretion. Abuse of discretion is
established if the respondent has not proceeded in the manner
required by law, the order or decision is not supported by the
findings, or the findings are not supported by the evidence.
(c) Where it is claimed that the findings are not supported by the
evidence, in cases in which the court is authorized by law to
exercise its independent judgment on the evidence, abuse of
discretion is established if the court determines that the findings
are not supported by the weight of the evidence. In all other cases,
abuse of discretion is established if the court determines that the
findings are not supported by substantial evidence in the light of
the whole record.
(d) Notwithstanding subdivision (c), in cases arising from private
hospital boards or boards of directors of districts organized
pursuant to the Local Health Care District Law (Chapter 1 (commencing
with Section 32000) of Division 23 of the Health and Safety Code) or
governing bodies of municipal hospitals formed pursuant to Article 7
(commencing with Section 37600) or Article 8 (commencing with
Section 37650) of Chapter 5 of Part 2 of Division 3 of Title 4 of the
Government Code, abuse of discretion is established if the court
determines that the findings are not supported by substantial
evidence in the light of the whole record. However, in all cases in
which the petition alleges discriminatory actions prohibited by
Section 1316 of the Health and Safety Code, and the plaintiff makes a
preliminary showing of substantial evidence in support of that
allegation, the court shall exercise its independent judgment on the
evidence and abuse of discretion shall be established if the court
determines that the findings are not supported by the weight of the
evidence.
(e) Where the court finds that there is relevant evidence that, in
the exercise of reasonable diligence, could not have been produced
or that was improperly excluded at the hearing before respondent, it
may enter judgment as provided in subdivision (f) remanding the case
to be reconsidered in the light of that evidence; or, in cases in
which the court is authorized by law to exercise its independent
judgment on the evidence, the court may admit the evidence at the
hearing on the writ without remanding the case.
(f) The court shall enter judgment either commanding respondent to
set aside the order or decision, or denying the writ. Where the
judgment commands that the order or decision be set aside, it may
order the reconsideration of the case in light of the court's opinion
and judgment and may order respondent to take such further action as
is specially enjoined upon it by law, but the judgment shall not
limit or control in any way the discretion legally vested in the
respondent.
(g) Except as provided in subdivision (h), the court in which
proceedings under this section are instituted may stay the operation
of the administrative order or decision pending the judgment of the
court, or until the filing of a notice of appeal from the judgment or
until the expiration of the time for filing the notice, whichever
occurs first. However, no such stay shall be imposed or continued if
the court is satisfied that it is against the public interest. The
application for the stay shall be accompanied by proof of service of
a copy of the application on the respondent. Service shall be made in
the manner provided by Title 4.5 (commencing with Section 405) of
Part 2 or Chapter 5 (commencing with Section 1010) of Title 14 of
Part 2. If an appeal is taken from a denial of the writ, the order or
decision of the agency shall not be stayed except upon the order of
the court to which the appeal is taken. However, in cases where a
stay is in effect at the time of filing the notice of appeal, the
stay shall be continued by operation of law for a period of 20 days
from the filing of the notice. If an appeal is taken from the
granting of the writ, the order or decision of the agency is stayed
pending the determination of the appeal unless the court to which the
appeal is taken shall otherwise order. Where any final
administrative order or decision is the subject of proceedings under
this section, if the petition shall have been filed while the penalty
imposed is in full force and effect, the determination shall not be
considered to have become moot in cases where the penalty imposed by
the administrative agency has been completed or complied with during
the pendency of the proceedings.
(h) (1) The court in which proceedings under this section are
instituted may stay the operation of the administrative order or
decision of any licensed hospital or any state agency made after a
hearing required by statute to be conducted under the Administrative
Procedure Act, as set forth in Chapter 5 (commencing with Section
11500) of Part 1 of Division 3 of Title 2 of the Government Code,
conducted by the agency itself or an administrative law judge on the
staff of the Office of Administrative Hearings pending the judgment
of the court, or until the filing of a notice of appeal from the
judgment or until the expiration of the time for filing the notice,
whichever occurs first. However, the stay shall not be imposed or
continued unless the court is satisfied that the public interest will
not suffer and that the licensed hospital or agency is unlikely to
prevail ultimately on the merits. The application for the stay shall
be accompanied by proof of service of a copy of the application on
the respondent. Service shall be made in the manner provided by Title
4.5 (commencing with Section 405) of Part 2 or Chapter 5 (commencing
with Section 1010) of Title 14 of Part 2.
(2) The standard set forth in this subdivision for obtaining a
stay shall apply to any administrative order or decision of an agency
that issues licenses pursuant to Division 2 (commencing with Section
500) of the Business and Professions Code or pursuant to the
Osteopathic Initiative Act or the Chiropractic Initiative Act. With
respect to orders or decisions of other state agencies, the standard
in this subdivision shall apply only when the agency has adopted the
proposed decision of the administrative law judge in its entirety or
has adopted the proposed decision but reduced the proposed penalty
pursuant to subdivision (c) of Section 11517 of the Government Code;
otherwise the standard in subdivision (g) shall apply.
(3) If an appeal is taken from a denial of the writ, the order or
decision of the hospital or agency shall not be stayed except upon
the order of the court to which the appeal is taken. However, in
cases where a stay is in effect at the time of filing the notice of
appeal, the stay shall be continued by operation of law for a period
of 20 days from the filing of the notice. If an appeal is taken from
the granting of the writ, the order or decision of the hospital or
agency is stayed pending the determination of the appeal unless the
court to which the appeal is taken shall otherwise order. Where any
final administrative order or decision is the subject of proceedings
under this section, if the petition shall have been filed while the
penalty imposed is in full force and effect, the determination shall
not be considered to have become moot in cases where the penalty
imposed by the administrative agency has been completed or complied
with during the pendency of the proceedings.
(i) Any administrative record received for filing by the clerk of
the court may be disposed of as provided in Sections 1952, 1952.2,
and 1952.3.
(j) Effective January 1, 1996, this subdivision shall apply to
state employees in State Bargaining Unit 5. For purposes of this
section, the court is not authorized to review any disciplinary
decisions reached pursuant to Section 19576.1 of the Government Code.
SEC. 42. The heading of Part 9 (commencing with Section 10400) of
Division 2 of Title 1 of the Corporations Code is amended to read:
PART 9. SOCIETIES FOR PREVENTION OF CRUELTY TO ANIMALS
SEC. 43. Section 10400 of the Corporations Code is amended to
read:
10400. Corporations for the prevention of cruelty to animals may
be formed under the Nonprofit Public Benefit Corporation Law (Part 2
(commencing with Section 5110)) by 20 or more persons, who shall be
citizens and residents of this state. If the corporation is formed on
or after January 1, 2011, its articles of incorporation shall
specifically state that the corporation is being formed pursuant to
this section.
SEC. 44. Section 10404 of the Corporations Code is amended to
read:
10404. Any such corporation, or humane officer thereof, may
proffer a complaint against any person, before any court or
magistrate having jurisdiction, for the violation of any law relating
to or affecting animals and may aid in the prosecution of the
offender before the court or magistrate.
SEC. 45. Section 14501 of the Corporations Code is amended to
read:
14501. Every society incorporated and organized for the
prevention of cruelty to animals may enter into a contract with any
city, city and county, or county, where the society is located, to
enforce the provisions of laws of this state for the prevention of
cruelty to animals, or arresting or prosecuting offenders thereunder,
or preventing cruelty to animals. A humane society may perform those
actions in the absence of a contract with a city, city and county,
or county.
SEC. 46. Section 14502 of the Corporations Code is amended to
read:
14502. (a) (1) (A) (i) On and after July 1, 1996, no entity,
other than a humane society or society for the prevention of cruelty
to animals, shall be eligible to petition for confirmation of an
appointment of any individual as a humane officer, the duty of which
shall be the enforcement of the laws for the prevention of cruelty to
animals.
(ii) On and after July 1, 1996, only a person who meets the
requirements of this section may be appointed as, or perform the
duties of, a humane officer.
(iii) Any person appointed as a humane officer prior to July 1,
1996, may continue to serve as a humane officer until the expiration
of the term of appointment only if the appointing society maintains
records pursuant to subparagraph (B) documenting that both the
appointing society and the humane officer meet the requirements of
this section.
(B) Each humane society or society for the prevention of cruelty
to animals for which an individual is acting as a humane officer
shall maintain complete and accurate records documenting that the
individual has successfully completed all requirements established in
this section and shall make those records available, upon request,
to the superior court, the Attorney General, or any entity duly
authorized to review that information, including the State Humane
Association of California. The records shall include the full name
and address of each humane officer.
(2) The humane society or society for the prevention of cruelty to
animals shall possess insurance of at least one million dollars
($1,000,000) for liability for bodily injury or property damage.
(3) Each appointment of a humane officer shall be by separate
resolution by the board of directors or trustees of the humane
society or society for the prevention of cruelty to animals duly
entered in its minutes. The resolution shall state the full name and
address of the principal office of the appointing society, the full
name of the person so appointed, the fact that he or she is a citizen
of the State of California, that he or she has met the training
requirements set forth in subdivision (h), and whether he or she is
authorized to carry a weapon pursuant to this section. The resolution
shall also designate the number of the badge to be allotted to the
officer, and the date on which the term of office shall expire.
(b) A humane society or a society for the prevention of cruelty to
animals seeking confirmation of a humane officer's appointment shall
comply with each of the following provisions:
(1) Prior to filing a Petition for Order Confirming Appointment of
a Humane Officer under paragraph (3), the humane society or society
for the prevention of cruelty to animals shall submit to the
Department of Justice fingerprint images and related information of
all humane officer applicants for the purposes of obtaining
information as to the existence and content of a record of state
convictions and state arrests and also information as to the
existence and content of a record of state arrests for which the
Department of Justice establishes that the person is free on bail or
on his or her own recognizance pending trial or appeal.
(A) The Department of Justice shall provide a state response to
the humane society or society for the prevention of cruelty to
animals pursuant to paragraph (1) of subdivision (p) of Section 11105
of the Penal Code.
(B) The humane society or society for the prevention of cruelty to
animals shall request from the Department of Justice subsequent
arrest notification service, as provided pursuant to Section 11105.2
of the Penal Code, for persons whose appointments are confirmed as
described in subdivision (c).
(C) The Department of Justice shall charge a fee sufficient to
cover the cost of processing the request described in this paragraph.
(2) Prior to filing a Petition for Order Confirming Appointment of
a Humane Officer under paragraph (3), the humane society or society
for the prevention of cruelty to animals shall serve a copy of the
petition on each of the following:
(A) The police department having jurisdiction in the city in which
the principal office of the appointing society is located.
(B) The sheriff's department having jurisdiction in the county in
which the principal office of the appointing society is located.
(C) The Department of the California Highway Patrol.
(D) The State Humane Association of California.
(E) The Department of Justice.
(3) The humane society or society for the prevention of cruelty to
animals shall file with the superior court in and for the county or
city and county in which the principal office of the humane society
is located a Petition for Order Confirming Appointment of a Humane
Officer, and shall attach to the petition all of the following:
(A) A copy of the resolution appointing the person, duly certified
to be correct by the president and secretary of the society and
attested by its seal.
(B) A copy of the criminal record offender information, if any,
obtained regarding the person pursuant to paragraph (1).
(C) Proof of the society's proper incorporation in compliance with
Part 9 (commencing with Section 10400) of Division 2, including the
date the articles of incorporation were filed with the Secretary of
State.
(D) A copy of the society's liability insurance policy for bodily
injury or property damage in the amount of at least one million
dollars ($1,000,000).
(E) Documentation establishing that the appointee has
satisfactorily completed the training requirements set forth in this
section.
(F) Documentation establishing that the society has a written
agreement with another entity, such as a public or private animal
shelter or licensed veterinary clinic, that (i) provides for the
humane care and treatment of any animals seized by the society, (ii)
is capable of preserving evidence that may be used to prosecute an
animal cruelty case, and (iii) is compliant with all applicable
federal, state, and local laws, including licensing laws.
Alternatively, the society may provide documentation that it is
operating its own animal shelter that meets the requirements of
clauses (i), (ii), and (iii).
(G) If the society has not previously appointed a humane officer:
(i) An affidavit signed under penalty of perjury from the
president of the society that demonstrates the society's competence
to appoint a humane officer by providing information, including, but
not limited to, the following:
(I) Partnerships or collaborations, if any, with other nonprofit
or community agencies.
(II) Cash reserve on hand, if any, to pay for veterinary expenses,
housing, food, and care of seized animals.
(III) Established donor base, if any.
(IV) Current or prior law enforcement, legal, or other relevant
experience, if any, of persons who will supervise the appointee.
(V) Current or prior experience of managers, if any, in operating
a society or other nonprofit organization.
(VI) Statement that each board member is in good standing in the
community and has not been convicted of a misdemeanor or felony
involving animals.
(VII) Ongoing training beyond the minimum required for appointment
of the humane officer, if any.
(VIII) The need for a humane officer in the society's county.
(IX) Any other documentation demonstrating compliance with
applicable federal, state, or local laws.
(ii) Affidavits, if any, from personnel of local animal control
agencies, law enforcement agencies, or other societies pertaining to
the appointee's fitness to act as a humane officer.
(H) As the last page, proof of service of a copy of the petition
upon those parties required to be served.
(4) Any party described in paragraph (2) may file an opposition to
the petition described in paragraph (3). All papers filed in
opposition to the petition and in reply to the opposition shall
conform to law and motion pleading requirements, pursuant to Rule
3.1113(d) of the California Rules of Court. An opposition shall not
exceed 15 pages and a reply shall not exceed 10 pages, excluding
exhibits and declarations. The opposition shall be limited to the
competency of the society to appoint and supervise a humane officer
and the qualifications, background, and fitness of the appointee that
are specific to the work of a humane officer.
(A) Any opposition shall be filed no later than 15 court days
after the petition is filed with the court. Any opposition shall be
served on all parties indicated on the proof of service attached to
the petition.
(B) The petitioner's reply, if any, to the opposition shall be
filed within 10 court days after service of the opposition. The reply
shall be served on all parties listed in the proof of service
attached to the petition and to any other person who has filed an
opposition.
(C) The court shall rule on the petition without a hearing unless
the court notifies the parties of an intention to hold a hearing.
(D) The petitioner shall serve a certified copy of the court's
order ruling on the petition on all parties listed in the proof of
service attached to the petition and to any other person or entity
who has filed an opposition.
(c) (1) Upon receipt of the Petition for Order Confirming
Appointment of a Humane Officer, the court shall first determine the
society's date of incorporation, and the length of time between the
date the society filed its articles of incorporation with the
Secretary of State and the date it filed the petition described in
paragraph (3) of subdivision (b) with the court. If the society was
incorporated on or after January 1, 2011, then the following shall
apply:
(A) For a petition to confirm appointment of a level 1 humane
officer, the court shall issue an order denying confirmation of the
appointment if a minimum of five years has not elapsed from the date
the society filed its articles of incorporation with the Secretary of
State to the date it filed the petition.
(B) For a petition to confirm appointment of a level 2 humane
officer, the court shall issue an order denying confirmation of the
appointment if a minimum of one year has not elapsed from the date
the society filed its articles of incorporation with the Secretary of
State to the date it filed the petition.
(C) For a petition to confirm appointment of either a level 1 or
level 2 humane officer, the court shall issue an order denying
confirmation of the appointment if the society has not established,
through submission of appropriate documentation, that the society is
either operating its own animal shelter or has a written agreement
with another entity, in compliance with subparagraph (F) of paragraph
(3) of subdivision (b).
(2) If the court has not issued an order denying the petition
pursuant to paragraph (1), then the court shall review the matter of
the appointee's qualifications and fitness to act as a humane
officer. The court shall also consider any documentation it has
received in support of, or in opposition to, the confirmation of the
person's appointment. If the court finds that the appointee is
qualified and fit to act as a humane officer, the court shall issue
an order confirming the appointment. The society shall thereupon file
a certified copy of the court order in the office of the county
clerk of the county or city and county in which the court is located.
The appointee shall, at the same time, take and subscribe the oath
of office prescribed for constables or other peace officers. The
society shall also provide a copy of the Order Confirming Appointment
to the State Humane Association of California and the Department of
Justice. The Department of Justice may charge a reasonable fee
sufficient to cover the costs of maintaining records of Orders
Confirming Appointment. If the court does not find the appointee
qualified and fit to act as a humane officer, the court shall issue
an order denying confirmation of the appointment.
(d) If the court grants the petition, the county clerk shall
immediately enter in a book to be kept in his or her office and
designated "Record of Humane Officers" the name of the officer, the
name of the society appointing him or her, the number of his or her
badge, the date of the filing, and the case number of the court order
confirming the appointment. At the time of the filing, the county
clerk shall collect from the society a fee of five dollars ($5),
which shall be full payment for all services to be performed by the
county clerk under this section.
(e) All appointments of humane officers shall automatically expire
if the society disbands or legally dissolves.
(f) (1) The society appointing an officer may revoke an
appointment at any time by filing in the office of the county clerk
in which the appointment of the officer is recorded a copy of the
revocation in writing under the letterhead of the society and duly
certified by its executive officer. Upon the filing, the county clerk
shall enter the fact of the revocation and the date of the filing of
the revocation opposite the name of the officer in the Record of
Humane Officers.
(2) Notwithstanding paragraph (1), any duly authorized sheriff or
local police agency or the State Humane Association of California may
initiate a revocation hearing by filing a petition to Revoke
Appointment of a Humane Officer. The petition shall show cause why an
appointment should be revoked and shall be made to the superior
court in the jurisdiction of the appointment. Filing, service, and
format of the petition and any oppositions and reply papers shall
conform to the law and motion requirements under the Code of Civil
Procedure, California Rules of Court, and this code. A proceeding
pursuant to this paragraph shall be a special proceeding within the
meaning of Section 23 of the Code of Civil Procedure.
(A) Notice of the hearing date and a copy of the petition shall be
served in the same manner as a summons upon the humane officer
subject to the petition, the society that appointed the officer, and
the entities and associations described in paragraph (2) of
subdivision (b); except the party filing the petition shall not be
required to serve copies of those documents upon itself.
(B) Upon a finding of good cause, the court shall issue an order
granting the petition to revoke the appointment. The county clerk
shall immediately enter the revocation and the date of the court
order opposite the name of the officer in the Record of Humane
Officers. The clerk of the superior court shall give notice of the
order to the parties described in subparagraph (A) and to the county
clerk-recorder.
(g) The society appointing the humane officer shall pay the
training expenses of the humane officer attending the training
required pursuant to this section.
(h) (1) (A) A level 1 humane officer is not a peace officer, but
may exercise the powers of a peace officer at all places within the
state in order to prevent the perpetration of any act of cruelty upon
any animal and to that end may summon to his or her aid any
bystander. A level 1 humane officer may use reasonable force
necessary to prevent the perpetration of any act of cruelty upon any
animal.
(B) A level 1 humane officer may make arrests for the violation of
any penal law of this state relating to or affecting animals in the
same manner as any peace officer and may serve search warrants.
(C) A level 1 humane officer is authorized to carry firearms while
exercising the duties of a humane officer, upon satisfactory
completion of the training specified in subparagraph (D), if the
requirements in subparagraph (F) are met.
(D) A level 1 humane officer shall, prior to appointment, provide
evidence satisfactory to the appointing society that he or she has
successfully completed the following requirements:
(i) At least 20 hours of a course of training in animal care
sponsored or provided by an accredited postsecondary institution or
any other provider approved by the California Veterinary Medical
Association, the focus of which shall be the identification of
disease, injury, and neglect in domestic animals and livestock.
(ii) At least 40 hours of a course of training in the state humane
laws relating to the powers and duties of a humane officer,
sponsored or provided by an accredited postsecondary institution, a
law enforcement agency, or the State Humane Association of
California.
(iii) The basic training for a level 1 reserve officer by the
Commission on Peace Officer Standards and Training pursuant to
Section 13510.1 of the Penal Code.
(E) A person shall not be appointed as a level 1 humane officer
until he or she meets the criteria in Sections 1029, 1030, and 1031
of the Government Code. A humane society or society for the
prevention of cruelty to animals shall complete a background
investigation, using standards defined by the Commission on Peace
Officer Standards and Training as guidelines, for all level 1 humane
officer appointments.
(F) (i) Notwithstanding any other provision of this section, a
level 1 humane officer may carry a firearm only if authorized by, and
only under the terms and conditions specified by, his or her
appointing society.
(ii) Notwithstanding any other provision of this section, a level
1 humane officer shall not be authorized to carry a firearm unless
and until his or her appointing society has adopted a policy on the
use of deadly force by its officers and the officer has been
instructed in that policy.
(2) (A) A level 2 humane officer is not a peace officer, but may
exercise the powers of a peace officer at all places within the state
in order to prevent the perpetration of any act of cruelty upon any
animal and to that end may summon to his or her aid any bystander. A
level 2 humane officer may use reasonable force necessary to prevent
the perpetration of any act of cruelty upon any animal.
(B) A level 2 humane officer may make arrests for the violation of
any penal law of this state relating to or affecting animals in the
same manner as any peace officer and may serve search warrants during
the course and within the scope of appointment, upon the successful
completion of a course relating to the exercise of the police powers
specified in Section 832 of the Penal Code, except the power to carry
and use firearms.
(C) A level 2 humane officer is not authorized to carry firearms.
(D) A level 2 humane officer shall, prior to appointment, provide
evidence satisfactory to the appointing society that he or she has
successfully completed courses of training in the following subjects:
(i) At least 20 hours of a course of training in animal care
sponsored or provided by an accredited postsecondary institution or
any other provider approved by the California Veterinary Medical
Association, the focus of which is the identification of disease,
injury, and neglect in domestic animals and livestock.
(ii) At least 40 hours of a course of training in the state humane
laws relating to the powers and duties of a humane officer,
sponsored or provided by an accredited postsecondary institution, law
enforcement agency, or the State Humane Association of California.
(E) A person shall not be appointed as a level 2 humane officer
until he or she has satisfied the requirements in Sections 1029,
1030, and 1031 of the Government Code. A humane society or society
for the prevention of cruelty to animals shall complete a background
investigation, using standards defined by the Commission on Peace
Officer Standards and Training as guidelines, for all level 2 humane
officer appointments.
(3) During each three-year period following the date on which the
certified copy of the court order confirming the appointment of a
humane officer was filed with the county clerk, the humane officer
shall complete 40 hours of continuing education and training relating
to the powers and duties of a humane officer, which education and
training shall be sponsored or provided by an accredited
postsecondary institution, a law enforcement agency, or the State
Humane Association of California. A certificate of compliance shall
be served no later than 21 days after the expiration of each
three-year period on the Department of Justice with copies served on
the superior court and on the entities and associations described in
paragraph (2) of subdivision (b). The Department of Justice may
charge a reasonable fee sufficient to cover the costs of maintaining
records of certificates of compliance. The certificate of compliance
shall also include documentation that the humane society or society
for the prevention of cruelty to animals is in compliance with
subparagraph (F) of paragraph (2) of subdivision (b). Service on the
Department of Justice shall be in compliance with procedures set
forth by the Department of Justice. The Department of Justice shall
post the filing procedures, as they may be updated from time to time,
on its Internet Web site. Failure to file the certificate of
compliance with the Department of Justice no later than 21 days after
the expiration of a six-month period shall result in immediate
revocation of the appointment.
(4) If the humane officer is authorized to carry a firearm, he or
she shall complete ongoing weapons training and range qualifications
at least every six months pursuant to subdivision (t) of Section
830.3 of the Penal Code. A certificate of compliance pursuant to this
section shall be served no later than 21 days after the expiration
of a six-month period on the Department of Justice with copies served
on the superior court, and on the entities and associations
described in paragraph (2) of subdivision (b). The Department of
Justice may charge a reasonable fee sufficient to cover the costs of
maintaining records of certificates of compliance. The certificate of
compliance shall also include documentation that the humane society
or society for the prevention of cruelty to animals is in compliance
with subparagraph (F) of paragraph (2) of subdivision (b). Service on
the Department of Justice shall be in compliance with procedures set
forth by the Department of Justice. The Department of Justice shall
post the filing procedures, as they may be updated from time to time,
on its Internet Web site. Failure to file the certificate of
compliance with the Department of Justice within 21 days after the
expiration of a six-month period shall result in immediate revocation
of the appointment.
(i) Every humane officer shall, when making an arrest, exhibit and
expose a suitable badge to be adopted by the society under this part
of which he or she is an appointee which shall bear its name and a
number. Uniforms worn by humane officers shall prominently display
the name of the appointing society. Humane officer uniforms shall not
display the words "state" or "California," except to the extent that
one or both of those words are part of the appointing society's
incorporated name.
(j) Any person resisting a humane officer in the performance of
his or her duty as provided in this section is guilty of a
misdemeanor. Any person who has not been appointed and qualified as a
humane officer as provided in this section, or whose appointment has
been revoked as provided in this section, or whose appointment,
having expired, has not been renewed as provided in this section, who
shall represent himself or herself to be or shall attempt to act as
an officer shall be guilty of a misdemeanor.
(k) No humane officer shall serve a search warrant without
providing prior notice to local law enforcement agencies operating
within that jurisdiction.
(l) Any humane society, society for the prevention of cruelty to
animals, or person, who knowingly provides a court with false or
forged documentation for the appointment of a humane officer is
guilty of a misdemeanor and shall be punished by a fine of up to ten
thousand dollars ($10,000).
(m) Except as otherwise provided by this section, a humane officer
shall serve only in the county in which the court that appointed him
or her sits. A humane officer may serve in another county if the
humane officer gives notice requesting consent to the sheriff of the
county in which he or she intends to serve, and acquires consent from
that sheriff of the county in which he or she intends to serve, or
from a person authorized by the sheriff to give that consent. A
sheriff shall promptly respond to any request by a humane officer to
serve in his or her jurisdiction and any request shall not be
unreasonably denied.
SEC. 47. Section 14504 of the Corporations Code is amended to
read:
14504. All humane societies and societies for the prevention of
cruelty to animals, and all humane officers, shall be in full
compliance with Section 14502 on or before January 1, 2012.
Notwithstanding any other provision of this part, a level 1 or level
2 humane officer confirmed prior to January 1, 2012, shall not be
required to seek a new court order confirming his or her appointment.
However, a level 2 humane officer shall provide proof of compliance
with subparagraph (E) of paragraph (2) of subdivision (h) of Section
14502 by filing a certificate of compliance with the Department of
Justice on or before January 1, 2012, or that humane officer's
appointment shall be immediately revoked.
SEC. 48. Section 1630 of the Education Code is amended to read:
1630. (a) The Superintendent shall review and consider studies,
reports, evaluations, or audits of the county office of education
that contain evidence that the county office of education is
demonstrating fiscal distress according to the standards and criteria
developed pursuant to Section 33127, or that contain a finding by an
external reviewer that more than 3 of the 15 most common predictors
of school agencies needing intervention, as determined by the County
Office Fiscal Crisis and Management Assistance Team, are present. If
those findings are made, the Superintendent shall investigate the
financial condition of the county office of education and determine
if the county office of education may be unable to meet its financial
obligations for the current or two subsequent fiscal years, or
should receive a qualified or negative interim financial
certification pursuant to Section 1240.
(b) If at any time during the fiscal year the Superintendent
determines that the county office of education may be unable to meet
its financial obligations for the current or two subsequent fiscal
years, or if the county office has a qualified certification pursuant
to Section 1240, he or she shall notify the county board of
education and the county superintendent in writing of that
determination and the basis for the determination. The notification
shall include the assumptions used in making the determination and
shall be available to the public. The Superintendent shall do the
following, as necessary, to ensure that the county office meets its
financial obligations:
(1) Assign a fiscal expert, paid for by the Superintendent, to
advise the county office on its financial problems.
(2) Conduct a study of the financial and budgetary conditions of
the county office. If, in the course of this review, the
Superintendent determines that his or her office requires analytical
assistance or expertise that is not available through the county
office, he or she may employ, at county office expense, on a
short-term basis, staff, including certified public accountants, to
provide the assistance and expertise.
(3) Direct the county office to submit a financial projection of
all fund and cash balances of the county office as of June 30 of the
current year and subsequent fiscal years as he or she requires.
(4) Require the county office to encumber all contracts and other
obligations, to prepare appropriate cashflow analyses and monthly or
quarterly budget revisions, and to appropriately record all
receivables and payables.
(5) Direct the county office to submit a proposal for addressing
the fiscal conditions that resulted in the determination that the
county office may not be able to meet its financial obligations.
(6) Withhold compensation of the county board of education and the
county superintendent for failure to provide requested financial
information.
(c) If, after taking the actions identified in subdivision (a),
the Superintendent determines that a county office will be unable to
meet its financial obligations for the current or subsequent fiscal
year, he or she shall notify the county board of education and the
county superintendent in writing of that determination and the basis
for that determination. The notification shall include the
assumptions used in making the determination and shall be available
to the public.
(d) If the Superintendent of Public Instruction makes that
determination, or if the county office has a negative certification
pursuant to Section 1240, the Superintendent, shall, as necessary to
enable the county office to meet its financial obligations, do one or
more of the following:
(1) Develop and impose, in consultation with the county board of
education and the county superintendent, a budget that will enable
the county to meet its financial obligations.
(2) Stay or rescind an action that is determined to be
inconsistent with the ability of the county office to meet its
obligations for the current or subsequent fiscal year and may, as
necessary, appoint a fiscal adviser to perform some or all of the
duties prescribed by this paragraph on his or her behalf. This
includes actions up to the point that the subsequent year's budget is
approved by the Superintendent. The Superintendent shall inform the
county board of education in writing of his or her justification for
an exercise of authority under this paragraph.
(3) Assist in developing, in consultation with the county board of
education and the county superintendent, a financial plan that will
enable the county office to meet its future obligations.
(4) Assist in developing, in consultation with the county board of
education and the county superintendent, a budget for the subsequent
fiscal year. If necessary, the Superintendent shall continue to work
with the county board of education and the county superintendent
until the budget for the subsequent year is adopted.
(e) Actions taken by the Superintendent pursuant to paragraph (1)
or (2) of subdivision (d) shall be accompanied by a notification that
includes the actions to be taken, the reasons for the actions, and
the assumptions used to support the necessity for those actions. That
notification shall be available to the public.
(f) This section does not authorize the Superintendent to abrogate
a provision of a collective bargaining agreement that was entered
into by a county office prior to the date upon which the
Superintendent assumed authority pursuant to subdivision (d).
(g) The county office shall pay reasonable fees charged by the
Superintendent for administrative expenses incurred pursuant to
subdivision (d) or costs associated with improving the office's
financial management practices.
(h) Notwithstanding any other provision of law, a county treasurer
shall not honor a warrant when the Superintendent, as appropriate,
has disapproved that warrant, or has disapproved the order on county
office funds for which a warrant was prepared.
(i) For all purposes of errors and liability insurance policies, a
fiscal expert appointed pursuant to this section shall be deemed to
be an employee of the county office of education. The Superintendent
may require that the fiscal adviser be placed on the county office of
education payroll for the purposes of remuneration, benefits, and
payroll deductions.
(j) If staff persons are hired pursuant to paragraph (2) of
subdivision (b), the Superintendent may certify to the Controller an
amount to be transferred to the State Department of Education, from
the funds that otherwise would be apportioned to the county office of
education pursuant to Section 2558, for the purpose of paying all
costs incurred by that staff in performing their respective services.
The Controller, upon receipt of that certification, shall transfer
that amount.
(k) To facilitate the appointment of a county office fiscal
officer and the employment of additional staff pursuant to paragraphs
(1) and (2), respectively, of subdivision (b), for the purposes of
those paragraphs, the Superintendent of Public Instruction is exempt
from the requirements of Article 6 (commencing with Section 999) of
Chapter 6 of Division 4 of the Military and Veterans Code and Part 2
(commencing with Section 10100) of Division 2 of the Public Contract
Code.
SEC. 49. Section 12001.6 of the Education Code is amended to read:
12001.6. (a) The Legislature hereby finds and declares that the
federal tax credit bond volume cap for qualified school construction
bonds designated to California by the federal American Recovery and
Reinvestment Act of 2009 (P.L. 111-5), together with Internal Revenue
Service Notice 2010-17 issued pursuant thereto, does not constitute
federal moneys, federal funds, or funds of any kind for any purpose
under this code.
(b) The department is authorized to assign and distribute the
state's 2010 federal tax credit bond volume cap for qualified school
construction bonds to or for the benefit of school districts and
county offices of education in the state.
(c) There is hereby assigned to the department six hundred
fifty-one million six hundred fifty-two thousand dollars
($651,652,000) of the state's 2010 federal tax credit bond volume cap
for qualified school construction bonds.
(1) A school district or county office of education may apply for
the federal tax credit bond volume cap for qualified school
construction bonds if the project is funded by local voter-approved
bonds issued by the school district or bond anticipation notes as
authorized by Section 15150. A county office of education and a
school district with an enrollment of 2,500 or less may use other
forms of financing with the submission of a resolution adopted by the
county board of education or governing board of the school district
authorizing the issuance of the financing.
(2) A school district or county office of education that received a
2009 allocation but did not make any issuance may apply for 2010
federal tax credit bond volume cap for qualified school construction
bonds nine months after the effective date of this section.
(3) A school district or county office of education that received
a 2009 or 2010 federal tax credit bond volume cap for qualified
school construction bond allocation from the United States Department
of the Treasury is not eligible to apply.
(4) Five business days after the enactment Section 2 of Chapter
266 of the Statutes of 2010, the department shall post the
application form on its Internet Web site.
(A) An application must be submitted via certified mail.
(B) An application shall not be postmarked until 30 business days
after the enactment of Section 2 of Chapter 266 of the Statutes of
2010.
(C) An application shall include the total number of enrolled
pupils who qualify for the federal free and reduced price meal
program and the total overall pupil enrollment for the 2008-09 school
year.
(5) An application not meeting the conditions set forth in
paragraphs (1) and (4) shall be returned to the applicant.
(6) Applications meeting the conditions set forth in paragraphs
(1) and (4) shall be accepted on a first-come-first-served basis by
date of postmark. If this program is oversubscribed, order of
allocation shall be established using the following criteria:
(A) First, earliest date of postmark.
(B) Second, the project for which the federal qualified school
construction bond authorization will be applied received approval
from the Division of the State Architect before the application was
submitted.
(C) Third, the greater percentage of pupils who qualify for the
federal free and reduced price meals program and are enrolled in the
applying school district or county office of education in the 2008-09
school year. The department shall certify the number of pupils who
qualify and the overall enrollment and calculate the percentage to
the nearest one-hundredth of 1 percent.
(7) The department shall authorize the 2010 federal tax credit
bond volume cap for qualified school construction bonds no sooner
than December 1, 2010.
(8) The department shall maintain a waiting list of eligible
school districts and county offices of education that did not receive
an allocation in the order established pursuant to paragraph (6).
(9) An applicant may not apply for more than twenty-five million
dollars ($25,000,000) of 2010 federal tax credit bond volume cap for
qualified school construction bonds.
(10) A school district or county office of education applying for
2010 federal tax credit bond volume cap for qualified school
construction bonds authorization shall certify in its application
that it will fulfill all of the federal qualified school construction
bond program requirements, including both of the following
requirements:
(A) Within six months of the date of issuance, the school district
or county office of education shall enter into a contract or
contracts for use of an amount of bond proceeds equal to 10 percent
of the authorization.
(B) Within three years of the date of issuance, the school
district or county office of education shall spend 100 percent of the
bond proceeds for a qualified purpose.
(11) Fifteen days after bond issuance, the school district or
county office of education shall submit to the department a copy of
the appropriate federal Internal Revenue Service Form, Information
Return for Tax-Exempt Bonds, as confirmation of issuance.
(12) Thirty days after the completion of the expenditure the
recipient shall submit a completion report to the department. The
completion report must be certified by the bond counsel of the school
district or county office of education.
(13) If any or all of the federal qualified school construction
bond authorizations to a school district or county office of
education are not issued within six months from the date of
authorization, any or all unused federal qualified school
construction bond authorizations shall revert to the department. No
extensions shall be provided.
(A) The department shall reallocate any remaining federal
qualified school construction bond allocation to school districts or
county offices of education that were eligible and applied for the
authorization but did not receive an allocation.
(B) Reverted 2010 federal tax credit bond volume cap for qualified
school construction bonds shall be allocated to school districts or
county offices of education pursuant to the order of priority
established by paragraph (6).
(C) The department shall allocate reverted federal qualified
school construction bond authorizations as they are available and
until all are issued.
(d) The California School Finance Authority, established pursuant
to Section 17172, is authorized to assign and distribute the state's
2010 federal tax credit bond volume cap for qualified school
construction bonds to or for the benefit of charter schools, or to be
further assigned and distributed to one or more issuers in the state
for the benefit of charter schools, as determined by the authority.
(1) There is hereby assigned to the California School Finance
Authority, established pursuant to Section 17172, sixty-eight million
four hundred six thousand dollars ($68,406,000) of the state's 2010
federal tax credit bond volume cap for qualified school construction
bonds, to be issued for the benefit of charter schools, or to be
further assigned and distributed to one or more issuers in the state
for the benefit of charter schools, as the authority shall determine.
(2) A charter school may apply for the federal qualified school
construction bond volume cap if it meets all of the following
criteria:
(A) The charter school is operated as, or is operated by, a
nonprofit entity.
(B) The charter school has an approved charter in place that is
current at the time of application and continuously through the date
of bond issuance.
(C) The chartering authority certifies that the charter school is
in good standing and is in compliance with the terms of its charter.
(D) The charter school provides the level of classroom-based
instruction specified in paragraph (1) of subdivision (e) of Section
47612.5.
(E) The applicant has completed at least three full school years
of instructional operation as a charter school as of the end of the
previous school year.
(3) Five business days after the effective date of this section,
the California School Finance Authority shall post the application
form and fee schedule on its Internet Web site.
(4) An application shall not be postmarked until 30 business days
after the effective date of this section.
(5) Following a review of all applications and a preliminary award
of borrowing authority, the California School Finance Authority
shall ask applicants to provide additional information as necessary
for the issuance of the bonds.
(6) Applications that meet the conditions set forth in paragraph
(2) shall be considered by the California School Finance Authority on
a first-come-first-served basis by date of postmark. If the program
is oversubscribed, staff shall present a priority list to the
authority pursuant to paragraph (7).
(7) If the program is oversubscribed, priority shall be assigned
first to those charter schools that are best able to demonstrate to
the California School Finance Authority, in its sole discretion, that
they will be capable of accessing the capital markets or be
privately placed with an investor. The order of allocation shall be
established using the following criteria:
(A) Applicants that are able to obtain credit enhancement for a
qualified school construction bond financing, including a bank letter
of credit, or contribute substantial equity to a project, or are
otherwise able to obtain investment-grade credit ratings shall
receive priority over other applicants.
(B) If multiple applicants satisfy the criteria described in
subparagraph (A), priority shall be assigned to applications with the
earliest postmark date. An application that is hand delivered and
does not have a postmark date will be ranked based on the time the
application is received by the California School Finance Authority.
(8) Applicants shall not apply for more than twenty-five million
dollars ($25,000,000) of qualified school construction bond
authorization per project.
(9) Subsequent application cycles may be considered if borrowing
authority for qualified school construction bonds remains available
after the initial application period.
(10) Subject to the sole discretion of the California School
Finance Authority, authorization to borrow qualified school
construction bond proceeds is contingent on the issuance of the
qualified school construction bonds by December 31, 2011, after which
time the authorization expires and the authority may allocate the
authorization to another qualified applicant.
(11) The California School Finance Authority shall allocate
reverted federal qualified school construction bond authorization as
it becomes available and until all of the authorization is issued.
(12) If an applicant uses any federal tax credit bond volume cap
in conjunction with a bond that will serve as a local match for
purposes of the Charter School Facilities Program established by
Section 17078.52, the applicant, in addition to the requirements of
this section, shall comply with all of the requirements of the
Charter School Facilities Program.
SEC. 50. Section 17250.30 of the Education Code is amended to
read:
17250.30. (a) Any design-build entity that is selected to design
and build a project pursuant to this chapter shall possess or obtain
sufficient bonding to cover the contract amount for nondesign
services, and errors and omissions insurance coverage sufficient to
cover all design and architectural services provided in the contract.
This chapter does not prohibit a general or engineering contractor
from being designated the lead entity on a design-build entity for
the purposes of purchasing necessary bonding to cover the activities
of the design-build entity.
(b) Any payment or performance bond written for the purposes of
this chapter shall use a bond form developed by the Department of
General Services pursuant to subdivision (g) of Section 14661 of the
Government Code. The purpose of this subdivision is to promote
uniformity of bond forms to be used on school district design-build
projects throughout the state.
(c) (1) All subcontracts that were not listed by the design-build
entity in accordance with Section 17250.25 shall be awarded by the
design-build entity.
(2) The design-build entity shall do both of the following:
(A) Provide public notice of the availability of work to be
subcontracted.
(B) Provide a fixed date and time on which the subcontracted work
will be awarded.
(3) Subcontractors bidding on contracts pursuant to this
subdivision shall be afforded the protections contained in Chapter 4
(commencing with Section 4100) of Part 1 of Division 2 of the Public
Contract Code.
(4) (A) If the school district elects to award a project pursuant
to this section, retention proceeds withheld by the school district
from the design-build entity shall not exceed 5 percent if a
performance and payment bond, issued by an admitted surety insurer,
is required in the solicitation of bids.
(B) In a contract between the design-build entity and a
subcontractor, and in a contract between a subcontractor and any
subcontractor thereunder, the percentage of the retention proceeds
withheld shall not exceed the percentage specified in the contract
between the school district and the design-build entity. If the
design-build entity provides written notice to any subcontractor who
is not a member of the design-build entity, prior to or at the time
the bid is requested, that a bond may be required and the
subcontractor subsequently is unable or refuses to furnish a bond to
the design-build entity, then the design-build entity may withhold
retention proceeds in excess of the percentage specified in the
contract between the school district and the design-build entity from
any payment made by the design-build entity to the subcontractor.
(5) In accordance with the provisions of applicable state law, the
design-build entity may be permitted to substitute securities in
lieu of the withholding from progress payments. Substitutions shall
be made in accordance with Section 22300 of the Public Contract Code.
(d) (1) For contracts awarded prior to the effective date of
either the regulations adopted by the Department of Industrial
Relations pursuant to subdivision (b) of Section 1771.55 of the Labor
Code or the fees established by the department pursuant to paragraph
(2), the school district shall establish and enforce a labor
compliance program containing the requirements outlined in Section
1771.5 of the Labor Code or shall contract with a third party to
operate a labor compliance program containing the requirements
outlined in Section 1771.5 of the Labor Code. This requirement shall
not apply to projects where the school district or the design-build
entity has entered into a collective bargaining agreement that binds
all of the contractors performing work on the project.
(2) For contracts awarded on or after the effective date of both
the regulations adopted by the Department of Industrial Relations
pursuant to subdivision (b) of Section 1771.55 of the Labor Code and
the fees established by the department pursuant to this paragraph,
the school district shall pay a fee to the department, in an amount
that the department shall establish, and as it may from time to time
amend, sufficient to support the department's costs in ensuring
compliance with and enforcing prevailing wage requirements on the
project, and labor compliance enforcement as set forth in subdivision
(b) of Section 1771.55. All fees collected pursuant to this
subdivision shall be deposited in the State Public Works Enforcement
Fund created by Section 1771.3 of the Labor Code, and shall be used
only for enforcement of prevailing wage requirements on those
projects.
(3) The Department of Industrial Relations may waive the fee set
forth in paragraph (2) for a school district that has previously been
granted approval by the director to initiate and operate a labor
compliance program on the district's projects, and that requests to
continue to operate that labor compliance program on its projects in
lieu of labor compliance by the department pursuant to subdivision
(b) of Section 1771.55. The fee shall not be waived for a district
that contracts with a third party to initiate and enforce labor
compliance programs on the district's projects.
SEC. 51. Section 37222 of the Education Code is amended to read:
37222. (a) On each day designated and set apart as a day having
special significance, all public schools and educational institutions
are encouraged to observe that day and to conduct suitable
commemorative exercises.
(b) It is the intent of the Legislature that the exercises
encouraged by subdivision (a) be integrated into the regular school
program, and be conducted by the school or institution within the
amount of time otherwise budgeted for educational programs.
SEC. 52. Section 37222.10 of the Education Code, as added by
Section 3 of Chapter 114 of the Statutes of 2010, is repealed.
SEC. 53. Section 37222.10 of the Education Code, as added by
Section 3 of Chapter 115 of the Statutes of 2010, is repealed.
SEC. 54. Section 37222.11 of the Education Code, as added by
Section 4 of Chapter 114 of the Statutes of 2010, is repealed.
SEC. 55. Section 37222.11 of the Education Code, as added by
Section 4 of Chapter 115 of the Statutes of 2010, is repealed.
SEC. 56. Section 37222.12 of the Education Code, as added by
Section 5 of Chapter 114 of the Statutes of 2010, is repealed.
SEC. 57. Section 37222.12 of the Education Code, as added by
Section 5 of Chapter 115 of the Statutes of 2010, is repealed.
SEC. 58. Section 37222.13 of the Education Code, as added by
Section 6 of Chapter 114 of the Statutes of 2010, is repealed.
SEC. 59. Section 37222.13 of the Education Code, as added by
Section 6 of Chapter 115 of the Statutes of 2010, is repealed.
SEC. 60. Section 37222.14 of the Education Code, as added by
Section 7 of Chapter 114 of the Statutes of 2010, is repealed.
SEC. 61. Section 37222.14 of the Education Code, as added by
Section 7 of Chapter 115 of the Statutes of 2010, is repealed.
SEC. 62. Section 41203 of the Education Code, as added by Section
8 of Chapter 83 of the Statutes of 1989, is amended to read:
41203. Any calculation of the moneys to be applied by the state
for the support of school districts and community college districts,
pursuant to subdivision (b) of Section 8 of Article XVI of the
California Constitution, shall be made as a single, aggregate
calculation for the school districts serving kindergarten and grades
1 to 12, inclusive, for the community college districts, and for the
direct elementary and secondary level instructional services provided
by the State of California.
SEC. 63. Section 41204 of the Education Code, as amended by
Section 26 of Chapter 427 of the Statutes of 1992, is amended to
read:
41204. (a) It is the intent of the Legislature, pursuant to "The
Classroom Instructional Improvement and Accountability Act," that
school districts, as defined in Section 41302.5, and community
college districts, as constituted during the 1986-87 fiscal year,
annually receive a basic minimum portion of the revenues that is
equivalent to the percentage of revenues that were deposited to the
General Fund in that year.
(b) In recognition of this intent, it is further the intent of the
Legislature that both houses and the Governor be guided by the
following:
(1) If the revenues of a tax that were deposited in the General
Fund in the 1986-87 fiscal year are redirected to another fund, or
level of government, then the percentages of General Fund revenues
required to be applied by the state for the support of school
districts, community college districts, and state agencies providing
direct elementary and secondary level instructional services shall be
recalculated as if those revenues were not deposited in the General
Fund in the 1986-87 fiscal year.
(2) If the allocated local proceeds of taxes, as defined by
subdivisions (g) and (h) of Section 41202, received by a school
district or community college district during the 1986-87 fiscal year
are redirected to other entities or statutorily or constitutionally
reduced or eliminated, the additional General Fund support provided
to replace the allocated local proceeds of taxes may not be counted
as General Fund revenues required to be applied for the support of
school districts, community college districts, and state agencies
providing direct elementary and secondary level instructional
services pursuant to paragraph (1) of subdivision (b) of Section 8 of
Article XVI of the California Constitution, unless the percentage of
General Fund revenues appropriated to school districts, community
college districts, and state agencies providing direct elementary and
secondary level instructional services in the 1986-87 fiscal year is
adjusted to reflect the amount of General Fund support that would
have been provided in the 1986-87 fiscal year had the allocated local
proceeds of taxes been correspondingly reduced.
(3) If a program of a school district, as defined in Section
41302.5, or of a community college district was supported by state
funds from a source other than the General Fund during the 1986-87
fiscal year and General Fund moneys are subsequently provided in
support of the program and in lieu of the other source of funds, the
supplanting General Fund revenues shall not be counted as moneys to
be applied by the state for the support of school districts or
community college districts pursuant to subdivision (b) of Section 8
of Article XVI of the California Constitution.
(c) Programs that existed in the 1986-87 fiscal year, and were not
the functional responsibility of school districts or community
college districts in that fiscal year, shall not be shifted to the
responsibility or financial support of school districts or community
college districts without appropriate corresponding adjustment to the
calculations made pursuant to subdivision (b) of Section 8 of
Article XVI of the California Constitution. Nothing in this
subdivision shall be construed to prevent the creation of a new
educational program that is supported by a General Fund appropriation
made in conformity with subdivision (b) of Section 8 of Article XVI
of the California Constitution.
(d) Enrollment, average daily attendance, or average daily
attendance equivalents used for the purpose of calculating "increases
in enrollment" pursuant to paragraph (2) of subdivision (b) of
Section 8 of Article XVI of the California Constitution shall not be
redefined, adjusted, or otherwise recalculated unless the appropriate
action is taken to neutralize the effect of the change with respect
to the adjustment required to be made for increases in enrollment.
SEC. 64. Section 41320.1 of the Education Code is amended to read:
41320.1. Acceptance by the district of the apportionments made
pursuant to Section 41320 constitutes the agreement by the district
to all of the following conditions:
(a) The Superintendent of Public Instruction shall appoint a
trustee who has recognized expertise in management and finance and
may employ, on a short-term basis, any staff necessary to assist the
trustee, including, but not limited to, certified public accountants,
as follows:
(1) The expenses incurred by the trustee and any necessary staff
shall be borne by the district.
(2) The Superintendent shall establish the terms and conditions of
the employment, including the remuneration of the trustee. The
trustee shall serve at the pleasure of, and report directly to, the
Superintendent.
(3) The trustee, and any necessary staff, shall serve until the
loan authorized by this section is repaid, the district has adequate
fiscal systems and controls in place, and the Superintendent has
determined that the district's future compliance with the fiscal plan
approved for the district under Section 41320 is probable. The
Superintendent shall notify the county superintendent of schools, the
Legislature, the Department of Finance, and the Controller no less
than 60 days prior to the time that the Superintendent expects these
conditions to be met.
(4) Before the district repays the loan, including interest, the
recipient of the loan shall select an auditor from a list established
by the Superintendent and the Controller to conduct an audit of its
fiscal systems. If the fiscal systems are deemed to be inadequate,
the Superintendent may retain the trustee until the deficiencies are
corrected. The cost of this audit and any additional cost of the
trustee shall be borne by the district.
(5) Notwithstanding any other law, all reports submitted to the
trustee are public records.
(6) To facilitate the appointment of the trustee and the
employment of any necessary staff, for the purposes of this section,
the Superintendent is exempt from the requirements of Article 6
(commencing with Section 999) of Chapter 6 of Division 4 of the
Military and Veterans Code and Part 2 (commencing with Section 10100)
of Division 2 of the Public Contract Code.
(7) Notwithstanding any other law, the Superintendent may appoint
an employee of the department to act as trustee for up to the
duration of the trusteeship. The salary and benefits of that employee
shall be established by the Superintendent and paid by the school
district. During the time of appointment, the employee is an employee
of the school district, but shall remain in the same retirement
system under the same plan as if the employee had remained in the
department. Upon the expiration or termination of the appointment,
the employee shall have the right to return to his or her former
position, or to a position at substantially the same level as that
position, with the department. The time served in the appointment
shall be counted for all purposes as if the employee had served that
time in his or her former position with the department.
(b) The trustee appointed by the Superintendent shall monitor and
review the operation of the district. During the period of his or her
service, the trustee may stay or rescind any action of the local
district governing board that, in the judgment of the trustee, may
affect the financial condition of the district. The Superintendent
may establish timelines and prescribe formats for reports and other
materials to be used by the trustee to monitor and review the
operations of the district. The trustee shall approve or reject all
reports and other materials required from the district as a condition
of receiving the apportionment. The Superintendent, upon the
recommendation of the trustee, may reduce any apportionment to the
district in an amount up to two hundred dollars ($200) per day for
each late or unacceptable report or other material required under
this part, and shall report to the Legislature any failure of the
district to comply with the requirements of this section. If the
Superintendent determines, at any time, that the fiscal plan approved
for the district under Section 41320 is unsatisfactory, he or she
may modify the plan as necessary, and the district shall comply with
the plan as modified.
(c) At the request of the Superintendent, the Controller shall
transfer to the department, from an apportionment to which the
district would otherwise have been entitled pursuant to Section
42238, the amount necessary to pay the expenses incurred by the
trustee and associated costs incurred by the county superintendent of
schools.
(d) For the fiscal year in which the apportionments are disbursed
and each year thereafter, the Controller, or his or her designee,
shall cause an audit to be conducted of the books and accounts of the
district, in lieu of the audit required by Section 41020. At the
Controller's discretion, the audit may be conducted by the
Controller, his or her designee, or an auditor selected by the
district and approved by the Controller. The costs of these audits
shall be borne by the district. These audits shall be required until
the Controller determines, in consultation with the Superintendent,
that the district is financially solvent, but in no event earlier
than one year following the implementation of the plan or later than
the time the
apportionment made is repaid, including interest. In addition, the
Controller shall conduct quality control reviews pursuant to
subdivision (c) of Section 14504.2.
(e) For all purposes of errors and omissions liability insurance
policies, the trustee appointed pursuant to this section is an
employee of the local education agency to which he or she is
assigned. For the purpose of workers' compensation benefits, the
trustee is an employee of the local education agency to which he or
she is assigned, except that a trustee appointed pursuant to
paragraph (7) of subdivision (a) is an employee of the department for
that purpose.
(f) Except for an individual appointed by the Superintendent as
trustee pursuant to paragraph (7) of subdivision (a), the
state-appointed trustee is a member of the State Teachers' Retirement
System, if qualified, for the period of service as trustee, unless
the trustee elects in writing not to become a member. A person who is
a member or retirant of the State Teachers' Retirement System at the
time of appointment shall continue to be a member or retirant of the
system for the duration of the appointment. If the trustee chooses
to become a member or is already a member, the trustee shall be
placed on the payroll of the school district for the purposes of
providing appropriate contributions to the system. The Superintendent
may also require that any individual appointed as trustee pursuant
to paragraph (7) of subdivision (a) be placed on the payroll of the
school district for purposes of remuneration, other benefits, and
payroll deductions. For the purpose of workers' compensation
benefits, the state-appointed trustee is deemed an employee of the
local education agency to which he or she is assigned, except that a
trustee who is appointed pursuant to paragraph (7) of subdivision (a)
is an employee of the department for that purpose.
SEC. 65. Section 41326 of the Education Code is amended to read:
41326. (a) Notwithstanding any other provision of this code, the
acceptance by a school district of an apportionment made pursuant to
Section 41320 that exceeds an amount equal to 200 percent of the
amount of the reserve recommended for that district under the
standards and criteria adopted pursuant to Section 33127 constitutes
the agreement by the district to the conditions set forth in this
article. Prior to applying for an emergency apportionment in the
amount identified in this subdivision, a school district governing
board shall discuss the need for that apportionment at a regular or
special meeting of the governing board and, at that meeting, shall
receive testimony regarding the apportionment from parents, exclusive
representatives of employees of the district, and other members of
the community. For purposes of this article, "qualifying school
district" means a school district that accepts a loan as described in
this subdivision.
(b) The Superintendent shall assume all the legal rights, duties,
and powers of the governing board of a qualifying school district.
The Superintendent, in consultation with the county superintendent of
schools, shall appoint an administrator to act on his or her behalf
in exercising the authority described in this subdivision in
accordance with all of the following:
(1) The administrator shall serve under the direction and
supervision of the Superintendent until terminated by the
Superintendent at his or her discretion. The Superintendent shall
consult with the county superintendent of schools before terminating
the administrator.
(2) The administrator shall have recognized expertise in
management and finance.
(3) To facilitate the appointment of the administrator and the
employment of any necessary staff, for the purposes of this section,
the Superintendent of Public Instruction is exempt from the
requirements of Article 6 (commencing with Section 999) of Chapter 6
of Division 4 of the Military and Veterans Code and Part 2
(commencing with Section 10100) of Division 2 of the Public Contract
Code.
(4) Notwithstanding any other law, the Superintendent may appoint
an employee of the state or the office of the county superintendent
of schools to act as administrator for up to the duration of the
administratorship. During the tenure of his or her appointment, the
administrator, if he or she is an employee of the state or the office
of the county superintendent of schools, is an employee of the
school district, but shall remain in the same retirement system under
the same plan that has been provided by his or her employment with
the state or the office of the county superintendent of schools. Upon
the expiration or termination of the appointment, the employee shall
have the right to return to his or her former position, or to a
position at substantially the same level as that position, with the
state or the office of the county superintendent of schools. The time
served in the appointment shall be counted for all purposes as if
the administrator had served that time in his or her former position
with the state or the office of the county superintendent of schools.
(5) Except for an individual appointed as an administrator by the
Superintendent of Public Instruction pursuant to paragraph (4), the
administrator shall be a member of the State Teachers' Retirement
System, if qualified, for the period of service as administrator,
unless he or she elects in writing not to become a member. A person
who is a member or retirant of the State Teachers' Retirement System
at the time of appointment shall continue to be a member or retirant
of the system for the duration of the appointment. If the
administrator chooses to become a member or is already a member, the
administrator shall be placed on the payroll of the school district
for the purposes of providing appropriate contributions to the
system. The Superintendent may also require the administrator to be
placed on the payroll of the school district for purposes of
remuneration, other benefits, and payroll deductions.
(6) For the purposes of workers' compensation benefits, the
administrator is an employee of the qualifying district, except that
an administrator appointed pursuant to paragraph (4) may be deemed an
employee of the state or office of the county superintendent of
schools, as applicable.
(7) The qualifying district shall add the administrator as a
covered employee of the school district for all purposes of errors
and omissions liability insurance policies.
(8) The salary and benefits of the administrator shall be
established by the Superintendent of Public Instruction and paid by
the qualifying school district.
(9) The Superintendent or the administrator may, on a short-term
basis, employ at district expense any staff necessary to assist the
administrator, including, but not limited to, a certified public
accountant.
(10) The administrator may do all of the following:
(A) Implement substantial changes in the fiscal policies and
practices of the district, including, if necessary, the filing of a
petition under Chapter 9 (commencing with Section 901) of Title 11 of
the United States Code for the adjustment of indebtedness.
(B) Revise the educational program of the district to reflect
realistic income projections and pupil performance relative to state
standards.
(C) Encourage all members of the school community to accept a fair
share of the burden of the fiscal recovery of the district.
(D) Consult, for the purposes described in this subdivision, with
the governing board of the school district, the exclusive
representatives of the employees of the district, parents, and the
community.
(E) Consult with, and seek recommendations from, the
Superintendent, county superintendent of schools, and the County
Office Fiscal Crisis and Management Assistance Team authorized
pursuant to subdivision (c) of Section 42127.8 for the purposes
described in this article.
(F) With the approval of the Superintendent, enter into agreements
on behalf of the district and, subject to any contractual obligation
of the district, change any existing district rules, regulations,
policies, or practices as necessary for the effective implementation
of the recovery plans referred to in Sections 41327 and 41327.1.
(c) (1) For the period of time during which the Superintendent of
Public Instruction exercises the authority described in subdivision
(b), the governing board of the qualifying school district shall
serve as an advisory body reporting to the state-appointed
administrator, and has no rights, duties, or powers, and is not
entitled to any stipend, benefits, or other compensation from the
district.
(2) Upon the appointment of an administrator pursuant to this
section, the district superintendent of schools is no longer an
employee of the district.
(3) A determination of the severance compensation for the district
superintendent shall be made pursuant to subdivision (j).
(d) Notwithstanding Section 35031 or any other law, the
administrator may, after according the employee reasonable notice and
the opportunity for a hearing, terminate the employment of any
deputy, associate, assistant superintendent of schools, or any other
district level administrator who is employed by a school district
under a contract of employment signed or renewed after January 1,
1992, if the employee fails to document, to the satisfaction of the
administrator, that prior to the date of the acceptance of the
apportionment he or she either advised the governing board of the
district, or his or her superior, that actions contemplated or taken
by the governing board could result in the fiscal insolvency of the
district, or took other appropriate action to avert that fiscal
insolvency.
(e) The authority of the Superintendent, and the administrator,
under this section shall continue until all of the following occur:
(1) (A) After one complete fiscal year has elapsed following the
district's acceptance of a loan as described in subdivision (a), the
administrator determines, and so notifies the Superintendent and the
county superintendent of schools, that future compliance by the
school district with the recovery plans approved pursuant to
paragraph (2) is probable.
(B) The Superintendent may return power to the governing board for
any area listed in subdivision (a) of Section 41327.1 if performance
under the recovery plan for that area has been demonstrated to the
satisfaction of the Superintendent.
(2) The Superintendent has approved all of the recovery plans
referred to in subdivision (a) of Section 41327 and the County Office
Fiscal Crisis and Management Assistance Team completes the
improvement plans specified in Section 41327.1 and has completed a
minimum of two reports identifying the district's progress in
implementing the improvement plans.
(3) The administrator certifies that all necessary collective
bargaining agreements have been negotiated and ratified, and that the
agreements are consistent with the terms of the recovery plans.
(4) The district has completed all reports required by the
Superintendent and the administrator.
(5) The Superintendent determines that future compliance by the
school district with the recovery plans approved pursuant to
paragraph (2) is probable.
(f) When the conditions stated in subdivision (e) have been met,
and at least 60 days after the Superintendent of Public Instruction
has notified the Legislature, the Department of Finance, the
Controller, and the county superintendent of schools that he or she
expects the conditions prescribed pursuant to this section to be met,
the school district governing board shall regain all of its legal
rights, duties, and powers, except for the powers held by the trustee
provided for pursuant to Article 2 (commencing with Section 41320).
The Superintendent shall appoint a trustee under Section 41320.1 to
monitor and review the operations of the district until the
conditions of subdivision (b) of that section have been met.
(g) Notwithstanding subdivision (f), if the district violates any
provision of the recovery plans approved by the Superintendent
pursuant to this article within five years after the trustee
appointed pursuant to Section 41320.1 is removed, the Superintendent
may reassume, either directly or through an administrator appointed
in accordance with this section, all of the legal rights, duties, and
powers of the governing board of the district. The Superintendent
shall return to the school district governing board all of its legal
rights, duties, and powers reassumed under this subdivision when he
or she determines that future compliance with the approved recovery
plans is probable, or after a period of one year, whichever occurs
later.
(h) Article 2 (commencing with Section 41320) shall apply except
as otherwise specified in this article.
(i) It is the intent of the Legislature that the legislative
budget subcommittees annually conduct a review of each qualifying
school district that includes an evaluation of the financial
condition of the district, the impact of the recovery plans upon the
district's educational program, and the efforts made by the
state-appointed administrator to obtain input from the community and
the governing board of the district.
(j) (1) The district superintendent is entitled to a due process
hearing for purposes of determining final compensation. The final
compensation of the district superintendent shall be between zero and
six times his or her monthly salary. The outcome of the due process
hearing shall be reported to the Superintendent of Public Instruction
and the public. The information provided to the public shall explain
the rationale for the compensation.
(2) This subdivision applies only to a contract for employment
negotiated on or after June 21, 2004.
(k) (1) When the Superintendent assumes control over a school
district pursuant to subdivision (b), he or she shall, in
consultation with the County Office Fiscal Crisis and Management
Assistance Team, review the fiscal oversight of the district by the
county superintendent of schools. The Superintendent may consult with
other fiscal experts, including other county superintendents of
schools and regional fiscal teams, in conducting this review.
(2) Within three months of assuming control over a qualifying
district, the Superintendent shall report his or her findings to the
Legislature and shall provide a copy of that report to the Department
of Finance. This report shall include findings as to fiscal
oversight actions that were or were not taken and may include
recommendations as to an appropriate legislative response to improve
fiscal oversight.
(3) If after performing the duties described in paragraphs (1) and
(2), the Superintendent determines that the county superintendent of
schools failed to carry out his or her responsibilities for fiscal
oversight as required by this code, the Superintendent may exercise
the authority of the county superintendent of schools who has
oversight responsibilities for a qualifying school district. If the
Superintendent finds, based on the report required in paragraph (2),
that the county superintendent of schools failed to appropriately
take into account particular types of indicators of financial
distress, or failed to take appropriate remedial actions in the
qualifying district, the Superintendent shall further investigate
whether the county superintendent of schools failed to take into
account those indicators, or similarly failed to take appropriate
actions in other districts with negative or qualified certifications,
and shall provide an additional report on the fiscal oversight
practices of the county superintendent to the appropriate policy and
fiscal committees of each house of the Legislature and the Department
of Finance.
SEC. 66. Section 41500 of the Education Code is amended to read:
41500. (a) Notwithstanding any other provision of law, a school
district and county office of education may expend in a fiscal year
up to 15 percent of the amount apportioned for the block grants set
forth in Article 3 (commencing with Section 41510), Article 5
(commencing with Section 41530), Article 6 (commencing with Section
41540), or Article 7 (commencing with Section 41570) for any other
programs for which the school district or county office is eligible
for funding, including programs whose funding is not included in any
of the block grants established pursuant to this chapter. The total
amount of funding a school district or county office of education may
expend for a program to which funds are transferred pursuant to this
section shall not exceed 120 percent of the amount of state funding
allocated to the school district or county office of education for
purposes of that program in a fiscal year. For purposes of this
subdivision, "total amount" means the amount of state funding
allocated to a school district or county office of education for
purposes of a particular program in a fiscal year plus the amount
transferred in that fiscal year to that program pursuant to this
section.
(b) A school district that transfers funding, pursuant to this
section, from the amount apportioned for the School and Library
Improvement Block Grant, as set forth in Article 7 (commencing with
Section 41570), shall utilize no less than 85 percent of the amount
remaining after the transfer for direct services to pupils.
(c) A school district and county office of education shall not,
pursuant to this section, transfer funds from Article 2 (commencing
with Section 41505) and Article 4 (commencing with Section 41520).
(d) Before a school district or county office of education may
expend funds pursuant to this section, the governing board of the
school district or the county board of education, as applicable,
shall discuss the matter at a noticed public meeting.
(e) A school district shall track transfers made pursuant to this
section.
SEC. 67. Section 44237 of the Education Code is amended to read:
44237. (a) Every person, firm, association, partnership, or
corporation offering or conducting private school instruction on the
elementary or high school level shall require each applicant for
employment in a position requiring contact with minor pupils who does
not possess a valid credential issued by the commission or is not
currently licensed by another state agency that requires a criminal
record summary that directly relates to services provided in a
facility described in this section and has background clearance
criteria that meets or exceeds the requirements of this section, to
submit two sets of fingerprints prepared for submittal by the
employer to the Department of Justice for the purpose of obtaining
criminal record summary information from the Department of Justice
and the Federal Bureau of Investigation.
(b) (1) As used in this section, "employer" means every person,
firm, association, partnership, or corporation offering or conducting
private school instruction on the elementary or high school level.
(2) As use in this section, "employment" means the act of engaging
the services of a person, who will have contact with pupils, to work
in a position at a private school at the elementary or high school
level on or after September 30, 1997, on a regular, paid full-time
basis, regular, paid part-time basis, or paid full- or part-time
seasonal basis.
(3) As used in this section, "applicant" means any person who is
seriously being considered for employment by an employer.
(4) This section does not apply to a secondary school pupil
working at the school he or she attends or a parent or legal guardian
working exclusively with his or her children.
(c) (1) Upon receiving the identification cards, the Department of
Justice shall ascertain whether the applicant has been arrested or
convicted of any crime insofar as that fact can be ascertained from
information available to the Department of Justice and forward the
information to the employer submitting the fingerprints no more than
15 working days after receiving the identification cards. The
Department of Justice shall not forward information regarding
criminal proceedings that did not result in a conviction but shall
forward information on arrests pending adjudication.
(2) Upon implementation of an electronic fingerprinting system
with terminals located statewide and managed by the Department of
Justice, the Department of Justice shall ascertain the information
required pursuant to this subdivision within three working days. If
the Department of Justice cannot ascertain the information required
pursuant to this subdivision within three working days, the
Department of Justice shall notify the employer submitting the
fingerprints that it cannot so ascertain the required information.
This notification shall be delivered by telephone or e-mail to the
employer submitting the fingerprints. If the employer submitting the
fingerprints is notified by the Department of Justice that it cannot
ascertain the required information about a person, the employer shall
not employ that person until the Department of Justice ascertains
that information.
(3) The Department of Justice shall review the criminal record
summary it obtains from the Federal Bureau of Investigation to
ascertain whether an applicant for employment has a conviction, or an
arrest pending final adjudication, for any sex offense, controlled
substance offense, crime of violence, or serious or violent felony.
The Department of Justice shall provide written notification to the
private school employer only as to whether an applicant for
employment has any convictions, or arrests pending final
adjudication, for any of these crimes.
(d) An employer shall not employ a person until the Department of
Justice completes its check of the state criminal history file as set
forth in this section.
(e) (1) An employer shall not employ a person who has been
convicted of a violent or serious felony or a person who would be
prohibited from employment by a public school district pursuant to
any provision of this code because of his or her conviction for any
crime.
(2) A person who would be prohibited from employment by a private
school pursuant to paragraph (1) may not, on or after July 1, 1999,
own or operate a private school offering instruction on the
elementary or high school level.
(f) An employer shall request subsequent arrest service from the
Department of Justice as provided under Section 11105.2 of the Penal
Code.
(g) This section applies to any violent or serious offense which,
if committed in this state, would have been punishable as a violent
or serious felony.
(h) For purposes of this section, a violent felony is any felony
listed in subdivision (c) of Section 667.5 of the Penal Code and a
serious felony is any felony listed in subdivision (c) of Section
1192.7 of the Penal Code.
(i) Notwithstanding subdivision (e), a person shall not be denied
employment or terminated from employment solely on the basis that the
person has been convicted of a violent or serious felony if the
person has obtained a certificate of rehabilitation and pardon
pursuant to Chapter 3.5 (commencing with Section 4852.01) of Title 6
of Part 3 of the Penal Code.
(j) Notwithstanding subdivision (e), a person shall not be denied
employment or terminated from employment solely on the basis that the
person has been convicted of a serious felony that is not also a
violent felony if that person can prove to the sentencing court of
the offense in question, by clear and convincing evidence, that he or
she has been rehabilitated for the purposes of school employment for
at least one year. If the offense in question occurred outside this
state, then the person may seek a finding of rehabilitation from the
court in the county in which he or she is a resident.
(k) The commission shall make available to each private school a
listing of all credentialholders who have had final adverse action
taken against their credential. The information shall be identical to
that made available to public schools in the state. The commission
shall also send on a quarterly basis a complete and updated list of
all teachers who have had their teaching credentials revoked or
suspended, excluding teachers who have had their credentials
reinstated, or who are deceased.
( l ) The Department of Justice may charge a reasonable
fee to cover costs associated with the processing, reviewing, and
supplying of the criminal record summary as required by this section.
The fee shall not exceed the actual costs incurred by the Department
of Justice.
(m) Where reasonable access to the statewide electronic
fingerprinting network is available, the Department of Justice may
mandate electronic submission of the fingerprints and related
information required by this section.
(n) All information obtained from the Department of Justice is
confidential. Agencies handling Department of Justice information
shall ensure the following:
(1) A recipient shall not disclose its contents or provide copies
of information.
(2) Information received shall be stored in a locked file separate
from other files, and shall only be accessible to the custodian of
records.
(3) Information received shall be destroyed upon the hiring
determination in accordance with subdivision (a) of Section 708 of
Title 11 of the California Code of Regulations.
(4) Compliance with destruction, storage, dissemination, auditing,
backgrounding, and training requirements as set forth in Sections
700 to 708, inclusive, of Title 11 of the California Code of
Regulations and Section 11077 of the Penal Code governing the use and
security of criminal offender record information is the
responsibility of the entity receiving the information from the
Department of Justice.
SEC. 68. Section 45330 of the Education Code is amended to read:
45330. (a) As used in this section, a paraprofessional means a
person who assists classroom teachers and other certificated
personnel in instructing reading, writing, and mathematics. A
paraprofessional includes an instructional aide as defined in
subdivision (a) of Section 45343 and a teacher aide as described in
Section 45360.
(b) A paraprofessional shall perform only duties that, in the
judgment of the certificated personnel to whom the instructional aide
is assigned, may be performed by a person not licensed as a
classroom teacher. These duties shall not include assignment of
grades to pupils.
(c) Pursuant to the federal No Child Left Behind Act of 2001 (P.L.
107-110), a local education agency that receives funding from Title
I of that act shall ensure that every paraprofessional hired on or
after January 8, 2002, who is supported by those Title I funds and
who assists in instruction
has demonstrated at least one of the following in addition to any
other requirements under that act:
(1) Completion of at least two years of study at an institution of
higher education.
(2) Possession of an associate's degree or higher.
(3) Through a local or state assessment, that is appropriate to
the responsibilities to be assigned to the paraprofessional,
knowledge of, and ability to assist in, instructing reading, writing,
and mathematics.
(d) Except as provided in subdivision (h), a paraprofessional
hired prior to January 8, 2002, who is supported by federal funds
from Title I of the federal No Child Left Behind Act of 2001 (P.L.
107-110) shall meet the requirements of subdivision (c) no later than
January 8, 2006.
(e) No person shall be initially assigned to assist in instruction
as a paraprofessional in kindergarten and grades 1 to 12, inclusive,
unless the person has demonstrated proficiency in reading, writing,
and mathematics skills up to or exceeding that required by the
employing district for high school seniors pursuant to subdivisions
(a) and (f) of Section 51220 if the employing district educates high
school pupils.
(f) If the employing district is an elementary school district,
the paraprofessional shall demonstrate proficiency in reading,
writing, and mathematics skills up to or exceeding that required for
high school seniors pursuant to subdivisions (a) and (f) of Section
51220 in the high school district that includes all or the largest
portion of the elementary district.
(g) In establishing the educational qualifications or in
developing a proficiency exam, a school district shall align the
qualifications and proficiency exams pursuant to paragraph (3) of
subdivision (c).
(h) A paraprofessional who is supported by federal funds from
Title I of the federal No Child Left Behind Act of 2001 (P.L.
107-110) and who meets either of the following conditions is exempt
from the requirements described in paragraphs (1) to (3), inclusive,
of subdivision (c):
(1) The paraprofessional is proficient in English and a language
other than English and provides services primarily to enhance
participation of pupils by acting as a translator.
(2) The paraprofessional's duties consist solely of conducting
parental involvement activities.
(i) A paraprofessional who was hired on or before January 1, 2003,
and who has previously demonstrated, through a local assessment,
knowledge of, and an ability to assist in, instructing reading,
writing, and mathematics, is deemed to have met the proficiency exam
requirements of paragraph (3) of subdivision (c).
(j) A school district may use an existing proficiency assessment
or may develop a new proficiency assessment to meet the requirements
of paragraph (3) of subdivision (c).
(k) Pursuant to the federal No Child Left Behind Act of 2001 (P.L.
107-110), a local education agency may use a portion of the funds
from that act for staff development for paraprofessionals, to the
extent that those funds are appropriated in the annual Budget Act for
this purpose.
SEC. 69. Section 51223.3 of the Education Code is amended to read:
51223.3. (a) During the first revision of the physical education
framework that occurs on or after January 1, 2011, the state board
and the Curriculum Development and Supplemental Materials Commission
shall include self-defense instruction and safety instruction in that
framework for pupils in grades 7, 8, 9, 11, and 12.
(b) As used in this section:
(1) "Safety instruction" includes, but is not necessarily limited
to, awareness and avoidance of potentially dangerous situations.
(2) "Self-defense instruction" includes, but is not necessarily
limited to, martial arts, boxing, and other defensive techniques.
SEC. 70. Section 51913 of the Education Code is amended to read:
51913. The plan for a comprehensive health education program
shall include a statement setting forth the district's educational
program for health education on a districtwide basis. The state board
shall establish standards and criteria to be used in the evaluation
of plans submitted by school districts. The standards and criteria
for review and approval of plans by the state board shall include,
but not be limited to, provision for:
(a) Assessment of the health educational needs of the pupils.
(b) Defined and measurable program objectives and methods of
assessing the effectiveness of the program.
(c) Coordination of all district resources with the objectives of
the plan.
(d) Utilization of health care professionals representing, at the
school district's option, the varied fields of health care, including
voluntary collaborations with managed health care and health care
providers; local public and private health, safety, and community
service agencies; and other appropriate community resources in the
development and implementation of the plan.
(e) Direct participation of health care professionals
representing, at the school district's option, the varied fields of
health care, including voluntary collaborations with managed health
care, health care providers, and local public and private health,
safety, and community service agencies in the course evaluation.
(f) Staff development and in-service training.
(g) Evaluation of the program by the governing board of the school
district with the assistance of administrators, teachers, parents,
pupils, and participants in the program from the community.
SEC. 71. Section 66152 of the Education Code is amended to read:
66152. (a) The Trustees of the California State University shall
not, and the Regents of the University of California are requested
not to, allocate any student-imposed athletics fees that are
collected from registered students for purposes of supporting
intercollegiate athletics programs for any purpose that is not in
amounts that are not approved pursuant to the election approving the
fees.
(b) At the end of each academic year, the Trustees of the
California State University shall, and the Regents of the University
of California are requested to, refund to each feepaying student a
pro rata share of any portion of the student-imposed athletics fee
that is collected and is not allocated for the approved purposes
during that academic year.
SEC. 72. Section 66739.6 of the Education Code is amended to read:
66739.6. (a) In a manner that is consistent with Section 71027,
the Office of the Chancellor of the California Community Colleges
shall establish a process to facilitate the identification of courses
that satisfy lower division preparation requirements throughout the
California Community Colleges system.
(b) A description of the process established by the Office of the
Chancellor of the California Community Colleges to comply with
subdivision (a) shall be included as part of the report required by
subdivision (a) of Section 66749.
(c) It is the intent of the Legislature that community college
districts accept credits from other community college districts
toward an associate degree for transfer.
(d) This section shall become operative on July 1, 2011.
SEC. 73. Section 67365 of the Education Code is amended to read:
67365. (a) For purposes of this section, the following
definitions shall apply:
(1) "Athletic program" means any intercollegiate athletic program
from a postsecondary educational institution in the State of
California that solicits student athletes to apply, enroll, or attend
the postsecondary educational institution in order to have the
student athlete participate in intercollegiate sporting events,
contests, exhibitions, or programs at that institution.
(2) "Student athlete" means an individual who attends an
elementary, junior high, high school, or postsecondary educational
institution, and who participates in any interscholastic athletic
program in California, including an individual who receives
scholarship funds for his or her athletic participation and an
individual who does not receive scholarship funds for his or her
athletic participation.
(b) Commencing January 1, 2012, a California postsecondary
educational institution that offers athletic scholarships shall
provide all of the following information on its Internet Web site:
(1) All of the following athletic scholarship information:
(A) The most recent cost of attendance expenses as published by
the postsecondary educational institution's financial aid offices for
the academic year and for the summer year.
(B) The sum of expenses identified in subparagraph (A) that are
prohibited from inclusion in a full grant-in-aid athletic scholarship
pursuant to the National Collegiate Athletic Association's (NCAA)
rules and regulations.
(C) The policy of the postsecondary educational institution's
athletic program as to whether student athletes will receive athletic
scholarships for summer school, and, if so, whether these
scholarships are proportional to athletic scholarships received
during the regular academic school year.
(D) The average monthly full grant-in-aid athletic scholarship
payment received by student athletes who live on-campus and
off-campus, respectively, during the regular academic year and summer
school session.
(E) The following information relating to NCAA scholarship rules:
"Pursuant to NCAA rules, a verbal commitment is not binding on either
the student athlete or the institution. The National Letter of
Intent is a binding agreement between a prospective student athlete
and an institution in which the institution agrees to provide a
prospective student athlete who is admitted to the institution and is
eligible for financial aid under NCAA rules athletics aid for one
academic year in exchange for the prospective student athlete's
agreement to attend the institution for one academic year. The
National Letter of Intent must be accompanied by an institutional
financial aid agreement. If the prospective student athlete signs the
National Letter of Intent but does not enroll at that institution
for a full academic year, he or she may be subject to specific
penalties, including loss of a season of eligibility and a mandatory
residence requirement."
(2) All of the following athletic scholarship renewal information:
(A) The NCAA's policy on scholarship duration.
(B) The policy of the postsecondary educational institution's
athletic program concerning the renewal or nonrenewal of an athletic
scholarship, including circumstances in which a student athlete in
good standing suffers a temporary or permanent sports-related injury,
there is a coaching change, or a student athlete's athletic
performance is deemed to be below expectations.
(3) All of the following athletically related medical expenses
information:
(A) The NCAA's policy on whether athletic programs are mandated to
pay for athletically related medical expenses.
(B) The policy of the postsecondary educational institution's
athletic program on whether it will pay for student athletes'
athletically related medical expenses, including deductibles,
copayments, coinsurance, and whether the program will pay for
athletically related medical expenses that exceed any maximum
insurance coverage limits.
(C) The policy of the institution's athletic program concerning
who is required to pay for any required athletically related
insurance premiums for student athletes who do not have such
insurance.
(D) The duration of time the postsecondary educational institution'
s athletic program continues to pay for athletically related medical
expenses after a student athlete's athletic eligibility expires.
(E) Whether or not an athletic program's medical policy covers
expenses associated with attaining a second medical opinion for an
athletically related injury from a medical physician who is not
associated with the athletic program, and whether the athletic
program provides coverage for services received by such a physician.
(4) All of the following athletic release information:
(A) The NCAA policy on whether an athletic program may refuse to
grant an athletic release to a student athlete who wishes to transfer
to another postsecondary educational institution.
(B) The policy of the postsecondary educational institution's
athletic program concerning whether it may use any power to refuse to
grant an athletic release for a student athlete who wishes to
transfer to another postsecondary educational institution.
(c) Commencing January 1, 2012, a postsecondary educational
institution that provides, by any delivery method, written material
regarding its athletic program to a student athlete shall include a
direct link to the institution's Internet Web site, where the student
athlete shall be able to access all of the information regarding the
institution's athletic scholarship program as described in
subdivision (b).
SEC. 74. Section 68074 of the Education Code is amended to read:
68074. (a) (1) An undergraduate student who is a natural or
adopted child, stepchild, or spouse who is a dependent of a member of
the Armed Forces of the United States stationed in this state on
active duty shall be entitled to resident classification only for the
purpose of determining the amount of tuition and fees.
(2) A student seeking a graduate degree who is a natural or
adopted child, stepchild, or spouse who is a dependent of a member of
the Armed Forces of the United States stationed in this state on
active duty shall be entitled to resident classification only for the
purpose of determining the amount of tuition and fees for no more
than one academic year, and shall thereafter be subject to Article 5
(commencing with Section 68060).
(b) If that member of the Armed Forces of the United States, whose
dependent natural or adopted child, stepchild, or spouse is in
attendance at an institution, (1) is thereafter transferred on
military orders to a place outside this state where the member
continues to serve in the Armed Forces of the United States, or (2)
is thereafter retired as an active member of the Armed Forces of the
United States, the student dependent shall not lose his or her
resident classification until he or she has resided in the state the
minimum time necessary to become a resident.
SEC. 75. Section 89090 of the Education Code is amended to read:
89090. (a) The trustees, alumni associations, and auxiliary
organizations may distribute the names, addresses, and electronic
mail addresses of alumni of the California State University to a
business as described in subdivision (b), in order to accomplish any
or all of the following:
(1) To provide those persons with informational materials relating
to the university and its programs and activities.
(2) To provide those persons, the trustees, the alumni
associations, and the auxiliary organizations with commercial
opportunities that provide a benefit to those persons, or to the
trustees, alumni associations, or auxiliary organizations.
(3) To promote and support the educational mission of the
university, the trustees, the alumni associations, or the auxiliary
organizations.
(b) The disclosures authorized in subdivision (a) shall be
permitted only if all of the following requirements are met:
(1) (A) The trustees, the alumni associations, or the auxiliary
organizations have a written agreement with a business, as defined in
subdivision (a) of Section 1798.80 of the Civil Code, that maintains
control over this data that requires the business to maintain the
confidentiality of the names, addresses, and electronic mail
addresses of the alumni, that requires that the California State
University retain the right to approve or reject any purpose for
which the private information is to be used by the business, and to
review and approve the text of mailings sent to alumni pursuant to
this section, and that prohibits the business from using the
information for any purposes other than those described in
subdivision (a). The text of a mailing intended to be sent to alumni
pursuant to this section shall not be approved by the trustees, the
affected alumni association, or the affected auxiliary organization
unless and until the mailing conspicuously identifies the university,
the alumni association, or the auxiliary organization as associated
with the business described in the mailing.
(B) If an affinity partner, as defined in Section 4054.6 of the
Financial Code, sends any message to any electronic mail address
obtained pursuant to this section, that message shall include at
least both of the following:
(i) The identity of the sender of the message.
(ii) A cost-free means for the recipient to notify the sender not
to electronically transmit any further message to the recipient.
(2) The trustees, an alumni association, or an auxiliary
organization shall not disclose to, or share alumni nonpublic
personal information with, a business, as defined in paragraph (1),
unless the institution, association, or organization has clearly and
conspicuously notified the alumnus, pursuant to subdivision (c), that
the nonpublic personal information may be disclosed to the business
and that the alumnus has not directed that the nonpublic personal
information not be disclosed.
(3) The disclosure of alumni names, addresses, and electronic mail
addresses does not include the names, addresses, and electronic mail
addresses of alumni who, pursuant to subdivision (c) or in another
manner, have directed the trustees, an alumni association, or an
auxiliary organization not to disclose their names, addresses, or
electronic mail addresses.
(4) No information regarding either of the following is disclosed:
(A) The current students of the California State University.
(B) An alumnus who, as a student at a campus of the California
State University, indicated that, pursuant to the federal Family
Educational Rights and Privacy Act, he or she did not wish his or her
name, address, and electronic mail address to be disclosed.
(c) (1) The trustees, the affected alumni association, or the
affected auxiliary organization shall satisfy the notice requirements
of subdivision (b) if it uses the form set forth in paragraph (2).
The form set forth in this subdivision or a form that complies with
subparagraphs (A) to (J), inclusive, shall be provided by the
trustees, the alumni association, or the auxiliary organization to
the alumnus as required in this subdivision, and shall describe the
nature of the information the alumnus would receive should the
alumnus choose not to opt out, so that the alumnus may make a
decision and provide direction to the trustees, the alumni
association, or the auxiliary organization regarding the sharing of
his or her name, address, and electronic mail address:
(A) The form uses the title "IMPORTANT PRIVACY CHOICE" and the
header, if applicable, as follows: "Restrict Information Sharing With
Affinity Partners."
(B) The titles and headers in the form are clearly and
conspicuously displayed, and no text in the form is smaller than
10-point type.
(C) The form is a separate document, except as provided by
subparagraph (B) of paragraph (3).
(D) The choice or choices provided in the form are stated
separately, and may be selected by checking a box.
(E) The form is designed to call attention to the nature and
significance of the information in the document.
(F) The form presents information in clear and concise sentences,
paragraphs, and sections.
(G) The form uses short explanatory sentences (an average of 15 to
20 words) or bullet lists whenever possible.
(H) The form avoids multiple negatives, legal terminology, and
highly technical terminology whenever possible.
(I) The form avoids explanations that are imprecise and readily
subject to different interpretations.
(J) The form is not more than one page.
(2) The form reads as follows:
IMPORTANT PRIVACY CHOICE
You have the right to control whether we share your name, address,
and electronic mail address with our affinity partners (companies
that we partner with to offer products or services to our alumni).
Please read the following information carefully before you make your
choice below:
Your Rights
You have the following rights to restrict the sharing of your
name, address, and electronic mail address with our affinity
partners. This form does not prohibit us from sharing your
information when we are required to do so by law. This includes
sending you information about the alumni association, the university,
or other products or services.
Your Choice
Restrict Information Sharing With Affinity Partners:
Unless you say "NO," we may share your name, address, and
electronic mail address with our affinity partners. Our affinity
partners may send you offers to purchase various products or services
that we may have agreed they can offer in partnership with us.
( ) NO, please do not share my name, address, and electronic mail
address with your affinity partners.
Time Sensitive Reply
You may decide at any time that you do not want us to share your
information with our affinity partners. Your choice marked here will
remain unless you state otherwise. However, if we do not hear from
you, we may share your name, address, and electronic mail address
with our affinity partners.
If you decide that you do not want to receive information from our
partners, you may do one of the following:
(1) Call this toll-free telephone number: (xxx-xxx-xxxx).
(2) Reply electronically by contacting us through the following
Internet option: xxxxxxxxxxxx.com.
(3) Fill out, sign, and send back this form to us at the following
address (you may want to make a copy for your records).
Xxxxxxxxxxxxxxxxx
Xxxxxxxxxxxxxxxxx
Xxxxxxxxxxxxxxxxx
Name:
Address:
Signature:
(3) (A) The trustees, the affected alumni association, or the
affected auxiliary organization shall not be in violation of this
subdivision solely because they include in the form one or more brief
examples or explanations of the purpose or purposes for which, or
the context within which, names, addresses, and electronic mail
addresses will be shared, as long as those examples meet the clarity
and readability standards set forth in paragraph (1).
(B) The form shall be provided to alumni in each of the following
communications:
(i) The solicitation to students, upon their graduation, from the
trustees or the alumni association, encouraging students to join the
alumni association or to avail themselves of the services or benefits
of the association, shall include the form.
(ii) The alumni association magazine or newsletter, or both, shall
include the form on an annual or more frequent basis.
(iii) The Internet Web site for the alumni association shall
include a link to the form, which shall be located on either the
homepage of the association's Internet Web site or in the association'
s privacy policy.
(iv) A one-time mailing to all alumni on the university mailing
list as of January 1, 2006.
(v) An annual electronic communication to those alumni for whom
electronic mail addresses are available.
(4) The trustees, the affected alumni associations, or the
affected auxiliary organizations shall provide at least two
alternative cost-free means for alumni to communicate their privacy
choices, such as calling a toll-free telephone number or using
electronic means. The trustees, the alumni association, or the
auxiliary organization shall clearly and conspicuously disclose in
the form required by this subdivision the information necessary to
direct the alumnus on how to communicate his or her choice, including
the toll-free telephone or facsimile number or Internet Web site
address that may be used, if those means of communication are
offered.
(5) (A) An alumnus may direct at any time that his or her name,
address, and electronic mail address not be disclosed. The trustees,
the affected alumni association, or the affected auxiliary
organization shall comply with the direction of an alumnus concerning
the sharing of his or her name, address, and electronic mail address
within 45 days of receipt by the trustees, the alumni association,
or the auxiliary organization. When an alumnus directs that his or
her name, address, and electronic mail address not be disclosed, that
direction is in effect until otherwise stated by the alumnus.
(B) Nothing in this subdivision shall prohibit the disclosure of
the name, address, and electronic mail address of an alumnus as
allowed by other applicable provisions of state law.
(6) The trustees, or the affected alumni association or the
affected auxiliary organization, may provide a joint notice from the
trustees or from one or more alumni associations, as identified in
the notice, so long as the notice is accurate with respect to the
trustees and the alumni association or associations or auxiliary
organization or organizations participating in the joint notice.
(d) As used in this section, "auxiliary organization" has the same
meaning as set forth in Section 89901.
(e) This section shall not be construed to authorize the release
of any social security numbers.
SEC. 76. Section 92630 of the Education Code is amended to read:
92630. (a) The regents and alumni associations may distribute the
names, addresses, and electronic mail addresses of alumni of the
University of California to a business as described in subdivision
(b) in order to accomplish any or all of the following:
(1) To provide those persons with informational materials relating
to the university or college and its programs and activities.
(2) To provide those persons, the regents, and the alumni
associations with commercial opportunities that provide a benefit to
those persons, or to the regents or the alumni associations.
(3) To promote and support the educational mission of the
university, the regents, or the alumni associations.
(b) The disclosures authorized in subdivision (a) shall be
permitted only if all of the following requirements are met:
(1) (A) The regents or the alumni associations have a written
agreement with a business, as defined in subdivision (a) of Section
1798.80 of the Civil Code that maintains control over this data that
requires the business to maintain the confidentiality of the names,
addresses, and electronic mail addresses of the alumni, that requires
that the University of California retain the right to approve or
reject any purpose for which the private information is to be used by
the business and to review and approve the text of mailings sent to
alumni pursuant to this section, and that prohibits the business from
using the information for any purposes other than those described
in subdivision (a). The text
of a mailing intended to be sent to alumni pursuant to this section
shall not be approved by the regents or the affected alumni
association unless and until the mailing conspicuously identifies the
university or the alumni association as associated with the business
described in the mailing.
(B) If an affinity partner, as defined in Section 4054.6 of the
Financial Code, sends any message to any electronic mail address
obtained pursuant to this section, that message shall include at
least both of the following:
(i) The identity of the sender of the message.
(ii) A cost-free means for the recipient to notify the sender not
to electronically transmit any further message to the recipient.
(2) The regents or an alumni association shall not disclose to, or
share a consumer's nonpublic personal information with, a business,
as defined in paragraph (1), unless the institution, association, or
organization has clearly and conspicuously notified the consumer
pursuant to subdivision (c), that the nonpublic personal information
may be disclosed to the business and that the alumnus has not
directed that the nonpublic personal information not be disclosed.
(3) The disclosure of alumni names, addresses, and electronic
mail addresses does not include the names, addresses, and electronic
mail addresses of alumni who, pursuant to subdivision (c) or in
another manner, have directed the regents or an alumni association
not to disclose their names, addresses, or electronic mail addresses.
(4) No information regarding either of the following is disclosed:
(A) The current students of the University of California.
(B) An alumnus who, as a student of a campus of the University of
California, indicated that, pursuant to the federal Family
Educational Rights and Privacy Act, he or she did not wish his or her
name, address, and electronic mail address to be disclosed.
(c) (1) The regents or the affected alumni association shall
satisfy the notice requirements of subdivision (b) if it uses the
form set forth in paragraph (2). The form set forth in this
subdivision or a form that complies with subparagraphs (A) to (J),
inclusive, shall be provided by the regents or the alumni association
to the alumnus as required in this subdivision, and shall describe
the nature of the information the alumnus would receive should the
alumnus choose not to opt out, so that the alumnus may make a
decision and provide direction to the regents and the alumni
association regarding the sharing of his or her name, address, and
electronic mail address:
(A) The form uses the title "IMPORTANT PRIVACY CHOICE" and the
header, if applicable, as follows: "Restrict Information Sharing With
Affinity Partners."
(B) The titles and headers in the form are clearly and
conspicuously displayed, and no text in the form is smaller than
10-point type.
(C) The form is a separate document, except as provided by
subparagraph (B) of paragraph (3).
(D) The choice or choices provided in the form are stated
separately, and may be selected by checking a box.
(E) The form is designed to call attention to the nature and
significance of the information in the document.
(F) The form presents information in clear and concise sentences,
paragraphs, and sections.
(G) The form uses short explanatory sentences (an average of 15 to
20 words) or bullet lists whenever possible.
(H) The form avoids multiple negatives, legal terminology, and
highly technical terminology whenever possible.
(I) The form avoids explanations that are imprecise and readily
subject to different interpretations.
(J) The form is not more than one page.
(2) The form reads as follows:
IMPORTANT PRIVACY CHOICE
You have the right to control whether we share your name, address,
and electronic mail address with our affinity partners (companies
that we partner with to offer products or services to our alumni).
Please read the following information carefully before you make your
choice below:
Your Rights
You have the following rights to restrict the sharing of your
name, address, and electronic mail address with our affinity
partners. This form does not prohibit us from sharing your
information when we are required to do so by law. This includes
sending you information about the alumni association, the university,
or other products or services.
Your Choice
Restrict Information Sharing With Affinity Partners:
Unless you say "NO," we may share your name, address, and
electronic mail address with our affinity partners. Our affinity
partners may send you offers to purchase various products or services
that we may have agreed they can offer in partnership with us.
( ) NO, please do not share my name, address, and electronic mail
address with your affinity partners.
Time Sensitive Reply
You may decide at any time that you do not want us to share your
information with our partners. Your choice marked here will remain
unless you state otherwise. However, if we do not hear from you, we
may share your name, address, and electronic mail address with our
affinity partners.
If you decide that you do not want to receive information from our
partners, you may do one of the following:
(1) Call this toll-free telephone number: (xxx-xxx-xxxx).
(2) Reply electronically by contacting us through the following
Internet option: xxxxxxxxxxxx.com.
(3) Fill out, sign, and send back this form to us at the following
address (you may want to make a copy for your records).
Xxxxxxxxxxxxxxxxx
Xxxxxxxxxxxxxxxxx
Xxxxxxxxxxxxxxxxx
Name:
Address:
Signature:
(3) (A) The regents or the affected alumni association shall not
be in violation of this subdivision solely because they include in
the form one or more brief examples or explanations of the purpose or
purposes for which, or the context within which, names, addresses,
and electronic mail addresses will be shared, as long as those
examples meet the clarity and readability standards set forth in
paragraph (1).
(B) The form shall be provided to alumni in each of the following
communications:
(i) The solicitation to students, upon their graduation, from the
regents or the alumni association, encouraging students to join the
alumni association or to avail themselves of the services or benefits
of the association, shall include the form.
(ii) The alumni association magazine or newsletter, or both, shall
include the form on an annual or more frequent basis.
(iii) The Internet Web site for the alumni association shall
include a link to the form, which shall be located on either the
homepage of the association's Internet Web site or in the association'
s privacy policy.
(iv) A one-time mailing to all alumni on the university or college
mailing list as of January 1, 2006.
(v) An annual electronic communication to those alumni for whom
electronic mail addresses are available.
(4) The regents or the affected alumni associations shall provide
at least two alternative cost-free means for alumni to communicate
their privacy choice, such as calling a toll-free telephone number,
or using electronic means. The regents or the alumni association
shall clearly and conspicuously disclose in the form required by this
subdivision the information necessary to direct the alumnus on how
to communicate his or her choices, including the toll-free telephone
or facsimile number or Internet Web site address that may be used, if
those means of communication are offered.
(5) (A) An alumnus may direct at any time that his or her name,
address, and electronic mail address not be disclosed. The regents or
the affected alumni association shall comply with the direction of
an alumnus concerning the sharing of his or her name, address, and
electronic mail address within 45 days of receipt by the regents or
the alumni association. When an alumnus directs that his or her name,
address, or electronic mail address not be disclosed, that direction
is in effect until otherwise stated by the alumnus.
(B) Nothing in this subdivision shall prohibit the disclosure of
the name, address, or electronic mail address of an alumnus as
allowed by other applicable provisions of state law.
(6) The regents or the affected alumni association may provide a
joint notice from the regents or from one or more alumni
associations, as identified in the notice, so long as the notice is
accurate with respect to the regents and the alumni association or
associations participating in the joint notice.
(d) This section shall not be construed to authorize the release
of any social security numbers.
SEC. 77. Section 99221.5 of the Education Code is amended to read:
99221.5. (a) The Regents of the University of California are
requested to authorize the President of the University of California
or his or her designee to jointly develop English Language
Development Professional Institutes with the Chancellor of the
California State University, the Chancellor of the California
Community Colleges, the independent colleges and universities, and
the Superintendent, or their designees. In order to provide maximum
access, the institutes shall be offered at sites widely distributed
throughout the state, which shall include programs offered through
instructor-led, interactive online courses, in accordance with
existing state law. In order to maximize access to teachers and
administrators who may be precluded from participating in an onsite
institute due to geographical, physical, or time constraints, each
institute shall accommodate at least 5 percent of the participants
through existing state-approved online instructor-led courses,
programs, or both. The California subject matter projects, an
intersegmental, discipline-based professional development network
administered by the University of California, is requested to be the
organizing entity for the institutes and followup programs.
(b) (1) The institutes shall provide instruction for school teams
from each school participating in the program established pursuant to
this section. The institutes may provide instruction for school
teams serving English language learners in kindergarten and grades 1
to 12, inclusive. A school team shall include teachers who do not
hold crosscultural or bilingual-crosscultural certificates or their
equivalents, teachers who hold those certificates or their
equivalents, and a schoolsite administrator. The majority of the team
shall be teachers who do not hold those crosscultural certificates
or their equivalents. If the participating school team employs
instructional assistants who provide instructional services to
English language learners, the team may include these instructional
assistants.
(2) Commencing in July 2000, the English Language Professional
Development Institutes shall provide instruction to an additional
10,000 participants. These participants shall be in addition to the
5,000 participants authorized as of January 1, 2000. Commencing July
2001, and each fiscal year thereafter, the number of participants
receiving instruction through the English Language Development
Professional Institutes shall be specified in the annual Budget Act.
(3) Criteria and priority for selection of participating school
teams shall include, but not necessarily be limited to, all of the
following:
(A) Schools whose pupils' reading scores are at or below the 40th
percentile on the English language arts portion of the achievement
test authorized by Section 60640.
(B) Schools in which a high percentage of pupils score below grade
level on the English language development assessment authorized by
Section 60810, when it is developed.
(C) Schools with a high number of new, underprepared, and
noncredentialed teachers. Underprepared teachers shall be defined as
teachers who do not possess a crosscultural or
bilingual-crosscultural certificate, or their equivalents.
(D) Schools in which the enrollment of English language learners
exceeds 25 percent of the total school enrollment.
(E) Schools with a full complement of team members as described in
paragraph (1).
(4) In any fiscal year, if funding is inadequate to accommodate
the participation of all eligible school teams, first priority shall
be given to schools meeting the criteria set forth in subparagraph
(C) of paragraph (3).
(c) Each team member who satisfactorily completes an institute
authorized by this section shall receive a stipend, commensurate with
the duration of the institute, of not less than one thousand dollars
($1,000) nor more than two thousand dollars ($2,000), as determined
by the University of California.
(d) Instruction provided by the institutes shall be consistent
with state-adopted academic content standards and with the English
language development standards adopted pursuant to Section 60811.
(e) (1) Instruction at the institutes shall consist of an
intensive, sustained training period of no less than 40 hours nor
more than 80 hours during the summer or during an intersession break
or an equivalent instructor-led, online course and shall be
supplemented during the following school year with no fewer than 80
hours nor more than 120 hours of instruction and schoolsite meetings,
held on at least a monthly basis, to focus on the academic progress
of English language learners at that school.
(2) Instruction at the institutes shall be of sufficient scope,
depth, and duration to fully equip instructional personnel to offer a
comprehensive and rigorous instructional program for English
language learners and to assess pupil progress so these pupils can
meet the academic content and performance standards adopted by the
state board. The instruction shall be designed to increase the
capacity of teachers and other school personnel to provide and assess
standards-based instruction for English language learners.
(3) The instruction shall be multidisciplinary and focus on
instruction in disciplines for which the state board has adopted
academic content standards. The instruction shall also be
research-based and provide effective models of professional
development in order to ensure that instructional personnel increase
their skills, at a minimum, in all of the following:
(A) Literacy instruction and assessment for diverse pupil
populations, including instruction in the teaching of reading that is
research-based and consistent with the balanced, comprehensive
strategies required under Section 44757.
(B) English language development and second language acquisition
strategies.
(C) Specially designed instruction and assessment in English.
(D) Application of appropriate assessment instruments to assess
language proficiency and utilization of benchmarks for
reclassification of pupils from English language learners to fully
English proficient.
(E) Examination of pupil work as a basis for the alignment of
standards, instruction, and assessment.
(F) Use of appropriate instructional materials to assist English
language learners to attain academic content standards.
(G) Instructional technology and its integration into the school
curriculum for English language learners.
(H) Parent involvement and effective practices for building
partnerships with parents.
(f) A local educational agency may use its economic impact aid
funds for purposes of this section.
(g) It is the intent of the Legislature that a local educational
agency or postsecondary institution that offers an accredited program
of professional preparation consider providing partial and
proportional credit toward satisfaction of the course requirements to
an enrolled candidate who satisfactorily completes a California
English Language Development Institute program if the program has
been certified by the Commission on Teacher Credentialing as meeting
preparation standards.
(h) This section does not prohibit a team member from attending an
institute authorized by this section in more than one academic year.
(i) This section shall not apply to the University of California
unless and until the Regents of the University of California act, by
resolution, to make it applicable.
SEC. 78. Section 332.5 of the Elections Code is amended to read:
332.5. "Nominate" means the selection, at a state-conducted
primary election, of candidates who are entitled by law to
participate in the general election for that office, but does not
mean any other lawful mechanism that a political party may adopt for
the purposes of choosing the candidate who is preferred by the party
for a nonpartisan or voter-nominated office.
SEC. 79. Section 337 of the Elections Code is amended to read:
337. "Partisan office" or "party-nominated office" means any of
the following offices:
(a) President of the United States, Vice President of the United
States, and the delegates therefor.
(b) Elected member of a party committee.
SEC. 80. Section 2151 of the Elections Code is amended to read:
2151. (a) At the time of registering and of transferring
registration, each elector may disclose the name of the political
party that he or she prefers. The name of that political party shall
be stated in the affidavit of registration and the index.
(b) (1) The voter registration card shall inform the affiant that
any elector may decline to state a political party preference, but no
person shall be entitled to vote the ballot of any political party
at any primary election for President of the United States or for a
party committee unless he or she has disclosed the name of the party
that he or she prefers or unless he or she has declined to disclose a
party preference and the political party, by party rule duly noticed
to the Secretary of State, authorizes a person who has declined to
disclose a party preference to vote the ballot of that political
party. The voter registration card shall further inform the affiant
that any registered voter may vote for any candidate at a primary
election for state elective office or congressional office,
regardless of the disclosed party preference of the registrant or the
candidate seeking that office or the refusal of the registrant or
candidate to disclose a party preference. This notice shall be
printed in 12-point Times New Roman font.
(2) The voter registration card shall include a listing of all
qualified political parties. As part of that listing, the voter
registration card shall also contain an option designated "No Party
Preference." This option shall be placed at the beginning of the
listing of qualified political parties.
(c) No person shall be permitted to vote the ballot of any party
or for any delegates to the convention of any party other than the
party disclosed as preferred in his or her registration, except as
provided by Section 2152 or unless he or she has declined to disclose
a party preference and the party, by party rule duly noticed to the
Secretary of State, authorizes a person who has declined to state a
party affiliation to vote the party ballot or for delegates to the
party convention.
(d) As of the effective date of the statute that added this
subdivision, any voter who previously stated a political party
affiliation when registering to vote shall be deemed to have
disclosed that same party as his or her political party preference
unless the voter files a new affidavit of registration disclosing a
different political party preference or no political party
preference. Any voter who previously declined to state a party
affiliation shall be deemed to have chosen the "No Party Preference"
option unless the voter files a new affidavit of registration
disclosing a different political party preference.
SEC. 81. Section 3103.5 of the Elections Code is amended to read:
3103.5. (a) A special absentee voter who is temporarily living
outside of the territorial limits of the United States or the
District of Columbia, or is called for military service within the
United States on or after the final date to make application for a
vote by mail ballot, may return his or her ballot by facsimile
transmission. To be counted, the ballot returned by facsimile
transmission must be received by the voter's elections official no
later than the closing of the polls on election day and must be
accompanied by an identification envelope containing all of the
information required by Section 3011 and an oath of voter declaration
in substantially the following form:
OATH OF VOTER
I,_______, acknowledge that by returning my voted
ballot by facsimile transmission I have waived
my right to have my ballot
kept secret. Nevertheless, I understand that, as
with any vote by mail
voter, my signature, whether on this oath of
voter form or my identification
envelope, will be permanently separated from my
voted ballot to maintain
its secrecy at the outset of the tabulation
process and thereafter.
My residence address is________
(Street
____________________________.
Address) (City) (ZIP Code)
My current mailing address is________
(Street
___________________________.
Address) (City) (ZIP Code)
My e-mail address is _________________. My
facsimile
transmission
number is _________________.
I am a resident of __________ County,
State of California, and I have
not
applied, nor intend to apply, for a vote by mail
ballot from any other jurisdiction for the same
election.
I declare under penalty of perjury under the
laws of the State of California that the
foregoing is true and correct.
Dated this __________ day of ______, 20_____.
(Signature)______________________________________
voter (power of attorney cannot be
accepted)
YOUR BALLOT CANNOT BE COUNTED UNLESS YOU SIGN
THE
ABOVE OATH AND INCLUDE IT WITH YOUR BALLOT
AND
IDENTIFICATION ENVELOPE, ALL OF WHICH ARE
RETURNED
BY FACSIMILE TRANSMISSION.
(b) Notwithstanding the voter's waiver of the right to a secret
ballot, each elections official shall adopt appropriate procedures to
protect the secrecy of ballots returned by facsimile transmission.
(c) Upon receipt of a ballot returned by facsimile transmission,
the elections official shall determine the voter's eligibility to
vote by comparing the signature on the return information with the
signature on the voter's affidavit of registration. The ballot shall
be duplicated and all materials preserved according to procedures set
forth in this code.
(d) Notwithstanding subdivision (a), a special absentee voter who
is permitted to return his or her ballot by facsimile transmission
is, nonetheless, encouraged to return his or her ballot by mail or in
person if possible. A special absentee voter should return a ballot
by facsimile transmission only if doing so is necessary for the
ballot to be received before the close of polls on election day.
SEC. 82. Section 6950 of the Elections Code is amended to read:
6950. Within three days of receiving the names of delegate
candidates from the chairpersons of the steering committees, the
Secretary of State shall transmit to each elections official a
certified list, for each congressional district wholly or partially
within that county, containing the names of the delegate candidates
selected and pledged to each candidate or uncommitted delegation who
is entitled to be voted for on the ballot at the presidential
primary.
The certified list shall be in substantially the following form:
Certified List of Delegate Candidates
In the ____ Congressional District
To the County Elections Official of ____ County:
I, ____, Secretary of State, do hereby certify that the following
persons, listed beneath the name of the presidential candidate or
uncommitted delegation they are pledged to, are the delegate
candidates who will represent the voters of this congressional
district at the ____ Democratic National Convention to the extent,
based on his or her proportional share of the total votes for
president in this district, that each presidential candidate or
uncommitted delegation is entitled to delegates from this district.
List of Delegates Pledged to
Presidential
Candidates and Uncommitted
Delegations
In the _____ Congressional District
Delegates Pledged Delegates Pledged
to to
Rosaly Janice
Lever Atkinson
Deborah John Mott-
Seiler Smith
Elaine Rosa Garcia-
Ginnold Viteri
George Mann Bruce
Bolinger
Darren Chesin Mary DeLost
Delegates Pledged
Delegates Pledged to
to Unpledged
Christopher Zirkle Delegation,
James Ashford,
Chairperson
Mark Terry Abra
Reynaga
Romulo Sylvia
Lopez Cheng
Linda M. Michael
Gonzalez Ognisty
Joe Ayala Bill
Pitts
Lori Joseph Lynne Chinn
Dated at Sacramento, California, this ________
day of
________, 20__.
______Secretary of State
(seal)
SEC. 83. Section 7110 of the Elections Code is amended to read:
7110. (a) Notwithstanding Section 8148, if the Democratic
National Convention will conclude after the deadline for the
Secretary of State to deliver certificates of nomination to local
elections officials pursuant to Section 8148, the Chairperson of the
Democratic State Central Committee shall do one of the following:
(1) Notify the Secretary of State of the apparent nomination of
the Democratic candidates for President and Vice President of the
United States not less than 78 days prior to the election, if all of
the following conditions apply:
(A) A candidate for President has attained a sufficient number of
delegate votes to ensure his or her nomination at the Democratic
National Convention.
(B) The candidate described in subparagraph (A) has identified a
person who will be nominated to run for the office of Vice President.
(C) The Democratic National Convention is likely to nominate the
person who is the choice of the candidate for President in the Vice
Presidential nomination.
(2) Notify the Secretary of State of the apparent nomination of
the Democratic candidates for President and Vice President of the
United States as soon as each of these apparent nominations become
known but not less than 61 days prior to the election, if all of the
following conditions
apply:
(A) A candidate for President has attained a sufficient number of
delegate votes to ensure his or her nomination at the Democratic
National Convention.
(B) The candidate described in subparagraph (A) has identified a
person who will be nominated to run for the office of Vice President.
(C) The Democratic National Convention is likely to nominate the
person who is the choice of the candidate for President in the Vice
Presidential nomination.
(b) The Secretary of State shall prepare the certificates of
nomination required in Section 8148 to include the names of the
Democratic candidates for President and Vice President as notified by
the Chairperson of the Democratic State Central Committee.
(c) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
SEC. 84. Section 8002.5 of the Elections Code is amended to read:
8002.5. (a) A candidate for a voter-nominated office may indicate
his or her party preference, or lack of party preference, as
disclosed upon the candidate's most recent statement of registration,
upon his or her declaration of candidacy. If a candidate indicates
his or her party preference on his or her declaration of candidacy,
it shall appear on the primary and general election ballot in
conjunction with his or her name. The candidate's designated party
preference on the ballot shall not be changed between the primary and
general election. A candidate for voter-nominated office may also
choose not to have the party preference disclosed upon the candidate'
s most recent affidavit of registration indicated upon the ballot.
(b) Regardless of the disclosed party preference of the candidate
or the voter, any qualified voter may vote for any candidate for a
voter-nominated office if the voter is otherwise entitled to vote for
candidates for the office to be filled. Nothing in Section 2151,
3006, 3007.5, 3205, or 13102 shall be construed to limit the ability
of a voter to cast a primary election ballot for any candidate for a
voter-nominated office, regardless of the party preference, or lack
of party preference, designated by the candidate for inclusion upon
the ballot pursuant to this section, provided that the voter is
otherwise qualified to cast a ballot for the office at issue.
(c) A candidate designating a party preference pursuant to
subdivision (a) shall not be deemed to be the official nominee of the
party designated as preferred by the candidate. A candidate's
designation of party preference shall not be construed as an
endorsement of that candidate by the party designated. The party
preference designated by the candidate is shown for the information
of the voters only and may in no way limit the options available to
voters.
(d) All references to party preference or affiliation shall be
omitted from all forms required to be filed by a voter-nominated
candidate pursuant to this division in the same manner that such
references are omitted from forms required to be filed by nonpartisan
candidates pursuant to Section 8002, except that the declaration of
candidacy required by Section 8040 shall include space for the
candidate to list the party preference disclosed upon the candidate's
most recent affidavit of registration, in accordance with
subdivision (a).
SEC. 85. Section 8121 of the Elections Code is amended to read:
8121. (a) Not less than five days before he or she transmits the
certified list of candidates to the county elections officials, as
provided in Section 8120, the Secretary of State shall notify each
candidate for partisan office and voter-nominated office of the
names, addresses, offices, occupations, and party preferences of all
other persons who have filed for the same office.
(b) (1) Beginning not less than five days before he or she
transmits the certified list of candidates to the county elections
officials, as required by Section 8120, the Secretary of State shall
post, in a conspicuous place on his or her Internet Web site, the
party preference history of each candidate for voter-nominated office
for the preceding 10 years. The candidates' party preference history
shall be continuously posted until such time as the official canvass
is completed for the general or special election at which a
candidate is elected to the voter-nominated office sought, except
that, in the case of a candidate who participated in the primary
election and who was not nominated to participate in the general
election, the candidate's party preference history need not continue
to be posted following the completion of the official canvass for the
primary election in question.
(2) For purposes of this subdivision, "party preference history"
also refers to the candidate's history of party registration during
the 10 years preceding the effective date of this section.
(3) The Secretary of State shall also conspicuously post on the
same Internet Web site as that containing the candidates' party
preference history the notice specified by subdivision (b) of Section
9083.5.
SEC. 86. Section 10735 of the Elections Code is amended to read:
10735. (a) (1) In the case of a special election due to a
catastrophe that causes a vacancy in at least 101 offices of the
United States House of Representatives, the county elections official
shall, to the greatest extent practicable, deliver vote by mail
ballots requested pursuant to Chapter 4 (commencing with Section
3300) of Division 3 not later than 15 days after the date on which
the Speaker of the United States House of Representatives announces
the vacancy.
(2) In the case of a special election due to a catastrophe that
causes a vacancy in at least one-fourth of the total offices of the
United States House of Representatives representing California but
not a vacancy in at least 101 of the offices of the United States
House of Representatives, the county elections official shall, to the
greatest extent practicable, deliver vote by mail ballots requested
pursuant to Chapter 4 (commencing with Section 3300) of Division 3
not later than 15 days after the date on which the Governor issues
the proclamation calling the election to fill the vacancy.
(b) A vote by mail ballot cast pursuant to Chapter 4 (commencing
with Section 3300) of Division 3 in a special general election
conducted pursuant to this chapter shall be postmarked not later than
the date of the election, shall be received by the county elections
official not later than 45 days after the date on which the elections
official transmitted the ballot to the voter, and shall comply with
all other relevant requirements of this code.
(c) Notwithstanding any other provision of law, any deadlines
relating to canvassing, announcement of election results, or
certification of election results may be extended for a reasonable
period of time to facilitate the tabulating and processing of ballots
cast pursuant to Chapter 4 (commencing with Section 3300) of
Division 3. An extension of a deadline pursuant to this section must
be authorized by the Secretary of State.
SEC. 87. Section 12108 of the Elections Code is amended to read:
12108. In any case where this chapter requires the posting or
distribution of a list of the names of precinct board members, or a
portion of the list, the officers charged with the duty of posting
shall ascertain the name of the political party, if any, for which
each precinct board member has expressed a preference, as shown in
the affidavit of registration of that person. When the list is posted
or distributed, there shall be printed the name of the board member'
s party preference or an abbreviation of the name to the right of the
name, or immediately below the name, of each precinct board member.
If a precinct board member has not expressed a preference for a
political party, the words "No Party Preference" shall be printed in
place of the party name.
SEC. 88. Section 13207 of the Elections Code is amended to read:
13207. (a) There shall be printed on the ballot in parallel
columns all of the following:
(1) The respective offices.
(2) The names of candidates with sufficient blank spaces to allow
the voters to write in names not printed on the ballot.
(3) Whatever measures have been submitted to the voters.
(b) In the case of a ballot which is intended for use in a party
primary and which carries both partisan offices, voter-nominated
offices, and nonpartisan offices, a vertical solid black line shall
divide the columns containing partisan offices, on the left, from the
columns containing nonpartisan offices and voter-nominated offices,
on the right.
(c) The standard width of columns containing partisan offices,
nonpartisan offices, and voter-nominated offices, shall be three
inches, but an elections official may vary the width of these columns
up to 10 percent more or less than the three-inch standard. However,
the column containing presidential and vice presidential candidates
may be as wide as four inches.
(d) Any measures that are to be submitted to the voters shall be
printed in one or more parallel columns to the right of the columns
containing the names of candidates and shall be of sufficient width
to contain the title and summary of each measure. To the right of
each title and summary shall be printed, on separate lines, the words
"Yes" and "No."
SEC. 89. Section 13208 of the Elections Code is amended to read:
13208. (a) In the right-hand margin of each column light vertical
lines shall be printed in such a way as to create a voting square
after the name of each candidate for partisan office, voter-nominated
office, nonpartisan office (except for Justice of the Supreme Court
or justice of a court of appeal), or for chairperson of a group of
candidates for delegate to a national convention who express no
preference for a presidential candidate. In the case of Supreme Court
or appellate justices and in the case of measures submitted to the
voters, the lines shall be printed so as to create voting squares to
the right of the words "Yes" and "No." The voting squares shall be
used by the voters to express their choices as provided for in the
instruction to voters.
(b) The standard voting square shall be at least three-eighths of
an inch square but may be up to one-half inch square. Voting squares
for measures may be as tall as is required by the space occupied by
the title and summary.
SEC. 90. Section 1390 of the Evidence Code is amended to read:
1390. (a) Evidence of a statement is not made inadmissible by the
hearsay rule if the statement is offered against a party that has
engaged, or aided and abetted, in the wrongdoing that was intended
to, and did, procure the unavailability of the declarant as a
witness.
(b) (1) The party seeking to introduce a statement pursuant to
subdivision (a) shall establish, by a preponderance of the evidence,
that the elements of subdivision (a) have been met at a foundational
hearing.
(2) The hearsay evidence that is the subject of the foundational
hearing is admissible at the foundational hearing. However, a finding
that the elements of subdivision (a) have been met shall not be
based solely on the unconfronted hearsay statement of the unavailable
declarant, and shall be supported by independent corroborative
evidence.
(3) The foundational hearing shall be conducted outside the
presence of the jury. However, if the hearing is conducted after a
jury trial has begun, the judge presiding at the hearing may consider
evidence already presented to the jury in deciding whether the
elements of subdivision (a) have been met.
(4) In deciding whether or not to admit the statement, the judge
may take into account whether it is trustworthy and reliable.
(c) This section shall apply to any civil, criminal, or juvenile
case or proceeding initiated or pending as of January 1, 2011.
(d) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date. If this section is repealed, the fact that it is repealed,
should it occur, shall not be deemed to give rise to any ground for
an appeal or a postverdict challenge based on its use in a criminal
or juvenile case or proceeding before January 1, 2016.
SEC. 91. Section 4326 of the Family Code is amended to read:
4326. (a) Except as provided in subdivision (d), in a proceeding
in which a spousal support order exists or in which the court has
retained jurisdiction over a spousal support order, if a companion
child support order is in effect, the termination of child support
pursuant to subdivision (a) of Section 3901 constitutes a change of
circumstances that may be the basis for a request by either party for
modification of spousal support.
(b) A motion to modify spousal support based on the change of
circumstances described in subdivision (a) shall be filed by either
party no later than six months from the date the child support order
terminates.
(c) If a motion to modify a spousal support order pursuant to
subdivision (a) is filed, either party may request the appointment of
a vocational training counselor pursuant to Section 4331.
(d) Notwithstanding subdivision (a), termination of the child
support order does not constitute a change of circumstances under
subdivision (a) in any of the following circumstances:
(1) The child and spousal support orders are the result of a
marital settlement agreement or judgment and the marital settlement
agreement or judgment contains a provision regarding what is to occur
when the child support order terminates.
(2) The child and spousal support orders are the result of a
marital settlement agreement or judgment, which provides that the
spousal support order is nonmodifiable or that spousal support is
waived and the court's jurisdiction over spousal support has been
terminated.
(3) The court's jurisdiction over spousal support was previously
terminated.
(e) This section shall remain in effect only until January 1,
2014, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2014, deletes or extends
that date.
SEC. 92. Section 5616 of the Family Code is amended to read:
5616. (a) Every court order for child support issued on or after
January 1, 2010, and every child support agreement providing for the
payment of child support approved by a court on or after January 1,
2010, shall include a separate money judgment owed by the child
support obligor to pay a fee not to exceed 33 and 1/3 percent of the
total amount in arrears, and not to exceed 50 percent of the fee as
charged by a private child support collector pursuant to a contract
complying with this chapter and any other child support collections
costs expressly permitted by the child support order for the
collection efforts undertaken by the private child support collector.
The money judgment shall be in favor of the private child support
collector and the child support obligee, jointly, but shall not
constitute a private child support collector lien on real property
unless an abstract of judgment is recorded pursuant to subdivision
(d). Except as provided in subdivision (c), the money judgment may be
enforced by the private child support collector by any means
available to the obligee for the enforcement of the child support
order without any additional action or order by the court. Nothing in
this chapter shall be construed to grant the private child support
collector any enforcement remedies beyond those authorized by federal
or state law. Any fee collected from the obligor pursuant to a
contract complying with this chapter, shall not constitute child
support.
(b) If the child support order makes the obligor responsible for
payment of collection fees and costs, fees that are deducted by a
private child support collector may not be credited against child
support arrearages or interest owing on arrearages or any other money
owed by the obligor to the obligee.
(c) If the order for child support requires payment of collection
fees and costs by the obligor, then not later than five days after
the date that the private child support collector makes its first
collection, written notice shall be provided to the obligor of (1)
the amount of arrearages subject to collection, (2) the amount of the
collection that shall be applied to the arrearage, and (3) the
amount of the collection that shall be applied to the fees and costs
of collection. The notice shall provide that, in addition to any
other procedures available, the obligor has 30 days to file a motion
to contest the amount of collection fees and costs assessed against
the obligor.
(d) Any fees or monetary obligations resulting from the contract
between an obligee parent and a private child support collector, or
moneys owed to a private child support collector by the obligor
parent or obligee parent as a result of the private child support
collector's efforts, does not create a lien on real property, unless
an abstract of judgment is obtained from the court and recorded by
the private child support collector against the real property in the
county in which it is located, nor shall that amount be added to any
existing lien created by a recorded abstract of support or be added
to an obligation on any abstract of judgment. A private child support
collector lien shall have the force, effect, and priority of a
judgment lien.
(e) An assignment to a private child support collector is a
voluntary assignment for the purpose of collecting the domestic
support obligation as defined in Section 101 of Title 11 of the
United States Bankruptcy Code (11 U.S.C. Sec. 101 (14 A)).
SEC. 93. Section 6228 of the Family Code is amended to read:
6228. (a) State and local law enforcement agencies shall provide,
without charging a fee, one copy of all domestic violence incident
report face sheets, one copy of all domestic violence incident
reports, or both, to a victim of domestic violence, or to his or her
representative as defined in subdivision (g), upon request. For
purposes of this section, "domestic violence" has the definition
given in Section 6211.
(b) A copy of a domestic violence incident report face sheet shall
be made available during regular business hours to a victim of
domestic violence or his or her representative no later than 48 hours
after being requested by the victim or his or her representative,
unless the state or local law enforcement agency informs the victim
or his or her representative of the reasons why, for good cause, the
domestic violence incident report face sheet is not available, in
which case the domestic violence incident report face sheet shall be
made available to the victim or his or her representative no later
than five working days after the request is made.
(c) A copy of the domestic violence incident report shall be made
available during regular business hours to a victim of domestic
violence or his or her representative no later than five working days
after being requested by a victim or his or her representative,
unless the state or local law enforcement agency informs the victim
or his or her representative of the reasons why, for good cause, the
domestic violence incident report is not available, in which case the
domestic violence incident report shall be made available to the
victim or his or her representative no later than 10 working days
after the request is made.
(d) Any person requesting copies under this section shall present
state or local law enforcement with his or her identification, such
as a current, valid driver's license, a state-issued identification
card, or a passport and, if the person is a representative of the
victim and the victim is deceased, a certified copy of the death
certificate or other satisfactory evidence of the death of the victim
at the time a request is made.
(e) This section shall apply to requests for face sheets or
reports made within five years from the date of completion of the
domestic violence incident report.
(f) This section shall be known and may be cited as the Access to
Domestic Violence Reports Act of 1999.
(g) (1) For purposes of this section, if the victim is deceased, a
"representative of the victim" means any of the following:
(A) The surviving spouse.
(B) A surviving child of the decedent who has attained 18 years of
age.
(C) A domestic partner, as defined in subdivision (a) of Section
297.
(D) A surviving parent of the decedent.
(E) A surviving adult relative.
(F) The personal representative of the victim, as defined in
Section 58 of the Probate Code, if one is appointed.
(G) The public administrator if one has been appointed.
(2) For purposes of this section, if the victim is not deceased, a
"representative of the victim" means any of the following:
(A) A parent, guardian, or adult child of the victim, or an adult
sibling of a victim 12 years of age or older, who shall present to
law enforcement identification pursuant to subparagraph (A) of
paragraph (4), and if the victim is 12 years of age or older, a
signed authorization by the victim allowing that family member or
guardian to act on the victim's behalf. A guardian shall also present
to law enforcement a copy of his or her letters of guardianship
demonstrating that he or she is the appointed guardian of the victim.
(B) An attorney for the victim, who shall present to law
enforcement identification pursuant to subparagraph (A) of paragraph
(4) and written proof that he or she is the attorney for the victim.
(C) A conservator of the victim who shall present to law
enforcement identification pursuant to subparagraph (A) of paragraph
(4) and a copy of his or her letters of conservatorship demonstrating
that he or she is the appointed conservator of the victim.
(3) A representative of the victim does not include any person who
has been convicted of murder in the first degree, as defined in
Section 189 of the Penal Code, of the victim, or any person
identified in the incident report face sheet as a suspect.
(4) Domestic violence incident report face sheets may not be
provided to a representative of the victim unless both of the
following conditions are met:
(A) The representative presents his or her identification, such as
a current, valid driver's license, a state-issued identification
card, or a passport.
(B) The representative presents one of the following:
(i) If the victim is deceased, a certified copy of the death
certificate or other satisfactory evidence of the death of the victim
at the time of the request.
(ii) If the victim is alive, 12 years of age or older, and not the
subject of a conservatorship, a written authorization signed by the
victim making him or her the victim's personal representative.
SEC. 94. Section 1805 of the Financial Code is amended to read:
1805. This chapter does not apply to the following:
(a) The United States or a department, agency, or instrumentality
thereof, including any federal reserve bank and any federal home loan
bank.
(b) Money transmission by the United States Postal Service or by a
contractor on behalf of the United States Postal Service.
(c) A state, county, city, or any other governmental agency or
governmental subdivision of a state.
(d) A commercial bank or industrial bank, the deposits of which
are insured by the Federal Deposit Insurance Corporation or its
successor, or any foreign (other nation) bank that is licensed under
Article 3 (commencing with Section 1750) of Chapter 13.5 or that is
authorized under federal law to maintain a federal agency or federal
branch office in this state; a trust company licensed pursuant to
Section 401 or a national association authorized under federal law to
engage in a trust banking business; an association or federal
association, as defined in Section 5102, the deposits of which are
insured by the Federal Deposit Insurance Corporation or its
successor; and any federally or state chartered credit union the
member accounts of which are insured or guaranteed as provided in
Section 14858.
(e) Electronic funds transfer of governmental benefits for a
federal, state, county, or local governmental agency by a contractor
on behalf of the United States or a department, agency, or
instrumentality thereof, or a state or governmental subdivision,
agency, or instrumentality thereof.
(f) A board of trade designated as a contract market under the
federal Commodity Exchange Act (7 U.S.C. Sec. 1 et seq.) or a person
that, in the ordinary course of business, provides clearance and
settlement services for a board of trade to the extent of its
operation as or for such a board.
(g) A person that provides clearance or settlement services
pursuant to a registration as a clearing agency or an exemption from
registration granted under the federal securities laws to the extent
of its operation as such a provider.
(h) An operator of a payment system to the extent that it provides
processing, clearing, or settlement services, between or among
persons excluded by this section, in connection with wire transfers,
credit card transactions, debit card transactions, stored value
transactions, automated clearinghouse transfers, or similar funds
transfers, to the extent of its operation as such a provider.
(i) A person registered as a securities broker-dealer under
federal or state securities laws to the extent of its operation as
such a broker-dealer.
(j) A person listed under subdivision (d) is exempted from all the
provisions of this chapter, except Sections 1827 and 1828.
SEC. 95. Section 1822 of the Financial Code is amended to read:
1822. (a) In addition to the fees provided in Section 1818, the
commissioner shall levy an assessment each fiscal year, on a pro rata
basis, on those licensees that at any time during the preceding
calendar year engaged in the business of money transmission in
California in an amount that is, in his or her judgment, sufficient
to meet the commissioner's expenses in administering this chapter and
to provide a reasonable reserve for contingencies.
(b) For licensees that sell or issue payment instruments or stored
value, the amount of the annual assessment on any licensee shall not
exceed the sum of the products determined by multiplying (1)
increments of the aggregate face amount of payment instruments and
stored value issued or sold in California by the licensee, directly
or indirectly through agents, in the calendar year next preceding the
date of such assessment, by (2) percentages of the base assessment
rate, according to the following table:
Aggregate face amount of
Percentage
payment instruments and of base
stored value sold (in assessment
millions) rate
First $1...................... 100.0
Next $9....................... 25.0
Next $40...................... 12.5
Next $50...................... 6.0
Next $400..................... 3.0
Next $500..................... 2.0
Excess over $1,000............ 1.0
The base assessment rate shall be fixed from time to time by the
commissioner but shall not exceed one dollar ($1) per one thousand
dollars ($1,000) face amount of payment instruments and stored value
sold.
(c) For licensees receiving money for transmission, the basis of
the apportionment of the assessment among the licensees assessed
shall be the proportion that the total amount of money received for
transmission by the licensee in California bears in relation to the
total amount of money received for transmission by all licensees in
California, as shown by the reports of licensees to the commissioner
for the preceding calendar year. The assessment rate shall be fixed
from time to time by the commissioner but shall not exceed one dollar
($1) per one thousand dollars ($1,000) of money received for
transmission in California by the licensee.
(d) The commissioner shall notify each licensee by mail of the
amount levied against it. The licensee shall pay the amount levied
within 20 days. If payment is not made to the commissioner within
that time, the commissioner shall assess and collect, in addition to
the annual assessment, a penalty of 5 percent of the assessment for
each month or part thereof that the payment is delinquent.
SEC. 96. Section 14315 of the Financial Code is amended to read:
14315. (a) On taking possession of the business and assets of any
credit union as provided in this chapter, the commissioner may
proceed to liquidate the credit union in the manner provided by
Article 8 (commencing with Section 305) of Chapter 2 of Division 1,
and that article, except Sections 325, 325.1, 325.2, and 330, shall
apply as if the California credit union were a California state
commercial bank, or he or she may appoint a liquidating agent or a
liquidating committee of three members of the credit union to
liquidate the business and assets of the credit union in the manner
provided in Article 2 (commencing with Section 15250) of Chapter 9,
except that in lieu of the certificate required under Section 15252
the commissioner shall prepare and file in the office of the
Secretary of State a certificate of commencement of liquidation
proceedings upon taking possession of the business and assets, and
the commissioner or his or her authorized deputy shall countersign
the certificate referred to in Sections 15257 and 15258 whenever
liquidation is involuntary. The commissioner may, however, prepare
and file a final certificate whenever he or she retains possession of
the assets of any credit union for the purpose of liquidation. The
liquidating agent need not be a member of the credit union to be
liquidated, and may be a person, firm, or corporation as determined
by the commissioner.
(b) If the commissioner takes possession of the property and
business of a California credit union pursuant to Section 14313, the
commissioner may tender to the National Credit Union Administration
an appointment as conservator or receiver of the California credit
union. If the National Credit Union Administration accepts the
appointment, the National Credit Union Administration shall have, in
addition to any powers conferred by federal law, the powers conferred
on the commissioner pursuant to subdivision (a).
SEC. 97. Section 17345.1 of the Financial Code is amended to read:
17345.1. (a) A member or successor in interest aggrieved by any
action or decision of Fidelity Corporation may file a written request
for a hearing with the commissioner within 30 days from the action
or decision.
(b) (1) Except as provided in subdivision (c), the hearing shall
be conducted by an administrative law judge on the staff of the
Office of Administrative Hearings and the administrative law judge's
proposed decision shall be made within 120 days from the date of the
request for hearing. This time limit does not constitute a
jurisdictional deadline and may be extended by stipulation of the
parties or by order of the administrative law judge for good cause.
(2) The hearing shall be conducted in accordance with the
administrative adjudication provisions of Chapters 4.5 (commencing
with Section 11400) and Chapter 5 (commencing with Section 11500) of
Part 1 of Division 3 of Title 2 of the Government Code, except as
specified in this subdivision.
(3) The following sections of the Government Code shall not apply
to a hearing under this subdivision: Section 11503 (relating to
accusations), Section 11504 (relating to statements of issues),
Section 11505 (relating to contents of the statement to respondent),
Section 11506 (relating to the notice of defense), Section 11507
(relating to amended or supplemental accusations), and Section 11516
(relating to amendment of accusations after submission of case).
(4) The sole parties to the hearing shall be the member or
successor in interest (complainant) and Fidelity Corporation
(respondent). Third-party intervention shall not be permitted. The
disputes, claims, and interests of third parties shall not be within
the jurisdiction of the proceedings. However, nothing in this
paragraph prohibits any interested party from submitting an amicus
brief upon approval by the administrative law judge, after a duly
noticed motion demonstrating good cause.
(5) Within 10 days of receipt of the request for a hearing, the
commissioner shall schedule the hearing with the Office of
Administrative Hearings and shall serve each party by personal
service or mail with notice of the hearing, which is to include the
date, time, and place of the hearing.
(A) Within 10 days of service of the notice of hearing, the
complainant shall file with the Office of Administrative Hearings,
and serve upon the respondent by personal service or mail, a written
statement setting forth the matters to be considered at the hearing
in sufficient detail to permit the respondent to prepare and present
its response. The statement shall contain the following:
(i) A brief statement of the facts that give rise to the hearing.
(ii) A statement of the issues to be considered at the hearing
including relevant statutes and rules. If the statement includes
issues not raised in the proof of loss claim or considered by
respondent in its decision, respondent may move for abatement of the
proceedings for consideration of those issues by respondent. The
administrative law judge may abate the proceedings for a period not
to exceed 60 days from the issuance of the order to abate. The
administrative law judge may extend the time period for good cause
upon motion by respondent or by stipulation of the parties. If
respondent has not issued a revised decision within the period of
abatement, the administrative law judge shall reset the matter for
hearing.
(B) Within 20 days of service of the statement, respondent may
file with the Office of Administrative Hearings, and serve upon the
complainant by personal service or mail a written response to the
statement.
(C) The statement of issues and response may be amended upon
completion of discovery, except that notice of the amendment shall be
no later than 30 days before the date set for hearing.
(6) Where the statement of issues includes a claim for a loss of
trust obligations that has been denied by respondent, complainant
shall bear the burden of establishing by a preponderance of the
evidence that a loss as defined in Section 17304 has occurred and
that respondent is required to pay the claim in accordance with this
chapter. Each legal issue shall be adjudicated in the proposed
decision and the commissioner's decision, except for any issue either
withdrawn or waived by complainant or respondent, upon the
submission of the case after hearing.
(7) Any party may move for a judgment on the pleadings or summary
judgment, as a dispositive motion, pursuant to the Rules of Procedure
of the Office of Administrative Hearings. The evidence in support of
and standards for deciding the motions shall be as set forth in the
Code of Civil Procedure. If the administrative law judge denies the
motion, the matter shall be heard on the merits by the administrative
law judge. If the administrative law judge grants the motion, the
order shall be in the form of a proposed decision to the commissioner
pursuant to subdivision (b) of Section 11517 of the Government Code.
(8) Nothing in this section shall be construed to require the
losing party to pay the other party's costs and expenses, including
attorney's fees.
(9) If the statement of issues is abated and respondent issues a
revised decision, the parties may amend their pleadings within a
reasonable period of time, as ordered by the administrative law
judge.
(c) (1) If a request for hearing includes a claim for loss of
trust obligations that has been denied by Fidelity Corporation and
the claim involves the factors described in paragraph (3), the
commissioner, upon the request of Fidelity Corporation and as
provided herein, shall abstain from proceeding with a hearing. The
matter may be adjudicated in a court of competent jurisdiction upon
the filing of an action by the member or successor in interest.
Fidelity Corporation shall notify the commissioner, in writing, of
the grounds for abstention of jurisdiction within five days of the
filing of the request for a hearing by the member or successor in
interest. The commissioner shall rule on the abstention of
jurisdiction request within 10 days of the notice and the ruling
shall be considered final. In making a determination on the request
for abstention, the commissioner may examine and investigate all
facts connected with the request for abstention and may request
information from any person as deemed necessary.
(2) If the commissioner denies the request for abstention of
jurisdiction, the hearing shall be conducted in accordance with
subdivision (b), except that compliance by the commissioner with
paragraph (5) of subdivision (b) shall be within five days of the
ruling denying the abstention request.
(3) The factors requiring abstention of jurisdiction by the
commissioner are as follows:
(A) The claim for a loss is based upon an alleged escrow
transaction in which an officer, director, trustee, stockholder,
manager, or employee of the member was a principal to the
transaction.
(B) The claim involves (i) the need to determine conflicting
claims or disputes to real property and (ii) there is a potential for
double recovery by any principal to an escrow.
(4) The commissioner shall abstain if determination of the claim
will cause some escrows to have preferable or favorable treatment
over the other escrows held by the member or successor in interest.
SEC. 98. Section 22349.1 of the Financial Code is amended to read:
22349.1. The commissioner shall not approve any licensee to
participate in the program unless that licensee has been accepted as
a data furnisher by at least one of the national credit reporting
agencies for the purpose of reporting borrower payment performance.
SEC. 99. Section 22352 of the Financial Code is amended to read:
22352. (a) Any loan made pursuant to this section shall comply
with the following requirements:
(1) The loan shall be unsecured.
(2) Interest on the loan accrues on a simple-interest basis,
through the application of a daily periodic rate to the actual unpaid
principal balance each day.
(3) The licensee discloses the following to the consumer in
writing at the time of application:
(A) The annual percentage rate, the periodic payment amount, and
the total finance charge, calculated as required by Federal Reserve
Board Regulation Z, as to a loan of an amount and term substantially
similar to the loan applied for by the consumer.
(B) That the consumer shall have the right to rescind the loan by
notifying the licensee of the consumer's intent to rescind the loan
and returning the principal advanced by the end of the business day
following the date of the consummation of the loan.
(4) The loan has a minimum principal amount upon origination of
two hundred fifty dollars ($250) and a term of not less than the
following:
(A) Ninety days for loans whose principal balance upon origination
is less than five hundred dollars ($500).
(B) One hundred twenty days for loans whose principal balance upon
origination is at least five hundred dollars ($500), but is less
than one thousand five hundred dollars ($1,500).
(C) One hundred eighty days for loans whose principal balance upon
origination is at least one thousand five hundred dollars ($1,500).
(5) The licensee complies with the requirements of any applicable
state or federal law.
(b) As an alternative to the charges authorized by Section 22303
or 22304, a licensee approved by the commissioner to participate in
the program may contract for and receive charges for a loan made
pursuant to this section at a rate not exceeding the sum of the
following:
(1) Two and one-half percent per month on that part of the unpaid
principal balance of the loan up to and including, but not in excess
of, one thousand dollars ($1,000).
(2) Two and one-sixth percent per month on that portion of the
unpaid principal balance of the loan in excess of one thousand
dollars ($1,000).
(c) Notwithstanding subdivision (b), a licensee approved by the
commissioner to participate in the program shall reduce the rate on
each subsequent loan to the same borrower by a minimum of one-twelfth
of 1 percent per month, if all of the following conditions are met:
(1) The subsequent loan is originated no more than 180 days after
the prior loan is fully repaid.
(2) The borrower was never more than 15 days delinquent on the
prior loan.
(3) The prior loan was outstanding for at least one-half of its
original term prior to its repayment.
(d) As to any loan made under this section, a licensee approved by
the commissioner to participate in the program may contract for and
receive an administrative fee, which shall be fully earned
immediately upon making the loan, in an amount not in excess of
either 5 percent of the principal amount, exclusive of the
administrative fee, or sixty-five dollars ($65), whichever is less. A
licensee shall not charge the same borrower more than one
administrative fee in any six-month period. An administrative fee
shall not be contracted for or received in connection with the
refinancing of a loan unless at least one year has elapsed since the
receipt of a previous administrative fee paid by the borrower. Only
one administrative fee shall be contracted for or received until the
loan has been repaid in full. Section 22305 shall not apply to any
loan made under this section.
(e) Notwithstanding subdivision (a) of Section 22320.5, a licensee
approved by the commissioner to participate in the program may
contract for and receive a delinquency fee that is one of the
following amounts:
(1) For a period in default of not less than seven days, an amount
not in excess of twelve dollars ($12).
(2) For a period in default of not less than 14 days, an amount
not in excess of eighteen dollars ($18).
(f) If a licensee opts to impose a delinquency fee, it shall use
the delinquency fee schedule described in subdivision (e), subject to
all of the following:
(1) No more than one delinquency fee may be imposed per delinquent
payment.
(2) No more than two delinquency fees may be imposed during any
period of 30 consecutive days.
(3) No delinquency fee may be imposed on a borrower who is 180
days or more past due if that fee would result in the sum of the
borrower's remaining unpaid principal balance, accrued interest, and
delinquency fees exceeding 180 percent of the original principal
amount of the borrower's loan.
(4) The licensee or any of its wholly owned subsidiaries shall
attempt to collect a delinquent payment for a period of at least 30
days following the start of the delinquency before selling or
assigning that unpaid debt to an independent party for collection.
(g) The following shall apply to a loan made by a licensee
pursuant to this section:
(1) Prior to disbursement of loan proceeds, the licensee shall
either (A) offer a credit education program or seminar to the
borrower that has been previously reviewed and approved by the
commissioner for use in complying with this section; or (B) invite
the borrower to a credit education program or seminar offered by an
independent third party that has been previously reviewed and
approved by the commissioner for use in complying with this section.
The borrower shall not be required to participate in either of these
education programs or seminars.
(2) The licensee shall report each borrower's payment performance
to at least one of the national credit reporting agencies in the
United States.
(3) (A) The licensee shall underwrite each loan to determine a
borrower's ability and willingness to repay the loan pursuant to the
loan terms, and shall not make a loan if it determines, through its
underwriting, that the borrower's total monthly debt service
payments, at the time of origination, including the loan for which
the borrower is being considered, and across all outstanding forms of
credit that can be independently verified by the licensee, exceed 50
percent of the borrower's gross monthly income.
(B) (i) The licensee shall seek information and documentation
pertaining to all of a borrower's outstanding debt obligations during
the loan application and underwriting process, including loans that
are self reported by the borrower but not available through
independent verification. The licensee shall verify that information
using a credit report from at least one of the three major credit
bureaus or through other available electronic debt verification
services that provide reliable evidence of a borrower's outstanding
debt obligations.
(ii) Notwithstanding the verification requirement in subparagraph
(A), the licensee shall request from the borrower and include all
information obtained from the borrower regarding outstanding deferred
deposit transactions in the calculation of the borrower's
outstanding debt obligations.
(iii) The licensee shall not be required to consider, for purposes
of debt-to-income ratio evaluation, loans from friends or family.
(C) The licensee shall also verify the borrower's income that the
licensee relies on to determine the borrower's debt-to-income ratio
using information from either of the following:
(i) Electronic means or services that provide reliable evidence of
the borrower's actual income.
(ii) Internal Revenue Service Form W-2, tax returns, payroll
receipts, bank statements, or other third-party documents that
provide reasonably reliable evidence of the borrower's actual income.
(h) (1) Notwithstanding Sections 22311 to 22315, inclusive, no
person, in connection with, or incidental to, the making of any loan
made pursuant to this article, may offer, sell, or require the
borrower to contract for "credit insurance" as defined in paragraph
(1) of subdivision (a) of Section 22314 or insurance on tangible
personal or real property of the type specified in Section 22313.
(2) Notwithstanding Sections 22311 to 22315, inclusive, no
licensee, finder, or any other person that participates in the
origination of a loan under this article shall refer a borrower to
any other person for the purchase of "credit insurance" as defined in
paragraph (1) of subdivision (a) of Section 22314 or insurance on
tangible personal or real property of the type specified in Section
22313.
(i) (1) No licensee shall require, as a condition of providing the
loan, that the borrower waive any right, penalty, remedy, forum, or
procedure provided for in any law applicable to the loan, including
the right to file and pursue a civil action or file a complaint with
or otherwise communicate with the commissioner or any court or other
public entity, or that the borrower agree to resolve disputes in a
jurisdiction outside of California or to the application of laws
other than those of California, as provided by law. Any such waiver
by a borrower must be knowing, voluntary, and in writing, and
expressly not made a condition of doing business with the licensee.
Any such waiver that is required as a condition of doing business
with the licensee shall be presumed involuntary, unconscionable,
against public policy, and unenforceable. The licensee has the burden
of proving that a waiver of any rights, penalties, forums, or
procedures was knowing, voluntary, and not made a condition of the
contract with the borrower.
(2) No licensee shall refuse to do business with or discriminate
against a borrower or applicant on the basis that the borrower or
applicant refuses to waive any right, penalty, remedy, forum, or
procedure, including the right to file and pursue a civil action or
complaint with, or otherwise notify, the commissioner or any court or
other public entity. The exercise of a person's right to refuse to
waive any right, penalty, remedy, forum, or procedure, including a
rejection of a contract requiring a waiver, shall not affect any
otherwise legal terms of a contract or an agreement.
(3) This subdivision shall not apply to any agreement to waive any
right, penalty, remedy, forum, or procedure, including any agreement
to arbitrate a claim or dispute, after a claim or dispute has
arisen. Nothing in this subdivision shall affect the enforceability
or validity of any other provision of the contract.
(j) This section shall not apply to any loan of a bona fide
principal amount of two thousand five hundred dollars ($2,500) or
more as determined in accordance with Section 22251. For purposes of
this subdivision, "bona fide principal amount" shall be determined in
accordance with Section 22251.
SEC. 100. Section 22355 of the Financial Code is amended to read:
22355. (a) At the time the finder receives or processes an
application for a program loan, the finder shall provide the
following statement to the applicant, on behalf of the licensee, in
no smaller than 10-point type, and shall ask the applicant to
acknowledge receipt of the statement in writing:
"Your loan application has been referred to us by Name of Finder].
We may pay a fee to Name of Finder] for the successful referral of
your loan application. IF YOU ARE APPROVED FOR THE LOAN, NAME OF
LICENSEE] WILL BECOME YOUR LENDER, AND YOU WILL BE BUILDING A
RELATIONSHIP WITH NAME OF LICENSEE]. If you wish to report a
complaint about Name of Finder] or Name of Licensee] regarding this
loan transaction, you may contact the California Department of
Corporations at 1-866-ASK-CORP (1-866-275-2677), or file your
complaint online at www.corp.ca.gov."
(b) If the loan is consummated, the licensee shall mail or give to
the borrower a copy of the disclosure notice within two weeks of the
date of the loan consummation.
SEC. 101. Section 2250 of the Fish and Game Code is amended to
read:
2250. It is unlawful to import or transport any live muskrat
(genus Ondatra) into, or possess any live muskrat in, California
except under permit issued by the department pursuant to Section
2118, or as otherwise provided by law. A county agricultural
commissioner, fish and game deputy, or state plant quarantine officer
may enter upon lands or waters west of the crest of the
Cascade-Sierra Nevada mountain system, and west and south of the
Tehachapi, Liebre, San Gabriel, San Bernardino, San Jacinto,
Cuyamaca, and connected mountains south to the international
boundary, or in any watershed tributary to, or draining into, the
Pacific Ocean to remove or destroy the muskrats.
SEC. 102. Section 2942 of the Fish and Game Code is amended to
read:
2942. (a) There is in the Natural Resources Agency the Salton Sea
Restoration Council, which is established as a state agency to
oversee the restoration of the Salton Sea, including all of the
following:
(1) Early start habitat demonstration projects.
(2) Biological investigations relating to the restoration of the
Salton Sea.
(3) Investigations of water quality, sedimentation, and inflows
relating to the restoration of the Salton Sea.
(4) Air quality investigations relating to the restoration of the
Salton Sea.
(5) Geotechnical investigations relating to the restoration of the
Salton Sea.
(6) Coordination with the Imperial Irrigation District, the
Coachella Valley Water District, the Torres Martinez Desert Cahuilla
Indian Tribe, and other landowners in the vicinity of the Salton Sea.
(7) Investigations of access and utility agreements relating to
the restoration of the Salton Sea.
(b) For the purpose of developing a restoration plan pursuant to
this section, the council shall evaluate Salton Sea restoration
plans, including, but not limited to, the alternatives described in
Chapter 3 of Volume I of the Salton Sea Ecosystem Restoration Program
Draft Programmatic Environmental Impact Report, dated October 2006,
and the program components of those alternatives.
(c) The council shall report to the Governor and the Legislature
by June 30, 2013, with a recommended Salton Sea restoration plan. In
recommending a restoration plan, the council shall consider the
impacts of the restoration plan on air quality, fish and wildlife
habitat, water quality, and the technical and financial feasibility
of the restoration plan.
(d) In conducting its duties pursuant to this section, the council
shall comply with both of the following requirements:
(1) The council shall act consistent with the purposes of the
Salton Sea Restoration Fund specified in Section 2932.
(2) The council shall work collaboratively with local governments
and interested parties.
SEC. 103. Section 6612 of the Fish and Game Code is amended to
read:
6612. (a) Upon receipt of an application to partially remove an
offshore oil structure pursuant to this chapter, the department shall
determine whether the application is complete and includes all
information needed by the department.
(b) (1) Upon a determination that the application is complete, the
applicant shall provide surety bonds executed by an admitted surety
insurer, irrevocable letters of credit, trust funds, or other forms
of financial assurances, determined by the department to be available
and adequate, to ensure that the applicant will provide sufficient
funds to the department,
council, commission, and conservancy to carry out all required
activities pursuant to this article, including all of the following:
(A) Environmental review of the proposed project pursuant to
Section 6604.
(B) A determination of net environmental benefit pursuant to
Section 6613.
(C) A determination of cost savings pursuant to Section 6614.
(D) Preparation of a management plan for the structure pursuant to
Section 6615.
(E) Implementation of the management plan and ongoing maintenance
of the structure after the department takes title pursuant to Section
6620.
(F) Development of an advisory spending plan pursuant to Section
6621.
(G) Other activities undertaken to meet the requirements of this
article, including the costs of reviewing applications for
completeness, and reviewing, approving, and permitting the proposed
project, which includes the costs of determining whether the project
meets the requirements of all applicable laws and regulations and the
costs of environmental assessment and review.
(2) The department shall consult with the council, commission, and
conservancy in determining appropriate funding for activities to be
carried out by those agencies.
(3) The funds provided pursuant to paragraph (1) shall not be
considered in the calculation of cost savings pursuant to Section
6614 or the apportionment of cost savings pursuant to Section 6618.
(c) The first person to file an application on and after January
1, 2011, to partially remove an offshore oil structure pursuant to
this chapter, shall pay, in addition to all costs identified under
subdivision (b), the startup costs incurred by the department or the
commission to implement this chapter, including the costs to develop
and adopt regulations pursuant to this chapter. This payment of
startup costs shall be reimbursed by the department as provided in
paragraph (3) of subdivision (c) of Section 6618.
(d) As soon as feasible after reaching the agreement pursuant to
subdivision (b), the lead agency shall begin the environmental review
of the proposed project as required pursuant to Section 6604.
SEC. 104. Section 481 of the Food and Agricultural Code is amended
to read:
481. (a) The department may, with the approval of the Governor,
cooperate with officials of the United States Department of
Agriculture or with officials of other states in the conduct of pest
or disease investigations outside of this state in the interest of
the protection of the agricultural industry of this state from any
pest or disease which is not generally distributed in this state.
(b) The department may enter into cooperative agreements with the
United States Department of Agriculture to carry out a program for
the prevention and control of avian influenza. The department shall,
in accordance with the Administrative Procedure Act, adopt any
regulations necessary to implement program requirements set out in
the agreement.
SEC. 105. Section 11504 of the Food and Agricultural Code is
amended to read:
11504. Prior to the adoption of regulations by a commissioner, a
notice of intention to adopt regulations shall be published in the
county, pursuant to Section 6061 of the Government Code, at least 10
days in advance of the time the regulations are to be adopted,
amended, or repealed.
SEC. 106. Section 13184 of the Food and Agricultural Code is
amended to read:
13184. (a) In implementing Section 13183, the department shall
establish and maintain an Internet Web site as a comprehensive
directory of resources describing and promoting least-hazardous
practices at schoolsites. The Web site shall also make available an
electronic copy of the model program guidebook, its updates, and
supporting documentation. The department shall also establish and
maintain on its Web site an easily identified link that provides the
public with all appropriate information regarding the public health
and environmental impacts of pesticide active ingredients and ways to
reduce the use of pesticides at school facilities.
(b) It is the intent of the Legislature that the state assist
school districts to ensure that compliance with Section 17612 of the
Education Code is simple and inexpensive. The department shall
include in its Web site Internet-based links that allow schools to
properly identify and list the active ingredients of pesticide
products they expect to be applied during the upcoming year. Use of
these links by schools is not mandatory but shall be made available
to all schools at no cost. The department shall ensure that adequate
resources are available to respond to inquiries from school
facilities or districts regarding the use of integrated pest
management practices.
SEC. 107. Section 79691 of the Food and Agricultural Code is
amended to read:
79691. A civil penalty not exceeding one thousand dollars
($1,000) may be levied by the commission upon a person who willfully
does any of the following:
(a) Renders or furnishes a false report, statement, or record
required by the commission.
(b) Fails to render or furnish a report, statement, or record
required by the commission.
(c) Conducts himself or herself in any way to affect the shipment
of pollination units, bees, honey, or hive products in order to avoid
payment of assessments.
(d) Secretes, destroys, or alters records required to be kept by
this chapter.
SEC. 108. Section 79702 of the Food and Agricultural Code is
amended to read:
79702. Following a hearing, and favorable referendum if required,
the process specified in Section 79701 shall be conducted by the
secretary every fifth year thereafter, between January 1 and December
31, unless a referendum is conducted as the result of a petition
pursuant to Section 79703.
SEC. 109. Section 831.7 of the Government Code is amended to read:
831.7. (a) Neither a public entity nor a public employee is
liable to any person who participates in a hazardous recreational
activity, including any person who assists the participant, or to any
spectator who knew or reasonably should have known that the
hazardous recreational activity created a substantial risk of injury
to himself or herself and was voluntarily in the place of risk, or
having the ability to do so failed to leave, for any damage or injury
to property or persons arising out of that hazardous recreational
activity.
(b) As used in this section, "hazardous recreational activity"
means a recreational activity conducted on property of a public
entity that creates a substantial, as distinguished from a minor,
trivial, or insignificant, risk of injury to a participant or a
spectator.
"Hazardous recreational activity" also means:
(1) Water contact activities, except diving, in places where, or
at a time when, lifeguards are not provided and reasonable warning
thereof has been given, or the injured party should reasonably have
known that there was no lifeguard provided at the time.
(2) Any form of diving into water from other than a diving board
or diving platform, or at any place or from any structure where
diving is prohibited and reasonable warning thereof has been given.
(3) Animal riding, including equestrian competition, archery,
bicycle racing or jumping, mountain bicycling, boating, cross-country
and downhill skiing, hang gliding, kayaking, motorized vehicle
racing, off-road motorcycling or four-wheel driving of any kind,
orienteering, pistol and rifle shooting, rock climbing, rocketeering,
rodeo, self-contained underwater breathing apparatus (SCUBA) diving,
spelunking, skydiving, sport parachuting, paragliding, body contact
sports, surfing, trampolining, tree climbing, tree rope swinging,
waterskiing, white water rafting, and windsurfing. For the purposes
of this subdivision, "mountain bicycling" does not include riding a
bicycle on paved pathways, roadways, or sidewalks. For the purpose of
this paragraph, "body contact sports" means sports in which it is
reasonably foreseeable that there will be rough bodily contact with
one or more participants.
(c) (1) Notwithstanding subdivision (a), this section does not
limit liability that would otherwise exist for any of the following:
(A) Failure of the public entity or employee to guard or warn of a
known dangerous condition or of another hazardous recreational
activity known to the public entity or employee that is not
reasonably assumed by the participant as inherently a part of the
hazardous recreational activity out of which the damage or injury
arose.
(B) Damage or injury suffered in any case where permission to
participate in the hazardous recreational activity was granted for a
specific fee. For the purpose of this subparagraph, "specific fee"
does not include a fee or consideration charged for a general purpose
such as a general park admission charge, a vehicle entry or parking
fee, or an administrative or group use application or permit fee, as
distinguished from a specific fee charged for participation in the
specific hazardous recreational activity out of which the damage or
injury arose.
(C) Injury suffered to the extent proximately caused by the
negligent failure of the public entity or public employee to properly
construct or maintain in good repair any structure, recreational
equipment or machinery, or substantial work of improvement utilized
in the hazardous recreational activity out of which the damage or
injury arose.
(D) Damage or injury suffered in any case where the public entity
or employee recklessly or with gross negligence promoted the
participation in or observance of a hazardous recreational activity.
For purposes of this subparagraph, promotional literature or a public
announcement or advertisement that merely describes the available
facilities and services on the property does not in itself constitute
a reckless or grossly negligent promotion.
(E) An act of gross negligence by a public entity or a public
employee that is the proximate cause of the injury.
(2) Nothing in this subdivision creates a duty of care or basis of
liability for personal injury or damage to personal property.
(d) Nothing in this section limits the liability of an independent
concessionaire, or any person or organization other than the public
entity, whether or not the person or organization has a contractual
relationship with the public entity to use the public property, for
injuries or damages suffered in any case as a result of the operation
of a hazardous recreational activity on public property by the
concessionaire, person, or organization.
SEC. 110. Section 901 of the Government Code is amended to read:
901. For the purpose of computing the time limits prescribed by
Sections 911.2, 911.4, 945.6, and 946.6, the date of the accrual of a
cause of action to which a claim relates is the date upon which the
cause of action would be deemed to have accrued within the meaning of
the statute of limitations which would be applicable thereto if
there were no requirement that a claim be presented to and be acted
upon by the public entity before an action could be commenced
thereon. However, the date upon which a cause of action for equitable
indemnity or partial equitable indemnity accrues shall be the date
upon which a defendant is served with the complaint giving rise to
the defendant's claim for equitable indemnity or partial equitable
indemnity against the public entity.
SEC. 111. Section 912.5 of the Government Code is amended to read:
912.5. (a) The Trustees of the California State University shall
act on a claim against the California State University in accordance
with the procedure that the Trustees of the California State
University provide by rule.
(b) Nothing in this section authorizes the Trustees of the
California State University to adopt any rule that is inconsistent
with this part.
(c) If a claim for money or damages against the California State
University is mistakenly presented to the Victim Compensation and
Government Claims Board, the Victim Compensation and Government
Claims Board shall immediately notify the claimant of the error and
shall include information on proper filing of the claim.
SEC. 112. Section 935.9 of the Government Code is amended to read:
935.9. The Trustees of the California State University may adjust
and pay any claim arising out of the activities of the California
State University. The Trustees of the California State University
may, by rule, authorize the Office of Risk Management at the Office
of the Chancellor of the California State University to perform the
functions of the Trustees of the California State University under
this section.
SEC. 113. Section 3254.5 of the Government Code is amended to
read:
3254.5. (a) An administrative appeal instituted by a firefighter
under this chapter shall be conducted in conformance with rules and
procedures adopted by the employing department or licensing or
certifying agency that are in accordance with Chapter 5 (commencing
with Section 11500) of Part 1 of Division 3 of Title 2.
(b) Notwithstanding subdivision (a), if the employing department
is subject to a memorandum of understanding that provides for binding
arbitration of administrative appeals, the arbitrator or arbitration
panel shall serve as the hearing officer in accordance with Chapter
5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2
and, notwithstanding any other provision, that hearing officer's
decision shall be binding. However, a memorandum of understanding
negotiated with an employing agency shall not control the process for
administrative appeals instituted with licensing or certifying
agencies. Any administrative appeal instituted with licensing or
certifying agencies shall adhere to the requirements prescribed in
subdivision (a).
SEC. 114. Section 6585 of the Government Code is amended to read:
6585. The definitions in this section shall govern the
construction and interpretation of this article.
(a) (1) Except as provided in paragraphs (2) and (3), "authority"
means an entity created pursuant to Article 1 (commencing with
Section 6500).
(2) In the case of an authority issuing bonds pursuant to this
chapter in which VLF receivables, as defined in subdivision (j), are
pledged to the payment of the bonds, other than VLF receivables so
pledged for a county of the first class, an authority shall consist
of not fewer than 100 local agencies.
(3) In the case of an authority issuing bonds pursuant to this
chapter in which Proposition 1A receivables, as defined in
subdivision (g), are pledged to the payment of the bonds, an
authority shall consist of not fewer than 250 local agencies.
(b) "Bond purchase agreement" means a contractual agreement
executed between the authority and the local agency whereby the
authority agrees to purchase bonds of the local agency.
(c) "Bonds" means all of the following:
(1) Bonds, including, but not limited to, assessment bonds,
redevelopment agency bonds, government-issued mortgage bonds, and
industrial development bonds.
(2) Notes, including bond, revenue, tax, or grant anticipation
notes.
(3) Commercial paper, floating rate and variable maturity
securities, and any other evidences of indebtedness.
(4) Certificates of participation or lease-purchase agreements.
(d) "Cost," as applied to a public capital improvement or portion
thereof financed under this part, means all of the following:
(1) All or any part of the cost of construction, renovation, and
acquisition of all lands, structures, real or personal property,
rights, rights-of-way, franchises, easements, and interests acquired
or used for a public capital improvement.
(2) The cost of demolishing or removing any buildings or
structures on land so acquired, including the cost of acquiring any
lands to which the buildings or structures may be moved, and the cost
of all machinery and equipment.
(3) Finance charges.
(4) Interest prior to, during, and for a period after, completion
of that construction, as determined by the authority.
(5) Provisions for working capital, reserves for principal and
interest and for extensions, enlargements, additions, replacements,
renovations, and improvements.
(6) The cost of architectural, engineering, financial and legal
services, plans, specifications, estimates, and administrative
expenses.
(7) Other expenses necessary or incident to determining the
feasibility of constructing any project or incident to the
construction or acquisition or financing of any public capital
improvement.
(e) "Legislative body" means the governing body of a local agency.
(f) "Local agency" means a party to the agreement creating the
authority, or an agency or subdivision of that party, sponsoring a
project of public capital improvements, or any city, county, city and
county, authority, district, or public corporation of this state.
(g) "Proposition 1A receivable" means the right to payment of
moneys due or to become due to a local agency, pursuant to clause
(iii) of subparagraph (B) of paragraph (1) of subdivision (a) of
Section 25.5 of Article XIII of the California Constitution and
Section 100.06 of the Revenue and Taxation Code.
(h) "Public capital improvements" means one or more projects
specified in Section 6546.
(i) "Revenue" means income and receipts of the authority from any
of the following:
(1) A bond purchase agreement.
(2) Bonds acquired by the authority.
(3) Loans installment sale agreements, and other revenue-producing
agreements entered into by the authority.
(4) Projects financed by the authority.
(5) Grants and other sources of income.
(6) VLF receivables purchased pursuant to Section 6588.5.
(7) Proposition 1A receivables purchased pursuant to Section
6588.6.
(8) Interest or other income from any investment of any money in
any fund or account established for the payment of principal or
interest or premiums on bonds.
(j) "VLF receivable" means the right to payment of moneys due or
to become due to a local agency out of funds payable in connection
with vehicle license fees to a local agency pursuant to Section
10754.11 of the Revenue and Taxation Code.
(k) "Working capital" means money to be used by, or on behalf of,
a local agency for any purpose for which a local agency may borrow
money pursuant to Section 53852, or for any purpose for which a VLF
receivable or a Proposition 1A receivable sold to an authority could
have been used by the local agency.
SEC. 115. Section 7480 of the Government Code, as amended by
Section 30 of Chapter 697 of the Statutes of 2010, is repealed.
SEC. 116. Section 7513.87 of the Government Code is amended to
read:
7513.87. (a) A person acting as a placement agent in connection
with any potential system investment made by a local public
retirement system shall file any applicable reports with a local
government agency that requires lobbyists to register and file
reports and shall comply with any applicable requirements imposed by
a local government agency pursuant to Section 81013.
(b) This section does not apply to an individual who is an
employee, officer, director, equityholder, partner, member, or
trustee of an external manager and who spends one-third or more of
his or her time, during a calendar year, managing the securities or
assets owned, controlled, invested, or held by the external manager.
SEC. 117. Section 7514 of the Government Code, as added by Section
1 of Chapter 220 of the Statutes of 1984, is amended and renumbered
to read:
7513.97. As used in Section 11 of Article VII of the
Constitution, the following terms have the following meanings:
(a) "Actuarial equivalent" means a benefit of equal value when
computed upon the basis of the mortality tables adopted and the
actuarial interest rate fixed by the Board of Administration of the
Public Employees' Retirement System.
(b) "Beneficiary" means any person or corporation designated by a
member, a retired member, or statute, or the estate of a member or
retired member designated by the member or retired member, to receive
a benefit under the retirement system, on account of the death of
the member or retired member.
(c) "Salary" means the actual wages paid but shall not include any
other benefits, such as, but not limited to, health and dental
benefits, retirement benefits, vacation pay, and per diem.
(d) "Unmodified pension or retirement allowance" means the maximum
pension or retirement allowance receivable, prior to any selection
of an optional settlement and includes any cost-of-living adjustment
and any other increase granted subsequent to retirement.
SEC. 118. Section 11019.5 of the Government Code is amended to
read:
11019.5. (a) Notwithstanding any other provision of law, but to
the extent consistent with applicable federal law or regulation, any
state department and the Controller pursuant to Section 15202, after
receiving a request by a board of supervisors of an affected county
which has a population of 150,000 or less as of January 1, 1983, and
upon determining that advance payment is essential to the effective
implementation of a particular program, and further to the extent
that funds are available, and not more frequently than once each
month, may advance to the county an amount not to exceed one-twelfth
of the annual allocations, subventions, or reimbursements required
for the delivery of services by a county.
(b) The director of each department and the Controller shall
promulgate regulations or guidelines and a plan to establish control
procedures to define the scope of operational information required
from a county in order to guarantee advance payments pursuant to this
section. No county may receive an advance payment unless the county
has complied with the provisions of the department's plan and
regulations. Each department plan shall be approved by the Department
of Finance prior to its implementation.
(c) Claim schedules for advance payments shall be presented to the
appropriate department in the manner prescribed by the department.
Payment of claims shall be made within 60 days after a claim is
received by the department.
(d) Each department and the Controller shall review periodically
and adjust advances to actual expenditures for the claim period.
Additionally, each department and the Controller shall take into
consideration the timing of the implementation of new programs in the
computation of advances. The authority contained in this chapter
shall not supersede or limit any other provision of law authorizing
the state to conduct required audits of claims transactions.
(e) A county, upon determining that an advance payment is
essential for the effective implementation of a particular program,
to the extent funds are available, and not more frequently than once
each month, may advance to other affected local public agencies
located within its jurisdiction, including, but not limited to,
school districts, special districts, or cities, an amount not to
exceed one-twelfth of the annual allocations, reimbursements, or
subventions required for the delivery of services pursuant to related
state and federal laws.
(f) This section does not apply to the State Department of Social
Services.
SEC. 119. Section 11544 of the Government Code, as added by
Section 32 of Chapter 74 of the Statutes of 2005, is repealed.
SEC. 120. Section 12517 of the Government Code is amended to read:
12517. When in his or her opinion it may be necessary for the
collection or enforcement of any judgment in favor or for the use of
the state, the Attorney General shall institute and prosecute, on
behalf of the state, actions or proceedings to set aside and annul
all conveyances fraudulently made by judgment debtors. When allowed
by the Department of General Services, the necessary cost shall be
paid out of any available appropriation.
SEC. 121. Section 12627 of the Government Code is amended to read:
12627. The Attorney General shall adopt regulations pursuant to
the portion of the Administrative Procedure Act (Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2)
pertaining to rulemaking, as follows:
(a) Regulations on the standards and requirements that
organizations must meet that are consistent with the regulations
adopted by the USIA pursuant to the Mutual Educational and Cultural
Exchange Act of 1961 (22 U.S.C. Sec. 2451) as set forth in Section
514.1 and following of Title 22 of the Code of Federal Regulations as
those regulations existed on March 19, 1993. If the federal
regulations adopted by the USIA at a minimum require the same
standards and requirements of this article, the Attorney General
shall permit organizations designated by the USIA pursuant to those
regulations to, in lieu of documentation that would otherwise be
required by this article and the regulations adopted pursuant to this
subdivision, provide evidence of designation by the USIA.
(b) Any regulations that are necessary for the administration of
this article.
SEC. 122. Section 14661.1 of the Government Code is amended to
read:
14661.1. (a) For purposes of this section, the definitions in
subdivision (a) of Section 13332.19 shall apply. For purposes of
subdivision (a) of Section 13332.19, references to the Department of
General Services shall be deemed to be references to the Department
of General Services or the Department of Corrections and
Rehabilitation, as applicable.
(b) Notwithstanding any provision of the Public Contract Code or
any other provision of law, when the Legislature appropriates funds
for a specific project, or for any project using funds appropriated
pursuant to Chapter 3.2.1 (commencing with Section 15819.40) or 3.2.2
(commencing with Section 15819.41) of Part 10b, the Director of
General Services or the Secretary of the Department of Corrections
and Rehabilitation, as appropriate, may contract and procure state
office facilities and prison facilities pursuant to this section.
(c) Prior to contracting with a design-build entity for the
procurement of a state office facility or prison facility under this
section, the Director of General Services or the Secretary of the
Department of Corrections and Rehabilitation shall:
(1) Prepare a program setting forth the performance criteria for
the design-build project. The performance criteria shall be prepared
by a design professional duly licensed and registered in the State of
California.
(2) (A) Establish a competitive prequalification and selection
process for design-build entities, including any subcontractors
listed at the time of bid, that clearly specifies the
prequalification criteria, and states the manner in which the winning
design-build entity will
be selected.
(B) Prequalification shall be limited to consideration of all of
the following criteria:
(i) Possession of all required licenses, registration, and
credentials in good standing that are required to design and
construct the project.
(ii) Submission of evidence that establishes that the design-build
entity members have completed, or demonstrated the capability to
complete, projects of similar size, scope, or complexity, and that
proposed key personnel have sufficient experience and training to
competently manage and complete the design and construction of the
project.
(iii) Submission of a proposed project management plan that
establishes that the design-build entity has the experience,
competence, and capacity needed to effectively complete the project.
(iv) Submission of evidence that establishes that the design-build
entity has the capacity to obtain all required payment and
performance bonding, liability insurance, and errors and omissions
insurance, as well as a financial statement that assures the
Department of General Services or the Department of Corrections and
Rehabilitation that the design-build entity has the capacity to
complete the project.
(v) Provision of a declaration certifying that applying members of
the design-build entity have not had a surety company finish work on
any project within the last five years.
(vi) Provision of information and a declaration providing detail
concerning all of the following:
(I) Any construction or design claim or litigation totaling more
than five hundred thousand dollars ($500,000) or 5 percent of the
annual value of work performed, whichever is less, settled against
any member of the design-build entity over the last five years.
(II) Serious violations of the California Occupational Safety and
Health Act of 1973, as provided in Part 1 (commencing with Section
6300) of Division 5 of the Labor Code, settled against any member of
the design-build entity.
(III) Violations of federal or state law, including, but not
limited to, those laws governing the payment of wages, benefits, or
personal income tax withholding, of Federal Insurance Contributions
Act (FICA) withholding requirements, state disability insurance
withholding, or unemployment insurance payment requirements, settled
against any member of the design-build entity over the last five
years. For purposes of this subclause, only violations by a
design-build member as an employer shall be deemed applicable, unless
it is shown that the design-build entity member, in his or her
capacity as an employer, had knowledge of his or her subcontractor's
violations or failed to comply with the conditions set forth in
subdivision (b) of Section 1775 of the Labor Code.
(IV) Information required by Section 10162 of the Public Contract
Code.
(V) Violations of the Contractors' State License Law (Chapter 9
(commencing with Section 7000) of Division 3 of the Business and
Professions Code), excluding alleged violations or complaints.
(VI) Any conviction of any member of the design-build entity of
submitting a false or fraudulent claim to a public agency over the
last five years.
(vii) Provision of a declaration that the design-build entity will
comply with all other provisions of law applicable to the project,
including, but not limited to, the requirements of Chapter 1
(commencing with Section 1720) of Part 7 of Division 2 of the Labor
Code.
(C) The Director of General Services or the Secretary of the
Department of Corrections and Rehabilitation, when requested by the
design-build entity, shall hold in confidence any information
required by clauses (i) to (vi), inclusive, of subparagraph (B).
(D) Any declaration required under subparagraph (B) shall state
that reasonable diligence has been used in its preparation and that
it is true and complete to the best of the signer's knowledge. A
person who certifies as true any material matter that he or she knows
to be false is guilty of a misdemeanor and shall be punished by not
more than one year in a county jail, by a fine of not more than five
thousand dollars ($5,000), or by both the fine and imprisonment.
(3) (A) Determine, as he or she deems in the best interests of the
state, which of the following methods listed in subparagraph (B)
will be used as the process for the winning design-build entity. He
or she shall provide a notification to the State Public Works Board,
regarding the method selected for determining the winning
design-build entity, at least 30 days prior to publicizing the
design-build solicitation package.
(B) The Director of General Services or the Secretary of the
Department of Corrections and Rehabilitation shall make his or her
determination by choosing one of the following methods:
(i) A design-build competition based upon performance, price, and
other criteria set forth by the Department of General Services or the
Department of Corrections and Rehabilitation in the design-build
solicitation package. The Department of General Services or the
Department of Corrections and Rehabilitation shall establish
technical criteria and methodology, including price, to evaluate
proposals and shall describe the criteria and methodology in the
design-build solicitation package. Award shall be made to the
design-build entity whose proposal is judged as providing the best
value in meeting the interests of the Department of General Services
or the Department of Corrections and Rehabilitation and meeting the
objectives of the project. A project with an approved budget of ten
million dollars ($10,000,000) or more may be awarded pursuant to this
clause.
(ii) A design-build competition based upon performance and other
criteria set forth by the Department of General Services or the
Department of Corrections and Rehabilitation in the design-build
solicitation package. Criteria used in this evaluation of proposals
may include, but need not be limited to, items such as proposed
design approach, life-cycle costs, project features, and functions.
However, any criteria and methods used to evaluate proposals shall be
limited to those contained in the design-build solicitation package.
Award shall be made to the design-build entity whose proposal is
judged as providing the best value, for the lowest price, meeting the
interests of the Department of General Services or the Department of
Corrections and Rehabilitation and meeting the objectives of the
project. A project with an approved budget of ten million dollars
($10,000,000) or more may be awarded pursuant to this clause.
(iii) A design-build competition based upon program requirements
and a detailed scope of work, including any performance criteria and
concept drawings set forth by the Department of General Services or
the Department of Corrections and Rehabilitation in the design-build
solicitation package. Award shall be made on the basis of the lowest
responsible bid. A project with an approved budget of two hundred
fifty thousand dollars ($250,000) or more may be awarded pursuant to
this clause.
(4) For purposes of this subdivision, the following definitions
shall apply:
(A) "Best interest of the state" means a design-build process that
is projected by the Director of General Services or the Secretary of
the Department of Corrections and Rehabilitation to reduce the
project delivery schedule and total cost of a project while
maintaining a high level of quality workmanship and materials, when
compared to the traditional design-bid-build process.
(B) "Best value" means a value determined by objective criteria
that may include, but are not limited to, price, features, functions,
life-cycle costs, experience, and other criteria deemed appropriate
by the Department of General Services or the Department of
Corrections and Rehabilitation.
(d) The Legislature recognizes that the design-build entity is
charged with performing both design and construction. Because a
design-build contract may be awarded prior to the completion of the
design, it is often impracticable for the design-build entity to list
all subcontractors at the time of the award. As a result, the
subcontractor listing requirements contained in Chapter 4 (commencing
with Section 4100) of Part 1 of Division 2 of the Public Contract
Code can create a conflict with the implementation of the
design-build process by requiring all subcontractors to be listed at
a time when a sufficient set of plans shall not be available. It is
the intent of the Legislature to establish a clear process for the
selection and award of subcontracts entered into pursuant to this
section in a manner that retains protection for subcontractors while
enabling design-build projects to be administered in an efficient
fashion. Therefore, all of the following requirements shall apply to
subcontractors, licensed pursuant to Chapter 9 (commencing with
Section 7000) of Division 3 of the Business and Professions Code,
that are employed on design-build projects undertaken pursuant to
this section:
(1) The Department of General Services and the Department of
Corrections and Rehabilitation, in each design-build solicitation
package, may identify types of subcontractors, by subcontractor
license classification, that will be listed by the design-build
entity at the time of the bid. In selecting the subcontractors that
will be listed by the design-build entity, the Department of General
Services and the Department of Corrections and Rehabilitation shall
limit the identification to only those license classifications deemed
essential for proper completion of the project. In no event,
however, may the Department of General Services or the Department of
Corrections and Rehabilitation specify more than five licensed
subcontractor classifications. In addition, at its discretion, the
design-build entity may list an additional two subcontractors,
identified by subcontractor license classification, that will perform
design or construction work, or both, on the project. In no event
shall the design-build entity list at the time of bid a total number
of subcontractors that will perform design or construction work, or
both, in a total of more than seven subcontractor license
classifications on a project. All subcontractors that are listed at
the time of bid shall be afforded all of the protection contained in
Chapter 4 (commencing with Section 4100) of Part 1 of Division 2 of
the Public Contract Code. All subcontracts that were not listed by
the design-build entity at the time of bid shall be awarded in
accordance with paragraph (2).
(2) All subcontracts that were not to be performed by the
design-build entity in accordance with paragraph (1) shall be
competitively bid and awarded by the design-build entity, in
accordance with the design-build process set forth by the Department
of General Services or the Department of Corrections and
Rehabilitation in the design-build solicitation package. The
design-build entity shall do all of the following:
(A) Provide public notice of the availability of work to be
subcontracted in accordance with Section 10140 of the Public Contract
Code.
(B) Provide a fixed date and time on which the subcontracted work
will be awarded in accordance with Section 10141 of the Public
Contract Code.
(C) As authorized by the Department of General Services or the
Department of Corrections and Rehabilitation, establish reasonable
prequalification criteria and standards, limited in scope to those
detailed in paragraph (2) of subdivision (c).
(D) Provide that the subcontracted work shall be awarded to the
lowest responsible bidder.
(e) This section shall not be construed and is not intended to
extend or limit the authority specified in Section 19130.
(f) Any design-build entity that is selected to design and
construct a project pursuant to this section shall possess or obtain
sufficient bonding consistent with applicable provisions of the
Public Contract Code. Nothing in this section shall prohibit a
general or engineering contractor from being designated the lead
entity on a design-build entity for the purposes of purchasing
necessary bonding to cover the activities of the design-build entity.
(g) Any payment or performance bond written for the purposes of
this section shall use a bond form developed by the Department of
General Services or the Department of Corrections and Rehabilitation.
In developing the bond form, the Department of General Services or
the Department of Corrections and Rehabilitation shall consult with
the surety industry to achieve a bond form that is consistent with
surety industry standards, while protecting the interests of the
state.
(h) The Department of General Services or the Department of
Corrections and Rehabilitation, as appropriate, shall each submit to
the Joint Legislative Budget Committee, before January 1, 2014, a
report containing a description of each public works project procured
by that department through the design-build process described in
this section that is completed after January 1, 2009, and before
December 1, 2013. The report shall include, but shall not be limited
to, all of the following information:
(1) The type of project.
(2) The gross square footage of the project.
(3) The design-build entity that was awarded the project.
(4) The estimated and actual project costs.
(5) An assessment of the prequalification process and criteria.
(6) An assessment of the effect of any retention on the project
made under the law.
(7) A description of the method used to award the contract. If the
best value method was used, the report shall describe the factors
used to evaluate the bid, including the weighting of each factor and
an assessment of the effectiveness of the methodology.
(i) The authority provided under this section shall be in addition
to the authority provided to the Department of General Services
pursuant to Section 4 of Chapter 252 of the Statutes of 1998, as
amended by Section 3 of Chapter 154 of the Statutes of 2007. The
authority under this section and Section 70391.7 shall apply to a
total of not more than five state office facilities, prison
facilities, or court facilities, which shall be determined pursuant
to this subdivision.
(1) In order to enter into a contract utilizing the procurement
method authorized under this section, the Director of General
Services or the Secretary of the Department of Corrections and
Rehabilitation shall submit a request to the Department of Finance.
(2) The Department of Finance shall make a determination whether
to approve or deny a request made pursuant to paragraph (1) if the
design-build project requested will not exceed the five facilities
maximum set forth in this section and Section 70391.7.
(3) After receiving notification that the Department of Finance
has approved the request and that the Legislature has appropriated
funds for a specific project, the director or secretary may enter
into a design-build contract under this section.
(j) Nothing in this section is intended to affect, expand, alter,
or limit any rights or remedies otherwise available under the law.
SEC. 123. Section 15439 of the Government Code is amended to read:
15439. (a) The California Health Facilities Authority Fund is
continued in existence in the State Treasury as the California Health
Facilities Financing Authority Fund. All moneys in the fund are
hereby continuously appropriated to the authority for carrying out
the purposes of this division. The authority may pledge any or all of
the moneys in the fund as security for payment of the principal of,
and interest on, any particular issuance of bonds issued pursuant to
this part, or any particular secured or unsecured loan made pursuant
to subdivision (i), (j), or (s) of Section 15438, or for a grant
awarded pursuant to subdivision (b) of Section 15438.7, and, for that
purpose or as necessary or convenient to the accomplishment of any
other purpose of the authority, may divide the fund into separate
accounts. All moneys accruing to the authority pursuant to this part
from whatever source shall be deposited in the fund.
(b) Subject to the priorities that may be created by the pledge of
particular moneys in the fund to secure any issuance of bonds of the
authority, and subject further to the cost of loans provided by the
authority pursuant to subdivision (i), (j), or (s) of Section 15438
and to the cost of grants provided by the authority pursuant to
Section 15438.7, and subject further to any reasonable costs which
may be incurred by the authority in administering the program
authorized by this division, all moneys in the fund derived from any
source shall be held in trust for the security and payment of bonds
of the authority and shall not be used or pledged for any other
purpose so long as the bonds are outstanding and unpaid. However,
nothing in this section shall limit the power of the authority to
make loans with the proceeds of bonds in accordance with the terms of
the resolution authorizing the same.
(c) Pursuant to any agreements with the holders of particular
bonds pledging any particular assets, revenues, or moneys, the
authority may create separate accounts in the fund to manage assets,
revenues, or moneys in the manner set forth in the agreements.
(d) The authority may, from time to time, direct the State
Treasurer to invest moneys in the fund that are not required for its
current needs, including proceeds from the sale of any bonds, in the
eligible securities specified in Section 16430 as the agency shall
designate. The authority may direct the State Treasurer to deposit
moneys in interest-bearing accounts in state or national banks or
other financial institutions having principal offices in this state.
The authority may alternatively require the transfer of moneys in the
fund to the Surplus Money Investment Fund for investment pursuant to
Article 4 (commencing with Section 16470) of Chapter 3 of Part 2 of
Division 4. All interest or other increment resulting from an
investment or deposit shall be deposited in the fund, notwithstanding
Section 16305.7. Moneys in the fund shall not be subject to transfer
to any other fund pursuant to any provision of Part 2 (commencing
with Section 16300) of Division 4, excepting the Surplus Money
Investment Fund.
(e) All moneys accruing to the authority from whatever source
shall be deposited in the fund.
SEC. 124. Section 18929.96 of the Government Code is amended and
renumbered to read:
19829.96. (a) Notwithstanding Section 13340, for the 2011-12
fiscal year, if the Budget Act of 2011 is not enacted by July 1,
2011, for the memoranda of understanding entered into between the
state employer and State Bargaining Unit 1, 3, 4, 11, 14, 15, 17, 20,
or 21 (each effective July 1, 2010, to July 1, 2013, inclusive),
there is hereby continuously appropriated to the Controller from the
General Fund, unallocated special funds, including, but not limited
to, federal funds and unallocated nongovernmental cost funds, and any
other fund from which state employees are compensated, the amount
necessary for the payment of compensation and employee benefits to
state employees covered by the above memoranda of understanding until
the Budget Act of 2011 is enacted. The Controller may expend an
amount no greater than necessary to enable the Controller to
compensate state employees covered by the above memoranda of
understanding for work performed between July 1, 2011, of the 2011-12
fiscal year and the enactment of the Budget Act of 2011.
(b) If the memoranda of understanding entered into between the
state employer and State Bargaining Unit 1, 3, 4, 11, 14, 15, 17, 20,
or 21 (each effective July 1, 2010, to July 1, 2013, inclusive), are
in effect and approved by the Legislature, the compensation and
contribution for employee benefits for state employees represented by
these bargaining units shall be at a rate consistent with the
applicable memorandum of understanding referenced above.
(c) Expenditures related to any warrant drawn pursuant to
subdivision (a) are not augmentations to the expenditure authority of
a department. Upon the enactment of the Budget Act of 2011, these
expenditures shall be subsumed by the expenditure authority approved
in the Budget Act of 2011 for each affected department.
(d) This section shall only apply to an employee covered by the
terms of the State Bargaining Unit 1, 3, 4, 11, 14, 15, 17, 20, or 21
memoranda of understanding (each effective July 1, 2010, to July 1,
2013, inclusive). Notwithstanding Section 3517.8, this section shall
not apply after the term of the memorandum of understanding has
expired. For purposes of this section, the memorandum of
understanding for each unit expires on July 1, 2013.
SEC. 125. Section 19829.7 of the Government Code, as added by
Section 6 of Chapter 162 of the Statutes of 2010, is amended to read:
19829.7. (a) Notwithstanding Section 13340, for the 2010-11
fiscal year, if the Budget Act of 2010 is not enacted by July 1,
2010, for the memoranda of understanding entered into between the
state employer and State Bargaining Unit 5 (effective July 3, 2010,
to July 3, 2013, inclusive), State Bargaining Unit 8 (effective July
1, 2010, to July 1, 2013, inclusive), State Bargaining Unit 12
(effective July 1, 2010, to July 1, 2012, inclusive), State
Bargaining Unit 16 (effective July 1, 2010, to July 1, 2012,
inclusive), State Bargaining Unit 18 (effective July 1, 2010, to July
1, 2012, inclusive), and State Bargaining Unit 19 (effective July 1,
2010, to July 1, 2012, inclusive), there is hereby continuously
appropriated to the Controller from the General Fund, unallocated
special funds, including, but not limited to, federal funds and
unallocated nongovernmental cost funds, and any other fund from which
state employees are compensated, the amount necessary for the
payment of compensation and employee benefits to state employees
covered by the above memoranda of understanding until the Budget Act
of 2010 is enacted. The Controller may expend an amount no greater
than necessary to enable the Controller to compensate state employees
covered by the above memoranda of understanding for work performed
between July 1, 2010, of the 2010-11 fiscal year and the enactment of
the Budget Act of 2010.
(b) If the memoranda of understanding entered into between the
state employer and State Bargaining Unit 5 (effective July 3, 2010,
to July 3, 2013, inclusive), State Bargaining Unit 8 (effective July
1, 2010, to July 1, 2013, inclusive), State Bargaining Unit 12
(effective July 1, 2010, to July 1, 2012, inclusive), State
Bargaining Unit 16 (effective July 1, 2010, to July 1, 2012,
inclusive), State Bargaining Unit 18 (effective July 1, 2010, to July
1, 2012, inclusive), and State Bargaining Unit 19 (effective July 1,
2010, to July 1, 2012, inclusive) are in effect and approved by the
Legislature, the compensation and contribution for employee benefits
for state employees represented by these bargaining units shall be at
a rate consistent with the applicable memorandum of understanding
referenced above.
(c) Expenditures related to any warrant drawn pursuant to
subdivision (a) are not augmentations to the expenditure authority of
a department. Upon enactment of the Budget Act of 2010, these
expenditures shall be subsumed by the expenditure authority approved
in the Budget Act of 2010 for each affected department.
(d) This section shall only apply to an employee covered by the
terms of the State Bargaining Unit 5 (effective July 3, 2010, to July
3, 2013, inclusive), State Bargaining Unit 8 (effective July 1,
2010, to July 1, 2013, inclusive), State Bargaining Unit 12
(effective July 1, 2010, to July 1, 2012, inclusive), State
Bargaining Unit 16 (effective July 1, 2010, to July 1, 2012,
inclusive), State Bargaining Unit 18 (effective July 1, 2010, to July
1, 2012, inclusive), and State Bargaining Unit 19 (effective July 1,
2010, to July 1, 2012, inclusive) memoranda of understanding.
Notwithstanding Section 3517.8, this section shall not apply after
the term of the memorandum of understanding expires. For purposes of
this section, the memorandum of understanding for State Bargaining
Unit 5 expires on July 3, 2013, the memorandum of understanding for
State Bargaining Unit 8 expires on July 1, 2013, the memorandum of
understanding for State Bargaining Unit 12 expires on July 1, 2012,
the memorandum of understanding for State Bargaining Unit 16 expires
on July 1, 2012, the memorandum of understanding for State Bargaining
Unit 18 expires on July 1, 2012, and the memorandum of understanding
for State Bargaining Unit 19 expires on July 1, 2012.
SEC. 126. Section 19829.7 of the Government Code, as added by
Section 6 of Chapter 163 of the Statutes of 2010, is amended to read:
19829.7. (a) Notwithstanding Section 13340, for the 2010-11
fiscal year, if the Budget Act of 2010 is not enacted by July 1,
2010, for the memoranda of understanding entered into between the
state employer and State Bargaining Unit 5 (effective July 3, 2010,
to July 3, 2013, inclusive), State Bargaining Unit 8 (effective July
1, 2010, to July 1, 2013, inclusive), State Bargaining Unit 12
(effective July 1, 2010, to July 1, 2012, inclusive), State
Bargaining Unit 16 (effective July 1, 2010, to July 1, 2012,
inclusive), State Bargaining Unit 18 (effective July 1, 2010, to July
1, 2012, inclusive), and State Bargaining Unit 19 (effective July 1,
2010, to July 1, 2012, inclusive), there is hereby continuously
appropriated to the Controller from the General Fund, unallocated
special funds, including, but not limited to, federal funds and
unallocated nongovernmental cost funds, and any other fund from which
state employees are compensated, the amount necessary for the
payment of compensation and employee benefits to state employees
covered by the above memoranda of understanding until the Budget Act
of 2010 is enacted. The Controller may expend an amount no greater
than necessary to enable the Controller to compensate state employees
covered by the above memoranda of understanding for work performed
between July 1, 2010, of the 2010-11 fiscal year and the enactment of
the Budget Act of 2010.
(b) If the memoranda of understanding entered into between the
state employer and State Bargaining Unit 5 (effective July 3, 2010,
to July 3, 2013, inclusive), State Bargaining Unit 8 (effective July
1, 2010, to July 1, 2013, inclusive), State Bargaining Unit 12
(effective July 1, 2010, to July 1, 2012, inclusive), State
Bargaining Unit 16 (effective July 1, 2010, to July 1, 2012,
inclusive), State Bargaining Unit 18 (effective July 1, 2010, to July
1, 2012, inclusive), and State Bargaining Unit 19 (effective July 1,
2010, to July 1, 2012, inclusive) are in effect and approved by the
Legislature, the
compensation and contribution for employee benefits for state
employees represented by these bargaining units shall be at a rate
consistent with the applicable memorandum of understanding referenced
above.
(c) Expenditures related to any warrant drawn pursuant to
subdivision (a) are not augmentations to the expenditure authority of
a department. Upon enactment of the Budget Act of 2010, these
expenditures shall be subsumed by the expenditure authority approved
in the Budget Act of 2010 for each affected department.
(d) This section shall only apply to an employee covered by the
terms of the State Bargaining Unit 5 (effective July 3, 2010, to July
3, 2013, inclusive), State Bargaining Unit 8 (effective July 1,
2010, to July 1, 2013, inclusive), State Bargaining Unit 12
(effective July 1, 2010, to July 1, 2012, inclusive), State
Bargaining Unit 16 (effective July 1, 2010, to July 1, 2012,
inclusive), State Bargaining Unit 18 (effective July 1, 2010, to July
1, 2012, inclusive), and State Bargaining Unit 19 (effective July 1,
2010, to July 1, 2012, inclusive) memoranda of understanding.
Notwithstanding Section 3517.8, this section shall not apply after
the term of the memorandum of understanding expires. For purposes of
this section, the memorandum of understanding for State Bargaining
Unit 5 expires on July 3, 2013, the memorandum of understanding for
State Bargaining Unit 8 expires on July 1, 2013, the memorandum of
understanding for State Bargaining Unit 12 expires on July 1, 2012,
the memorandum of understanding for State Bargaining Unit 16 expires
on July 1, 2012, the memorandum of understanding for State Bargaining
Unit 18 expires on July 1, 2012, and the memorandum of understanding
for State Bargaining Unit 19 expires on July 1, 2012.
SEC. 127. Section 20037.14 of the Government Code, as added by
Section 11 of Chapter 162 of the Statutes of 2010, is amended to
read:
20037.14. (a) Notwithstanding Sections 20035 and 20037, final
compensation for a person who is employed by the state for the first
time and becomes a state member of the system on or after October 31,
2010, and is represented by State Bargaining Unit 5 or 8, means the
highest average annual compensation earnable by the member during the
consecutive 36-month period immediately preceding the effective date
of his or her retirement, or the date of his or her last separation
from state service if earlier, or during any other period of 36
consecutive months during his or her state membership that the member
designates on the application for retirement.
(b) This section applies to service credit accrued while a member
of State Bargaining Unit 5 or 8 or in a class related to State
Bargaining Unit 5 or 8 as an employee who is excepted from the
definition of "state employee" in subdivision (c) of Section 3513, or
an officer or employee of the executive branch of state government
who is not a member of the civil service.
(c) This section does not apply to:
(1) Former state employees previously employed before October 31,
2010, who return to state employment on or after October 31, 2010.
(2) State employees hired prior to October 31, 2010, who were
subject to Section 20281.5 during the first 24 months of state
employment.
(3) State employees hired prior to October 31, 2010, who become
subject to representation by State Bargaining Unit 5 or 8 on or after
October 31, 2010.
(4) State employees on an approved leave of absence employed
before October 31, 2010, who return to active employment on or after
October 31, 2010.
SEC. 128. Section 21369.2 of the Government Code, as added by
Section 21 of Chapter 162 of the Statutes of 2010, is amended to
read:
21369.2. (a) The combined prior and current service pension for a
state safety member, upon retirement after attaining the age of 55
years, is a pension derived from contributions of an employer
sufficient, when added to that portion of the service retirement
annuity that is derived from the accumulated normal contributions of
the member at the date of his or her retirement, to equal
one-fiftieth of his or her final compensation multiplied by the
number of years of state safety service, that is credited to him or
her as a state safety member subject to this section at retirement.
(b) Upon retirement for service prior to attaining the age of 55
years, the percentage of final compensation payable for each year of
credited service that is subject to this section shall be the product
of 2 percent multiplied by the factor set forth in the following
table for his or her actual age at retirement:
Age at
Retirement Fraction
50 .......................... 0.713
50 1/4....................... 0.725
50 1/2....................... 0.737
50 3/4....................... 0.749
51 .......................... 0.761
51 1/4....................... 0.775
51 1/2....................... 0.788
51 3/4....................... 0.801
52 .......................... 0.814
52 1/4....................... 0.828
52 1/2....................... 0.843
52 3/4....................... 0.857
53 .......................... 0.871
53 1/4....................... 0.886
53 1/2....................... 0.902
53 3/4....................... 0.917
54 .......................... 0.933
54 1/4....................... 0.950
54 1/2....................... 0.966
54 3/4....................... 0.983
55 .......................... 1.0000
55 1/4....................... 1.0125
55 1/2....................... 1.0250
55 3/4....................... 1.0375
56 .......................... 1.0500
56 1/4....................... 1.0625
56 1/2....................... 1.0750
56 3/4....................... 1.0875
57 .......................... 1.1000
57 1/4....................... 1.1125
57 1/2....................... 1.1250
57 3/4....................... 1.1375
58 .......................... 1.1500
58 1/4....................... 1.1625
58 1/2....................... 1.1750
58 3/4....................... 1.1875
59 .......................... 1.2000
59 1/4....................... 1.2125
59 1/2....................... 1.2250
59 3/4....................... 1.2375
60 and over ................. 1.2500
(c) In no event shall the total pension for all service under this
section exceed an amount that, when added to the service retirement
annuity related to that service, equals 80 percent of final
compensation. If the pension relates to service to more than one
employer and would otherwise exceed that maximum, the pension payable
with respect to each employer shall be reduced in the same
proportion as the allowance based on service to that employer bears
to the total allowance computed as though there were no limit, so
that the total of those pensions shall equal the maximum. Where a
state member has service under this section with both state and local
agency employers, the higher maximum shall apply and the additional
benefit shall be funded by increasing the member's pension payable
with respect to the employer for whom the member performed the
service subject to the higher maximum.
(d) The Legislature reserves, with respect to any member subject
to this section, the right to provide for the adjustment of
industrial disability retirement allowances because of earnings of a
retired person and modification of the conditions and qualifications
required for retirement for disability as it may find appropriate
because of the earlier age of service retirement made possible by the
benefits under this section.
(e) This section shall apply to a state safety member who is
employed by the state for the first time and becomes a state safety
member of the system on or after the first day of the pay period
following the effective date of this section, and is represented by
State Bargaining Unit 12, 16, 18, or 19. With respect to related
state safety members in managerial, supervisory, or confidential
positions and officers or employees of the executive branch of state
government who are not members of the civil service, the Director of
the Department of Personnel Administration may exercise his or her
discretion whether to approve their status in writing to the board.
(f) This section does not apply to:
(1) Former state employees previously employed before the first
day of the pay period following the effective date of this
subdivision, who return to state employment on or after the first day
of the pay period following the effective date of this subdivision.
(2) State employees hired prior to the first day of the pay period
following the effective date of this subdivision, who were subject
to Section 20281.5 during the first 24 months of state employment.
(3) State employees hired prior to the first day of the pay period
following the effective date of this subdivision, who become subject
to representation by State Bargaining Unit 12, 16, 18, or 19 on or
after the first day of the pay period following the effective date of
this subdivision.
(4) State employees on an approved leave of absence employed
before the first day of the pay period following the effective date
of this subdivision, who return to active employment on or after the
first day of the pay period following the effective date of this
subdivision.
SEC. 129. Section 21369.2 of the Government Code, as added by
Section 21 of Chapter 163 of the Statutes of 2010, is amended to
read:
21369.2. (a) The combined prior and current service pension for a
state safety member, upon retirement after attaining the age of 55
years, is a pension derived from contributions of an employer
sufficient, when added to that portion of the service retirement
annuity that is derived from the accumulated normal contributions of
the member at the date of his or her retirement, to equal
one-fiftieth of his or her final compensation multiplied by the
number of years of state safety service, that is credited to him or
her as a state safety member subject to this section at retirement.
(b) Upon retirement for service prior to attaining the age of 55
years, the percentage of final compensation payable for each year of
credited service that is subject to this section shall be the product
of 2 percent multiplied by the factor set forth in the following
table for his or her actual age at retirement:
Age at
Retirement Fraction
50 .......................... 0.713
50 1/4....................... 0.725
50 1/2....................... 0.737
50 3/4....................... 0.749
51 .......................... 0.761
51 1/4....................... 0.775
51 1/2....................... 0.788
51 3/4....................... 0.801
52 .......................... 0.814
52 1/4....................... 0.828
52 1/2....................... 0.843
52 3/4....................... 0.857
53 .......................... 0.871
53 1/4....................... 0.886
53 1/2....................... 0.902
53 3/4....................... 0.917
54 .......................... 0.933
54 1/4....................... 0.950
54 1/2....................... 0.966
54 3/4....................... 0.983
55 .......................... 1.0000
55 1/4....................... 1.0125
55 1/2....................... 1.0250
55 3/4....................... 1.0375
56 .......................... 1.0500
56 1/4....................... 1.0625
56 1/2....................... 1.0750
56 3/4....................... 1.0875
57 .......................... 1.1000
57 1/4....................... 1.1125
57 1/2....................... 1.1250
57 3/4....................... 1.1375
58 .......................... 1.1500
58 1/4....................... 1.1625
58 1/2....................... 1.1750
58 3/4....................... 1.1875
59 .......................... 1.2000
59 1/4....................... 1.2125
59 1/2....................... 1.2250
59 3/4....................... 1.2375
60 and over ................. 1.2500
(c) In no event shall the total pension for all service under this
section exceed an amount that, when added to the service retirement
annuity related to that service, equals 80 percent of final
compensation. If the pension relates to service to more than one
employer and would otherwise exceed that maximum, the pension payable
with respect to each employer shall be reduced in the same
proportion as the allowance based on service to that employer bears
to the total allowance computed as though there were no limit, so
that the total of those pensions shall equal the maximum. Where a
state member has service under this section with both state and local
agency employers, the higher maximum shall apply and the additional
benefit shall be funded by increasing the member's pension payable
with respect to the employer for whom the member performed the
service subject to the higher maximum.
(d) The Legislature reserves, with respect to any member subject
to this section, the right to provide for the adjustment of
industrial disability retirement allowances because of earnings of a
retired person and modification of the conditions and qualifications
required for retirement for disability as it may find appropriate
because of the earlier age of service retirement made possible by the
benefits under this section.
(e) This section shall apply to a state safety member who is
employed by the state for the first time and becomes a state safety
member of the system on or after the first day of the pay period
following the effective date of this section, and is represented by
State Bargaining Unit 12, 16, 18, or 19. With respect to related
state safety members in managerial, supervisory, or confidential
positions and officers or employees of the executive branch of state
government who are not members of the civil service, the Director of
the Department of Personnel Administration may exercise his or her
discretion whether to approve their status in writing to the board.
(f) This section does not apply to:
(1) Former state employees previously employed before the first
day of the pay period following the effective date of this
subdivision, who return to state employment on or after the first day
of the pay period following the effective date of this subdivision.
(2) State employees hired prior to the first day of the pay period
following the effective date of this subdivision, who were subject
to Section 20281.5 during the first 24 months of state employment.
(3) State employees hired prior to the first day of the pay period
following the effective date of this subdivision, who become subject
to representation by State Bargaining Unit 12, 16, 18, or 19 on or
after the first day of the pay period following the effective date of
this subdivision.
(4) State employees on an approved leave of absence employed
before the first day of the pay period following the effective date
of this subdivision, who return to active employment on or after the
first day of the pay period following the effective date of this
subdivision.
SEC. 130. Section 22874.1 of the Government Code is amended to
read:
22874.1. (a) Notwithstanding Sections 22870, 22871, 22873, and
22874, a state employee, defined by subdivision (c) of Section 3513,
who is employed by the state for the first time, and who is
represented by State Bargaining Unit 12, who becomes a state member
of the system on or after January 1, 2011, may not receive any
portion of the employer contribution payable for annuitants unless
the person is credited with 15 years of state service at the time of
retirement.
(b) The percentage of the employer contribution payable for
postretirement health benefits for an employee subject to this
section shall be based on the completed years of credited state
service at retirement as shown in the following table:
Credited Years
Years of Service Percentage
Contribution
of Employer
Contribution
15.......................... 50
16.......................... 55
17.......................... 60
18.......................... 65
19.......................... 70
20.......................... 75
21.......................... 80
22.......................... 85
23.......................... 90
24.......................... 95
25 or more.................. 100
(c) This section shall apply only to state employees who retire
for service. For purposes of this section, "state service" means
service rendered as an employee of the state or an appointed or
elected officer of the state for compensation. Notwithstanding
Section 22826, for purposes of this section, credited state service
includes service to the state for which the employee, pursuant to
Section 20281.5, did not receive credit.
(d) This section does not apply to:
(1) Former state employees previously employed before January 1,
2011, who return to state employment on or after January 1, 2011.
(2) State employees hired prior to January 1, 2011, who were
subject to Section 20281.5 during the first 24 months of state
employment.
(3) State employees hired prior to January 1, 2011, who become
subject to representation by State Bargaining Unit 12 on or after
January 1, 2011.
(4) State employees on an approved leave of absence employed
before January 1, 2011, who return to active employment on or after
January 1, 2011.
(5) State employees hired after January 1, 2011, who are first
represented by a state bargaining unit other than State Bargaining
Unit 12.
(6) Employees of the California State University, the judicial
branch, or the Legislature.
(e) Notwithstanding Section 22875, this section shall also apply
to a related state employee who is excepted from the definition of
"state employee" in subdivision (c) of Section 3513, and an officer
or employee of the executive branch of state government who is not a
member of the civil service who met the requirements of this section
when employed by the state for the first time.
SEC. 131. Section 56853.6 of the Government Code is amended to
read:
56853.6. (a) In the case of an accelerated reorganization,
notwithstanding any provision of this division or the Recreation and
Park District Law (Chapter 4 (commencing with Section 5780) of
Division 5 of the Public Resources Code), unless the governing body
of the Tahoe Paradise Resort Improvement District files a resolution
of objection with the El Dorado County Local Agency Formation
Commission before the close of the hearing held pursuant to Section
56666, the commission may approve, disapprove, or conditionally
approve, the accelerated reorganization. If the commission approves
or conditionally approves the accelerated reorganization, the
commission shall order the accelerated reorganization without an
election.
(b) If the governing body of the Tahoe Paradise Resort Improvement
District files a resolution of objection with the commission before
the close of the hearing held pursuant to Section 56666, the
commission shall disapprove the proposed accelerated reorganization.
(c) The commission may order any material change to the terms and
conditions of the accelerated reorganization set forth in the
proposal. The commission shall direct the executive officer to give
the Tahoe Paradise Resort Improvement District mailed notice of any
change prior to ordering a change. The commission shall not, without
the written consent of the Tahoe Paradise Resort Improvement
District, take any further action on the accelerated reorganization
for 30 days following that mailing.
(d) A proposal for an accelerated reorganization shall include
proposed terms and conditions that shall include, but are not limited
to, all of the following:
(1) The proposed recreation and park district is declared to be,
and shall be deemed, a recreation and park district as if the
district had been formed pursuant to the Recreation and Park District
Law (Chapter 4 (commencing with Section 5780) of Division 5 of the
Public Resources Code). The exterior boundary and sphere of influence
of the proposed recreation and park district shall be the exterior
boundary and sphere of influence of the Tahoe Paradise Resort
Improvement District.
(2) The proposed recreation and park district succeeds to, and is
vested with, the same powers, duties, responsibilities, obligations,
liabilities, and jurisdiction of the Tahoe Paradise Resort
Improvement District.
(3) The status, position, and rights of any officer or employee of
the Tahoe Paradise Resort Improvement District shall not be affected
by the transfer and shall be retained by the person as an officer or
employee of the proposed recreation and park district.
(4) The proposed recreation and park district shall have
ownership, possession, and control of all books, records, papers,
offices, equipment, supplies, moneys, funds, appropriations,
licenses, permits, entitlements, agreements, contracts, claims,
judgments, land, and other assets and property, real or personal,
owned or leased by, connected with the administration of, or held for
the benefit or use of, the Tahoe Paradise Resort Improvement
District.
(5) The unexpended balance as of the effective date of the
accelerated reorganization of any funds available for use by the
Tahoe Paradise Resort Improvement District shall be available for use
by the proposed recreation and park district.
(6) No payment for the use, or right of use, of any property, real
or personal, acquired or constructed by the Tahoe Paradise Resort
Improvement District shall be required by reason of the succession
pursuant to the accelerated reorganization, nor shall any payment for
the proposed recreation and park district's acquisition of the
powers, duties, responsibilities, obligations, liabilities, and
jurisdiction be required by reason of that succession.
(7) All ordinances, rules, and regulations adopted by the Tahoe
Paradise Resort Improvement District in effect immediately preceding
the effective date of the accelerated reorganization shall remain in
effect and shall be fully enforceable unless amended or repealed by
the proposed recreation and park district, or until they expire by
their own terms. Any statute, law, rule, or regulation in force as of
the effective date of the accelerated reorganization, or that may be
enacted or adopted with reference to the Tahoe Paradise Resort
Improvement District shall mean the proposed recreation and park
district.
(8) All allocations of shares of property tax revenue pursuant to
Part 0.5 (commencing with Section 50) of the Revenue and Taxation
Code, special taxes, benefit assessments, fees, charges, or any other
impositions of the Tahoe Paradise Resort Improvement District shall
remain in effect unless amended or repealed by the proposed
recreation and park district, or they expire by their own terms.
(9) The appropriations limit established pursuant to Division 9
(commencing with Section 7900) of Title 1 for the Tahoe Paradise
Resort Improvement District shall be the appropriations limit of the
proposed recreation and park district.
(10) Any action by or against the Tahoe Paradise Resort
Improvement District shall not abate, but shall continue in the name
of the proposed recreation and park district, and the proposed
recreation and park district shall be substituted for the Tahoe
Paradise Resort Improvement District by the court in which the action
is pending. The substitution shall not in any way affect the rights
of the parties to the action.
(11) No contract, lease, license, permit, entitlement, bond, or
any other agreement to which the Tahoe Paradise Resort Improvement
District is a party shall be void or voidable by reason of the
enactment of the accelerated reorganization, but shall continue in
effect, with the proposed recreation and park district assuming all
of the rights, obligations, liabilities, and duties of the Tahoe
Paradise Resort Improvement District.
(12) Any obligations, including, but not limited to, bonds and
other indebtedness, of the Tahoe Paradise Resort Improvement District
shall be the obligations of the proposed recreation and park
district. Any continuing obligations or responsibilities of the Tahoe
Paradise Resort Improvement District for managing and maintaining
bond issuances shall be transferred to the proposed recreation and
park district without impairment to any security contained in the
bond instrument.
(e) As used in this section, "accelerated reorganization" means a
reorganization that consists solely of the dissolution of the Tahoe
Paradise Resort Improvement District and the formation of a
recreation and park district.
(f) This section shall remain in effect only until January 2,
2018, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2018, deletes or extends
that date.
SEC. 132. Section 63049.67 of the Government Code is amended to
read:
63049.67. (a) Notwithstanding any other provision of this
division, a financing of emergency apportionments upon the request of
a school district pursuant to Article 2.7 (commencing with Section
41329.50) of Chapter 3 of Part 24 of Division 3 of Title 2 of the
Education Code, is deemed to be in the public interest and eligible
for financing by the bank. Article 3 (commencing with Section 63040),
Article 4 (commencing with Section 63042), and Article 5 (commencing
with Section 63043) do not apply to the financing provided by the
bank in connection with an emergency apportionment.
(b) The bank may issue bonds pursuant to Chapter 5 (commencing
with Section 63070) and provide the proceeds to a school district
pursuant to a lease agreement. The proceeds may be used as an
emergency apportionment, to reimburse the interim emergency
apportionment from the General Fund authorized pursuant to
subdivision (b) of Section 41329.52 of the Education Code, or to
refund bonds previously issued under this section. Bond proceeds may
also be used to fund necessary reserves, capitalized interest, credit
enhancement costs, and costs of issuance.
(c) Bonds issued under this article are not deemed to constitute a
debt or liability of the state or of any political subdivision of
the state, other than a limited obligation of the bank, or a pledge
of the faith and credit of
the state or of any political subdivision. All bonds issued under
this article shall contain on the face of the bonds a statement to
the same effect.
(d) Any fund or account established in connection with the bonds
shall be established outside of the centralized treasury system.
Notwithstanding any other law, the bank shall select the financing
team and the trustee for the bonds, and the trustee shall be a
corporation or banking association authorized to exercise corporate
trust powers.
(e) Pursuant to Section 41329.55 of the Education Code, a school
district other than the Compton Community College District shall
instruct the Controller to repay the lease from moneys in the State
School Fund designated for apportionment to the school district.
Pursuant to Section 41329.55, if the school district is the Compton
Community College District, the Controller shall be instructed to
repay the lease from moneys in Section B of the State School Fund.
Any amounts necessary to make this repayment shall be drawn from the
total statewide funding available for community college apportionment
consisting of funds in Section B of the State School Fund.
Thereafter the Controller shall transfer to Section B of the State
School Fund, either in a single or multiple transfers, an amount
equal to the total repayment, which amount shall be transferred from
the amount designated for apportionment to the Compton Community
College District from the State School Fund. If these transfers from
the district prove inadequate to repay any repayments for any reason,
the Compton Community College District is required to use any
revenue sources available to it for transfer and repayment purposes.
(f) Notwithstanding any other law, as long as any bonds issued
pursuant to this section are outstanding, the following requirements
apply:
(1) The school district for which the bonds were issued is not
eligible to be a debtor in a case under Chapter 9 of the United
States Bankruptcy Code, as it may be amended from time to time, and
no governmental officer or organization is or may be empowered to
authorize the school district to be a debtor under that chapter.
(2) It is the intent of the Legislature that the Legislature
should not in the future abolish the Compton Community College
District or take any action that would prevent the Compton Community
College from entering into or performing binding agreements or
invalidate any prior binding agreements of the Compton Community
College District, where invalidation may have a material adverse
effect on the bonds issued pursuant to this section.
(3) The Compton Community College District shall not be
reorganized or merged with another community college district unless
all of the following apply:
(A) The successor district becomes by operation of law the owner
of all property previously owned by the Compton Community College
District.
(B) Any agreement entered into by the Compton Community College
District in connection with bonds issued pursuant to this section are
assumed by the successor district.
(C) The apportionment authorized by subdivision (e) remains in
effect.
(D) Receipt by the bank of an opinion of bond counsel that the
bonds issued for the Compton Community College District will remain
tax exempt following the reorganization or merger.
(g) Nothing in this section limits the authority of the
Legislature to abolish the Compton Community College District when
bonds issued for that district are no longer outstanding. Further,
the Legislature may provide for the redemption or defeasance of the
bonds at any time so that no bonds are outstanding. If the
Legislature provides for the redemption or defeasance of the bonds
issued for the Compton Community College District in order to abolish
that district, it is the intent of the Legislature that the funds
required for the redemption or defeasance should be appropriated from
Section B of the State School Fund.
(h) The bank may enter into contracts or agreements with banks,
insurers, or other financial institutions or parties that it
determines are necessary or desirable to improve the security and
marketability of, or to manage interest rates or other risks
associated with, the bonds issued pursuant to this section. The bank
may pledge apportionments made by the Controller directly to the bond
trustee pursuant to Section 41329.55 of the Education Code as
security for repayment of any obligation owed to a bank, insurer, or
other financial institution pursuant to this subdivision.
SEC. 133. Section 66484 of the Government Code is amended to read:
66484. (a) A local ordinance may require the payment of a fee as
a condition of approval of a final map or as a condition of issuing a
building permit for purposes of defraying the actual or estimated
cost of constructing bridges over waterways, railways, freeways, and
canyons, or constructing major thoroughfares. The ordinance may
require payment of fees pursuant to this section if all of the
following requirements are satisfied:
(1) The ordinance refers to the circulation element of the general
plan and, in the case of bridges, to the transportation or flood
control provisions thereof that identify railways, freeways, streams,
or canyons for which bridge crossings are required on the general
plan or local roads and in the case of major thoroughfares, to the
provisions of the circulation element that identify those major
thoroughfares whose primary purpose is to carry through traffic and
provide a network connecting to the state highway system, if the
circulation element, transportation or flood control provisions have
been adopted by the local agency 30 days prior to the filing of a map
or application for a building permit.
(2) The ordinance provides that there will be a public hearing
held by the governing body for each area benefited. Notice shall be
given pursuant to Section 65091 and shall include preliminary
information related to the boundaries of the area of benefit,
estimated cost, and the method of fee apportionment. The area of
benefit may include land or improvements in addition to the land or
improvements that are the subject of any map or building permit
application considered at the proceedings.
(3) The ordinance provides that at the public hearing the
boundaries of the area of benefit, the costs, whether actual or
estimated, and a fair method of allocation of costs to the area of
benefit and fee apportionment are established. The method of fee
apportionment, in the case of major thoroughfares, shall not provide
for higher fees on land that abuts the proposed improvement except
where the abutting property is provided direct usable access to the
major thoroughfare. A description of the boundaries of the area of
benefit, the costs, whether actual or estimated, and the method of
fee apportionment established at the hearing shall be incorporated in
a resolution of the governing body, a certified copy of which shall
be recorded by the governing body conducting the hearing with the
recorder of the county in which the area of benefit is located. The
apportioned fees shall be applicable to all property within the area
of benefit and shall be payable as a condition of approval of a final
map or as a condition of issuing a building permit for the property
or portions of the property. Where the area of benefit includes lands
not subject to the payment of fees pursuant to this section, the
governing agency shall make provision for payment of the share of
improvement costs apportioned to those lands from other sources.
(4) The ordinance provides that payment of fees shall not be
required unless the major thoroughfares are in addition to, or a
reconstruction of, any existing major thoroughfares serving the area
at the time of the adoption of the boundaries of the area of benefit.
(5) The ordinance provides that payment of fees shall not be
required unless the planned bridge facility is an original bridge
serving the area or an addition to any existing bridge facility
serving the area at the time of the adoption of the boundaries of the
area of benefit. The fees shall not be expended to reimburse the
cost of existing bridge facility construction.
(6) The ordinance provides that if, within the time when protests
may be filed under the provisions of the ordinance, there is a
written protest, filed with the clerk of the legislative body, by the
owners of more than one-half of the area of the property to be
benefited by the improvement, and sufficient protests are not
withdrawn so as to reduce the area represented to less than one-half
of that to be benefited, then the proposed proceedings shall be
abandoned, and the legislative body shall not, for one year from the
filing of that written protest, commence or carry on any proceedings
for the same improvement or acquisition under this section.
(b) Any protest may be withdrawn by the owner protesting, in
writing, at any time prior to the conclusion of a public hearing held
pursuant to the ordinance.
(c) If any majority protest is directed against only a portion of
the improvement, then all further proceedings under the provisions of
this section to construct that portion of the improvement so
protested against shall be barred for a period of one year, but the
legislative body may commence new proceedings not including any part
of the improvement or acquisition so protested against. Nothing in
this section prohibits a legislative body, within that one-year
period, from commencing and carrying on new proceedings for the
construction of a portion of the improvement so protested against if
it finds, by the affirmative vote of four-fifths of its members, that
the owners of more than one-half of the area of the property to be
benefited are in favor of going forward with that portion of the
improvement or acquisition.
(d) Nothing in this section precludes the processing and
recordation of maps in accordance with other provisions of this
division if the proceedings are abandoned.
(e) Fees paid pursuant to an ordinance adopted pursuant to this
section shall be deposited in a planned bridge facility or major
thoroughfare fund. A fund shall be established for each planned
bridge facility project or each planned major thoroughfare project.
If the benefit area is one in which more than one bridge or major
thoroughfare is required to be constructed, a fund may be so
established covering all of the bridge and major thoroughfare
projects in the benefit area. Moneys in the fund shall be expended
solely for the construction or reimbursement for construction of the
improvement or improvements serving the area to be benefited and from
which the fees comprising the fund were collected, or to reimburse
the local agency for the cost of constructing the improvement or
improvements.
(f) An ordinance adopted pursuant to this section may provide for
the acceptance of considerations in lieu of the payment of fees.
(g) A local agency imposing fees pursuant to this section may
advance money from its general fund or road fund to pay the cost of
constructing the improvements and may reimburse the general fund or
road fund for any advances from planned bridge facility or major
thoroughfares funds established to finance the construction of those
improvements.
(h) A local agency imposing fees pursuant to this section may
incur an interest-bearing indebtedness for the construction of bridge
facilities or major thoroughfares. However, the sole security for
repayment of that indebtedness shall be moneys in planned bridge
facility or major thoroughfares funds.
(i) (1) The term "construction," as used in this section, includes
design, acquisition of rights-of-way, administration of construction
contracts, and actual construction.
(2) The term "construction," as used in this section, with respect
to the unincorporated areas of San Diego County and Los Angeles
County only, includes design, acquisition of rights-of-way, and
actual construction, including, but not limited to, all direct and
indirect environmental, engineering, accounting, legal,
administration of construction contracts, and other services
necessary therefor. The term "construction," with respect to the
unincorporated areas of San Diego County and Los Angeles County only,
also includes reasonable administrative expenses, not exceeding
three hundred thousand dollars ($300,000) in any calendar year after
January 1, 1986, as adjusted annually for any increase or decrease in
the Consumer Price Index of the Bureau of Labor Statistics of the
United States Department of Labor for All Urban Consumers, San Diego,
California (1967 = 100), and Los Angeles-Long Beach-Anaheim,
California (1967 = 100), respectively, as published by the United
States Department of Commerce for the purpose of constructing bridges
and major thoroughfares. "Administrative expenses" means those
office, personnel, and other customary and normal expenses associated
with the direct management and administration of the agency, but not
including costs of construction.
(3) The term "construction," as used in this section, with respect
to Los Angeles County only, shall have the same meaning as in
paragraph (2) in either of the following circumstances:
(A) The area of benefit includes, and all of the bridge and major
thoroughfare project improvements lie within, both a city or a
portion of a city and adjacent portions of unincorporated area.
(B) All of the area of benefit and all of the bridge and major
thoroughfare project improvements lie completely within the
boundaries of a city.
(j) Nothing in this section precludes a county or city from
providing funds for the construction of bridge facilities or major
thoroughfares to defray costs not allocated to the area of benefit.
SEC. 134. Section 72011 of the Government Code, as added by
Section 24 of Chapter 720 of the Statutes of 2010, is amended to
read:
72011. (a) For each fee received for providing telephone
appearance services, each vendor or court that provides for
appearances by telephone shall transmit twenty dollars ($20) to the
State Treasury for deposit in the Trial Court Trust Fund established
pursuant to Section 68085. If the vendor or court receives a portion
of the fee as authorized under paragraph (2) of subdivision (b) of
Section 367.6 of the Code of Civil Procedure, the vendor or court
shall transmit only the proportionate share of the amount required
under this section. This section shall apply regardless of whether
the Judicial Council has established the statewide uniform fee
pursuant to Section 367.6 of the Code of Civil Procedure, or entered
into one or more master agreements pursuant to Section 72010 of this
code. This section shall not apply when a vendor or court does not
receive a fee.
(b) The amounts described in subdivision (a) shall be transmitted
within 15 days after the end of each calendar quarter for fees
collected in that quarter.
(c) Vendors shall also transmit an amount equal to the total
amount of revenue received by all courts from all vendors for
providing telephonic appearances for the 2009-10 fiscal year.
(d) The amount set forth in subdivision (c) shall be apportioned
by the Judicial Council among the vendors with which the Judicial
Council has a master agreement pursuant to Section 72010. Within 15
days of receiving notice from the Judicial Council of its apportioned
amount, each vendor shall transmit that amount to the State Treasury
for deposit in the Trial Court Trust Fund.
(e) The Judicial Council shall allocate the amount collected
pursuant to subdivisions (c) and (d) for the purpose of preventing
significant disruption in services in courts that previously received
revenues from vendors for providing telephone appearance services.
The Judicial Council shall determine the method and amount of the
allocation to each eligible court.
(f) This section shall become inoperative on July 1, 2013, and, as
of January 1, 2014, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2014, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 135. Section 76000.10 of the Government Code is amended to
read:
76000.10. (a) This section shall be known, and may be cited, as
the Emergency Medical Air Transportation Act.
(b) For purposes of this section:
(1) "Department" means the State Department of Health Care
Services.
(2) "Director" means the Director of Health Care Services.
(3) "Provider" means a provider of emergency medical air
transportation services.
(4) "Rotary wing" means a type of aircraft, commonly referred to
as a helicopter, that generates lift through the use of wings, known
as rotor blades, that revolve around a mast.
(5) "Fixed wing" means a type of aircraft, commonly referred to as
an airplane, that generates lift through the use of the forward
motion of the aircraft and wings that do not revolve around a mast
but are fixed in relation to the fuselage of the aircraft.
(6) "Air mileage rate" means the per-mileage reimbursement rate
paid for services rendered by rotary-wing and fixed-wing providers.
(c) (1) For the purpose of implementing this section, a penalty of
four dollars ($4) shall be imposed upon every conviction for a
violation of the Vehicle Code or a local ordinance adopted pursuant
to the Vehicle Code, except parking offenses subject to Article 3
(commencing with Section 40200) of Chapter 1 of Division 17 of the
Vehicle Code.
(2) The penalty described in this subdivision shall be in addition
to the state penalty assessed pursuant to Section 1464 of the Penal
Code. However, this penalty shall not be included in the base fine
used to calculate the state penalty assessment pursuant to
subdivision (a) of Section 1464 of the Penal Code, the state
surcharge levied pursuant to Section 1465.7 of the Penal Code,
Section 70372 of the Government Code, and to calculate the other
additional penalties levied pursuant to this chapter.
(d) The county board of supervisors shall establish in the county
treasury an emergency medical air transportation act fund into which
shall be deposited the moneys collected pursuant to this section.
Moneys in each county's fund, including interest and dividends earned
thereon, shall be held by the county treasurer separate from funds
subject to transfer or division pursuant to Section 1463 of the Penal
Code.
(e) (1) Within 30 days following the last day of each calendar
quarter of the year, the county treasurer shall transfer moneys in
the county's emergency medical air transportation act fund to the
Controller for deposit into the Emergency Medical Air Transportation
Act Fund, which is hereby established in the State Treasury.
Notwithstanding Section 16305.7, the Emergency Medical Air
Transportation Act Fund shall include interest and dividends earned
on money in the fund. Prior to the transfer of funds from the county'
s emergency medical air transportation act fund to the state, the
county treasurer may withhold a sufficient amount from the fund to
reimburse the county and the courts for their actual, reasonable, and
necessary costs associated with administering this section. To the
extent moneys are withheld by the county treasurer, an accounting
report detailing these costs shall be sent to the department at least
once per calendar year.
(2) The Emergency Medical Air Transportation Act Fund shall be
administered by the State Department of Health Care Services. Moneys
in the Emergency Medical Air Transportation Act Fund shall be made
available, upon appropriation by the Legislature, to the department
to be used as follows:
(A) For payment of the administrative costs of the department in
administering this section.
(B) Twenty percent of the fund remaining after payment of
administrative costs pursuant to subparagraph (A) shall be used to
offset the state portion of the Medi-Cal reimbursement rate for
emergency medical air transportation services.
(C) Eighty percent of the fund remaining after payment of
administrative costs pursuant to subparagraph (A) shall be used, to
augment emergency medical air transportation reimbursement payments
made through the Medi-Cal program, as set forth in paragraphs (3) and
(4).
(3) (A) The department shall seek to obtain federal matching funds
by using the moneys in the Emergency Medical Air Transportation Act
Fund for the purpose of augmenting Medi-Cal reimbursement paid to
emergency medical air transportation providers.
(B) The director shall do all of the following:
(i) By March 1, 2011, meet with medical air transportation
providers to determine the most appropriate methodology to distribute
the funds for medical air services.
(ii) Implement the methodology determined most appropriate in a
timely manner.
(iii) Develop the methodology in collaboration with the medical
air providers.
(iv) Submit any state plan amendments or waiver requests that may
be necessary to implement this section.
(v) Submit any state plan amendment or waiver request that may be
necessary to implement this section.
(vi) Seek federal approvals or waivers as may be necessary to
implement this section and to obtain federal financial participation
to the maximum extent possible for the payments under this section.
If federal approvals are not received, moneys in the fund may be
distributed pursuant to this section until federal approvals are
received.
(C) The director may give great weight to the needs of the
emergency medical air services providers, as discussed through the
development of the methodology.
(4) (A) Upon appropriation by the Legislature, the department
shall use moneys in the Emergency Medical Air Transportation Act Fund
and any federal matching funds to increase the Medi-Cal
reimbursement for emergency medical air transportation services in an
amount not to exceed normal and customary charges charged by the
providers.
(B) Notwithstanding any other provision of law, and pursuant to
this section, the department shall increase the Medi-Cal
reimbursement for emergency medical air transportation services
provided that both of the following conditions are met:
(i) Moneys in the Emergency Medical Air Transportation Act Fund
will cover the cost of increased payments pursuant to subparagraph
(A).
(ii) The state does not incur any General Fund expense to pay for
the Medi-Cal emergency medical air transportation services increase.
(f) The assessment of penalties pursuant to this section shall
terminate commencing January 1, 2016. Penalties assessed prior to
January 1, 2016, shall continue to be collected, administered, and
distributed pursuant to this section until exhausted or until June
30, 2017, whichever occurs first. On June 30, 2017, moneys remaining
unexpended and unencumbered in the Emergency Medical Air
Transportation Act Fund shall be transferred to the General Fund, to
be available, upon appropriation by the Legislature, for the purposes
of augmenting Medi-Cal reimbursement for emergency medical air
transportation and related costs, generally.
(g) Notwithstanding the rulemaking provisions of Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2,
the department may implement, interpret, or make specific this
section and any applicable federal waivers and state plan amendments
by means of all-county letters, plan letters, plan or provider
bulletins, or similar instructions without taking regulatory action.
(h) This section shall remain in effect only until January 1,
2018, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2018, deletes or extends
that date.
SEC. 136. Section 100521 of the Government Code is amended to
read:
100521. (a) The board shall ensure that the establishment,
operation, and administrative functions of the Exchange do not exceed
the combination of federal funds, private donations, and other
non-General Fund moneys available for this purpose. No state General
Fund moneys shall be used for any purpose under this title without a
subsequent appropriation. No liability incurred by the Exchange or
any of its officers or employees may be satisfied using moneys from
the General Fund.
(b) The implementation of the provisions of this title, other than
this section, Section 100500, and paragraphs (4) and (5) of
subdivision (a) of Section 100504, shall be contingent on a
determination by the board that sufficient financial resources exist
or will exist in the fund. The determination shall be based on at
least the following:
(1) Financial projections identifying that sufficient resources
exist or will exist in the fund to implement the Exchange.
(2) A comparison of the projected resources available to support
the Exchange and the projected costs of activities required by this
title.
(3) The financial projections demonstrate the sufficiency of
resources for at least the first two years of operation under this
title.
(c) The board shall provide notice to the Joint Legislative Budget
Committee and the Director of Finance that sufficient financial
resources exist in the fund to implement this title.
(d) If the board determines that the level of resources in the
fund cannot support the actions and responsibilities described in
subdivision (a), it shall provide the Department of Finance and the
Joint Legislative Budget Committee a detailed report on the changes
to the functions, contracts, or staffing necessary to address the
fiscal deficiency along with any contingency plan should it be
impossible to operate the Exchange without the use of General Fund
moneys.
(e) The board shall assess the impact of the Exchange's operations
and policies on other publicly funded health programs administered
by the state and the impact of publicly funded health programs
administered by the state on the Exchange's operations and policies.
This assessment shall include, at a minimum, an analysis of potential
cost shifts or cost increases in other programs that may be due to
Exchange policies or operations. The assessment shall be completed on
at least an annual basis and submitted to the Secretary of
California Health and Human Services and the Director of Finance.
SEC. 137. The heading of Article 10 (commencing with former
Section 58300) of Chapter 1 of Division 1 of Title 6 of the
Government Code is repealed.
SEC. 138. Section 1150 of the Harbors and Navigation Code is
amended to read:
1150. (a) There is in the Business, Transportation and Housing
Agency a Board of Pilot Commissioners for the Bays of San Francisco,
San Pablo, and Suisun, consisting of seven members appointed by the
Governor, with the consent of the Senate, as
follows:
(1) Two members shall be pilots licensed pursuant to this
division.
(2) Two members shall represent the industry and shall be persons
currently engaged as owners, officers, directors, employees, or
representatives of a firm or association of firms that is a
substantial user of pilotage service in the Bay of San Francisco, San
Pablo, Suisun, or Monterey, one of whom shall be engaged in the
field of tanker company operations, and one of whom shall be engaged
in dry cargo operations. The board of directors of a regional
maritime trade association controlled by West Coast vessel operators
that specifically represents the owners and operators of vessels or
barges engaged in transportation by water of cargo or passengers from
or to the Pacific area of the United States shall nominate, rank,
and submit to the Governor the names of three persons for each
category of industry member to be appointed.
(3) Three members shall be public members. Any person may serve as
a public member unless otherwise prohibited by law, except that
during his or her term of office or within the two years preceding
his or her appointment, a public member appointed shall not have (A)
any financial or proprietary interest in the ownership, operation, or
management of tugs, cargo, or passenger vessels, (B) sailed under
the authority of a federal or state pilot license in waters under the
jurisdiction of the board, (C) been employed by a company that is a
substantial user of pilot services, or (D) been a consultant or other
person providing professional services who had received more than 20
percent in the aggregate of his or her income from a company that is
a substantial user of pilot services or an association of companies
that are substantial users of pilot services. Ownership of less than
one-tenth of 1 percent of the stock of a publicly traded corporation
is not a financial or proprietary interest in the ownership of tugs,
cargo, or passenger vessels.
(4) Notwithstanding any other provision of law, this chapter does
not prohibit the Governor from notifying the nominating authority
identified in paragraph (2) that persons nominated are unacceptable
for appointment. Following that notification, the nominating
authority shall submit a new list of nominees to the Governor, naming
three persons, none of whom were previously nominated, from which
the Governor may make the appointment. This process shall be
continued until a person nominated by the nominating authority and
satisfactory to the Governor has been appointed.
(b) Members appointed pursuant to subdivision (a) shall be
appointed with staggered terms as follows:
(1) Each of the members appointed pursuant to paragraphs (1) and
(2) of subdivision (a) shall be appointed for a four-year term,
except that the first member appointed after December 31, 2012, to an
initial term pursuant to paragraph (1) of subdivision (a) shall be
appointed to a term expiring on December 31, 2014, and the first
member appointed after December 31, 2012, to an initial term pursuant
to paragraph (2) of subdivision (a) shall be appointed to a term
expiring on December 31, 2014.
(2) Members appointed pursuant to paragraph (3) of subdivision (a)
shall be appointed with staggered four-year terms with the initial
four-year terms expiring on December 31 of the years 1988, 1990, and
1991, respectively.
(3) A person shall not be appointed for more than two terms.
(4) Vacancies on the board for both expired and unexpired terms
shall be filled by the appointing power in the manner prescribed by
subdivision (a).
(c) A quorum of the board members consists of four members. All
actions of the board shall require the vote of four members, a quorum
being present.
(d) The Secretary of Business, Transportation and Housing shall
serve as an ex officio member of the board who, without vote, may
exercise all other privileges of a member of the board.
SEC. 139. Section 1357.51 of the Health and Safety Code is amended
to read:
1357.51. (a) No plan contract that covers three or more
enrollees shall exclude coverage for any individual on the basis of a
preexisting condition provision for a period greater than six months
following the individual's effective date of coverage. Preexisting
condition provisions contained in plan contracts may relate only to
conditions for which medical advice, diagnosis, care, or treatment,
including use of prescription drugs, was recommended or received from
a licensed health practitioner during the six months immediately
preceding the effective date of coverage.
(b) No plan contract that covers one or two individuals shall
exclude coverage on the basis of a preexisting condition provision
for a period greater than 12 months following the individual's
effective date of coverage, nor shall the plan limit or exclude
coverage for a specific enrollee by type of illness, treatment,
medical condition, or accident, except for satisfaction of a
preexisting condition clause pursuant to this article. Preexisting
condition provisions contained in plan contracts may relate only to
conditions for which medical advice, diagnosis, care, or treatment,
including use of prescription drugs, was recommended or received from
a licensed health practitioner during the 12 months immediately
preceding the effective date of coverage.
(c) (1) Notwithstanding subdivision (a), a plan contract for group
coverage shall not impose any preexisting condition provision upon
any child under 19 years of age.
(2) Notwithstanding subdivision (b), a plan contract for
individual coverage that is not a grandfathered health plan within
the meaning of Section 1251 of the federal Patient Protection and
Affordable Care Act (P.L. 111-148) shall not impose any preexisting
condition provision upon any child under 19 years of age.
(d) A plan that does not utilize a preexisting condition provision
may impose a waiting or affiliation period not to exceed 60 days,
before the coverage issued subject to this article shall become
effective. During the waiting or affiliation period, the plan is not
required to provide health care services and no premium shall be
charged to the subscriber or enrollee.
(e) A plan that does not utilize a preexisting condition provision
in plan contracts that cover one or two individuals may impose a
contract provision excluding coverage for waivered conditions. No
plan may exclude coverage on the basis of a waivered condition for a
period greater than 12 months following the individual's effective
date of coverage. A waivered condition provision contained in plan
contracts may relate only to conditions for which medical advice,
diagnosis, care, or treatment, including use of prescription drugs,
was recommended or received from a licensed health practitioner
during the 12 months immediately preceding the effective date of
coverage.
(f) In determining whether a preexisting condition provision, a
waivered condition provision, or a waiting or affiliation period
applies to any enrollee, a plan shall credit the time the enrollee
was covered under creditable coverage, provided that the enrollee
becomes eligible for coverage under the succeeding plan contract
within 62 days of termination of prior coverage, exclusive of any
waiting or affiliation period, and applies for coverage under the
succeeding plan within the applicable enrollment period. A plan shall
also credit any time that an eligible employee must wait before
enrolling in the plan, including any postenrollment or
employer-imposed waiting or affiliation period.
However, if a person's employment has ended, the availability of
health coverage offered through employment or sponsored by an
employer has terminated, or an employer's contribution toward health
coverage has terminated, a plan shall credit the time the person was
covered under creditable coverage if the person becomes eligible for
health coverage offered through employment or sponsored by an
employer within 180 days, exclusive of any waiting or affiliation
period, and applies for coverage under the succeeding plan contract
within the applicable enrollment period.
(g) No plan shall exclude late enrollees from coverage for more
than 12 months from the date of the late enrollee's application for
coverage. No plan shall require any premium or other periodic charge
to be paid by or on behalf of a late enrollee during the period of
exclusion from coverage permitted by this subdivision.
(h) A health care service plan issuing group coverage may not
impose a preexisting condition exclusion upon a condition relating to
benefits for pregnancy or maternity care.
(i) An individual's period of creditable coverage shall be
certified pursuant to subsection (e) of Section 2701 of Title XXVII
of the federal Public Health Service Act (42 U.S.C. Sec. 300gg(e)).
SEC. 140. Section 1365 of the Health and Safety Code is amended to
read:
1365. (a) An enrollment or a subscription shall not be canceled
or not renewed except for the following reasons:
(1) (A) For nonpayment of the required premiums by the individual,
employer, or contractholder if the individual, employer, or
contractholder has been duly notified and billed for the charge and
at least a 30-day grace period has elapsed since the date of
notification or, if longer, the period of time required for notice
and any other requirements pursuant to Section 2703, 2712, or 2742 of
the federal Public Health Service Act (42 U.S.C. Secs. 300gg-2,
300gg-12, and 300gg-42) and any subsequent rules or regulations has
elapsed.
(B) Pursuant to subparagraph (A), a health care service plan shall
continue to provide coverage as required by the individual's,
employer's, or contractholder's health care service plan contract
during the period described in subparagraph (A).
(2) The plan demonstrates fraud or an intentional
misrepresentation of material fact under the terms of the health care
service plan contract by the individual contractholder or employer.
(3) In the case of an individual health care service plan
contract, the individual subscriber no longer resides, lives, or
works in the plan's service area, but only if the coverage is
terminated uniformly without regard to any health status-related
factor of covered individuals.
(4) In the case of a group health care service plan contract,
violation of a material contract provision relating to employer
contribution or group participation rates by the contractholder or
employer.
(5) If the plan ceases to provide or arrange for the provision of
health benefits for new health care service plan contracts in the
individual or group market, or all markets, in this state, provided,
however, that the following conditions are satisfied:
(A) Notice of the decision to cease new or existing health benefit
plans in the state is provided to the director, the individual or
group contractholder or employer, and the enrollees covered under
those contracts, at least 180 days prior to discontinuation of those
contracts.
(B) Health benefit plans shall not be canceled for 180 days after
the date of the notice required under subparagraph (A) and, for that
business of a plan that remains in force, any plan that ceases to
offer for sale new health benefit plans shall continue to be governed
by this section with respect to business conducted under this
section.
(C) Except as authorized under subdivision (b) of Section 1357.09
and Section 1357.10, a plan that ceases to write new health benefit
plans in the individual or group market, or all markets, in this
state shall be prohibited from offering for sale health benefit plans
in that market or markets in this state for a period of five years
from the date of the discontinuation of the last coverage not so
renewed.
(6) If the plan withdraws a health benefit plan from the market,
provided that all of the following conditions are satisfied:
(A) The plan notifies all affected subscribers, contractholders,
employers, and enrollees and the director at least 90 days prior to
the discontinuation of the plan.
(B) The plan makes available to the individual or group
contractholder or employer all health benefit plans that it makes
available to new individual or group business, respectively.
(C) In exercising the option to discontinue a health benefit plan
under this paragraph and in offering the option of coverage under
subparagraph (B), the plan acts uniformly without regard to the
claims experience of the individual or contractholder or employer, or
any health status-related factor relating to enrollees or potential
enrollees.
(D) For small employer health care service plan contracts offered
under Article 3.1 (commencing with Section 1357), the premium for the
new plan contract complies with the renewal increase requirements
set forth in Section 1357.12. This subparagraph shall not apply after
December 31, 2013.
(7) In the case of a group health benefit plan, if an individual
or employer ceases to be a member of a guaranteed association, as
defined in subdivision (n) of Section 1357, but only if that coverage
is terminated under this paragraph uniformly without regard to any
health status-related factor relating to any enrollee.
(b) (1) An enrollee or subscriber who alleges that an enrollment
or subscription has been or will be improperly canceled, rescinded,
or not renewed may request a review by the director pursuant to
Section 1368.
(2) If the director determines that a proper complaint exists, the
director shall notify the plan and the enrollee or subscriber who
requested the review.
(3) If, after review, the director determines that the
cancellation, rescission, or failure to renew is contrary to existing
law, the director shall order the plan to reinstate the enrollee or
subscriber. Within 15 days after receipt of that order, the health
care service plan shall request a hearing or reinstate the enrollee
or subscriber.
(4) If an enrollee or subscriber requests a review of the health
care service plan's determination to cancel or rescind or failure to
renew the enrollee's or subscriber's health care service plan
contract pursuant to this section, the health care service plan shall
continue to provide coverage to the enrollee or subscriber under the
terms of the contract until a final determination of the enrollee's
or subscriber's request for review has been made by the director.
This paragraph shall not apply if the health care service plan
cancels or does not renew the enrollee's or subscriber's health care
service plan contract for nonpayment of premiums pursuant to
paragraph (1) of subdivision (a).
(5) A reinstatement pursuant to this subdivision shall be
retroactive to the time of cancellation, rescission, or failure to
renew and the plan shall be liable for the expenses incurred by the
subscriber or enrollee for covered health care services from the date
of cancellation, rescission, or nonrenewal to and including the date
of reinstatement. The health care service plan shall reimburse the
enrollee or subscriber for any expenses incurred pursuant to this
paragraph within 30 days of receipt of the completed claim.
(c) This section shall not abrogate any preexisting contracts
entered into prior to the effective date of this chapter between a
subscriber or enrollee and a health care service plan or a
specialized health care service plan, including, but not limited to,
the financial liability of the plan, except that each plan shall, if
directed to do so by the director, exercise its authority, if any,
under those preexisting contracts to conform them to existing law.
(d) As used in this section, "health benefit plan" means any
individual or group insurance policy or health care service plan
contract that provides medical, hospital, and surgical benefits. The
term does not include accident only, credit, or disability income
coverage, coverage of Medicare services pursuant to contracts with
the United States government, Medicare supplement coverage, long-term
care insurance, dental or vision coverage, coverage issued as a
supplement to liability insurance, insurance arising out of workers'
compensation law or similar law, automobile medical payment
insurance, or insurance under which benefits are payable with or
without regard to fault and that is statutorily required to be
contained in any liability insurance policy or equivalent
self-insurance.
(e) On or before July 1, 2011, the director may issue guidance to
health care service plans regarding compliance with this section and
that guidance shall not be subject to the Administrative Procedure
Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code). Any guidance issued
pursuant to this subdivision shall only be effective through December
31, 2013, or until the director adopts and effects regulations
pursuant to the Administrative Procedure Act, whichever occurs first.
SEC. 141. Section 1367.002 of the Health and Safety Code is
amended to read:
1367.002. To the extent required by federal law, a group or
individual health care service plan contract issued, amended,
renewed, or delivered on or after September 23, 2010, shall comply
with Section 2713 of the federal Public Health Service Act (42 U.S.C.
Sec. 300gg-13), as added by Section 1001 of the federal Patient
Protection and Affordable Care Act (P.L. 111-148), and any rules or
regulations issued under that section.
SEC. 142. Section 1385.01 of the Health and Safety Code is amended
to read:
1385.01. For purposes of this article, the following definitions
shall apply:
(a) "Large group health care service plan contract" means a group
health care service plan contract other than a contract issued to a
small employer, as defined in Section 1357.
(b) "Small group health care service plan contract" means a group
health care service plan contract issued to a small employer, as
defined in Section 1357.
(c) "PPACA" means Section 2794 of the federal Public Health
Service Act (42 U.S.C. Sec. 300gg-94), as amended by the federal
Patient Protection and Affordable Care Act (P.L. 111-48), and any
subsequent rules, regulations, or guidance issued under that section.
(d) "Unreasonable rate increase" has the same meaning as that term
is defined in PPACA.
SEC. 143. Section 1399.834 of the Health and Safety Code is
amended to read:
1399.834. (a) All health care service plan contracts offered to a
child or on behalf of a child to a responsible party for a child
shall conform to the requirements of Sections 1365, 1366.3, and
1373.6, and shall be renewable at the option of the enrollee or
responsible party for a child on behalf of the enrollee except as
permitted to be canceled, rescinded, or not renewed pursuant to
Section 1365.
(b) Any plan that ceases to offer for sale new individual health
care service plan contracts pursuant to Section 1365 shall continue
to be governed by this article with respect to business conducted
under this article.
(c) Except as authorized under Section 1399.833, a plan that, as
of the effective date of this article, does not write new health care
service plan contracts for children in this state or that, after the
effective date of this article, ceases to write new health care
service plan contracts for children in this state shall be prohibited
from offering for sale new individual health care service plan
contracts in this state for a period of five years from the date of
notice to the director.
SEC. 144. Section 1399.835 of the Health and Safety Code is
amended to read:
1399.835. On or before July 1, 2011, the director may issue
guidance to health plans regarding compliance with this article and
that guidance shall not be subject to the Administrative Procedure
Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code). The guidance shall
only be effective until the director and the Insurance Commissioner
adopt joint regulations pursuant to the Administrative Procedure Act.
SEC. 145. Section 1506 of the Health and Safety Code is amended to
read:
1506. (a) (1) Any holder of a valid license issued by the
department that authorizes the licensee to engage in foster family
agency functions may use only a certified family home that has been
certified by that agency or a licensed foster family home approved
for this use by the licensing county pursuant to Section 1506.5.
(2) Any home selected and certified for the reception and care of
children by that licensee shall not, during the time it is certified
and used only by that agency for these placements or care, be subject
to Section 1508. A certified family home may not be concurrently
licensed as a foster family home or as any other licensed residential
facility.
(3) A child with a developmental disability who is placed in a
certified family home by a foster family agency that is operating
under agreement with the regional center responsible for that child
may remain in the certified family home after the age of 18 years.
The determination regarding whether and how long he or she may remain
as a resident after the age of 18 years shall be made through the
agreement of all parties involved, including the resident, the foster
parent, the foster family agency social worker, the resident's
regional center case manager, and the resident's parent, legal
guardian, or conservator, as appropriate. This determination shall
include a needs and service plan that contains an assessment of the
child's needs to ensure continued compatibility with the other
children in placement. The needs and service plan shall be completed
no more than six months prior to the child's 18th birthday. The
assessment shall be documented and maintained in the child's file
with the foster family agency.
(b) (1) A foster family agency shall certify to the department
that the home has met the department's licensing standards. A foster
family agency may require a family home to meet additional standards
or be compatible with its treatment approach.
(2) The foster family agency shall issue a certificate of approval
to the certified family home upon its determination that it has met
the standards established by the department and before the placement
of any child in the home. The certificate shall be valid for a period
not to exceed one year. The annual recertification shall require a
certified family home to complete at least 12 hours of structured
applicable training or continuing education. At least one hour of
training during the first six months following initial certification
shall be dedicated to meeting the requirements of paragraph (1) of
subdivision (b) of Section 11174.1 of the Penal Code.
(3) If the agency determines that the home no longer meets the
standards, it shall notify the department and the local placing
agency.
(c) The department shall develop licensing regulations
differentiating between foster family agencies that provide treatment
of children in foster families and those that provide nontreatment
services.
(d) As used in this chapter, "certified family home" means a
family residence certified by a licensed foster family agency and
issued a certificate of approval by that agency as meeting licensing
standards, and used only by that foster family agency for placements.
(e) (1) Requirements for social work personnel for a foster family
agency shall be a master's degree from an accredited or
state-approved graduate school in social work or social welfare, or
equivalent education and experience, as determined by the department.
(2) Persons who possess a master's degree from an accredited or
state-approved graduate school in any of the following areas, or
equivalent education and experience, as determined by the department,
shall be considered to be qualified to perform social work
activities in a foster family agency:
(A) Marriage, family, and child counseling.
(B) Child psychology.
(C) Child development.
(D) Counseling psychology.
(E) Social psychology.
(F) Clinical psychology.
(G) Educational psychology, consistent with the scope of practice
as described in Section 4989.14 of the Business and Professions Code.
(H) Education, with emphasis on counseling.
(f) (1) In addition to the degree specifications in subdivision
(e), all of the following coursework and field practice or
experience, as defined in departmental regulations, shall be required
of all new hires for the position of social work personnel effective
January 1, 1995:
(A) At least three semester units of field practice at the master'
s level or six months' full-time equivalent experience in a public or
private social service agency setting.
(B) At least nine semester units of coursework related to human
development or human behavior, or, within the first year of
employment, experience working with children and families as a major
responsibility of the position under the supervision of a supervising
social worker.
(C) At least three semester units in working with minority
populations or six months of experience in working with minority
populations or training in cultural competency and working with
minority populations within the first six months of employment as a
condition of employment.
(D) At least three semester units in child welfare or at least six
months of experience in a public or private child welfare social
services setting for a nonsupervisory social worker. A supervising
social worker shall have two years' experience in a public or private
child welfare social services setting.
(2) (A) Persons who do not meet the requirements specified in
subdivision (e) or (f) may apply for an exception as provided for in
subdivisions (g) and (h).
(B) Exceptions granted by the department prior to January 1, 1995,
shall remain in effect.
(3) (A) Persons who are hired as social work personnel on or after
January 1, 1995, who do not meet the requirements listed in this
subdivision shall be required to successfully meet those requirements
in order to be employed as social work personnel in a foster family
agency.
(B) Employees who were hired prior to January 1, 1995, shall not
be required to meet the requirements of this subdivision in order to
remain employed as social work personnel in a foster family agency.
(4) Coursework and field practice or experience completed to
fulfill the degree requirements of subdivision (e) may be used to
satisfy the requirements of this subdivision.
(g) Individuals seeking an exception to the requirements of
subdivision (e) or (f) based on completion of equivalent education
and experience shall apply to the department by the process
established by the department.
(h) The department shall be required to complete the process
for the exception to minimum education and experience requirements
described in subdivisions (e) and (f) within 30 days of receiving the
exception application of social work personnel or supervising social
worker qualifications from the foster family agency.
(i) The department shall review the feasibility of instituting a
licensure category to cover foster homes that are established
specifically to care for and supervise adults with developmental
disabilities, as defined in subdivision (a) of Section 4512 of the
Welfare and Institutions Code, to prevent the institutionalization of
those individuals.
(j) For purposes of this section, "social work personnel" means
supervising social workers as well as nonsupervisory social workers.
SEC. 146. Section 1777 of the Health and Safety Code is amended to
read:
1777. (a) The Continuing Care Advisory Committee of the
department shall act in an advisory capacity to the department on
matters relating to continuing care contracts.
(b) The members of the committee shall include:
(1) Three representatives of nonprofit continuing care providers
pursuant to this chapter, each of whom shall have offered continuing
care services for at least five years prior to appointment. One
member shall represent a multifacility provider and shall be
appointed by the Governor in even years. One member shall be
appointed by the Senate Committee on Rules in odd years. One member
shall be appointed by the Speaker of the Assembly in odd years.
(2) Three senior citizens who are not eligible for appointment
pursuant to paragraphs (1) and (4) who shall represent consumers of
continuing care services, all of whom shall be residents of
continuing care retirement communities but not residents of the same
provider. One senior citizen member shall be appointed by the
Governor in even years. One senior citizen member shall be appointed
by the Senate Committee on Rules in odd years. One senior citizen
member shall be appointed by the Speaker of the Assembly in odd
years.
(3) A certified public accountant with experience in the
continuing care industry, who is not a provider of continuing care
services. This member shall be appointed by the Governor in even
years.
(4) A representative of a for-profit provider of continuing care
contracts pursuant to this chapter. This member shall be appointed by
the Governor in even years.
(5) An actuary. This member shall be appointed by the Governor in
even years.
(6) One representative of residents of continuing care retirement
communities appointed by the senior citizen representatives on the
committee.
(7) One representative of either nonprofit or for-profit providers
appointed by the representatives of nonprofit and for-profit
providers on the committee.
(c) Commencing January 1, 1997, all members shall serve two-year
terms and be appointed based on their interest and expertise in the
subject area. The Governor shall designate the chairperson for the
committee with the advice and consent of the Senate. A member may be
reappointed at the pleasure of the appointing power. The appointing
power shall fill all vacancies on the committee within 60 days. All
members shall continue to serve until their successors are appointed
and qualified.
(d) The members of the committee shall serve without compensation,
except that each member shall be paid from the Continuing Care
Provider Fee Fund a per diem of twenty-five dollars ($25) for each
day's attendance at a meeting of the committee not to exceed six days
in any month. The members of the committee shall also receive their
actual and necessary travel expenses incurred in the course of their
duties. Reimbursement of travel expenses shall be at rates not to
exceed those applicable to comparable state employees under
Department of Personnel Administration regulations.
(e) Prior to commencement of service, each member shall file with
the department a statement of economic interest and a statement of
conflict of interest pursuant to Article 3 (commencing with Section
87300) of the Government Code.
(f) If, during the period of appointment, any member no longer
meets the qualifications of subdivision (b), that member shall submit
his or her resignation to their appointing power and a qualified new
member shall be appointed by the same power to fulfill the remainder
of the term.
(g) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
SEC. 147. Section 1788 of the Health and Safety Code is amended to
read:
1788. (a) A continuing care contract shall contain all of the
following:
(1) The legal name and address of each provider.
(2) The name and address of the continuing care retirement
community.
(3) The resident's name and the identity of the unit the resident
will occupy.
(4) If there is a transferor other than the resident, the
transferor shall be a party to the contract and the transferor's name
and address shall be specified.
(5) If the provider has used the name of any charitable or
religious or nonprofit organization in its title before January 1,
1979, and continues to use that name, and that organization is not
responsible for the financial and contractual obligations of the
provider or the obligations specified in the continuing care
contract, the provider shall include in every continuing care
contract a conspicuous statement that clearly informs the resident
that the organization is not financially responsible.
(6) The date the continuing care contract is signed by the
resident and, where applicable, any other transferor.
(7) The duration of the continuing care contract.
(8) A list of the services that will be made available to the
resident as required to provide the appropriate level of care. The
list of services shall include the services required as a condition
for licensure as a residential care facility for the elderly,
including all of the following:
(A) Regular observation of the resident's health status to ensure
that his or her dietary needs, social needs, and needs for special
services are satisfied.
(B) Safe and healthful living accommodations, including
housekeeping services and utilities.
(C) Maintenance of house rules for the protection of residents.
(D) A planned activities program, which includes social and
recreational activities appropriate to the interests and capabilities
of the resident.
(E) Three balanced, nutritious meals and snacks made available
daily, including special diets prescribed by a physician as a medical
necessity.
(F) Assisted living services.
(G) Assistance with taking medications.
(H) Central storing and distribution of medications.
(I) Arrangements to meet health needs, including arranging
transportation.
(9) An itemization of the services that are included in the
monthly fee and the services that are available at an extra charge.
The provider shall attach a current fee schedule to the continuing
care contract.
(10) The procedures and conditions under which a resident may be
voluntarily and involuntarily transferred from a designated living
unit. The transfer procedures, at a minimum, shall include provisions
addressing all of the following circumstances under which a transfer
may be authorized:
(A) A continuing care retirement community may transfer a resident
under the following conditions, taking into account the
appropriateness and necessity of the transfer and the goal of
promoting resident independence:
(i) The resident is nonambulatory. The definition of
"nonambulatory," as provided in Section 13131, shall either be stated
in full in the continuing care contract or be cited. If Section
13131 is cited, a copy of the statute shall be made available to the
resident, either as an attachment to the continuing care contract or
by specifying that it will be provided upon request. If a
nonambulatory resident occupies a room that has a fire clearance for
nonambulatory residents, transfer shall not be necessary.
(ii) The resident develops a physical or mental condition that
endangers the health, safety, or well-being of the resident or
another person.
(iii) The resident's condition or needs require the resident's
transfer to an assisted living care unit or skilled nursing facility,
because the level of care required by the resident exceeds that
which may be lawfully provided in the living unit.
(iv) The resident's condition or needs require the resident's
transfer to a nursing facility, hospital, or other facility, and the
provider has no facilities available to provide that level of care.
(B) Before the continuing care retirement community transfers a
resident under any of the conditions set forth in subparagraph (A),
the community shall satisfy all of the following requirements:
(i) Involve the resident and the resident's responsible person, as
defined in paragraph (6) of subdivision (r) of Section 87101 of
Title 22 of the California Code of Regulations, and upon the resident'
s or responsible person's request, family members, or the resident's
physician or other appropriate health professional, in the assessment
process that forms the basis for the level of care transfer decision
by the provider. The provider shall offer an explanation of the
assessment process. If an assessment tool or tools, including scoring
and evaluating criteria, are used in the determination of the
appropriateness of the transfer, the provider shall make copies of
the completed assessment available upon the request of the resident
or the resident's responsible person.
(ii) Prior to sending a formal notification of transfer, the
provider shall conduct a care conference with the resident and the
resident's responsible person, and upon the resident's or responsible
person's request, family members, and the resident's health care
professionals, to explain the reasons for transfer.
(iii) Notify the resident and the resident's responsible person of
the reasons for the transfer in writing.
(iv) Notwithstanding any other provision of this subparagraph, if
the resident does not have impairment of cognitive abilities, the
resident may request that his or her responsible person not be
involved in the transfer process.
(v) The notice of transfer shall be made at least 30 days before
the transfer is expected to occur, except when the health or safety
of the resident or other residents is in danger, or the transfer is
required by the resident's urgent medical needs. Under those
circumstances, the written notice shall be made as soon as
practicable before the transfer.
(vi) The written notice shall contain the reasons for the
transfer, the effective date, the designated level of care or
location to which the resident will be transferred, a statement of
the resident's right to a review of the transfer decision at a care
conference, as provided for in subparagraph (C), and for disputed
transfer decisions, the right to review by the Continuing Care
Contracts Branch of the State Department of Social Services, as
provided for in subparagraph (D). The notice shall also contain the
name, address, and telephone number of the department's Continuing
Care Contracts Branch.
(vii) The continuing care retirement community shall provide
sufficient preparation and orientation to the resident to ensure a
safe and orderly transfer and to minimize trauma.
(C) The resident has the right to review the transfer decision at
a subsequent care conference that shall include the resident, the
resident's responsible person, and upon the resident's or responsible
person's request, family members, the resident's physician or other
appropriate health care professional, and members of the provider's
interdisciplinary team. The local ombudsperson may also be included
in the care conference, upon the request of the resident, the
resident's responsible person, or the provider.
(D) For disputed transfer decisions, the resident or the resident'
s responsible person has the right to a prompt and timely review of
the transfer process by the Continuing Care Contracts Branch of the
State Department of Social Services.
(E) The decision of the department's Continuing Care Contracts
Branch shall be in writing and shall determine whether the provider
failed to comply with the transfer process pursuant to subparagraphs
(A) to (C), inclusive. Pending the decision of the Continuing Care
Contracts Branch, the provider shall specify any additional care the
provider believes is necessary in order for the resident to remain in
his or her unit. The resident may be required to pay for the extra
care, as provided in the contract.
(F) Transfer of a second resident when a shared accommodation
arrangement is terminated.
(11) Provisions describing any changes in the resident's monthly
fee and any changes in the entrance fee refund payable to the
resident that will occur if the resident transfers from any unit,
including, but not limited to, terminating his or her contract after
18 months of residential temporary relocation, as defined in
paragraph (8) of subdivision (r) of Section 1771.
(12) The provider's continuing obligations, if any, in the event a
resident is transferred from the continuing care retirement
community to another facility.
(13) The provider's obligations, if any, to resume care upon the
resident's return after a transfer from the continuing care
retirement community.
(14) The provider's obligations to provide services to the
resident while the resident is absent from the continuing care
retirement community.
(15) The conditions under which the resident must permanently
release his or her living unit.
(16) If real or personal properties are transferred in lieu of
cash, a statement specifying each item's value at the time of
transfer, and how the value was ascertained.
(A) An itemized receipt that includes the information described
above is acceptable if incorporated as a part of the continuing care
contract.
(B) When real property is or will be transferred, the continuing
care contract shall include a statement that the deed or other
instrument of conveyance shall specify that the real property is
conveyed pursuant to a continuing care contract and may be subject to
rescission by the transferor within 90 days from the date that the
resident first occupies the residential unit.
(C) The failure to comply with this paragraph shall not affect the
validity of title to real property transferred pursuant to this
chapter.
(17) The amount of the entrance fee.
(18) In the event two parties have jointly paid the entrance fee
or other payment that allows them to occupy the unit, the continuing
care contract shall describe how any refund of entrance fees is
allocated.
(19) The amount of any processing fee.
(20) The amount of any monthly care fee.
(21) For continuing care contracts that require a monthly care fee
or other periodic payment, the continuing care contract shall
include the following:
(A) A statement that the occupancy and use of the accommodations
by the resident is contingent upon the regular payment of the fee.
(B) The regular rate of payment agreed upon (per day, week, or
month).
(C) A provision specifying whether payment will be made in advance
or after services have been provided.
(D) A provision specifying the provider will adjust monthly care
fees for the resident's support, maintenance, board, or lodging, when
a resident requires medical attention while away from the continuing
care retirement community.
(E) A provision specifying whether a credit or allowance will be
given to a resident who is absent from the continuing care retirement
community or from meals. This provision shall also state, when
applicable, that the credit may be permitted at the discretion or by
special permission of the provider.
(F) A statement of billing practices, procedures, and timelines. A
provider shall allow a minimum of 14 days between the date a bill is
sent and the date payment is due. A charge for a late payment may
only be assessed if the amount and any condition for the penalty is
stated on the bill.
(22) All continuing care contracts that include monthly care fees
shall address changes in monthly care fees by including either of the
following provisions:
(A) For prepaid continuing care contracts, which include monthly
care fees, one of the following methods:
(i) Fees shall not be subject to change during the lifetime of the
agreement.
(ii) Fees shall not be increased by more than a specified number
of dollars in any one year and not more than a specified number of
dollars during the lifetime of the agreement.
(iii) Fees shall not be increased in excess of a specified
percentage over the preceding year and not more than a specified
percentage during the lifetime of the agreement.
(B) For monthly fee continuing care contracts, except prepaid
contracts, changes in monthly care fees shall be based on projected
costs, prior year per capita costs, and economic indicators.
(23) A provision requiring that the provider give written notice
to the resident at least 30 days in advance of any change in the
resident's monthly care fees or in the price or scope of any
component of care or other services.
(24) A provision indicating whether the resident's rights under
the continuing care contract include any proprietary interests in the
assets of the provider or in the continuing care retirement
community, or both. Any statement in a contract concerning an
ownership interest shall appear in a large-sized font or print.
(25) If the continuing care retirement community property is
encumbered by a security interest that is senior to any claims the
residents may have to enforce continuing care contracts, a provision
shall advise the residents that any claims they may have under the
continuing care contract are subordinate to the rights of the secured
lender. For equity projects, the continuing care contract shall
specify the type and extent of the equity interest and whether any
entity holds a security interest.
(26) Notice that the living units are part of a continuing care
retirement community that is licensed as a residential care facility
for the elderly and, as a result, any duly authorized agent of the
department may, upon proper identification and upon stating the
purpose of his or her visit, enter and inspect the entire premises at
any time, without advance notice.
(27) A conspicuous statement, in at least 10-point boldface type
in immediate proximity to the space reserved for the signatures of
the resident and, if applicable, the transferor, that provides as
follows: "You, the resident or transferor, may cancel the transaction
without cause at any time within 90 days from the date you first
occupy your living unit. See the attached notice of cancellation form
for an explanation of this right."
(28) Notice that during the cancellation period, the continuing
care contract may be canceled upon 30 days' written notice by the
provider without cause, or that the provider waives this right.
(29) The terms and conditions under which the continuing care
contract may be terminated after the cancellation period by either
party, including any health or financial conditions.
(30) A statement that, after the cancellation period, a provider
may unilaterally terminate the continuing care contract only if the
provider has good and sufficient cause.
(A) Any continuing care contract containing a clause that provides
for a continuing care contract to be terminated for "just cause,"
"good cause," or other similar provision, shall also include a
provision that none of the following activities by the resident, or
on behalf of the resident, constitutes "just cause," "good cause," or
otherwise activates the termination provision:
(i) Filing or lodging a formal complaint with the department or
other appropriate authority.
(ii) Participation in an organization or affiliation of residents,
or other similar lawful activity.
(B) The provision required by this paragraph shall also state that
the provider shall not discriminate or retaliate in any manner
against any resident of a continuing care retirement community for
contacting the department, or any other state, county, or city
agency, or any elected or appointed government official to file a
complaint or for any other reason, or for participation in a
residents' organization or association.
(C) Nothing in this paragraph diminishes the provider's ability to
terminate the continuing care contract for good and sufficient
cause.
(31) A statement that at least 90 days' written notice to the
resident is required for a unilateral termination of the continuing
care contract by the provider.
(32) A statement concerning the length of notice that a resident
is required to give the provider to voluntarily terminate the
continuing care contract after the cancellation period.
(33) The policy or terms for refunding any portion of the entrance
fee, in the event of cancellation, termination, or death. Every
continuing care contract that provides for a refund of all or a part
of the entrance fee shall also do all of the following:
(A) Specify the amount, if any, the resident has paid or will pay
for upgrades, special features, or modifications to the resident's
unit.
(B) State that if the continuing care contract is canceled or
terminated by the provider, the provider shall do both of the
following:
(i) Amortize the specified amount at the same rate as the resident'
s entrance fee.
(ii) Refund the unamortized balance to the resident at the same
time the provider pays the resident's entrance fee refund.
(C) State that the resident has a right to terminate his or her
contract after 18 months of residential temporary relocation, as
defined in paragraph (8) of subdivision (r) of Section 1771.
Provisions for refunds due to cancellation pursuant to this
subparagraph shall be set forth in the contract.
(34) The following notice at the bottom of the signatory page:
""NOTICE'' (date)
"This is a continuing care contract as defined by paragraph (8) of
subdivision (c), or subdivision ( l ) of Section 1771 of
the California Health and Safety Code. This continuing care contract
form has been approved by the State Department of Social Services as
required by subdivision (b) of Section 1787 of the California Health
and Safety Code. The basis for this approval was a determination that
(provider name) has submitted a contract that complies with the
minimum statutory requirements applicable to continuing care
contracts. The department does not approve or disapprove any of the
financial or health care coverage provisions in this contract.
Approval by the department is NOT a guaranty of performance or an
endorsement of any continuing care contract provisions. Prospective
transferors and residents are strongly encouraged to carefully
consider the benefits and risks of this continuing care contract and
to seek financial and legal advice before signing."
(35) The provider may not attempt to absolve itself in the
continuing care contract from liability for its negligence by any
statement to that effect, and shall include the following statement
in the contract: "Nothing in this continuing care contract limits
either the provider's obligation to provide adequate care and
supervision for the resident or any liability on the part of the
provider which may result from the provider's failure to provide this
care and supervision."
(36) Provisions describing how the provider will proceed in the
event of a closure, including an explanation of how the provider will
comply with Sections 1793.80, 1793.81, 1793.82, and 1793.83.
(b) A life care contract shall also provide that:
(1) All levels of care, including acute care and physicians' and
surgeons' services, will be provided to a resident.
(2) Care will be provided for the duration of the resident's life
unless the life care contract is canceled or terminated by the
provider during the cancellation period or after the cancellation
period for good cause.
(3) A comprehensive continuum of care will be provided to the
resident, including skilled nursing, in a facility under the
ownership and supervision of the provider on, or adjacent to, the
continuing care retirement community premises.
(4) Monthly care fees will not be changed based on the resident's
level of care or service.
(5) A resident who becomes financially unable to pay his or her
monthly care fees shall be subsidized provided the resident's
financial need does not arise from action by the resident to divest
the resident of his or her assets.
(c) Continuing care contracts may include provisions that do any
of the following:
(1) Subsidize a resident who becomes financially unable to pay for
his or her monthly care fees at some future date. If a continuing
care contract provides for subsidizing a resident, it may also
provide for any of the following:
(A) The resident shall apply for any public assistance or other
aid for which he or she is eligible and that the provider may apply
for assistance on behalf of the resident.
(B) The provider's decision shall be final and conclusive
regarding any adjustments to be made or any action to be taken
regarding any charitable consideration extended to any of its
residents.
(C) The provider is entitled to payment for the actual costs of
care out of any property acquired by the resident subsequent to any
adjustment extended to the resident under this paragraph, or from any
other property of the resident that the resident failed to disclose.
(D) The provider may pay the monthly premium of the resident's
health insurance coverage under Medicare to ensure that those
payments will be made.
(E) The provider may receive an assignment from the resident of
the right to apply for and to receive the benefits, for and on behalf
of the resident.
(F) The provider is not responsible for the costs of furnishing
the resident with any services, supplies, and medication, when
reimbursement is reasonably available from any governmental agency,
or any private insurance.
(G) Any refund due to the resident at the termination of the
continuing care contract may be offset by any prior subsidy to the
resident by the provider.
(2) Limit responsibility for costs associated with the treatment
or medication of an ailment or illness existing prior to the date of
admission. In these cases, the medical or surgical exceptions, as
disclosed by the
medical entrance examination, shall be listed in the continuing care
contract or in a medical report attached to and made a part of the
continuing care contract.
(3) Identify legal remedies that may be available to the provider
if the resident makes any material misrepresentation or omission
pertaining to the resident's assets or health.
(4) Restrict transfer or assignments of the resident's rights and
privileges under a continuing care contract due to the personal
nature of the continuing care contract.
(5) Protect the provider's ability to waive a resident's breach of
the terms or provisions of the continuing care contract in specific
instances without relinquishing its right to insist upon full
compliance by the resident with all terms or provisions in the
contract.
(6) Provide that the resident shall reimburse the provider for any
uninsured loss or damage to the resident's unit, beyond normal wear
and tear, resulting from the resident's carelessness or negligence.
(7) Provide that the resident agrees to observe the off-limit
areas of the continuing care retirement community designated by the
provider for safety reasons. The provider may not include any
provision in a continuing care contract that absolves the provider
from liability for its negligence.
(8) Provide for the subrogation to the provider of the resident's
rights in the case of injury to a resident caused by the acts or
omissions of a third party, or for the assignment of the resident's
recovery or benefits in this case to the provider, to the extent of
the value of the goods and services furnished by the provider to or
on behalf of the resident as a result of the injury.
(9) Provide for a lien on any judgment, settlement, or recovery
for any additional expense incurred by the provider in caring for the
resident as a result of injury.
(10) Require the resident's cooperation and assistance in the
diligent prosecution of any claim or action against any third party.
(11) Provide for the appointment of a conservator or guardian by a
court with jurisdiction in the event a resident becomes unable to
handle his or her personal or financial affairs.
(12) Allow a provider, whose property is tax exempt, to charge the
resident, on a pro rata basis, property taxes, or in-lieu taxes,
that the provider is required to pay.
(13) Make any other provision approved by the department.
(d) A copy of the resident's rights as described in Section 1771.7
shall be attached to every continuing care contract.
(e) A copy of the current audited financial statement of the
provider shall be attached to every continuing care contract. For a
provider whose current audited financial statement does not
accurately reflect the financial ability of the provider to fulfill
the continuing care contract obligations, the financial statement
attached to the continuing care contract shall include all of the
following:
(1) A disclosure that the reserve requirement has not yet been
determined or met, and that entrance fees will not be held in escrow.
(2) A disclosure that the ability to provide the services promised
in the continuing care contract will depend on successful compliance
with the approved financial plan.
(3) A copy of the approved financial plan for meeting the reserve
requirements.
(4) Any other supplemental statements or attachments necessary to
accurately represent the provider's financial ability to fulfill its
continuing care contract obligations.
(f) A schedule of the average monthly care fees charged to
residents for each type of residential living unit for each of the
five years preceding execution of the continuing care contract shall
be attached to every continuing care contract. The provider shall
update this schedule annually at the end of each fiscal year. If the
continuing care retirement community has not been in existence for
five years, the information shall be provided for each of the years
the continuing care retirement community has been in existence.
(g) If any continuing care contract provides for a health
insurance policy for the benefit of the resident, the provider shall
attach to the continuing care contract a binder complying with
Sections 382 and 382.5 of the Insurance Code.
(h) The provider shall attach to every continuing care contract a
completed form in duplicate, captioned "Notice of Cancellation." The
notice shall be easily detachable, and shall contain, in at least
10-point boldface type, the following statement:
""NOTICE OF CANCELLATION'' (date)
Your first date of occupancy under this contract
is: _____________________________________________
"You may cancel this transaction, without any penalty within 90
calendar days from the above date.
If you cancel, any property transferred, any payments made by you
under the contract, and any negotiable instrument executed by you
will be returned within 14 calendar days after making possession of
the living unit available to the provider. Any security interest
arising out of the transaction will be canceled.
If you cancel, you are obligated to pay a reasonable processing
fee to cover costs and to pay for the reasonable value of the
services received by you from the provider up to the date you
canceled or made available to the provider the possession of any
living unit delivered to you under this contract, whichever is later.
If you cancel, you must return possession of any living unit
delivered to you under this contract to the provider in substantially
the same condition as when you took possession.
Possession of the living unit must be made available to the
provider within 20 calendar days of your notice of cancellation. If
you fail to make the possession of any living unit available to the
provider, then you remain liable for performance of all obligations
under the contract.
To cancel this transaction, mail or deliver a signed and dated
copy of this cancellation notice, or any other written notice, or
send a telegram
to
(Name of provider)
at
(Address of provider's place of business)
not later than midnight of _____________ (date).
I hereby cancel
this _________________________
transaction
(Resident's
or
Transferor's signature)''
SEC. 148. Section 1793.90 of the Health and Safety Code is amended
to read:
1793.90. (a) All providers shall include in resident contracts
the procedures to be followed to ensure that residential temporary
relocations provide comparable levels of care, services, and living
accommodations as described in the resident's contract.
(b) The provider shall notify the resident of the impending
relocation at least 60 days in advance of the relocation.
(c) The provider shall meet with the resident and, at the resident'
s request, family members or other individuals, at least 30 days in
advance of the transfer to discuss all aspects of the transfer,
including, but not limited to, the rights, requirements, and
procedures set forth in this article. Notice of this meeting shall be
provided in writing and at least seven days in advance of the
meeting and shall include all of the following information:
(1) The date of the transfer.
(2) The available replacement unit or units and monthly fees.
(3) The time when the resident will be able to inspect the
replacement unit or units.
(4) The estimated date when the resident will be able to return to
his or her unit or may move to a substitute permanent unit.
(d) If accommodations are not available at a continuing care
retirement community operated by the provider within a 30-mile
radius, the provider shall be required to provide a unit in a
facility, agreed to by the resident, that most closely provides the
services, size, features, and amenities provided in the unit being
vacated.
(e) The provider shall be required to arrange and pay for all
moving costs to the new facility and moving costs to the
reconstructed facility, if the resident returns, as well as storage
costs.
(f) The resident shall only be required to pay to the provider the
monthly fee required in the resident's contract, or the monthly fee
in the new facility, whichever is less. The provider shall be
required to make payment to the facility to which the resident is
relocated.
(g) Upon request by the resident or the resident's representative,
the provider shall make available the services of a licensed medical
or geriatric professional to advise the resident, the resident's
representative, and the provider regarding the relocation of the
resident. The provider may place a reasonable limit on the cost of
the services of the medical or geriatric professional.
(h) The provider shall identify unique service and care needs, if
applicable, for a resident directly affected by the residential
temporary relocation. The unique services and care needs identified
shall be in writing and shall become a part of the resident's plan of
care.
SEC. 149. Section 1797.172 of the Health and Safety Code is
amended to read:
1797.172. (a) The authority shall develop and, after approval by
the commission pursuant to Section 1799.50, adopt minimum standards
for the training and scope of practice for EMT-P.
(b) The approval of the director, in consultation with a committee
of local EMS medical directors named by the EMS Medical Directors
Association of California, is required prior to implementation of any
addition to a local optional scope of practice for EMT-Ps proposed
by the medical director of a local EMS agency.
(c) Notwithstanding any other provision of law, the authority
shall be the agency solely responsible for licensure and licensure
renewal of EMT-Ps who meet the standards and are not precluded from
licensure because of any of the reasons listed in subdivision (d) of
Section 1798.200. Each application for licensure or licensure renewal
shall require the applicant's social security number in order to
establish the identity of the applicant. The information obtained as
a result of a state and federal level criminal offender record
information search shall be used in accordance with Section 11105 of
the Penal Code, and to determine whether the applicant is subject to
denial of licensure or licensure renewal pursuant to this division.
Submission of fingerprint images to the Department of Justice may not
be required for licensure renewal upon determination by the
authority that fingerprint images have previously been submitted to
the Department of Justice during initial licensure, or a previous
licensure renewal, provided that the license has not lapsed and the
applicant has resided continuously in the state since the initial
licensure.
(d) The authority shall charge fees for the licensure and
licensure renewal of EMT-Ps in an amount sufficient to support the
authority's licensure program at a level that ensures the
qualifications of the individuals licensed to provide quality care.
The basic fee for licensure or licensure renewal of an EMT-P shall
not exceed one hundred twenty-five dollars ($125) until the adoption
of regulations that specify a different amount that does not exceed
the authority's EMT-P licensure, license renewal, and enforcement
programs. The authority shall annually evaluate fees to determine if
the fee is sufficient to fund the actual costs of the authority's
licensure, licensure renewal, and enforcement programs. If the
evaluation shows that the fees are excessive or are insufficient to
fund the actual costs of the authority's EMT-P licensure, licensure
renewal, and enforcement programs, then the fees shall be adjusted
accordingly through the rulemaking process described in the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code).
Separate additional fees may be charged, at the option of the
authority, for services that are not shared by all applicants for
licensure and licensure renewal, including, but not limited to, any
of the following services:
(1) Initial application for licensure as an EMT-P.
(2) Competency testing, the fee for which shall not exceed thirty
dollars ($30), except that an additional fee may be charged for the
cost of any services that provide enhanced availability of the exam
for the convenience of the EMT-P, such as on-demand electronic
testing.
(3) Fingerprint and criminal record check. The applicant shall, if
applicable according to subdivision (c), submit fingerprint images
and related information for criminal offender record information
searches with the Department of Justice and the Federal Bureau of
Investigation.
(4) Out-of-state training equivalency determination.
(5) Verification of continuing education for a lapse in licensure.
(6) Replacement of a lost licensure card. The fees charged for
individual services shall be set so that the total fees charged to
EMT-Ps shall not exceed the authority's actual total cost for the
EMT-P licensure program.
(e) The authority may provide nonconfidential, nonpersonal
information relating to EMS programs to interested persons upon
request, and may establish and assess fees for the provision of this
information. These fees shall not exceed the costs of providing the
information.
(f) At the option of the authority, fees may be collected for the
authority by an entity that contracts with the authority to provide
any of the services associated with the EMT-P program. All fees
collected for the authority in a calendar month by any entity
designated by the authority pursuant to this section to collect fees
for the authority shall be transmitted to the authority for deposit
into the Emergency Medical Services Personnel Fund within 30 calendar
days following the last day of the calendar month in which the fees
were received by the designated entity, unless the contract between
the entity and the authority specifies a different timeframe.
SEC. 150. Section 1797.217 of the Health and Safety Code is
amended to read:
1797.217. (a) Every certifying entity shall submit to the
authority certification data required by Section 1797.117.
(b) The authority shall collect fees from each certifying entity
for the certification and certification renewal of each EMT-I and
EMT-II in an amount sufficient to support the authority's central
registry program and the local EMS agency administrative law judge
reimbursement program. Separate additional fees may be charged, at
the option of the authority, for services that are not shared by all
applicants.
(c) The authority's fees shall be established in regulations, and
fees charged for individual services shall be set so that the total
fees charged shall not exceed the authority's actual total cost for
the authority's central registry program, state and federal criminal
offender record information search response program, and the local
EMS agency administrative law judge reimbursement program.
(d) In addition to any fees collected by EMT-I or EMT-II
certifying entities to support their certification, recertification,
or enforcement programs, EMT-I or EMT-II certifying entities shall
collect fees to support the authority's central registry program, and
the local EMS agency administrative law judge reimbursement program.
In lieu of collecting fees from an individual, pursuant to an
employer choice, a collective bargaining agreement, or other
employment contract, the certifying entity shall provide the
appropriate fees to the authority pursuant to this subdivision.
(e) All fees collected for or provided to the authority in a
calendar month by an EMT-I or EMT-II certifying entity pursuant to
this section shall be transmitted to the authority for deposit into
the Emergency Medical Technician Certification Fund within 30
calendar days following the last day of the calendar month in which
the fees were received by the certifying entity, unless a contract
between the certifying entity and the authority specifies a different
timeframe.
(f) At the option of the authority, fees may be collected for the
authority by an entity that contracts with the authority to provide
any of the services associated with the registry program, or the
state and federal criminal offender record information search
response program, or the local EMS agency administrative law judge
reimbursement program. All fees collected for the authority in a
calendar month by any entity designated by the authority pursuant to
this section to collect fees for the authority shall be transmitted
to the authority for deposit into the Emergency Medical Technician
Certification Fund within 30 calendar days following the last day of
the calendar month in which the fees were received by the designated
entity, unless the contract between the entity and the authority
specifies a different timeframe.
(g) The authority shall annually evaluate fees to determine if the
fee is sufficient to fund the actual costs of the authority's
central registry program, state and federal criminal offender record
information search response program, and local EMS agency
administrative law judge reimbursement program. If the evaluation
shows that the fees are excessive or are insufficient to fund the
actual costs of these programs, then the fees will be adjusted
accordingly through the rulemaking process as outlined in the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code).
(h) The Emergency Medical Technician Certification Fund is hereby
created in the State Treasury. All moneys deposited in the fund shall
be made available, upon appropriation, to the authority for purposes
of the central registry program, state and federal criminal offender
record information search response program, and the local EMS agency
administrative law judge reimbursement program. The local EMS agency
administrative law judge reimbursement program is solely for the
purpose of making reimbursements to local emergency medical service
agencies for actual administrative law judge costs regarding EMT-I or
EMT-II disciplinary action appeals. Reimbursement to the local
emergency medical service agencies shall only be made if adequate
funds are available from fees collected for the authority's local EMS
agency administrative law judge reimbursement program.
(i) The authority may transfer unused portions of the Emergency
Medical Technician Certification Fund to the Surplus Money Investment
Fund. Funds transferred to the Surplus Money Investment Fund shall
be placed in a separate trust account, and shall be available for
transfer to the Emergency Medical Technician Certification Fund,
together with interest earned, when requested by the authority.
(j) The authority shall maintain a reserve balance in the
Emergency Medical Technician Certification Fund of 5 percent of
annual revenues. Any increase in the fees deposited in the Emergency
Medical Technician Certification Fund shall be effective upon a
determination by the authority that additional moneys are required to
fund expenditures of this section.
SEC. 151. Section 8016 of the Health and Safety Code is amended to
read:
8016. (a) If there is more than one request for repatriation for
the same item, or there is a dispute between the requesting party and
the agency or museum, or if a dispute arises in relation to the
repatriation process, the commission shall notify the affected
parties of this fact and the cultural affiliation of the item in
question shall be determined in accordance with this section.
(b) Any agency or museum receiving a repatriation request pursuant
to subdivision (a) shall repatriate human remains and cultural items
if all of the following criteria have been met:
(1) The requested human remains or cultural items meet the
definitions of human remains or cultural items that are subject to
inventory requirements under subdivision (a) of Section 8013.
(2) The state cultural affiliation of the human remains or
cultural items is established as required under subdivision (f) of
Section 8012.
(3) The agency or museum is unable to present evidence that, if
standing alone before the introduction of evidence to the contrary,
would support a finding that the agency or museum has a right of
possession to the requested cultural items.
(4) None of the exemptions listed in Section 10.10(c) of Title 43
of the Federal Code of Regulations apply.
(5) All other applicable requirements of regulations adopted under
the federal Native American Graves Protection and Repatriation Act
(25 U.S.C. Sec. 3001 et seq.), contained in Part 10 of Title 43 of
the Code of Federal Regulations, have been met.
(c) Within 30 days after notice has been provided by the
commission, the museum or agency shall have the right to file with
the commission any objection to the requested repatriation, based on
its good faith belief that the requested human remains or cultural
items are not culturally affiliated with the requesting California
tribe or are not subject to repatriation under this chapter.
(d) The disputing parties shall submit documentation describing
the nature of the dispute, in accordance with standard mediation
practices and the commission's procedures, to the commission, which
shall, in turn, forward the documentation to the opposing party or
parties. The disputing parties shall meet within 30 days of the date
of the mailing of the documentation with the goal of settling the
dispute.
(e) If, after meeting pursuant to subdivision (b), the parties are
unable to settle the dispute, the commission, or a certified
mediator designated by the commission in accordance with subdivision
(b) of Section 8026, shall mediate the dispute.
(f) Each disputing party shall submit complaints and supporting
evidence to the commission or designated mediator and the other
opposing parties detailing their positions on the disputed issues in
accordance with standard mediation practices and the commission's
mediation procedures. Each party shall have 20 days from the date the
complaint and supporting evidence were mailed to respond to the
complaints. All responses shall be submitted to the opposing party or
parties and the commission or designated mediator.
(g) The commission or designated mediator shall review all
complaints, responses, and supporting evidence submitted. Within 20
days after the date of submission of responses, the commission or
designated mediator shall hold a mediation session and render a
decision within seven days of the date of the mediation session.
(h) When the disposition of any items are disputed, the party in
possession of the items shall retain possession until the mediation
process is completed. No transfer of items shall occur until the
dispute is resolved.
(i) Tribal oral histories, documentations, and testimonies shall
not be afforded less evidentiary weight than other relevant
categories of evidence on account of being in those categories.
(j) If the parties are unable to resolve a dispute through
mediation, the dispute shall be resolved by the commission. The
determination of the commission shall be deemed to constitute a final
administrative remedy. Any party to the dispute seeking a review of
the determination of the commission is entitled to file an action in
the superior court seeking an independent judgment on the record as
to whether the commission's decision is supported by a preponderance
of the evidence. The independent review shall not constitute a de
novo review of a decision by the commission, but shall be limited to
a review of the evidence on the record. Petitions for review shall be
filed with the court not later than 30 days after the final decision
of the commission.
SEC. 152. Section 11364 of the Health and Safety Code is amended
to read:
11364. (a) It is unlawful to possess an opium pipe or any device,
contrivance, instrument, or paraphernalia used for unlawfully
injecting or smoking (1) a controlled substance specified in
subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of
Section 11054, specified in paragraph (14), (15), or (20) of
subdivision (d) of Section 11054, specified in subdivision (b) or (c)
of Section 11055, or specified in paragraph (2) of subdivision (d)
of Section 11055, or (2) a controlled substance which is a narcotic
drug classified in Schedule III, IV, or V.
(b) This section shall not apply to hypodermic needles or syringes
that have been containerized for safe disposal in a container that
meets state and federal standards for disposal of sharps waste.
(c) Pursuant to authorization by a county, with respect to all of
the territory within the county, or a city, with respect to the
territory within the city, for the period commencing January 1, 2005,
and ending December 31, 2018, subdivision (a) shall not apply to the
possession solely for personal use of 10 or fewer hypodermic needles
or syringes if acquired from an authorized source.
SEC. 153. Section 16500 of the Health and Safety Code is amended
to read:
16500. The office of the State Architect shall adopt guidelines
applicable to substandard conditions of school buildings, as defined
in Section 17283 of the Education Code, which guidelines shall take
into consideration the unique design, use, safety needs, and
construction of the school buildings.
SEC. 154. Section 25214.2 of the Health and Safety Code is amended
to read:
25214.2. (a) A person shall not manufacture, ship, sell, offer
for sale, or offer for promotional purposes jewelry for retail sale
or promotional purposes in the state, unless the jewelry is made
entirely from a class 1, class 2, or class 3 material, or any
combination of those materials.
(b) Notwithstanding subdivision (a), a person shall not
manufacture, ship, sell, offer for sale, or offer for promotional
purposes children's jewelry for retail sale or promotional purposes
in the state, unless the children's jewelry is made entirely from one
or more of the following materials:
(1) A nonmetallic material that is a class 1 material and that
does not otherwise violate the requirements of paragraph (4).
(2) A nonmetallic material that is a class 2 material.
(3) A metallic material that is either a class 1 material or
contains less than 0.06 percent (600 parts per million) lead by
weight.
(4) Glass or crystal decorative components that weigh in total no
more than one gram, excluding any glass or crystal decorative
component that contains less than 0.02 percent (200 parts per
million) lead by weight and has no intentionally added lead.
(5) Printing ink or ceramic
glaze that contains less than 0.06 percent (600 parts per million)
lead by weight.
(6) Class 3 material that contains less than 0.02 percent (200
parts per million) lead by weight.
(c) Notwithstanding subdivision (a), a person shall not
manufacture, ship, sell, offer for sale, or offer for promotional
purposes body piercing jewelry for retail sale or promotional
purposes in the state, unless the body piercing jewelry is made of
one or more of the following materials:
(1) Surgical implant stainless steel.
(2) Surgical implant grade of titanium.
(3) Niobium (Nb).
(4) Solid 14 karat or higher white or yellow nickel-free gold.
(5) Solid platinum.
(6) A dense low-porosity plastic, including, but not limited to,
Tygon or Polytetrafluoroethylene (PTFE), if the plastic contains no
intentionally added lead.
(d) Notwithstanding subdivision (d) of Section 25214.3, as of
January 1, 2012, a person shall not manufacture, ship, sell, offer
for sale, or offer for promotional purposes children's jewelry that
contains any component or is made of any material that is more than
0.03 percent cadmium (300 parts per million) by weight. This
subdivision shall not apply to any toy regulated for cadmium exposure
under the federal Consumer Product Safety Improvement Act of 2008
(P.L. 110-314).
(e) The department may establish a standard for children's jewelry
or for a component of children's jewelry that is more protective of
public health, of sensitive subpopulations, or of the environment
than the standard established pursuant to subdivision (d).
SEC. 155. Section 25214.3 of the Health and Safety Code is amended
to read:
25214.3. (a) Except as provided in Sections 25214.3.3 and
25214.3.4, a person who violates this article shall not be subject to
criminal penalties imposed pursuant to this chapter and shall only
be subject to the administrative or civil penalty specified in
subdivision (b).
(b) (1) A person who violates this article shall be liable for an
administrative or a civil penalty not to exceed two thousand five
hundred dollars ($2,500) per day for each violation. That
administrative or civil penalty may be assessed and recovered in an
administrative action filed with the Office of Administrative
Hearings or in a civil action brought in any court of competent
jurisdiction.
(2) In assessing the amount of an administrative or a civil
penalty for a violation of this article, the presiding officer or the
court, as applicable, shall consider all of the following:
(A) The nature and extent of the violation.
(B) The number of, and severity of, the violations.
(C) The economic effect of the penalty on the violator.
(D) Whether the violator took good faith measures to comply with
this article and the time these measures were taken.
(E) The willfulness of the violator's misconduct.
(F) The deterrent effect that the imposition of the penalty would
have on both the violator and the regulated community as a whole.
(G) Any other factor that justice may require.
(c) Administrative and civil penalties collected pursuant to this
article shall be deposited in the Toxic Substances Control Account,
for expenditure by the department, upon appropriation by the
Legislature, to implement and enforce this article, except as
provided in Section 25192.
(d) (1) Notwithstanding subdivision (b), a party that is a
signatory to the amended consent judgment, or a party that is a
signatory to a consent judgment entered in the consolidated action
entitled People v. Burlington Coat Factory Warehouse Corporation, et
al. (Alameda Superior Court Lead Case No. RG 04-162075) that contains
identical or substantially identical terms as provided in Sections
2, 3, and 4 of the amended consent judgment, shall not be subject to
enforcement pursuant to this article, and an action brought to
enforce this article against the party shall be subject to Section 4
of the amended consent judgment.
(2) The Legislature finds and declares that the amendment of this
subdivision by Chapter 575 of the Statutes of 2008 is declaratory of
existing law.
(e) (1) For the purpose of administering and enforcing this
article, an authorized representative of the department, upon
obtaining consent or after obtaining an inspection warrant pursuant
to Title 13 (commencing with Section 1822.50) of Part 3 of the Code
of Civil Procedure, may, upon presenting appropriate credentials and
at a reasonable time, do either of the following:
(A) Enter a factory, warehouse, or establishment where jewelry is
manufactured, packed, held, or sold; enter a vehicle that is being
used to transport, hold, or sell jewelry; or enter a place where
jewelry is being held or sold.
(B) Inspect a factory, warehouse, establishment, vehicle, or place
described in subparagraph (A), and all pertinent equipment, raw
material, finished and unfinished materials, containers, and labeling
in the factory, warehouse, establishment, vehicle, or place. In the
case of a factory, warehouse, or establishment where jewelry is
manufactured, packed, held, or sold, this inspection shall include
any record, file, paper, process, control, and facility that has a
bearing on whether the jewelry is being manufactured, packed, held,
transported, sold, or offered for sale or for promotional purposes in
violation of this article.
(2) (A) An authorized representative of the department may secure
a sample of jewelry when taking an action authorized pursuant to this
subdivision. If the representative obtains a sample prior to leaving
the premises, he or she shall leave a receipt describing the sample
obtained.
(B) The department shall return, upon request, a sample that is
not destroyed during testing if the department no longer has any
purpose for retaining the sample.
(C) A sample that is secured in compliance with this section and
found to be in compliance with this article that is destroyed during
testing shall be subject to a claim for reimbursement.
(3) An authorized representative of the department shall have
access to all records of a carrier in commerce relating to the
movement in commerce of jewelry, or the holding of that jewelry
during or after the movement, and the quantity, shipper, and
consignee of the jewelry. A carrier shall not be subject to the other
provisions of this article by reason of its receipt, carriage,
holding, or delivery of jewelry in the usual course of business as a
carrier.
(4) An authorized representative of the department shall be deemed
to have received implied consent to enter a retail establishment,
for purposes of this section, if the authorized representative enters
the location of that retail establishment where the public is
generally granted access.
SEC. 156. Section 25250.50 of the Health and Safety Code is
amended to read:
25250.50. For purposes of this article, the following definitions
shall apply:
(a) (1) "Advisory committee" means a committee of nine members
appointed by the secretary on or before January 1, 2019, to consider
and recommend approval or denial of an application for an extension
of the requirements imposed pursuant to Section 25250.53.
(2) A person considered for appointment to the advisory committee
shall disclose any financial interests the person may have in any
aspect of the vehicle or vehicle parts manufacturing industry prior
to appointment by the secretary or, in the case of subparagraph (C)
of paragraph (3), prior to nomination.
(3) The advisory committee shall be composed of the following
members:
(A) (i) One-third of the members shall be representatives of the
manufacturers of brake friction materials and motor vehicles, to be
appointed by the secretary in consultation with the chair of the
board and the director of the department.
(ii) If the application for an extension of the requirements
imposed pursuant to Section 25250.53 pertains solely to brake
friction materials to be used on heavy-duty motor vehicles, the
members appointed pursuant to this subparagraph shall represent the
manufacturers of heavy-duty brake friction materials and heavy-duty
motor vehicles.
(B) One-third of the members shall be representatives of municipal
storm water quality agencies and nongovernmental environmental
organizations, to be appointed by the secretary in consultation with
the chair of the board and the director of the department.
(C) One-third of the members shall be experts in vehicle and
braking safety, economics, and other relevant technical areas, to be
appointed by the secretary, upon nomination by a majority of the
members specified in subparagraph (A) concurrently with a majority of
the members specified in subparagraph (B).
(4) For purposes of this subdivision, a "financial interest" shall
have the same meaning as a financial interest described in Section
87103 of the Government Code, except only with regard to business
entities, real property, or sources of income that are related to the
vehicle or vehicle parts manufacturing industry.
(b) "Board" means the State Water Resources Control Board.
(c) "Department" means the Department of Toxic Substances Control.
(d) "Heavy-duty motor vehicle" means a motor vehicle of over
26,000 pounds gross weight.
(e) (1) "Manufacturer," except where otherwise specified, means
both of the following:
(A) A manufacturer or assembler of motor vehicles or motor vehicle
equipment.
(B) An importer of motor vehicles or motor vehicle equipment for
resale.
(2) A manufacturer includes a vehicle brake friction materials
manufacturer.
(f) "Motor vehicle" and "vehicle" have the same meaning as the
definition of "vehicle" in Section 670 of the Vehicle Code.
(g) "Testing certification agency" means a third-party testing
certification agency that is utilized by a vehicle brake friction
materials manufacturer and that has an accredited laboratory program
that provides testing in accordance with the certification agency
requirements that are approved by the department.
SEC. 157. Section 25250.54 of the Health and Safety Code is
amended to read:
25250.54. (a) (1) On and after January 1, 2019, a manufacturer
may apply to the department for a one-year, two-year, or three-year
extension of the January 1, 2025, deadline established in Section
25250.53, except as provided in subdivision (h).
(2) An extension application submitted pursuant to this section
shall be submitted based on vehicle model, class, platform, or other
vehicle-based category, and not on the basis of the brake friction
material formulation.
(3) The application shall be accompanied by documentation that
will allow the advisory committee to make a recommendation pursuant
to subdivisions (e) and (f).
(4) The documentation shall include a scientifically sound
quantitative estimate of the quantity of copper that would be emitted
if the extension is granted, including a description of the
assumptions used in arriving at that estimate.
(b) No more than 30 days after receipt of an application for an
extension pursuant to subdivision (a), the department shall do all of
the following:
(1) Post a notice of receipt on the department's Internet Web site
that includes the vehicle model, class, platform, or other
vehicle-based category, whether the brake friction material is
intended for use in original equipment or replacement parts, and the
quantity of copper that would be emitted if the extension is granted.
(2) Consult with the board and the State Air Resources Board.
(3) Solicit comment from the public and from scientific and
vehicle engineering experts on the availability of generally
affordable compliant brake friction materials, their safety and
performance characteristics, and the feasibility of brake pad copper
emissions reduction through means other than friction material
reformulation.
(c) (1) In consultation with the board, the department shall
determine if sufficient documentation has been presented upon which
to base a decision. If the department determines that further
documentation is needed, it shall deliver a detailed request for
further documentation to the applicant.
(2) Not later than 30 days after receipt of the application for an
extension pursuant to subdivision (a), the department shall forward
the application to the advisory committee for the purpose of the
advisory committee making a recommendation pursuant to subdivisions
(e) and (f).
(d) (1) In considering any application for an extension, the
advisory committee shall consider all of the documentation supplied
by the applicant pursuant to subdivision (a).
(2) The advisory committee may request, no later than 75 days
after receipt of the application from the department pursuant to
subdivision (c), further documentation from the applicant.
(3) The advisory committee shall hold at least one public hearing
at which it shall accept and consider comments from the public on
each category of application. The advisory committee meetings shall
be open to the public and are subject to the Bagley-Keene Open
Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1
of Part 1 of Division 3 of Title 2 of the Government Code).
(e) (1) The advisory committee shall recommend to the secretary
that the extension be approved if the advisory committee determines
that there are no brake friction materials that are safe and
available for individual or multiple vehicle models, classes,
platforms, or other vehicle-based categories identified in the
application.
(2) The advisory committee shall recommend to the secretary that
the extension not be approved if the advisory committee determines
that alternative brake friction materials are safe and available for
individual or multiple vehicle models, classes, platforms, or other
vehicle-based categories identified in the application.
(3) For purposes of this section, "safe and available" shall mean
all of the following:
(A) The brake system for which the alternative brake friction
material is manufactured meets applicable federal safety standards,
or if no federal standard exists, a widely accepted safety standard.
(B) Acceptable alternative brake friction materials are
commercially available for the individual or multiple vehicles,
classes, platforms, or vehicle-based categories identified in the
application.
(C) Adequate industry testing and production capacity exists to
supply the alternative brake friction materials for use on the
individual or multiple vehicles, classes, platforms, or vehicle-based
categories identified in the application.
(D) The alternative brake friction material is technically
feasible for use on the individual or multiple vehicles, classes,
platforms, or vehicle-based categories identified in the application.
(E) The alternative brake friction materials meet customer
performance expectations, including noise, wear, vibration, and
durability for the individual or multiple vehicles, classes,
platforms, or vehicle-based categories identified in the application.
(F) The alternative acceptable brake friction material is
economically feasible with respect to the industry and the cost to
the consumer for the individual or multiple vehicles, classes,
platforms, or vehicle-based categories identified in the application.
(4) The advisory committee shall provide relevant data to the
department and the board concerning the potential impacts of the
extension on California watersheds for purposes of the report
required pursuant to Section 25250.65.
(f) (1) No sooner than 60 days and no later than 120 days after
the department solicits comments pursuant to paragraph (3) of
subdivision (b), the advisory committee shall make a recommendation
to the secretary in accordance with subdivisions (d) and (e) as to
whether the application for extension should be approved or not
approved.
(2) The recommendation of the advisory committee that the
secretary approve or not approve the application for extension shall
be accompanied by documentation of the basis for the recommendation.
(g) (1) The secretary shall make available the recommendation of
the advisory committee and the accompanying documentation for public
review and comment for 60 days following receipt of the
recommendation from the advisory committee.
(2) The secretary shall consider public comments on the advisory
committee's recommendation and issue a final decision on the
application for extension no later than 45 days after the conclusion
of the 60-day comment period.
(3) In making the determination whether to approve or disapprove
the extension, the secretary shall rely upon the recommendations made
by the advisory committee pursuant to subdivision (f).
(4) If the secretary does not follow the recommendation of the
advisory committee made pursuant to subdivision (f), he or she shall
explain in writing the basis of his or her decision.
(h) (1) On or before December 31, 2029, a manufacturer with an
approved extension of the January 1, 2025, deadline established in
Section 25250.53, may reapply to the department for additional
two-year extensions from the deadline in accordance with a schedule
that may be established by the department.
(2) Except as provided in subdivision (i), a manufacturer may not
apply on or after January 1, 2030, for an extension of the January 1,
2025, deadline established in Section 25250.53.
(3) The department shall comply with all of the requirements of
this section when granting an additional extension of the January 1,
2025, deadline pursuant to this subdivision.
(i) (1) On and after January 1, 2030, a manufacturer of vehicle
brake friction materials to be used on heavy-duty vehicles with an
approved extension of the January 1, 2025, deadline established in
Section 25250.53, may reapply to the department for additional
two-year extensions from the deadline established in Section
25250.53, that results in an extension of that deadline to a date on
and after January 1, 2032.
(2) The department shall comply with all of the requirements of
this section when granting an additional extension of the January 1,
2025, deadline pursuant to this subdivision.
(j) The department shall assess a fee for each application for an
extension sufficient to cover actual costs incurred in implementing
this section. The department may expend the fees collected pursuant
to this subdivision, upon appropriation by the Legislature, for
reimbursement for the costs incurred in implementing this section.
(k) When granting an extension pursuant to this section, the
department, board, advisory committee, and secretary shall comply
with the requirements of Section 25358.2, to ensure the protection of
trade secrets, as defined in Section 25358.2.
SEC. 158. Section 25250.56 of the Health and Safety Code is
amended to read:
25250.56. (a) In developing new formulations to comply with
Sections 25250.52 and 25250.53, a manufacturer of vehicle brake
friction materials shall screen potential alternatives to the use of
copper by using the Toxics Information Clearinghouse developed by the
department and the Office of Environmental Health Hazard Assessment
pursuant to Section 25256, for the purpose of identifying potential
impacts of these potential alternatives on public health and the
environment.
(b) In conducting the screening analysis required by subdivision
(a), a manufacturer of vehicle brake friction materials shall, using
information available to the manufacturer at the time of the
analysis, including information from the department and other
sources, consider the environmental fate of brake friction materials
and their emissions through all phases of the brake friction material
life cycle.
(c) A manufacturer of vehicle brake friction materials shall use
the screening analysis required by subdivision (a) or an open source
alternatives assessment to select alternatives to copper that pose
less of a potential hazard to public health and the environment.
(d) Upon request by the department, a manufacturer of vehicle
brake friction materials or importer of record shall provide a
summary demonstrating how the screening analysis conducted pursuant
to this section or an open source alternatives assessment is used to
inform the selection of alternatives to copper that pose less of a
potential hazard to public health and the environment, as required by
subdivision (c).
SEC. 159. Section 25996 of the Health and Safety Code is amended
to read:
25996. Commencing January 1, 2015, a shelled egg shall not be
sold or contracted for sale for human consumption in California if it
is the product of an egg-laying hen that was confined on a farm or
place that is not in compliance with animal care standards set forth
in Chapter 13.8 (commencing with Section 25990).
SEC. 160. Section 33331.4 of the Health and Safety Code is amended
to read:
33331.4. (a) A redevelopment agency undertaking activities and
funding involving property described in paragraph (3) of subdivision
(c) of Section 33030 shall comply with all of the requirements of
this part, except as specifically modified in subdivision (b).
(b) In addition to the requirements specified in subdivision (a),
all of the following apply:
(1) The project shall include the replacement, on at least a
one-to-one basis, of all existing public housing units. The
replacement dwelling units shall be affordable to, and occupied by,
extremely low, very low, and lower income households as defined in
Sections 50079.5, 50105, and 50106, at the same or lower income level
as the household displaced from the public housing units, for at
least 55 years.
(2) The replacement dwelling units may be either publicly or
privately owned and shall meet all of the following requirements:
(A) Be located either inside the project area, or within a
five-mile radius of the parcel containing the public housing that is
being replaced.
(B) Shall be, for each income level described in paragraph (1), a
unit type and size as required by the displaced household. The
required size shall conform to the principles for a public housing
policy on occupancy, contained in the "Public Housing Occupancy
Guidebook," published by the United States Department of Housing and
Urban Development.
(C) Shall be affordable to each displaced household that chooses
to relocate to a replacement unit, such that the rent does not exceed
30 percent of the income of that household.
(c) No household shall be displaced under this section unless the
household is given priority for a permanent replacement dwelling unit
created pursuant to this section at the initial time of relocation.
This subdivision does not apply if the household, having been given
priority for a replacement dwelling unit under this part, voluntarily
chooses not to accept the replacement dwelling unit.
(d) The project may include both of the following:
(1) The development of additional privately owned housing units
that will be available to and occupied by persons and families of low
or moderate income, as defined in Section 50093, including very low
income households, as defined in Section 50105, at an affordable
housing cost, as defined in Section 50052.5.
(2) Workforce market-rate housing units, retail services,
commercial, industrial, educational, recreational, and other uses as
may be appropriate to serve the residents of the area, and public
improvements inside or adjacent to the project area.
SEC. 161. Section 33334.25 of the Health and Safety Code is
amended to read:
33334.25. (a) The Legislature finds and declares all of the
following:
(1) The transfer of funds to a joint powers authority and the use
of pooled funds within the housing market area of the participating
agencies for the purpose of providing affordable housing are of
benefit to the project area producing the tax increment.
(2) The cost and availability of land, geophysical and
environmental limitations, community patterns, and the lack of
financing make the availability of affordable housing more difficult
in some communities.
(3) The cooperation of local agencies and the use of pooled funds
will result in more resources than would otherwise be available for
affordable housing.
(b) As used in this section, the following terms shall apply:
(1) "Housing funds" means funds in or from the low- and
moderate-income housing fund established by an agency pursuant to
Section 33334.3.
(2) "Joint powers authority" means a joint powers authority
created pursuant to Chapter 5 (commencing with Section 6500) of
Division 7 of Title 1 of the Government Code for the purposes of
receiving and using housing funds pursuant to this section.
(3) "Receiving entity" means any person, partnership, joint
venture, corporation, governmental body, or other organization
receiving housing funds from a joint powers authority for the purpose
of providing housing pursuant to this section.
(c) Notwithstanding any other provision of law, contiguous
agencies located within adjoining cities within a single metropolitan
statistical area (MSA) may, by agreement, create and participate in
a joint powers authority for the purpose of pooling their housing
funds for the direct costs of constructing, substantially
rehabilitating, and preserving the affordability of housing units
that are affordable to extremely low income households, as defined in
Section 50106. Agencies may participate in the authority upon a
finding based on substantial evidence, after a public hearing, that
the aggregation will not cause or exacerbate racial, ethnic, or
economic segregation. Agencies may transfer a portion of their
housing funds to a joint powers authority for use by the joint powers
authority pursuant to this section. The joint powers authority may
determine the kinds of housing projects or activities to be assisted,
consistent with this section. The joint powers authority may loan,
grant, or advance transferred housing funds from participating
agencies to a receiving entity for any eligible housing development
within the participating agency's jurisdiction, subject to the
requirements of this section. In addition, the agreement may
authorize the joint powers authority to issue bonds and to use the
pooled funds to leverage other funds to assist eligible developments,
including loans from private institutions and assistance provided by
other governmental agencies.
(d) A mutually binding agreement between the joint powers
authority and each participating agency shall contain the following
terms and conditions:
(1) The community of each participating agency shall have adopted
up-to-date housing elements pursuant to Article 10.6 (commencing with
Section 65580) of Division 1 of
Title 7 of the Government Code, and the housing elements
have been determined to be in compliance with the law by the
Department of Housing and Community Development.
(2) The community of each participating agency shall have met, in
its current or previous housing element cycle, 50 percent or more of
its share of the region's affordable housing needs, as defined in
Section 65584 of the Government Code, in the very low and lower
income categories of income groups defined in Section 50052.5.
(3) Each participating agency shall hold, at least 45 days prior
to the transfer of funds to the joint powers authority, a public
hearing, after providing notice pursuant to Section 6062 of the
Government Code to solicit public comments on the draft agreement.
(4) No housing funds shall be transferred from a project area that
has an indebtedness to its low- and moderate-income housing fund
pursuant to Section 33334.6.
(5) No housing funds shall be transferred from an agency that has
not met its need for replacement housing pursuant to Section 33413,
unless the agency has encumbered and contractually committed
sufficient funds to meet those requirements.
(6) Pooled funds shall be used within the participating agencies'
jurisdictions.
(7) The joint powers authority shall comply with this section.
(8) The joint powers authority shall ensure that the funds it
receives are used in accordance with this section.
(9) Funds transferred by an agency to a joint powers authority
pursuant to this section shall be expended or encumbered by the joint
powers authority for the purposes of this section within two years
of the transfer. Transferred funds not so expended or encumbered by
the joint powers authority within two years after the transfer shall
be returned to the original agency and shall be deemed excess surplus
funds as provided in, and subject to, the requirements of Sections
33334.10 and 33334.12. Excess surplus funds held by an agency shall
not be transferred to a joint powers authority.
(10) The joint powers authority shall prepare and submit an annual
report to the department that documents the amount of housing funds
received and expended or allocated for specific housing assistance
activities consistent with Section 33080.4.
(e) A mutually binding contract between the joint powers authority
and a receiving entity shall contain the following terms and
conditions:
(1) Pooled housing funds shall be used only to pay for the direct
costs of constructing, substantially rehabilitating, or preserving
the affordability of housing units that are affordable to extremely
low income persons or households.
(2) Pooled housing funds shall not be used to pay for planning and
administrative costs, offsite improvements associated with a housing
project, or fees or exactions levied solely for development projects
constructed, substantially rehabilitated, or preserved with pooled
funds. The receiving entity shall be subject to the same replacement
requirements provided in Section 33413 and any relocation
requirements applicable pursuant to Chapter 16 (commencing with
Section 7260) of Division 7 of Title 1 of the Government Code.
(3) The joint powers authority shall make findings, based on
substantial evidence on the record, that each proposed use of pooled
funds will not exacerbate racial or economic segregation.
(f) Pooled funds expended pursuant to this section shall be spent
within the project area of a participating redevelopment agency.
(g) On or after January 1, 2020, no new joint project may be
created pursuant to this section.
SEC. 162. Section 33420.1 of the Health and Safety Code is amended
to read:
33420.1. Within a project area, for any project undertaken by an
agency for building rehabilitation or alteration in construction, an
agency may take those actions which the agency determines necessary
and which are consistent with local, state, and federal law, to
provide for seismic retrofits as follows:
(a) For unreinforced masonry buildings, to meet the requirements
of Chapter 1 of the Appendix of the Uniform Code for Building
Conservation of the International Conference of Building Officials.
(b) For any buildings that qualify as "historical property" under
Section 37602, to meet the requirements of the State Historical
Building Code (Part 2.7 (commencing with Section 18950) of Division
13).
(c) For buildings other than unreinforced masonry buildings and
historical properties, to meet the requirements of the most current
edition of the Uniform Building Code of the International Conference
of Building Officials.
If an agency undertakes seismic retrofits and proposes to add new
territory to the project area, to increase either the limitation on
the number of dollars to be allocated to the redevelopment agency or
the time limit on the establishing of loans, advances, and
indebtedness established pursuant to paragraphs (1) and (2) of
subdivision (a) of Section 33333.2, to lengthen the period during
which the redevelopment plan is effective, to merge project areas, or
to add significant additional capital improvement projects, as
determined by the agency, the agency shall amend its redevelopment
plan and follow the same procedure, and the legislative body is
subject to the same restrictions, as provided for in Article 4
(commencing with Section 33330) for the adoption of a plan.
SEC. 163. Section 33684 of the Health and Safety Code is amended
to read:
33684. (a) (1) This section shall apply to each redevelopment
project area that, pursuant to a redevelopment plan that contains the
provisions required by Section 33670, meets any of the following:
(A) Was adopted on or after January 1, 1994, including later
amendments to these redevelopment plans.
(B) Was adopted prior to January 1, 1994, but amended after
January 1, 1994, to include new territory. For plans amended after
January 1, 1994, only the tax increments from territory added by the
amendment shall be subject to this section.
(C) Was adopted prior to January 1, 1994, but amended after
January 1, 1994, to increase the limitation on the number of dollars
to be allocated to the agency or that increased, or eliminated,
pursuant to paragraph (1) of subdivision (e) of Section 33333.6, the
time limit on the establishing of loans, advances, and indebtedness
established pursuant to paragraphs (1) and (2) of subdivision (a) of
Section 33333.6, as those paragraphs read on December 31, 2001, or
that lengthened the period during which the redevelopment plan is
effective if the redevelopment plan being amended contains the
provisions required by subdivision (b) of Section 33670.
(2) This section shall apply to passthrough payments, as required
by Sections 33607.5 and 33607.7, for the 2003-04 to 2008-09,
inclusive, fiscal years. For purposes of this section, a passthrough
payment shall be considered the responsibility of an agency in the
fiscal year the agency receives the tax increment revenue for which
the passthrough payment is required.
(3) For purposes of this section, "local educational agency" is a
school district, a community college district, or a county office of
education.
(b) On or before October 1, 2008, each agency shall submit a
report to the county auditor and to each affected taxing entity that
describes each project area, including its location, purpose, date
established, date or dates amended, and statutory and contractual
passthrough requirements. The report shall specify, by year, for each
project area all of the following:
(1) Gross tax increment received between July 1, 2003, and June
30, 2008, that is subject to a passthrough payment pursuant to
Sections 33607.5 and 33607.7, and accumulated gross tax increments
through June 30, 2003.
(2) Total passthrough payments to each taxing entity that the
agency deferred pursuant to a subordination agreement approved by the
taxing agency under subdivision (e) of Section 33607.5 and the dates
these deferred payments will be made.
(3) Total passthrough payments to each taxing entity that the
agency was responsible to make between July 1, 2003, and June 30,
2008, pursuant to Sections 33607.5 and 33607.7, excluding payments
identified in paragraph (2).
(4) Total passthrough payments that the agency disbursed to each
taxing entity between July 1, 2003, and June 30, 2008, pursuant to
Sections 33607.5 and 33607.7.
(5) Total sums reported in paragraph (4) for each local
educational agency that are considered to be property taxes under the
provisions of paragraph (4) of subdivision (a) of Section 33607.5
and Section 33607.7.
(6) Total outstanding payment obligations to each taxing entity as
of June 30, 2008. This amount shall be calculated by subtracting the
amounts reported in paragraph (4) from paragraph (3) and reporting
any positive difference.
(7) Total outstanding overpayments to each taxing entity as of
June 30, 2008. This amount shall be calculated by subtracting the
amounts reported in paragraph (3) from paragraph (4) and reporting
any positive difference.
(8) The dates on which the agency made payments identified in
paragraph (6) or intends to make the payments identified in paragraph
(6).
(9) A revised estimate of the agency's total outstanding
passthrough payment obligation to each taxing agency pursuant to
paragraph (6) of subdivision (b) and paragraph (6) of subdivision (c)
and the dates on which the agency intends to make these payments.
(c) On or before October 1, 2009, each agency shall submit a
report to the county auditor and to each affected taxing entity that
describes each project area, including its location, purpose, date
established, date or dates amended, and statutory and contractual
passthrough requirements. The report shall specify, by year, for each
project area all of the following:
(1) Gross tax increment received between July 1, 2008, and June
30, 2009, that is subject to a passthrough payment pursuant to
Sections 33607.5 and 33607.7.
(2) Total passthrough payments to each taxing entity that the
agency deferred pursuant to a subordination agreement approved by the
taxing entity under subdivision (e) of Section 33607.5 and the dates
these deferred payments will be made.
(3) Total passthrough payments to each taxing entity that the
agency was responsible to make between July 1, 2008, and June 30,
2009, pursuant to Sections 33607.5 and 33607.7, excluding payments
identified in paragraph (2).
(4) Total passthrough payments that the agency disbursed to each
taxing entity between July 1, 2008, and June 30, 2009, pursuant to
Sections 33607.5 and 33607.7.
(5) Total sums reported in paragraph (4) for each local
educational agency that are considered to be property taxes under the
provisions of paragraph (4) of subdivision (a) of Sections 33607.5
and 33607.7.
(6) Total outstanding payment obligations to each taxing entity as
of June 30, 2009. This amount shall be calculated by subtracting the
amounts reported in paragraph (4) from paragraph (3) and reporting
any positive difference.
(7) Total outstanding overpayments to each taxing entity as of
June 30, 2009. This amount shall be calculated by subtracting the
amounts reported in paragraph (3) from paragraph (4) and reporting
any positive difference.
(8) The dates on which the agency made payments identified in
paragraph (6) or intends to make the payments identified in paragraph
(6).
(d) If an agency reports pursuant to paragraph (6) of subdivision
(b) or paragraph (6) of subdivision (c) that it has an outstanding
passthrough payment obligation to any taxing entity, the agency shall
submit annual updates to the county auditor on October 1 of each
year until such time as the county auditor notifies the agency in
writing that the agency's outstanding payment obligations have been
fully satisfied. The report shall contain both of the following:
(1) A list of payments to each taxing agency and to the
Educational Revenue Augmentation Fund pursuant to subdivision (j)
that the agency disbursed after the agency's last update filed
pursuant to this subdivision or, if no update has been filed, after
the agency's submission of the reports required pursuant to
subdivisions (b) and (c). The list of payments shall include only
those payments that address obligations identified pursuant to
paragraph (6) of subdivision (b) and paragraph (6) of subdivision
(c). The update shall specify the date on which each payment was
disbursed.
(2) A revised estimate of the agency's total outstanding
passthrough payment obligation to each taxing agency pursuant to
paragraph (6) of subdivision (b) and paragraph (6) of subdivision (c)
and the dates on which the agency intends to make these payments.
(e) The county auditor shall review each agency's reports
submitted pursuant to subdivisions (b) and (c) and any other relevant
information to determine whether the county auditor concurs with the
information included in the reports.
(1) If the county auditor concurs with the information included in
a report, the county auditor shall issue a finding of concurrence
within 45 days.
(2) If the county auditor does not concur with the information
included in a report or considers the report to be incomplete, the
county auditor shall return the report to the agency within 45 days
with information identifying the elements of the report with which
the county auditor does not concur or considers to be incomplete. The
county auditor shall provide the agency at least 15 days to respond
to concerns raised by the county auditor regarding the information
contained in the report. An agency may revise a report that has not
received a finding of concurrence and resubmit it to the county
auditor.
(3) If an agency and county auditor do not agree regarding the
passthrough requirements of Sections 33607.5 and 33607.7, an agency
may submit a report pursuant to subdivisions (b) and (c) and a
statement of dispute identifying the issue needing resolution.
(4) An agency may amend a report for which the county auditor has
issued a finding of concurrence and resubmit the report pursuant to
paragraphs (1), (2), and (3) if any of the following apply:
(A) The county auditor and agency agree that an issue identified
in the agency's statement of dispute has been resolved and the agency
proposes to modify the sections of the report to conform with the
resolution of the statement of dispute.
(B) The county auditor and agency agree that the amount of gross
tax increment or the amount of a passthrough payment to a taxing
entity included in the report is not accurate.
(5) The Controller may revoke a finding of concurrence and direct
the agency to resubmit a report to the county auditor pursuant to
paragraphs (1), (2), and (3) if the Controller finds significant
errors in a report.
(f) On or before December 15, 2008, and annually thereafter
through 2014, the county auditor shall submit a report to the
Controller that includes all of the following:
(1) The name of each redevelopment project area in the county for
which an agency must submit a report pursuant to subdivision (b) or
(c) and information as to whether the county auditor has issued a
finding of concurrence regarding the report.
(2) A list of the agencies for which the county auditor has issued
a finding of concurrence for all project areas identified in
paragraph (1).
(3) A list of agencies for which the county auditor has not issued
a finding of concurrence for all project areas identified in
paragraph (1).
(4) Using information applicable to agencies listed in paragraph
(2), the county auditor shall report all of the following:
(A) The total sums reported by each redevelopment agency related
to each taxing entity pursuant to paragraphs (1) to (7), inclusive,
of subdivision (b) and, on or after December 15, 2009, pursuant to
paragraphs (1) to (7), inclusive, of subdivision (c).
(B) The names of agencies that have outstanding passthrough
payment obligations to a local educational agency that exceed the
amount of outstanding passthrough payments to the local educational
agency.
(C) Summary information regarding agencies' stated plans to pay
the outstanding amounts identified in paragraph (6) of subdivision
(b) and paragraph (6) of subdivision (c) and the actual amounts that
have been deposited into the county Educational Revenue Augmentation
Fund pursuant to subdivision (j).
(D) All unresolved statements of dispute filed by agencies
pursuant to paragraph (3) of subdivision (e) and the county auditor's
analyses supporting the county auditor's conclusions regarding the
issues under dispute.
(g) (1) On or before February 1, 2009, and annually thereafter
through 2015, the Controller shall submit a report to the Legislative
Analyst's Office and the Department of Finance and provide a copy to
the Board of Governors of the California Community Colleges. The
report shall provide information as follows:
(A) Identify agencies for which the county auditor has issued a
finding of concurrence for all reports required under subdivisions
(b) and (c).
(B) Identify agencies for which the county auditor has not issued
a finding of concurrence for all reports required pursuant to
subdivision (b) and all reports required pursuant to subdivision (c)
or for which a finding of concurrence has been withdrawn by the
Controller.
(C) Summarize the information reported in paragraph (4) of
subdivision (f). This summary shall identify, by local educational
agency and by year, the total amount of passthrough payments that
each local educational agency received, was entitled to receive,
subordinated, or that has not yet been paid, and the portion of these
amounts that are considered to be property taxes for purposes of
Sections 2558, 42238, and 84751 of the Education Code. The report
shall identify, by agency, the amounts that have been deposited to
the county Educational Revenue Augmentation Fund pursuant to
subdivision (j).
(D) Summarize the statements of dispute. The Controller shall
specify the status of these disputes, including whether the
Controller or other state entity has provided instructions as to how
these disputes should be resolved.
(E) Identify agencies that have outstanding passthrough payment
liabilities to a local educational agency that exceed the amount of
outstanding passthrough overpayments to the local educational agency.
(2) On or before February 1, 2009, and annually thereafter through
2015, the Controller shall submit a report to the State Department
of Education and the Board of Governors of the California Community
Colleges. The report shall identify, by local educational agency and
by year of receipt, the total amount of passthrough payments that the
local educational agency received from redevelopment agencies listed
in subparagraph (A) of paragraph (1).
(h) (1) On or before April 1, 2009, and annually thereafter until
April 1, 2015, the State Department of Education shall do all of the
following:
(A) Calculate for each school district for the 2003-04 to 2007-08,
inclusive, fiscal years the difference between 43.3 percent of the
amount reported pursuant to paragraph (2) of subdivision (g) and the
amount subtracted from each school district's apportionment pursuant
to paragraph (6) of subdivision (h) of Section 42238 of the Education
Code.
(B) Calculate for each county superintendent of schools for the
2003-04 to 2007-08, inclusive, fiscal years the difference between 19
percent of the amount reported pursuant to paragraph (2) of
subdivision (g) and the amount received pursuant to Sections 33607.5
and 33607.7 and subtracted from each county superintendent of schools
apportionment pursuant to subdivision (c) of Section 2558 of the
Education Code.
(C) Notify each school district and county superintendent of
schools for which any amount calculated in subparagraph (A) or (B) is
nonzero as to the reported change and its resulting impact on
apportionments. After April 1, 2009, however, the department shall
not notify a school district or county superintendent of schools if
the amount calculated in subparagraph (A) or (B) is the same amount
as the department calculated in the preceding year.
(2) On or before April 1, 2010, and annually thereafter until
April 1, 2015, the State Department of Education shall do all of the
following:
(A) Calculate for each school district for the 2008-09 fiscal year
the difference between 43.3 percent of the amount reported pursuant
to paragraph (2) of subdivision (g) and the amount subtracted from
each school district's apportionment pursuant to paragraph (6) of
subdivision (h) of Section 42238 of the Education Code.
(B) Calculate for each county superintendent of schools for the
2008-09 fiscal year the difference between 19 percent of the amount
reported pursuant to paragraph (2) of subdivision (g) and the amount
received pursuant to Sections 33607.5 and 33607.7 and subtracted from
each county superintendent of schools apportionment pursuant to
subdivision (c) of Section 2558 of the Education Code.
(C) Notify each school district and county superintendent of
schools for which any amount calculated in subparagraph (A) or (B) is
nonzero as to the reported change and its resulting impact on
revenue limit apportionments. After April 1, 2010, however, the
department shall not notify a school district or county
superintendent of schools if the amount calculated in subparagraph
(A) or (B) is the same amount as the department calculated in the
preceding year.
(3) For the purposes of Article 3 (commencing with Section 41330)
of Chapter 3 of Part 24 of Division 3 of Title 2 of the Education
Code, the amounts reported to each school district and county
superintendent of schools in the notification required pursuant to
subparagraph (C) of paragraph (1) and subparagraph (C) of paragraph
(2) shall be deemed to be apportionment significant audit exceptions
and the date of receipt of that notification shall be deemed to be
the date of receipt of the final audit report that includes those
audit exceptions.
(4) On or before March 1, 2009, and annually thereafter until
March 1, 2015, the Board of Governors of the California Community
Colleges shall do all of the following:
(A) Calculate for each community college district for the 2003-04
to 2007-08, inclusive, fiscal years the difference between 47.5
percent of the amount reported pursuant to paragraph (2) of
subdivision (g) and the amount subtracted from each district's total
revenue owed pursuant to subdivision (d) of Section 84751 of the
Education Code.
(B) Notify each community college district for which any amount
calculated in subparagraph (A) is nonzero as to the reported change
and its resulting impact on apportionments. After March 1, 2009,
however, the board shall not notify a school district or county
superintendent of schools if the amount calculated in subparagraph
(A) is the same amount as the board calculated in the preceding year.
(5) On or before March 1, 2010, and annually thereafter until
March 1, 2015, the Board of Governors of the California Community
Colleges shall do all of the following:
(A) Calculate for each community college district for the 2003-04
to 2007-08, inclusive, fiscal years the difference between 47.5
percent of the amount reported pursuant to paragraph (2) of
subdivision (g) and the amount subtracted from each district's total
revenue owed pursuant to subdivision (d) of Section 84751 of the
Education Code.
(B) Notify each community college district for which any amount
calculated in subparagraph (A) is nonzero as to the reported change
and its resulting impact on revenue apportionments. After March 1,
2010, however, the board shall not notify a community college
district if the amount calculated in subparagraph (A) is the same
amount as the board calculated in the preceding year.
(6) A community college district may submit documentation to the
Board of Governors of the California Community Colleges showing that
all or part of the amount reported to the district pursuant to
subparagraph (B) of paragraph (4) and subparagraph (B) of paragraph
(5) was previously reported to the California Community Colleges for
the purpose of the revenue level calculations made pursuant to
Section 84751 of the Education Code. Upon acceptance of the
documentation, the board shall adjust the amounts calculated in
paragraphs (4) and (5) accordingly.
(7) The Board of Governors of the California Community Colleges
shall make corrections in any amounts allocated in any fiscal year to
each community college district for which any amount calculated in
paragraphs (4) and (5) is nonzero so as to account for the changes
reported pursuant to paragraph (4) of subdivision (b) and paragraph
(4) of subdivision (c). The board may make the corrections over a
period of time, not to exceed five years.
(i) (1) After February 1, 2009, for an agency listed on the most
recent Controller's report pursuant to subparagraph (B) or (E) of
paragraph (1) of subdivision (g), all of the following shall apply:
(A) The agency shall be prohibited from adding new project areas
or expanding existing project areas. For purposes of this paragraph,
"project area" has the same meaning as in Sections 33320.1 to
33320.3, inclusive, and Section 33492.3.
(B) The agency shall be prohibited from issuing new bonds, notes,
interim certificates, debentures, or other obligations, whether
funded, refunded, assumed, or otherwise, pursuant to Article 5
(commencing with Section 33640).
(C) The agency shall be prohibited from encumbering any funds or
expending any moneys derived from any source, except that the agency
may encumber funds and expend funds to pay, if any, all of the
following:
(i) Bonds, notes, interim certificates, debentures, or other
obligations issued by an agency before the imposition of the
prohibition in subparagraph (B) whether funded, refunded, assumed, or
otherwise, pursuant to Article 5 (commencing with Section 33460).
(ii) Loans or moneys advanced to the agency, including, but not
limited to, loans from federal, state, local agencies, or a private
entity.
(iii) Contractual obligations that, if breached, could subject the
agency to damages or other liabilities or remedies.
(iv) Obligations incurred pursuant to Section 33445.
(v) Indebtedness incurred pursuant to Section 33334.2 or 33334.6.
(vi) Obligations incurred pursuant to Section 33401.
(vii) An amount, to be expended for the monthly operation and
administration of the agency, that may not exceed 75 percent of the
average monthly amount spent for those purposes in the fiscal year
preceding the fiscal year in which the agency was first listed on the
Controller's report
pursuant to subparagraph (B) or (E) of paragraph (1) of subdivision
(g).
(2) After February 1, 2009, an agency identified in subparagraph
(B) or (E) of paragraph (1) of subdivision (g) shall incur interest
charges on any passthrough payment that is made to a local
educational agency more than 60 days after the close of the fiscal
year in which the passthrough payment was required. Interest shall be
charged at a rate equal to 150 percent of the current Pooled Money
Investment Account earnings annual yield rate and shall be charged
for the period beginning 60 days after the close of the fiscal year
in which the passthrough payment was due through the date that the
payment is made.
(3) The Controller, with the concurrence of the Director of
Finance, may waive the provisions of paragraphs (1) and (2) for a
period of up to 12 months if the Controller determines all of the
following:
(A) The county auditor has identified the agency in its most
recent report issued pursuant to paragraph (2) of subdivision (f) as
an agency for which the auditor has issued a finding of concurrence
for all reports required pursuant to subdivisions (b) and (c).
(B) The agency has filed a statement of dispute on an issue or
issues that, in the opinion of the Controller, are likely to be
resolved in a manner consistent with the agency's position.
(C) The agency has made passthrough payments to local educational
agencies and the county Educational Revenue Augmentation Fund, or has
had funds previously withheld by the auditor, in amounts that would
satisfy the agency's passthrough payment requirements to local
educational agencies if the issue or issues addressed in the
statement of dispute were resolved in a manner consistent with the
agency's position.
(D) The agency would sustain a fiscal hardship if it made
passthrough payments to local educational agencies and the county
Educational Revenue Augmentation Fund in the amounts estimated by the
county auditor.
(j) Notwithstanding any other provision of law, if an agency
report submitted pursuant to subdivision (b) or (c) indicates
outstanding payment obligations to a local educational agency, the
agency shall make these outstanding payments as follows:
(1) Of the outstanding payments owed to school districts,
including any interest payments pursuant to paragraph (2) of
subdivision (i), 43.3 percent shall be deposited in the county
Educational Revenue Augmentation Fund and the remainder shall be
allocated to the school district or districts.
(2) Of the outstanding payments owed to community college
districts, including any interest payments pursuant to paragraph (2)
of subdivision (i), 47.5 percent shall be deposited in the county
Educational Revenue Augmentation Fund and the remainder shall be
allocated to the community college district or districts.
(3) Of the outstanding payments owed to county offices of
education, including any interest payments pursuant to paragraph (2)
of subdivision (i), 19 percent shall be deposited in the county
Educational Revenue Augmentation Fund and the remainder shall be
allocated to the county office of education.
(k) (1) This section shall not be construed to increase any
allocations of excess, additional, or remaining funds that would
otherwise have been allocated to cities, counties, cities and
counties, or special districts pursuant to clause (i) of subparagraph
(B) of paragraph (4) of subdivision (d) of Section 97.2 of, clause
(i) of subparagraph (B) of paragraph (4) of subdivision (d) of
Section 97.3 of, or Article 4 (commencing with Section 98) of Chapter
6 of Part 0.5 of Division 1 of, the Revenue and Taxation Code had
this section not been enacted.
(2) Notwithstanding any other provision of law, no funds deposited
in the county Educational Revenue Augmentation Fund pursuant to
subdivision (j) shall be distributed to a community college district.
(l) A county may require an agency to reimburse the county for any
expenses incurred by the county in performing the services required
by this section.
SEC. 164. Section 41999 of the Health and Safety Code is amended
to read:
41999. (a) The state board shall develop and establish a grant
program that provides incentives for dry cleaners in the state that
utilize perchloroethylene in their operations to transition to
utilizing dry cleaning systems determined by the state board, in
consultation with the Office of Environmental Health Hazard
Assessment, the State Water Resources Control Board, the Department
of Toxic Substances Control, and any other entity the state board
determines to be appropriate, to be nontoxic and nonsmog-forming.
(b) To be eligible for a grant pursuant to this section,
applicants shall completely replace their perchlorethylene-based dry
cleaning system with a system that the state board, in consultation
with the Office of Environmental Health Hazard Assessment, the State
Water Resources Control Board, the Department of Toxic Substances
Control, and any other entity the state board determines to be
appropriate, has determined to be nontoxic and nonsmog-forming. The
state board shall determine the eligibility of grant recipients.
(c) The state board shall make grants available in the amount of
ten thousand dollars ($10,000) to any eligible dry cleaning operation
for the purchase of a professional dry cleaning system that uses a
nontoxic and nonsmog-forming process, as determined by the state
board, in consultation with the Office of Environmental Health Hazard
Assessment, the State Water Resources Control Board, the Department
of Toxic Substances Control, and any other entity the state board
determines to be appropriate.
(d) The state board shall ensure that at least 50 percent of the
grant moneys provided pursuant to this section are awarded in a
manner that directly reduces air contaminants or reduces the public
health risk associated with air contaminants in communities with the
most 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.
(e) Commencing January 1, 2007, and every three years thereafter,
the state board shall provide a report to the Legislature evaluating
the effectiveness of the grant program.
(f) The state board shall establish a demonstration program to
showcase professional nontoxic and nonsmog-forming dry cleaning
technologies in the state. The demonstration program shall require 50
percent matching funds to cover the costs of the demonstration
program. Any entity may contribute moneys as matching funds,
including, but not limited to, a state or federal agency, an air
pollution control district or air quality management district, a
public utility district, or a nonprofit entity. Not more than 30
percent of the funds deposited annually in the Nontoxic Dry Cleaning
Incentive Trust Fund may be used for the demonstration program.
SEC. 165. Section 44272.3 of the Health and Safety Code is amended
to read:
44272.3. (a) It is the intent of the Legislature that, to the
maximum extent feasible, loan moneys provided by the state to
refiners of biofuels, also known as biorefiners, be awarded so as to
increase the efficiency and environmental sustainability of biofuel
production.
(b) In order to reduce the carbon intensity equivalent value of
the fuel that biorefiners produce, biorefiners receiving loans from
the commission's California Ethanol Producer Incentive Program,
established under the authority of this chapter, shall meet all of
the following requirements:
(1) Within six months of acceptance to the program, biorefiners
shall submit a draft plan to the commission that details one or more
projects that can be undertaken at the biorefinery that are designed
to achieve compliance with either of two biorefinery operational
enhancement goals established by the commission.
(2) Within 12 months of acceptance to the program, biorefiners
shall submit a detailed cost estimate for their target projects that
can be undertaken at the biorefinery and that are designed to achieve
compliance with the commission's enhancement goals.
(3) Within 24 months of acceptance to the program, biorefiners
shall complete and obtain all of the necessary permits or negative
declarations sufficient to allow the project to move forward with
financing, major equipment purchases, and hiring if project approval
is executed by the company's officers.
(4) Within 36 months of acceptance to the program, biorefiners
shall obtain all of the necessary financing and initiate construction
for their project associated with their elected enhancement goal
pathway.
(5) Within 48 months of acceptance to the program, biorefiners
shall complete all modifications to the facility and begin modified
operations that achieve compliance with either of the enhancement
goal pathways selected by the project applicant.
(c) This section does not limit the commission's ability to set
more stringent guidelines for the California Ethanol Producer
Incentive Program that further maximize the efficiency and
environmental sustainability of biofuel production.
(d) This section shall become inoperative on July 1, 2013, and, as
of January 1, 2014, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2014, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 166. Section 44559.11 of the Health and Safety Code is
amended to read:
44559.11. It is the intent of the Legislature to ensure that the
state, through the authority, may make maximum, efficient use of
capital access programs enacted by all federal and state agencies, as
well as funding available from any governmental program whose goals
may be advanced by providing funding to the Capital Access Loan
Program. In furtherance of this intent, and notwithstanding any other
provision of this article, when the contributions required pursuant
to subdivision (c) of Section 44559.4 are entirely funded by a source
other than the authority, the authority may, by regulation adopted
pursuant to subdivision (b) of Section 44520, establish alternate
provisions as necessary to enable the authority to participate in the
alternative funding source program.
SEC. 167. Section 50843.5 of the Health and Safety Code is amended
to read:
50843.5. (a) Subject to the availability of funding, the
department shall make matching grants available to cities, counties,
city and counties, and charitable nonprofit organizations organized
under Section 501(c)(3) of the Internal Revenue Code that have
created and are operating or will operate housing trust funds. These
funds shall be awarded through the issuance of a Notice of Funding
Availability (NOFA).
(1) Applicants that provide matching funds from a source or
sources other than impact fees on residential development shall
receive a priority for funding.
(2) The department shall set aside funding for new trusts, as
defined by the department in the NOFA.
(b) Housing trusts eligible for funding under this section shall
have the following characteristics:
(1) Utilization of a public or joint public and private fund
established by legislation, ordinance, resolution, or a
public-private partnership to receive specific revenue to address
local housing needs.
(2) Receipt of ongoing revenues from dedicated sources of funding
such as taxes, fees, loan repayments, or private contributions.
(c) The minimum allocation to an applicant that is a newly
established trust shall be five hundred thousand dollars ($500,000).
The minimum allocation for all other trusts shall be one million
dollars ($1,000,000). No applicant may receive an allocation in
excess of two million dollars ($2,000,000). All funds provided
pursuant to this section shall be matched on a dollar-for-dollar
basis with moneys that are not required by any state or federal law
to be spent on housing. No application for an existing housing trust
shall be considered unless the department has received adequate
documentation of the deposit in the local housing trust fund of the
local match and the identity of the source of matching funds. An
application for a new trust shall not be considered unless the
department has received adequate documentation, as determined by the
department, that an ordinance imposing or dedicating a tax or fee to
be deposited into the new trust has been enacted or the applicant has
adopted a legally binding commitment to deposit matching funds into
the new trust. Funds shall not be disbursed by the department to any
trust until all matching funds are on deposit and then funds may be
disbursed only in amounts necessary to fund projects identified to
receive a loan from the trust within a reasonable period of time, as
determined by the department. Applicants shall be required to
continue funding the local housing trust fund from these identified
local sources, and continue the trust in operation, for a period of
no less than five years from the date of award. If the funding is not
continued for a five-year period, then (1) the amount of the
department's grant to the local housing trust fund, to the extent
that the trust fund has unencumbered funds available, shall be
immediately repaid, and (2) any payments from any projects funded by
the local housing trust fund that would have been paid to the local
housing trust fund shall be paid instead to the department and used
for the program or its successor. The total amount paid to the
department pursuant to (1) and (2), combined, shall not exceed the
amount of the department's grant.
(d) (1) Funds shall be used for the predevelopment costs,
acquisition, construction, or rehabilitation of the following types
of housing or projects:
(A) Rental housing projects or units within rental housing
projects. The affordability of all assisted units shall be restricted
for not less than 55 years.
(B) Emergency shelters, safe havens, and transitional housing, as
these terms are defined in Section 50801.
(C) For-sale housing projects or units within for sale housing
projects.
(2) At least 30 percent of the total amount of the grant and the
match shall be expended on projects, units, or shelters that are
affordable to, and restricted for, extremely low income households,
as defined in Section 50106. No more than 20 percent of the total
amount of the grant and the match shall be expended on projects or
units affordable to, and restricted for, moderate-income persons and
families whose income does not exceed 120 percent of the area median
income. The remaining funds shall be used for projects, units, or
shelters that are affordable to, and restricted for, lower income
households, as defined in Section 50079.5.
(3) If funds are used for the acquisition, construction, or
rehabilitation of for-sale housing projects or units within for-sale
housing projects, the grantee shall record a deed restriction against
the property that will ensure compliance with one of the following
requirements upon resale of the for-sale housing units, unless it is
in conflict with the requirements of another public funding source or
law:
(A) If the property is sold within 30 years from the date that
trust funds are used to acquire, construct, or rehabilitate the
property, the owner or subsequent owner shall sell the home at an
affordable housing cost, as defined in Section 50052.5, to a
household that meets the relevant income qualifications.
(B) The owner and grantee shall share the equity in the unit
pursuant to an equity-sharing agreement. The grantee shall reuse the
proceeds of the equity-sharing agreement consistent with this
section. To the extent not in conflict with another public funding
source or law, all of the following shall apply to the equity-sharing
agreement provided for by the deed restriction:
(i) Upon resale by an owner-occupant of the home, the
owner-occupant of the home shall retain the market value of any
improvements, the downpayment, and his or her proportionate share of
appreciation. The grantee shall recapture any initial subsidy and its
proportionate share of appreciation, which shall then be used to
make housing available to persons and families of the same income
category as the original grant and for any type of housing or shelter
specified in paragraph (1).
(ii) For purposes of this subdivision, the initial subsidy shall
be equal to the fair market value of the home at the time of initial
sale to the owner-occupant minus the initial sale price to the
owner-occupant, plus the amount of any downpayment assistance or
mortgage assistance. If upon resale by the owner-occupant the market
value is lower than the initial market value, then the value at the
time of the resale shall be used as the initial market value.
(iii) For purposes of this subdivision, the grantee's
proportionate share of appreciation shall be equal to the ratio of
the initial subsidy to the fair market value of the home at the time
of the initial sale.
(e) Loan repayments shall accrue to the grantee housing trust for
use pursuant to this section. If the trust no longer exists, loan
repayments shall accrue to the department for use in the program or
its successor.
(f) (1) In order for a city, county, or city and county to be
eligible for funding, the applicant shall, at the time of
application, meet both of the following requirements:
(A) Have an adopted housing element that the department has
determined, pursuant to Section 65585 of the Government Code, is in
substantial compliance with the requirements of Article 10.6
(commencing with Section 65580) of Chapter 3 of Division 1 of Title 7
of the Government Code.
(B) Have submitted to the department the annual progress report
required by Section 65400 of the Government Code within the preceding
12 months, if the department has adopted the forms and definitions
pursuant to subparagraph (B) of paragraph (2) of subdivision (a) of
Section 65400 of the Government Code.
(2) In order for a nonprofit organization applicant to be eligible
for funding, the applicant shall agree to utilize funds provided
under this chapter only for projects located in cities, counties, or
a city and county that, at the time of application, meet both of the
following requirements:
(A) Have an adopted housing element that the department has
determined, pursuant to Section 65585 of the Government Code, to be
in substantial compliance with the requirements of Article 10.6
(commencing with Section 65580) of Chapter 3 of Division 1 of Title 7
of the Government Code.
(B) Have submitted to the department the annual progress report
required by Section 65400 of the Government Code within the preceding
12 months, if the department has adopted the forms and definitions
pursuant to subparagraph (B) of paragraph (2) of subdivision (a) of
Section 65400 of the Government Code.
(g) Recipients shall have held, or shall agree to hold, a public
hearing or hearings to discuss and describe the project or projects
that will be financed with funds provided pursuant to this section.
As a condition of receiving a grant pursuant to this section, any
nonprofit organization shall agree that it will hold one public
meeting a year to discuss the criteria that will be used to select
projects to be funded. That meeting shall be open to the public, and
public notice of this meeting shall be provided, except to the extent
that any similar meeting of a city or county would be permitted to
be held in closed session.
(h) No more than 5 percent of the funds appropriated to the
department for the purposes of this program shall be used to pay the
costs of administration of this section.
(i) A local housing trust fund shall encumber funds provided
pursuant to this section no later than 36 months after receipt. Any
funds not encumbered within that period shall revert to the
department for use in the program or its successor.
(j) Recipients shall be required to file periodic reports with the
department regarding the use of funds provided pursuant to this
section. No later than December 31 of each year in which funds are
awarded by the program, the department shall provide a report to the
Legislature regarding the number of trust funds created, a
description of the projects supported, the number of units assisted,
and the amount of matching funds received.
SEC. 168. Section 51058.5 of the Health and Safety Code is amended
to read:
51058.5. Notwithstanding any other provision of law, the agency
is not required to promulgate rules and regulations in order to
establish or operate a mortgage refinance program. Instead, that
program may be established by the governing board of the agency
through resolutions adopted by that board, and operated by the agency
in accordance with resolutions adopted by the board. Those
resolutions shall be exempt from the requirements 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).
SEC. 169. Section 102247 of the Health and Safety Code, as amended
by Section 5 of Chapter 529 of the Statutes of 2010, is amended to
read:
102247. (a) There is hereby created in the State Treasury the
Health Statistics Special Fund. The fund shall consist of revenues,
including, but not limited to, all of the following:
(1) Fees or charges remitted to the State Registrar for record
search or issuance of certificates, permits, registrations, or other
documents pursuant to Chapter 3 (commencing with Section 26801) of
Part 3 of Division 2 of Title 3 of the Government Code, and Chapter 4
(commencing with Section 102525), Chapter 5 (commencing with Section
102625), Chapter 8 (commencing with Section 103050), and Chapter 15
(commencing with Section 103600) of Part 1 of Division 102 of this
code.
(2) Funds remitted to the State Registrar by the federal Social
Security Administration for participation in the enumeration at birth
program.
(3) Funds remitted to the State Registrar by the National Center
for Health Statistics pursuant to the federal Vital Statistics
Cooperative Program.
(4) Any other funds collected by the State Registrar, except
Children's Trust Fund fees collected pursuant to Section 18966 of the
Welfare and Institutions Code, Umbilical Cord Blood Collection
Program Fund fees collected pursuant to Section 103625, and fees
allocated to the Judicial Council pursuant to Section 1852 of the
Family Code, all of which shall be deposited into the General Fund.
(b) Moneys in the Health Statistics Special Fund shall be expended
by the State Registrar for the purpose of funding its existing
programs and programs that may become necessary to carry out its
mission, upon appropriation by the Legislature.
(c) Health Statistics Special Fund moneys shall be expended only
for the purposes set forth in this section and Section 102249, and
shall not be expended for any other purpose or for any other state
program.
(d) It is the intent of the Legislature that the Health Statistics
Special Fund provide for the following:
(1) Registration and preservation of vital event records and
dissemination of vital event information to the public.
(2) Data analysis of vital statistics for population projections,
health trends and patterns, epidemiologic research, and development
of information to support new health policies.
(3) Development of uniform health data systems that are
integrated, accessible, and useful in the collection of information
on health status.
(e) This section shall remain in effect only until January 1,
2018, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2018, deletes or extends
that date.
SEC. 170. Section 102247 of the Health and Safety Code, as added
by Section 6 of Chapter 529 of the Statutes of 2010, is amended to
read:
102247. (a) There is hereby created in the State Treasury the
Health Statistics Special Fund. The fund shall consist of revenues,
including, but not limited to, all of the following:
(1) Fees or charges remitted to the State Registrar for record
search or issuance of certificates, permits, registrations, or other
documents pursuant to Chapter 3 (commencing with Section 26801) of
Part 3 of Division 2 of Title 3 of the Government Code, and Chapter 4
(commencing with Section 102525), Chapter 5 (commencing with Section
102625), Chapter 8 (commencing with Section 103050), and Chapter 15
(commencing with Section 103600) of Part 1 of Division 102 of this
code.
(2) Funds remitted to the State Registrar by the federal Social
Security Administration for participation in the enumeration at birth
program.
(3) Funds remitted to the State Registrar by the National Center
for Health Statistics pursuant to the federal Vital Statistics
Cooperative Program.
(4) Any other funds collected by the State Registrar, except
Children's Trust Fund fees collected pursuant to Section 18966 of the
Welfare and Institutions Code and fees allocated to the Judicial
Council pursuant to Section 1852 of the Family Code, all of which
shall be deposited into the General Fund.
(b) Moneys in the Health Statistics Special Fund shall be expended
by the State Registrar for the purpose of funding its existing
programs and programs that may become necessary to carry out its
mission, upon appropriation by the Legislature.
(c) Health Statistics Special Fund moneys shall be expended only
for the purposes set forth in this section and Section 102249, and
shall not be expended for any other purpose or for any other state
program.
(d) It is the intent of the Legislature that the Health Statistics
Special Fund provide for the following:
(1) Registration and preservation of vital event records and
dissemination of vital event information to the public.
(2) Data analysis of vital statistics for population projections,
health trends and patterns, epidemiologic research, and development
of information to support new health policies.
(3) Development of uniform health data systems that are
integrated, accessible, and useful in the collection of information
on health status.
(e) This section shall become operative on January 1, 2018.
SEC. 171. Section 103605 of the Health and Safety Code, as amended
by Section 7 of Chapter 529 of the Statutes of 2010, is amended to
read:
103605. (a) The moneys collected by the State Registrar shall be
deposited with the Treasurer for credit to the Health Statistics
Special Fund, except for the Children's Trust Fund fees collected
pursuant to Section 18966 of the Welfare and Institutions Code, the
Umbilical Cord Blood Collection Program Fund fees collected pursuant
to Section 103625, and the
fees allocated to the Judicial Council pursuant to Section 1852 of
the Family Code, all of which shall be deposited in the General Fund.
(b) This section shall remain in effect only until January 1,
2018, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2018, deletes or extends
that date.
SEC. 172. Section 103605 of the Health and Safety Code, as added
by Section 8 of Chapter 529 of the Statutes of 2010, is amended to
read:
103605. (a) The moneys collected by the State Registrar shall be
deposited with the Treasurer for credit to the Health Statistics
Special Fund, except for the Children's Trust Fund fees collected
pursuant to Section 18966 of the Welfare and Institutions Code and
the fees allocated to the Judicial Council pursuant to Section 1852
of the Family Code, all of which shall be deposited in the General
Fund.
(b) This section shall become operative on January 1, 2018.
SEC. 173. Section 103625 of the Health and Safety Code, as amended
by Section 9 of Chapter 529 of the Statutes of 2010, is amended to
read:
103625. (a) A fee of three dollars ($3) shall be paid by the
applicant for a certified copy of a fetal death or death record.
(b) (1) A fee of three dollars ($3) shall be paid by a public
agency or licensed private adoption agency applicant for a certified
copy of a birth certificate that the agency is required to obtain in
the ordinary course of business. A fee of nine dollars ($9) shall be
paid by any other applicant for a certified copy of a birth
certificate. Four dollars ($4) of any nine-dollar ($9) fee is exempt
from subdivision (e) and shall be paid either to a county children's
trust fund or to the State Children's Trust Fund, in conformity with
Article 5 (commencing with Section 18965) of Chapter 11 of Part 6 of
Division 9 of the Welfare and Institutions Code. Two dollars ($2) of
any nine-dollar ($9) fee is exempt from subdivision (e) and shall be
paid to the Umbilical Cord Blood Collection Program Fund in
conformity with Section 1628.
(2) The board of supervisors of any county that has established a
county children's trust fund may increase the fee for a certified
copy of a birth certificate by up to three dollars ($3) for deposit
in the county children's trust fund in conformity with Article 5
(commencing with Section 18965) of Chapter 11 of Part 6 of Division 9
of the Welfare and Institutions Code.
(c) A fee of three dollars ($3) shall be paid by a public agency
applicant for a certified copy of a marriage record, that has been
filed with the county recorder or county clerk, that the agency is
required to obtain in the ordinary course of business. A fee of six
dollars ($6) shall be paid by any other applicant for a certified
copy of a marriage record that has been filed with the county
recorder or county clerk. Three dollars ($3) of any six-dollar ($6)
fee is exempt from subdivision (e) and shall be transmitted monthly
by each local registrar, county recorder, and county clerk to the
state for deposit into the General Fund as provided by Section 1852
of the Family Code.
(d) A fee of three dollars ($3) shall be paid by a public agency
applicant for a certified copy of a marriage dissolution record
obtained from the State Registrar that the agency is required to
obtain in the ordinary course of business. A fee of six dollars ($6)
shall be paid by any other applicant for a certified copy of a
marriage dissolution record obtained from the State Registrar.
(e) Each local registrar, county recorder, or county clerk
collecting a fee pursuant to subdivisions (a) to (d), inclusive,
shall transmit 15 percent of the fee for each certified copy to the
State Registrar by the 10th day of the month following the month in
which the fee was received.
(f) In addition to the fees prescribed pursuant to subdivisions
(a) to (d), inclusive, all applicants for certified copies of the
records described in those subdivisions shall pay an additional fee
of three dollars ($3), that shall be collected by the State
Registrar, the local registrar, county recorder, or county clerk, as
the case may be.
(g) The local public official charged with the collection of the
additional fee established pursuant to subdivision (f) may create a
local vital and health statistics trust fund. The fees collected by
local public officials pursuant to subdivision (f) shall be
distributed as follows:
(1) Forty-five percent of the fee collected pursuant to
subdivision (f) shall be transmitted to the State Registrar.
(2) The remainder of the fee collected pursuant to subdivision (f)
shall be deposited into the collecting agency's vital and health
statistics trust fund, except that in any jurisdiction in which a
local vital and health statistics trust fund has not been
established, the entire amount of the fee collected pursuant to
subdivision (f) shall be transmitted to the State Registrar.
(3) Moneys transmitted to the State Registrar pursuant to this
subdivision shall be deposited in accordance with Section 102247.
(h) Moneys in each local vital and health statistics trust fund
shall be available to the local official charged with the collection
of fees pursuant to subdivision (f) for the applicable jurisdiction
for the purpose of defraying the administrative costs of collecting
and reporting with respect to those fees and for other costs as
follows:
(1) Modernization of vital record operations, including
improvement, automation, and technical support of vital record
systems.
(2) Improvement in the collection and analysis of health-related
birth and death certificate information, and other community health
data collection and analysis, as appropriate.
(i) Funds collected pursuant to subdivision (f) shall not be used
to supplant funding in existence on January 1, 2002, that is
necessary for the daily operation of vital record systems. It is the
intent of the Legislature that funds collected pursuant to
subdivision (f) be used to enhance service to the public, to improve
analytical capabilities of state and local health authorities in
addressing the health needs of newborn children and maternal health
problems, and to analyze the health status of the general population.
(j) Each county shall annually submit a report to the State
Registrar by March 1 containing information on the amount of revenues
collected pursuant to subdivision (f) in the previous calendar year
and on how the revenues were expended and for what purpose.
(k) Each local registrar, county recorder, or county clerk
collecting the fee pursuant to subdivision (f) shall transmit 45
percent of the fee for each certified copy to which subdivision (f)
applies to the State Registrar by the 10th day of the month following
the month in which the fee was received.
(l) The additional three dollars ($3) authorized to be charged to
applicants other than public agency applicants for certified copies
of marriage records by subdivision (c) may be increased pursuant to
Section 100430.
(m) In providing for the expiration of the surcharge on birth
certificate fees on June 30, 1999, the Legislature intends that
juvenile dependency mediation programs pursue ancillary funding
sources after that date.
(n) This section shall remain in effect only until January 1,
2018, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2018, deletes or extends
that date.
SEC. 174. Section 103625 of the Health and Safety Code, as added
by Section 10 of Chapter 529 of the Statutes of 2010, is amended to
read:
103625. (a) A fee of three dollars ($3) shall be paid by the
applicant for a certified copy of a fetal death or death record.
(b) (1) A fee of three dollars ($3) shall be paid by a public
agency or licensed private adoption agency applicant for a certified
copy of a birth certificate that the agency is required to obtain in
the ordinary course of business. A fee of seven dollars ($7) shall be
paid by any other applicant for a certified copy of a birth
certificate. Four dollars ($4) of any seven-dollar ($7) fee is exempt
from subdivision (e) and shall be paid either to a county children's
trust fund or to the State Children's Trust Fund, in conformity with
Article 5 (commencing with Section 18965) of Chapter 11 of Part 6 of
Division 9 of the Welfare and Institutions Code.
(2) The board of supervisors of any county that has established a
county children's trust fund may increase the fee for a certified
copy of a birth certificate by up to three dollars ($3) for deposit
in the county children's trust fund in conformity with Article 5
(commencing with Section 18965) of Chapter 11 of Part 6 of Division 9
of the Welfare and Institutions Code.
(c) A fee of three dollars ($3) shall be paid by a public agency
applicant for a certified copy of a marriage record, that has been
filed with the county recorder or county clerk, that the agency is
required to obtain in the ordinary course of business. A fee of six
dollars ($6) shall be paid by any other applicant for a certified
copy of a marriage record that has been filed with the county
recorder or county clerk. Three dollars ($3) of any six-dollar ($6)
fee is exempt from subdivision (e) and shall be transmitted monthly
by each local registrar, county recorder, and county clerk to the
state for deposit into the General Fund as provided by Section 1852
of the Family Code.
(d) A fee of three dollars ($3) shall be paid by a public agency
applicant for a certified copy of a marriage dissolution record
obtained from the State Registrar that the agency is required to
obtain in the ordinary course of business. A fee of six dollars ($6)
shall be paid by any other applicant for a certified copy of a
marriage dissolution record obtained from the State Registrar.
(e) Each local registrar, county recorder, or county clerk
collecting a fee pursuant to subdivisions (a) to (d), inclusive,
shall transmit 15 percent of the fee for each certified copy to the
State Registrar by the 10th day of the month following the month in
which the fee was received.
(f) In addition to the fees prescribed pursuant to subdivisions
(a) to (d), inclusive, all applicants for certified copies of the
records described in those subdivisions shall pay an additional fee
of three dollars ($3), that shall be collected by the State
Registrar, the local registrar, county recorder, or county clerk, as
the case may be.
(g) The local public official charged with the collection of the
additional fee established pursuant to subdivision (f) may create a
local vital and health statistics trust fund. The fees collected by
local public officials pursuant to subdivision (f) shall be
distributed as follows:
(1) Forty-five percent of the fee collected pursuant to
subdivision (f) shall be transmitted to the State Registrar.
(2) The remainder of the fee collected pursuant to subdivision (f)
shall be deposited into the collecting agency's vital and health
statistics trust fund, except that in any jurisdiction in which a
local vital and health statistics trust fund has not been
established, the entire amount of the fee collected pursuant to
subdivision (f) shall be transmitted to the State Registrar.
(3) Moneys transmitted to the State Registrar pursuant to this
subdivision shall be deposited in accordance with Section 102247.
(h) Moneys in each local vital and health statistics trust fund
shall be available to the local official charged with the collection
of fees pursuant to subdivision (f) for the applicable jurisdiction
for the purpose of defraying the administrative costs of collecting
and reporting with respect to those fees and for other costs as
follows:
(1) Modernization of vital record operations, including
improvement, automation, and technical support of vital record
systems.
(2) Improvement in the collection and analysis of health-related
birth and death certificate information, and other community health
data collection and analysis, as appropriate.
(i) Funds collected pursuant to subdivision (f) shall not be used
to supplant funding in existence on January 1, 2002, that is
necessary for the daily operation of vital record systems. It is the
intent of the Legislature that funds collected pursuant to
subdivision (f) be used to enhance service to the public, to improve
analytical capabilities of state and local health authorities in
addressing the health needs of newborn children and maternal health
problems, and to analyze the health status of the general population.
(j) Each county shall annually submit a report to the State
Registrar by March 1 containing information on the amount of revenues
collected pursuant to subdivision (f) in the previous calendar year
and on how the revenues were expended and for what purpose.
(k) Each local registrar, county recorder, or county clerk
collecting the fee pursuant to subdivision (f) shall transmit 45
percent of the fee for each certified copy to which subdivision (f)
applies to the State Registrar by the 10th day of the month following
the month in which the fee was received.
(l) The additional three dollars ($3) authorized to be charged to
applicants other than public agency applicants for certified copies
of marriage records by subdivision (c) may be increased pursuant to
Section 100430.
(m) In providing for the expiration of the surcharge on birth
certificate fees on June 30, 1999, the Legislature intends that
juvenile dependency mediation programs pursue ancillary funding
sources after that date.
(n) This section shall become operative on January 1, 2018.
SEC. 175. Section 115113 of the Health and Safety Code is amended
to read:
115113. (a) Except for an event that results from patient
movement or interference, a facility shall report to the department
an event in which the administration of radiation results in any of
the following:
(1) Repeating of a CT examination, unless otherwise ordered by a
physician or a radiologist, if the following dose values are
exceeded:
(A) 0.05Sv (5 rem) effective dose equivalent.
(B) 0.5 Sv (50 rem) to an organ or tissue.
(C) 0.5 Sv (50 rem) shallow dose equivalent to the skin.
(2) CT X-ray irradiation of a body part other than that intended
by the ordering physician or a radiologist if one of the following
dose values are exceeded:
(A) 0.05 Sv (5 rem) effective dose equivalent.
(B) 0.5 Sv (50 rem) to an organ or tissue.
(C) 0.5 Sv (50 rem) shallow dose equivalent to the skin.
(3) CT or therapeutic exposure that results in unanticipated
permanent functional damage to an organ or a physiological system,
hair loss, or erythema, as determined by a qualified physician.
(4) A CT or therapeutic dose to an embryo or fetus that is greater
than 50 mSv (5 rem) dose equivalent, that is a result of radiation
to a known pregnant individual unless the dose to the embryo or fetus
was specifically approved, in advance, by a qualified physician.
(5) Therapeutic ionizing irradiation of the wrong individual, or
wrong treatment site.
(6) The total dose from therapeutic ionizing radiation delivered
differs from the prescribed dose by 20 percent or more. A report
shall not be required pursuant to this paragraph in any instance
where the dose administered exceeds 20 percent of the amount
prescribed in a situation where the radiation was utilized for
palliative care for the specific patient. The radiation oncologist
shall notify the referring physician that the dose was exceeded.
(b) The facility shall, no later than five business days after
discovery of an event described in subdivision (a), provide
notification of the event to the department and the referring
physician of the person subject to the event and shall, no later than
15 business days after discovery of an event described in
subdivision (a) provide written notification to the person who is
subject to the event.
(c) The information required pursuant to this section shall
include, but not be limited to, information regarding each
substantiated adverse event, as defined in Section 1279.1, reported
to the department, and may include compliance information history.
SEC. 176. Section 120335 of the Health and Safety Code, as amended
by Section 2 of Chapter 434 of the Statutes of 2010, is amended to
read:
120335. (a) As used in this chapter, "governing authority" means
the governing board of each school district or the authority of each
other private or public institution responsible for the operation and
control of the institution or the principal or administrator of each
school or institution.
(b) The governing authority shall not unconditionally admit any
person as a pupil of any private or public elementary or secondary
school, child care center, day nursery, nursery school, family day
care home, or development center, unless, prior to his or her first
admission to that institution, he or she has been fully immunized.
The following are the diseases for which immunizations shall be
documented:
(1) Diphtheria.
(2) Haemophilus influenzae type b.
(3) Measles.
(4) Mumps.
(5) Pertussis (whooping cough).
(6) Poliomyelitis.
(7) Rubella.
(8) Tetanus.
(9) Hepatitis B.
(10) Varicella (chickenpox).
(11) Any other disease deemed appropriate by the department,
taking into consideration the recommendations of the Advisory
Committee on Immunization Practices of the United States Department
of Health and Human Services, the American Academy of Pediatrics, and
the American Academy of Family Physicians.
(c) Commencing July 1, 2011, notwithstanding subdivision (b), full
immunization against hepatitis B shall not be a condition by which
the governing authority admits or advances any pupil to the 7th grade
level of any private or public elementary or secondary school.
(d) Commencing July 1, 2011, the governing authority shall not
unconditionally admit or advance any pupil to the 7th through 12th
grade levels, inclusive, of any private or public elementary or
secondary school unless the pupil has been fully immunized against
pertussis, including all pertussis boosters appropriate for the pupil'
s age.
(e) The department may specify the immunizing agents that may be
utilized and the manner in which immunizations are administered.
(f) This section shall become inoperative on June 30, 2012, and as
of January 1, 2013, is repealed, unless a later enacted statute,
that is enacted before January 1, 2013, deletes or extends that date.
(g) The department may adopt emergency regulations to implement
subdivisions (c) and (d), including, but not limited to, requirements
for documentation and immunization status reports, in accordance
with 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). The initial adoption of emergency
regulations shall be deemed to be an emergency and considered by the
Office of Administrative Law as necessary for the immediate
preservation of the public peace, health and safety, or general
welfare. Emergency regulations adopted pursuant to this subdivision
shall remain in effect for no more than 180 days.
SEC. 177. Section 120335 of the Health and Safety Code, as added
by Section 3 of Chapter 434 of the Statutes of 2010, is amended to
read:
120335. (a) As used in this chapter, "governing authority" means
the governing board of each school district or the authority of each
other private or public institution responsible for the operation and
control of the institution or the principal or administrator of each
school or institution.
(b) The governing authority shall not unconditionally admit any
person as a pupil of any private or public elementary or secondary
school, child care center, day nursery, nursery school, family day
care home, or development center, unless, prior to his or her first
admission to that institution, he or she has been fully immunized.
The following are the diseases for which immunizations shall be
documented:
(1) Diphtheria.
(2) Haemophilus influenzae type b.
(3) Measles.
(4) Mumps.
(5) Pertussis (whooping cough).
(6) Poliomyelitis.
(7) Rubella.
(8) Tetanus.
(9) Hepatitis B.
(10) Varicella (chickenpox).
(11) Any other disease deemed appropriate by the department,
taking into consideration the recommendations of the Advisory
Committee on Immunization Practices of the United States Department
of Health and Human Services, the American Academy of Pediatrics, and
the American Academy of Family Physicians.
(c) Notwithstanding subdivision (b), full immunization against
hepatitis B shall not be a condition by which the governing authority
shall admit or advance any pupil to the 7th grade level of any
private or public elementary or secondary school.
(d) The governing authority shall not unconditionally admit or
advance any pupil to the 7th grade level of any private or public
elementary or secondary school unless the pupil has been fully
immunized against pertussis, including all pertussis boosters
appropriate for the pupil's age.
(e) The department may specify the immunizing agents that may be
utilized and the manner in which immunizations are administered.
(f) This section shall become operative on July 1, 2012.
SEC. 178. Section 120955 of the Health and Safety Code is amended
to read:
120955. (a) (1) To the extent that state and federal funds are
appropriated in the annual Budget Act for these purposes, the
director shall establish and may administer a program to provide drug
treatments to persons infected with human immunodeficiency virus
(HIV), the etiologic agent of acquired immunodeficiency syndrome
(AIDS). If the director makes a formal determination that, in any
fiscal year, funds appropriated for the program will be insufficient
to provide all of those drug treatments to existing eligible persons
for the fiscal year and that a suspension of the implementation of
the program is necessary, the director may suspend eligibility
determinations and enrollment in the program for the period of time
necessary to meet the needs of existing eligible persons in the
program.
(2) The director, in consultation with the AIDS Drug Assistance
Program Medical Advisory Committee, shall develop, maintain, and
update as necessary a list of drugs to be provided under this
program. The list shall be exempt from the requirements of the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340), Chapter 4 (commencing with Section 11370), and Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code), and shall not be subject to the review and
approval of the Office of Administrative Law. In addition, the
director shall notify the fiscal and policy committees of the
Legislature of any additions, deletions, or restrictions to the list
within 15 business days of the action. At a minimum, this
notification shall describe the specific change to the formulary, the
reason for the action taken, the estimated number of people it may
affect, and any estimate of costs or savings where applicable.
(b) The director may grant funds to a county public health
department through standard agreements to administer this program in
that county. To maximize the recipients' access to drugs covered by
this program, the director shall urge the county health department in
counties granted these funds to decentralize distribution of the
drugs to the recipients.
(c) The director shall establish a rate structure for
reimbursement for the cost of each drug included in the program.
Rates shall not be less than the actual cost of the drug. However,
the director may purchase a listed drug directly from the
manufacturer and negotiate the most favorable bulk price for that
drug.
(d) Manufacturers of the drugs on the list shall pay the
department a rebate equal to the rebate that would be applicable to
the drug under Section 1927(c) of the federal Social Security Act (42
U.S.C. Sec. 1396r-8(c)) plus an additional rebate to be negotiated
by each manufacturer with the department, except that no rebates
shall be paid to the department under this section on drugs for which
the department has received a rebate under Section 1927(c) of the
federal Social Security Act (42 U.S.C. Sec. 1396r-8(c)) or that have
been purchased on behalf of county health departments or other
eligible entities at discount prices made available under Section
256b of Title 42 of the United States Code.
(e) The department shall submit an invoice, not less than two
times per year, to each manufacturer for the amount of the rebate
required by subdivision (d).
(f) Drugs may be removed from the list for failure to pay the
rebate required by subdivision (d), unless the department determines
that removal of the drug from the list would cause substantial
medical hardship to beneficiaries.
(g) The department may adopt emergency regulations to implement
amendments to this chapter made during the 1997-98 Regular Session,
in accordance with the Administrative Procedure Act (Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code). The initial adoption of emergency regulations
shall be deemed to be an emergency and considered by the Office of
Administrative Law as necessary for the immediate preservation of the
public peace, health and safety, or general welfare. Emergency
regulations adopted pursuant to this section shall remain in effect
for no more than 180 days.
(h) Reimbursement under this chapter shall not be made for any
drugs that are available to the recipient under any other private,
state, or federal programs, or under any other contractual or legal
entitlements, except that the director may authorize an exemption
from this subdivision where exemption would represent a cost savings
to the state.
(i) The department may also subsidize certain cost-sharing
requirements for persons otherwise eligible for the AIDS Drug
Assistance Program (ADAP) with existing non-ADAP drug coverage by
paying for prescription drugs included on the ADAP formulary within
the existing ADAP operational structure up to, but not exceeding, the
amount of that cost-sharing obligation. This cost sharing may only
be applied in circumstances in which the other payer recognizes the
ADAP payment as counting toward the individual's cost-sharing
obligation.
SEC. 179. Section 121025 of the Health and Safety Code is amended
to read:
121025. (a) Public health records relating to human
immunodeficiency virus (HIV) or acquired immunodeficiency syndrome
(AIDS), containing personally identifying information, that were
developed or acquired by
a state or local public health agency, or an agent of that agency,
shall be confidential and shall not be disclosed, except as otherwise
provided by law for public health purposes or pursuant to a written
authorization by the person who is the subject of the record or by
his or her guardian or conservator.
(b) In accordance with subdivision (g) of Section 121022, a state
or local public health agency, or an agent of that agency, may
disclose personally identifying information in public health records,
as described in subdivision (a), to other local, state, or federal
public health agencies or to corroborating medical researchers, when
the confidential information is necessary to carry out the duties of
the agency or researcher in the investigation, control, or
surveillance of disease, as determined by the state or local public
health agency.
(c) Except as provided in paragraphs (1) to (3), inclusive, any
disclosure authorized by subdivision (a) or (b) shall include only
the information necessary for the purpose of that disclosure and
shall be made only upon agreement that the information will be kept
confidential and will not be further disclosed without written
authorization, as described in subdivision (a).
(1) Notwithstanding any other provision of law, the following
disclosures shall be authorized for the purpose of enhancing
completeness of HIV/AIDS, tuberculosis, and sexually transmitted
disease coinfection reporting to the federal Centers for Disease
Control and Prevention (CDC):
(A) The local public health agency HIV surveillance staff may
further disclose the information to the health care provider who
provides HIV care to the HIV-positive person who is the subject of
the record for the purpose of assisting in compliance with
subdivision (a) of Section 121022.
(B) Local public health agency tuberculosis control staff may
further disclose the information to state public health agency
tuberculosis control staff, who may further disclose the information,
without disclosing patient identifying information, to the CDC, to
the extent the information is requested by the CDC and permitted by
subdivision (b), for purposes of the investigation, control, or
surveillance of HIV and tuberculosis coinfections.
(C) Local public health agency sexually transmitted disease
control staff may further disclose the information to state public
health agency sexually transmitted disease control staff, who may
further disclose the information, without disclosing patient
identifying information, to the CDC, to the extent it is requested by
the CDC, and permitted by subdivision (b), for the purposes of the
investigation, control, or surveillance of HIV and syphilis,
gonorrhea, or chlamydia coinfection.
(2) Notwithstanding any other provision of law, the following
disclosures shall be authorized for the purpose of facilitating
appropriate HIV/AIDS medical care and treatment:
(A) State public health agency HIV surveillance staff, AIDS Drug
Assistance Program staff, and care services staff may further
disclose the information to local public health agency staff, who may
further disclose the information to the HIV-positive person who is
the subject of the record, or the health care provider who provides
his or her HIV care, for the purpose of proactively offering and
coordinating care and treatment services to him or her.
(B) AIDS Drug Assistance Program staff and care services staff in
the State Department of Public Health may further disclose the
information directly to the HIV-positive person who is the subject of
the record or the health care provider who provides his or her HIV
care, for the purpose of proactively offering and coordinating care
and treatment services to him or her.
(3) Notwithstanding any other provision of law, for the purpose of
facilitating appropriate medical care and treatment of persons
coinfected with HIV, tuberculosis, and syphilis, gonorrhea, or
chlamydia, local public health agency sexually transmitted disease
control and tuberculosis control staff may further disclose the
information to state or local public health agency sexually
transmitted disease control and tuberculosis control staff, the
HIV-positive person who is the subject of the record, or the health
care provider who provides his or her HIV, tuberculosis, and sexually
transmitted disease care.
(4) For the purposes of paragraphs (2) and (3), "staff" does not
include nongovernmental entities.
(d) No confidential public health record, as defined in
subdivision (c) of Section 121035, shall be disclosed, discoverable,
or compelled to be produced in any civil, criminal, administrative,
or other proceeding.
(e) (1) A person who negligently discloses the content of a
confidential public health record, as defined in subdivision (c) of
Section 121035, to any third party, except pursuant to a written
authorization, as described in subdivision (a), or as otherwise
authorized by law, shall be subject to a civil penalty in an amount
not to exceed five thousand dollars ($5,000), plus court costs, as
determined by the court, which penalty and costs shall be paid to the
person whose record was disclosed.
(2) Any person who willfully or maliciously discloses the content
of any confidential public health record, as defined in subdivision
(c) of Section 121035, to any third party, except pursuant to a
written authorization, or as otherwise authorized by law, shall be
subject to a civil penalty in an amount not less than five thousand
dollars ($5,000) and not more than twenty-five thousand dollars
($25,000), plus court costs, as determined by the court, which
penalty and costs shall be paid to the person whose confidential
public health record was disclosed.
(3) Any person who willfully, maliciously, or negligently
discloses the content of any confidential public health record, as
defined in subdivision (c) of Section 121035, to any third party,
except pursuant to a written authorization, or as otherwise
authorized by law, that results in economic, bodily, or psychological
harm to the person whose confidential public health record was
disclosed, is guilty of a misdemeanor, punishable by imprisonment in
a county jail for a period not to exceed one year, or a fine of not
to exceed twenty-five thousand dollars ($25,000), or both, plus court
costs, as determined by the court, which penalty and costs shall be
paid to the person whose confidential public health record was
disclosed.
(4) Any person who commits any act described in paragraph (1),
(2), or (3), shall be liable to the person whose confidential public
health record was disclosed for all actual damages for economic,
bodily, or psychological harm that is a proximate result of the act.
(5) Each violation of this section is a separate and actionable
offense.
(6) Nothing in this section limits or expands the right of an
injured person whose confidential public health record was disclosed
to recover damages under any other applicable law.
(f) In the event that a confidential public health record, as
defined in subdivision (c) of Section 121035, is disclosed, the
information shall not be used to determine employability, or
insurability of any person.
SEC. 180. Section 124982 of the Health and Safety Code is amended
to read:
124982. (a) The department shall issue a temporary genetic
counselor license to a person to practice as a licensed genetic
counselor who meets all of the following:
(1) The requirements for licensure set forth in subdivision (b) of
Section 124981, except passing the certification examination as
required by paragraph (2) of subdivision (b) of Section 124981.
(2) Either of the following requirements:
(A) The person meets the requirements to apply for and has applied
for the first available certification examination offered. The
department may require an applicant for a temporary genetic counselor
license to provide documentation of acceptance for the examination.
(B) The person meets the requirements to apply for the
certification examination and plans to apply to sit for the
examination in the year following the year of the first available
examination. The department shall require the applicant to provide
documentation showing registration for the examination, when the
documentation is received by the applicant. After the applicant takes
the examination, the department shall require the applicant to
provide documentation showing that the applicant took the
examination.
(3) Payment of a fee of two hundred dollars ($200).
(b) A temporary genetic counselor license shall be valid for 24
months and shall not be extended or renewed.
(c) Notwithstanding subdivision (a), a temporary license issued
pursuant to this section shall expire upon any of the following
events, whichever occurs earlier:
(1) The issuance of a license pursuant to Section 124981.
(2) Thirty days after notification of the department that an
applicant has failed the certification examination.
(3) The expiration date on the temporary license.
(d) A person holding a temporary genetic counselor license issued
pursuant to this section, shall be required to work under the
supervision of a licensed genetic counselor or a licensed physician
and surgeon.
(e) The department may revoke the temporary license of a genetic
counselor licensed pursuant to this section if the person has been
convicted of a felony charge that is substantially related to the
qualifications, functions, or duties of a genetic counselor. A plea
of guilty or nolo contendere to a felony charge shall be deemed a
conviction for the purposes of this subdivision.
(f) This section shall become operative on July 1, 2011.
SEC. 181. Section 557.5 of the Insurance Code is amended to read:
557.5. No peace officer, member of the California Highway Patrol,
or firefighter shall be required to report any accident in which he
or she is involved while operating an authorized emergency vehicle,
as defined in subdivision (a), (b), or (f) of Section 165 of the
Vehicle Code, or any employer-leased or employer-rented vehicle in
the performance of his or her duty during the hours of his or her
employment, to any person who has issued that peace officer, member
of the California Highway Patrol, or firefighter a private automobile
insurance policy.
As used in this section:
(a) "Peace officer" means every person defined in Chapter 4.5
(commencing with Section 830) of Title 3 of Part 2 of the Penal Code.
(b) "Policy" shall have the same meaning as defined in subdivision
(a) of Section 660.
SEC. 182. Section 787.1 of the Insurance Code is amended to read:
787.1. (a) The following definitions apply to this section:
(1) "Senior designation" means any degree, title, credential,
certificate, certification, accreditation, or approval, that
expresses or implies that a broker or agent possesses expertise,
training, competence, honesty, or reliability with regard to advising
seniors in particular on finance, insurance, or risk management.
(2) "Use" means utilizing a word, phrase, acronym, or logo, in any
oral or written communication from which a sale of insurance to a
senior may directly or indirectly result, that states or suggests,
alone or in context, that a broker or agent holds a senior
designation.
(b) (1) A broker or agent may not use a senior designation unless
all of the following conditions have been met:
(A) The broker or agent has been granted the right to use the
senior designation by the organization that issues the senior
designation, and the broker or agent is currently authorized by the
organization to use the designation.
(B) The senior designation has been approved by the commissioner
for use by brokers and agents in the sale of insurance to seniors.
(C) The broker or agent has been licensed for at least four years
in any state or United States territory to sell the types of
insurance with which the designation is used.
(2) A broker or agent may not use a senior designation in a manner
that misleads a person as to the significance of the senior
designation. Each time a broker or agent uses a senior designation in
a writing, the writing shall also contain the words "California" or
"CA" next to "Insurance Agent" or "Insurance Broker Agent" and
"License," and these words shall be located immediately prior to the
broker's license number or the agent's license number, in type that
is in the same font and at least the same size as the type used for
the senior designation. The requirements set forth in this
subdivision are in addition to the requirements of Section 1725.5 and
shall apply regardless of whether the broker or agent is an
insurance agent, as defined in Section 1621. For purposes of this
paragraph, "writing" means business cards, written price quotations,
and print advertisements distributed exclusively in this state.
(c) The commissioner shall approve a senior designation only if
the organization that issues the designation satisfies all of the
following requirements with respect to the designation:
(1) The organization has applied for approval on a form prescribed
by the commissioner.
(A) The department may require the filing of any supplementary
documents and declarations it deems necessary to determine whether
the prerequisites for approval have been met.
(B) Before or after approval, an organization shall notify the
department in writing within 45 days following any material change in
information recorded on the application form or in declarations or
documents submitted along with it or in response to a department
request.
(2) The designation is accredited by the National Commission for
Certifying Agencies, or the organization or the designation is
accredited by an agency that is on the United States Department of
Education's list entitled "Accrediting Agencies Recognized for Title
IV Purposes" and it is established to the satisfaction of the
commissioner that the agency is qualified to accredit an organization
or designation involved with financial services provided to seniors.
(3) The organization requires California candidates for the
designation to demonstrate superior expertise in advising seniors in
particular in finance, insurance, or risk management by passing
examinations that are based on applicants with no prior insurance
education or experience completing at least 75 hours of study
covering at least the following topics: aspects of aging, health care
coverage, long-term care insurance, financial planning for
retirement, investments, estate planning, and ethics. Textbooks or
other study materials may use chapter and subchapter titles that
differ from those general topics as long as the essential content is
the same. No part of the examinations, textbooks, or other study
materials may concern techniques on how to increase the amount of
insurance or financial products one sells, or recommend the selling
of products offered by specific companies.
(d) (1) In determining whether to approve a senior designation for
use in the sale of insurance to seniors, the commissioner shall also
ensure that the organization that issues the senior designation
fulfills the following:
(A) Is exclusively an educational or certification organization,
and is not directly or indirectly, through an affiliate or partner,
involved in selling insurance, nor receives any compensation directly
or indirectly from any sale of insurance, other than the receipt of
charitable gifts by a nonprofit institution.
(B) Maintains standards and procedures for disciplining its
designees for improper or unethical conduct, as established by proven
complaints or by disciplinary action by a government licensing
agency or a quasi-governmental licensing and regulatory organization.
The standards and procedures shall include, at a minimum:
(i) A written procedure to receive, log, and conduct a preliminary
review of complaints alleging improper, illegal, or unethical
conduct.
(ii) Written standards for determining when a complaint warrants
further investigation into the merits of the allegations contained
therein.
(iii) Written standards and procedures to ensure that, once a
complaint is determined to warrant further investigation, the
investigation is diligently conducted.
(iv) Written standards for determining when to file disciplinary
charges based on the results of an investigation.
(v) Written standards and procedures to ensure due process in the
adjudication of disciplinary charges by adjudicators who are fair,
knowledgeable, and otherwise qualified.
(vi) Written standards and procedures for the imposition of
appropriate sanctions, including, when warranted, revocation of the
designation.
(C) Maintains a code of ethics for its California designees
consistent with that of one of the designations recited in Section
1749.4.
(e) (1) A word, phrase, acronym, or logo shall be deemed a senior
designation if it contains the word "senior," "Medicare," "Medi-Cal,"
"retire," "mature," "gerontology," or "elder," or any variation or
synonym of one of these words within several words of the word
"certified," "chartered," "registered," "adviser," "specialist,"
"consultant," "agent," "broker," "insurance," "planner,"
"professional," "enrolled," "accredited," "analyst," or "fellow," or
any variation or synonym of one of these words. A word, phrase,
acronym, or logo may constitute a senior designation if it meets the
definition in paragraph (1) of subdivision (a) regardless of whether
it contains one of the words recited in this subdivision.
(2) A word, phrase, acronym, or logo shall not constitute a senior
designation if it is a job title or description of an employee of a
governmental entity, or of an organization with a contract with that
governmental entity to provide free counseling to seniors.
(3) No exemption exists under this section for use of a senior
designation that constitutes a job title or description or part of a
job title or description, except as provided in paragraph (2).
(4) An advanced academic degree, such as a Ph.D., M.B.A., or M.S.,
may be used without compliance with subdivision (d), if the degree
was awarded by an institution of higher education that has been
accredited by an organization that is on the United States Department
of Education's list entitled "Accrediting Agencies Recognized for
Title IV Purposes."
(f) A violation of subdivision (b) by a broker or agent shall be
grounds for suspension or revocation of the broker's or agent's
license pursuant to Sections 1668 and 1738. Such a violation also
shall be grounds for a cease and desist order and monetary penalty
pursuant to Section 12921.8, as if the broker or agent had acted in a
capacity for which a license was required but not possessed.
(g) Any person who grants to a California resident the right to
use a senior designation that has not been approved by the
commissioner, without reasonably attempting to determine whether
California is one of the designee's residences, shall be subject to a
cease and desist order and monetary penalty pursuant to Section
12921.8, as if the person had acted in a capacity for which a license
was required but not possessed.
(h) The disciplinary and remedial authority recited in this
subdivision shall be in addition to any other disciplinary and
remedial authority included in this code.
(i) Notwithstanding any other provision of this code, the criteria
in Sections 1668 and 1668.5 apply to an organization that issues a
senior designation, and the commissioner may deny or rescind approval
of an organization issuing a senior designation based on that
criteria.
(j) The commissioner shall maintain a list of senior designations
approved pursuant to subdivisions (c), (d), and (e) and shall publish
the current list on the Internet Web site of the Department of
Insurance.
(k) This section shall apply to all types of insurance, including
those listed in paragraphs (1) and (2) of subdivision (c) of Section
785, except those listed in paragraphs (3) to (7), inclusive, and
paragraph (9) of subdivision (c) of Section 785 and subdivision (d)
of Section 785.
(l) The commissioner may, upon receipt of a petition from an
organization, issue written confirmation that a designation issued by
that organization is exempt from the requirement of approval
pursuant to this section. The commissioner may issue confirmation if
the designation, according to its title or curriculum, or in its
actual use, concerns almost exclusively subject matters other than
insurance or financial services sold to seniors in particular.
(m) (1) The commissioner may rescind approval of a designation
whenever there has been a material change in the management or
operation of the organization that issues the designation, or in the
procedures or criteria for issuance of the designation, such that if
the organization were to apply for approval of the designation
subsequent to the change, approval would be denied.
(2) Any rescission of the approval of a designation shall be after
notice and a hearing conducted in accordance with Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code, as if the approval were a license, and the
commissioner shall have all of the powers granted therein.
SEC. 183. Section 1063.75 of the Insurance Code is amended to
read:
1063.75. Any bonds issued to provide funds for covered claim
obligations for workers' compensation claims shall be issued prior to
January 1, 2013, in an aggregate principal amount outstanding at any
one time not to exceed one billion five hundred million dollars
($1,500,000,000), and any bonds issued or issued to refund bonds
shall not have a final maturity exceeding 20 years from the date of
issuance. The bonds shall be issued at the request of CIGA, shall be
in the form, shall bear the date or dates, and shall mature at the
time or times as the indenture authorized by the request may provide.
The bonds may be issued in one or more series, as serial bonds or as
term bonds, or as a combination thereof, and, notwithstanding any
other provision of law, the amount of principal of, or interest on,
bonds maturing at each date of maturity need not be equal. The bonds
shall bear interest at the rate or rates, variable or fixed or a
combination thereof, be in the denominations, be in the form, either
coupon or registered, carry the registration privileges, be executed
in the manner, be payable in the medium of payment at the place or
places within or without the state, be subject to the terms of
redemption, contain the terms and conditions, and be secured by the
covenants as the indenture may provide. The indenture may provide for
the proceeds of the bonds and funds securing the bonds to be
invested in any securities and investments, including investment
agreements, as specified therein. CIGA may enter into or authorize
any ancillary obligations or derivative agreements as it determines
necessary or desirable to manage interest rate risk or security
features related to the bonds. The bonds shall be sold at public or
private sale by the Treasurer at, above, or below the principal
amount thereof, on the terms and conditions and for the consideration
in the medium of payment that the Treasurer shall determine prior to
the sale.
SEC. 184. Section 10112.2 of the Insurance Code is amended to
read:
10112.2. To the extent required under federal law, a group or
individual health insurance policy issued, amended, renewed, or
delivered on or after September 23, 2010, shall comply with Section
2713 of the federal Public Health Service Act (42 U.S.C. Sec.
300gg-13), as added by Section 1001 of the federal Patient Protection
and Affordable Care Act (P.L. 111-148), and any rules or regulations
issued under that section.
SEC. 185. Section 10112.3 of the Insurance Code is amended to
read:
10112.3. (a) For purposes of this section, the following
definitions shall apply:
(1) "Exchange" means the California Health Benefit Exchange
established in Title 22 (commencing with Section 100500) of the
Government Code.
(2) "Federal act" means the federal Patient Protection and
Affordable Care Act (P.L. 111-148), as amended by the federal Health
Care and Education Reconciliation Act of 2010 (P.L. 111-152), and any
amendments to, or regulations or guidance issued under, those acts.
(3) "Qualified health plan" has the same meaning as that term is
defined in Section 1301 of the federal act.
(4) "Small employer" has the same meaning as that term is defined
in Section 10700.
(b) Health insurers participating in the Exchange shall fairly and
affirmatively offer, market, and sell in the Exchange at least one
product within each of the five levels of coverage contained in
subdivisions (d) and (e) of Section 1302 of the federal act. The
board established under Section 100500 of the Government Code may
require insurers to sell additional products within each of those
levels of coverage. This subdivision shall not apply to an insurer
that solely offers supplemental coverage in the Exchange under
paragraph (10) of subdivision (a) of Section 100504 of the Government
Code.
(c) (1) Health insurers participating in the Exchange that sell
any products outside the Exchange shall do both of the following:
(A) Fairly and affirmatively offer, market, and sell all products
made available to individuals in the Exchange to individuals
purchasing coverage outside the Exchange.
(B) Fairly and affirmatively offer, market, and sell all products
made available to small employers in the Exchange to small employers
purchasing coverage outside the Exchange.
(2) For purposes of this subdivision, "product" does not include
contracts entered into pursuant to Part 6.2 (commencing with Section
12693) of Division 2 between the Managed Risk Medical Insurance Board
and health insurers for enrolled Healthy Families beneficiaries or
to contracts entered into pursuant to Chapter 7 (commencing with
Section 14000) of, or Chapter 8 (commencing with Section 14200) of,
Part 3 of Division 9 of the Welfare and Institutions Code between the
State Department of Health Care Services and health insurers for
enrolled Medi-Cal beneficiaries.
(d) Commencing January 1, 2014, a health insurer, with respect to
policies that cover hospital, medical, or surgical benefits, may only
sell the five levels of coverage contained in subdivisions (d) and
(e) of Section 1302 of the federal act, except that a health insurer
that does not participate in the Exchange may, with respect to
policies that cover hospital, medical, or surgical benefits only sell
the four levels of coverage contained in subdivision (d) of Section
1302 of the federal act.
(e) Commencing
January 1, 2014, a health insurer that does not participate in the
Exchange shall, with respect to policies that cover hospital,
medical, or surgical expenses, offer at least one standardized
product that has been designated by the Exchange in each of the four
levels of coverage contained in subdivision (d) of Section 1302 of
the federal act. This subdivision shall only apply if the board of
the Exchange exercises its authority under subdivision (c) of Section
100504 of the Government Code. Nothing in this subdivision shall
require an insurer that does not participate in the Exchange to offer
standardized products in the small employer market if the insurer
only sells products in the individual market. Nothing in this
subdivision shall require an insurer that does not participate in the
Exchange to offer standardized products in the individual market if
the insurer only sells products in the small employer market. This
subdivision shall not be construed to prohibit the insurer from
offering other products provided that it complies with subdivision
(d).
SEC. 186. Section 10112.4 of the Insurance Code is amended to
read:
10112.4. The commissioner shall, in coordination with the
Director of the Department of Managed Health Care, review the
Internet portal developed by the United States Secretary of Health
and Human Services under subdivision (a) of Section 1103 of the
federal Patient Protection and Affordable Care Act (P.L. 111-148) and
paragraph (5) of subdivision (c) of Section 1311 of that act, and
any enhancements to that portal expected to be implemented by the
secretary on or before January 1, 2015. The review shall examine
whether the Internet portal provides sufficient information regarding
all health benefit products offered by health care service plans and
health insurers in the individual and small employer markets in
California to facilitate fair and affirmative marketing of all
individual and small employer products, particularly outside the
California Health Benefit Exchange created under Title 22 (commencing
with Section 100500) of the Government Code. If the commissioner and
the Director of the Department of Managed Health Care jointly
determine that the Internet portal does not adequately achieve those
purposes, they shall jointly develop and maintain an electronic
clearinghouse to achieve those purposes. In performing this function,
the commissioner and the Director of the Department of Managed
Health Care shall routinely monitor individual and small employer
benefit filings with, and complaints submitted by individuals and
small employers to, their respective departments, and shall use any
other available means to maintain the clearinghouse.
SEC. 187. Section 10113.95 of the Insurance Code is amended to
read:
10113.95. (a) A health insurer that issues, renews, or amends
individual health insurance policies shall be subject to this
section.
(b) An insurer subject to this section shall have written
policies, procedures, or underwriting guidelines establishing the
criteria and process whereby the insurer makes its decision to
provide or to deny coverage to individuals applying for coverage and
sets the rate for that coverage. These guidelines, policies, or
procedures shall ensure that the plan rating and underwriting
criteria comply with Sections 10140 and 10291.5 and all other
applicable provisions.
(c) On or before June 1, 2006, and annually thereafter, every
insurer shall file with the commissioner a general description of the
criteria, policies, procedures, or guidelines that the insurer uses
for rating and underwriting decisions related to individual health
insurance policies, which means automatic declinable health
conditions, health conditions that may lead to a coverage decline,
height and weight standards, health history, health care utilization,
lifestyle, or behavior that might result in a decline for coverage
or severely limit the health insurance products for which individuals
applying for coverage would be eligible. An insurer may comply with
this section by submitting to the department underwriting materials
or resource guides provided to agents and brokers, provided that
those materials include the information required to be submitted by
this section.
(d) Commencing January 1, 2011, the commissioner shall post on the
department's Internet Web site, in a manner accessible and
understandable to consumers, general, noncompany specific information
about rating and underwriting criteria and practices in the
individual market and information about the California Major Risk
Medical Insurance Program (Part 6.5 (commencing with Section 12700))
and the federal temporary high risk pool established pursuant to Part
6.6 (commencing with Section 12739.5). The commissioner shall
develop the information for the Internet Web site in consultation
with the Department of Managed Health Care to enhance the consistency
of information provided to consumers. Information about individual
health insurance shall also include the following notification:
"Please examine your options carefully before declining group
coverage or continuation coverage, such as COBRA, that may be
available to you. You should be aware that companies selling
individual health insurance typically require a review of your
medical history that could result in a higher premium or you could be
denied coverage entirely."
(e) Nothing in this section shall authorize public disclosure of
company-specific rating and underwriting criteria and practices
submitted to the commissioner.
(f) This section shall not apply to a closed block of business, as
defined in Section 10176.10.
SEC. 188. Section 10120.3 of the Insurance Code is amended to
read:
10120.3. (a) With respect to a contract between an insurer
covering dental services and a dentist to provide covered dental
services to insureds, the contract shall not require a dentist to
accept an amount set by the insurer as payment for dental care
services provided to an insured that are not covered services under
the insured's policy. This subdivision shall only apply to provider
contracts issued, amended, or renewed on or after January 1, 2011.
(b) A provider shall not charge more for dental services that are
not covered services under a health insurance policy than his or her
usual and customary rate for those services. The department shall not
be required to enforce this subdivision.
(c) The evidence of coverage and disclosure form, or combined
evidence of coverage and disclosure form, for every health insurance
policy covering dental services, or specialized health insurance
policy covering dental services, that is issued, amended, or renewed
on or after July 1, 2011, shall include the following statement:
IMPORTANT: If you opt to receive dental services that are not
covered services under this policy, a participating dental provider
may charge you his or her usual and customary rate for those
services. Prior to providing a patient with dental services that are
not a covered benefit, the dentist should provide to the patient a
treatment plan that includes each anticipated service to be provided
and the estimated cost of each service. If you would like more
information about dental coverage options, you may call member
services at insert appropriate telephone number] or your insurance
broker. To fully understand your coverage, you may wish to carefully
review this evidence of coverage document.
(d) For purposes of this section, "covered services" or "covered
dental services" means dental care services for which the insurer is
obligated to pay pursuant to an insured's policy, or for which the
insurer would be obligated to pay pursuant to an insured's policy but
for the application of contractual limitations such as deductibles,
copayments, coinsurance, waiting periods, annual or lifetime
maximums, frequency limitations, or alternative benefit payments.
SEC. 189. Section 10181 of the Insurance Code is amended to read:
10181. For purposes of this article, the following definitions
shall apply:
(a) "Large group health insurance policy" means a group health
insurance policy other than a policy issued to a small employer, as
defined in Section 10700.
(b) "Small group health insurance policy" means a group health
insurance policy issued to a small employer, as defined in Section
10700.
(c) "PPACA" means Section 2794 of the federal Public Health
Service Act (42 U.S.C. Sec. 300gg-94), as amended by the federal
Patient Protection and Affordable Care Act (P.L. 111-148), and any
subsequent rules, regulations, or guidance issued pursuant to that
law.
(d) "Unreasonable rate increase" has the same meaning as that term
is defined in PPACA.
SEC. 190. Section 10713 of the Insurance Code is amended to read:
10713. All health benefit plans written, issued, or administered
by carriers on or after the effective date of this chapter, and all
health benefit plans in force on or after the effective date of this
chapter shall be renewable with respect to all eligible employees or
dependents at the option of the policyholder, contractholder, or
small employer except as follows:
(a) (1) For nonpayment of the required premiums by the
policyholder, contractholder, or small employer, if the policyholder,
contractholder, or small employer has been duly notified and billed
for the charge and at least a 30-day grace period has elapsed since
the date of notification or, if longer, the period of time required
for notice and any other requirements pursuant to Section 2703, 2712,
or 2742 of the federal Public Health Service Act (42 U.S.C. Secs.
300gg-2, 300gg-12, and 300gg-42) and any subsequent rules or
regulations has elapsed.
(2) An insurer shall continue to provide coverage as required by
the policyholder's, contractholder's, or small employer's policy
during the period described in paragraph (1). Nothing in this section
shall be construed to affect or impair the policyholder's,
contractholder's, small employer's, or insurer's other rights and
responsibilities pursuant to the subscriber contract.
(b) If the insurer demonstrates fraud or an intentional
misrepresentation of material fact under the terms of the policy by
the policyholder, contractholder, or small employer or, with respect
to coverage of individual enrollees, the enrollees or their
representative.
(c) Violation of a material contract provision relating to
employer contribution or group participation rates by the
policyholder, contractholder, or small employer.
(d) When the carrier ceases to write, issue, or administer new
small employer health benefit plans in this state, provided, however,
that the following conditions are satisfied:
(1) Notice of the decision to cease writing, issuing, or
administering new or existing small employer health benefits plans in
this state is provided to the commissioner, and to either the
policyholder, contractholder, or small employer at least 180 days
prior to the discontinuation of the coverage.
(2) Small employer health benefit plans subject to this chapter
shall not be canceled for 180 days after the date of the notice
required under paragraph (1). For that business of a carrier that
remains in force, any carrier that ceases to write, issue, or
administer new health benefit plans shall continue to be governed by
this chapter.
(3) Except in the case where a certification has been approved
pursuant to subdivision (l) of Section 10705 or the commissioner has
made a determination pursuant to subdivision (a) of Section 10712, a
carrier that ceases to write, issue, or administer new health benefit
plans to small employers in this state after the passage of this
chapter shall be prohibited from writing, issuing, or administering
new health benefit plans to small employers in this state for a
period of five years from the date of notice to the commissioner.
(e) When a carrier withdraws a benefit plan design from the small
employer market, provided that the carrier notifies all affected
policyholders, contractholders, or small employers and the
commissioner at least 90 days prior to the discontinuation of those
contracts, and that the carrier makes available to the small employer
all small employer benefit plan designs which it markets and
satisfies the requirements of paragraph (3) of subdivision (b) of
Section 10714.
(f) If coverage is made available through a bona fide association
pursuant to subdivision (w) of Section 10700 or a guaranteed
association pursuant to subdivision (y) of Section 10700, the
membership of the employer or the individual, respectively, ceases,
but only if that coverage is terminated under this subdivision
uniformly without regard to any health status-related factor of
covered individuals.
SEC. 191. Section 10959 of the Insurance Code is amended to read:
10959. (a) All health benefit plans offered to a child or on
behalf of a child to a responsible party for a child shall conform to
the requirements of Section 10127.18, 10273.4, and 12682.1, and
shall be renewable at the option of the child or responsible party
for a child on behalf of the child except as permitted to be
canceled, rescinded, or not renewed pursuant to Section 10273.4.
(b) Any carrier that ceases to offer for sale new individual
health benefit plans pursuant to Section 10273.4 shall continue to be
governed by this chapter with respect to business conducted under
this chapter.
(c) Except as authorized under Section 10958, a carrier that as of
the effective date of this chapter does not write new health benefit
plans for children in this state or that after the effective date of
this chapter ceases to write new health benefit plans for children
in this state shall be prohibited from offering for sale new
individual health benefit plans or in this state for a period of five
years from the date of notice to the commissioner.
SEC. 192. Section 10960 of the Insurance Code is amended to read:
10960. On or before July 1, 2011, the commissioner may issue
guidance to health plans regarding compliance with this chapter and
such guidance shall not be subject to the Administrative Procedure
Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code). The guidance shall
only be effective until the commissioner and the Director of the
Department of Managed Health Care adopt joint regulations pursuant to
the Administrative Procedure Act.
SEC. 193. Section 12389 of the Insurance Code is amended to read:
12389. (a) An underwritten title company as defined in Section
12340.5, which shall be a stock corporation, may engage in the
business of preparing title searches, title reports, title
examinations, or certificates or abstracts of title, upon the basis
of which a title insurer writes title policies, provided that:
(1) Only domestic corporations may be licensed under this section
and no underwritten title company, as defined in Section 12340.5,
shall become licensed under this section, or change the name under
which it is licensed or operates, unless it has first complied with
Section 881.
(2) Depending upon the county or counties in which the company is
licensed to transact business, it shall maintain required minimum net
worth as follows:
Aggregate number of
documents
recorded and documents
filed in the
offices of the county
recorders in the
preceding calendar year in
all counties
where the company is
licensed to transact
business.
Amount of
required
minimum net
Number of documents worth
Less than 50,000 .............. $ 75,000
50,000 to 100,000 ............. 120,000
100,000 to 500,000 ............ 200,000
500,000 to 1,000,000 .......... 300,000
1,000,000 or more ............. 400,000
"Net worth" is defined as the excess of assets over all
liabilities and required reserves. It may carry as an asset the
actual cost of its title plant provided the value ascribed to that
asset shall not exceed the aggregate value of all other assets.
Where a title plant of an underwritten title company is not being
currently maintained, the asset value of the plant shall not exceed
its asset value as determined in the preceding paragraph as of the
date to which that plant is currently maintained, less one-tenth
thereof for each succeeding year or part of the succeeding year that
the plant is not being currently maintained. For the purposes of this
section, a title plant shall be deemed currently maintained so long
as it is used in the normal conduct of the business of title
insurance, and (A) the owner of the plant continues regularly to
obtain and index title record data to the plant or to a continuation
thereof in a format other than that previously used, including, but
not limited to, computerization of the data, or (B) the owner of the
plant is a participant, in an arrangement for joint use of a title
plant system regularly maintained in any format, provided the owner
is contractually entitled to receive a copy of the title record data
contained in the jointly used title plant system during the period of
the owner's participation therein, either periodically or upon
termination of that participation, at a cost not to exceed the actual
cost of duplication of the title record data.
An underwritten title company at all times shall maintain current
assets of at least ten thousand dollars ($10,000) in excess of its
current liabilities, as current assets and liabilities may be defined
pursuant to regulations made by the commissioner. In making the
regulations, the commissioner shall be guided by generally accepted
accounting principles followed by certified public accountants in
this state.
(3) An underwritten title company shall obtain from the
commissioner a license to transact its business. The license shall
not be granted until the applicant conforms to the requirements of
this section and all other provisions of this code specifically
applicable to applicant. After issuance the holder shall continue to
comply with the requirements as to its business set forth in this
code, in the applicable rules and regulations of the commissioner and
in the laws of this state.
Any underwritten title company who possesses, or is required to
possess, a license pursuant to this section shall be subject as if an
insurer to the provisions of Article 8 (commencing with Section 820)
of Chapter 1 of Part 2 of Division 1 of this code and shall be
deemed to be subject to authorization by the Insurance Commissioner
within the meaning of subdivision (e) of Section 25100 of the
Corporations Code.
The license may be obtained by filing an application on a form
prescribed by the commissioner accompanied by a filing fee of three
hundred fifty-four dollars ($354). The license when issued shall be
for an indefinite term and shall expire with the termination of the
existence of the holder, subject to the annual renewal fee imposed
under Sections 12415 and 12416.
An underwritten title company seeking to extend its license to an
additional county shall pay a two hundred seven dollar ($207) fee for
each additional county, and shall furnish to the commissioner
evidence, at least sufficient to meet the minimum net worth
requirements of paragraph (2), of its financial ability to expand its
business operation to include the additional county or counties.
(4) (A) An underwritten title company shall furnish an audit to
the commissioner on the forms provided by the commissioner annually,
either on a calendar year basis on or before March 31 or, if approved
in writing by the commissioner in respect to any individual company,
on a fiscal year basis on or before 90 days after the end of the
fiscal year. The time for furnishing any audit required by this
paragraph may be extended, for good cause shown, on written approval
of the commissioner for a period, not to exceed 60 days. Failure to
submit an audit on time, or within the extended time that the
commissioner may grant, shall be grounds for an order by the
commissioner to accept no new business pursuant to subdivision (d).
The audits shall be private, except that a synopsis of the balance
sheet on a form prescribed by the commissioner may be made available
to the public.
(B) The audits shall be made in accordance with generally accepted
auditing standards by an independent certified public accountant or
independent licensed public accountant whose certification or license
is in good standing at the time of the preparation. The fee for
filing the audit shall be three hundred thirteen dollars ($313).
(C) The commissioner may refuse to accept an audit or order a new
audit for any of the following reasons:
(i) Adverse result in any proceeding before the California Board
of Accountancy affecting the auditor's license.
(ii) The auditor has an affiliation with the underwritten title
company or any of its officers or directors that would prevent his or
her reports on the company from being reasonably objective.
(iii) The auditor has suffered conviction of any misdemeanor or
felony based on his or her activities as an accountant.
(iv) Judgment adverse to the auditor in any civil action finding
him or her guilty of fraud, deceit, or misrepresentation in the
practice of his or her profession.
Any company that fails to file any audit or other report on or
before the date it is due shall pay to the commissioner a penalty fee
of one hundred eighteen dollars ($118) and on failure to pay that or
any other fee or file the audit required by this section shall
forfeit the privilege of accepting new business until the delinquency
is corrected.
(b) An underwritten title company may engage in the escrow
business and act as escrow agent provided that:
(1) It shall maintain record of all receipts and disbursements of
escrow funds.
(2) It shall deposit seven thousand five hundred dollars ($7,500)
for each county in which it transacts business in some form permitted
by Section 12351 with the commissioner who shall immediately make a
special deposit of that amount in the State Treasury and that deposit
shall be subject to Sections 12353, 12356, 12357, and 12358 and, as
long as there are no claims against the deposit, all interest and
dividends thereon shall be paid to the depositor. The deposit shall
be for the security and protection of persons having lawful claims
against the depositor growing out of escrow transactions with it. The
deposit shall be maintained until four years after all escrows
handled by the depositor have been closed.
(A) The commissioner may release the deposits prior to the passage
of the four-year period upon presentation of evidence satisfactory
to the commissioner of either a statutory merger of the depositor
into a licensee or certificate holder subject to the jurisdiction of
the commissioner, or a valid assumption agreement under which all
liability of the depositor stemming from escrow transactions handled
by it is assumed by a licensee or certificate holder subject to the
jurisdiction of the commissioner.
(B) With the foregoing exceptions, the deposit shall be returned
to the depositor or lawful successor in interest following the
four-year period, upon presentation of evidence satisfactory to the
commissioner that there are no claims against the deposit stemming
from escrow transactions handled by the depositor. If the
commissioner has evidence of one or more claims against the
depositor, and the depositor is not in conservatorship or
liquidation, the commissioner may interplead the deposit by special
endorsement to a court of competent jurisdiction for distribution on
the basis that claims against the depositor stemming from escrow
transactions handled by it have priority in the distribution over
other claims against the depositor.
(c) The commissioner shall, whenever it appears necessary, examine
the business and affairs of a company licensed under this section.
All of these examinations shall be at the expense of the company.
(d) At any time that the commissioner determines, after notice and
hearing, that a company licensed under this section has willfully
failed to comply with a provision of this section, the commissioner
shall make his or her order prohibiting the company from conducting
its business for a period of not more than one year.
Any company violating the commissioner's order is subject to
seizure under Article 14 (commencing with Section 1010) of Chapter 1
of Part 2 of Division 1, is guilty of a misdemeanor, and may have the
license revoked by the commissioner. Any person aiding and abetting
any company in a violation of the commissioner's order is guilty of a
misdemeanor.
The purpose of this section is to maintain the solvency of the
companies subject to this section and to protect the public by
preventing fraud and requiring fair dealing. In order to carry out
these purposes, the commissioner may make reasonable rules and
regulations to govern the conduct of its business of companies
subject to this section.
The name under which each underwritten title company is licensed
shall at all times be an approved name. The fee for filing an
application for a change of name shall be one hundred eighteen
dollars ($118). Each such company shall be subject to the provisions
of Article 14 (commencing with Section 1010) and Article 14.5
(commencing with Section 1065.1) of Chapter 1 of Part 2 of Division
1.
The rules and regulations shall be adopted, amended, or repealed
in accordance with the procedure provided in Chapter 3.5 (commencing
with Section 11340) of Part 1 of Division 3 of Title 2 of the
Government Code.
SEC. 194. Section 12739.53 of the Insurance Code is amended to
read:
12739.53. (a) The board shall, consistent with Section 1101 of
the federal Patient Protection and Affordable Care Act (P.L. 111-148)
and state and federal law and contingent on the agreement of the
federal Department of Health and Human Services and receipt of
sufficient federal funding, enter into an agreement with the federal
Department of Health and Human Services to administer the federal
temporary high risk pool in California.
(b) If the federal Department of Health and Human Services and the
state enter into an agreement to administer the federal temporary
high risk pool, the board shall do all of the following:
(1) Administer the program pursuant to that agreement.
(2) Begin providing coverage in the program on the date
established pursuant to the agreement with the federal Department of
Health and Human Services.
(3) Establish the scope
and content of high risk medical coverage.
(4) Determine reasonable minimum standards for participating
health plans, third-party administrators, and other contractors.
(5) Determine the time, manner, method, and procedures for
withdrawing program approval from a plan, third-party administrator,
or other contractor, or limiting enrollment of subscribers in a plan.
(6) Research and assess the needs of persons without adequate
health coverage and promote means of ensuring the availability of
adequate health care services.
(7) Administer the program to ensure the following:
(A) That the program subsidy amount does not exceed amounts
transferred to the fund pursuant to this part.
(B) That the aggregate amount spent for high risk medical coverage
and program administration does not exceed the federal funds
available to the state for this purpose and that no state funds are
spent for the purposes of this part.
(8) Maintain enrollment and expenditures to ensure that
expenditures do not exceed amounts available in the fund and that no
state funds are spent for purposes of this part. If sufficient funds
are not available to cover the estimated cost of program
expenditures, the board shall institute appropriate measures to limit
enrollment.
(9) In adopting benefit and eligibility standards, be guided by
the needs and welfare of persons unable to secure adequate health
coverage for themselves and their dependents and by prevailing
practices among private health plans.
(10) As required by the federal Department of Health and Human
Services, implement procedures to provide for the transition of
subscribers into qualified health plans offered through an exchange
or exchanges to be established pursuant to the federal Patient
Protection and Affordable Care Act (P.L. 111-148).
(11) Post on the board's Internet Web site the monthly progress
reports submitted to the federal Department of Health and Human
Services. In addition, the board shall provide notice of any
anticipated waiting lists or disenrollments due to insufficient
funding to the public, by making that notice available as part of its
board meetings, and concurrently to the Legislature.
(12) Develop and implement a plan for marketing and outreach.
(c) There shall not be any liability in a private capacity on the
part of the board or any member of the board, or any officer or
employee of the board for or on account of any act performed or
obligation entered into in an official capacity, when done in good
faith, without intent to defraud, and in connection with the
administration, management, or conduct of this part or affairs
related to this part.
SEC. 195. Section 1509 of the Labor Code is amended to read:
1509. For purposes of this part, the following terms have the
following meanings:
(a) "Employee" and "employee benefits" have the same meanings set
forth in Section 1501.
(b) "Employer" means any person, partnership, corporation,
association, or other business entity that employs 15 or more
employees.
SEC. 196. Section 1695 of the Labor Code is amended to read:
1695. (a) Every licensee shall do all of the following:
(1) Carry his or her license and proof of registration issued
pursuant to paragraph (8) with him or her at all times and exhibit
the same to all persons with whom he or she intends to deal in his or
her capacity as a farm labor contractor prior to so dealing.
(2) File at the United States Post Office serving the address of
the licensee, as noted on the face of his or her license, with the
office of the Labor Commissioner, and with the agricultural
commissioner of the county or counties in which the labor contractor
has contracted with a grower, a correct change of address immediately
upon each occasion the licensee permanently moves his or her
address. The address shall also be the mailing address for purposes
of notice required by the Labor Code or by any other applicable
statute or regulations respecting service by mail.
(3) Promptly when due, pay or distribute to the individuals
entitled thereto, all moneys or other things of value entrusted to
the licensee by any third person for this purpose.
(4) Comply on his or her part with the terms and provisions of all
legal and valid agreements and contracts entered into between
licensee in his or her capacity as a farm labor contractor and third
persons.
(5) Have available for inspection by his or her employees and by
the grower with whom he or she has contracted a written statement in
English and Spanish showing the rate of compensation he or she
receives from the grower and the rate of compensation he or she is
paying to his or her employees for services rendered to, for, or
under the control of the grower.
(6) Take out a policy of insurance with any insurance carrier
authorized to do business in the State of California in an amount
satisfactory to the commissioner, which insures the licensee against
liability for damage to persons or property arising out of the
licensee's operation of, or ownership of, any vehicle or vehicles for
the transportation of individuals in connection with his or her
business, activities, or operations as a farm labor contractor.
(7) Have displayed prominently at the site where the work is to be
performed and on all vehicles used by the licensee for the
transportation of employees the rate of compensation the licensee is
paying to his or her employees for their services, printed in both
English and Spanish and in lettering of a size to be prescribed by
the Department of Industrial Relations.
(8) Register annually with the agricultural commissioner of the
county or counties in which the labor contractor has contracted with
a grower.
(9) Provide information and training on applicable laws and
regulations governing worker safety, including the requirements of
Article 10.5 (commencing with Section 12980) of Chapter 2 of Division
7 of the Food and Agricultural Code, or regulating the terms and
conditions of agricultural employment, to each crew leader,
foreperson, or other employee whose duties include the supervision,
direction, or control of any agricultural worker on behalf of a
licensee, or pursuant to, a contract or agreement for agricultural
services entered into with a licensee.
(b) The board of supervisors of a county may establish fees to be
charged each licensee for the recovery of the actual costs incurred
by commissioners in the administration of registrations and change of
address and the issuance of proofs of registration.
SEC. 197. Section 1771.3 of the Labor Code is amended to read:
1771.3. (a) (1) The State Public Works Enforcement Fund is hereby
created as a special fund in the State Treasury. Notwithstanding
Section 13340 of the Government Code, moneys in the fund shall be
continuously appropriated for the purposes of the Department of
Industrial Relations' enforcement of prevailing wage requirements
applicable to public works pursuant to this chapter, and labor
compliance enforcement as set forth in subdivision (b) of Section
1771.55, and shall not be used or borrowed for any other purpose.
(2) The Director of Industrial Relations, with the approval of the
Director of Finance, shall determine and assess a fee on any
awarding body using funds derived from any bond issued by the state
to fund public works projects, in an amount not to exceed one-fourth
of 1 percent of the bond proceeds. The fee shall be set to cover the
expenses of the Department of Industrial Relations for administering
the prevailing wage requirements on public works projects using those
bond funds. The fee shall be payable by the board, commission,
department, agency, or official responsible for the allocation of
bond proceeds from the bond funds awarded to each project at the time
the funds are released to the project or other such time the
Department of Industrial Relations and the entity responsible for
allocation of the bond proceeds may agree. All fees collected
pursuant to this section shall be deposited in the State Public Works
Enforcement Fund, and shall be used only for enforcement of
prevailing wage requirements on projects using bond funds and other
projects for which awarding bodies pay into the fund. The
administration and enforcement of prevailing wage requirements is an
administrative expense associated with public works construction.
(b) The fee imposed by this section shall not apply to any
contract awarded prior to the effective date of regulations adopted
by the department pursuant to paragraph (2) of subdivision (b) of
Section 1771.55.
(c) The department shall report to the Legislature, not later than
March 1, 2011, on its administration of the State Public Works
Enforcement Fund, and the prevailing wage enforcement activities
undertaken by the department utilizing that funding.
SEC. 198. Section 987.58 of the Military and Veterans Code is
amended to read:
987.58. (a) If a veteran dies after filing an application for
purchase of a farm or a home, and the veteran's eligibility and
qualifications are subsequently approved, the veteran's surviving
spouse may, in the discretion of the department, succeed to the
veteran's rights under the application, and may succeed to the
veteran's rights, privileges, and benefits under this article. The
contract of purchase which the department otherwise would have made
with the deceased veteran may be made with the surviving spouse.
(b) If a person was a member of the Armed Forces on active
military duty, entered active duty while in the State of California
and lived in this state for six months immediately preceding entry
into active duty, and was killed in the line of duty while on active
duty or died after discharge from active duty from injuries incurred
in the line of duty while on active duty, that person is a veteran
for purposes of this article, and his or her unremarried surviving
spouse may file an application, is entitled to the same rights,
privileges, and benefits for which the Armed Forces member would have
been eligible, and may contract with the department pursuant to
subdivision (a). In making a determination of eligibility under this
subdivision, the department may base its determination on
documentation furnished to the surviving spouse by the United States
Department of Veterans Affairs specifying the cause of death of the
Armed Forces member.
(c) If a member of the Armed Forces entered active military duty
while in the State of California, lived in this state for six months
or more immediately preceding entry into active duty, and is being
held as a prisoner of war or has been designated by the Armed Forces
as missing in action, that person is a veteran for purposes of this
article, and his or her spouse may file an application, is entitled
to the same rights, privileges, and benefits, and may contract with
the department pursuant to subdivision (a).
SEC. 199. Section 166 of the Penal Code is amended to read:
166. (a) Except as provided in subdivisions (b), (c), and (d),
every person guilty of any contempt of court, of any of the following
kinds, is guilty of a misdemeanor:
(1) Disorderly, contemptuous, or insolent behavior committed
during the sitting of any court of justice, in the immediate view and
presence of the court, and directly tending to interrupt its
proceedings or to impair the respect due to its authority.
(2) Behavior as specified in paragraph (1) committed in the
presence of any referee, while actually engaged in any trial or
hearing, pursuant to the order of any court, or in the presence of
any jury while actually sitting for the trial of a cause, or upon any
inquest or other proceedings authorized by law.
(3) Any breach of the peace, noise, or other disturbance directly
tending to interrupt the proceedings of any court.
(4) Willful disobedience of the terms as written of any process or
court order or out-of-state court order, lawfully issued by any
court, including orders pending trial.
(5) Resistance willfully offered by any person to the lawful order
or process of any court.
(6) The contumacious and unlawful refusal of any person to be
sworn as a witness or, when so sworn, the like refusal to answer any
material question.
(7) The publication of a false or grossly inaccurate report of the
proceedings of any court.
(8) Presenting to any court having power to pass sentence upon any
prisoner under conviction, or to any member of the court, any
affidavit or testimony or representation of any kind, verbal or
written, in aggravation or mitigation of the punishment to be imposed
upon the prisoner, except as provided in this code.
(9) Willful disobedience of the terms of any injunction that
restrains the activities of a criminal street gang or any of its
members, lawfully issued by any court, including an order pending
trial.
(b) (1) Any person who is guilty of contempt of court under
paragraph (4) of subdivision (a) by willfully contacting a victim by
telephone or mail, or directly, and who has been previously convicted
of a violation of Section 646.9 shall be punished by imprisonment in
a county jail for not more than one year, by a fine of five thousand
dollars ($5,000), or by both that fine and imprisonment.
(2) For the purposes of sentencing under this subdivision, each
contact shall constitute a separate violation of this subdivision.
(3) The present incarceration of a person who makes contact with a
victim in violation of paragraph (1) is not a defense to a violation
of this subdivision.
(c) (1) Notwithstanding paragraph (4) of subdivision (a), any
willful and knowing violation of any protective order or stay-away
court order issued pursuant to Section 136.2, in a pending criminal
proceeding involving domestic violence, as defined in Section 13700,
or issued as a condition of probation after a conviction in a
criminal proceeding involving domestic violence, as defined in
Section 13700, or elder or dependent adult abuse, as defined in
Section 368, or that is an order described in paragraph (3), shall
constitute contempt of court, a misdemeanor, punishable by
imprisonment in a county jail for not more than one year, by a fine
of not more than one thousand dollars ($1,000), or by both that
imprisonment and fine.
(2) If a violation of paragraph (1) results in a physical injury,
the person shall be imprisoned in a county jail for at least 48
hours, whether a fine or imprisonment is imposed, or the sentence is
suspended.
(3) Paragraphs (1) and (2) apply to the following court orders:
(A) Any order issued pursuant to Section 6320 or 6389 of the
Family Code.
(B) An order excluding one party from the family dwelling or from
the dwelling of the other.
(C) An order enjoining a party from specified behavior that the
court determined was necessary to effectuate the orders described in
paragraph (1).
(4) A second or subsequent conviction for a violation of any order
described in paragraph (1) occurring within seven years of a prior
conviction for a violation of any of those orders and involving an
act of violence or "a credible threat" of violence, as provided in
subdivisions (c) and (d) of Section 139, is punishable by
imprisonment in a county jail not to exceed one year, or in the state
prison for 16 months or two or three years.
(5) The prosecuting agency of each county shall have the primary
responsibility for the enforcement of the orders described in
paragraph (1).
(d) (1) A person who owns, possesses, purchases, or receives a
firearm knowing he or she is prohibited from doing so by the
provisions of a protective order as defined in Section 136.2 of this
code, Section 6218 of the Family Code, or Section 527.6 or 527.8 of
the Code of Civil Procedure, shall be punished under the provisions
of subdivision (g) of Section 12021.
(2) A person subject to a protective order described in paragraph
(1) shall not be prosecuted under this section for owning,
possessing, purchasing, or receiving a firearm to the extent that
firearm is granted an exemption pursuant to subdivision (h) of
Section 6389 of the Family Code.
(e) (1) If probation is granted upon conviction of a violation of
subdivision (c), the court shall impose probation consistent with
Section 1203.097.
(2) If probation is granted upon conviction of a violation of
subdivision (c), the conditions of probation may include, in lieu of
a fine, one or both of the following requirements:
(A) That the defendant make payments to a battered women's
shelter, up to a maximum of one thousand dollars ($1,000).
(B) That the defendant provide restitution to reimburse the victim
for reasonable costs of counseling and other reasonable expenses
that the court finds are the direct result of the defendant's
offense.
(3) For any order to pay a fine, make payments to a battered women'
s shelter, or pay restitution as a condition of probation under this
subdivision or subdivision (c), the court shall make a determination
of the defendant's ability to pay. In no event shall any order to
make payments to a battered women's shelter be made if it would
impair the ability of the defendant to pay direct restitution to the
victim or court-ordered child support.
(4) If the injury to a married person is caused, in whole or in
part, by the criminal acts of his or her spouse in violation of
subdivision (c), the community property may not be used to discharge
the liability of the offending spouse for restitution to the injured
spouse required by Section 1203.04, as operative on or before August
2, 1995, or Section 1202.4, or to a shelter for costs with regard to
the injured spouse and dependents required by this subdivision, until
all separate property of the offending spouse is exhausted.
(5) Any person violating any order described in subdivision (c)
may be punished for any substantive offenses described under Section
136.1 or 646.9. No finding of contempt shall be a bar to prosecution
for a violation of Section 136.1 or 646.9. However, any person held
in contempt for a violation of subdivision (c) shall be entitled to
credit for any punishment imposed as a result of that violation
against any sentence imposed upon conviction of an offense described
in Section 136.1 or 646.9. Any conviction or acquittal for any
substantive offense under Section 136.1 or 646.9 shall be a bar to a
subsequent punishment for contempt arising out of the same act.
SEC. 200. Section 171d of the Penal Code, as amended by Section 47
of Chapter 178 of the Statutes of 2010, is amended to read:
171d. Any person, except a duly appointed peace officer as
defined in Chapter 4.5 (commencing with Section 830) of Title 3 of
Part 2, a full-time paid peace officer of another state or the
federal government who is carrying out official duties while in
California, any person summoned by that officer to assist in making
arrests or preserving the peace while he or she is actually engaged
in assisting the officer, a member of the military forces of this
state or of the United States engaged in the performance of his or
her duties, a person holding a valid license to carry the firearm
pursuant to Chapter 4 (commencing with Section 26150) of Division 5
of Title 4 of Part 6, the Governor or a member of his or her
immediate family or a person acting with his or her permission with
respect to the Governor's Mansion or any other residence of the
Governor, any other constitutional officer or a member of his or her
immediate family or a person acting with his or her permission with
respect to the officer's residence, or a Member of the Legislature or
a member of his or her immediate family or a person acting with his
or her permission with respect to the Member's residence, shall be
punished by imprisonment in a county jail for not more than one year,
by a fine of not more than one thousand dollars ($1,000), or by both
the fine and imprisonment, or by imprisonment in the state prison,
if he or she does any of the following:
(a) Brings a loaded firearm into, or possesses a loaded firearm
within, the Governor's Mansion, or any other residence of the
Governor, the residence of any other constitutional officer, or the
residence of any Member of the Legislature.
(b) Brings a loaded firearm upon, or possesses a loaded firearm
upon, the grounds of the Governor's Mansion or any other residence of
the Governor, the residence of any other constitutional officer, or
the residence of any Member of the Legislature.
SEC. 201. Section 326.3 of the Penal Code is amended to read:
326.3. (a) The Legislature finds and declares all of the
following:
(1) Nonprofit organizations provide important and essential
educational, philanthropic, and social services to the people of the
State of California.
(2) One of the great strengths of California is a vibrant
nonprofit sector.
(3) Nonprofit and philanthropic organizations touch the lives of
every Californian through service and employment.
(4) Many of these services would not be available if nonprofit
organizations did not provide them.
(5) There is a need to provide methods of fundraising to nonprofit
organizations to enable them to provide these essential services.
(6) Historically, many nonprofit organizations have used
charitable bingo as one of their key fundraising strategies to
promote the mission of the charity.
(7) Legislation is needed to provide greater revenues for
nonprofit organizations to enable them to fulfill their charitable
purposes, and especially to meet their increasing social service
obligations.
(8) Legislation is also needed to clarify that existing law
requires that all charitable bingo must be played using a tangible
card and that the only permissible electronic devices to be used by
charitable bingo players are card-minding devices.
(b) Neither the prohibition on gambling in this chapter nor in
Chapter 10 (commencing with Section 330) applies to any remote caller
bingo game that is played or conducted in a city, county, or city
and county pursuant to an ordinance enacted under Section 19 of
Article IV of the California Constitution, if the ordinance allows a
remote caller bingo game to be played or conducted only in accordance
with this section, including the following requirements:
(1) The game may be conducted only by the following organizations:
(A) An organization that is exempted from the payment of the taxes
imposed under the Corporation Tax Law by Section 23701a, 23701b,
23701d, 23701e, 23701f, 23701g, 23701k, 23701 l , or
23701w of the Revenue and Taxation Code.
(B) A mobilehome park association.
(C) A senior citizens organization.
(D) Charitable organizations affiliated with a school district.
(2) The organization conducting the game shall have been
incorporated or in existence for three years or more.
(3) The organization conducting the game shall be licensed
pursuant to subdivision (l) of Section 326.5.
(4) The receipts of the game shall be used only for charitable
purposes. The organization conducting the game shall determine the
disbursement of the net receipts of the game.
(5) The operation of bingo may not be the primary purpose for
which the organization is organized.
(c) (1) A city, county, or city and county may adopt an ordinance
in substantially the following form to authorize remote caller bingo
in accordance with the requirements of subdivision (b):
Sec. _.01. Legislative Authorization.
This chapter is adopted pursuant to Section 19 of Article IV of
the California Constitution, as implemented by Sections 326.3 and
326.4 of the Penal Code.
Sec. _.02. Remote Caller Bingo Authorized.
Remote Caller Bingo may be lawfully played in the City, County, or
City and County] pursuant to the provisions of Sections 326.3 and
326.4 of the Penal Code, and this chapter, and not otherwise.
Sec. _.03. Qualified Applicants: Applicants for Licensure.
(a) The following organizations are qualified to apply to the
License Official for a license to operate a bingo game if the
receipts of those games are used only for charitable purposes:
(1) An organization exempt from the payment of the taxes imposed
under the Corporation Tax Law by Section 23701a, 23701b, 23701d,
23701e, 23701f, 23701g, 23701k, 23701 l , or 23701w of the
Revenue and Taxation Code.
(2) A mobile home park association of a mobile home park that is
situated in the City, County, or City and County].
(3) Senior citizen organizations.
(4) Charitable organizations affiliated with a school district.
(b) The application shall be in a form prescribed by the License
Official and shall be accompanied by a nonrefundable filing fee in an
amount determined by resolution of the Governing Body of the City,
County, or City and County] from time to time. The following
documentation shall be attached to the application, as applicable:
(1) A certificate issued by the Franchise Tax Board certifying
that the applicant is exempt from the payment of the taxes imposed
under the Corporation Tax Law pursuant to Section 23701a, 23701b,
23701d, 23701e, 23701f, 23701g, 23701k, 23701 l , or
23701w of the Revenue and Taxation Code. In lieu of a certificate
issued by the Franchise Tax Board, the License Official may refer to
the Franchise Tax Board's Internet Web site to verify that the
applicant is exempt from the payment of the taxes imposed under the
Corporation Tax Law.
(2) Other evidence as the License Official determines is necessary
to verify that the applicant is a duly organized mobile home park
association of a mobile home park situated in the City, County, or
City and County].
Sec. _.04. License Application: Verification.
The license shall not be issued until the License Official has
verified the facts stated in the application and determined that the
applicant is qualified.
Sec. _.05. Annual Licenses.
A license issued pursuant to this chapter shall be valid until the
end of the calendar year, at which time the license shall expire. A
new license shall only be obtained upon filing a new application and
payment of the license fee. The fact that a license has been issued
to an applicant creates no vested right on the part of the licensee
to continue to offer bingo for play. The Governing Body of the City,
County, or City and County] expressly reserves the right to amend or
repeal this chapter at any time by resolution. If this chapter is
repealed, all licenses issued pursuant to this chapter shall cease to
be effective for any purpose on the effective date of the repealing
resolution.
Sec. _.06. Conditions of Licensure.
(a) Any license issued pursuant to this chapter shall be
subject to the conditions contained in Sections 326.3 and 326.4 of
the Penal Code, and each licensee shall comply with the requirements
of those provisions.
(b) Each license issued pursuant to this chapter shall be subject
to the following additional conditions:
(1) Bingo games shall not be conducted by any licensee on more
than two days during any week, except that a licensee may hold one
additional game, at its election, in each calendar quarter.
(2) The licensed organization is responsible for ensuring that the
conditions of this chapter and Sections 326.3 and 326.4 of the Penal
Code are complied with by the organization and its officers and
members. A violation of any one or more of those conditions or
provisions shall constitute cause for the revocation of the
organization's license. At the request of the organization, the
Governing Body of the City, County, or City and County] shall hold a
public hearing before revoking any license issued pursuant to this
chapter.
(2) Nothing in this section shall require a city, county, or city
and county to use this model ordinance in order to authorize remote
caller bingo.
(d) It is a misdemeanor for any person to receive or pay a profit,
wage, or salary from any remote caller bingo game, provided that
administrative, managerial, technical, financial, and security
personnel employed by the organization conducting the bingo game may
be paid reasonable fees for services rendered from the revenues of
bingo games, as provided in subdivision (m), except that fees paid
under those agreements shall not be determined as a percentage of
receipts or other revenues from, or be dependant on the outcome of,
the game.
(e) A violation of subdivision (d) shall be punishable by a fine
not to exceed ten thousand dollars ($10,000), which fine shall be
deposited in the general fund of the city, county, or city and county
that enacted the ordinance authorizing the remote caller bingo game.
A violation of any provision of this section, other than subdivision
(d), is a misdemeanor.
(f) The city, county, or city and county that enacted the
ordinance authorizing the remote caller bingo game, or the Attorney
General, may bring an action to enjoin a violation of this section.
(g) No minors shall be allowed to participate in any remote caller
bingo game.
(h) A remote caller bingo game shall not include any site that is
not located within this state.
(i) An organization authorized to conduct a remote caller bingo
game pursuant to subdivision (b) shall conduct the game only on
property that is owned or leased by the organization, or the use of
which is donated to the organization. Nothing in this subdivision
shall be construed to require that the property that is owned or
leased by, or the use of which is donated to, the organization be
used or leased exclusively by, or donated exclusively to, that
organization.
(j) (1) All remote caller bingo games shall be open to the public,
not just to the members of the authorized organization.
(2) No more than 750 players may participate in a remote caller
bingo game in a single location.
(3) If the Governor of California or the President of the United
States declares a state of emergency in response to a natural
disaster or other public catastrophe occurring in California, an
organization authorized to conduct remote caller bingo games may,
while that declaration is in effect, conduct a remote caller bingo
game pursuant to this section with more than 750 participants in a
single venue if the net proceeds of the game, after deduction of
prizes and overhead expenses, are donated to or expended exclusively
for the relief of the victims of the disaster or catastrophe, and the
organization gives the California Gambling Control Commission at
least 10 days' written notice of the intent to conduct that game.
(4) An organization authorized to conduct remote caller bingo
games shall provide the commission with at least 30 days' advance
written notice of its intent to conduct a remote caller bingo game.
That notice shall include all of the following:
(A) The legal name of the organization and the address of record
of the agent upon whom legal notice may be served.
(B) The locations of the caller and remote players, whether the
property is owned by the organization or donated, and if donated, by
whom.
(C) The name of the licensed caller and site manager.
(D) The names of administrative, managerial, technical, financial,
and security personnel employed.
(E) The name of the vendor and any person or entity maintaining
the equipment used to operate and transmit the game.
(F) The name of the person designated as having a fiduciary
responsibility for the game pursuant to paragraph (2) of subdivision
(k).
(G) The license numbers of all persons specified in subparagraphs
(A) to (F), inclusive, who are required to be licensed.
(H) A copy of the local ordinance for any city, county, or city
and county in which the game will be played. The commission shall
post the ordinance on its Internet Web site.
(k) (1) A remote caller bingo game shall be operated and staffed
only by members of the authorized organization that organized it.
Those members shall not receive a profit, wage, or salary from any
remote caller bingo game. Only the organization authorized to conduct
a remote caller bingo game shall operate that game, or participate
in the promotion, supervision, or any other phase of a remote caller
bingo game. Subject to the provisions of subdivision (m), this
subdivision shall not preclude the employment of administrative,
managerial, technical, financial, or security personnel who are not
members of the authorized organization at a location participating in
the remote caller bingo game by the organization conducting the
game. Notwithstanding any other provision of law, exclusive or other
agreements between the authorized organization and other entities or
persons to provide services in the administration, management, or
conduct of the game shall not be considered a violation of the
prohibition against holding a legally cognizable financial interest
in the conduct of the remote caller bingo game by persons or entities
other than the charitable organization, or other entity authorized
to conduct the remote caller bingo games, provided that those persons
or entities obtain the gambling licenses, the key employee licenses,
or the work permits required by, and otherwise comply with, Chapter
5 (commencing with Section 19800) of Division 8 of the Business and
Professions Code. Fees to be paid under any such agreements shall be
reasonable and shall not be determined as a percentage of receipts or
other revenues from, or be dependent on the outcome of, the game.
(2) An organization that conducts a remote caller bingo game shall
designate a person as having fiduciary responsibility for the game.
(l) No individual, corporation, partnership, or other legal
entity, except the organization authorized to conduct or participate
in a remote caller bingo game, shall hold a legally cognizable
financial interest in the conduct of such a game.
(m) An organization authorized to conduct a remote caller bingo
game pursuant to this section shall not have overhead costs exceeding
20 percent of gross sales, except that the limitations of this
section shall not apply to one-time, nonrecurring capital
acquisitions. For purposes of this subdivision, "overhead costs"
includes, but is not limited to, amounts paid for rent and equipment
leasing and the reasonable fees authorized to be paid to
administrative, managerial, technical, financial, and security
personnel employed by the organization pursuant to subdivision (d).
For the purpose of keeping its overhead costs below 20 percent of
gross sales, an authorized organization may elect to deduct all or a
portion of the fees paid to financial institutions for the use and
processing of credit card sales from the amount of gross revenues
awarded for prizes. In that case, the redirected fees for the use and
processing of credit card sales shall not be included in "overhead
costs" as defined in the California Remote Caller Bingo Act.
Additionally, fees paid to financial institutions for the use and
processing of credit card sales shall not be deducted from the
proceeds retained by the charitable organization.
(n) No person shall be allowed to participate in a remote caller
bingo game unless the person is physically present at the time and
place where the remote caller bingo game is being conducted. A person
shall be deemed to be physically present at the place where the
remote caller bingo game is being conducted if he or she is present
at any of the locations participating in the remote caller bingo game
in accordance with this section.
(o) (1) An organization shall not cosponsor a remote caller bingo
game with one or more other organizations unless one of the following
is true:
(A) All of the cosponsors are affiliated under the master charter
or articles and bylaws of a single organization.
(B) All of the cosponsors are affiliated through an organization
described in paragraph (1) of subdivision (b), and have the same
Internal Revenue Service activity code.
(2) Notwithstanding paragraph (1), a maximum of 10 unaffiliated
organizations described in paragraph (1) of subdivision (b) may enter
into an agreement to cosponsor a remote caller game, provided that
the game shall have not more than 10 locations.
(3) An organization shall not conduct remote caller bingo more
than two days per week.
(4) Before sponsoring or operating any game authorized under
paragraph (1) or (2), each of the cosponsoring organizations shall
have entered into a written agreement, a copy of which shall be
provided to the commission, setting forth how the expenses and
proceeds of the game are to be allocated among the participating
organizations, the bank accounts into which all receipts are to be
deposited and from which all prizes are to be paid, and how game
records are to be maintained and subjected to annual audit.
(p) The value of prizes awarded during the conduct of any remote
caller bingo game shall not exceed 37 percent of the gross receipts
for that game. When an authorized organization elects to deduct fees
paid for the use and processing of credit card sales from the amount
of gross revenues for that game awarded for prizes, the maximum
amount of gross revenues that may be awarded for prizes shall not
exceed 37 percent of the gross receipts for that game, less the
amount of redirected fees paid for the use and processing of credit
card sales. Every remote caller bingo game shall be played until a
winner is declared. Progressive prizes are prohibited. The declared
winner of a remote caller bingo game shall provide his or her
identifying information and a mailing address to the onsite manager
of the remote caller bingo game. Prizes shall be paid only by check;
no cash prizes shall be paid. The organization conducting the remote
caller bingo game may issue a check to the winner at the time of the
game, or may send a check to the declared winner by United States
Postal Service certified mail, return receipt requested. All prize
money exceeding state and federal exemption limits on prize money
shall be subject to income tax reporting and withholding requirements
under applicable state and federal laws and regulations and those
reports and withholding shall be forwarded, within 10 business days,
to the appropriate state or federal agency on behalf of the winner. A
report shall accompany the amount withheld identifying the person on
whose behalf the money is being sent. Any game interrupted by a
transmission failure, electrical outage, or act of God shall be
considered void in the location that was affected. A refund for a
canceled game or games shall be provided to the purchasers.
(q) (1) The California Gambling Control Commission shall regulate
remote caller bingo, including, but not limited to, licensure and
operation. The commission shall establish reasonable criteria
regulating, and shall require the licensure of, the following:
(A) Any person who conducts a remote caller bingo game pursuant to
this section, including, but not limited to, an employee, a person
having fiduciary responsibility for a remote caller bingo game, a
site manager, and a bingo caller.
(B) Any person who directly or indirectly manufactures,
distributes, supplies, vends, leases, or otherwise provides supplies,
devices, services, or other equipment designed for use in the
playing of a remote caller bingo game by any nonprofit organization.
(C) Beginning January 31, 2009, or a later date as may be
established by the commission, all persons described in subparagraph
(A) or (B) may submit to the commission a letter of intent to submit
an application for licensure. The letter shall clearly identify the
principal applicant, all categories under which the application will
be filed, and the names of all those particular individuals who are
applying. Each charitable organization shall provide an estimate of
the frequency with which it plans to conduct remote caller bingo
operations, including the number of locations. The letter of intent
may be withdrawn or updated at any time.
(2) (A) The Department of Justice shall conduct background
investigations and conduct field enforcement as it relates to remote
caller bingo consistent with the Gambling Control Act (Chapter 5
(commencing with Section 19800) of Division 8 of the Business and
Professions Code) and as specified in regulations promulgated by the
commission.
(B) Fees to cover background investigation costs shall be paid and
accounted for in accordance with Section 19867 of the Business and
Professions Code.
(3) (A) Every application for a license or approval shall be
accompanied by a nonrefundable fee, the amount of which shall be
adopted by the commission by regulation.
(B) Fees and revenue collected pursuant to this paragraph shall be
deposited in the California Bingo Fund, which is hereby created in
the State Treasury. The funds deposited in the California Bingo Fund
shall be available, upon appropriation by the Legislature, for
expenditure by the commission and the department exclusively for the
support of the commission and department in carrying out their duties
and responsibilities under this section and Section 326.5.
(C) A loan is hereby authorized from the Gambling Control Fund to
the California Bingo Fund on or after January 1, 2009, in an amount
of up to five hundred thousand dollars ($500,000) to fund operating,
personnel, and other startup costs incurred by the commission
relating to this act. Funds from the California Bingo Fund shall be
available to the commission upon appropriation by the Legislature in
the annual Budget Act. The loan shall be subject to all of the
following conditions:
(i) The loan shall be repaid to the Gambling Control Fund as soon
as there is sufficient money in the California Bingo Fund to repay
the amount loaned, but no later than five years after the date of the
loan.
(ii) Interest on the loan shall be paid from the California Bingo
Fund at the rate accruing to moneys in the Pooled Money Investment
Account.
(iii) The terms and conditions of the loan are approved, prior to
the transfer of funds, by the Department of Finance pursuant to
appropriate fiscal standards.
The commission may assess and collect reasonable fees and deposits
as necessary to defray the costs of regulation and oversight.
(r) The administrative, managerial, technical, financial, and
security personnel employed by an organization that conducts remote
caller bingo games shall apply for, obtain, and thereafter maintain
valid work permits, as defined in Section 19805 of the Business and
Professions Code.
(s) An organization that conducts remote caller bingo games shall
retain records in connection with the remote caller bingo game for
five years.
(t) (1) All equipment used for remote caller bingo shall be
approved in advance by the California Gambling Control Commission
pursuant to regulations adopted pursuant to subdivision (r) of
Section 19841 of the Business and Professions Code.
(2) The California Gambling Control Commission shall monitor
operation of the transmission and other equipment used for remote
caller bingo, and monitor the game.
(u) (1) As used in this section, "remote caller bingo game" means
a game of bingo, as defined in subdivision (o) of Section 326.5, in
which the numbers or symbols on randomly drawn plastic balls are
announced by a natural person present at the site at which the live
game is conducted, and the organization conducting the bingo game
uses audio and video technology to link any of its in-state
facilities for the purpose of transmitting the remote calling of a
live bingo game from a single location to multiple locations owned,
leased, or rented by that organization, or as described in
subdivision (o) of this section. The audio or video technology used
to link the facilities may include cable, Internet, satellite,
broadband, or telephone technology, or any other means of electronic
transmission that ensures the secure, accurate, and simultaneous
transmission of the announcement of numbers or symbols in the game
from the location at which the game is called by a natural person to
the remote location or locations at which players may participate in
the game. The drawing of each ball bearing a number or symbol by the
natural person calling the game shall be visible to all players as
the ball is drawn, including through a simultaneous live video feed
at remote locations at which players may participate in the game.
(2) The caller in the live game must be licensed by the California
Gambling Control Commission. A game may be called by a nonlicensed
caller if the drawing of balls and calling of numbers or symbols by
that person is observed and personally supervised by a licensed
caller.
(3) Remote caller bingo games shall be played using traditional
paper or other tangible bingo cards and daubers, and shall not be
played by using electronic devices, except card-minding devices, as
described in paragraph (1) of subdivision (p) of Section 326.5.
(4) Prior to conducting a remote caller bingo game, the
organization that conducts remote caller bingo shall submit to the
commission the controls, methodology, and standards of game play,
which shall include, but not be limited to, the equipment used to
select bingo numbers and create or originate cards, control or
maintenance, distribution to participating locations, and
distribution to players. Those controls, methodologies, and standards
shall be subject to prior approval by the commission, provided that
the controls shall be deemed approved by the commission after 90 days
from the date of submission unless disapproved.
(v) A location shall not be eligible to participate in a remote
caller bingo game if bingo games are conducted at that location in
violation of Section 326.5 or any regulation adopted by the
commission pursuant to Section 19841 of the Business and Professions
Code, including, but not limited to, a location at which unlawful
electronic devices are used.
(w) (1) The vendor of the equipment used in a remote caller bingo
game shall have its books and records audited at least annually by an
independent California certified public accountant and shall submit
the results of that audit to the California Gambling Control
Commission within 120 days after the close of the vendor's fiscal
year. In addition, the California Gambling Control Commission may
audit the books and records of the vendor at any time.
(2) An authorized organization that conducts remote caller bingo
games shall provide copies of the records pertaining to those games
to the California Gambling Control Commission within 30 days after
the end of each calendar quarter. In addition, those records shall be
audited by an independent California certified public accountant at
least annually and copies of the audit reports shall be provided to
the California Gambling Control Commission within 120 days after the
close of the organization's fiscal year. The audit report shall
account for the annual amount of fees paid to financial institutions
for the use and processing of credit card sales by the authorized
organization and the amount of fees for the use and processing of
credit card sales redirected from "overhead costs" and deducted from
the amount of gross revenues awarded for prizes.
(3) The costs of the licensing and audits required by this section
shall be borne by the person or entity required to be licensed or
audited. The audit shall enumerate the receipts for remote caller
bingo, the prizes disbursed, the overhead costs, and the amount
retained by the nonprofit organization. The commission may audit the
books and records of an organization that conducts remote caller
bingo games at any time.
(4) If, during an audit, the commission identifies practices in
violation of this section, the license for the audited entity may be
suspended pending review and hearing before the commission for a
final determination.
(5) No audit required to be conducted by the commission shall
commence before January 1, 2010.
(x) (1) 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.
(2) Notwithstanding paragraph (1), if paragraph (1) or (3) of
subdivision (u), or the application of either of those provisions, is
held invalid, this entire section shall be invalid.
(y) The commission shall submit a report to the Legislature, on or
before January 1, 2012, on the fundraising effectiveness and
regulation of remote caller bingo, and other matters that are
relevant to the public interest regarding remote caller bingo.
(z) The following definitions apply for purposes of this section:
(1) "Commission" means the California Gambling Control Commission.
(2) "Person" includes a natural person, corporation, limited
liability company, partnership, trust, joint venture, association, or
any other business organization.
SEC. 202. Section 330.1 of the Penal Code is amended to read:
330.1. (a) Every person who manufactures, owns, stores, keeps,
possesses, sells, rents, leases, lets on shares, lends or gives away,
transports, or exposes for sale or lease, or offers to sell, rent,
lease, let on shares, lend or give away or who permits the operation
of or permits to be placed, maintained, used, or kept in any room,
space, or building owned, leased, or occupied by him or her or under
his or her management or control, any slot machine or device as
hereinafter defined, and every person who makes or permits to be made
with any person any agreement with reference to any slot machine or
device as hereinafter defined, pursuant to which agreement the user
thereof, as a result of any element of hazard or chance, may become
entitled to receive anything of value or additional chance or right
to use that slot machine or device, or to receive any check, slug,
token, or memorandum, whether of value or otherwise, entitling the
holder to receive anything of value, is guilty of a misdemeanor.
(b) A first violation of this section shall be punishable by a
fine of not more than one thousand dollars ($1,000), or by
imprisonment in a county jail not exceeding six months, or by both
that fine and imprisonment.
(c) A second offense shall be punishable by a fine of not less
than one thousand dollars ($1,000) nor more than ten thousand dollars
($10,000), or by imprisonment in a county jail not exceeding six
months, or by both that fine and imprisonment.
(d) A third or subsequent offense shall be punishable by a fine of
not less than ten thousand dollars ($10,000) nor more than
twenty-five thousand dollars ($25,000), or by imprisonment in a
county jail not exceeding one year, or by both that fine and
imprisonment.
(e) If the offense involved more than one machine or more than one
location, an additional fine of not less than one thousand dollars
($1,000) nor more than five thousand dollars ($5,000) shall be
imposed per machine and per location.
(f) A slot machine or device within the meaning of Sections 330.1
to 330.5, inclusive, of this code is one that is, or may be, used or
operated in such a way that, as a result of the insertion of any
piece of money or coin or other object the machine or device is
caused to operate or may be operated or played, mechanically,
electrically, automatically, or manually, and by reason of any
element of hazard or chance, the user may receive or become entitled
to receive anything of value or any check, slug, token, or
memorandum, whether of value or otherwise, which may be given in
trade, or the user may secure additional chances or rights to use
such machine or device, irrespective of whether it may, apart from
any element of hazard or chance, also sell, deliver, or present some
merchandise, indication of weight, entertainment, or other thing of
value.
SEC. 203. Section 381 of the Penal Code is amended to read:
381. (a) Any person who possesses toluene or any substance or
material containing toluene, including, but not limited to, glue,
cement, dope, paint thinner, paint and any combination of
hydrocarbons, either alone or in combination with any substance or
material including but not limited to paint, paint thinner, shellac
thinner, and solvents, with the intent to breathe, inhale, or ingest
for the purpose of causing a condition of intoxication, elation,
euphoria, dizziness, stupefaction, or dulling of the senses or for
the purpose of, in any manner, changing, distorting, or disturbing
the audio, visual, or mental processes, or who knowingly and with the
intent to do so is under the influence of toluene or any material
containing toluene, or any combination of hydrocarbons is guilty of a
misdemeanor.
(b) Any person who possesses any substance or material, which the
State Department of Public Health has determined by regulations
adopted pursuant to the Administrative Procedure Act (Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code) has toxic qualities similar to toluene, with
the intent to breathe, inhale, or ingest for the purpose of causing a
condition of intoxication, elation, euphoria, dizziness, excitement,
irrational behavior, exhilaration, satisfaction, stupefaction, or
dulling of the senses or for the purpose of, in any manner, changing,
distorting, or disturbing the audio, visual, or mental processes,
or who is under the influence
of such substance or material is guilty of a misdemeanor.
SEC. 204. Section 594 of the Penal Code, as added by Section 2 of
Chapter 851 of the Statutes of 1998, is repealed.
SEC. 205. Section 594 of the Penal Code, as added by Section 1.2
of Chapter 852 of the Statutes of 1998, is repealed.
SEC. 206. Section 597y of the Penal Code is amended to read:
597y. A violation of Section 597u or 597v is a misdemeanor.
SEC. 207. Section 602 of the Penal Code is amended to read:
602. Except as provided in subdivision (u), subdivision (v),
subdivision (x), and Section 602.8, every person who willfully
commits a trespass by any of the following acts is guilty of a
misdemeanor:
(a) Cutting down, destroying, or injuring any kind of wood or
timber standing or growing upon the lands of another.
(b) Carrying away any kind of wood or timber lying on those lands.
(c) Maliciously injuring or severing from the freehold of another
anything attached to it, or its produce.
(d) Digging, taking, or carrying away from any lot situated within
the limits of any incorporated city, without the license of the
owner or legal occupant, any earth, soil, or stone.
(e) Digging, taking, or carrying away from land in any city or
town laid down on the map or plan of the city, or otherwise
recognized or established as a street, alley, avenue, or park,
without the license of the proper authorities, any earth, soil, or
stone.
(f) Maliciously tearing down, damaging, mutilating, or destroying
any sign, signboard, or notice placed upon, or affixed to, any
property belonging to the state, or to any city, county, city and
county, town or village, or upon any property of any person, by the
state or by an automobile association, which sign, signboard, or
notice is intended to indicate or designate a road or a highway, or
is intended to direct travelers from one point to another, or relates
to fires, fire control, or any other matter involving the protection
of the property, or putting up, affixing, fastening, printing, or
painting upon any property belonging to the state, or to any city,
county, town, or village, or dedicated to the public, or upon any
property of any person, without license from the owner, any notice,
advertisement, or designation of, or any name for any commodity,
whether for sale or otherwise, or any picture, sign, or device
intended to call attention to it.
(g) Entering upon any lands owned by any other person whereon
oysters or other shellfish are planted or growing; or injuring,
gathering, or carrying away any oysters or other shellfish planted,
growing, or on any of those lands, whether covered by water or not,
without the license of the owner or legal occupant; or damaging,
destroying, or removing, or causing to be removed, damaged, or
destroyed, any stakes, marks, fences, or signs intended to designate
the boundaries and limits of any of those lands.
(h) (1) Entering upon lands or buildings owned by any other person
without the license of the owner or legal occupant, where signs
forbidding trespass are displayed, and whereon cattle, goats, pigs,
sheep, fowl, or any other animal is being raised, bred, fed, or held
for the purpose of food for human consumption; or injuring,
gathering, or carrying away any animal being housed on any of those
lands, without the license of the owner or legal occupant; or
damaging, destroying, or removing, or causing to be removed, damaged,
or destroyed, any stakes, marks, fences, or signs intended to
designate the boundaries and limits of any of those lands.
(2) In order for there to be a violation of this subdivision, the
trespass signs under paragraph (1) must be displayed at intervals not
less than three per mile along all exterior boundaries and at all
roads and trails entering the land.
(3) This subdivision shall not be construed to preclude
prosecution or punishment under any other provision of law,
including, but not limited to, grand theft or any provision that
provides for a greater penalty or longer term of imprisonment.
(i) Willfully opening, tearing down, or otherwise destroying any
fence on the enclosed land of another, or opening any gate, bar, or
fence of another and willfully leaving it open without the written
permission of the owner, or maliciously tearing down, mutilating, or
destroying any sign, signboard, or other notice forbidding shooting
on private property.
(j) Building fires upon any lands owned by another where signs
forbidding trespass are displayed at intervals not greater than one
mile along the exterior boundaries and at all roads and trails
entering the lands, without first having obtained written permission
from the owner of the lands or the owner's agent, or the person in
lawful possession.
(k) Entering any lands, whether unenclosed or enclosed by fence,
for the purpose of injuring any property or property rights or with
the intention of interfering with, obstructing, or injuring any
lawful business or occupation carried on by the owner of the land,
the owner's agent, or by the person in lawful possession.
(l) Entering any lands under cultivation or enclosed by fence,
belonging to, or occupied by, another, or entering upon uncultivated
or unenclosed lands where signs forbidding trespass are displayed at
intervals not less than three to the mile along all exterior
boundaries and at all roads and trails entering the lands without the
written permission of the owner of the land, the owner's agent, or
of the person in lawful possession, and
(1) Refusing or failing to leave the lands immediately upon being
requested by the owner of the land, the owner's agent or by the
person in lawful possession to leave the lands, or
(2) Tearing down, mutilating, or destroying any sign, signboard,
or notice forbidding trespass or hunting on the lands, or
(3) Removing, injuring, unlocking, or tampering with any lock on
any gate on or leading into the lands, or
(4) Discharging any firearm.
(m) Entering and occupying real property or structures of any kind
without the consent of the owner, the owner's agent, or the person
in lawful possession.
(n) Driving any vehicle, as defined in Section 670 of the Vehicle
Code, upon real property belonging to, or lawfully occupied by,
another and known not to be open to the general public, without the
consent of the owner, the owner's agent, or the person in lawful
possession. This subdivision shall not apply to any person described
in Section 22350 of the Business and Professions Code who is making a
lawful service of process, provided that upon exiting the vehicle,
the person proceeds immediately to attempt the service of process,
and leaves immediately upon completing the service of process or upon
the request of the owner, the owner's agent, or the person in lawful
possession.
(o) Refusing or failing to leave land, real property, or
structures belonging to or lawfully occupied by another and not open
to the general public, upon being requested to leave by (1) a peace
officer at the request of the owner, the owner's agent, or the person
in lawful possession, and upon being informed by the peace officer
that he or she is acting at the request of the owner, the owner's
agent, or the person in lawful possession, or (2) the owner, the
owner's agent, or the person in lawful possession. The owner, the
owner's agent, or the person in lawful possession shall make a
separate request to the peace officer on each occasion when the peace
officer's assistance in dealing with a trespass is requested.
However, a single request for a peace officer's assistance may be
made to cover a limited period of time not to exceed 30 days and
identified by specific dates, during which there is a fire hazard or
the owner, owner's agent, or person in lawful possession is absent
from the premises or property. In addition, a single request for a
peace officer's assistance may be made for a period not to exceed six
months when the premises or property is closed to the public and
posted as being closed. However, this subdivision shall not be
applicable to persons engaged in lawful labor union activities which
are permitted to be carried out on the property by the
Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act of
1975 (Part 3.5 (commencing with Section 1140) of Division 2 of the
Labor Code) or by the National Labor Relations Act. For purposes of
this section, land, real property, or structures owned or operated by
any housing authority for tenants as defined under Section 34213.5
of the Health and Safety Code constitutes property not open to the
general public; however, this subdivision shall not apply to persons
on the premises who are engaging in activities protected by the
California or United States Constitution, or to persons who are on
the premises at the request of a resident or management and who are
not loitering or otherwise suspected of violating or actually
violating any law or ordinance.
(p) Entering upon any lands declared closed to entry as provided
in Section 4256 of the Public Resources Code, if the closed areas
shall have been posted with notices declaring the closure, at
intervals not greater than one mile along the exterior boundaries or
along roads and trails passing through the lands.
(q) Refusing or failing to leave a public building of a public
agency during those hours of the day or night when the building is
regularly closed to the public upon being requested to do so by a
regularly employed guard, watchperson, or custodian of the public
agency owning or maintaining the building or property, if the
surrounding circumstances would indicate to a reasonable person that
the person has no apparent lawful business to pursue.
(r) Knowingly skiing in an area or on a ski trail which is closed
to the public and which has signs posted indicating the closure.
(s) Refusing or failing to leave a hotel or motel, where he or she
has obtained accommodations and has refused to pay for those
accommodations, upon request of the proprietor or manager, and the
occupancy is exempt, pursuant to subdivision (b) of Section 1940 of
the Civil Code, from Chapter 2 (commencing with Section 1940) of
Title 5 of Part 4 of Division 3 of the Civil Code. For purposes of
this subdivision, occupancy at a hotel or motel for a continuous
period of 30 days or less shall, in the absence of a written
agreement to the contrary, or other written evidence of a periodic
tenancy of indefinite duration, be exempt from Chapter 2 (commencing
with Section 1940) of Title 5 of Part 4 of Division 3 of the Civil
Code.
(t) (1) Entering upon private property, including contiguous land,
real property, or structures thereon belonging to the same owner,
whether or not generally open to the public, after having been
informed by a peace officer at the request of the owner, the owner's
agent, or the person in lawful possession, and upon being informed by
the peace officer that he or she is acting at the request of the
owner, the owner's agent, or the person in lawful possession, that
the property is not open to the particular person; or refusing or
failing to leave the property upon being asked to leave the property
in the manner provided in this subdivision.
(2) This subdivision shall apply only to a person who has been
convicted of a crime committed upon the particular private property.
(3) A single notification or request to the person as set forth
above shall be valid and enforceable under this subdivision unless
and until rescinded by the owner, the owner's agent, or the person in
lawful possession of the property.
(4) Where the person has been convicted of a violent felony, as
described in subdivision (c) of Section 667.5, this subdivision shall
apply without time limitation. Where the person has been convicted
of any other felony, this subdivision shall apply for no more than
five years from the date of conviction. Where the person has been
convicted of a misdemeanor, this subdivision shall apply for no more
than two years from the date of conviction. Where the person was
convicted for an infraction pursuant to Section 490.1, this
subdivision shall apply for no more than one year from the date of
conviction. This subdivision shall not apply to convictions for any
other infraction.
(u) (1) Knowingly entering, by an unauthorized person, upon any
airport operations area, passenger vessel terminal, or public transit
facility if the area has been posted with notices restricting access
to authorized personnel only and the postings occur not greater than
every 150 feet along the exterior boundary, to the extent, in the
case of a passenger vessel terminal, as defined in subparagraph (B)
of paragraph (3), that the exterior boundary extends shoreside. To
the extent that the exterior boundary of a passenger vessel terminal
operations area extends waterside, this prohibition shall apply if
notices have been posted in a manner consistent with the requirements
for the shoreside exterior boundary, or in any other manner approved
by the captain of the port.
(2) Any person convicted of a violation of paragraph (1) shall be
punished as follows:
(A) By a fine not exceeding one hundred dollars ($100).
(B) By imprisonment in a county jail not exceeding six months, or
by a fine not exceeding one thousand dollars ($1,000), or by both
that fine and imprisonment, if the person refuses to leave the
airport or passenger vessel terminal after being requested to leave
by a peace officer or authorized personnel.
(C) By imprisonment in a county jail not exceeding six months, or
by a fine not exceeding one thousand dollars ($1,000), or by both
that fine and imprisonment, for a second or subsequent offense.
(3) As used in this subdivision, the following definitions shall
control:
(A) "Airport operations area" means that part of the airport used
by aircraft for landing, taking off, surface maneuvering, loading and
unloading, refueling, parking, or maintenance, where aircraft
support vehicles and facilities exist, and which is not for public
use or public vehicular traffic.
(B) "Passenger vessel terminal" means only that portion of a
harbor or port facility, as described in Section 105.105(a)(2) of
Title 33 of the Code of Federal Regulations, with a secured area that
regularly serves scheduled commuter or passenger operations. For the
purposes of this section, "passenger vessel terminal" does not
include any area designated a public access area pursuant to Section
105.106 of Title 33 of the Code of Federal Regulations.
(C) "Public transit facility" has the same meaning as specified in
Section 171.7.
(D) "Authorized personnel" means any person who has a valid
airport identification card issued by the airport operator or has a
valid airline identification card recognized by the airport operator,
or any person not in possession of an airport or airline
identification card who is being escorted for legitimate purposes by
a person with an airport or airline identification card. "Authorized
personnel" also means any person who has a valid port identification
card issued by the harbor operator, or who has a valid company
identification card issued by a commercial maritime enterprise
recognized by the harbor operator, or any other person who is being
escorted for legitimate purposes by a person with a valid port or
qualifying company identification card. "Authorized personnel" also
means any person who has a valid public transit employee
identification.
(E) "Airport" means any facility whose function is to support
commercial aviation.
(v) (1) Except as permitted by federal law, intentionally avoiding
submission to the screening and inspection of one's person and
accessible property in accordance with the procedures being applied
to control access when entering or reentering a sterile area of an
airport, passenger vessel terminal, as defined in Section 171.5, or
public transit facility, as defined in subdivision (u), if the
sterile area is posted with a statement providing reasonable notice
that prosecution may result from a trespass described in this
subdivision, is a violation of this subdivision, punishable by a fine
of not more than five hundred dollars ($500) for the first offense.
A second and subsequent violation is a misdemeanor, punishable by
imprisonment in a county jail for a period of not more than one year,
or by a fine not to exceed one thousand dollars ($1,000), or by both
that fine and imprisonment.
(2) Notwithstanding paragraph (1), if a first violation of this
subdivision is responsible for the evacuation of an airport terminal,
passenger vessel terminal, or public transit facility and is
responsible in any part for delays or cancellations of scheduled
flights or departures, it is punishable by imprisonment of not more
than one year in a county jail.
(w) Refusing or failing to leave a battered women's shelter at any
time after being requested to leave by a managing authority of the
shelter.
(1) A person who is convicted of violating this subdivision shall
be punished by imprisonment in a county jail for not more than one
year.
(2) The court may order a defendant who is convicted of violating
this subdivision to make restitution to a battered woman in an amount
equal to the relocation expenses of the battered woman and her
children if those expenses are incurred as a result of trespass by
the defendant at a battered women's shelter.
(x) (1) Knowingly entering or remaining in a neonatal unit,
maternity ward, or birthing center located in a hospital or clinic
without lawful business to pursue therein, if the area has been
posted so as to give reasonable notice restricting access to those
with lawful business to pursue therein and the surrounding
circumstances would indicate to a reasonable person that he or she
has no lawful business to pursue therein. Reasonable notice is that
which would give actual notice to a reasonable person, and is posted,
at a minimum, at each entrance into the area.
(2) Any person convicted of a violation of paragraph (1) shall be
punished as follows:
(A) As an infraction, by a fine not exceeding one hundred dollars
($100).
(B) By imprisonment in a county jail not exceeding one year, or by
a fine not exceeding one thousand dollars ($1,000), or by both that
fine and imprisonment, if the person refuses to leave the posted area
after being requested to leave by a peace officer or other
authorized person.
(C) By imprisonment in a county jail not exceeding one year, or by
a fine not exceeding two thousand dollars ($2,000), or by both that
fine and imprisonment, for a second or subsequent offense.
(D) If probation is granted or the execution or imposition of
sentencing is suspended for any person convicted under this
subdivision, it shall be a condition of probation that the person
participate in counseling, as designated by the court, unless the
court finds good cause not to impose this requirement. The court
shall require the person to pay for this counseling, if ordered,
unless good cause not to pay is shown.
(y) Except as permitted by federal law, intentionally avoiding
submission to the screening and inspection of one's person and
accessible property in accordance with the procedures being applied
to control access when entering or reentering a courthouse or a city,
county, city and county, or state building if entrances to the
courthouse or the city, county, city and county, or state building
have been posted with a statement providing reasonable notice that
prosecution may result from a trespass described in this subdivision.
SEC. 208. Section 626.95 of the Penal Code, as amended by Section
60 of Chapter 178 of the Statutes of 2010, is amended to read:
626.95. (a) Any person who is in violation of paragraph (2) of
subdivision (a), or subdivision (b), of Section 417, or Section 25400
or 25850, upon the grounds of or within a playground, or a public or
private youth center during hours in which the facility is open for
business, classes, or school-related programs, or at any time when
minors are using the facility, knowing that he or she is on or within
those grounds, shall be punished by imprisonment in the state prison
for one, two, or three years, or in a county jail not exceeding one
year.
(b) State and local authorities are encouraged to cause signs to
be posted around playgrounds and youth centers giving warning of
prohibition of the possession of firearms upon the grounds of or
within playgrounds or youth centers.
(c) For purposes of this section, the following definitions shall
apply:
(1) "Playground" means any park or recreational area specifically
designed to be used by children that has play equipment installed,
including public grounds designed for athletic activities such as
baseball, football, soccer, or basketball, or any similar facility
located on public or private school grounds, or on city or county
parks.
(2) "Youth center" means any public or private facility that is
used to host recreational or social activities for minors while
minors are present.
(d) It is the Legislature's intent that only an actual conviction
of a felony of one of the offenses specified in this section would
subject the person to firearms disabilities under the federal Gun
Control Act of 1968 (P.L. 90-618; 18 U.S.C. Sec. 921).
SEC. 209. Section 647.7 of the Penal Code is amended to read:
647.7. (a) In any case in which a person is convicted of
violating subdivision (i) or (j) of Section 647, the court may
require counseling as a condition of probation. Any defendant so
ordered to be placed in a counseling program shall be responsible for
paying the expense of his or her participation in the counseling
program as determined by the court. The court shall take into
consideration the ability of the defendant to pay, and no defendant
shall be denied probation because of his or her inability to pay.
(b) Every person who, having been convicted of violating
subdivision (i) or (j) of Section 647, commits a second or subsequent
violation of subdivision (i) or (j) of Section 647, shall be
punished by imprisonment in a county jail not exceeding one year, by
a fine not exceeding one thousand dollars ($1,000), or by both that
fine and imprisonment, except as provided in subdivision (c).
(c) Every person who, having been previously convicted of
violating subdivision (i) or (j) of Section 647, commits a violation
of paragraph (3) of subdivision (j) of Section 647 regardless of
whether it is a first, second, or subsequent violation of that
paragraph, shall be punished by imprisonment in a county jail not
exceeding one year, by a fine not exceeding five thousand dollars
($5,000), or by both that fine and imprisonment.
SEC. 210. Section 653.56 of the Penal Code is amended to read:
653.56. For purposes of this chapter:
(a) "Compensation" means money, property, or anything else of
value.
(b) "Immigration matter" means any proceeding, filing, or action
affecting the immigration or citizenship status of any person which
arises under immigration and naturalization law, executive order or
presidential proclamation, or action of the United States Immigration
and Customs Enforcement, the United States Department of State, or
the United States Department of Labor.
(c) "Person" means any individual, firm, partnership, corporation,
limited liability company, association, other organization, or any
employee or agent thereof.
(d) "Preparation" means giving advice on an immigration matter and
includes drafting an application, brief, document, petition, or
other paper, or completing a form provided by a federal or state
agency in an immigration matter.
SEC. 211. Section 829.5 of the Penal Code is amended to read:
829.5. (a) "Code enforcement officer" means any person who is not
described in Chapter 4.5 (commencing with Section 830) and who is
employed by any governmental subdivision, public or quasi-public
corporation, public agency, public service corporation, any town,
city, county, or municipal corporation, whether incorporated or
chartered, who has enforcement authority for health, safety, and
welfare requirements, whose duties include enforcement of any
statute, rule, regulation, or standard, and who is authorized to
issue citations, or file formal complaints.
(b) "Code enforcement officer" also includes any person who is
employed by the Department of Housing and Community Development who
has enforcement authority for health, safety, and welfare
requirements pursuant to the Employee Housing Act (Part 1 (commencing
with Section 17000) of Division 13 of the Health and Safety Code);
the State Housing Law (Part 1.5 (commencing with Section 17910) of
Division 13 of the Health and Safety Code); the Manufactured Housing
Act of 1980 (Part 2 (commencing with Section 18000) of Division 13 of
the Health and Safety Code); the Mobilehome Parks Act (Part 2.1
(commencing with Section 18200) of Division 13 of the Health and
Safety Code); and the Special Occupancy Parks Act (Part 2.3
(commencing with Section 18860) of Division 13 of the Health and
Safety Code).
SEC. 212. Section 830.8 of the Penal Code, as amended by Section
67 of Chapter 178 of the Statutes of 2010, is amended to read:
830.8. (a) Federal criminal investigators and law enforcement
officers are not California peace officers, but may exercise the
powers of arrest of a peace officer in any of the following
circumstances:
(1) Any circumstances specified in Section 836 of this code or
Section 5150 of the Welfare and Institutions Code for violations of
state or local laws.
(2) When these investigators and law enforcement officers are
engaged in the enforcement of federal criminal laws and exercise the
arrest powers only incidental to the performance of these duties.
(3) When requested by a California law enforcement agency to be
involved in a joint task force or criminal investigation.
(4) When probable cause exists to believe that a public offense
that involves immediate danger to persons or property has just
occurred or is being committed.
In all of these instances, the provisions of Section 847 shall
apply. These investigators and law enforcement officers, prior to the
exercise of these arrest powers, shall have been certified by their
agency heads as having satisfied the training requirements of Section
832, or the equivalent thereof.
This subdivision does not apply to federal officers of the Bureau
of Land Management or the United States Forest Service. These
officers have no authority to enforce California statutes without the
written consent of the sheriff or the chief of police in whose
jurisdiction they are assigned.
(b) Duly authorized federal employees who
comply with the training requirements set forth in Section 832 are
peace officers when they are engaged in enforcing applicable state or
local laws on property owned or possessed by the United States
government, or on any street, sidewalk, or property adjacent thereto,
and with the written consent of the sheriff or the chief of police,
respectively, in whose jurisdiction the property is situated.
(c) National park rangers are not California peace officers but
may exercise the powers of arrest of a peace officer as specified in
Section 836 and the powers of a peace officer specified in Section
5150 of the Welfare and Institutions Code for violations of state or
local laws provided these rangers are exercising the arrest powers
incidental to the performance of their federal duties or providing or
attempting to provide law enforcement services in response to a
request initiated by California state park rangers to assist in
preserving the peace and protecting state parks and other property
for which California state park rangers are responsible. National
park rangers, prior to the exercise of these arrest powers, shall
have been certified by their agency heads as having satisfactorily
completed the training requirements of Section 832.3, or the
equivalent thereof.
(d) Notwithstanding any other provision of law, during a state of
war emergency or a state of emergency, as defined in Section 8558 of
the Government Code, federal criminal investigators and law
enforcement officers who are assisting California law enforcement
officers in carrying out emergency operations are not deemed
California peace officers, but may exercise the powers of arrest of a
peace officer as specified in Section 836 and the powers of a peace
officer specified in Section 5150 of the Welfare and Institutions
Code for violations of state or local laws. In these instances, the
provisions of Section 847 of this code and of Section 8655 of the
Government Code shall apply.
(e) (1) Any qualified person who is appointed as a Washoe tribal
law enforcement officer is not a California peace officer, but may
exercise the powers of a Washoe tribal peace officer when engaged in
the enforcement of Washoe tribal criminal laws against any person who
is an Indian, as defined in subsection (d) of Section 450b of Title
25 of the United States Code, on Washoe tribal land. The respective
prosecuting authorities, in consultation with law enforcement
agencies, may agree on who shall have initial responsibility for
prosecution of specified infractions. This subdivision is not meant
to confer cross-deputized status as California peace officers, nor to
confer California peace officer status upon Washoe tribal law
enforcement officers when enforcing state or local laws in the State
of California. Nothing in this section shall be construed to impose
liability upon or to require indemnification by the County of Alpine
or the State of California for any act performed by an officer of the
Washoe Tribe. Washoe tribal law enforcement officers shall have the
right to travel to and from Washoe tribal lands within California in
order to carry out tribal duties.
(2) Washoe tribal law enforcement officers are exempted from the
provisions of subdivision (a) of Section 25400 and subdivision (a)
and subdivisions (c) to (h), inclusive, of Section 25850 while
performing their official duties on their tribal lands or while
proceeding by a direct route to or from the tribal lands. Tribal law
enforcement vehicles are deemed to be emergency vehicles within the
meaning of Section 30 of the Vehicle Code while performing official
police services.
(3) As used in this subdivision, the term "Washoe tribal lands"
includes the following:
(A) All lands located in the County of Alpine within the limits of
the reservation created for the Washoe Tribe of Nevada and
California, notwithstanding the issuance of any patent and including
rights-of-way running through the reservation and all tribal trust
lands.
(B) All Indian allotments, the Indian titles to which have not
been extinguished, including rights-of-way running through the same.
(4) As used in this subdivision, the term "Washoe tribal law"
refers to the laws codified in the Law and Order Code of the Washoe
Tribe of Nevada and California, as adopted by the Tribal Council of
the Washoe Tribe of Nevada and California.
SEC. 213. Section 833.5 of the Penal Code, as amended by Section
68 of Chapter 178 of the Statutes of 2010, is amended to read:
833.5. (a) In addition to any other detention permitted by law,
if a peace officer has reasonable cause to believe that a person has
a firearm or other deadly weapon with him or her in violation of any
provision of law relating to firearms or deadly weapons the peace
officer may detain that person to determine whether a crime relating
to firearms or deadly weapons has been committed.
For purposes of this section, "reasonable cause to detain"
requires that the circumstances known or apparent to the officer must
include specific and articulable facts causing him or her to suspect
that some offense relating to firearms or deadly weapons has taken
place or is occurring or is about to occur and that the person he or
she intends to detain is involved in that offense. The circumstances
must be such as would cause any reasonable peace officer in like
position, drawing when appropriate on his or her training and
experience, to suspect the same offense and the same involvement by
the person in question.
(b) Incident to any detention permitted pursuant to subdivision
(a), a peace officer may conduct a limited search of the person for
firearms or weapons if the peace officer reasonably concludes that
the person detained may be armed and presently dangerous to the peace
officer or others. Any firearm or weapon seized pursuant to a valid
detention or search pursuant to this section shall be admissible in
evidence in any proceeding for any purpose permitted by law.
(c) This section shall not be construed to otherwise limit the
authority of a peace officer to detain any person or to make an
arrest based on reasonable cause.
(d) This section shall not be construed to permit a peace officer
to conduct a detention or search of any person at the person's
residence or place of business absent a search warrant or other
reasonable cause to detain or search.
(e) If a firearm or weapon is seized pursuant to this section and
the person from whom it was seized owned the firearm or weapon and is
convicted of a violation of any offense relating to the possession
of such firearm or weapon, the court shall order the firearm or
weapon to be deemed a nuisance and disposed of in the manner provided
by Sections 18000 and 18005.
SEC. 214. Section 903.4 of the Penal Code is amended to read:
903.4. The judges are not required to select any name from the
list returned by the jury commissioner, but may, if in their judgment
the due administration of justice requires, make every or any
selection from among the body of persons in the county suitable and
competent to serve as grand jurors regardless of the list returned by
the jury commissioner.
SEC. 215. Section 1201.3 of the Penal Code is amended to read:
1201.3. (a) Upon the conviction of a defendant for a sexual
offense involving a minor victim or, in the case of a minor appearing
in juvenile court, if a petition is admitted or sustained for a
sexual offense involving a minor victim, the court is authorized to
issue orders that would prohibit the defendant or juvenile, for a
period up to 10 years, from harassing, intimidating, or threatening
the victim or the victim's family members or spouse.
(b) No order issued pursuant to this section shall be interpreted
to apply to counsel acting on behalf of the defendant or juvenile, or
to investigators working on behalf of counsel, in an action relating
to a conviction, petition in juvenile court, or any civil action
arising therefrom, provided, however, that no counsel or investigator
shall harass or threaten any person protected by an order issued
pursuant to subdivision (a).
(c) Notice of the intent to request an order pursuant to this
section shall be given to counsel for the defendant or juvenile by
the prosecutor or the court at the time of conviction, or disposition
of the petition in juvenile court, and counsel shall have adequate
time in which to respond to the request before the order is made.
(d) A violation of an order issued pursuant to subdivision (a) is
punishable as provided in Section 166.
SEC. 216. Section 1203.066 of the Penal Code is amended to read:
1203.066. (a) Notwithstanding Section 1203 or any other law,
probation shall not be granted to, nor shall the execution or
imposition of sentence be suspended for, nor shall a finding bringing
the defendant within the provisions of this section be stricken
pursuant to Section 1385 for, any of the following persons:
(1) A person who is convicted of violating Section 288 or 288.5
when the act is committed by the use of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the victim
or another person.
(2) A person who caused bodily injury on the child victim in
committing a violation of Section 288 or 288.5.
(3) A person who is convicted of a violation of Section 288 or
288.5 and who was a stranger to the child victim or befriended the
child victim for the purpose of committing an act in violation of
Section 288 or 288.5, unless the defendant honestly and reasonably
believed the victim was 14 years of age or older.
(4) A person who used a weapon during the commission of a
violation of Section 288 or 288.5.
(5) A person who is convicted of committing a violation of Section
288 or 288.5 and who has been previously convicted of a violation of
Section 261, 262, 264.1, 266, 266c, 267, 285, 286, 288, 288.5, 288a,
or 289, or of assaulting another person with intent to commit a
crime specified in this paragraph in violation of Section 220, or who
has been previously convicted in another state of an offense which,
if committed or attempted in this state, would constitute an offense
enumerated in this paragraph.
(6) A person who violated Section 288 or 288.5 while kidnapping
the child victim in violation of Section 207, 209, or 209.5.
(7) A person who is convicted of committing a violation of Section
288 or 288.5 against more than one victim.
(8) A person who, in violating Section 288 or 288.5, has
substantial sexual conduct with a victim who is under 14 years of
age.
(9) A person who, in violating Section 288 or 288.5, used obscene
matter, as defined in Section 311, or matter, as defined in Section
311, depicting sexual conduct, as defined in Section 311.3.
(b) "Substantial sexual conduct" means penetration of the vagina
or rectum of either the victim or the offender by the penis of the
other or by any foreign object, oral copulation, or masturbation of
either the victim or the offender.
(c) (1) Except for a violation of subdivision (b) of Section 288,
this section shall only apply if the existence of any fact required
in subdivision (a) is alleged in the accusatory pleading and is
either admitted by the defendant in open court, or found to be true
by the trier of fact.
(2) For the existence of any fact under paragraph (7) of
subdivision (a), the allegation must be made pursuant to this
section.
(d) (1) If a person is convicted of a violation of Section 288 or
288.5, and the factors listed in subdivision (a) are not pled or
proven, probation may be granted only if the following terms and
conditions are met:
(A) If the defendant is a member of the victim's household, the
court finds that probation is in the best interest of the child
victim.
(B) The court finds that rehabilitation of the defendant is
feasible and that the defendant is amenable to undergoing treatment,
and the defendant is placed in a recognized treatment program
designed to deal with child molestation immediately after the grant
of probation or the suspension of execution or imposition of
sentence.
(C) If the defendant is a member of the victim's household,
probation shall not be granted unless the defendant is removed from
the household of the victim until the court determines that the best
interests of the victim would be served by his or her return. While
removed from the household, the court shall prohibit contact by the
defendant with the victim, with the exception that the court may
permit supervised contact, upon the request of the director of the
court-ordered supervised treatment program, and with the agreement of
the victim and the victim's parent or legal guardian, other than the
defendant.
(D) If the defendant is not a member of the victim's household,
the court shall prohibit the defendant from being placed or residing
within one-half mile of the child victim's residence for the duration
of the probation term unless the court, on the record, states its
reasons for finding that this residency restriction would not serve
the best interests of the victim.
(E) The court finds that there is no threat of physical harm to
the victim if probation is granted.
(2) The court shall state its reasons on the record for whatever
sentence it imposes on the defendant.
(3) The court shall order the psychiatrist or psychologist who is
appointed pursuant to Section 288.1 to include a consideration of the
factors specified in subparagraphs (A), (B), and (C) of paragraph
(1) in making his or her report to the court.
(4) The court shall order the defendant to comply with all
probation requirements, including the requirements to attend
counseling, keep all program appointments, and pay program fees based
upon ability to pay.
(5) No victim shall be compelled to participate in a program or
counseling, and no program may condition a defendant's enrollment on
participation by the victim.
(e) As used in subdivision (d), the following definitions apply:
(1) "Contact with the victim" includes all physical contact, being
in the presence of the victim, communicating by any means, including
by a third party acting on behalf of the defendant, or sending any
gifts.
(2) "Recognized treatment program" means a program that consists
of the following components:
(A) Substantial expertise in the treatment of child sexual abuse.
(B) A treatment regimen designed to specifically address the
offense.
(C) The ability to serve indigent clients.
(D) Adequate reporting requirements to ensure that all persons
who, after being ordered to attend and complete a program, may be
identified for either failure to enroll in, or failure to
successfully complete, the program, or for the successful completion
of the program as ordered. The program shall notify the court and the
probation department, in writing, within the period of time and in
the manner specified by the court of any person who fails to complete
the program. Notification shall be given if the program determines
that the defendant is performing unsatisfactorily or if the defendant
is not benefiting from the education, treatment, or counseling.
SEC. 217. Section 4852.03 of the Penal Code, as amended by Section
84 of Chapter 178 of the Statutes of 2010, is amended to read:
4852.03. (a) The period of rehabilitation shall begin to run upon
the discharge of the petitioner from custody due to his or her
completion of the term to which he or she was sentenced or upon his
or her release on parole or probation, whichever is sooner. For
purposes of this chapter, the period of rehabilitation shall
constitute five years' residence in this state, plus a period of time
determined by the following rules:
(1) To the five years there shall be added four years in the case
of any person convicted of violating Section 187, 209, 219, 4500, or
18755 of this code, or subdivision (a) of Section 1672 of the
Military and Veterans Code, or of committing any other offense which
carries a life sentence.
(2) To the five years there shall be added five years in the case
of any person convicted of committing any offense or attempted
offense for which sex offender registration is required pursuant to
Section 290, except for convictions for violations of subdivision
(b), (c), or (d) of Section 311.2, or of Section 311.3, 311.10, or
314. For those convictions, two years shall be added to the five
years imposed by this section.
(3) To the five years there shall be added two years in the case
of any person convicted of committing any offense that is not listed
in paragraph (1) or paragraph (2) and that does not carry a life
sentence.
(4) The trial court hearing the application for the certificate of
rehabilitation may, if the defendant was ordered to serve
consecutive sentences, order that his or her statutory period of
rehabilitation be extended for an additional period of time which
when combined with the time already served will not exceed the period
prescribed by statute for the sum of the maximum penalties for all
the crimes.
(5) Any person who was discharged after completion of his or her
term or was released on parole before May 13, 1943, is not subject to
the periods of rehabilitation set forth in these rules.
(b) Unless and until the period of rehabilitation, as stipulated
in this section, has passed, the petitioner shall be ineligible to
file his or her petition for a certificate of rehabilitation with the
court. Any certificate of rehabilitation that is issued and under
which the petitioner has not fulfilled the requirements of this
chapter shall be void.
(c) A change of residence within this state does not interrupt the
period of rehabilitation prescribed by this section.
SEC. 218. Section 4852.17 of the Penal Code, as amended by Section
85 of Chapter 178 of the Statutes of 2010, is amended to read:
4852.17. Whenever a person is issued a certificate of
rehabilitation or granted a pardon from the Governor under this
chapter, the fact shall be immediately reported to the Department of
Justice by the court, Governor, officer, or governmental agency by
whose official action the certificate is issued or the pardon
granted. The Department of Justice shall immediately record the facts
so reported on the former criminal record of the person, and
transmit those facts to the Federal Bureau of Investigation at
Washington, D.C. When the criminal record is thereafter reported by
the department, it shall also report the fact that the person has
received a certificate of rehabilitation, or pardon, or both.
Whenever a person is granted a full and unconditional pardon by
the Governor, based upon a certificate of rehabilitation, the pardon
shall entitle the person to exercise thereafter all civil and
political rights of citizenship, including, but not limited to: (1)
the right to vote; (2) the right to own, possess, and keep any type
of firearm that may lawfully be owned and possessed by other
citizens; except that this right shall not be restored, and Sections
17800 and 23510 and Chapter 2 (commencing with Section 29800) of
Division 9 of Title 4 of Part 6 shall apply, if the person was ever
convicted of a felony involving the use of a dangerous weapon.
SEC. 219. Section 4854 of the Penal Code, as amended by Section 86
of Chapter 178 of the Statutes of 2010, is amended to read:
4854. In the granting of a pardon to a person, the Governor may
provide that the person is entitled to exercise the right to own,
possess, and keep any type of firearm that may lawfully be owned and
possessed by other citizens; except that this right shall not be
restored, and Sections 17800 and 23510 and Chapter 2 (commencing with
Section 29800) of Division 9 of Title 4 of Part 6 shall apply, if
the person was ever convicted of a felony involving the use of a
dangerous weapon.
SEC. 220. Section 5023.2 of the Penal Code is amended to read:
5023.2. (a) In order to promote the best possible patient
outcomes, eliminate unnecessary medical and pharmacy costs, and
ensure consistency in the delivery of health care services, the
department shall maintain a statewide utilization management program
that shall include, but not be limited to, all of the following:
(1) Objective, evidence-based medical necessity criteria and
utilization guidelines.
(2) The review, approval, and oversight of referrals to specialty
medical services.
(3) The management and oversight of community hospital bed usage
and supervision of health care bed availability.
(4) Case management processes for high medical risk and high
medical cost patients.
(5) A preferred provider organization (PPO) and related contract
initiatives that improve the coverage, resource allocation, and
quality of contract medical providers and facilities.
(b) The department shall develop and implement policies and
procedures to ensure that all adult prisons employ the same statewide
utilization management program established pursuant to subdivision
(a) that supports the department's goals for cost-effective auditable
patient outcomes, access to care, an effective and accessible
specialty network, and prompt access to hospital and infirmary
resources. The department shall provide a copy of these policies and
procedures, by July 1, 2011, to the Joint Legislative Budget
Committee, the Senate Committee on Appropriations, the Senate
Committee on Budget and Fiscal Review, the Senate Committee on
Health, the Senate Committee on Public Safety, the Assembly Committee
on Appropriations, the Assembly Committee on Budget, the Assembly
Committee on Health, and the Assembly Committee on Public Safety.
(c) (1) The department shall establish annual quantitative
utilization management performance objectives to promote greater
consistency in the delivery of contract health care services, enhance
health care quality outcomes, and reduce unnecessary referrals to
contract medical services. On July 1, 2011, the department shall
report the specific quantitative utilization management performance
objectives it intends to accomplish statewide in each adult prison
during the next 12 months to the Joint Legislative Budget Committee,
the Senate Committee on Appropriations, the Senate Committee on
Budget and Fiscal Review, the Senate Committee on Health, the Senate
Committee on Public Safety, the Assembly Committee on Appropriations,
the Assembly Committee on Budget, the Assembly Committee on Health,
and the Assembly Committee on Public Safety.
(2) The requirement for submitting a report imposed under this
subdivision is inoperative on January 1, 2015, pursuant to Section
10231.5 of the Government Code.
(d) On March 1, 2012, and each March 1 thereafter, the department
shall report all of the following to the Joint Legislative Budget
Committee, the Senate Committee on Appropriations, the Senate
Committee on Budget and Fiscal Review, the Senate Committee on
Health, the Senate Committee on Public Safety, the Assembly Committee
on Appropriations, the Assembly Committee on Budget, the Assembly
Committee on Health, and the Assembly Committee on Public Safety:
(1) The extent to which the department achieved the statewide
quantitative utilization management performance objectives set forth
in the report issued the previous March as well as the most
significant reasons for achieving or not achieving those performance
objectives.
(2) A list of adult prisons that achieved and a list of adult
prisons that did not achieve their quantitative utilization
management performance objectives and the significant reasons for the
success or failure in achieving those performance objectives at each
adult state prison.
(3) The specific quantitative utilization management performance
objectives the department and each adult state prison intends to
accomplish in the next 12 months.
(4) A description of planned and implemented initiatives necessary
to accomplish the next 12 months' quantitative utilization
management performance objectives statewide and for each adult state
prison. The department shall describe initiatives that were
considered and rejected and the reasons for their rejection.
(5) The costs for inmate health care for the previous fiscal year,
both statewide and at each adult state prison, and a comparison of
costs from the fiscal year prior to the fiscal year being reported
both statewide and at each adult state prison.
(e) It is the intent of the Legislature that any activities the
department undertakes to implement the provisions of this section
shall result in no year-over-year net increase in state costs.
(f) The following definitions shall apply to this section:
(1) "Contract medical costs" mean costs associated with an
approved contractual agreement for the purposes of providing direct
and indirect specialty medical care services.
(2) "Specialty care" means medical services not delivered by
primary care providers.
(3) "Utilization management program" means a strategy designed to
ensure that health care expenditures are restricted to those that are
needed and appropriate by reviewing patient-inmate medical records
through the application of defined criteria or expert opinion, or
both. Utilization management assesses the efficiency of the health
care process and the appropriateness of decisionmaking in relation to
the site of care, its frequency, and its duration through
prospective, concurrent, and retrospective utilization reviews.
(4) "Community hospital" means an institution located within a
city, county, or city and county which is licensed under all
applicable state and local laws and regulations to provide diagnostic
and therapeutic services for the medical diagnosis, treatment, and
care of injured, disabled, or sick persons in need of acute inpatient
medical, psychiatric, or psychological care.
(g) The requirement for submitting a report imposed under
subdivision (d) is inoperative on March 1, 2016, pursuant to Section
10231.5 of the Government Code.
SEC. 221. Section 6030 of the Penal Code is amended to read:
6030. (a) The Corrections Standards Authority shall establish
minimum standards for state and local correctional facilities. The
standards for state correctional facilities shall be established by
January 1, 2007. The authority shall review those standards
biennially and make any appropriate revisions.
(b) The standards shall include, but not be limited to, the
following: health and sanitary conditions, fire and life safety,
security, rehabilitation programs, recreation, treatment of persons
confined in state and local correctional facilities, and personnel
training.
(c) The standards shall require that at least one person on duty
at the facility is knowledgeable in the area of fire
and life safety procedures.
(d) The standards shall also include requirements relating to the
acquisition, storage, labeling, packaging, and dispensing of drugs.
(e) The standards shall require that inmates who are received by
the facility while they are pregnant are provided all of the
following:
(1) A balanced, nutritious diet approved by a doctor.
(2) Prenatal and postpartum information and health care,
including, but not limited to, access to necessary vitamins as
recommended by a doctor.
(3) Information pertaining to childbirth education and infant
care.
(4) A dental cleaning while in a state facility.
(f) The standards shall provide that at no time shall a woman who
is in labor be shackled by the wrists, ankles, or both including
during transport to a hospital, during delivery, and while in
recovery after giving birth, except as provided in Section 5007.7.
(g) In establishing minimum standards, the authority shall seek
the advice of the following:
(1) For health and sanitary conditions:
The State Department of Public Health, physicians, psychiatrists,
local public health officials, and other interested persons.
(2) For fire and life safety:
The State Fire Marshal, local fire officials, and other interested
persons.
(3) For security, rehabilitation programs, recreation, and
treatment of persons confined in correctional facilities:
The Department of Corrections and Rehabilitation, state and local
juvenile justice commissions, state and local correctional officials,
experts in criminology and penology, and other interested persons.
(4) For personnel training:
The Commission on Peace Officer Standards and Training,
psychiatrists, experts in criminology and penology, the Department of
Corrections and Rehabilitation, state and local correctional
officials, and other interested persons.
(5) For female inmates and pregnant inmates in local adult and
juvenile facilities:
The California State Sheriffs' Association and Chief Probation
Officers' Association of California, and other interested persons.
SEC. 222. Section 6228 of the Penal Code is amended to read:
6228. A defendant is eligible for placement in a restitution
center if the defendant does not have a criminal history of a
conviction for the sale of drugs within the last five years, or for
an offense requiring registration pursuant to Section 290, or a
serious felony, as listed in Section 1192.7, or a violent felony, as
listed in Section 667.5, the defendant did not receive a sentence of
more than 60 months for the current offense or offenses, the
defendant presents no unacceptable risk to the community, and the
defendant is employable. The provisions of Article 2.5 (commencing
with Section 2930) of Chapter 7 of Title 1 are applicable to
prisoners in restitution centers.
SEC. 223. Section 11180 of the Penal Code is amended to read:
11180. The Interstate Compact for Adult Offender Supervision as
contained herein is hereby enacted into law and entered into on
behalf of the state with any and all other states legally joining
therein in a form substantially as follows:
Preamble
Whereas: The interstate compact for the supervision of Parolees
and Probationers was established in 1937. It is the earliest
corrections "compact" established among the states and has not been
amended since its adoption over 62 years ago.
Whereas: This compact is the only vehicle for the controlled
movement of adult parolees and probationers across state lines and it
currently has jurisdiction over more than a quarter of a million
offenders.
Whereas: The complexities of the compact have become more
difficult to administer, and many jurisdictions have expanded
supervision expectations to include currently unregulated practices
such as victim input, victim notification requirements, and sex
offender registration.
Whereas: After hearings, national surveys, and a detailed study
by a task force appointed by the National Institute of Corrections,
the overwhelming recommendation has been to amend the document to
bring about an effective management capacity that addresses public
safety concerns and offender accountability.
Whereas: Upon the adoption of this Interstate Compact for Adult
Offender Supervision, it is the intention of the Legislature to
repeal the previous Interstate Compact for the Supervision of
Parolees and Probationers as to those states that have ratified this
compact.
Be it enacted by the General Assembly (Legislature) of the state
of California.
Short title: This Act may be cited as The Interstate Compact for
Adult Offender Supervision.
Article I. Purpose
The compacting states to this Interstate Compact recognize that
each state is responsible for the supervision of adult offenders in
the community who are authorized pursuant to the Bylaws and Rules of
this compact to travel across state lines both to and from each
compacting state in a manner so as to track the location of
offenders, transfer supervision authority in an orderly and efficient
manner, and when necessary return offenders to the originating
jurisdictions. The compacting states also recognize that Congress, by
enacting the Crime Control Act, 4 U.S.C. Section 112 (1965), has
authorized and encouraged compacts for cooperative efforts and mutual
assistance in the prevention of crime. It is the purpose of this
compact and the Interstate Commission created hereunder, through
means of joint and cooperative action among the compacting states: to
provide the framework for the promotion of public safety and protect
the rights of victims through the control and regulation of the
interstate movement of offenders in the community; to provide for the
effective tracking, supervision, and rehabilitation of these
offenders by the sending and receiving states; and to equitably
distribute the costs, benefits, and obligations of the compact among
the compacting states. In addition, this compact will: create an
Interstate Commission which will establish uniform procedures to
manage the movement between states of adults placed under community
supervision and released to the community under the jurisdiction of
courts, paroling authorities, corrections or other criminal justice
agencies which will promulgate rules to achieve the purpose of this
compact; ensure an opportunity for input and timely notice to victims
and to jurisdictions where defined offenders are authorized to
travel or to relocate across state lines; establish a system of
uniform data collection, access to information on active cases by
authorized criminal justice officials, and regular reporting of
Compact activities to heads of state councils, state executive,
judicial, and legislative branches and criminal justice
administrators; monitor compliance with rules governing interstate
movement of offenders and initiate interventions to address and
correct non-compliance; and coordinate training and education
regarding regulations of interstate movement of offenders for
officials involved in these types of activities. The compacting
states recognize that there is no "right" of any offender to live in
another state and that duly accredited officers of a sending state
may at all times enter a receiving state and there apprehend and
retake any offender under supervision subject to the provisions of
this compact and Bylaws and Rules promulgated hereunder. It is the
policy of the compacting states that the activities conducted by the
Interstate Commission created herein are the formation of public
policies and are therefore public business.
Article II. Definitions
As used in this compact, unless the context clearly requires a
different construction:
"Adult" means both individuals legally classified as adults and
juveniles treated as adults by court order, statute, or operation of
law.
"By-laws" mean those by-laws established by the Interstate
Commission for its governance, or for directing or controlling the
Interstate Commission's actions or conduct.
"Compact Administrator" means the individual in each compacting
state appointed pursuant to the terms of this compact responsible for
the administration and management of the state's supervision and
transfer of offenders subject to the terms of this compact, the rules
adopted by the Interstate Commission and policies adopted by the
State Council under this compact.
"Compacting state" means any state which has enacted the enabling
legislation for this compact.
"Commissioner" means the voting representative of each compacting
state appointed pursuant to Article III of this compact.
"Interstate Commission" means the Interstate Commission for Adult
Offender Supervision established by this compact.
"Member" means the commissioner of a compacting state or designee,
who shall be a person officially connected with the commissioner.
"Non Compacting state" means any state which has not enacted the
enabling legislation for this compact.
"Offender" means an adult placed under, or subject to, supervision
as the result of the commission of a criminal offense and released
to the community under the jurisdiction of courts, paroling
authorities, corrections, or other criminal justice agencies.
"Person" means any individual, corporation, business enterprise,
or other legal entity, either public or private.
"Rules" means acts of the Interstate Commission, duly promulgated
pursuant to Article VIII of this compact, substantially affecting
interested parties in addition to the Interstate Commission, which
shall have the force and effect of law in the compacting states.
"State" means a state of the United States, the District of
Columbia, and any other territorial possessions of the United States.
"State Council" means the resident members of the State Council
for Interstate Adult Offender Supervision created by each state under
Article III of this compact.
Article III. The Compact Commission
The compacting states hereby create the "Interstate Commission for
Adult Offender Supervision."
The Interstate Commission shall be a body corporate and joint
agency of the compacting states.
The Interstate Commission shall have all the responsibilities,
powers, and duties set forth herein, including the power to sue and
be sued, and whatever additional powers as may be conferred upon it
by subsequent action of the respective legislatures of the compacting
states in accordance with the terms of this compact.
The Interstate Commission shall consist of Commissioners selected
and appointed by resident members of the State Council for Interstate
Adult Offender Supervision for each state. In addition to the
Commissioners who are the voting representatives of each state, the
Interstate Commission shall include individuals who are not
commissioners but who are members of interested organizations; these
noncommissioner members must include a member of the national
organizations of governors, legislators, state chief justices,
attorneys general and crime victims. All noncommissioner members of
the Interstate Commission shall be ex-officio (nonvoting) members.
The Interstate Commission may provide in its by-laws for these
additional, ex-officio, nonvoting members as it deems necessary. Each
compacting state represented at any meeting of the Interstate
Commission is entitled to one vote. A majority of the compacting
states shall constitute a quorum for the transaction of business,
unless a larger quorum is required by the by-laws of the Interstate
Commission. The Interstate Commission shall meet at least once each
calendar year. The chairperson may call additional meetings and, upon
the request of 27 or more compacting states, shall call additional
meetings. Public notice shall be given of all meetings and meetings
shall be open to the public.
The Interstate Commission shall establish an Executive Committee
which shall include commission officers, members and others as shall
be determined by the By-laws. The Executive Committee shall have the
power to act on behalf of the Interstate Commission during periods
when the Interstate Commission is not in session, with the exception
of rulemaking and/or amendment to the Compact. The Executive
Committee oversees the day-to-day activities managed by the Executive
Director and Interstate Commission staff; administers enforcement
and compliance with the provisions of the compact, its by-laws and as
directed by the Interstate Commission and performs other duties as
directed by the Commission or set forth in the By-laws.
Article IV. The State Council
Each member state shall create a State Council for Interstate
Adult Offender Supervision which shall be responsible for the
appointment of the commissioner who shall serve on the Interstate
Commission from that state. Each state council shall appoint as its
commissioner the Compact Administrator from that state to serve on
the Interstate Commission in this capacity under or pursuant to
applicable law of the member state. While each member state may
determine the membership of its own state council, its membership
must include at least one representative from the legislative,
judicial, and executive branches of government, victims groups and
compact administrators. Each compacting state retains the right to
determine the qualifications of the Compact Administrator who shall
be appointed by the state council or by the Governor in consultation
with the Legislature and the Judiciary. In addition to appointment of
its commissioner to the National Interstate Commission, each state
council shall exercise oversight and advocacy concerning its
participation in Interstate Commission activities and other duties as
may be determined by each member state, including, but not limited
to, development of policy concerning operations and procedures of the
compact within that state.
Article V. Powers and Duties of the Interstate Commission
The Interstate Commission shall have the following powers:
To adopt a seal and suitable by-laws governing the management and
operation of the Interstate Commission.
To promulgate rules which shall have the force and effect of
statutory law and shall be binding in the compacting states to the
extent and in the manner provided in this compact.
To oversee, supervise and coordinate the interstate movement of
offenders subject to the terms of this compact and any by-laws
adopted and rules promulgated by the compact commission.
To enforce compliance with compact provisions, Interstate
Commission rules, and by-laws, using all necessary and proper means,
including, but not limited to, the use of judicial process.
To establish and maintain offices.
To purchase and maintain insurance and bonds.
To borrow, accept, or contract for services of personnel,
including, but not limited to, members and their staffs.
To establish and appoint committees and hire staff which it deems
necessary for the carrying out of its functions including, but not
limited to, an executive committee as required by Article III which
shall have the power to act on behalf of the Interstate Commission in
carrying out its powers and duties hereunder.
To elect or appoint officers, attorneys, employees, agents, or
consultants, and to fix their compensation, define their duties and
determine their qualifications; and to establish the Interstate
Commission's personnel policies and programs relating to, among other
things, conflicts of interest, rates of compensation, and
qualifications of personnel.
To accept any and all donations and grants of money, equipment,
supplies, materials, and services, and to receive, utilize, and
dispose of same.
To lease, purchase, accept contributions or donations of, or
otherwise to own, hold, improve or use any property, real, personal,
or mixed.
To sell, convey, mortgage, pledge, lease, exchange, abandon, or
otherwise dispose of any property, real, personal or mixed.
To establish a budget and make expenditures and levy dues as
provided in Article X of this compact.
To sue and be sued.
To provide for dispute resolution among Compacting States.
To perform whatever functions as may be necessary or appropriate
to achieve the purposes of this compact.
To report annually to the legislatures, governors, judiciary, and
state councils of the compacting states concerning the activities of
the Interstate Commission during the preceding year. These reports
shall also include any recommendations that may have been adopted by
the Interstate Commission.
To coordinate education, training and public awareness regarding
the interstate movement of offenders for officials involved in these
activities.
To establish uniform standards for the reporting, collecting, and
exchanging of data.
Article VI. Organization and Operation of the Interstate
Commission
Section A. By-laws
The Interstate Commission shall, by a majority of the Members,
within twelve months of the first Interstate Commission meeting,
adopt By-laws to govern its conduct as may be necessary or
appropriate to carry out the purposes of the Compact, including, but
not limited to:
Establishing the fiscal year of the Interstate Commission.
Establishing an executive committee and other committees as may be
necessary.
Providing reasonable standards and procedures:
(i) For the establishment of committees.
(ii) Governing any general or specific delegation of any authority
or function of the Interstate Commission; providing reasonable
procedures for calling and conducting meetings of the Interstate
Commission, and ensuring reasonable notice of each meeting;
establishing the titles and responsibilities of the officers of the
Interstate Commission; providing reasonable standards and procedures
for the establishment of the personnel policies and programs of the
Interstate Commission. Notwithstanding any civil service or other
similar laws of any Compacting State, the By-laws shall exclusively
govern the personnel policies and programs of the Interstate
Commission; and providing a mechanism for winding up the operations
of the Interstate Commission and the equitable return of any surplus
funds that may exist upon the termination of the Compact after the
payment and/or reserving of all of its debts and obligations;
providing transition rules for "start up" administration of the
compact; establishing standards and procedures for compliance and
technical assistance in carrying out the compact.
Section B. Officers and Staff
The Interstate Commission shall, by a majority of the Members,
elect from among its Members a chairperson and a vice chairperson,
each of whom shall have authorities and duties as may be specified in
the By-laws. The chairperson, or in his or her absence or
disability, the vice chairperson, shall preside at all meetings of
the Interstate Commission. The Officers so elected shall serve
without compensation or remuneration from the Interstate Commission;
provided that, subject to the availability of budgeted funds, the
officers shall be reimbursed for any actual and necessary costs and
expenses incurred by them in the performance of their duties and
responsibilities as officers of the Interstate Commission.
The Interstate Commission shall, through its executive committee,
appoint or retain an executive director for a period, upon terms and
conditions and for compensation as the Interstate Commission may deem
appropriate. The executive director shall serve as secretary to the
Interstate Commission, and hire and supervise other staff as may be
authorized by the Interstate Commission, but shall not be a member.
Section C. Corporate Records of the Interstate Commission
The Interstate Commission shall maintain its corporate books and
records in accordance with the By-laws.
Section D. Qualified Immunity, Defense and Indemnification
The Members, officers, executive director and employees of the
Interstate Commission shall be immune from suit and liability, either
personally or in their official capacity, for any claim for damage
to or loss of property or personal injury or other civil liability
caused or arising out of any actual or alleged act, error or omission
that occurred within the scope of Interstate Commission employment,
duties or responsibilities; provided, that nothing in this paragraph
shall be construed to protect anyone from suit and/or liability for
any damage, loss, injury or liability caused by their intentional or
willful and wanton misconduct. The Interstate Commission shall defend
the Commissioner of a Compacting State, or his or her
representatives or employees, or the Interstate Commission's
representatives or employees, in any civil action seeking to impose
liability, arising out of any actual or alleged act, error or
omission that occurred within the scope of Interstate Commission
employment, duties or responsibilities, or that the defendant had a
reasonable basis for believing occurred within the scope of
Interstate Commission employment, duties or responsibilities;
provided, that the actual or alleged act, error or omission did not
result from intentional wrongdoing on the part of that person.
The Interstate Commission shall indemnify and hold the
Commissioner of a Compacting State, the appointed designee or
employees, or the Interstate Commission's representatives or
employees, harmless in the amount of any settlement or judgment
obtained against any person arising out of any actual or alleged act,
error, or omission that occurred within the scope of Interstate
Commission employment, duties, or responsibilities, or that the
person had a reasonable basis for believing occurred within the scope
of Interstate Commission employment, duties, or responsibilities,
provided, that the actual or alleged act, error, or omission did not
result from gross negligence or intentional wrongdoing on the part of
the person.
Article VII. Activities of the Interstate Commission
The Interstate Commission shall meet and take whatever actions as
are consistent with the provisions of this Compact.
Except as otherwise provided in this Compact and unless a greater
percentage is required by the By-laws, in order to constitute an act
of the Interstate Commission, the act shall have been taken at a
meeting of the Interstate Commission and shall have received an
affirmative vote of a majority of the members present.
Each Member of the Interstate Commission shall have the right and
power to cast a vote to which that Compacting State is entitled and
to participate in the business and affairs of the Interstate
Commission. A Member shall vote in person on behalf of the state and
shall not delegate a vote to another member state. However, a State
Council shall appoint another authorized representative, in the
absence of the commissioner from that state, to cast a vote on behalf
of the member state at a specified meeting. The By-laws may provide
for Members' participation in meetings by telephone or other means of
telecommunication or electronic communication. Any voting conducted
by telephone, or other means of telecommunication or electronic
communication shall be subject to the same quorum requirements of
meetings where members are present in person.
The Interstate Commission shall meet at least once during each
calendar year. The chairperson of the Interstate Commission may call
additional meetings at any time and, upon the request of a majority
of the Members, shall call additional meetings.
The Interstate Commission's By-laws shall establish conditions and
procedures under which the Interstate Commission shall make its
information and official records available to the public for
inspection or copying. The Interstate Commission may exempt from
disclosure any information or official records to the extent they
would adversely affect personal privacy rights or proprietary
interests. In promulgating the Rules, the Interstate Commission may
make available to law enforcement agencies records and information
otherwise exempt from disclosure, and may enter into agreements with
law enforcement agencies to receive or exchange information or
records subject to nondisclosure and confidentiality provisions.
Public notice shall be given of all meetings and all meetings
shall be open to the public, except as set forth in the Rules or as
otherwise provided in the Compact. The Interstate Commission shall
promulgate Rules consistent with the principles contained in the
"Government in Sunshine Act," 5 U.S.C. Section 552(b), as may be
amended. The Interstate Commission and any of its committees may
close a meeting to the public where it determines by two-thirds vote
that an open meeting would be likely to:
Relate solely to the Interstate Commission's internal personnel
practices and procedures.
Disclose matters specifically exempted from disclosure by statute.
Disclose trade secrets or commercial or financial information
which is privileged or confidential.
Involve accusing any person of a crime, or formally censuring any
person.
Disclose information of a personal nature where disclosure would
constitute a clearly unwarranted invasion of personal privacy.
Disclose investigatory records compiled for law enforcement
purposes.
Disclose information contained in or related to examination,
operating or condition reports prepared by, or on behalf of or for
the use of, the Interstate Commission with respect to a regulated
entity for the purpose of regulation or supervision of the entity.
Disclose information, the premature disclosure of which would
significantly endanger the life of a person or the stability of a
regulated entity.
Specifically relate to the Interstate Commission's issuance of a
subpoena, or its participation in a civil action or proceeding.
For every meeting closed pursuant to this provision, the
Interstate Commission's chief legal officer shall publicly certify
that, in his or her opinion, the meeting may be closed to the public,
and shall reference each relevant exemptive provision. The
Interstate Commission shall keep minutes which shall fully and
clearly describe all matters discussed in any meeting and shall
provide a full and accurate summary of any actions taken, and the
reasons therefor, including a description of each of the views
expressed on any item and the record of any rollcall vote (reflected
in the vote of each Member on the question). All documents considered
in connection with any action shall be identified in the minutes.
The Interstate Commission shall collect standardized data concerning
the interstate movement of offenders as directed through its By-laws
and Rules which shall
specify the data to be collected, the means of collection and data
exchange and reporting requirements.
Article VIII. Rulemaking Functions of the Interstate Commission
The Interstate Commission shall promulgate Rules in order to
effectively and efficiently achieve the purposes of the Compact
including transition rules governing administration of the compact
during the period in which it is being considered and enacted by the
states.
Rulemaking shall occur pursuant to the criteria set forth in this
Article and the By-laws and Rules adopted pursuant thereto.
Rulemaking shall substantially conform to the principles of the
federal Administrative Procedure Act, 5 U.S.C.S. section 551 et seq.,
and the Federal Advisory Committee Act, 5 U.S.C.S. app. 2, section 1
et seq., as may be amended (hereinafter "APA"). All Rules and
amendments shall become binding as of the date specified in each Rule
or amendment.
If a majority of the legislatures of the Compacting States rejects
a Rule, by enactment of a statute or resolution in the same manner
used to adopt the compact, then the Rule shall have no further force
and effect in any Compacting State.
When promulgating a Rule, the Interstate Commission shall:
Publish the proposed Rule stating with particularity the text of
the Rule which is proposed and the reason for the proposed Rule.
Allow persons to submit written data, facts, opinions and
arguments, which information shall be publicly available.
Provide an opportunity for an informal hearing.
Promulgate a final Rule and its effective date, if appropriate,
based on the rulemaking record.
Not later than sixty days after a Rule is promulgated, any
interested person may file a petition in the United States District
Court for the District of Columbia or in the Federal District Court
where the Interstate Commission's principal office is located for
judicial review of the Rule. If the court finds that the Interstate
Commission's action is not supported by substantial evidence, (as
defined in the APA), in the rulemaking record, the court shall hold
the Rule unlawful and set it aside. Subjects to be addressed within
12 months after the first meeting must at a minimum include:
Notice to victims and opportunity to be heard.
Offender registration and compliance.
Violations/returns.
Transfer procedures and forms.
Eligibility for transfer.
Collection of restitution and fees from offenders.
Data collection and reporting.
The level of supervision to be provided by the receiving state.
Transition rules governing the operation of the compact and the
Interstate Commission during all or part of the period between the
effective date of the compact and the date on which the last eligible
state adopts the compact.
Mediation, arbitration and dispute resolution.
The existing rules governing the operation of the previous compact
superseded by this Act shall be null and void twelve (12) months
after the first meeting of the Interstate Commission created
hereunder.
Upon determination by the Interstate Commission that an emergency
exists, it may promulgate an emergency rule which shall become
effective immediately upon adoption, provided that the usual
rulemaking procedures provided hereunder shall be retroactively
applied to said rule as soon as reasonably possible, in no event
later than 90 days after the effective date of the rule.
Article IX. Oversight, Enforcement, and Dispute Resolution by the
Interstate Commission
Section A. Oversight
The Interstate Commission shall oversee the interstate movement of
adult offenders in the compacting states and shall monitor the
activities being administered in Non-compacting States which may
significantly affect Compacting States.
The courts and executive agencies in each Compacting State shall
enforce this Compact and shall take all actions necessary and
appropriate to effectuate the Compact's purposes and intent. In any
judicial or administrative proceeding in a Compacting State
pertaining to the subject matter of this Compact which may affect the
powers, responsibilities or actions of the Interstate Commission,
the Interstate Commission shall be entitled to receive all service of
process in any proceeding, and shall have standing to intervene in
the proceeding for all purposes.
Section B. Dispute Resolution
The Compacting States shall report to the Interstate Commission on
issues or activities of concern to them, and cooperate with and
support the Interstate Commission in the discharge of its duties and
responsibilities.
The Interstate Commission shall attempt to resolve any disputes or
other issues which are subject to the Compact and which may arise
among Compacting States and Non-compacting States.
The Interstate Commission shall enact a By-law or promulgate a
Rule providing for both mediation and binding dispute resolution for
disputes among the Compacting States.
Section C. Enforcement
The Interstate Commission, in the reasonable exercise of its
discretion, shall enforce the provisions of this compact using any or
all means set forth in Article XII, Section B, of this compact.
Article X. Finance
The Interstate Commission shall pay or provide for the payment of
the reasonable expenses of its establishment, organization and
ongoing activities.
The Interstate Commission shall levy on and collect an annual
assessment from each Compacting State to cover the cost of the
internal operations and activities of the Interstate Commission and
its staff which must be in a total amount sufficient to cover the
Interstate Commission's annual budget as approved each year. The
aggregate annual assessment amount shall be allocated based upon a
formula to be determined by the Interstate Commission, taking into
consideration the population of the state and the volume of
interstate movement of offenders in each Compacting State and shall
promulgate a Rule binding upon all Compacting States which governs
said assessment.
The Interstate Commission shall not incur any obligations of any
kind prior to securing the funds adequate to meet the same; nor shall
the Interstate Commission pledge the credit of any of the compacting
states, except by and with the authority of the compacting state.
The Interstate Commission shall keep accurate accounts of all
receipts and disbursements. The receipts and disbursements of the
Interstate Commission shall be subject to the audit and accounting
procedures established under its By-laws. However, all receipts and
disbursements of funds handled by the Interstate Commission shall be
audited yearly by a certified or licensed public accountant and the
report of the audit shall be included in and become part of the
annual report of the Interstate Commission.
Article XI. Compacting States, Effective Date and Amendment
Any state, as defined in Article II of this compact, is eligible
to become a Compacting State. The Compact shall become effective and
binding upon legislative enactment of the Compact into law by no less
than 35 of the States. The initial effective date shall be the later
of July 1, 2001, or upon enactment into law by the 35th
jurisdiction. Thereafter, it shall become effective and binding, as
to any other Compacting State, upon enactment of the Compact into law
by that State. The governors of Non-member states or their designees
will be invited to participate in Interstate Commission activities
on a non-voting basis prior to adoption of the compact by all states
and territories of the United States.
Amendments to the Compact may be proposed by the Interstate
Commission for enactment by the Compacting States. No amendment shall
become effective and binding upon the Interstate Commission and the
Compacting States unless and until it is enacted into law by
unanimous consent of the Compacting States.
Article XII. Withdrawal, Default, Termination, and Judicial
Enforcement
Section A. Withdrawal
Once effective, the Compact shall continue in force and remain
binding upon each and every Compacting State; provided, that a
Compacting State may withdraw from the Compact ("Withdrawing State")
by enacting a statute specifically repealing the statute which
enacted the Compact into law.
The effective date of withdrawal is the effective date of the
repeal. The Withdrawing State shall immediately notify the
Chairperson of the Interstate Commission in writing upon the
introduction of legislation repealing this Compact in the Withdrawing
State. The Interstate Commission shall notify the other Compacting
States of the Withdrawing State's intent to withdraw within 60 days
of its receipt thereof. The Withdrawing State is responsible for all
assessments, obligations and liabilities incurred through the
effective date of withdrawal, including any obligations, the
performance of which extend beyond the effective date of withdrawal.
Reinstatement following withdrawal of any Compacting State shall
occur upon the Withdrawing State reenacting the Compact or upon a
later date as determined by the Interstate Commission.
Section B. Default
If the Interstate Commission determines that any Compacting State
has at any time defaulted ("Defaulting State") in the performance of
any of its obligations or responsibilities under this Compact, the
By-laws or any duly promulgated Rules the Interstate Commission may
impose any or all of the following penalties: Fines, fees and costs
in amounts as are deemed to be reasonable as fixed by the Interstate
Commission. Remedial training and technical assistance as directed by
the Interstate Commission; suspension and termination of membership
in the compact. Suspension shall be imposed only after all other
reasonable means of securing compliance under the By-laws and Rules
have been exhausted. Immediate notice of suspension shall be given by
the Interstate Commission to the Governor, the Chief Justice or
Chief Judicial Officer of the state, the majority and minority
leaders of the defaulting state's legislature, and the State Council.
The grounds for default include, but are not limited to, failure
of a Compacting State to perform the obligations or responsibilities
imposed upon it by this compact, Interstate Commission By-laws, or
duly promulgated Rules. The Interstate Commission shall immediately
notify the Defaulting State in writing of the penalty imposed by the
Interstate Commission on the Defaulting State pending a cure of the
default. The Interstate Commission shall stipulate the conditions and
the time period within which the Defaulting State must cure its
default. If the Defaulting State fails to cure the default within the
time period specified by the Interstate Commission, in addition to
any other penalties imposed herein, the Defaulting State may be
terminated from the Compact upon an affirmative vote of a majority of
the Compacting States and all rights, privileges and benefits
conferred by this Compact shall be terminated from the effective date
of suspension. Within 60 days of the effective date of termination
of a Defaulting State, the Interstate Commission shall notify the
Governor, the Chief Justice or Chief Judicial Officer and the
Majority and Minority Leaders of the Defaulting State's legislature
and the state council of the termination.
The Defaulting State is responsible for all assessments,
obligations and liabilities incurred through the effective date of
termination including any obligations, the performance of which
extends beyond the effective date of termination.
The Interstate Commission shall not bear any costs relating to the
Defaulting State unless otherwise mutually agreed upon between the
Interstate Commission and the Defaulting State. Reinstatement
following termination of any Compacting State requires both a
reenactment of the Compact by the Defaulting State and the approval
of the Interstate Commission pursuant to the Rules.
Section C. Judicial Enforcement
The Interstate Commission may, by majority vote of the Members,
initiate legal action in the United States District Court for the
District of Columbia or, at the discretion of the Interstate
Commission, in the Federal District where the Interstate Commission
has its offices to enforce compliance with the provisions of the
Compact, its duly promulgated Rules and By-laws, against any
Compacting State in default. In the event judicial enforcement is
necessary the prevailing party shall be awarded all litigation costs
including reasonable attorneys fees.
Section D. Dissolution of Compact
The Compact dissolves effective upon the date of the withdrawal or
default of the Compacting State which reduces membership in the
Compact to one Compacting State.
Upon the dissolution of this Compact, the Compact becomes null and
void and shall be of no further force or effect, and the business
and affairs of the Interstate Commission shall be wound up and any
surplus funds shall be distributed in accordance with the By-laws.
Article XIII. Severability and Construction
The provisions of this Compact shall be severable, and if any
phrase, clause, sentence or provision is deemed unenforceable, the
remaining provisions of the Compact shall be enforceable.
The provisions of this Compact shall be liberally constructed to
effectuate its purposes.
Article XIV. Binding Effect of Compact and Other Laws
Section A. Other Laws
Nothing herein prevents the enforcement of any other law of a
Compacting State that is not inconsistent with this Compact.
All Compacting States' laws conflicting with this Compact are
superseded to the extent of the conflict.
Section B. Binding Effect of the Compact
All lawful actions of the Interstate Commission, including all
Rules and By-laws promulgated by the Interstate Commission, are
binding upon the Compacting States.
All agreements between the Interstate Commission and the
Compacting States are binding in accordance with their terms.
Upon the request of a party to a conflict over meaning or
interpretation of Interstate Commission actions, and upon a majority
vote of the Compacting States, the Interstate Commission may issue
advisory opinions regarding meaning or interpretation.
In the event any provision of this Compact exceeds the
constitutional limits imposed on the legislature of any Compacting
State, the obligations, duties, powers or jurisdiction sought to be
conferred by the provision upon the Interstate Commission shall be
ineffective and the obligations, duties, powers or jurisdiction shall
remain in the Compacting State and shall be exercised by the agency
thereof to which the obligations, duties, powers or jurisdiction are
delegated by law in effect at the time this Compact becomes
effective.
SEC. 224. Section 12022 of the Penal Code, as added by Section 5
of Chapter 711 of the Statutes of 2010, is amended to read:
12022. (a) (1) Except as provided in subdivisions (c) and (d),
any person who is armed with a firearm in the commission of a felony
or attempted felony shall be punished by an additional and
consecutive term of imprisonment in the state prison for one year,
unless the arming is an element of that offense. This additional term
shall apply to any person who is a principal in the commission of a
felony or attempted felony if one or more of the principals is armed
with a firearm, whether or not the person is personally armed with a
firearm.
(2) Except as provided in subdivision (c), and notwithstanding
subdivision (d), if the firearm is an assault weapon, as defined in
Section 30510 or Section 30515, or a machinegun, as defined in
Section 16880, or a .50 BMG rifle, as defined in Section 30530, the
additional and consecutive term described in this subdivision shall
be three years whether or not the arming is an element of the offense
of which the person was convicted. The additional term provided in
this paragraph shall apply to any person who is a principal in the
commission of a felony or attempted felony if one or more of the
principals is armed with an assault weapon or machinegun, or a .50
BMG rifle, whether or not the person is personally armed with an
assault weapon or machinegun, or a .50 BMG rifle.
(b) (1) Any person who personally uses a deadly or dangerous
weapon in the commission of a felony or attempted felony shall be
punished by an additional and consecutive term of imprisonment in the
state prison for one year, unless use of a deadly or dangerous
weapon is an element of that offense.
(2) If the person described in paragraph (1) has been convicted of
carjacking or attempted carjacking, the additional term shall be
one, two, or three years.
(3) When a person is found to have personally used a deadly or
dangerous weapon in the commission of a felony or attempted felony as
provided in this subdivision and the weapon is owned by that person,
the court shall order that the weapon be deemed a nuisance and
disposed of in the manner provided in Sections 18000 and 18005.
(c) Notwithstanding the enhancement set forth in subdivision (a),
any person who is personally armed with a firearm in the commission
of a violation or attempted violation of Section 11351, 11351.5,
11352, 11366.5, 11366.6, 11378, 11378.5, 11379, 11379.5, or 11379.6
of the Health and Safety Code shall be punished by an additional and
consecutive term of imprisonment in the state prison for three, four,
or five years.
(d) Notwithstanding the enhancement set forth in subdivision (a),
any person who is not personally armed with a firearm who, knowing
that another principal is personally armed with a firearm, is a
principal in the commission of an offense or attempted offense
specified in subdivision (c), shall be punished by an additional and
consecutive term of imprisonment in the state prison for one, two, or
three years.
(e) For purposes of imposing an enhancement under Section 1170.1,
the enhancements under this section shall count as a single
enhancement.
(f) Notwithstanding any other provision of law, the court may
strike the additional punishment for the enhancements provided in
subdivision (c) or (d) in an unusual case where the interests of
justice would best be served, if the court specifies on the record
and enters into the minutes the circumstances indicating that the
interests of justice would best be served by that disposition.
SEC. 225. Section 12022.5 of the Penal Code, as added by Section 5
of Chapter 711 of the Statutes of 2010, is amended to read:
12022.5. (a) Except as provided in subdivision (b), any person
who personally uses a firearm in the commission of a felony or
attempted felony shall be punished by an additional and consecutive
term of imprisonment in the state prison for 3, 4, or 10 years,
unless use of a firearm is an element of that offense.
(b) Notwithstanding subdivision (a), any person who personally
uses an assault weapon, as specified in Section 30510 or 30515, or a
machinegun, as defined in Section 16880, in the commission of a
felony or attempted felony, shall be punished by an additional and
consecutive term of imprisonment in the state prison for 5, 6, or 10
years.
(c) Notwithstanding Section 1385 or any other provision of law,
the court shall not strike an allegation under this section or a
finding bringing a person within the provisions of this section.
(d) Notwithstanding the limitation in subdivision (a) relating to
being an element of the offense, the additional term provided by this
section shall be imposed for any violation of Section 245 if a
firearm is used, or for murder if the killing is perpetrated by means
of shooting a firearm from a motor vehicle, intentionally at another
person outside of the vehicle with the intent to inflict great
bodily injury or death.
(e) When a person is found to have personally used a firearm, an
assault weapon, a machinegun, or a .50 BMG rifle, in the commission
of a felony or attempted felony as provided in this section and the
firearm, assault weapon, machinegun, or a .50 BMG rifle, is owned by
that person, the court shall order that the firearm be deemed a
nuisance and disposed of in the manner provided in Sections 18000 and
18005.
(f) For purposes of imposing an enhancement under Section 1170.1,
the enhancements under this section shall count as a single
enhancement.
SEC. 226. Section 12022.7 of the Penal Code, as added by Section 5
of Chapter 711 of the Statutes of 2010, is amended to read:
12022.7. (a) Any person who personally inflicts great bodily
injury on any person other than an accomplice in the commission of a
felony or attempted felony shall be punished by an additional and
consecutive term of imprisonment in the state prison for three years.
(b) Any person who personally inflicts great bodily injury on any
person other than an accomplice in the commission of a felony or
attempted felony which causes the victim to become comatose due to
brain injury or to suffer paralysis of a permanent nature shall be
punished by an additional and consecutive term of imprisonment in the
state prison for five years. As used in this subdivision, "paralysis"
means a major or complete loss of motor function resulting from
injury to the nervous system or to a muscular mechanism.
(c) Any person who personally inflicts great bodily injury on a
person who is 70 years of age or older, other than an accomplice, in
the commission of a felony or attempted felony shall be punished by
an additional and consecutive term of imprisonment in the state
prison for five years.
(d) Any person who personally inflicts great bodily injury on a
child under the age of five years in the commission of a felony or
attempted felony shall be punished by an additional and consecutive
term of imprisonment in the state prison for four, five, or six
years.
(e) Any person who personally inflicts great bodily injury under
circumstances involving domestic violence in the commission of a
felony or attempted felony shall be punished by an additional and
consecutive term of imprisonment in the state prison for three, four,
or five years. As used in this subdivision, "domestic violence" has
the meaning provided in subdivision (b) of Section 13700.
(f) As used in this section, "great bodily injury" means a
significant or substantial physical injury.
(g) This section shall not apply to murder or manslaughter or a
violation of Section 451 or 452. Subdivisions (a), (b), (c), and (d)
shall not apply if infliction of great bodily injury is an element of
the offense.
(h) The court shall impose the additional terms of imprisonment
under either subdivision (a), (b), (c), or (d), but may not impose
more than one of those terms for the same offense.
SEC. 227. Section 12022.85 of the Penal Code, as added by Section
5 of Chapter 711 of the Statutes of 2010, is amended to read:
12022.85. (a) Any person who violates one or more of the offenses
listed in subdivision (b) with knowledge that he or she has acquired
immune deficiency syndrome (AIDS) or with the knowledge that he or
she carries antibodies of the human immunodeficiency virus at the
time of the commission of those offenses shall receive a three-year
enhancement for each violation in addition to the sentence provided
under those sections.
(b) Subdivision (a) applies to the following crimes:
(1) Rape in violation of Section 261.
(2) Unlawful intercourse with a person under 18 years of age in
violation of Section 261.5.
(3) Rape of a spouse in violation of Section 262.
(4) Sodomy in violation of Section 286.
(5) Oral copulation in violation of Section 288a.
(c) For purposes of proving the knowledge requirement of this
section, the prosecuting attorney may use test results received under
subdivision (c) of Section 1202.1 or subdivision (g) of Section
1202.6.
SEC. 228. Section 16880 of the Penal Code is amended to read:
16880. (a) As used in this part, "machinegun" means any weapon
that shoots, is designed to shoot, or can readily be restored to
shoot, automatically more than one shot, without manual reloading, by
a single function of the trigger.
(b) The term "machinegun" also includes the frame or receiver of
any weapon described in subdivision (a), any part designed and
intended solely and exclusively, or combination of parts designed and
intended, for use in converting a weapon into a machinegun, and any
combination of parts from which a machinegun can be assembled if
those parts are in the possession or under the control of a person.
(c) The term "machinegun" also includes any weapon deemed by the
federal Bureau of Alcohol, Tobacco, Firearms and Explosives as
readily convertible to a machinegun under Chapter 53 (commencing with
Section 5801) of Title 26 of the United States Code.
SEC. 229. Section 25105 of the Penal Code is amended to read:
25105. Section 25100 does not apply whenever any of the following
occurs:
(a) The child obtains the firearm as a result of an illegal entry
to any premises by any person.
(b) The firearm is kept in a locked container or in a location
that a reasonable person would believe to be secure.
(c) The firearm is carried on the person or within close enough
proximity thereto that the individual can readily retrieve and use
the firearm as if carried on the person.
(d) The firearm is locked with a locking device, as defined in
Section 16860, which has rendered the firearm inoperable.
(e) The person is a peace officer or a member of the Armed Forces
or the National Guard and the child obtains the firearm during, or
incidental to, the performance of the person's duties.
(f) The child obtains, or obtains and discharges, the firearm in a
lawful act of self-defense or defense of another person.
(g) The person who keeps a loaded firearm on any premises that are
under the person's custody or control has no reasonable expectation,
based on objective facts and circumstances, that a child is likely
to be present on the premises.
SEC. 230. Section 25650 of the Penal Code is amended to read:
25650. (a) Upon approval of the sheriff of the county in which
the retiree resides, Section 25400 does not apply to, or affect, any
honorably retired federal officer or agent of any federal law
enforcement agency, including, but not limited to, the Federal Bureau
of Investigation, the United States Secret Service, the United
States Customs Service, the federal Bureau of Alcohol, Tobacco,
Firearms and Explosives, the Federal Bureau of Narcotics, the United
States Drug Enforcement Administration, the United States Border
Patrol, and any officer or agent of the Internal Revenue Service who
was authorized to
carry weapons while on duty, who was assigned to duty within the
state for a period of not less than one year, or who retired from
active service in the state.
(b) A retired federal officer or agent shall provide the sheriff
with certification from the agency from which the officer or agent
retired certifying that person's service in the state, stating the
nature of that person's retirement, and indicating the agency's
concurrence that the retired federal officer or agent should be
accorded the privilege of carrying a concealed firearm.
(c) Upon that approval, the sheriff shall issue a permit to the
retired federal officer or agent indicating that the retiree may
carry a concealed firearm in accordance with this section. The permit
shall be valid for a period not exceeding five years, shall be
carried by the retiree while carrying a concealed firearm, and may be
revoked for good cause.
(d) The sheriff of the county in which the retired federal officer
or agent resides may require recertification prior to a permit
renewal, and may suspend the privilege for cause. The sheriff may
charge a fee necessary to cover any reasonable expenses incurred by
the county.
SEC. 231. Section 26020 of the Penal Code is amended to read:
26020. (a) Upon approval of the sheriff of the county in which
the retiree resides, Section 25850 does not apply to any honorably
retired federal officer or agent of any federal law enforcement
agency, including, but not limited to, the Federal Bureau of
Investigation, the United States Secret Service, the United States
Customs Service, the federal Bureau of Alcohol, Tobacco, Firearms and
Explosives, the Federal Bureau of Narcotics, the United States Drug
Enforcement Administration, the United States Border Patrol, and any
officer or agent of the Internal Revenue Service who was authorized
to carry weapons while on duty, who was assigned to duty within the
state for a period of not less than one year, or who retired from
active service in the state.
(b) A retired federal officer or agent shall provide the sheriff
with certification from the agency from which the officer or agent
retired certifying that person's service in the state, stating the
nature of that person's retirement, and indicating the agency's
concurrence that the retired federal officer or agent should be
accorded the privilege of carrying a loaded firearm.
(c) Upon approval, the sheriff shall issue a permit to the retired
federal officer or agent indicating that the retiree may carry a
loaded firearm in accordance with this section. The permit shall be
valid for a period not exceeding five years, shall be carried by the
retiree while carrying a loaded firearm, and may be revoked for good
cause.
(d) The sheriff of the county in which the retired federal officer
or agent resides may require recertification prior to a permit
renewal, and may suspend the privilege for cause. The sheriff may
charge a fee necessary to cover any reasonable expenses incurred by
the county.
SEC. 232. Section 26175 of the Penal Code is amended to read:
26175. (a) (1) Applications for licenses, applications for
amendments to licenses, amendments to licenses, and licenses under
this article shall be uniform throughout the state, upon forms to be
prescribed by the Attorney General.
(2) The Attorney General shall convene a committee composed of one
representative of the California State Sheriffs' Association, one
representative of the California Police Chiefs Association, and one
representative of the Department of Justice to review, and as deemed
appropriate, revise the standard application form for licenses. The
committee shall meet for this purpose if two of the committee's
members deem that necessary.
(b) The application shall include a section summarizing the
statutory provisions of state law that result in the automatic denial
of a license.
(c) The standard application form for licenses described in
subdivision (a) shall require information from the applicant,
including, but not limited to, the name, occupation, residence, and
business address of the applicant, the applicant's age, height,
weight, color of eyes and hair, and reason for desiring a license to
carry the weapon.
(d) Applications for licenses shall be filed in writing and signed
by the applicant.
(e) Applications for amendments to licenses shall be filed in
writing and signed by the applicant, and shall state what type of
amendment is sought pursuant to Section 26215 and the reason for
desiring the amendment.
(f) The forms shall contain a provision whereby the applicant
attests to the truth of statements contained in the application.
(g) An applicant shall not be required to complete any additional
application or form for a license, or to provide any information
other than that necessary to complete the standard application form
described in subdivision (a), except to clarify or interpret
information provided by the applicant on the standard application
form.
(h) The standard application form described in subdivision (a) is
deemed to be a local form expressly exempt from the requirements 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).
(i) Any license issued upon the application shall set forth the
licensee's name, occupation, residence and business address, the
licensee's age, height, weight, color of eyes and hair, and the
reason for desiring a license to carry the weapon, and shall, in
addition, contain a description of the weapon or weapons authorized
to be carried, giving the name of the manufacturer, the serial
number, and the caliber. The license issued to the licensee may be
laminated.
SEC. 233. Section 29010 of the Penal Code is amended to read:
29010. (a) Commencing July 1, 1999, no person, firm, or
corporation licensed to manufacture firearms pursuant to Chapter 44
(commencing with Section 921) of Title 18 of the United States Code
may manufacture firearms within this state unless that person, firm,
or corporation is licensed pursuant to Chapter 2 (commencing with
Section 29030).
(b) Subdivision (a) does not apply to a person licensed to
manufacture firearms pursuant to Chapter 44 (commencing with Section
921) of Title 18 of the United States Code who manufactures fewer
than 100 firearms in a calendar year within this state.
(c) If a person, firm, or corporation required to be licensed
pursuant to Chapter 2 (commencing with Section 29030) ceases
operations, then the records required pursuant to Section 29130 and
subdivision (b) of Section 29115 shall be forwarded to the federal
Bureau of Alcohol, Tobacco, Firearms and Explosives within three days
of the closure of business.
(d) A violation of this section is a misdemeanor.
SEC. 234. Section 29065 of the Penal Code is amended to read:
29065. (a) Except as provided in subdivision (b), the license of
any licensee who violates this chapter may be revoked.
(b) The license of any licensee who knowingly or with gross
negligence violates this chapter or violates this chapter three times
shall be revoked, and that person, firm, or corporation shall become
permanently ineligible to obtain a license pursuant to this chapter.
(c) Upon the revocation of the license, notification shall be
provided to local law enforcement authorities in the jurisdiction
where the licensee's business is located and to the federal Bureau of
Alcohol, Tobacco, Firearms and Explosives.
SEC. 235. Section 29115 of the Penal Code is amended to read:
29115. (a) Whenever a licensee discovers that a firearm has been
stolen or is missing from the licensee's premises, the licensee shall
report the loss or theft within 48 hours of the discovery to all of
the following:
(1) The Department of Justice, in a manner prescribed by the
department.
(2) The federal Bureau of Alcohol, Tobacco, Firearms and
Explosives.
(3) The police department in the city or city and county where the
building designated in the license is located.
(4) If there is no police department in the city or city and
county where the building designated in the license is located, the
sheriff of the county where the building designated in the license is
located.
(b) For at least 10 years, the licensee shall maintain records of
all firearms that are lost or stolen, as prescribed by the Department
of Justice.
SEC. 236. Section 29142 of the Penal Code is amended to read:
29142. (a) For purposes of this chapter, any licensed
manufacturer who produces fewer than 500 firearms in a calendar year
within this state may maintain a "secure facility" by complying with
all of the requirements described in Section 29141, or may design a
security plan that is approved by the Department of Justice or the
federal Bureau of Alcohol, Tobacco, Firearms and Explosives.
(b) If a security plan is approved by the federal Bureau of
Alcohol, Tobacco, Firearms and Explosives, the approved plan, along
with proof of approval, shall be filed with the Department of Justice
and the local police department. If there is no police department,
the filing shall be with the county sheriff's office.
(c) If a security plan is approved by the Department of Justice,
the approved plan, along with proof of approval, shall be filed with
the local police department. If there is no police department, the
filing shall be with the county sheriff's office.
SEC. 237. Section 29510 of the Penal Code is amended to read:
29510. (a) The Department of Justice shall recover the full costs
of administering the entertainment firearms permit 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 Fees Account, and forty-eight dollars ($48) shall be
deposited into the Dealers' Record of Sale Special Account.
(2) For each annual renewal application: twenty-nine dollars
($29), which shall be deposited into the Dealers' Record of Sale
Special Account.
(b) The department shall annually review and shall adjust the fees
specified in subdivision (a), if necessary, to fully fund, but not
to exceed the actual costs of, the permit program provided for by
this chapter, including enforcement of the program.
SEC. 238. Section 29615 of the Penal Code is amended to read:
29615. Section 29610 shall not apply if one of the following
circumstances exists:
(a) The minor is accompanied by a parent or legal guardian, and
the minor is actively engaged in, or is in direct transit to or from,
a lawful, recreational sport, including, but not limited to,
competitive shooting, or agricultural, ranching, or hunting activity,
or a motion picture, television, or video production, or
entertainment or theatrical event, the nature of which involves this
use of a firearm.
(b) The minor is accompanied by a responsible adult, the minor has
the prior written consent of a parent or legal guardian, and the
minor is actively engaged in, or is in direct transit to or from, a
lawful, recreational sport, including, but not limited to,
competitive shooting, or agricultural, ranching, or hunting activity,
or a motion picture, television, or video production, or
entertainment or theatrical event, the nature of which involves the
use of a firearm.
(c) The minor is at least 16 years of age, the minor has the prior
written consent of a parent or legal guardian, and the minor is
actively engaged in, or is in direct transit to or from, a lawful
recreational sport, including, but not limited to, competitive
shooting, or agricultural, ranching, or hunting activity, or a motion
picture, television, or video production, or entertainment or
theatrical event, the nature of which involves the use of a firearm.
(d) The minor has the prior written consent of a parent or legal
guardian, the minor is on lands owned or lawfully possessed by the
parent or legal guardian, and the minor is actively engaged in, or is
in direct transit to or from, a lawful, recreational sport,
including, but not limited to, competitive shooting, or agricultural,
ranching, or hunting activity, or a motion picture, television, or
video production, or entertainment or theatrical event, the nature of
which involves the use of a firearm.
SEC. 239. Section 29855 of the Penal Code is amended to read:
29855. (a) Any person employed as a peace officer described in
Section 830.1, 830.2, 830.31, 830.32, 830.33, or 830.5 whose
employment or livelihood is dependent on the ability to legally
possess a firearm, who is subject to the prohibition imposed by
Section 29805 because of a conviction under Section 273.5, 273.6, or
646.9, may petition the court only once for relief from this
prohibition.
(b) The petition shall be filed with the court in which the
petitioner was sentenced. If possible, the matter shall be heard
before the same judge who sentenced the petitioner.
(c) Upon filing the petition, the clerk of the court shall set the
hearing date and shall notify the petitioner and the prosecuting
attorney of the date of the hearing.
(d) Upon making each of the following findings, the court may
reduce or eliminate the prohibition, impose conditions on reduction
or elimination of the prohibition, or otherwise grant relief from the
prohibition as the court deems appropriate:
(1) Finds by a preponderance of the evidence that the petitioner
is likely to use a firearm in a safe and lawful manner.
(2) Finds that the petitioner is not within a prohibited class as
specified in Section 29815, 29820, 29825, or 29900, or subdivision
(a) or (b) of Section 29800, and the court is not presented with any
credible evidence that the petitioner is a person described in
Section 8100 or 8103 of the Welfare and Institutions Code.
(3) Finds that the petitioner does not have a previous conviction
under Section 29805, no matter when the prior conviction occurred.
(e) In making its decision, the court shall consider the
petitioner's continued employment, the interest of justice, any
relevant evidence, and the totality of the circumstances. The court
shall require, as a condition of granting relief from the prohibition
under Section 29805, that the petitioner agree to participate in
counseling as deemed appropriate by the court. Relief from the
prohibition shall not relieve any other person or entity from any
liability that might otherwise be imposed. It is the intent of the
Legislature that courts exercise broad discretion in fashioning
appropriate relief under this section in cases in which relief is
warranted. However, nothing in this section shall be construed to
require courts to grant relief to any particular petitioner. It is
the intent of the Legislature to permit persons who were convicted of
an offense specified in Section 273.5, 273.6, or 646.9 to seek
relief from the prohibition imposed by Section 29805.
SEC. 240. Section 30105 of the Penal Code is amended to read:
30105. (a) An individual may request that the Department of
Justice perform a firearms eligibility check for that individual. The
applicant requesting the eligibility check shall provide the
information required by Section 28165 to the department, in an
application specified by the department.
(b) The department shall charge a fee of twenty dollars ($20) for
performing the eligibility check authorized by this section, but not
to exceed the actual processing costs of the department. After the
department establishes fees sufficient to reimburse the department
for processing costs, fees charged may increase at a rate not to
exceed the legislatively approved cost-of-living adjustment for the
department's budget or as otherwise increased through the Budget Act.
(c) An applicant for the eligibility check pursuant to subdivision
(a) shall complete the application, have it notarized by any
licensed California Notary Public, and submit it by mail to the
department.
(d) Upon receipt of a notarized application and fee, the
department shall do all of the following:
(1) Examine its records, and the records it is authorized to
request from the State Department of Mental Health pursuant to
Section 8104 of the Welfare and Institutions Code, to determine if
the purchaser is prohibited by state or federal law from possessing,
receiving, owning, or purchasing a firearm.
(2) Notify the applicant by mail of its determination of whether
the applicant is prohibited by state or federal law from possessing,
receiving, owning, or purchasing a firearm. The department's
notification shall state either "eligible to possess firearms as of
the date the check was completed" or "ineligible to possess firearms
as of the date the check was completed."
(e) If the department determines that the information submitted to
it in the application contains any blank spaces, or inaccurate,
illegible, or incomplete information, preventing identification of
the applicant, or if the required fee is not submitted, the
department shall not be required to perform the firearms eligibility
check.
(f) The department shall make applications to conduct a firearms
eligibility check as described in this section available to licensed
firearms dealers and on the department's Internet Web site.
(g) The department shall be immune from any liability arising out
of the performance of the firearms eligibility check, or any reliance
upon the firearms eligibility check.
(h) No person or agency may require or request another person to
obtain a firearms eligibility check or notification of a firearms
eligibility check pursuant to this section. A violation of this
subdivision is a misdemeanor.
(i) The department shall include on the application specified in
subdivision (a) and the notification of eligibility specified in
subdivision (d) the following statements:
"No person or agency may require or request another person to
obtain a firearms eligibility check or notification of firearms
eligibility check pursuant to Section 30105 of the Penal Code. A
violation of these provisions is a misdemeanor."
"If the applicant for a firearms eligibility check purchases,
transfers, or receives a firearm through a licensed dealer as
required by law, a waiting period and background check are both
required."
SEC. 241. Section 31315 of the Penal Code is amended to read:
31315. (a) Before any body armor may be purchased for use by
state peace officers, the Department of Justice, after consultation
with the Department of the California Highway Patrol, shall establish
minimum ballistic performance standards, and shall determine that
the armor satisfies those standards.
(b) Only body armor that meets state requirements under
subdivision (a) for acquisition or purchase shall be eligible for
testing for certification under the ballistic performance standards
established by the Department of Justice.
(c) Only body armor that is certified as acceptable by the
department shall be purchased for use by state peace officers.
SEC. 242. Section 31910 of the Penal Code is amended to read:
31910. As used in this part, "unsafe handgun" means any pistol,
revolver, or other firearm capable of being concealed upon the
person, for which any of the following is true:
(a) For a revolver:
(1) It does not have a safety device that, either automatically in
the case of a double-action firing mechanism, or by manual operation
in the case of a single-action firing mechanism, causes the hammer
to retract to a point where the firing pin does not rest upon the
primer of the cartridge.
(2) It does not meet the firing requirement for handguns.
(3) It does not meet the drop safety requirement for handguns.
(b) For a pistol:
(1) It does not have a positive manually operated safety device,
as determined by standards relating to imported guns promulgated by
the federal Bureau of Alcohol, Tobacco, Firearms and Explosives.
(2) It does not meet the firing requirement for handguns.
(3) It does not meet the drop safety requirement for handguns.
(4) Commencing January 1, 2006, for a center fire semiautomatic
pistol that is not already listed on the roster pursuant to Section
32015, it does not have either a chamber load indicator, or a
magazine disconnect mechanism.
(5) Commencing January 1, 2007, for all center fire semiautomatic
pistols that are not already listed on the roster pursuant to Section
32015, it does not have both a chamber load indicator and if it has
a detachable magazine, a magazine disconnect mechanism.
(6) Commencing January 1, 2006, for all rimfire semiautomatic
pistols that are not already listed on the roster pursuant to Section
32015, it does not have a magazine disconnect mechanism, if it has a
detachable magazine.
(7) (A) Commencing January 1, 2010, for all semiautomatic pistols
that are not already listed on the roster pursuant to Section 32015,
it is not designed and equipped with a microscopic array of
characters that identify the make, model, and serial number of the
pistol, etched or otherwise imprinted in two or more places on the
interior surface or internal working parts of the pistol, and that
are transferred by imprinting on each cartridge case when the firearm
is fired, provided that the Department of Justice certifies that the
technology used to create the imprint is available to more than one
manufacturer unencumbered by any patent restrictions.
(B) The Attorney General may also approve a method of equal or
greater reliability and effectiveness in identifying the specific
serial number of a firearm from spent cartridge casings discharged by
that firearm than that which is set forth in this paragraph, to be
thereafter required as otherwise set forth by this paragraph where
the Attorney General certifies that this new method is also
unencumbered by any patent restrictions. Approval by the Attorney
General shall include notice of that fact via regulations adopted by
the Attorney General for purposes of implementing that method for
purposes of this paragraph.
(C) The microscopic array of characters required by this section
shall not be considered the name of the maker, model, manufacturer's
number, or other mark of identification, including any distinguishing
number or mark assigned by the Department of Justice, within the
meaning of Sections 23900 and 23920.
SEC. 243. Section 32105 of the Penal Code is amended to read:
32105. (a) The Legislature finds a significant public purpose in
exempting pistols that are designed expressly for use in Olympic
target shooting events. Therefore, those pistols that are sanctioned
by the International Olympic Committee and by USA Shooting, the
national governing body for international shooting competition in the
United States, and that were used for Olympic target shooting
purposes as of January 1, 2001, and that fall within the definition
of "unsafe handgun" pursuant to paragraph (3) of subdivision (b) of
Section 31910 shall be exempt, as provided in subdivisions (b) and
(c).
(b) Article 4 (commencing with Section 31900) and Article 5
(commencing with Section 32000) shall not apply to any of the
following pistols, because they are consistent with the significant
public purpose expressed in subdivision (a):
MANUFACTURER MODEL CALIBER
ANSCHUTZ FP .22LR
BENELLI MP90 .22LR
BENELLI MP90 .32 S&W LONG
BENELLI MP95 .22LR
BENELLI MP95 .32 S&W LONG
DRULOV FP .22LR
GREEN ELECTROARM .22LR
HAMMERLI 100 .22LR
HAMMERLI 101 .22LR
HAMMERLI 102 .22LR
HAMMERLI 162 .22LR
HAMMERLI 280 .22LR
HAMMERLI 280 .32 S&W LONG
HAMMERLI FP10 .22LR
HAMMERLI MP33 .22LR
HAMMERLI SP20 .22LR
HAMMERLI SP20 .32 S&W LONG
MORINI CM102E .22LR
MORINI 22M .22LR
MORINI 32M .32 S&W LONG
MORINI CM80 .22LR
PARDINI GP .22 SHORT
PARDINI GPO .22 SHORT
PARDINI GP-SCHUMANN .22 SHORT
PARDINI HP .32 S&W LONG
PARDINI K22 .22LR
PARDINI MP .32 S&W LONG
PARDINI PGP75 .22LR
PARDINI SP .22LR
PARDINI SPE .22LR
SAKO FINMASTER .22LR
STEYR FP .22LR
VOSTOK IZH NO. 1 .22LR
VOSTOK MU55 .22LR
VOSTOK TOZ35 .22LR
WALTHER FP .22LR
WALTHER GSP .22LR
WALTHER GSP .32 S&W LONG
WALTHER OSP .22 SHORT
WALTHER OSP-2000 .22
SHORT
(c) The department shall create a program that is consistent with
the purpose stated in subdivision (a) to exempt new models of
competitive firearms from Article 4 (commencing with Section 31900)
and Article 5 (commencing with Section 32000). The exempt competitive
firearms may be based on recommendations by USA Shooting consistent
with the regulations contained in the USA Shooting Official Rules or
may be based on the recommendation or rules of any other organization
that the department deems relevant.
SEC. 244. Section 16062 of the Probate Code is amended to read:
16062. (a) Except as otherwise provided in this section and in
Section 16064, the trustee shall account at least annually, at the
termination of the trust, and upon a change of trustee, to each
beneficiary to whom income or principal is required or authorized in
the trustee's discretion to be currently distributed.
(b) A trustee of a living trust created by an instrument executed
before July 1, 1987, is not subject to the duty to account provided
by subdivision (a).
(c) A trustee of a trust created by a will executed before July 1,
1987, is not subject to the duty to account provided by subdivision
(a), except that if the trust is removed from continuing court
jurisdiction pursuant to Article 2 (commencing with Section 17350) of
Chapter 4 of Part 5, the duty to account provided by subdivision (a)
applies to the trustee.
(d) Except as provided in Section 16064, the duty of a trustee to
account pursuant to former Section 1120.1a of the Probate Code
(as repealed by Chapter 820 of the
Statutes of 1986), under a trust created by a will executed before
July 1, 1977, which has been removed from continuing court
jurisdiction pursuant to former Section 1120.1a, continues to apply
after July 1, 1987. The duty to account under former Section 1120.1a
may be satisfied by furnishing an account that satisfies the
requirements of Section 16063.
(e) Any limitation or waiver in a trust instrument of the
obligation to account is against public policy and shall be void as
to any sole trustee who is either of the following:
(1) A disqualified person as defined in Section 21350.5.
(2) Described in subdivision (a) of Section 21380, but not
described in Section 21382.
SEC. 245. Section 21355 of the Probate Code is amended to read:
21355. (a) This part shall apply to instruments that become
irrevocable on or after September 1, 1993, and before January 1,
2011. For the purposes of this section, an instrument that is
otherwise revocable or amendable shall be deemed to be irrevocable
if, on or after September 1, 1993, the transferor, by reason of
incapacity, was unable to change the disposition of his or her
property and did not regain capacity before the date of his or her
death.
(b) This part shall remain in effect only until January 1, 2014,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2014, deletes or extends that date.
SEC. 246. Section 2203 of the Public Contract Code is amended to
read:
2203. (a) (1) A person that, at the time of bid or proposal for a
new contract or renewal of an existing contract, is identified on a
list created pursuant to subdivision (b) as a person engaging in
investment activities in Iran as described in subdivision (a) of
Section 2202.5, is ineligible to, and shall not, bid on, submit a
proposal for, or enter into or renew, a contract with a public entity
for goods or services of one million dollars ($1,000,000) or more.
(2) A person that, at the time of bid or proposal for a new
contract or renewal of an existing contract, engages in investment
activities in Iran as described in subdivision (b) of Section 2202.5,
is ineligible to, and shall not, bid on, submit a proposal for, or
enter into or renew, a contract with a public entity for goods or
services of one million dollars ($1,000,000) or more.
(b) (1) By June 1, 2011, the Department of General Services shall,
using credible information available to the public, develop, or
contract to develop, a list of persons it determines engage in
investment activities in Iran as described in subdivision (a) of
Section 2202.5.
(2) The Department of General Services shall update the list every
180 days.
(3) Before finalizing an initial list pursuant to paragraph (1) or
an updated list pursuant to paragraph (2), the Department of General
Services shall do all of the following before a person is included
on the list:
(A) Provide 90 days' written notice of its intent to include the
person on the list. The notice shall inform the person that inclusion
on the list would make the person ineligible to bid on, submit a
proposal for, or enter into or renew, a contract for goods or
services of one million dollars ($1,000,000) or more with a public
entity. The notice shall specify that the person, if it ceases its
engagement in investment activities in Iran as described in
subdivision (a) of Section 2202.5, may become eligible for a future
contract, or contract renewal, for goods or services of one million
dollars ($1,000,000) or more with a public entity upon removal from
the list.
(B) The Department of General Services shall provide a person with
an opportunity to comment in writing to the Department of General
Services that it is not engaged in investment activities in Iran. If
the person demonstrates to the Department of General Services that
the person is not engaged in investment activities in Iran as
described in subdivision (a) of Section 2202.5, the person shall not
be included on the list, and shall be eligible to enter into or renew
a contract for goods or services of one million dollars ($1,000,000)
or more with a public entity, unless the person is otherwise
ineligible to bid on a contract as described in paragraph (3) of
subdivision (a) of Section 2205.
(4) The Department of General Services shall make every effort to
avoid erroneously including a person on the list.
(5) The Department of General Services may assess a fee upon
persons that use this list to comply with the provisions of this act,
in order to pay for the necessary, actual costs of creating and
maintaining this list. The Department of General Services shall
provide the list free of charge to any public entity and to the
Legislature, upon request.
(6) A person that has a contract with CalPERS or CalSTRS, or both,
shall not be deemed a person that engages in investment activities
in Iran on the basis of those investments with CalPERS or CalSTRS.
(c) Notwithstanding subdivision (a), a public entity may permit a
person engaged in investment activities in Iran, on a case-by-case
basis, to be eligible for, or to bid on, submit a proposal for, or
enter into or renew, a contract for goods or services of one million
dollars ($1,000,000) or more with a public entity if either of the
following are true:
(1) All of the following occur:
(A) The investment activities in Iran were made before July 1,
2010.
(B) The investment activities in Iran have not been expanded or
renewed after July 1, 2010.
(C) The awarding body determines that it is in the best interest
of the state or local public entity to contract with the person. For
purposes of state contracts for goods or services of one million
dollars ($1,000,000) or more, "awarding body" means the Department of
General Services. For purposes of local contracts for goods or
services of one million dollars ($1,000,000) or more, "awarding body"
means the representative of the local public entity awarding the
contract, as described in subdivision (a) of Section 2202.
(D) The person has adopted, publicized, and is implementing a
formal plan to cease the investment activities in Iran and to refrain
from engaging in any new investments in Iran.
(2) One of the following occurs:
(A) For a contract for goods or services of one million dollars
($1,000,000) or more with a local public entity, the local public
entity makes a public finding that, absent such an exemption, the
local public entity would be unable to obtain the goods or services
for which the contract is offered.
(B) For a contract for goods or services of one million dollars
($1,000,000) or more with a state agency, other than the office of a
state constitutional officer, the Governor makes a public finding
that absent such an exemption, the state agency would be unable to
obtain the goods or services for which the contract is offered.
(C) For a contract for goods or services of one million dollars
($1,000,000) or more with an office of a state constitutional
officer, if the state constitutional officer makes a public finding
that, absent such an exemption, his or her office would be unable to
obtain the goods or services for which the contract is offered.
(d) Notwithstanding subdivision (a), a public entity shall permit
a financial institution described in subdivision (b) of Section
2202.5 to be eligible for, or to bid on, submit a proposal for, or
enter into or renew, a contract for goods or services of one million
dollars ($1,000,000) or more with a public entity if the person using
the credit to provide goods or services in the energy sector of Iran
is a person permitted to submit a bid or proposal to the public
entity pursuant to subdivision (c).
(e) The prohibition described in paragraph (1) of subdivision (a)
applies on and after June 1, 2011. The prohibition described in
paragraph (2) of subdivision (a) applies on and after July 1, 2011.
SEC. 247. Section 6802 of the Public Contract Code is amended to
read:
6802. (a) Subject to the limitations of this chapter, a local
transportation entity, if authorized by the commission, may utilize
the design-build method of procurement for up to five projects that
may be for local street or road, bridge, tunnel, or public transit
projects within the jurisdiction of the entity.
(b) Subject to the limitations of this chapter, the department, if
authorized by the commission, may utilize the design-build method of
procurement for up to 10 state highway, bridge, or tunnel projects.
(c) (1) In addition to the projects authorized pursuant to
subdivisions (a) and (b), and subject to the limitations of this
chapter, the Riverside County Transportation Commission, if
authorized by the commission, may utilize design-build procurement
for the State Route 91 Corridor Improvements Project on the state
highway system.
(2) Notwithstanding any other provision of this chapter, the
department shall be the agency responsible for the performance of
construction inspection services for the project authorized pursuant
to this subdivision. Construction inspection services for the project
authorized pursuant to this subdivision include, but are not limited
to, surveying, testing the materials, verification testing,
monitoring of environmental compliance, quality control inspection,
and quality assurance audits. The construction inspection duties and
responsibilities shall include a direct reporting relationship
between the inspectors and senior department engineers responsible
for all inspectors and construction inspection services. The senior
department engineer responsible for construction inspection services
shall be responsible for the acceptance or rejection of the work.
(3) Notwithstanding any other provision of law, for the project
authorized pursuant to this subdivision, the department shall retain
the authority to stop the contractor's operation wholly or in part
and take appropriate action when public safety is jeopardized. The
department shall ensure that public safety and convenience are
maintained whenever work is performed under an encroachment permit
within the state highway right-of-way, including, but not limited to,
work performed that includes lane closures, signing, work performed
at night, detours, dust control, temporary pavement quality, crash
cushions, temporary railings, pavement transitions, falsework,
shoring, and delineation. The department shall regularly inspect the
job sites for safety compliance and any possible deficiencies. If any
deficiency is observed, a written notice shall be sent to the
resident engineer to correct the deficiency. Once the deficiency is
corrected, a written notice describing the resolution of the
deficiency shall be sent to the department and documented.
(4) The department may use department employees or consultants to
perform the services described in this subdivision, consistent with
Article XXII of the California Constitution. Department resources
necessary for the performance of those services, including personnel
requirements, shall be included in the department's capital outlay
support program for workload purposes in the annual Budget Act.
(5) Not later than the first day of July that occurs two years
after a design-build contract is awarded, and each July 1 thereafter
until the project is completed, the Riverside County Transportation
Commission shall submit a report on the progress of the project and
compliance with this section to the legislative policy committees
having jurisdiction over transportation matters.
SEC. 248. Section 6804 of the Public Contract Code is amended to
read:
6804. (a) For contracts awarded prior to the effective date of
either the regulations adopted by the Department of Industrial
Relations pursuant to subdivision (b) of Section 1771.55 of the Labor
Code or the fees established by the department pursuant to
subdivision (b), a transportation entity authorized to use the
design-build method of procurement shall implement a labor compliance
program, as described in Section 1771.5 of the Labor Code, or it
shall contract with a third party to implement, on the transportation
entity's behalf, a labor compliance program subject to that statute.
This requirement does not apply to a project where the
transportation entity or design-build entity has entered into any
collective bargaining agreement or agreements that bind all of the
contractors performing work on the projects.
(b) For contracts awarded on or after the effective date of both
the regulations adopted by the Department of Industrial Relations
pursuant to subdivision (b) of Section 1771.55 of the Labor Code and
the fees established by the department pursuant to this subdivision,
the transportation entity shall pay a fee to the department, in an
amount that the department shall establish, and as it may from time
to time amend, sufficient to support the department's costs in
ensuring compliance with and enforcing prevailing wage requirements
on the project, and labor compliance enforcement as set forth in
subdivision (b) of Section 1771.55 of the Labor Code. All fees
collected pursuant to this subdivision shall be deposited in the
State Public Works Enforcement Fund, created by Section 1771.3 of the
Labor Code, and shall be used only for enforcement of prevailing
wage requirements on those projects.
(c) The Department of Industrial Relations may waive the fee set
forth in subdivision (b) for a transportation entity that has
previously been granted approval by the director to initiate and
operate a labor compliance program on its projects, and that requests
to continue to operate the labor compliance program on its projects
in lieu of labor compliance by the department pursuant to subdivision
(b) of Section 1771.55 of the Labor Code. This fee shall not be
waived for a transportation entity that contracts with a third party
to initiate and enforce labor compliance programs on the
transportation entity's projects.
SEC. 249. Section 6808 of the Public Contract Code is amended to
read:
6808. (a) Notwithstanding any other provision of this chapter,
for a project authorized under subdivision (b) of Section 6802, the
department is the responsible agency for the performance of project
development services, including performance specifications,
preliminary engineering, prebid services, the preparation of project
reports and environmental documents, and construction inspection
services. The department is also the responsible agency for the
preparation of documents that may include, but need not be limited
to, the size, type, and desired design character of the project,
performance specifications covering quality of materials, equipment,
and workmanship, preliminary plans, and any other information deemed
necessary to describe adequately the needs of the transportation
entity.
(b) The department may use department employees or consultants to
perform the services described in subdivision (a), consistent with
Article XXII of the California Constitution. Department resources,
including personnel requirements, necessary for the performance of
those services shall be included in the department's capital outlay
support program for workload purposes in the annual Budget Act.
SEC. 250. Section 10295.2 of the Public Contract Code is amended
to read:
10295.2. (a) No vehicle acquisition request, vehicle purchase
order, or new contract shall be approved by the Department of General
Services for the purchase of new vehicles that would result in the
expenditure of funds unless a certification is received in writing
and signed by the secretary or director of an agency or a department,
respectively, or his or her designee, that has requested the
acquisition of the new vehicles, verifying that the purchase is vital
and mission critical for the agency or department.
(b) The certification shall include the date, title, and the
signature of the person authorizing the purchase.
SEC. 251. Section 20133 of the Public Contract Code is amended to
read:
20133. (a) A county, with approval of the board of supervisors,
may utilize an alternative procedure for bidding on construction
projects in the county in excess of two million five hundred thousand
dollars ($2,500,000) and may award the project using either the
lowest responsible bidder or by best value.
(b) (1) It is the intent of the Legislature to enable counties to
utilize design-build for buildings and county sanitation wastewater
treatment facilities. It is not the intent of the Legislature to
authorize this procedure for other infrastructure, including, but not
limited to, streets and highways, public rail transit, or water
resources facilities and infrastructures.
(2) The Legislature also finds and declares that utilizing a
design-build contract requires a clear understanding of the roles and
responsibilities of each participant in the design-build process.
(3) (A) For contracts awarded prior to either the effective date
of regulations adopted by the Department of Industrial Relations
pursuant to subdivision (b) of Section 1771.55 of the Labor Code or
the fees established by the department pursuant to subparagraph (B),
if the board of supervisors elects to proceed under this section, the
board of supervisors shall establish and enforce for design-build
projects a labor compliance program containing the requirements
outlined in Section 1771.5 of the Labor Code, or it shall contract
with a third party to operate a labor compliance program containing
the requirements outlined in Section 1771.5 of the Labor Code. This
requirement shall not apply to any project where the county or the
design-build entity has entered into any collective bargaining
agreement or agreements that bind all of the contractors performing
work on the projects.
(B) For contracts awarded on or after both the effective date of
regulations adopted by the Department of Industrial Relations
pursuant to subdivision (b) of Section 1771.55 of the Labor Code and
the fees established by the department pursuant to this subparagraph,
the board of supervisors shall pay a fee to the department, in an
amount that the department shall establish, and as it may from time
to time amend, sufficient to support the department's costs in
ensuring compliance with and enforcing prevailing wage requirements
on the project, and labor compliance enforcement as set forth in
subdivision (b) of Section 1771.55. All fees collected pursuant to
this paragraph shall be deposited in the State Public Works
Enforcement Fund created by Section 1771.3 of the Labor Code, and
shall be used only for enforcement of prevailing wages requirements
on those projects.
(C) The Department of Industrial Relations may waive the fee set
forth in subparagraph (B) if the board of supervisors has previously
been granted approval by the director to initiate and operate a labor
compliance program on its projects and requests to continue to
operate that labor compliance program on its projects in lieu of
labor compliance by the department pursuant to subdivision (b) of
Section 1771.55. The fee shall not be waived for the board of
supervisors if it contracts with a third party to initiate and
enforce labor compliance programs on its projects.
(c) As used in this section:
(1) "Best value" means a value determined by objective criteria
related to price, features, functions, and life-cycle costs.
(2) "Design-build" means a procurement process in which both the
design and construction of a project are procured from a single
entity.
(3) "Design-build entity" means a partnership, corporation, or
other legal entity that is able to provide appropriately licensed
contracting, architectural, and engineering services as needed
pursuant to a design-build contract.
(4) "Project" means the construction of a building and
improvements directly related to the construction of a building, and
county sanitation wastewater treatment facilities, but does not
include the construction of other infrastructure, including, but not
limited to, streets and highways, public rail transit, or water
resources facilities and infrastructure.
(d) Design-build projects shall progress in a four-step process,
as follows:
(1) (A) The county shall prepare a set of documents setting forth
the scope of the project. The documents may include, but are not
limited to, the size, type, and desired design character of the
public improvement, performance specifications covering the quality
of materials, equipment, and workmanship, preliminary plans or
building layouts, or any other information deemed necessary to
describe adequately the county's needs. The performance
specifications and any plans shall be prepared by a design
professional who is duly licensed and registered in California.
(B) Any architect or engineer retained by the county to assist in
the development of the project specific documents shall not be
eligible to participate in the preparation of a bid with any
design-build entity for that project.
(2) (A) Based on the documents prepared in paragraph (1), the
county shall prepare a request for proposals that invites interested
parties to submit competitive sealed proposals in the manner
prescribed by the county. The request for proposals shall include,
but is not limited to, the following elements:
(i) Identification of the basic scope and needs of the project or
contract, the expected cost range, and other information deemed
necessary by the county to inform interested parties of the
contracting opportunity, to include the methodology that will be used
by the county to evaluate proposals and specifically if the contract
will be awarded to the lowest responsible bidder.
(ii) Significant objective factors that the county reasonably
expects to consider in evaluating proposals, including cost or price
and all nonprice-related factors.
(iii) The relative importance of weight assigned to each of the
factors identified in the request for proposals.
(B) With respect to clause (iii) of subparagraph (A), if a
nonweighted system is used, the agency shall specifically disclose
whether all evaluation factors other than cost or price when combined
are:
(i) Significantly more important than cost or price.
(ii) Approximately equal in importance to cost or price.
(iii) Significantly less important than cost or price.
(C) If the county chooses to reserve the right to hold discussions
or negotiations with responsive bidders, it shall so specify in the
request for proposal and shall publish separately or incorporate into
the request for proposal applicable rules and procedures to be
observed by the county to ensure that any discussions or negotiations
are conducted in good faith.
(3) (A) The county shall establish a procedure to prequalify
design-build entities using a standard questionnaire developed by the
county. In preparing the questionnaire, the county shall consult
with the construction industry, including representatives of the
building trades and surety industry. This questionnaire shall require
information including, but not limited to, all of the following:
(i) If the design-build entity is a partnership, limited
partnership, or other association, a listing of all of the partners,
general partners, or association members known at the time of bid
submission who will participate in the design-build contract,
including, but not limited to, mechanical subcontractors.
(ii) Evidence that the members of the design-build entity have
completed, or demonstrated the experience, competency, capability,
and capacity to complete, projects of similar size, scope, or
complexity, and that proposed key personnel have sufficient
experience and training to competently manage and complete the design
and construction of the project, as well as a financial statement
that assures the county that the design-build entity has the capacity
to complete the project.
(iii) The licenses, registration, and credentials required to
design and construct the project, including information on the
revocation or suspension of any license, credential, or registration.
(iv) Evidence that establishes that the design-build entity has
the capacity to obtain all required payment and performance bonding,
liability insurance, and errors and omissions insurance.
(v) Any prior serious or willful violation of the California
Occupational Safety and Health Act of 1973, contained in Part 1
(commencing with Section 6300) of Division 5 of the Labor Code, or
the federal Occupational Safety and Health Act of 1970 (29 U.S.C.
Sec. 651 et seq.), settled against any member of the design-build
entity, and information concerning workers' compensation experience
history and worker safety program.
(vi) Information concerning any debarment, disqualification, or
removal from a federal, state, or local government public works
project. Any instance in which an entity, its owners, officers, or
managing employees submitted a bid on a public works project and were
found to be nonresponsive, or were found by an awarding body not to
be a responsible bidder.
(vii) Any instance in which the entity, or its owners, officers,
or managing employees, defaulted on a construction contract.
(viii) Any violations of the Contractors' State License Law
(Chapter 9 (commencing with Section 7000) of Division 3 of the
Business and Professions Code), excluding alleged violations of
federal or state law including the payment of wages, benefits,
apprenticeship requirements, or personal income tax withholding, or
of Federal Insurance Contributions Act (FICA; 26 U.S.C. Sec. 3101 et
seq.) withholding requirements settled against any member of the
design-build entity.
(ix) Information concerning the bankruptcy or receivership of any
member of the design-build entity, including information concerning
any work completed by a surety.
(x) Information concerning all settled adverse claims, disputes,
or lawsuits between the owner of a public works project and any
member of the design-build entity during the five years preceding
submission of a bid pursuant to this section, in which the claim,
settlement, or judgment exceeds fifty thousand dollars ($50,000).
Information shall also be provided concerning any work completed by a
surety during this period.
(xi) In the case of a partnership or an association that is not a
legal entity, a copy of the agreement creating the partnership or
association and specifying that all partners or association members
agree to be fully liable for the performance under the design-build
contract.
(xii) (I) Any instance in which the entity, or any of its members,
owners, officers, or managing employees was, during the five years
preceding submission of a bid
pursuant to this section, determined by a court of competent
jurisdiction to have submitted, or legally admitted for purposes of a
criminal plea to have submitted either of the following:
(ia) Any claim to any public agency or official in violation of
the federal False Claims Act (31 U.S.C. Sec. 3729 et seq.).
(ib) Any claim to any public official in violation of the
California False Claims Act (Article 9 (commencing with Section
12650) of Chapter 6 of Part 2 of Division 3 of the Government Code).
(II) Information provided pursuant to this subdivision shall
include the name and number of any case filed, the court in which it
was filed, and the date on which it was filed. The entity may also
provide further information regarding any such instance, including
any mitigating or extenuating circumstances that the entity wishes
the county to consider.
(B) The information required pursuant to this subdivision shall be
verified under oath by the entity and its members in the manner in
which civil pleadings in civil actions are verified. Information that
is not a public record pursuant to the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1
of the Government Code) shall not be open to public inspection.
(4) The county shall establish a procedure for final selection of
the design-build entity. Selection shall be based on either of the
following criteria:
(A) A competitive bidding process resulting in lump-sum bids by
the prequalified design-build entities. Awards shall be made to the
lowest responsible bidder.
(B) A county may use a design-build competition based upon best
value and other criteria set forth in paragraph (2). The design-build
competition shall include the following elements:
(i) Competitive proposals shall be evaluated by using only the
criteria and selection procedures specifically identified in the
request for proposal. However, the following minimum factors shall
each represent at least 10 percent of the total weight of
consideration given to all criteria factors: price, technical design,
and construction expertise, life cycle costs over 15 years or more,
skilled labor force availability, and acceptable safety record.
(ii) Once the evaluation is complete, the top three responsive
bidders shall be ranked sequentially from the most advantageous to
the least.
(iii) The award of the contract shall be made to the responsible
bidder whose proposal is determined, in writing, to be the most
advantageous.
(iv) Notwithstanding any provision of this code, upon issuance of
a contract award, the county shall publicly announce its award,
identifying the contractor to whom the award is made, along with a
written decision supporting its contract award and stating the basis
of the award. The notice of award shall also include the county's
second- and third-ranked design-build entities.
(v) For purposes of this paragraph, "skilled labor force
availability" shall be determined by the existence of an agreement
with a registered apprenticeship program, approved by the California
Apprenticeship Council, which has graduated apprentices in each of
the preceding five years. This graduation requirement shall not apply
to programs providing apprenticeship training for any craft that has
been deemed by the Department of Labor and the Department of
Industrial Relations to be an apprenticeable craft in the five years
prior to enactment of this act.
(vi) For purposes of this paragraph, a bidder's "safety record"
shall be deemed "acceptable" if its experience modification rate for
the most recent three-year period is an average of 1.00 or less, and
its average total recordable injury/illness rate and average lost
work rate for the most recent three-year period does not exceed the
applicable statistical standards for its business category or if the
bidder is a party to an alternative dispute resolution system as
provided for in Section 3201.5 of the Labor Code.
(e) (1) Any design-build entity that is selected to design and
build a project pursuant to this section shall possess or obtain
sufficient bonding to cover the contract amount for nondesign
services, and errors and omission insurance coverage sufficient to
cover all design and architectural services provided in the contract.
This section does not prohibit a general or engineering contractor
from being designated the lead entity on a design-build entity for
the purposes of purchasing necessary bonding to cover the activities
of the design-build entity.
(2) Any payment or performance bond written for the purposes of
this section shall be written using a bond form developed by the
county.
(f) All subcontractors that were not listed by the design-build
entity in accordance with clause (i) of subparagraph (A) of paragraph
(3) of subdivision (d) shall be awarded by the design-build entity
in accordance with the design-build process set forth by the county
in the design-build package. All subcontractors bidding on contracts
pursuant to this section shall be afforded the protections contained
in Chapter 4 (commencing with Section 4100) of Part 1. The
design-build entity shall do both of the following:
(1) Provide public notice of the availability of work to be
subcontracted in accordance with the publication requirements
applicable to the competitive bidding process of the county.
(2) Provide a fixed date and time on which the subcontracted work
will be awarded in accordance with the procedure established pursuant
to this section.
(g) Lists of subcontractors, bidders, and bid awards relating to
the project shall be submitted by the design-build entity to the
awarding body within 14 days of the award. These documents are deemed
to be public records and shall be available for public inspection
pursuant to this chapter and Article 1 (commencing with Section 6250)
of Chapter 3.5 of Division 7 of the Government Code.
(h) The minimum performance criteria and design standards
established pursuant to paragraph (1) of subdivision (d) shall be
adhered to by the design-build entity. Any deviations from those
standards may only be allowed by written consent of the county.
(i) The county may retain the services of a design professional or
construction project manager, or both, throughout the course of the
project in order to ensure compliance with this section.
(j) Contracts awarded pursuant to this section shall be valid
until the project is completed.
(k) Nothing in this section is intended to affect, expand, alter,
or limit any rights or remedies otherwise available at law.
(l) (1) If the county elects to award a project pursuant to this
section, retention proceeds withheld by the county from the
design-build entity shall not exceed 5 percent if a performance and
payment bond, issued by an admitted surety insurer, is required in
the solicitation of bids.
(2) In a contract between the design-build entity and the
subcontractor, and in a contract between a subcontractor and any
subcontractor thereunder, the percentage of the retention proceeds
withheld may not exceed the percentage specified in the contract
between the county and the design-build entity. If the design-build
entity provides written notice to any subcontractor who is not a
member of the design-build entity, prior to or at the time the bid is
requested, that a bond may be required and the subcontractor
subsequently is unable or refuses to furnish a bond to the
design-build entity, then the design-build entity may withhold
retention proceeds in excess of the percentage specified in the
contract between the county and the design-build entity from any
payment made by the design-build entity to the subcontractor.
(m) Each county that elects to proceed under this section and uses
the design-build method on a public works project shall submit to
the Legislative Analyst's Office before September 1, 2013, a report
containing a description of each public works project procured
through the design-build process and completed after November 1,
2009, and before August 1, 2013. The report shall include, but shall
not be limited to, all of the following information:
(1) The type of project.
(2) The gross square footage of the project.
(3) The design-build entity that was awarded the project.
(4) The estimated and actual length of time to complete the
project.
(5) The estimated and actual project costs.
(6) Whether the project was met or altered.
(7) The number and amount of project change orders.
(8) A description of any written protests concerning any aspect of
the solicitation, bid, proposal, or award of the design-build
project, including the resolution of the protests.
(9) An assessment of the prequalification process and criteria.
(10) An assessment of the effect of retaining 5-percent retention
on the project.
(11) A description of the Labor Force Compliance Program and an
assessment of the project impact, where required.
(12) A description of the method used to award the contract. If
best value was the method, the report shall describe the factors used
to evaluate the bid, including the weighting of each factor and an
assessment of the effectiveness of the methodology.
(13) An assessment of the project impact of "skilled labor force
availability."
(14) An assessment of the design-build dollar limits on county
projects. This assessment shall include projects where the county
wanted to use design-build and was precluded by the dollar
limitation. This assessment shall also include projects where the
best value method was not used due to dollar limitations.
(15) An assessment of the most appropriate uses for the
design-build approach.
(n) Any county that elects not to use the authority granted by
this section may submit a report to the Legislative Analyst's Office
explaining why the county elected not to use the design-build method.
(o) On or before January 1, 2014, the Legislative Analyst shall
report to the Legislature on the use of the design-build method by
counties pursuant to this section, including the information listed
in subdivisions (m) and (p). The report may include recommendations
for modifying or extending this section.
(p) The Legislative Analyst shall complete a fact-based analysis
of the use of the design-build method by counties pursuant to this
section, utilizing the information provided pursuant to subdivision
(m) and any independent information provided by the public or
interested parties. The Legislative Analyst shall select a
representative sample of projects under this section and review
available public records and reports, media reports, and related
information in its analysis. The Legislative Analyst shall compile
the information required to be analyzed pursuant to this subdivision
into a report, which shall be provided to the Legislature. The report
shall include conclusions describing the actual cost of projects
procured pursuant to this section, whether the project schedule was
met or altered, and whether projects needed or used project change
orders.
(q) Except as provided in this section, this act shall not be
construed to affect the application of any other law.
(r) This section shall remain in effect only until July 1, 2014,
and as of that date is repealed, unless a later enacted statute, that
is enacted before July 1, 2014, deletes or extends that date.
SEC. 252. Section 20193 of the Public Contract Code is amended to
read:
20193. (a) (1) Notwithstanding any other law and subject to the
limitations of this article, a qualified entity, with approval of its
governing body, may utilize an alternative procedure on bidding on
projects in excess of two million five hundred thousand dollars
($2,500,000).
(2) Only 20 design-build projects shall be authorized under this
article.
(3) A qualified entity may award a project using either the lowest
responsible bidder or by best value.
(4) For purposes of this article, "qualified entity" means an
entity that meets both of the following:
(A) The entity is any of the following:
(i) A city.
(ii) A county.
(iii) A city and county.
(iv) A special district.
(B) The entity operates wastewater facilities, solid waste
management facilities, or water recycling facilities.
(b) (1) For contracts awarded prior to the effective date of
either the regulations adopted by the Department of Industrial
Relations pursuant to subdivision (b) of Section 1771.55 of the Labor
Code or the fees established by the department pursuant to paragraph
(2), if a qualified entity elects to proceed under this section, the
qualified entity shall establish and enforce for design-build
projects a labor compliance program containing the requirements
outlined in Section 1771.5 of the Labor Code, or it shall contract
with a third party to operate a labor compliance program containing
the requirements outlined in Section 1771.5 of the Labor Code. This
requirement shall not apply to any project where the qualified entity
or the design-build entity has entered into any collective
bargaining agreement or agreements that bind all of the contractors
performing work on the projects.
(2) For contracts awarded on or after the effective date of both
the regulations adopted by the Department of Industrial Relations
pursuant to subdivision (b) of Section 1771.55 of the Labor Code and
the fees established by the department pursuant to this paragraph,
the qualified entity shall pay a fee to the department, in an amount
that the department shall establish, and as it may from time to time
amend, sufficient to support the department's costs in ensuring
compliance with and enforcing prevailing wage requirements on the
project, and labor compliance enforcement as set forth in subdivision
(b) of Section 1771.55 of the Labor Code. All fees collected
pursuant to this subdivision shall be deposited in the State Public
Works Enforcement Fund created by Section 1771.3 of the Labor Code,
and shall be used only for enforcement of prevailing wage
requirements on those projects.
(3) The Department of Industrial Relations may waive the fee set
forth in paragraph (2) if the qualified entity has previously been
granted approval by the director to initiate and operate a labor
compliance program on its projects and requests to continue to
operate that labor compliance program on its projects in lieu of
labor compliance by the department pursuant to subdivision (b) of
Section 1771.55. The fee shall not be waived for the qualified entity
if it contracts with a third party to initiate and enforce labor
compliance programs on its projects.
(c) As used in this section:
(1) "Best value" means a value determined by objective criteria
related to price, features, functions, small business contracting
plans, past performance, and life-cycle costs.
(2) "Design-build" means a procurement process in which both the
design and construction of a project are procured from a single
entity.
(3) "Design-build entity" means a partnership, corporation, or
other legal entity that is able to provide appropriately licensed
contracting, architectural, and engineering services as needed
pursuant to a design-build contract.
(4) "Project" means the construction of regional and local
wastewater treatment facilities, regional and local solid waste
facilities, or regional and local water recycling facilities.
(d) Design-build projects shall progress in a four-step process,
as follows:
(1) (A) The qualified entity shall prepare a set of documents
setting forth the scope of the project. The documents may include,
but are not limited to, the size, type, and desired design character
of the project and site, performance specifications covering the
quality of materials, equipment, and workmanship, preliminary plans
or project layouts, or any other information deemed necessary to
describe adequately the qualified entity's needs. The performance
specifications and any plans shall be prepared by a design
professional who is duly licensed and registered in California.
(B) Any architect or engineer retained by the qualified entity to
assist in the development of the project specific documents shall not
be eligible to participate in the preparation of a bid with any
design-build entity for that project.
(2) (A) Based on the documents prepared in paragraph (1), the
qualified entity shall prepare a request for proposals that invites
interested parties to submit competitive sealed proposals in the
manner prescribed by the qualified entity. The request for proposals
shall include, but is not limited to, the following elements:
(i) Identification of the basic scope and needs of the project or
contract, the expected cost range, and other information deemed
necessary by the qualified entity to inform interested parties of the
contracting opportunity, to include the methodology that will be
used by the qualified entity to evaluate proposals and specifically
if the contract will be awarded to the lowest responsible bidder.
(ii) Significant factors that the qualified entity reasonably
expects to consider in evaluating proposals, including cost or price
and all nonprice-related factors.
(iii) The relative importance of weight assigned to each of the
factors identified in the request for proposals.
(B) With respect to clause (iii) of subparagraph (A), if a
nonweighted system is used, the qualified entity shall specifically
disclose whether all evaluation factors other than cost or price when
combined are:
(i) Significantly more important than cost or price.
(ii) Approximately equal in importance to cost or price.
(iii) Significantly less important than cost or price.
(C) If the qualified entity chooses to reserve the right to hold
discussions or negotiations with responsive bidders, it shall so
specify in the request for proposal and shall publish separately or
incorporate into the request for proposal applicable rules and
procedures to be observed by the qualified entity to ensure that any
discussions or negotiations are conducted in good faith.
(3) (A) The qualified entity shall establish a procedure to
prequalify design-build entities using a standard questionnaire
developed by the qualified entity. In preparing the questionnaire,
the qualified entity shall consult with the construction industry,
including representatives of the building trades and surety industry.
This questionnaire shall require information including, but not
limited to, all of the following:
(i) If the design-build entity is a partnership, limited
partnership, or other association, a listing of all of the partners,
general partners, or association members known at the time of bid
submission who will participate in the design-build contract,
including, but not limited to, mechanical subcontractors.
(ii) Evidence that the members of the design-build entity have
completed, or demonstrated the experience, competency, capability,
and capacity to complete projects of similar size, scope, or
complexity, and that proposed key personnel have sufficient
experience and training to competently manage and complete the design
and construction of the project, as well as a financial statement
that assures the special district that the design-build entity has
the capacity to complete the project.
(iii) The licenses, registration, and credentials required to
design and construct the project, including information on the
revocation or suspension of any license, credential, or registration.
(iv) Evidence that establishes that the design-build entity has
the capacity to obtain all required payment and performance bonding,
liability insurance, and errors and omissions insurance.
(v) Any prior serious or willful violation of the California
Occupational Safety and Health Act of 1973, contained in Part 1
(commencing with Section 6300) of Division 5 of the Labor Code or the
federal Occupational Safety and Health Act of 1970 (29 U.S.C. Sec.
651 et seq.), settled against any member of the design-build entity,
and information concerning workers' compensation experience history
and worker safety program.
(vi) Information concerning any debarment, disqualification, or
removal from a federal, state, or local government public works
project. Any instance where an entity, its owners, officers, or
managing employees submitted a bid on a public works project and were
found to be nonresponsive, or were found by an awarding body not to
be a responsible bidder.
(vii) Any instance where the entity, its owner, officers, or
managing employees defaulted on a construction contract.
(viii) Any violations of the Contractors' State License Law
(Chapter 9 (commencing with Section 7000) of Division 3 of the
Business and Professions Code), excluding alleged violations of
federal or state law including the payment of wages, benefits,
apprenticeship requirements, or personal income tax withholding, or
of Federal Insurance Contribution Act (FICA) withholding requirements
settled against any member of the design-build entity.
(ix) Information concerning the bankruptcy or receivership of any
member of the design-build entity, including information concerning
any work completed by a surety.
(x) Information concerning all settled adverse claims, disputes,
or lawsuits between the owner of a public works project and any
member of the design-build entity during the five years preceding
submission of a bid pursuant to this section, in which the claim,
settlement, or judgment exceeds fifty thousand dollars ($50,000).
Information shall also be provided concerning any work completed by a
surety during this period.
(xi) In the case of a partnership or other association, that is
not a legal entity, a copy of the agreement creating the partnership
or association and specifying that all partners or association
members agree to be fully liable for the performance under the
design-build contract.
(B) The information required pursuant to this subdivision shall be
verified under oath by the entity and its members in the manner in
which civil pleadings in civil actions are verified. Information that
is not a public record pursuant to the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1
of the Government Code) shall not be open to public inspection.
(4) The qualified entity shall establish a procedure for final
selection of the design-build entity. Selection shall be based on
either of the following criteria:
(A) A competitive bidding process resulting in lump-sum bids by
the prequalified design-build entities. Awards shall be made to the
lowest responsible bidder.
(B) A qualified entity may use a design-build competition based
upon best value and other criteria set forth in paragraph (2) of
subdivision (d). The design-build competition shall include the
following elements:
(i) Competitive proposals shall be evaluated by using only the
criteria and selection procedures specifically identified in the
request for proposal. However, the following minimum factors shall
each represent at least 10 percent of the total weight of
consideration given to all criteria factors; price, technical design
and construction expertise, life-cycle costs over 15 years or more,
skilled labor force availability, and acceptable safety record.
(ii) Once the evaluation is complete, the top three responsive
bidders shall be ranked sequentially from the most advantageous to
the least.
(iii) The award of the contract shall be made to the responsible
bidder whose proposal is determined, in writing, to be the most
advantageous.
(iv) Notwithstanding any provision of this code, upon issuance of
a contract award, the qualified entity shall publicly announce its
award, identifying the contractor to which the award is made, along
with a written decision supporting its contract award and stating the
basis of the award. The notice of award shall also include the
qualified entity's second- and third-ranked design-build entities.
(v) For purposes of this paragraph, "skilled labor force
availability" shall be determined by the existence of an agreement
with a registered apprenticeship program, approved by the California
Apprenticeship Council, which has graduated apprentices in each of
the preceding five years. This graduation requirement shall not apply
to programs providing apprenticeship training for any craft that has
been deemed by the Department of Labor and the Department of
Industrial Relations to be an apprenticeable craft in the five years
prior to enactment of this act.
(vi) For purposes of this paragraph, a bidder's "safety record"
shall be deemed "acceptable" if their experience modification rate
for the most recent three-year period is an average of 1.00 or less,
and their average total recordable injury/illness rate and average
lost work rate for the most recent three-year period does not exceed
the applicable statistical standards for its business category, or if
the bidder is a party to an alternative dispute resolution system as
provided for in Section 3201.5 of the Labor Code.
(e) (1) Any design-build entity that is selected to design and
build a project pursuant to this section shall possess or obtain
sufficient bonding to cover the contract amount for nondesign
services, and errors and omissions insurance coverage sufficient to
cover all design and architectural services provided in the contract.
This section does not prohibit a general or engineering contractor
from being designated the lead entity on a design-build entity for
the purposes of purchasing necessary bonding to cover the activities
of the design-build entity.
(2) Any payment or performance bond written for the purposes of
this section shall be written using a bond form developed by the
qualified entity.
(f) All subcontractors that were not listed by the design-build
entity in accordance with clause (i) of subparagraph (A) of paragraph
(3) of subdivision (d) shall be awarded by the design-build entity
in accordance with the design-build process set forth by the
qualified entity in the design-build package. All subcontractors
bidding on contracts pursuant to this section shall be afforded the
protections contained in Chapter 4 (commencing with Section 4100) of
Part 1. The design-build entity shall do both of the following:
(1) Provide public notice of the availability of work to be
subcontracted in accordance with the publication requirements
applicable to the competitive bidding process of the qualified
entity.
(2) Provide a fixed date and time on which the subcontracted work
will be awarded in accordance with the procedure established pursuant
to this section.
(g) The minimum performance criteria and design
standards established pursuant to paragraph (1) of subdivision (d)
shall be adhered to by the design-build entity. Any deviations from
those standards may only be allowed by written consent of the
qualified entity.
(h) The qualified entity may retain the services of a design
professional or construction project manager, or both, throughout the
course of the project in order to ensure compliance with this
section.
(i) Contracts awarded pursuant to this section shall be valid
until the project is completed.
(j) Nothing in this section is intended to affect, expand, alter,
or limit any rights or remedies otherwise available at law.
(k) (1) If the qualified entity elects to award a project pursuant
to this section, retention proceeds withheld by the qualified entity
from the design-build entity shall not exceed 5 percent if a
performance and payment bond, issued by an admitted surety insurer,
is required in the solicitation of bids.
(2) In a contract between the design-build entity and the
subcontractor, and in a contract between a subcontractor and any
subcontractor thereunder, the percentage of the retention proceeds
withheld may not exceed the percentage specified in the contract
between the qualified entity and the design-build entity. If the
design-build entity provides written notice to any subcontractor who
is not a member of the design-build entity, prior to or at the time
the bid is requested, that a bond may be required and the
subcontractor subsequently is unable or refuses to furnish a bond to
the design-build entity, then the design-build entity may withhold
retention proceeds in excess of the percentage specified in the
contract between the qualified entity and the design-build entity
from any payment made by the design-build entity to the
subcontractor.
(l) Each qualified entity that elects to proceed under this
section and uses the design-build method on a public works project
shall do both of the following:
(1) Notify the Legislative Analyst's Office upon initiation of the
project and upon completion of the project.
(2) Submit to the Legislative Analyst's Office, upon completion of
the project, a report containing a description of the public works
project procured through the design-build process pursuant to this
section and completed after January 1, 2009. The report shall
include, but shall not be limited to, all of the following
information:
(A) The type of project.
(B) The gross square footage of the project.
(C) The design-build entity that was awarded the project.
(D) The estimated and actual project costs.
(E) A description of any written protests concerning any aspect of
the solicitation, bid, proposal, or award of the design-build
project, including the resolution of the protests.
(F) An assessment of the prequalification process and criteria.
(G) An assessment of the effect of retaining 5-percent retention
on the project.
(H) A description of the Labor Force Compliance Program and an
assessment of the project impact, where required.
(I) A description of the method used to award the contract. If
best value was the method, the report shall describe the factors used
to evaluate the bid, including the weighting of each factor and an
assessment of the effectiveness of the methodology.
(J) An assessment of the project impact of "skilled labor force
availability."
(K) An assessment of the most appropriate uses for the
design-build approach.
(m) Any qualified entity that elects not to use the authority
granted by this section may submit a report to the Legislative
Analyst's Office explaining why the qualified entity elected to not
use the design-build method.
(n) (1) In order to comply with paragraph (2) of subdivision (a),
the Office of Planning and Research is required to maintain the list
of entities that have applied and are eligible to be qualified for
this authority.
(2) Each entity that is interested in proceeding under the
authority in this section must apply to the Office of Planning and
Research.
(A) The application to proceed must be in writing.
(B) An entity must have complied with the California Environmental
Quality Act review process pursuant to Division 13 (commencing with
Section 21000) of the Public Resources Code prior to its application,
and must include its approved notice of determination or notice of
completion in its application.
(3) The Office of Planning and Research must approve or deny an
application, in writing, within 30 days. The authority to deny an
application shall only be exercised if the conditions set forth in
either or both paragraph (2) of subdivision (a) and subparagraph (B)
of paragraph (2) of this subdivision have not been satisfied.
(4) An entity utilizing this section must, after it determines it
no longer is interested in using this authority, notify the Office of
Planning and Research in writing within 30 days of its
determination. Upon notification, the Office of Planning and Research
may contact any previous applicants, denied pursuant to paragraph
(2) of subdivision (a), to inform them of the availability to proceed
under this section.
(o) The Legislative Analyst shall report to the Legislature on the
use of the design-build method by qualified entities pursuant to
this section, including the information listed in subdivision (l).
The report may include recommendations for modifying or extending
this section, and shall be submitted on either of the following
dates, whichever occurs first:
(1) Within one year of the completion of the 20 projects, if the
projects are completed prior to January 1, 2019.
(2) No later than January 1, 2020.
SEC. 253. The heading of Article 32 (commencing with Section
20520) of Chapter 1 of Part 3 of Division 2 of the Public Contract
Code is amended to read:
Article 32. City Councils--Municipal Lighting Maintenance
District Act of 1927
SEC. 254. Section 667 of the Public Resources Code is amended to
read:
667. Each member of the board shall receive one hundred dollars
($100) for each day during which the member is engaged in the
performance of official duties. The compensation of each member,
except the compensation of the chair, shall not, however, exceed in
any one fiscal year the sum of four thousand dollars ($4,000). The
chair of the board may receive compensation not to exceed five
thousand dollars ($5,000) in any one fiscal year for the performance
of official duties. In addition to the compensation, each member
shall be reimbursed for necessary traveling and other expenses
incurred in the performance of official duties.
SEC. 255. Section 4186 of the Public Resources Code is amended to
read:
4186. All moneys that are received by the state pursuant to the
federal Clarke-McNary Act and that are regularly allotted by the
federal government according to an annual formula shall be paid into
the General Fund. Any supplemental money received from the federal
government pursuant to the federal Clarke-McNary Act for use by the
department for specially designated projects shall be authorized by
the Director of Finance for augmentation of the subitem captioned
"Reimbursements" of the principal item of appropriation from the
General Fund for the support of the department contained in the
Budget Act for the fiscal year during which the supplemental money is
received. However, the Director of Finance shall not authorize the
augmentation sooner than 30 days after notification in writing of the
necessity for the augmentation to the chairperson of the committee
in each house that considers appropriations and to the Chairperson of
the Joint Legislative Budget Committee or sooner than whatever
lesser time which the chairperson of that committee, or the
chairperson's designee, may in each instance determine.
SEC. 256. Section 4512.5 of the Public Resources Code is amended
to read:
4512.5. The Legislature finds and declares all of the following:
(a) State forests play a critical and unique role in the state's
carbon balance by sequestering carbon dioxide from the atmosphere and
storing it long term as carbon.
(b) According to the scoping plan adopted by the State Air
Resources Board pursuant to the California Global Warming Solutions
Act of 2006 (Division 25.5 (commencing with Section 38500) of the
Health and Safety Code), the state's forests currently are an annual
net sequester of five million metric tons of carbon dioxide
(5MMTCO2). In fact, the forest sector is the only sector included in
the scoping plan that provides a net sequestration of greenhouse gas
emissions.
(c) The scoping plan proposes to maintain the current 5MMTCO2
annual sequestration rate through 2020 by implementing "sustainable
management practices," which include potential changes to existing
forest practices and land use regulations.
(d) There is increasing evidence that climate change has and will
continue to stress forest ecosystems, which underscores the
importance of proactively managing forests so that they can adapt to
these stressors and remain a net sequester of carbon dioxide.
(e) The board, the department, and the State Air Resources Board
should strive to go beyond the status quo sequestration rate and
ensure that their policies and regulations reflect the unique role
forests play in combating climate change.
SEC. 257. Section 4590 of the Public Resources Code, as amended by
Section 2 of Chapter 376 of the Statutes of 2010, is amended to
read:
4590. (a) (1) A timber harvesting plan approved on or after
January 1, 2012, is effective for a period of not more than three
years, unless extended pursuant to paragraph (2).
(2) A timber harvesting plan, on which timber operations have
commenced but not been completed, may be extended by amendment for a
one-year period in order to complete the timber operations, up to a
maximum of two 1-year extensions, if both of the following occur:
(A) Good cause is shown.
(B) All timber operations are in conformance with the plan, this
chapter, and all applicable rules and regulations, upon the filing of
the notice of extension as required by this section.
(b) The extension shall apply to any area covered by the plan for
which a report has not been submitted under Section 4585. The notice
of extension shall be provided to the department not sooner than 30
days, but at least 10 days, prior to the expiration date of the plan.
The notice shall include the circumstances that prevented a timely
completion of the timber operations under the plan and, consistent
with Section 4583, an agreement to comply with this chapter and the
rules and regulations of the board as these exist on the date the
extension notice is filed.
(c) Stocking work may continue for more than the effective period
of the plan under subdivision (a), but shall be completed within five
years after the conclusion of other work.
(d) A timber harvesting plan that is approved on or after January
1, 2010, to December 31, 2011, inclusive, may be extended by
amendment for a two-year period in order to complete the timber
operations, up to a maximum of two 2-year extensions, if the plan
complies with subparagraphs (A) and (B) of paragraph (2) of
subdivision (a) and the notice of extension, pursuant to subdivision
(b), includes written certification by a registered professional
forester that neither of the conditions in subdivision (e) has
occurred.
(e) The department shall not approve an extension pursuant to
subdivision (d) if either of the following has occurred:
(1) Listed species, as defined in Article 1 (commencing with
Section 2050) of Chapter 1.5 of Division 3 of the Fish and Game Code
or the federal Endangered Species Act (16 U.S.C. Sec. 1531 et seq.),
have been discovered in the logging area of the plan since approval
of the timber harvesting plan.
(2) Significant physical changes to the harvest area or adjacent
areas have occurred since the timber harvesting plan's cumulative
impacts were originally assessed.
(f) An extension of a timber harvesting plan on which either of
the conditions in subdivision (e) has occurred may be obtained only
pursuant to Section 1039 of Title 14 of the California Code of
Regulations. Notwithstanding the notice provision of subdivision (b),
for purposes of this subdivision the notice of extension shall be
provided to the department, not sooner than 140 days, but at least 10
days, prior to the expiration date of the plan.
(g) This section shall become operative on January 1, 2012.
SEC. 258. Section 5073.5 of the Public Resources Code is amended
to read:
5073.5. (a) The Governor shall establish a California
Recreational Trails Committee to advise the director in the
development and coordination of the system. The committee shall
consist of seven members appointed by the Governor. Two members shall
be selected from the northern, two members from the southern, and
two members from the central portions of the state, and one member
shall be selected at large. Members shall be selected from lists
submitted by private organizations that have a demonstrated interest
in the establishment of recreational trails. The chair of the
committee shall be elected by the members from their membership.
(b) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
SEC. 259. Section 6308 of the Public Resources Code is amended to
read:
6308. If an action or proceeding is commenced by or against a
county, city, or other political subdivision or agency of the state
involving the title to or the boundaries of tidelands or submerged
lands that have been or may hereafter be granted to it in trust by
the Legislature, the State of California shall be joined as a
necessary party defendant in the action or proceeding. Service of
summons shall be made upon the Chair of the State Lands Commission
and upon the Attorney General, and the Attorney General shall
represent the state in all the actions or proceedings. If judgment is
given against the state in the action or proceeding, costs shall not
be recovered from the state.
SEC. 260. Section 6362 of the Public Resources Code is amended to
read:
6362. (a) There is hereby granted in trust to the City of
Pittsburg all of the right, title, and interest of the state held by
the state by virtue of its sovereignty in and to all tidelands and
submerged lands, whether filled or unfilled, situated within the
boundaries of the City of Pittsburg as those boundaries exist on
January 1, 2007.
(b) The trust lands shall be held by the trustee and its
successors in trust for the benefit of all the people of the state
for public trust purposes, as more particularly provided in this
article.
(c) This trust grant is subject to the following express
conditions:
(1) The use of the trust lands shall be in conformity with the
public trust and the plan, and shall be without cost to the state.
(2) The trustee or its successors shall not at any time grant,
convey, give, or otherwise alienate the trust lands, or any part of
the trust lands, to any person, firm, entity, or corporation for any
purposes whatsoever. The trustee may lease the trust lands, or any
part of the trust lands, for limited periods, not exceeding 66 years,
for purposes consistent with the public trust and the plan. The
trustee may collect and retain rents and other trust revenues from
those leases, under rules and regulations adopted by the trustee.
(3) In the management, conduct, operation, and control of the
trust lands, or any improvements, betterments, or structures on the
trust lands, the trustee or its successors shall make no illegal
discrimination in rates, tolls, or charges for any use or service in
connection herewith, nor shall the trustee discriminate against or
unlawfully segregate any person or group of persons on account of
sex, race, color, creed, national origin, ancestry, or physical
handicap for any use or service in connection herewith.
(4) The state shall have the right to use, without charge, any
transportation, landing, or storage improvements, betterments, or
structures constructed upon the trust lands for any vessel or other
watercraft or railroad owned or operated by or under contract to the
state.
(5) The state shall have the right, at any time in the future, to
use the trust lands or any portion of the trust lands for any
authorized public use without compensation to the trustee, its
successors or assigns, or any person, firm, or public or private
corporation claiming under it, except that in the event improvements
have been placed with legal authority upon the property taken by the
state, compensation shall be made to the person entitled to
compensation for the value of the interest in the improvements taken
or the damages to that interest.
(6) There is reserved to the people of the state the right to fish
in the waters over the trust lands, with the right to convenient
access to those waters over the trust lands for that purpose.
(7) There is excepted and reserved to the state all remains or
artifacts of archaeological and historical significance and all
deposit of minerals, including, but not limited to, all substances
specified in Section 6407, in the trust lands, and the right to
prospect for, mine, and remove those deposits from the lands.
(8) This grant is made subject to the rights of any and all
persons under any title derived from the state or any of its agencies
in or to any part of the trust lands.
(9) A survey of the trust lands pursuant to Sections 6358 and 6359
shall be completed and recorded by the commission by January 1,
2013. The cost of the survey and recordation shall be paid according
to Sections 6358 and 6359.
(10) Brown's Island is exempted from this act and is a not part of
the grant.
SEC. 261. Section 7555 of the Public Resources Code is amended to
read:
7555. (a) In a case in which the state has sold lands acquired by
it as swamp and overflowed lands, the person claiming or deraigning
title to any lands through or under a purchase of the lands from the
state may bring suit against the state in a court of competent
jurisdiction of the state to establish the boundaries of, and to
quiet title to, the land or a portion of the land, and may prosecute
the suit to final judgment. The complaint in the action shall contain
a plat of the property described in the complaint, which plat shall
show the location of the property in respect to a section corner, the
location of which is shown on an approved United States government
township plat, or in respect to a monument that has been established
by reference to a section corner.
(b) Service of summons in the suits shall be made upon the Chair
of the State Lands Commission and upon the Attorney General, and the
Attorney General shall represent the state in the suits.
(c) Costs against the state shall not be allowed in the suit.
SEC. 262. Section 14574 of the Public Resources Code, as added by
Section 3 of Chapter 5 of the 8th Extraordinary Session of the
Statutes of 2010, is amended to read:
14574. (a) (1) A distributor of beverage containers shall pay to
the department the redemption payment for every beverage container,
other than a refillable beverage container, sold or transferred to a
dealer, less 1.5 percent for the distributor's administrative costs.
(2) The payment made by a distributor shall be made not later than
the last day of the third month following the sale. The distributor
shall make the payment in the form and manner that the department
prescribes.
(b) (1) Notwithstanding subdivision (a), if a distributor displays
a pattern of operation in compliance with this division and the
regulations adopted pursuant to this division, to the satisfaction of
the department, the distributor may make a single annual payment of
redemption payments, if the distributor's projected redemption
payment for a calendar year totals less than seventy-five thousand
dollars ($75,000).
(2) An annual redemption payment made pursuant to this subdivision
is due and payable on or before February 1 for every beverage
container sold or transferred by the distributor to a dealer in the
previous calendar year.
(3) A distributor shall notify the department of its intent to
make an annual redemption payment pursuant to this subdivision on or
before January 31 of the calendar year for which the payment will be
due.
(c) This section shall become effective on July 1, 2012.
SEC. 263. Section 29735 of the Public Resources Code is amended to
read:
29735. There is hereby created the Delta Protection Commission
consisting of 15 members as follows:
(a) One member of the board of supervisors, or his or her
designee, of each of the five counties within the Delta whose
supervisorial district is within the primary zone shall be appointed
by the board of supervisors of each of those respective counties.
(b) (1) Two elected city council members shall be selected and
appointed by city selection committees, from the appropriate regions
specified in subparagraphs (A) and (B), one in each of the following
areas:
(A) One from the south Delta, consisting of the County of San
Joaquin.
(B) One from the west Delta, from either the County of Contra
Costa or the County of Solano, on a rotating basis.
(2) One elected city council member shall be selected and
appointed by city selection committees, from regional and area
councils of government from the north Delta, consisting of the
Counties of Yolo and Sacramento.
(3) A city council member appointed pursuant to this subdivision
may select a designee for purposes of this subdivision.
(4) Notwithstanding Section 29736, the term of office of the
members selected pursuant to this subdivision shall be two years.
(c) One member each from the board of directors of three different
reclamation districts that are located within the primary zone who
are residents of the Delta, and who are elected by the trustees of
reclamation districts pursuant to paragraphs (1), (2), and (3). Each
reclamation district may nominate one director to be a member. The
member from an area described in paragraph (1), (2), or (3) shall be
selected from among the nominees by a majority vote of the
reclamation districts in that area. A member selected pursuant to
this subdivision may select a designee for this purpose. For the
purposes of this section, each reclamation district shall have one
vote. Reclamation district members shall consist of the following:
(1) One member from the area of the North Delta Water Agency as
described in Section 9.1 of the North Delta Water Agency Act (Chapter
283 of the Statutes of 1973).
(2) One member from an area including the west Delta consisting of
the area of the County of Contra Costa within the Delta and within
the Central Delta Water Agency as described in Section 9.1 of the
Central Delta Water Agency Act (Chapter 1133 of the Statutes of
1973).
(3) One member from the area of the South Delta Water Agency as
described in Section 9.1 of the South Delta Water Agency Act (Chapter
1089 of the Statutes of 1973).
(d) The Secretary of Food and Agriculture, or the secretary's sole
designee.
(e) The executive officer of the State Lands Commission, or the
executive officer's sole designee.
(f) The Secretary of the Natural Resources Agency, or his or her
sole designee.
(g) The Secretary of Business, Transportation and Housing, or his
or her sole designee.
SEC. 264. Section 32330 of the Public Resources Code is amended to
read:
32330. The board shall consist of 11 voting members and two
nonvoting members, appointed or designated as follows:
(a) The 11 voting members of the board shall consist of all of the
following:
(1) The Secretary of the Natural Resources Agency, or his or her
designee.
(2) The Director of Finance, or his or her designee.
(3) One member of the board or a designee who is appointed by the
Contra Costa County Board of Supervisors, who is a resident of that
county.
(4) One member of the board or a designee who is appointed by the
Sacramento County Board of Supervisors, who is a resident of that
county.
(5) One member of the board or a designee who is appointed by the
San Joaquin County Board of Supervisors, who is a resident of that
county.
(6) One member of the board or a designee who is appointed by the
Solano County Board of Supervisors, who is a resident of that county.
(7) One member of the board or a designee who is appointed by the
Yolo County Board of Supervisors, who is a resident of that county.
(8) Two public members appointed by the Governor, subject to
confirmation by the Senate.
(9) One public member appointed by the Senate Committee on Rules.
(10) One public member appointed by the Speaker of the Assembly.
(b) The two nonvoting members shall consist of a Member of the
Senate, appointed by the Senate Committee on Rules, and a Member of
the Assembly, appointed by the Speaker of the Assembly. The members
appointed under this subdivision shall meet with the conservancy and
participate in its activities to the extent that this participation
is not incompatible with their positions as Members of the
Legislature. The appointed members shall represent a district that
encompasses a portion of the Delta.
(c) Ten liaison advisers who shall serve in an advisory, nonvoting
capacity shall consist of all of the following:
(1) One representative of the United States Fish and Wildlife
Service, designated by the United States Secretary of the Interior.
(2) One representative of the United States National Marine
Fisheries Service, designated by the United States Secretary of
Commerce.
(3) One representative of the United States Bureau of Reclamation,
designated by the United States Secretary of the Interior.
(4) One representative of the United States Army Corps of
Engineers, designated by the Commanding Officer, United States Army
Corps of Engineers, South Pacific Division.
(5) A designee of the San Francisco Bay Conservation and
Development Commission for coordination purposes.
(6) A designee of the State Coastal Conservancy for coordination
purposes.
(7) A designee of the Suisun Resource Conservation District for
coordination purposes.
(8) A designee of the Central Valley Flood Protection Board.
(9) A designee of the Yolo Basin Foundation.
(10) A designee of the Delta Protection Commission.
(d) The public members appointed by the Governor shall serve for a
term of four years, with a two-term limit.
(e) The locally appointed members and alternates shall serve at
the pleasure of the appointing board of supervisors.
(f) The public members appointed by the Senate Committee on Rules
or the Speaker of the Assembly shall serve for a term of four years,
with a two-term limit.
(g) The Members of the Senate and Assembly shall serve at the
pleasure of the appointing body.
(h) Alternates for members appointed pursuant to paragraphs (3) to
(7), inclusive, of subdivision (a) may be appointed by the
respective county boards of supervisors.
SEC. 265. Section 41800 of the Public Resources Code is amended to
read:
41800. (a) Except as provided in subdivision (b), within 120 days
from the date of receipt of a countywide or regional integrated
waste management plan that the department has determined to be
complete, or an element of the plan that the department has
determined to be complete, the department shall determine whether the
plan or element is in compliance with Article 2 (commencing with
Section 40050) of Chapter 1 of Part 1, Chapter 2 (commencing with
Section 41000), and Chapter 5 (commencing with Section 41750), and,
based upon that determination, the department shall approve,
conditionally approve, or disapprove the plan or element.
(b) (1) Within 120 days from the date of receipt of a city,
county, or regional agency nondisposal facility element that the
department has determined to be complete, and within 60 days from the
date of receipt of an amendment to a city, county, or regional
agency nondisposal facility element, the department shall determine
whether the element, which the department has determined to be
complete, or amendment is in compliance with Chapter 4.5 (commencing
with Section 41730) and Article 1 (commencing with Section 41780) of
Chapter 6, and, based upon that determination, the department shall
approve, conditionally approve, or disapprove the element or
amendment within that time period.
(2) In reviewing the element or amendment, the department shall:
(A) Not consider the estimated capacity of the facility or
facilities in the element or amendment unless the department
determines that this information is needed to determine whether the
element or amendment meets the requirements of Article 1 (commencing
with Section 41780) of Chapter 6.
(B) Recognize that individual facilities represent portions of
local plans or programs that are designed to achieve the diversion
requirements of Section 41780 and therefore may not arbitrarily
require new or expanded diversion at proposed facilities.
(C) Not disapprove an element or amendment that includes a
transfer station or other facility solely because the facility does
not contribute toward the jurisdiction's efforts to comply with
Section 41780.
(c) If the department does not act to approve, conditionally
approve, or disapprove an element that the department has determined
to be complete within 120 days, or an amendment that the department
has determined to be complete within 60 days, the department shall be
deemed to have approved the element or amendment.
SEC. 266. Section 44820 of the Public Resources Code is amended to
read:
44820. (a) Except as provided in subdivision (c), the board shall
adopt, by regulation, a permitting, inspection, and enforcement
program for the disposal of asbestos containing waste, as specified
in Section 25143.7 of the Health and Safety Code, at a solid waste
facility or disposal site subject to regulation pursuant to this
part. The program may include, but is not limited to, standards and
certification requirements for local enforcement agencies, pursuant
to which the board may delegate authority for the regulation of
asbestos containing waste to local enforcement agencies.
(b) On or before March 1, 1995, or the earliest feasible date
thereafter, the board and the Department of Toxic Substances Control
shall enter into a memorandum of understanding that defines the
enforcement responsibilities of each agency for the disposal of
asbestos containing waste at a solid waste disposal facility or
disposal site subject to regulation pursuant to this part. The
memorandum of understanding shall be periodically updated to be
consistent with each agency's responsibilities pursuant to this
section and Chapter 6.5 (commencing with Section 25100) of Division
20 of the Health and Safety Code.
(c) Until the board has adopted regulations pursuant to
subdivision (a), the Department of Toxic Substances Control shall
regulate asbestos containing waste at a solid waste facility or
disposal site.
(d) Any regulations adopted pursuant to this section shall be
deemed emergency regulations and shall be adopted in accordance with
the Administrative Procedure Act (Chapter 3.5 (commencing with
Section 11340) of Division 3 of Title 2 of the Government Code). The
adoption of these regulations shall be deemed to be necessary for the
immediate preservation of the public peace, health, safety, or
general welfare.
SEC. 267. Section 71560 of the Public Resources Code is amended to
read:
71560. (a) The endowment may receive charitable contributions or
any sources of income that may be lawfully received, including loans
from the state.
(b) The endowment shall administer any funds it receives in
accordance with this division.
(c) (1) Except as provided in paragraph (2), the endowment shall
invest and manage any funds it receives so that the investments shall
provide a source of income in perpetuity and the principal amount
consisting of charitable contributions and donations, including cost
savings donated pursuant to Section 6618 of the Fish and Game Code,
shall not be spent. Any returns on investments made by the endowment
are the only funds that shall be available for expenditure by the
endowment.
(2) Ten percent of any funds received by the endowment pursuant to
Section 6618 of the Fish and Game Code in a calendar year shall be
allocated by the endowment board, pursuant to Section 71552, as
grants for projects or programs consistent with the purpose of this
chapter within 24 months of receipt of the funds. The majority of
these funds shall be granted to state agencies engaged in coastal and
ocean protection.
(d) The endowment shall invest and manage any funds it receives in
accordance with the Nonprofit Public Benefit Corporation Law (Part 2
(commencing with Section 5110) of Division 2 of Title 1 of the
Corporations Code).
(e) The accounts of the endowment shall be audited annually in
accordance with generally accepted auditing standards by independent
certified public accountants.
(f) The financial transactions of the endowment for any fiscal
year may be audited by the Bureau of State Audits.
(g) Each recipient of assistance by grant, contract, or loan
pursuant to this division shall keep records reasonably necessary to
disclose fully the amount of the assistance, the disposition of the
assistance, the total cost of the project or undertaking in
connection with which the assistance is given or used, the amount and
nature of that portion of the cost of the project or undertaking
supplied by other sources, and other records that will facilitate an
effective audit. Each recipient of a fixed price contract awarded
pursuant to competitive bidding procedures is exempt from this
subdivision.
(h) The endowment, or its authorized representative, and the
Bureau of State Audits shall have access to any records necessary for
the purpose of auditing and examining all funds received or expended
by the recipients of assistance.
SEC. 268. Section 345.5 of the Public Utilities Code is amended to
read:
345.5. (a) The Independent System Operator, as a nonprofit,
public benefit corporation, shall conduct its operations consistent
with applicable state and federal laws and consistent with the
interests of the people of the state.
(b) To ensure the reliability of electric service and the health
and safety of the public, the Independent System Operator shall
manage the transmission grid and related energy markets in a manner
that is consistent with all of the following:
(1) Making the most efficient use of available energy resources.
For purposes of this section, "available energy resources" include
energy, capacity, ancillary services, and demand bid into markets
administered by the Independent System Operator. "Available energy
resources" do not include a schedule submitted to the Independent
System Operator by an electrical corporation or a local publicly
owned electric utility to meet its own customer load.
(2) Reducing, to the extent possible, overall economic cost to the
state's consumers.
(3) Applicable state law intended to protect the public's health
and the environment.
(4) Maximizing availability of existing electric generation
resources necessary to meet the needs of the state's electricity
consumers.
(c) The Independent System Operator shall do all of the following:
(1) Consult and coordinate with appropriate state and local
agencies to ensure that the Independent System Operator operates in
furtherance of state law regarding consumer and environmental
protection.
(2) Ensure that the purposes and functions of the Independent
System Operator are consistent with the purposes and functions of
nonprofit, public benefit corporations in the state, including duties
of care and conflict-of-interest standards for officers and
directors of a corporation.
(3) Maintain open meeting standards and meeting notice
requirements consistent with the general policies of the Bagley-Keene
Open Meeting Act (Article 9 (commencing with Section 11120) of
Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code)
and affording the public the greatest possible access, consistent
with other duties of the corporation. The Independent System Operator'
s Open Meeting Policy, as adopted on April 23, 1998, and in effect as
of May 1, 2002, meets the requirements of this paragraph. The
Independent System Operator shall maintain a policy that is no less
consistent with the Bagley-Keene Open Meeting Act than its policy in
effect as of May 1, 2002.
(4) Provide public access to corporate records consistent with the
general policies of the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code) and affording the public the greatest possible
access, consistent with the other duties of the corporation. The
Independent System Operator's Information Availability Policy, as
adopted on October 22, 1998, and in effect as of May 1, 2002, meets
the requirements of this paragraph. The Independent System Operator
shall maintain a policy that is no less consistent with the
California Public Records Act than its policy in effect as of May 1,
2002.
SEC. 269. Section 2827 of the Public Utilities Code is amended to
read:
2827. (a) The Legislature finds and declares that a program to
provide net energy metering combined with net surplus compensation,
co-energy metering, and wind energy co-metering for eligible
customer-generators is one way to encourage substantial private
investment in renewable energy resources, stimulate in-state economic
growth, reduce demand for electricity during peak consumption
periods, help stabilize California's energy supply infrastructure,
enhance the continued diversification of California's energy resource
mix, reduce interconnection and administrative costs for electricity
suppliers, and encourage conservation and efficiency.
(b) As used in this section, the following terms have the
following meanings:
(1) "Co-energy metering" means a program that is the same in all
other respects as a net energy metering program, except that the
local publicly owned electric utility has elected to apply a
generation-to-generation energy and time-of-use credit formula as
provided in subdivision (i).
(2) "Electrical cooperative" means an electrical cooperative as
defined in Section 2776.
(3) "Electric utility" means an electrical corporation, a local
publicly owned electric utility, or an electrical cooperative, or any
other entity, except an electric service provider, that offers
electrical service. This section shall not apply to a local publicly
owned electric utility that serves more than 750,000 customers and
that also conveys water to its customers.
(4) "Eligible customer-generator" means a residential customer,
small commercial customer as defined in subdivision (h) of Section
331, or commercial, industrial, or agricultural customer of an
electric utility, who uses a solar or a wind turbine electrical
generating facility, or a hybrid system of both, with a capacity of
not more than one megawatt that is located on the customer's owned,
leased, or rented premises, and is interconnected and operates in
parallel with the electric grid, and is intended primarily to offset
part or all of the customer's own electrical requirements.
(5) "Net energy metering" means measuring the difference between
the electricity supplied through the electric grid and the
electricity generated by an eligible customer-generator and fed back
to the electric grid over a 12-month period as described in
subdivisions (c) and (h).
(6) "Net surplus customer-generator" means an eligible
customer-generator that generates more electricity during a 12-month
period than is supplied by the electric utility to the eligible
customer-generator during the same 12-month period.
(7) "Net surplus electricity" means all electricity generated by
an eligible customer-generator measured in kilowatthours over a
12-month period that exceeds the amount of electricity consumed by
that eligible customer-generator.
(8) "Net surplus electricity compensation" means a per
kilowatthour rate offered by the electric utility to the net surplus
customer-generator for net surplus electricity that is set by the
ratemaking authority pursuant to subdivision (h).
(9) "Ratemaking authority" means, for an electrical corporation or
electrical cooperative, the commission, and for a local publicly
owned electric utility, the local elected body responsible for
setting the rates of the local publicly owned utility.
(10) "Wind energy co-metering" means any wind energy project
greater than 50 kilowatts, but not exceeding one megawatt, where the
difference between the electricity supplied through the electric grid
and the electricity generated by an eligible customer-generator and
fed back to the electric grid over a 12-month period is as described
in subdivision (h). Wind energy co-metering shall be accomplished
pursuant to Section 2827.8.
(c) (1) Every electric utility shall develop a standard contract
or tariff providing for net energy metering, and shall make this
standard contract or tariff available to eligible
customer-generators, upon request, on a first-come-first-served basis
until the time that the total rated generating capacity used by
eligible customer-generators exceeds 5 percent of the electric
utility's aggregate customer peak demand. Net energy metering shall
be accomplished using a single meter capable of registering the flow
of electricity in two directions. An additional meter or meters to
monitor the flow of electricity in each direction may be installed
with the consent of the eligible customer-generator, at the expense
of the electric utility, and the additional metering shall be used
only to provide the information necessary to accurately bill or
credit the eligible customer-generator pursuant to subdivision (h),
or to collect solar or wind electric generating system performance
information for research purposes. If the existing electrical meter
of an eligible customer-generator is not capable of measuring the
flow of electricity in two directions, the eligible
customer-generator shall be responsible for all expenses involved in
purchasing and installing a meter that is able to measure electricity
flow in two directions. If an additional meter or meters are
installed, the net energy metering calculation shall yield a result
identical to that of a single meter. An eligible customer-generator
that is receiving service other than through the standard contract or
tariff may elect to receive service through the standard contract or
tariff until the electric utility reaches the generation limit set
forth in this paragraph. Once the generation limit is reached, only
eligible customer-generators that had previously elected to receive
service pursuant to the standard contract or tariff have a right to
continue to receive service pursuant to the standard contract or
tariff. Eligibility for net energy metering does not limit an
eligible customer-generator's eligibility for any other rebate,
incentive, or credit provided by the electric utility, or pursuant to
any governmental program, including rebates and incentives provided
pursuant to the California Solar Initiative.
(2) An electrical corporation shall include a provision in the net
energy metering contract or tariff requiring that any customer with
an existing electrical generating facility and meter who enters into
a new net energy metering contract shall provide an inspection report
to the electrical corporation, unless the electrical generating
facility and meter have been installed or inspected within the
previous three years. The inspection report shall be prepared by a
California-licensed contractor who is not the owner or operator of
the facility and meter. A California-licensed electrician shall
perform the inspection of the electrical portion of the facility and
meter.
(3) (A) On an annual basis, beginning in 2003, every electric
utility shall make available to the ratemaking authority information
on the total rated generating capacity used by eligible
customer-generators that are customers of that provider in the
provider's service area and the net surplus electricity purchased by
the electric utility pursuant to this section.
(B) An electric service provider operating pursuant to Section 394
shall make available to the ratemaking authority the information
required by this paragraph for each eligible customer-generator that
is their customer for each service area of an electric corporation,
local publicly owned electric utility, or electrical cooperative, in
which the eligible customer-generator has net energy metering.
(C) The ratemaking authority shall develop a process for making
the information required by this paragraph available to electric
utilities, and for using that information to determine when, pursuant
to paragraphs (1) and (4), an electric utility is not obligated to
provide net energy metering to additional eligible
customer-generators in its service area.
(4) An electric utility is not obligated to provide net energy
metering to additional eligible customer-generators in its service
area when the combined total peak demand of all electricity used by
eligible customer-generators served by all the electric utilities in
that service area furnishing net energy metering to eligible
customer-generators exceeds 5 percent of the aggregate customer peak
demand of those electric utilities.
(5) By January 1, 2010, the commission, in consultation with the
Energy Commission, shall submit a report to the Governor and the
Legislature on the costs and benefits of net energy metering, wind
energy co-metering, and co-energy metering to participating customers
and nonparticipating customers and with options to replace the
economic costs and benefits of net energy metering, wind energy
co-metering, and co-energy metering with a mechanism that more
equitably balances the interests of participating and
nonparticipating customers, and that incorporates findings on the
economic and environmental costs and benefits of net metering.
(d) Every electric utility shall make all necessary forms and
contracts for net energy metering and net surplus electricity
compensation service available for download from the Internet.
(e) (1) Every electric utility shall ensure that requests for
establishment of net energy metering and net surplus electricity
compensation are processed in a time period not exceeding that for
similarly situated customers requesting new electric service, but not
to exceed 30 working days from the date it receives a completed
application form for net energy metering service or net surplus
electricity compensation, including a signed interconnection
agreement from an eligible customer-generator and the electric
inspection clearance from the governmental authority having
jurisdiction.
(2) Every electric utility shall ensure that requests for an
interconnection agreement from an eligible customer-generator are
processed in a time period not to exceed 30 working days from the
date it receives a completed application form from the eligible
customer-generator for an interconnection agreement.
(3) If an electric utility is unable to process a request within
the allowable timeframe pursuant to paragraph (1) or (2), it shall
notify the eligible customer-generator and the ratemaking authority
of the reason for its inability to process the request and the
expected completion date.
(f) (1) If a customer participates in direct transactions pursuant
to paragraph (1) of subdivision (b) of Section 365 with an electric
service provider that does not provide distribution service for the
direct transactions, the electric utility that provides distribution
service for the eligible customer-generator is not obligated to
provide net energy metering or net surplus electricity compensation
to the customer.
(2) If a customer participates in direct transactions pursuant to
paragraph (1) of subdivision (b) of Section 365 with an electric
service provider, and the customer is an eligible customer-generator,
the electric utility that provides distribution service for the
direct transactions may recover from the customer's electric service
provider the incremental costs of metering and billing service
related to net energy metering and net surplus electricity
compensation in an amount set by the ratemaking authority.
(g) Except for the time-variant kilowatthour pricing portion of
any tariff adopted by the commission pursuant to paragraph (4) of
subdivision (a) of Section 2851, 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 same customer would be assigned if the customer
did not use an eligible solar or wind electrical generating facility,
except that eligible customer-generators shall not be assessed
standby charges on the electrical generating capacity or the
kilowatthour production of an eligible solar or wind electrical
generating facility. The charges for all retail rate components for
eligible customer-generators shall be based exclusively on the
customer-generator's net kilowatthour consumption over a 12-month
period, without regard to the eligible customer-generator's choice as
to from whom it purchases electricity that is not self-generated.
Any new or additional demand charge, standby charge, customer charge,
minimum monthly charge, interconnection charge, or any other charge
that would increase an eligible customer-generator's costs beyond
those of other customers who are not eligible customer-generators in
the rate class to which the eligible customer-generator would
otherwise be assigned if the customer did not own, lease, rent, or
otherwise operate an eligible solar or wind electrical generating
facility is contrary to the intent of this section, and shall not
form a part of net energy metering contracts or tariffs.
(h) For eligible customer-generators, the net energy metering
calculation shall be made by measuring the difference between the
electricity supplied to the eligible customer-generator and the
electricity generated by the eligible customer-generator and fed back
to the electric grid over a 12-month period. The following rules
shall apply to the annualized net metering calculation:
(1) The eligible residential or small commercial
customer-generator shall, at the end of each 12-month period
following the date of final interconnection of the eligible
customer-generator's system with an electric utility, and at each
anniversary date thereafter, be billed for electricity used during
that 12-month period. The electric utility shall determine if the
eligible residential or small commercial customer-generator was a net
consumer or a net surplus customer-generator during that period.
(2) At the end of each 12-month period, where the electricity
supplied during the period by the electric utility exceeds the
electricity generated by the eligible residential or small commercial
customer-generator during that same period, the eligible residential
or small commercial customer-generator is a net electricity consumer
and the electric utility shall be owed compensation for the eligible
customer-generator's net kilowatthour consumption over that 12-month
period. The compensation owed for the eligible residential or small
commercial customer-generator's consumption shall be calculated as
follows:
(A) For all eligible customer-generators taking service under
contracts or tariffs employing "baseline" and "over baseline" rates,
any net monthly consumption of electricity shall be calculated
according to the terms of the contract or tariff to which the same
customer would be assigned, or be eligible for, if the customer was
not an eligible customer-generator. If those same customer-generators
are net generators over a billing period, the net kilowatthours
generated shall be valued at the same price per kilowatthour as the
electric utility would charge for the baseline quantity of
electricity during that billing period, and if the number of
kilowatthours generated exceeds the baseline quantity, the excess
shall be valued at the same price per kilowatthour as the electric
utility would charge for electricity over the baseline quantity
during that billing period.
(B) For all eligible customer-generators taking service under
contracts or tariffs employing time-of-use rates, any net monthly
consumption of electricity shall be calculated according to the terms
of the contract or tariff to which the same customer would be
assigned, or be eligible for, if the customer was not an eligible
customer-generator. When those same customer-generators are net
generators during any discrete time-of-use period, the net
kilowatthours produced shall be valued at the same price per
kilowatthour as the electric utility would charge for retail
kilowatthour sales during that same time-of-use period. If the
eligible customer-generator's time-of-use electrical meter is unable
to measure the flow of electricity in two
directions, paragraph (1) of subdivision (c)
shall apply.
(C) For all eligible residential and small commercial
customer-generators and for each billing period, the net balance of
moneys owed to the electric utility for net consumption of
electricity or credits owed to the eligible customer-generator for
net generation of electricity shall be carried forward as a monetary
value until the end of each 12-month period. For all eligible
commercial, industrial, and agricultural customer-generators, the net
balance of moneys owed shall be paid in accordance with the electric
utility's normal billing cycle, except that if the eligible
commercial, industrial, or agricultural customer-generator is a net
electricity producer over a normal billing cycle, any excess
kilowatthours generated during the billing cycle shall be carried
over to the following billing period as a monetary value, calculated
according to the procedures set forth in this section, and appear as
a credit on the eligible commercial, industrial, or agricultural
customer-generator's account, until the end of the annual period when
paragraph (3) shall apply.
(3) At the end of each 12-month period, where the electricity
generated by the eligible customer-generator during the 12-month
period exceeds the electricity supplied by the electric utility
during that same period, the eligible customer-generator is a net
surplus customer-generator and the electric utility shall, upon an
affirmative election by the eligible customer-generator, either (A)
provide net surplus electricity compensation for any net surplus
electricity generated during the prior 12-month period, or (B) allow
the eligible customer-generator to apply the net surplus electricity
as a credit for kilowatthours subsequently supplied by the electric
utility to the surplus customer-generator. For an eligible
customer-generator that does not affirmatively elect to receive
service pursuant to net surplus electricity compensation, the
electric utility shall retain any excess kilowatthours generated
during the prior 12-month period. The eligible customer-generator not
affirmatively electing to receive service pursuant to net surplus
electricity compensation shall not be owed any compensation for the
net surplus electricity unless the electric utility enters into a
purchase agreement with the eligible customer-generator for those
excess kilowatthours. Every electric utility shall, by January 31,
2010, provide notice to eligible customer-generators that they are
eligible to receive net surplus electricity compensation for net
surplus electricity, that they must elect to receive net surplus
electricity compensation, and that the 12-month period commences when
the electric utility receives the eligible customer-generator's
election. The commission may, for an electric utility that is an
electrical corporation or electrical cooperative, adopt requirements
for providing notice and the manner by which eligible
customer-generators may elect to receive net surplus electricity
compensation.
(4) (A) The ratemaking authority shall, by January 1, 2011,
establish a net surplus electricity compensation valuation to
compensate the net surplus customer-generator for the value of net
surplus electricity generated by the net surplus customer-generator.
The commission shall establish the valuation in a ratemaking
proceeding. The ratemaking authority for a local publicly owned
electric utility shall establish the valuation in a public
proceeding. The net surplus electricity compensation valuation shall
be established so as to provide the net surplus customer-generator
just and reasonable compensation for the value of net surplus
electricity, while leaving other ratepayers unaffected. The
ratemaking authority shall determine whether the compensation will
include, where appropriate justification exists, either or both of
the following components:
(i) The value of the electricity itself.
(ii) The value of the renewable attributes of the electricity.
(B) In establishing the rate pursuant to subparagraph (A), the
ratemaking authority shall ensure that the rate does not result in a
shifting of costs between solar customer-generators and other bundled
service customers.
(5) (A) Upon adoption of the net surplus electricity compensation
rate by the ratemaking authority, any renewable energy credit, as
defined in Section 399.12, for net surplus electricity purchased by
the electric utility shall belong to the electric utility. Any
renewable energy credit associated with electricity generated by the
eligible customer-generator that is utilized by the eligible
customer-generator shall remain the property of the eligible
customer-generator.
(B) Upon adoption of the net surplus electricity compensation rate
by the ratemaking authority, the net surplus electricity purchased
by the electric utility shall count toward the electric utility's
renewables portfolio standard annual procurement targets for the
purposes of paragraph (1) of subdivision (b) of Section 399.15, or
for a local publicly owned electric utility, the renewables portfolio
standard annual procurement targets established pursuant to Section
387.
(6) The electric utility shall provide every eligible residential
or small commercial customer-generator with net electricity
consumption and net surplus electricity generation information with
each regular bill. That information shall include the current
monetary balance owed the electric utility for net electricity
consumed, or the net surplus electricity generated, since the last
12-month period ended. Notwithstanding this subdivision, an electric
utility shall permit that customer to pay monthly for net energy
consumed.
(7) If an eligible residential or small commercial
customer-generator terminates the customer relationship with the
electric utility, the electric utility shall reconcile the eligible
customer-generator's consumption and production of electricity during
any part of a 12-month period following the last reconciliation,
according to the requirements set forth in this subdivision, except
that those requirements shall apply only to the months since the most
recent 12-month bill.
(8) If an electric service provider or electric utility providing
net energy metering to a residential or small commercial
customer-generator ceases providing that electric service to that
customer during any 12-month period, and the customer-generator
enters into a new net energy metering contract or tariff with a new
electric service provider or electric utility, the 12-month period,
with respect to that new electric service provider or electric
utility, shall commence on the date on which the new electric service
provider or electric utility first supplies electric service to the
customer-generator.
(i) Notwithstanding any other provisions of this section, the
following provisions shall apply to an eligible customer-generator
with a capacity of more than 10 kilowatts, but not exceeding one
megawatt, that receives electric service from a local publicly owned
electric utility that has elected to utilize a co-energy metering
program unless the local publicly owned electric utility chooses to
provide service for eligible customer-generators with a capacity of
more than 10 kilowatts in accordance with subdivisions (g) and (h):
(1) The eligible customer-generator shall be required to utilize a
meter, or multiple meters, capable of separately measuring
electricity flow in both directions. All meters shall provide
time-of-use measurements of electricity flow, and the customer shall
take service on a time-of-use rate schedule. If the existing meter of
the eligible customer-generator is not a time-of-use meter or is not
capable of measuring total flow of energy in both directions, the
eligible customer-generator shall be responsible for all expenses
involved in purchasing and installing a meter that is both
time-of-use and able to measure total electricity flow in both
directions. This subdivision shall not restrict the ability of an
eligible customer-generator to utilize any economic incentives
provided by a governmental agency or an electric utility to reduce
its costs for purchasing and installing a time-of-use meter.
(2) The consumption of electricity from the local publicly owned
electric utility shall result in a cost to the eligible
customer-generator to be priced in accordance with the standard rate
charged to the eligible customer-generator in accordance with the
rate structure to which the customer would be assigned if the
customer did not use an eligible solar or wind electrical generating
facility. The generation of electricity provided to the local
publicly owned electric utility shall result in a credit to the
eligible customer-generator and shall be priced in accordance with
the generation component, established under the applicable structure
to which the customer would be assigned if the customer did not use
an eligible solar or wind electrical generating facility.
(3) All costs and credits shall be shown on the eligible
customer-generator's bill for each billing period. In any months in
which the eligible customer-generator has been a net consumer of
electricity calculated on the basis of value determined pursuant to
paragraph (2), the customer-generator shall owe to the local publicly
owned electric utility the balance of electricity costs and credits
during that billing period. In any billing period in which the
eligible customer-generator has been a net producer of electricity
calculated on the basis of value determined pursuant to paragraph
(2), the local publicly owned electric utility shall owe to the
eligible customer-generator the balance of electricity costs and
credits during that billing period. Any net credit to the eligible
customer-generator of electricity costs may be carried forward to
subsequent billing periods, provided that a local publicly owned
electric utility may choose to carry the credit over as a
kilowatthour credit consistent with the provisions of any applicable
contract or tariff, including any differences attributable to the
time of generation of the electricity. At the end of each 12-month
period, the local publicly owned electric utility may reduce any net
credit due to the eligible customer-generator to zero.
(j) A solar or wind turbine electrical generating system, or a
hybrid system of both, used by an eligible customer-generator shall
meet all applicable safety and performance standards established by
the National Electrical Code, the Institute of Electrical and
Electronics Engineers, and accredited testing laboratories, including
Underwriters Laboratories and, where applicable, rules of the
commission regarding safety and reliability. A customer-generator
whose solar or wind turbine electrical generating system, or a hybrid
system of both, meets those standards and rules shall not be
required to install additional controls, perform or pay for
additional tests, or purchase additional liability insurance.
(k) If the commission determines that there are cost or revenue
obligations for an electrical corporation, as defined in Section 218,
that may not be recovered from customer-generators acting pursuant
to this section, those obligations shall remain within the customer
class from which any shortfall occurred and may not be shifted to any
other customer class. Net energy metering and co-energy metering
customers shall not be exempt from the public goods charges imposed
pursuant to Article 7 (commencing with Section 381), Article 8
(commencing with Section 385), or Article 15 (commencing with Section
399) of Chapter 2.3 of Part 1. In its report to the Legislature, the
commission shall examine different methods to ensure that the public
goods charges remain nonbypassable.
(l) A net energy metering, co-energy metering, or wind energy
co-metering customer shall reimburse the Department of Water
Resources for all charges that would otherwise be imposed on the
customer by the commission to recover bond-related costs pursuant to
an agreement between the commission and the Department of Water
Resources pursuant to Section 80110 of the Water Code, as well as the
costs of the department equal to the share of the department's
estimated net unavoidable power purchase contract costs attributable
to the customer. The commission shall incorporate the determination
into an existing proceeding before the commission, and shall ensure
that the charges are nonbypassable. Until the commission has made a
determination regarding the nonbypassable charges, net energy
metering, co-energy metering, and wind energy co-metering shall
continue under the same rules, procedures, terms, and conditions as
were applicable on December 31, 2002.
(m) In implementing the requirements of subdivisions (k) and (
l ), an eligible customer-generator shall not be required
to replace its existing meter except as set forth in paragraph (1) of
subdivision (c), nor shall the electric utility require additional
measurement of usage beyond that which is necessary for customers in
the same rate class as the eligible customer-generator.
(n) It is the intent of the Legislature that the Treasurer
incorporate net energy metering, including net surplus electricity
compensation, co-energy metering, and wind energy co-metering
projects undertaken pursuant to this section as sustainable building
methods or distributive energy technologies for purposes of
evaluating low-income housing projects.
SEC. 270. Section 2851 of the Public Utilities Code is amended to
read:
2851. (a) In implementing the California Solar Initiative, the
commission shall do all of the following:
(1) The commission shall authorize the award of monetary
incentives for up to the first megawatt of alternating current
generated by solar energy systems that meet the eligibility criteria
established by the Energy Commission pursuant to Chapter 8.8
(commencing with Section 25780) of Division 15 of the Public
Resources Code. The commission shall determine the eligibility of a
solar energy system, as defined in Section 25781 of the Public
Resources Code, to receive monetary incentives until the time the
Energy Commission establishes eligibility criteria pursuant to
Section 25782. Monetary incentives shall not be awarded for solar
energy systems that do not meet the eligibility criteria. The
incentive level authorized by the commission shall decline each year
following implementation of the California Solar Initiative, at a
rate of no less than an average of 7 percent per year, and shall be
zero as of December 31, 2016. The commission shall adopt and publish
a schedule of declining incentive levels no less than 30 days in
advance of the first decline in incentive levels. The commission may
develop incentives based upon the output of electricity from the
system, provided those incentives are consistent with the declining
incentive levels of this paragraph and the incentives apply to only
the first megawatt of electricity generated by the system.
(2) The commission shall adopt a performance-based incentive
program so that by January 1, 2008, 100 percent of incentives for
solar energy systems of 100 kilowatts or greater and at least 50
percent of incentives for solar energy systems of 30 kilowatts or
greater are earned based on the actual electrical output of the solar
energy systems. The commission shall encourage, and may require,
performance-based incentives for solar energy systems of less than 30
kilowatts. Performance-based incentives shall decline at a rate of
no less than an average of 7 percent per year. In developing the
performance-based incentives, the commission may:
(A) Apply performance-based incentives only to customer classes
designated by the commission.
(B) Design the performance-based incentives so that customers may
receive a higher level of incentives than under incentives based on
installed electrical capacity.
(C) Develop financing options that help offset the installation
costs of the solar energy system, provided that this financing is
ultimately repaid in full by the consumer or through the application
of the performance-based rebates.
(3) By January 1, 2008, the commission, in consultation with the
Energy Commission, shall require reasonable and cost-effective energy
efficiency improvements in existing buildings as a condition of
providing incentives for eligible solar energy systems, with
appropriate exemptions or limitations to accommodate the limited
financial resources of low-income residential housing.
(4) Notwithstanding subdivision (g) of Section 2827, the
commission may develop a time-variant tariff that creates the maximum
incentive for ratepayers to install solar energy systems so that the
system's peak electricity production coincides with California's
peak electricity demands and that ensures that ratepayers receive due
value for their contribution to the purchase of solar energy systems
and customers with solar energy systems continue to have an
incentive to use electricity efficiently. In developing the
time-variant tariff, the commission may exclude customers
participating in the tariff from the rate cap for residential
customers for existing baseline quantities or usage by those
customers of up to 130 percent of existing baseline quantities, as
required by Section 80110 of the Water Code. Nothing in this
paragraph authorizes the commission to require time-variant pricing
for ratepayers without a solar energy system.
(b) Notwithstanding subdivision (a), in implementing the
California Solar Initiative, the commission may authorize the award
of monetary incentives for solar thermal and solar water heating
devices, in a total amount up to one hundred million eight hundred
thousand dollars ($100,800,000).
(c) (1) In implementing the California Solar Initiative, the
commission shall not allocate more than fifty million dollars
($50,000,000) to research, development, and demonstration that
explores solar technologies and other distributed generation
technologies that employ or could employ solar energy for generation
or storage of electricity or to offset natural gas usage. Any program
that allocates additional moneys to research, development, and
demonstration shall be developed in collaboration with the Energy
Commission to ensure there is no duplication of efforts, and adopted
by the commission through a rulemaking or other appropriate public
proceeding. Any grant awarded by the commission for research,
development, and demonstration shall be approved by the full
commission at a public meeting. This subdivision does not prohibit
the commission from continuing to allocate moneys to research,
development, and demonstration pursuant to the self-generation
incentive program for distributed generation resources originally
established pursuant to Chapter 329 of the Statutes of 2000, as
modified pursuant to Section 379.6.
(2) The Legislature finds and declares that a program that
provides a stable source of monetary incentives for eligible solar
energy systems will encourage private investment sufficient to make
solar technologies cost effective.
(3) On or before June 30, 2009, and by June 30 of every year
thereafter, the commission shall submit to the Legislature an
assessment of the success of the California Solar Initiative program.
That assessment shall include the number of residential and
commercial sites that have installed solar thermal devices for which
an award was made pursuant to subdivision (b) and the dollar value of
the award, the number of residential and commercial sites that have
installed solar energy systems, the electrical generating capacity of
the installed solar energy systems, the cost of the program, total
electrical system benefits, including the effect on electrical
service rates, environmental benefits, how the program affects the
operation and reliability of the electrical grid, how the program has
affected peak demand for electricity, the progress made toward
reaching the goals of the program, whether the program is on schedule
to meet the program goals, and recommendations for improving the
program to meet its goals. If the commission allocates additional
moneys to research, development, and demonstration that explores
solar technologies and other distributed generation technologies
pursuant to paragraph (1), the commission shall include in the
assessment submitted to the Legislature, a description of the
program, a summary of each award made or project funded pursuant to
the program, including the intended purposes to be achieved by the
particular award or project, and the results of each award or
project.
(d) (1) The commission shall not impose any charge upon the
consumption of natural gas, or upon natural gas ratepayers, to fund
the California Solar Initiative.
(2) Notwithstanding any other provision of law, any charge imposed
to fund the program adopted and implemented pursuant to this section
shall be imposed upon all customers not participating in the
California Alternate Rates for Energy (CARE) or family electric rate
assistance (FERA) programs as provided in paragraph (2), including
those residential customers subject to the rate cap required by
Section 80110 of the Water Code for existing baseline quantities or
usage up to 130 percent of existing baseline quantities of
electricity.
(3) The costs of the program adopted and implemented pursuant to
this section may not be recovered from customers participating in the
California Alternate Rates for Energy or CARE program established
pursuant to Section 739.1, except to the extent that program costs
are recovered out of the nonbypassable system benefits charge
authorized pursuant to Section 399.8.
(e) In implementing the California Solar Initiative, the
commission shall ensure that the total cost over the duration of the
program does not exceed three billion three hundred fifty million
eight hundred thousand dollars ($3,350,800,000). The financial
components of the California Solar Initiative shall consist of the
following:
(1) Programs under the supervision of the commission funded by
charges collected from customers of San Diego Gas and Electric
Company, Southern California Edison Company, and Pacific Gas and
Electric Company. The total cost over the duration of these programs
shall not exceed two billion one hundred sixty-six million eight
hundred thousand dollars ($2,166,800,000) and includes moneys
collected directly into a tracking account for support of the
California Solar Initiative and moneys collected into other accounts
that are used to further the goals of the California Solar
Initiative.
(2) Programs adopted, implemented, and financed in the amount of
seven hundred eighty-four million dollars ($784,000,000), by charges
collected by local publicly owned electric utilities pursuant to
Section 387.5. Nothing in this subdivision shall give the commission
power and jurisdiction with respect to a local publicly owned
electric utility or its customers.
(3) Programs for the installation of solar energy systems on new
construction, administered by the Energy Commission pursuant to
Chapter 8.6 (commencing with Section 25740) of Division 15 of the
Public Resources Code, and funded by nonbypassable charges in the
amount of four hundred million dollars ($400,000,000), collected from
customers of San Diego Gas and Electric Company, Southern California
Edison Company, and Pacific Gas and Electric Company pursuant to
Article 15 (commencing with Section 399).
SEC. 271. Section 8381 of the Public Utilities Code is amended to
read:
8381. (a) For purposes of this section, "electrical consumption
data" means data about a customer's electrical usage that is made
available as part of an advanced metering infrastructure, and
includes the name, account number, or residence of the customer.
(b) (1) A local publicly owned electric utility shall not share,
disclose, or otherwise make accessible to any third party a customer'
s electrical consumption data, except as provided in subdivision (e)
or upon the consent of the customer.
(2) A local publicly owned electric utility shall not sell a
customer's electrical consumption data or any other personally
identifiable information for any purpose.
(3) The local publicly owned electric utility or its contractors
shall not provide an incentive or discount to the customer for
accessing the customer's electrical consumption data without the
prior consent of the customer.
(4) A local publicly owned electric utility that utilizes an
advanced metering infrastructure that allows a customer to access the
customer's electrical consumption data shall ensure that the
customer has an option to access that data without being required to
agree to the sharing of his or her personally identifiable
information, including electrical consumption data, with a third
party.
(c) If a local publicly owned electric utility contracts with a
third party for a service that allows a customer to monitor his or
her electricity usage, and that third party uses the data for a
secondary commercial purpose, the contract between the local publicly
owned electric utility and the third party shall provide that the
third party prominently discloses that secondary commercial purpose
to the customer.
(d) A local publicly owned electric utility shall use reasonable
security procedures and practices to protect a customer's unencrypted
electrical consumption data from unauthorized access, destruction,
use, modification, or disclosure, and prohibit the use of the data
for a secondary commercial purpose not related to the primary purpose
of the contract without the customer's consent.
(e) (1) Nothing in this section shall preclude a local publicly
owned electric utility from using customer aggregate electrical
consumption data for analysis, reporting, or program management if
all information has been removed regarding the individual identity of
a customer.
(2) Nothing in this section shall preclude a local publicly owned
electric utility from disclosing a customer's electrical consumption
data to a third party for system, grid, or operational needs, or the
implementation of demand response, energy management, or energy
efficiency programs, provided, for contracts entered into after
January 1, 2011, that the utility has required 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.
(3) Nothing in this section shall preclude a local publicly owned
electric utility from disclosing electrical consumption data as
required under state or federal law.
(f) If a
customer chooses to disclose his or her electrical consumption data
to a third party that is unaffiliated with, and has no other business
relationship with, the local publicly owned electric utility, the
utility shall not be responsible for the security of that data, or
its use or misuse.
SEC. 272. Section 100351 of the Public Utilities Code is amended
to read:
100351. Whenever the district acquires existing facilities from a
publicly or privately owned utility, either in proceedings in
eminent domain or otherwise, that has a pension plan in operation,
members and beneficiaries of the pension plan shall continue to have
the rights, privileges, benefits, obligations and status with respect
to the established system. The outstanding obligations and
liabilities of the public utility by reason of the pension plan shall
be considered and taken into account and allowance made therefor in
the purchase price of the public utility. The persons entitled to
pension benefits as provided for in this section and the benefits
which are provided shall be specified in the agreement or order by
which any public utility is acquired by the district.
SEC. 273. Section 69.5 of the Revenue and Taxation Code is amended
to read:
69.5. (a) (1) Notwithstanding any other provision of law,
pursuant to subdivision (a) of Section 2 of Article XIII A of the
California Constitution, any person over the age of 55 years, or any
severely and permanently disabled person, who resides in property
that is eligible for the homeowners' exemption under subdivision (k)
of Section 3 of Article XIII of the California Constitution and
Section 218 may transfer, subject to the conditions and limitations
provided in this section, the base year value of that property to any
replacement dwelling of equal or lesser value that is located within
the same county and is purchased or newly constructed by that person
as his or her principal residence within two years of the sale by
that person of the original property, provided that the base year
value of the original property shall not be transferred to the
replacement dwelling until the original property is sold.
(2) Notwithstanding the limitation in paragraph (1) requiring that
the original property and the replacement dwelling be located in the
same county, this limitation shall not apply in any county in which
the county board of supervisors, after consultation with local
affected agencies within the boundaries of the county, adopts an
ordinance making the provisions of paragraph (1) also applicable to
situations in which replacement dwellings are located in that county
and the original properties are located in another county within this
state. The authorization contained in this paragraph shall be
applicable in a county only if the ordinance adopted by the board of
supervisors complies with all of the following requirements:
(A) It is adopted only after consultation between the board of
supervisors and all other local affected agencies within the county's
boundaries.
(B) It requires that all claims for transfers of base year value
from original property located in another county be granted if the
claims meet the applicable requirements of both subdivision (a) of
Section 2 of Article XIII A of the California Constitution and this
section.
(C) It requires that all base year valuations of original property
located in another county and determined by its assessor be accepted
in connection with the granting of claims for transfers of base year
value.
(D) It provides that its provisions are operative for a period of
not less than five years.
(E) The ordinance specifies the date on and after which its
provisions shall be applicable. However, the date specified shall not
be earlier than November 9, 1988. The specified applicable date may
be a date earlier than the date the county adopts the ordinance.
(b) In addition to meeting the requirements of subdivision (a),
any person claiming the property tax relief provided by this section
shall be eligible for that relief only if the following conditions
are met:
(1) The claimant is an owner and a resident of the original
property either at the time of its sale, or at the time when the
original property was substantially damaged or destroyed by
misfortune or calamity, or within two years of the purchase or new
construction of the replacement dwelling.
(2) The original property is eligible for the homeowners'
exemption, as the result of the claimant's ownership and occupation
of the property as his or her principal residence, either at the time
of its sale, or at the time when the original property was
substantially damaged or destroyed by misfortune or calamity, or
within two years of the purchase or new construction of the
replacement dwelling.
(3) At the time of the sale of the original property, the claimant
or the claimant's spouse who resides with the claimant is at least
55 years of age, or is severely and permanently disabled.
(4) At the time of claiming the property tax relief provided by
subdivision (a), the claimant is an owner of a replacement dwelling
and occupies it as his or her principal place of residence and, as a
result thereof, the property is currently eligible for the homeowners'
exemption or would be eligible for the exemption except that the
property is already receiving the exemption because of an exemption
claim filed by the previous owner.
(5) The original property of the claimant is sold by him or her
within two years of the purchase or new construction of the
replacement dwelling. For purposes of this paragraph, the purchase or
new construction of the replacement dwelling includes the purchase
of that portion of land on which the replacement building, structure,
or other shelter constituting a place of abode of the claimant will
be situated and that, pursuant to paragraph (3) of subdivision (g),
constitutes a part of the replacement dwelling.
(6) The replacement dwelling, including that portion of land on
which it is situated that is specified in paragraph (5), is located
entirely within the same county as the claimant's original property.
(7) The claimant has not previously been granted, as a claimant,
the property tax relief provided by this section, except that this
paragraph shall not apply to any person who becomes severely and
permanently disabled subsequent to being granted, as a claimant, the
property tax relief provided by this section for any person over the
age of 55 years. In order to prevent duplication of claims under this
section within this state, county assessors shall report quarterly
to the State Board of Equalization that information from claims filed
in accordance with subdivision (f) and from county records as is
specified by the board necessary to identify fully all claims under
this section allowed by assessors and all claimants who have thereby
received relief. The board may specify that the information include
all or a part of the names and social security numbers of claimants
and their spouses and the identity and location of the replacement
dwelling to which the claim applies. The information may be required
in the form of data processing media or other media and in a format
that is compatible with the recordkeeping processes of the counties
and the auditing procedures of the state.
(c) The property tax relief provided by this section shall be
available if the original property or the replacement dwelling, or
both, of the claimant includes, but is not limited to, either of the
following:
(1) A unit or lot within a cooperative housing corporation, a
community apartment project, a condominium project, or a planned unit
development. If the unit or lot constitutes the original property of
the claimant, the assessor shall transfer to the claimant's
replacement dwelling only the base year value of the claimant's unit
or lot and his or her share in any common area reserved as an
appurtenance of that unit or lot. If the unit or lot constitutes the
replacement dwelling of the claimant, the assessor shall transfer the
base year value of the claimant's original property only to the unit
or lot of the claimant and any share of the claimant in any common
area reserved as an appurtenance of that unit or lot.
(2) A manufactured home or a manufactured home and any land owned
by the claimant on which the manufactured home is situated. For
purposes of this paragraph, "land owned by the claimant" includes a
pro rata interest in a resident-owned mobilehome park that is
assessed pursuant to subdivision (b) of Section 62.1.
(A) If the manufactured home or the manufactured home and the land
on which it is situated constitutes the claimant's original
property, the assessor shall transfer to the claimant's replacement
dwelling either the base year value of the manufactured home or the
base year value of the manufactured home and the land on which it is
situated, as appropriate. If the manufactured home dwelling that
constitutes the original property of the claimant includes an
interest in a resident-owned mobilehome park, the assessor shall
transfer to the claimant's replacement dwelling the base year value
of the claimant's manufactured home and his or her pro rata portion
of the real property of the park. No transfer of base year value
shall be made by the assessor of that portion of land that does not
constitute a part of the original property, as provided in paragraph
(4) of subdivision (g).
(B) If the manufactured home or the manufactured home and the land
on which it is situated constitutes the claimant's replacement
dwelling, the assessor shall transfer the base year value of the
claimant's original property either to the manufactured home or the
manufactured home and the land on which it is situated, as
appropriate. If the manufactured home dwelling that constitutes the
replacement dwelling of the claimant includes an interest in a
resident-owned mobilehome park, the assessor shall transfer the base
year value of the claimant's original property to the manufactured
home of the claimant and his or her pro rata portion of the park. No
transfer of base year value shall be made by the assessor to that
portion of land that does not constitute a part of the replacement
dwelling, as provided in paragraph (3) of subdivision (g).
This subdivision shall be subject to the limitations specified in
subdivision (d).
(d) The property tax relief provided by this section shall be
available to a claimant who is the coowner of the original property,
as a joint tenant, a tenant in common, a community property owner, or
a present beneficiary of a trust subject to the following
limitations:
(1) If a single replacement dwelling is purchased or newly
constructed by all of the coowners and each coowner retains an
interest in the replacement dwelling, the claimant shall be eligible
under this section whether or not any or all of the remaining
coowners would otherwise be eligible claimants.
(2) If two or more replacement dwellings are separately purchased
or newly constructed by two or more coowners and more than one
coowner would otherwise be an eligible claimant, only one coowner
shall be eligible under this section. These coowners shall determine
by mutual agreement which one of them shall be deemed eligible.
(3) If two or more replacement dwellings are separately purchased
or newly constructed by two coowners who held the original property
as community property, only the coowner who has attained the age of
55 years, or is severely and permanently disabled, shall be eligible
under this section. If both spouses are over 55 years of age, they
shall determine by mutual agreement which one of them is eligible.
In the case of coowners whose original property is a multiunit
dwelling, the limitations imposed by paragraphs (2) and (3) shall
only apply to coowners who occupied the same dwelling unit within the
original property at the time specified in paragraph (2) of
subdivision (b).
(e) Upon the sale of 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, whether or not a replacement dwelling
is subsequently purchased or newly constructed by the former owner
or owners of the original property.
This section shall not apply unless the transfer of the original
property is a change in ownership that either (1) subjects that
property to reappraisal at its current fair market value in
accordance with Section 110.1 or 5803 or (2) results in a base year
value determined in accordance with this section, Section 69, or
Section 69.3 because the property qualifies under this section,
Section 69, or Section 69.3 as a replacement dwelling or property.
(f) (1) A claimant shall not be eligible for the property tax
relief provided by this section unless the claimant provides to the
assessor, on a form that shall be designed by the State Board of
Equalization and that the assessor shall make available upon request,
the following information:
(A) The name and social security number of each claimant and of
any spouse of the claimant who is a record owner of the replacement
dwelling.
(B) Proof that the claimant or the claimant's spouse who resided
on the original property with the claimant was, at the time of its
sale, at least 55 years of age, or severely and permanently disabled.
Proof of severe and permanent disability shall be considered a
certification, signed by a licensed physician and surgeon of
appropriate specialty, attesting to the claimant's severely and
permanently disabled condition. In the absence of available proof
that a person is over 55 years of age, the claimant shall certify
under penalty of perjury that the age requirement is met. In the case
of a severely and permanently disabled claimant either of the
following shall be submitted:
(i) A certification, signed by a licensed physician or surgeon of
appropriate specialty that identifies specific reasons why the
disability necessitates a move to the replacement dwelling and the
disability-related requirements, including any locational
requirements, of a replacement dwelling. The claimant shall
substantiate that the replacement dwelling meets disability-related
requirements so identified and that the primary reason for the move
to the replacement dwelling is to satisfy those requirements. If the
claimant, or the claimant's spouse or guardian, so declares under
penalty of perjury, it shall be rebuttably presumed that the primary
purpose of the move to the replacement dwelling is to satisfy
identified disability-related requirements.
(ii) The claimant's substantiation that the primary purpose of the
move to the replacement dwelling is to alleviate financial burdens
caused by the disability. If the claimant, or the claimant's spouse
or guardian, so declares under penalty of perjury, it shall be
rebuttably presumed that the primary purpose of the move is to
alleviate the financial burdens caused by the disability.
(C) The address and, if known, the assessor's parcel number of the
original property.
(D) The date of the claimant's sale of the original property and
the date of the claimant's purchase or new construction of a
replacement dwelling.
(E) A statement by the claimant that he or she occupied the
replacement dwelling as his or her principal place of residence on
the date of the filing of his or her claim.
(F) Any claim under this section shall be filed within three years
of the date the replacement dwelling was purchased or the new
construction of the replacement dwelling was completed subject to
subdivision (k) or (m).
(2) A claim for transfer of base year value under this section
that is filed after the expiration of the filing period set forth in
subparagraph (F) of paragraph (1) shall be considered by the
assessor, subject to all of the following conditions:
(A) Any base year value transfer granted pursuant to that claim
shall apply commencing with the lien date of the assessment year in
which the claim is filed.
(B) The full cash value of the replacement property in the
assessment year described in subparagraph (A) shall be the base year
value of the real property in the assessment year in which the base
year value was transferred, factored to the assessment year described
in subparagraph (A) for both of the following:
(i) Inflation as annually determined in accordance with paragraph
(1) of subdivision (a) of Section 51.
(ii) Any subsequent new construction occurring with respect to the
subject real property that does not qualify for property tax relief
pursuant to the criteria set forth in subparagraphs (A) and (B) of
paragraph (4) of subdivision (h).
(g) For purposes of this section:
(1) "Person over the age of 55 years" means any person or the
spouse of any person who has attained the age of 55 years or older at
the time of the sale of the original property.
(2) "Base year value of the original property" means its base year
value, as determined in accordance with Section 110.1, with the
adjustments permitted by subdivision (b) of Section 2 of Article XIII
A of the California Constitution and subdivision (f) of Section
110.1, determined as of the date immediately prior to the date that
the original property is sold by the claimant, or in the case where
the original property has been substantially damaged or destroyed by
misfortune or calamity and the owner does not rebuild on the original
property, determined as of the date immediately prior to the
misfortune or calamity.
If the replacement dwelling is purchased or newly constructed
after the transfer of the original property, "base year value of the
original property" also includes any inflation factor adjustments
permitted by subdivision (f) of Section 110.1 for the period
subsequent to the sale of the original property. 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.
(3) "Replacement dwelling" means a building, structure, or other
shelter constituting a place of abode, whether real property or
personal property, that is owned and occupied by a claimant as his or
her principal place of residence, and any land owned by the claimant
on which the building, structure, or other shelter is situated. For
purposes of this paragraph, land constituting a part of a replacement
dwelling includes only that area of reasonable size that is used as
a site for a residence, and "land owned by the claimant" includes
land for which the claimant either holds a leasehold interest
described in subdivision (c) of Section 61 or a land purchase
contract. Each unit of a multiunit dwelling shall be considered a
separate replacement dwelling. For purposes of this paragraph, "area
of reasonable size that is used as a site for a residence" includes
all land if any nonresidential uses of the property are only
incidental to the use of the property as a residential site. For
purposes of this paragraph, "land owned by the claimant" includes an
ownership interest in a resident-owned mobilehome park that is
assessed pursuant to subdivision (b) of Section 62.1.
(4) "Original property" means a building, structure, or other
shelter constituting a place of abode, whether real property or
personal property, that is owned and occupied by a claimant as his or
her principal place of residence, and any land owned by the claimant
on which the building, structure, or other shelter is situated. For
purposes of this paragraph, land constituting a part of the original
property includes only that area of reasonable size that is used as a
site for a residence, and "land owned by the claimant" includes land
for which the claimant either holds a leasehold interest described
in subdivision (c) of Section 61 or a land purchase contract. Each
unit of a multiunit dwelling shall be considered a separate original
property. For purposes of this paragraph, "area of reasonable size
that is used as a site for a residence" includes all land if any
nonresidential uses of the property are only incidental to the use of
the property as a residential site. For purposes of this paragraph,
"land owned by the claimant" includes an ownership interest in a
resident-owned mobilehome park that is assessed pursuant to
subdivision (b) of Section 62.1.
(5) "Equal or lesser value" means that the amount of the full cash
value of a replacement dwelling does not exceed one of the
following:
(A) One hundred percent of the amount of the full cash value of
the original property if the replacement dwelling is purchased or
newly constructed prior to the date of the sale of the original
property.
(B) One hundred five percent of the amount of the full cash value
of the original property if the replacement dwelling is purchased or
newly constructed within the first year following the date of the
sale of the original property.
(C) One hundred ten percent of the amount of the full cash value
of the original property if the replacement dwelling is purchased or
newly constructed within the second year following the date of the
sale of the original property.
For the purposes of this paragraph, except as otherwise provided
in paragraph (4) of subdivision (h), if the replacement dwelling is,
in part, purchased and, in part, newly constructed, the date the
"replacement dwelling is purchased or newly constructed" is the date
of purchase or the date of completion of construction, whichever is
later.
(6) "Full cash value of the replacement dwelling" means its full
cash value, determined in accordance with Section 110.1, as of the
date on which it was purchased or new construction was completed, and
after the purchase or the completion of new construction.
(7) "Full cash value of the original property" means, either:
(A) Its new base year value, determined in accordance with
subdivision (e), without the application of subdivision (h) of
Section 2 of Article XIII A of the California Constitution, plus the
adjustments permitted by subdivision (b) of Section 2 of Article XIII
A and subdivision (f) of Section 110.1 for the period from the date
of its sale by the claimant to the date on which the replacement
property was purchased or new construction was completed.
(B) In the case where the original property has been substantially
damaged or destroyed by misfortune or calamity and the owner does
not rebuild on the original property, its full cash value, as
determined in accordance with Section 110, immediately prior to its
substantial damage or destruction by misfortune or calamity, as
determined by the county assessor of the county in which the property
is located, without the application of subdivision (h) of Section 2
of Article XIII A of the California Constitution, plus the
adjustments permitted by subdivision (b) of Section 2 of Article XIII
A and subdivision (f) of Section 110.1, for the period from the date
of its sale by the claimant to the date on which the replacement
property was purchased or new construction was completed.
(8) "Sale" means any change in ownership of the original property
for consideration.
(9) "Claimant" means any person claiming the property tax relief
provided by this section. If a spouse of that person is a record
owner of the replacement dwelling, the spouse is also a claimant for
purposes of determining whether in any future claim filed by the
spouse under this section the condition of eligibility specified in
paragraph (7) of subdivision (b) has been met.
(10) "Property that is eligible for the homeowners' exemption"
includes property that is the principal place of residence of its
owner and is entitled to exemption pursuant to Section 205.5.
(11) "Person" means any individual, but does not include any firm,
partnership, association, corporation, company, or other legal
entity or organization of any kind. "Person" includes an individual
who is the present beneficiary of a trust.
(12) "Severely and permanently disabled" means any person
described in subdivision (b) of Section 74.3.
(13) For the purposes of this section, property is "substantially
damaged or destroyed by misfortune or calamity" if it sustains
physical damage amounting to more than 50 percent of its full cash
value immediately prior to the misfortune or calamity. Damage
includes a diminution in the value of property as a result of
restricted access to the property where the restricted access was
caused by the misfortune or calamity and is permanent in nature.
(h) (1) Upon the timely filing of a claim described in
subparagraph (F) of paragraph (1) of subdivision (f), the assessor
shall adjust the new base year value of the replacement dwelling in
conformity with this section. This adjustment shall be made as of the
latest of the following dates:
(A) The date the original property is sold.
(B) The date the replacement dwelling is purchased.
(C) The date the new construction of the replacement dwelling is
completed.
(2) Any taxes that were levied on the replacement dwelling prior
to the filing of the claim on the basis of the replacement dwelling'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) shall be utilized for purposes of implementing this
subdivision, including adjustments of the new base year value of
replacement dwellings acquired prior to the sale of the original
property.
(4) In the case where a claim under this section has been timely
filed and granted, and new construction is performed upon the
replacement dwelling subsequent to the transfer of base year value,
the property tax relief provided by this section also shall apply to
the replacement dwelling, as improved, and thus there shall be no
reassessment upon completion of the new construction if both of the
following conditions are met:
(A) The new construction is completed within two years of the date
of the sale of the original property and the owner notifies the
assessor in writing of completion of the new construction within 30
days after completion.
(B) The fair market value of the new construction on the date of
completion, plus the full cash value of the replacement dwelling on
the date of acquisition, is not more than the full cash value of the
original property as determined pursuant to paragraph (7) of
subdivision (g) for purposes of granting the original claim.
(i) Any claimant
may rescind a claim for the property tax relief provided by this
section and shall not be considered to have received that relief for
purposes of paragraph (7) of subdivision (b), and the assessor shall
grant the rescission, if a written notice of rescission is delivered
to the office of the assessor as follows:
(1) A written notice of rescission signed by the original filing
claimant or claimants is delivered to the office of the assessor in
which the original claim was filed.
(2) (A) Except as otherwise provided in this paragraph, the notice
of rescission is delivered to the office of the assessor before the
date that the county first issues, as a result of relief granted
under this section, a refund check for property taxes imposed upon
the replacement dwelling. If granting relief will not result in a
refund of property taxes, then the notice shall be delivered before
payment is first made of any property taxes, or any portion thereof,
imposed upon the replacement dwelling consistent with relief granted
under this section. If payment of the taxes is not made, then notice
shall be delivered before the first date that those property taxes,
or any portion thereof, imposed upon the replacement dwelling,
consistent with relief granted under this section, are delinquent.
(B) Notwithstanding any other provision in this division, any time
the notice of rescission is delivered to the office of the assessor
within six years after relief was granted, provided that the
replacement property has been vacated as the claimant's principal
place of residence within 90 days after the original claim was filed,
regardless of whether the property continues to receive the
homeowners' exemption. If the rescission increases the base year
value of a property, or the homeowners' exemption has been
incorrectly allowed, appropriate escape assessments or supplemental
assessments, including interest as provided in Section 506, shall be
imposed. The limitations periods for any escape assessments or
supplemental assessments shall not commence until July 1 of the
assessment year in which the notice of rescission is delivered to the
office of the assessor.
(3) The notice is accompanied by the payment of a fee as the
assessor may require, provided that the fee shall not exceed an
amount reasonably related to the estimated cost of processing a
rescission claim, including both direct costs and developmental and
indirect costs, such as costs for overhead, personnel, supplies,
materials, office space, and computers.
(j) (1) With respect to the transfer of base year value of
original properties to replacement dwellings located in the same
county, this section, except as provided in paragraph (3) or (4),
shall apply to any replacement dwelling that is purchased or newly
constructed on or after November 6, 1986.
(2) With respect to the transfer of base year value of original
properties to replacement dwellings located in different counties,
except as provided in paragraph (4), this section shall apply to any
replacement dwelling that is purchased or newly constructed on or
after the date specified in accordance with subparagraph (E) of
paragraph (2) of subdivision (a) in the ordinance of the county in
which the replacement dwelling is located, but shall not apply to any
replacement dwelling which was purchased or newly constructed before
November 9, 1988.
(3) With respect to the transfer of base year value by a severely
and permanently disabled person, this section shall apply only to
replacement dwellings that are purchased or newly constructed on or
after June 6, 1990.
(4) The amendments made to subdivision (e) by the act adding this
paragraph shall apply only to replacement dwellings under Section 69
that are acquired or newly constructed on or after October 20, 1991,
and shall apply commencing with the 1991-92 fiscal year.
(k) (1) In the case in which a county adopts an ordinance pursuant
to paragraph (2) of subdivision (a) that establishes an applicable
date which is more than three years prior to the date of adoption of
the ordinance, those potential claimants who purchased or constructed
replacement dwellings more than three years prior to the date of
adoption of the ordinance and who would, therefore, be precluded from
filing a timely claim, shall be deemed to have timely filed a claim
if the claim is filed within three years after the date that the
ordinance is adopted. This paragraph may not be construed as a waiver
of any other requirement of this section.
(2) In the case in which a county assessor corrects a base year
value to reflect a pro rata change in ownership of a resident-owned
mobilehome park that occurred between January 1, 1989, and January 1,
2002, pursuant to paragraph (4) of subdivision (b) of Section 62.1,
those claimants who purchased or constructed replacement dwellings
more than three years prior to the correction and who would,
therefore, be precluded from filing a timely claim, shall be deemed
to have timely filed a claim if the claim is filed within three years
of the date of notice of the correction of the base year value to
reflect the pro rata change in ownership. This paragraph may not be
construed as a waiver of any other requirement of this section.
(3) This subdivision does not apply to a claimant who has
transferred his or her replacement dwelling prior to filing a claim.
(4) The property tax relief provided by this section, but filed
under this subdivision, shall apply prospectively only, commencing
with the lien date of the assessment year in which the claim is
filed. There shall be no refund or cancellation of taxes prior to the
date that the claim is filed.
(l) No escape assessment may be levied if a transfer of base year
value under this section has been erroneously granted by the assessor
pursuant to an expired ordinance authorizing intercounty transfers
of base year value.
(m) (1) The amendments made to subdivisions (b) and (g) by Chapter
613 of the Statutes of 2001 shall apply:
(A) With respect to the transfer of base year value of original
properties to replacement dwellings located in the same county, to
any replacement dwelling that is purchased or newly constructed on or
after November 6, 1986.
(B) With respect to the transfer of base year value of original
properties to replacement dwellings located in different counties, to
any replacement dwelling that is purchased or newly constructed on
or after the date specified in accordance with subparagraph (E) of
paragraph (2) of subdivision (a) in the ordinance of the county in
which the replacement dwelling is located, but not to any replacement
dwelling that was purchased or newly constructed before November 9,
1988.
(C) With respect to the transfer of base year value by a severely
and permanently disabled person, to replacement dwellings that are
purchased or newly constructed on or after June 6, 1990.
(2) The property tax relief provided by this section in accordance
with this subdivision shall apply prospectively only commencing with
the lien date of the assessment year in which the claim is filed.
There shall be no refund or cancellation of taxes prior to the date
that the claim is filed.
(n) A claim filed under this section is not a public document and
is not subject to public inspection, except that a claim shall be
available for inspection by the claimant or the claimant's spouse,
the claimant's or the claimant's spouse's legal representative, the
trustee of a trust in which the claimant or the claimant's spouse is
a present beneficiary, and the executor or administrator of the
claimant's or the claimant's spouse's estate.
SEC. 274. Section 7104 of the Revenue and Taxation Code is amended
to read:
7104. (a) The Transportation Investment Fund (hereafter the fund)
is hereby created in the State Treasury. Notwithstanding Section
13340 of the Government Code, the moneys in the fund are continuously
appropriated without regard to fiscal years for disbursement in the
manner and for the purposes set forth in this section.
(b) All of the following shall occur on a quarterly basis:
(1) The State Board of Equalization, in consultation with the
Department of Finance, shall estimate the amount that is transferred
to the General Fund under subdivision (b) of Section 7102 that is
attributable to revenue collected for the sale, storage, use, or
other consumption in this state of motor vehicle fuel, as defined in
Section 7326.
(2) The State Board of Equalization shall inform the Controller,
in writing, of the amount estimated under paragraph (1).
(3) Commencing with the 2003-04 fiscal year, the Controller shall
transfer the amount estimated under paragraph (1) from the General
Fund to the fund.
(c) For each quarter during the period commencing on July 1, 2003,
and ending on June 30, 2008, the Controller shall make all of the
following transfers and apportionments from the funds identified for
transfer under paragraph (2) of subdivision (b) in the following
order:
(1) To the Traffic Congestion Relief Fund created in the State
Treasury by Section 14556.5 of the Government Code, the sum of one
hundred sixty-nine million five hundred thousand dollars
($169,500,000), except that the transfer for the final quarter shall
be ninety-three million four hundred thousand dollars ($93,400,000),
for a total transfer of three billion three hundred thirteen million
nine hundred thousand dollars ($3,313,900,000).
(2) To the Public Transportation Account, a trust fund in the
State Transportation Fund, 20 percent of the amount remaining after
the transfer required under paragraph (1). Funds transferred under
this paragraph shall be made available as follows:
(A) To the Department of Transportation, 50 percent for purposes
of subdivision (a) or (b) of Section 99315 of the Public Utilities
Code, subject to appropriation by the Legislature.
(B) To the Controller, 25 percent for allocation pursuant to
Section 99314 of the Public Utilities Code. Funds allocated under
this subparagraph shall be subject to all of the provisions governing
funds allocated under Section 99314 of the Public Utilities Code.
For the 2007-08 fiscal year, these funds are continuously
appropriated to the Controller for purposes of this subparagraph.
(C) To the Controller, 25 percent for allocation pursuant to
Section 99313 of the Public Utilities Code. Funds allocated under
this subparagraph shall be subject to all of the provisions governing
funds allocated under Section 99313 of the Public Utilities Code.
For the 2007-08 fiscal year, these funds are continuously
appropriated to the Controller for purposes of this subparagraph.
(3) To the Department of Transportation for expenditure for
programming for transportation capital improvement projects subject
to all of the provisions governing the State Transportation
Improvement Program, 40 percent of the amount remaining after the
transfer required under paragraph (1), except that in the 2006-07 and
2007-08 fiscal years, the transfer shall be 80 percent of the amount
remaining after the transfer required under paragraph (1).
(4) To the Controller for apportionment to the counties, including
a city and county, 20 percent of the amount remaining after the
transfer required under paragraph (1), except that in the 2006-07 and
2007-08 fiscal years, no transfer may be made under this paragraph.
Funds transferred under this paragraph shall be allocated in
accordance with the following formulas:
(A) Seventy-five percent of the funds payable under this paragraph
shall be apportioned among the counties in the proportion that the
number of fee-paid and exempt vehicles that are registered in the
county bears to the number of fee-paid and exempt vehicles registered
in the state.
(B) Twenty-five percent of the funds payable under this paragraph
shall be apportioned among the counties in the proportion that the
number of miles of maintained county roads in each county bears to
the total number of miles of maintained county roads in the state.
For the purposes of apportioning funds under this subparagraph, any
roads within the boundaries of a city and county that are not state
highways shall be deemed to be county roads.
(5) To the Controller for apportionment to cities, including a
city and county, 20 percent of the amount remaining after the
transfer required under paragraph (1), except that in the 2006-07 and
2007-08 fiscal years, no transfer may be made under this paragraph.
Funds transferred under this paragraph shall be apportioned among the
cities in the proportion that the total population of the city bears
to the total population of all the cities in the state.
(d) Funds received under paragraph (4) or (5) of subdivision (c)
shall be deposited as follows in order to avoid the commingling of
those funds with other local funds:
(1) In the case of a city, into the city account that is
designated for the receipt of state funds allocated for
transportation purposes.
(2) In the case of a county, into the county road fund.
(3) In the case of a city and county, into a local account that is
designated for the receipt of state funds allocated for
transportation purposes.
(e) Funds allocated to a city, county, or city and county under
paragraph (4) or (5) of subdivision (c) shall be used only for street
and highway maintenance, rehabilitation, reconstruction, and storm
damage repair. For purposes of this section, the following terms have
the following meanings:
(1) "Maintenance" means either or both of the following:
(A) Patching.
(B) Overlay and sealing.
(2) "Reconstruction" includes any overlay, sealing, or widening of
the roadway, if the widening is necessary to bring the roadway width
to the desirable minimum width consistent with the geometric design
criteria of the department for 3R (reconstruction, resurfacing, and
rehabilitation) projects that are not on a freeway, but does not
include widening for the purpose of increasing the traffic capacity
of a street or highway.
(3) "Storm damage repair" is repair or reconstruction of local
streets and highways and related drainage improvements that have been
damaged due to winter storms and flooding, and construction of
drainage improvements to mitigate future roadway flooding and damage
problems, in those jurisdictions that have been declared disaster
areas by the President of the United States, where the costs of those
repairs are ineligible for emergency funding with Federal Emergency
Relief (ER) funds or Federal Emergency Management Administration
(FEMA) funds.
(f) (1) Cities and counties shall maintain their existing
commitment of local funds for street and highway maintenance,
rehabilitation, reconstruction, and storm damage repair in order to
remain eligible for the allocation of funds pursuant to paragraph (4)
or (5) of subdivision (c).
(2) In order to receive any allocation pursuant to paragraph (4)
or (5) of subdivision (c), the city or county shall annually expend
from its general fund for street, road, and highway purposes an
amount not less than the annual average of its expenditures from its
general fund during the 1996-97, 1997-98, and 1998-99 fiscal years,
as reported to the Controller pursuant to Section 2151 of the Streets
and Highways Code. For purposes of this paragraph, in calculating a
city's or county's annual general fund expenditures and its average
general fund expenditures for the 1996-97, 1997-98, and 1998-99
fiscal years, any unrestricted funds that the city or county may
expend at its discretion, including vehicle in-lieu tax revenues and
revenues from fines and forfeitures, expended for street and highway
purposes shall be considered expenditures from the general fund.
One-time allocations that have been expended for street and highway
purposes, but which may not be available on an ongoing basis,
including revenue provided under the Teeter Plan Bond Law of 1994
(Chapter 6.6 (commencing with Section 54773) of Part 1 of Division 2
of Title 5 of the Government Code), may not be considered when
calculating a city's or county's annual general fund expenditures.
(3) For any city incorporated after July 1, 1996, the Controller
shall calculate an annual average of expenditure for the period
between July 1, 1996, and December 31, 2000, inclusive, that the city
was incorporated.
(4) For purposes of paragraph (2), the Controller may request
fiscal data from cities and counties in addition to data provided
pursuant to Section 2151, for the 1996-97, 1997-98, and 1998-99
fiscal years. Each city and county shall furnish the data to the
Controller not later than 120 days after receiving the request. The
Controller may withhold payment to cities and counties that do not
comply with the request for information or that provide incomplete
data.
(5) The Controller may perform audits to ensure compliance with
paragraph (2) when deemed necessary. Any city or county that has not
complied with paragraph (2) shall reimburse the state for the funds
it received during that fiscal year. Any funds withheld or returned
as a result of a failure to comply with paragraph (2) shall be
reallocated to the other counties and cities whose expenditures are
in compliance.
(6) If a city or county fails to comply with the requirements of
paragraph (2) in a particular fiscal year, the city or county may
expend during that fiscal year and the following fiscal year a total
amount that is not less than the total amount required to be expended
for those fiscal years for purposes of complying with paragraph (2).
(7) The allocation made under paragraph (4) or (5) of subdivision
(c) shall be expended not later than the end of the fiscal year
following the fiscal year in which the allocation was made, and any
funds not expended within that period shall be returned to the
Controller and shall be reallocated to the other cities and counties
pursuant to the allocation formulas set forth in paragraph (4) or (5)
of subdivision (c).
(g) The Los Angeles County Metropolitan Transportation Authority
shall give first priority for using its share of the funds made
available under subparagraphs (B) and (C) of paragraph (2) of
subdivision (c) to providing the levels of bus service mandated under
the consent decree entered into by the authority on October 29,
1996, in the case of Labor/Community Strategy Center, et al. v. Los
Angeles County Metropolitan Transportation Authority.
(h) (1) For the purpose of allocating funds under paragraph (4) or
(5) of subdivision (c) to counties, cities, and a city and county,
the Controller shall use the most recent population estimates
prepared by the Demographic Research Unit of the Department of
Finance. For a city that incorporated after January 1, 1998, that
does not appear on the most recent population estimates prepared by
the Demographic Research Unit, the Controller shall use the
population determined for that city under Section 11005.3 of the
Revenue and Taxation Code.
(2) The amendments made to Section 11005.3 by the act adding this
paragraph shall not apply to a population determination under
paragraph (1).
(i) This section shall become inoperative on the date that all
encumbrances incurred for the projects funded under paragraph (3) of
subdivision (c) have been liquidated or on June 30, 2008, whichever
date is later, and as of the January 1 immediately following that
date is repealed.
SEC. 275. Section 17561 of the Revenue and Taxation Code is
amended to read:
17561. (a) Section 469(c)(7) of the Internal Revenue Code,
relating to special rules for taxpayers in real property business,
shall not apply.
(b) Section 469(d)(2) of the Internal Revenue Code, relating to
passive activity credits, is modified to refer to the following
credits:
(1) The credit for research expenses allowed by Section 17052.12.
(2) The credit for certain wages paid (targeted jobs) allowed by
Section 17053.7.
(3) The credit allowed by former Section 17057 (relating to
clinical testing expenses).
(4) The credit for low-income housing allowed by Section 17058.
(c) Section 469(g)(1)(A) of the Internal Revenue Code is modified
to provide that if all gain or loss realized on the disposition of
the taxpayer's entire interest in any passive activity (or former
passive activity) is recognized, the excess of--
(1) The sum of--
(A) Any loss from that activity for that taxable year (determined
after application of Section 469(b) of the Internal Revenue Code),
plus
(B) Any loss realized on that disposition, over
(2) Net income or gain for the taxable year from all passive
activities (determined without regard to losses described in
paragraph (1)),
shall be treated as a loss which is not from a passive activity.
(d) For purposes of applying the provisions of Section 469(i) of
the Internal Revenue Code, relating to the twenty-five thousand
dollars ($25,000) offset for rental real estate activities, the
dollar limitation for the credit allowed under Section 17058
(relating to low-income housing) shall be equal to seventy-five
thousand dollars ($75,000) in lieu of the amount specified in Section
469(i)(2) of the Internal Revenue Code.
(e) Section 502 of the Tax Reform Act of 1986 (P.L. 99-514) shall
apply.
(f) For taxable years beginning on or after January 1, 1987, the
provisions of Section 10212 of Public Law 100-203, relating to
treatment of publicly traded partnerships under Section 469 of the
Internal Revenue Code, shall be applicable.
SEC. 276. Section 18639 of the Revenue and Taxation Code is
amended to read:
18639. (a) (1) In addition to those reports required under
paragraph (8) of subdivision (c) of Section 18631, information
returns shall be required, at the time and in the form and manner and
to the extent that the Franchise Tax Board may prescribe, from both
of the following:
(A) Every person who makes payments of exempt-interest dividends,
as described in Section 852(b)(5) of the Internal Revenue Code, that
are not exempt-interest dividends, as described in Section 17145 of
this code, aggregating ten dollars ($10) or more to any person, other
than to any person described in paragraph (2), during any calendar
year.
(B) Every person who receives payments of interest as a nominee
and who makes payments aggregating ten dollars ($10) or more during
any calendar year to any other person, other than to any person
described in paragraph (2), with respect to the interest so received.
For purposes of this paragraph, "interest" is limited to interest on
any obligation if the interest is exempt from tax under Section 103
(a) of the Internal Revenue Code or if the interest is exempt from
tax, without regard to the identity of the holder, under any other
provision of Title 26 of the United States Code, but which is not
exempt from income tax under Part 10 (commencing with Section 17001).
(2) For purposes of this subdivision, a person shall not be
required to make a report pursuant to paragraph (1) if the person
receiving the payment is any of the following:
(A) A corporation.
(B) An organization exempt from taxation under Section 23701 or an
individual retirement plan.
(C) The United States or any wholly owned agency or
instrumentality thereof.
(D) A state, the District of Columbia, a possession of the United
States, any political subdivision of any of the foregoing, or any
wholly owned agency or instrumentality of any one or more of the
foregoing.
(E) A foreign government, a political subdivision of a foreign
government, or any wholly owned agency or instrumentality of any one
or more of the foregoing.
(F) An international organization or any wholly owned agency or
instrumentality thereof.
(G) A foreign central bank of issue.
(H) A dealer in securities or commodities required to register
under the laws of the United States or a state, the District of
Columbia, or possession of the United States.
(I) A real estate investment trust, as defined in Section 856 of
the Internal Revenue Code.
(J) An investment company, as defined in Section 80a-3 of the
United States Code, registered at all times during the taxable year
under the Investment Company Act of 1940.
(K) A common trust fund, as defined in Section 17671.
(L) Any trust that is exempt from tax under Section 664(c) of the
Internal Revenue Code.
(b) Every person required to make a return under this section
shall also furnish a statement to each person whose name is set forth
in the return, as required to do so by the Internal Revenue Code.
SEC. 277. Section 19141 of the Revenue and Taxation Code is
amended to read:
19141. Upon certification by the Secretary of State pursuant to
subdivision (a) of Section 2204 or subdivision (a) of Section 17653
of the Corporations Code, the Franchise Tax Board shall assess a
penalty of two hundred fifty dollars ($250). Upon certification by
the Secretary of State pursuant to subdivision (a) of Section 6810 or
subdivision (a) of Section 8810 of the Corporations Code, the
Franchise Tax Board shall assess a penalty of fifty dollars ($50).
Any penalty assessed under this section shall be a final assessment
due and payable at the time of assessment but no interest shall
accrue thereon. The assessment shall be collected as other taxes,
interest, and penalties are collected by the Franchise Tax Board
unless the Secretary of State decertifies the name of the corporation
as provided in subdivision (e) or (f) of Section 2204, subdivision
(e) of Section 6810, or subdivision (e) of Section 8810 of the
Corporations Code.
SEC. 278. Section 19191 of the Revenue and Taxation Code is
amended to read:
19191. (a) The Franchise Tax Board may enter into a voluntary
disclosure agreement with any qualified entity, qualified
shareholder, qualified member, or qualified beneficiary as defined in
Section 19192, that is binding on both the Franchise Tax Board and
the qualified entity, qualified shareholder, qualified member, or
qualified beneficiary.
(b) The Franchise Tax Board shall do all of the following:
(1) Provide guidelines and establish procedures for qualified
entities and their qualified shareholders, qualified members, or
qualified beneficiaries to apply for voluntary disclosure agreements.
(2) Accept applications on an anonymous basis from qualified
entities and their qualified shareholders, qualified members, or
qualified beneficiaries for voluntary disclosure agreements.
(3) Implement procedures for accepting applications for voluntary
disclosure agreements through the National Nexus Program administered
by the Multistate Tax Commission.
(4) For purposes of considering offers from qualified
entities and their qualified shareholders, qualified members, or
qualified beneficiaries to enter into voluntary disclosure
agreements, take into account the following criteria:
(A) The nature and magnitude of the qualified entity's previous
presence and activity in this state and the facts and circumstances
by which the nexus of the qualified entity or qualified shareholder,
qualified member, or qualified beneficiary was established.
(B) The extent to which the weight of the factual circumstances
demonstrates that a prudent business person exercising reasonable
care would conclude that the previous activities and presence in this
state were or were not immune from taxation by this state by reason
of Public Law 86-272 or otherwise.
(C) Reasonable reliance on the advice of a person in a fiduciary
position or other competent advice that the qualified entity or
qualified shareholder, qualified member, or qualified beneficiary
activities were immune from taxation by this state.
(D) Lack of evidence of willful disregard or neglect of the tax
laws of this state on the part of the qualified entity or qualified
shareholder, qualified member, or qualified beneficiary.
(E) Demonstrations of good faith on the part of the qualified
entity.
(F) Benefits that will accrue to the state by entering into a
voluntary disclosure agreement.
(5) Act on any application of a voluntary disclosure agreement
within 120 days of receipt.
(6) Enter into voluntary disclosure agreements with qualified
entities, qualified shareholders, qualified members, or qualified
beneficiaries, as authorized in subdivision (a) and based on the
criteria set forth in paragraph (4).
(c) Before any voluntary disclosure agreement becomes binding, the
Franchise Tax Board, itself, shall approve the agreement in the
following manner:
(1) The Executive Officer and Chief Counsel of the Franchise Tax
Board shall recommend and submit the voluntary disclosure agreement
to the Franchise Tax Board for approval.
(2) Each voluntary disclosure agreement recommendation shall be
submitted in a manner as to maintain the anonymity of the taxpayer
applying for the voluntary disclosure agreement.
(3) Any recommendation for approval of a voluntary disclosure
agreement shall be approved or disapproved by the Franchise Tax
Board, itself, within 45 days of the submission of that
recommendation to the board.
(4) Any recommendation of a voluntary disclosure agreement that is
not either approved or disapproved by the board within 45 days of
the submission of that recommendation shall be deemed approved.
(5) Disapproval of a recommendation of a voluntary disclosure
agreement shall be made only by a majority vote of the Franchise Tax
Board.
(6) The members of the Franchise Tax Board shall not participate
in any voluntary disclosure agreement except as provided in this
subdivision.
(d) The voluntary disclosure agreement entered into by the
Franchise Tax Board and the qualified entity, qualified shareholder,
qualified member, or qualified beneficiary as provided for in
subdivision (a) shall to the extent applicable specify that:
(1) The Franchise Tax Board shall with respect to a qualified
entity, qualified shareholder, qualified member, or qualified
beneficiary, except as provided in paragraph (4), (6), or (9) of
subdivision (a) of Section 19192:
(A) Waive its authority under this part, Part 10 (commencing with
Section 17001), or Part 11 (commencing with Section 23001) to assess
or propose to assess taxes, additions to tax, fees, or penalties with
respect to each taxable year ending prior to six years from the
signing date of the voluntary disclosure agreement.
(B) With respect to each of the six taxable years ending
immediately preceding the signing date of the voluntary disclosure
agreement, based on its discretion, agree to waive any or all of the
following:
(i) Any penalty related to a failure to make and file a return, as
provided in Section 19131.
(ii) Any penalty related to a failure to pay any amount due by the
date prescribed for payment, as provided in Section 19132.
(iii) Any addition to tax related to an underpayment of estimated
tax, as provided in Section 19136.
(iv) Any penalty related to Section 6810 or subdivision (a) of
Section 8810 of the Corporations Code, as provided in Section 19141
of this code.
(v) Any penalty related to a failure to furnish information or
maintain records, as provided in Section 19141.5.
(vi) Any addition to tax related to an underpayment of tax imposed
under Part 11 (commencing with Section 23001), as provided in
Section 19142.
(vii) Any penalty related to a partnership required to file a
return under Section 18633, as provided in Section 19172.
(viii) Any penalty related to a failure to file information
returns, as provided in Section 19183.
(ix) Any penalty related to relief from contract voidability, as
provided in Section 23305.1.
(2) The qualified entity, qualified shareholder, qualified member,
or qualified beneficiary shall:
(A) With respect to each of the six taxable years ending
immediately preceding the signing date of the written agreement:
(i) Voluntarily and fully disclose on the qualified entity's
application all material facts pertinent to the qualified entity's,
shareholder's, member's, or beneficiary's liability for any taxes
imposed under Part 10 (commencing with Section 17001) or Part 11
(commencing with Section 23001).
(ii) Except as provided in paragraph (3), within 30 days from the
signing date of the voluntary disclosure agreement:
(I) File all returns required under this part, Part 10 (commencing
with Section 17001), or Part 11 (commencing with Section 23001).
(II) Pay in full any tax, interest, fee, and penalties, other than
those penalties specifically waived by the Franchise Tax Board under
the terms of the voluntary disclosure agreement, imposed under this
part, Part 10 (commencing with Section 17001), or Part 11 (commencing
with Section 23001) in a manner as may be prescribed by the
Franchise Tax Board. Paragraph (1) of subdivision (f) of Section
23153 shall not apply to qualified entities admitted into the
voluntary disclosure program.
(B) Agree to comply with all franchise and income tax laws of this
state in subsequent taxable years by filing all returns required and
paying all amounts due under this part, Part 10 (commencing with
Section 17001), or Part 11 (commencing with Section 23001).
(3) The Franchise Tax Board may extend the time for filing returns
and paying amounts due to 120 days from the signing date of the
voluntary disclosure agreement or to the latest extended due date of
the return for a taxable year for which relief is granted, whichever
is later.
(e) No addition to tax under Sections 19136 or 19142 shall be made
for any underpayment of estimated tax attributable to the
underpayment of an installment of estimated tax due before the
signing date of the voluntary disclosure agreement.
(f) The amendments to this section made by Chapter 954 of the
Statutes of 1996 shall apply to taxable years beginning on or after
January 1, 1997.
(g) The amendments to this section made by Chapter 543 of the
Statutes of 2001 shall apply to voluntary disclosure agreements
entered into on or after January 1, 2002.
(h) The amendments to this section made by Chapter 543 of the
Statutes of 2001 shall apply to voluntary disclosure agreements
entered into on or after January 1, 2005.
(i) The amendments to this section made by the act adding this
subdivision shall apply to voluntary disclosure agreements entered
into on or after January 1, 2011.
SEC. 279. Section 19192 of the Revenue and Taxation Code is
amended to read:
19192. For purposes of this article, the following terms have the
following meanings:
(a) (1) "Qualified entity" means an entity that is all of the
following:
(A) A corporation, as defined in Section 23038, a limited
liability company, as defined in subdivision (d) of Section 17941, or
a qualified trust, as defined in paragraph (7).
(B) An entity, including any predecessors to the entity, that
previously has never filed a return with the Franchise Tax Board
pursuant to this part, Part 10 (commencing with Section 17001), or
Part 11 (commencing with Section 23011).
(C) An entity, including any predecessors to the entity, that
previously has not been the subject of an inquiry by the Franchise
Tax Board with respect to liability for any of the taxes imposed
under Part 10 (commencing with Section 17001) or Part 11 (commencing
with Section 23001).
(D) An entity that voluntarily comes forward prior to any
unilateral contact from the Franchise Tax Board, makes application
for a voluntary disclosure agreement in a form and manner prescribed
by the Franchise Tax Board, and makes a full and accurate statement
of its activities in this state for the six immediately preceding
taxable years.
(2) (A) Notwithstanding paragraph (1), a qualified entity does not
include any of the following:
(i) An entity that is organized and existing under the laws of
this state.
(ii) An entity that is qualified or registered with the office of
the Secretary of State.
(iii) An entity that maintains and staffs a permanent facility in
this state.
(B) For purposes of this paragraph, the storing of materials,
goods, or products in a public warehouse pursuant to a public
warehouse contract does not constitute maintaining a permanent
facility in this state.
(3) "Qualified shareholder" means an individual that is all of the
following:
(A) A nonresident on the signing date of the voluntary disclosure
agreement.
(B) A shareholder of an "S" corporation (defined in Section 23800)
that has applied for a voluntary disclosure agreement under this
article under which all material facts pertinent to the shareholder's
liability would be disclosed on that "S" corporation's voluntary
disclosure agreement as required under clause (i) of subparagraph (A)
of paragraph (2) of subdivision (d) of Section 19191.
(4) Notwithstanding paragraph (3), subparagraph (B) of paragraph
(1) of subdivision (d) of Section 19191 shall not apply to any of the
six taxable years immediately preceding the signing date that the
qualified shareholder was a California resident required to file a
California tax return, nor to any penalties or additions to tax
attributable to income other than the California source income from
the "S" corporation that filed an application under this article.
(5) "Qualified member" means an individual, corporation, or
limited liability company that is all of the following:
(A) (i) In the case of an individual, is a nonresident on the
signing date of the voluntary disclosure agreement.
(ii) In the case of a corporation or limited liability company, is
not either of the following:
(I) Organized under the laws of this state.
(II) Qualified or registered with the office of the Secretary of
State.
(B) A member of a limited liability company that has applied for a
voluntary disclosure agreement under this article under which all
material facts pertinent to the member's liability would be disclosed
on that limited liability company's voluntary disclosure agreement
as required under clause (i) of subparagraph (A) of paragraph (2) of
subdivision (d) of Section 19191.
(6) Notwithstanding paragraph (5), in the case of a qualified
member who is an individual, subparagraph (B) of paragraph (1) of
subdivision (d) of Section 19191 shall not apply to any of the six
taxable years immediately preceding the signing date that the
qualified member was a California resident required to file a
California tax return, nor to any penalties or additions to tax
attributable to income other than the California source income from
the limited liability company that filed an application under this
article.
(7) "Qualified trust" means a trust that meets both of the
following:
(A) (i) The administration of the trust has never been performed
in California.
(ii) For purposes of this subparagraph, administrative activities
performed in California would be deemed to be performed outside of
California if those activities were inconsequential to the overall
administration of the trust.
(B) For six taxable years ending immediately preceding the signing
date of the voluntary disclosure agreement, the trust has had no
resident beneficiaries (other than a beneficiary whose interest in
that trust is contingent; a beneficiary's trust interest is not
contingent if the trust has made any distribution to the resident
beneficiary at any time during the six taxable years ending
immediately preceding the signing date of the voluntary disclosure
agreement).
(8) "Qualified beneficiary" means an individual who is all of the
following:
(A) A nonresident on the signing date of the voluntary disclosure
agreement and a nonresident during each of the six taxable years
ending immediately preceding the signing date of the voluntary
disclosure agreement.
(B) A beneficiary of a qualified trust that has applied for a
voluntary disclosure agreement under this article under which all
material facts pertinent to the beneficiary's liability would be
disclosed on that trust's voluntary disclosure agreement as required
under clause (i) of subparagraph (A) of paragraph (2) of subdivision
(d) of Section 19191.
(9) Notwithstanding paragraph (8), subparagraph (B) of paragraph
(1) of subdivision (d) of Section 19191 shall not apply to any
penalties or additions to tax attributable to income other than
income from the trust that filed an application under this article.
(b) "Signing date" of the voluntary disclosure agreement means the
date on which a person duly authorized by the Franchise Tax Board
signs the agreement.
(c) The amendments to this section made by Chapter 954 of the
Statutes of 1996 shall apply to taxable years beginning on or after
January 1, 1997.
(d) The amendments to this section made by Chapter 543 of the
Statutes of 2001 shall apply to voluntary disclosure agreements
entered into on or after January 1, 2002.
(e) The amendments to this section made by the act adding this
subdivision shall apply to voluntary disclosure agreements entered
into on or after January 1, 2005.
SEC. 280. Section 19194 of the Revenue and Taxation Code is
amended to read:
19194. (a) Notwithstanding any other provision of this article, a
voluntary disclosure agreement shall be null and void in the event
that the Franchise Tax Board finds that with respect to the agreement
any of the following circumstances exist:
(1) The qualified entity has misrepresented any material fact in
applying for the voluntary disclosure agreement or in entering into
the agreement.
(2) The qualified entity fails to file any returns for any taxable
year covered by the voluntary disclosure period agreed upon on or
before the due date prescribed under the terms of the agreement in
accordance with paragraph (2) of subdivision (d) of Section 19191.
(3) (A) The qualified entity fails to pay in full any tax, fee,
penalty, or interest due within the time prescribed under the terms
of the voluntary disclosure agreement in accordance with paragraph
(2) of subdivision (d) of Section 19191 or to pay any installments
thereof due within the time prescribed under the terms of an
installment payment arrangement in accordance with subparagraph (B).
(B) The Franchise Tax Board may enter into an installment payment
arrangement, which shall include provisions for interest, in lieu of
the full payment required under paragraph (2) of subdivision (d) of
Section 19191. Failure by the qualified entity to comply with the
terms of the installment payment arrangement shall also render the
voluntary disclosure agreement null and void.
(C) Notwithstanding subparagraphs (A) and (B), an applicant
applying for an installment payment arrangement shall have the same
time periods as identified in paragraphs (1) and (2) of subdivision
(d) of Section 19008 to pay in full any tax, fee, penalty, or
interest due.
(4) The tax shown by the qualified entity on its tax return filed
for any taxable year covered by the voluntary disclosure agreement,
including any amount shown on a qualified amended return, as defined
in Section 1.6664-2(c)(3) of Title 26 of the Code of Federal
Regulations, understates by 10 percent or more the tax imposed under
either Part 10 (commencing with Section 17001) or Part 11 (commencing
with Section 23001) and the qualified entity cannot demonstrate to
the satisfaction of the Franchise Tax Board that a good faith effort
was made to accurately compute the tax.
(5) The qualified entity fails to begin to prospectively comply
with all franchise and income tax laws of this state as agreed upon
under the terms of the voluntary disclosure agreement in accordance
with paragraph (2) of subdivision (d) of Section 19191.
(b) In the event that the Franchise Tax Board finds that the
qualified entity has failed to comply under any of the circumstances
which render the voluntary disclosure agreement null and void as set
forth in subdivision (a), the limitation on assessment for any
taxable years and the waiver of any penalties as provided for in
paragraph (1) of subdivision (d) and subdivision (h) of Section 19191
shall not be binding on the Franchise Tax Board.
(c) The amendments to this section made by the act adding this
subdivision shall apply to voluntary disclosure agreements entered
into on or after January 1, 2011.
SEC. 281. Section 23153 of the Revenue and Taxation Code is
amended to read:
23153. (a) Every corporation described in subdivision (b) shall
be subject to the minimum franchise tax specified in subdivision (d)
from the earlier of the date of incorporation, qualification, or
commencing to do business within this state, until the effective date
of dissolution or withdrawal as provided in Section 23331 or, if
later, the date the corporation ceases to do business within the
limits of this state.
(b) Unless expressly exempted by this part or the California
Constitution, subdivision (a) shall apply to each of the following:
(1) Every corporation that is incorporated under the laws of this
state.
(2) Every corporation that is qualified to transact intrastate
business in this state pursuant to Chapter 21 (commencing with
Section 2100) of Division 1 of Title 1 of the Corporations Code.
(3) Every corporation that is doing business in this state.
(c) The following entities are not subject to the minimum
franchise tax specified in this section:
(1) Credit unions.
(2) Nonprofit cooperative associations organized pursuant to
Chapter 1 (commencing with Section 54001) of Division 20 of the Food
and Agricultural Code that have been issued the certificate of the
board of supervisors prepared pursuant to Section 54042 of the Food
and Agricultural Code. The association shall be exempt from the
minimum franchise tax for five consecutive taxable years, commencing
with the first taxable year for which the certificate is issued
pursuant to subdivision (b) of Section 54042 of the Food and
Agricultural Code. This paragraph only applies to nonprofit
cooperative associations organized on or after January 1, 1994.
(d) (1) Except as provided in paragraph (2), paragraph (1) of
subdivision (f) of Section 23151, paragraph (1) of subdivision (f) of
Section 23181, and paragraph (1) of subdivision (c) of Section
23183, corporations subject to the minimum franchise tax shall pay
annually to the state a minimum franchise tax of eight hundred
dollars ($800).
(2) The minimum franchise tax shall be twenty-five dollars ($25)
for each of the following:
(A) A corporation formed under the laws of this state whose
principal business when formed was gold mining, which is inactive and
has not done business within the limits of the state since 1950.
(B) A corporation formed under the laws of this state whose
principal business when formed was quicksilver mining, which is
inactive and has not done business within the limits of the state
since 1971, or has been inactive for a period of 24 consecutive
months or more.
(3) For purposes of paragraph (2), a corporation shall not be
considered to have done business if it engages in business other than
mining.
(e) Notwithstanding subdivision (a), for taxable years beginning
on or after January 1, 1999, and before January 1, 2000, every
"qualified new corporation" shall pay annually to the state a minimum
franchise tax of five hundred dollars ($500) for the second taxable
year. This subdivision shall apply to any corporation that is a
qualified new corporation and is incorporated on or after January 1,
1999, and before January 1, 2000.
(1) The determination of the gross receipts of a corporation, for
purposes of this subdivision, shall be made by including the gross
receipts of each member of the commonly controlled group, as defined
in Section 25105, of which the corporation is a member.
(2) "Gross receipts, less returns and allowances reportable to
this state," means the sum of the gross receipts from the production
of business income, as defined in subdivision (a) of Section 25120,
and the gross receipts from the production of nonbusiness income, as
defined in subdivision (d) of Section 25120.
(3) "Qualified new corporation" means a corporation that is
incorporated under the laws of this state or has qualified to
transact intrastate business in this state, that begins business
operations at or after the time of its incorporation and that
reasonably estimates that it will have gross receipts, less returns
and allowances, reportable to this state for the taxable year of one
million dollars ($1,000,000) or less. "Qualified new corporation"
does not include any corporation that began business operations as a
sole proprietorship, a partnership, or any other form of business
entity prior to its incorporation. This subdivision shall not apply
to any corporation that reorganizes solely for the purpose of
reducing its minimum franchise tax.
(4) This subdivision shall not apply to limited partnerships, as
defined in Section 17935, limited liability companies, as defined in
Section 17941, limited liability partnerships, as described in
Section 17948, charitable organizations, as described in Section
23703, regulated investment companies, as defined in Section 851 of
the Internal Revenue Code, real estate investment trusts, as defined
in Section 856 of the Internal Revenue Code, real estate mortgage
investment conduits, as defined in Section 860D of the Internal
Revenue Code, qualified Subchapter S subsidiaries, as defined in
Section 1361(b)(3) of the Internal Revenue Code, or to the formation
of any subsidiary corporation, to the extent applicable.
(5) For any taxable year beginning on or after January 1, 1999,
and before January 1, 2000, if a corporation has qualified to pay
five hundred dollars ($500) for the second taxable year under this
subdivision, but in its second taxable year, the corporation's gross
receipts, as determined under paragraphs (1) and (2), exceed one
million dollars ($1,000,000), an additional tax in the amount equal
to three hundred dollars ($300) for the second taxable year shall be
due and payable by the corporation on the due date of its return,
without regard to extension, for that year.
(f) (1) Notwithstanding subdivision (a), every corporation that
incorporates or qualifies to do business in this state on or after
January 1, 2000, shall not be subject to the minimum franchise tax
for its first taxable year.
(2) This subdivision shall not apply to limited partnerships, as
defined in Section 17935, limited liability companies, as defined in
Section 17941, limited liability partnerships, as described in
Section 17948, charitable organizations, as described in Section
23703, regulated investment companies, as defined in Section 851 of
the Internal Revenue Code, real estate investment trusts, as defined
in Section 856 of the Internal Revenue Code, real estate mortgage
investment conduits, as defined in Section 860D of the Internal
Revenue Code, and qualified Subchapter S subsidiaries, as defined in
Section 1361(b)(3) of the Internal Revenue Code, to the extent
applicable.
(3) This subdivision shall not apply to any corporation that
reorganizes solely for the purpose of avoiding payment of its minimum
franchise tax.
(g) Notwithstanding subdivision (a), a domestic corporation, as
defined in Section 167 of the Corporations Code, that files a
certificate of dissolution in the office of the Secretary of State
pursuant to subdivision (b) of Section 1905 of the Corporations Code,
prior to its amendment by the act amending this subdivision, and
that does not thereafter do business shall not be subject to the
minimum franchise tax for taxable years beginning on or after the
date of that filing.
(h) The minimum franchise tax imposed by paragraph (1) of
subdivision (d) shall not be increased by the Legislature by more
than 10 percent during any calendar year.
(i) (1) Notwithstanding subdivision (a), a corporation that is a
small business solely owned by a deployed member of the United States
Armed Forces shall not be subject to the minimum franchise tax for
any taxable year the owner is deployed and the corporation operates
at a loss or ceases operation.
(2) The Franchise Tax Board may promulgate regulations as
necessary or appropriate to carry out the purposes of this
subdivision, including a definition for "ceases operation."
(3) For the purposes of this subdivision, all of the following
definitions apply:
(A) "Deployed" means being called to active duty or active service
during a period when a Presidential Executive order specifies that
the United States is engaged in combat or homeland defense. "Deployed"
does not include either of the following:
(i) Temporary duty for the sole purpose of training or processing.
(ii) A permanent change of station.
(B) "Operates at a loss" means negative net income as defined in
Section 24341.
(C) "Small business" means a corporation with total income from
all sources derived from, or attributable, to the state of two
hundred fifty thousand dollars ($250,000) or less.
(4) This subdivision shall become inoperative for taxable years
beginning on or after January 1, 2018.
SEC. 282. Section 23663 of the Revenue and Taxation Code is
amended to read:
23663. (a) (1) Notwithstanding any other law to the contrary, for
each taxable year beginning on or after July 1, 2008, any credit
allowed to a taxpayer under this chapter that is an eligible credit
may be assigned by that
taxpayer to any eligible assignee.
(2) A credit assigned under paragraph (1) may only be applied by
the eligible assignee against the "tax" (as defined in Section 23036)
of the eligible assignee in a taxable year beginning on or after
January 1, 2010.
(3) Except as specifically provided in this section, following an
assignment of any eligible credit under this section, the eligible
assignee shall be treated as if it originally earned the assigned
credit.
(b) For purposes of this section, the following definitions shall
apply:
(1) "Affiliated corporation" means a corporation that is a member
of a commonly controlled group as defined in Section 25105.
(2) "Eligible credit" shall mean:
(A) Any credit earned by the taxpayer in a taxable year beginning
on or after July 1, 2008, or
(B) Any credit earned in any taxable year beginning before July 1,
2008, that is eligible to be carried forward to the taxpayer's first
taxable year beginning on or after July 1, 2008, under the
provisions of this part.
(3) "Eligible assignee" shall mean any affiliated corporation that
is properly treated as a member of the same combined reporting group
pursuant to Section 25101 or 25110 as the taxpayer assigning the
eligible credit as of:
(A) In the case of credits earned in taxable years beginning
before July 1, 2008:
(i) June 30, 2008, and
(ii) The last day of the taxable year of the assigning taxpayer in
which the eligible credit is assigned.
(B) In the case of credits earned in taxable years beginning on or
after July 1, 2008.
(i) The last day of the first taxable year in which the credit was
allowed to the taxpayer, and
(ii) The last day of the taxable year of the assigning taxpayer in
which the eligible credit is assigned.
(c) (1) The election to assign any credit under subdivision (a)
shall be irrevocable once made, and shall be made by the taxpayer
allowed that credit on its original return for the taxable year in
which the assignment is made.
(2) The taxpayer assigning any credit under this section shall
reduce the amount of its unused credit by the face amount of any
credit assigned under this section, and the amount of the assigned
credit shall not be available for application against the assigning
taxpayer's "tax" in any taxable year, nor shall it thereafter be
included in the amount of any credit carryover of the assigning
taxpayer.
(3) The eligible assignee of any credit under this section may
apply all or any portion of the assigned credits against the "tax" of
the eligible assignee for the taxable year in which the assignment
occurs, or any subsequent taxable year, subject to any carryover
period limitations that apply to the assigned credit and also subject
to the limitation in paragraph (2) of subdivision (a).
(4) In no case may the eligible assignee sell, otherwise transfer,
or thereafter assign the assigned credit to any other taxpayer.
(d) (1) No consideration shall be required to be paid by the
eligible assignee to the assigning taxpayer for assignment of any
credit under this section.
(2) In the event that any consideration is paid by the eligible
assignee to the assigning taxpayer for the transfer of an eligible
credit under this section, then:
(A) No deduction shall be allowed to the eligible assignee under
this part with respect to any amounts so paid, and
(B) No amounts so received by the assigning taxpayer shall be
includable in gross income under this part.
(e) (1) The Franchise Tax Board shall specify the form and manner
in which the election required under this section shall be made, as
well as any necessary information that shall be required to be
provided by the taxpayer assigning the credit to the eligible
assignee.
(2) Any taxpayer who assigns any credit under this section shall
report any information, in the form and manner specified by the
Franchise Tax Board, necessary to substantiate any credit assigned
under this section and verify the assignment and subsequent
application of any assigned credit.
(3) Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code shall not apply to any
standard, criterion, procedure, determination, rule, notice, or
guideline established or issued by the Franchise Tax Board pursuant
to paragraphs (1) and (2).
(4) The Franchise Tax Board may issue any regulations necessary to
implement the purposes of this section, including any regulations
necessary to specify the treatment of any assignment that does not
comply with the requirements of this section (including, for example,
where the taxpayer and eligible assignee are not properly treated as
members of the same combined reporting group on any of the dates
specified in paragraph (3) of subdivision (b).
(f) (1) The taxpayer and the eligible assignee shall be jointly
and severally liable for any tax, addition to tax, or penalty that
results from the disallowance, in whole or in part, of any eligible
credit assigned under this section.
(2) Nothing in this section shall limit the authority of the
Franchise Tax Board to audit either the assigning taxpayer or the
eligible assignee with respect to any eligible credit assigned under
this section.
(g) On or before June 30, 2013, the Franchise Tax Board shall
report to the Joint Legislative Budget Committee, the Legislative
Analyst, and the relevant policy committees of both houses on the
effects of this section. The report shall include, but need not be
limited to, the following:
(1) An estimate of use of credits in the 2010 and 2011 taxable
years by eligible taxpayers.
(2) An analysis of effect of this section on expanding business
activity in the state related to these credits.
(3) An estimate of the resulting tax revenue loss to the state.
(4) The report shall cover all credits covered in this section,
but focus on the credits related to research and development,
economic incentive areas, and low-income housing.
SEC. 283. Section 23685 of the Revenue and Taxation Code, as added
by Section 9 of Chapter 10 of the 3rd Extraordinary Session of the
Statutes of 2009, is amended to read:
23685. (a) (1) For taxable years beginning on or after January 1,
2011, there shall be allowed to a qualified taxpayer a credit
against the "tax," as defined in Section 23036, in an amount equal to
the applicable percentage, as specified in paragraph (4), of the
qualified expenditures for the production of a qualified motion
picture in California.
(2) The credit shall be allowed for the taxable year in which the
California Film Commission issues the credit certificate pursuant to
subdivision (g) for the qualified motion picture, and shall be for
the applicable percentage of all qualified expenditures paid or
incurred by the qualified taxpayer in all taxable years for that
qualified motion picture.
(3) The amount of the credit allowed to a qualified taxpayer shall
be limited to the amount specified in the credit certificate issued
to the qualified taxpayer by the California Film Commission pursuant
to subdivision (g).
(4) For purposes of paragraphs (1) and (2), the applicable
percentage shall be:
(A) Twenty percent of the qualified expenditures attributable to
the production of a qualified motion picture in California.
(B) Twenty-five percent of the qualified expenditures attributable
to the production of a qualified motion picture in California where
the qualified motion picture is a television series that relocated to
California or an independent film.
(b) For purposes of this section:
(1) "Ancillary product" means any article for sale to the public
that contains a portion of, or any element of, the qualified motion
picture.
(2) "Budget" means an estimate of all expenses paid or incurred
during the production period of a qualified motion picture. It shall
be the same budget used by the qualified taxpayer and production
company for all qualified motion picture purposes.
(3) "Clip use" means a use of any portion of a motion picture,
other than the qualified motion picture, used in the qualified motion
picture.
(4) "Credit certificate" means the certificate issued by the
California Film Commission pursuant to subparagraph (C) of paragraph
(2) of subdivision (g).
(5) (A) "Employee fringe benefits" means the amount allowable as a
deduction under this part to the qualified taxpayer involved in the
production of the qualified motion picture, exclusive of any amounts
contributed by employees, for any year during the production period
with respect to any of the following:
(i) Employer contributions under any pension, profit-sharing,
annuity, or similar plan.
(ii) Employer-provided coverage under any accident or health plan
for employees.
(iii) The employer's cost of life or disability insurance provided
to employees.
(B) Any amount treated as wages under clause (i) of subparagraph
(A) of paragraph (18) shall not be taken into account under this
paragraph.
(6) "Independent film" means a motion picture with a minimum
budget of one million dollars ($1,000,000) and a maximum budget of
ten million dollars ($10,000,000) that is produced by a company that
is not publicly traded and publicly traded companies do not own,
directly or indirectly, more than 25 percent of the producing
company.
(7) "Licensing" means any grant of rights to distribute the
qualified motion picture, in whole or in part.
(8) "New use" means any use of a motion picture in a medium other
than the medium for which it was initially created.
(9) (A) "Postproduction" means the final activities in a qualified
motion picture's production, including editing, foley recording,
automatic dialogue replacement, sound editing, scoring and music
editing, beginning and end credits, negative cutting, negative
processing and duplication, the addition of sound and visual effects,
soundmixing, film-to-tape transfers, encoding, and color correction.
(B) "Postproduction" does not include the manufacture or shipping
of release prints.
(10) "Preproduction" means the process of preparation for actual
physical production which begins after a qualified motion picture has
received a firm agreement of financial commitment, or is greenlit,
with, for example, the establishment of a dedicated production
office, the hiring of key crew members, and includes, but is not
limited to, activities that include location scouting and execution
of contracts with vendors of equipment and stage space.
(11) "Principal photography" means the phase of production during
which the motion picture is actually shot, as distinguished from
preproduction and postproduction.
(12) "Production period" means the period beginning with
preproduction and ending upon completion of postproduction.
(13) "Qualified entity" means a personal service corporation as
defined in Section 269A(b)(1) of the Internal Revenue Code, a payroll
services corporation, or any entity receiving qualified wages with
respect to services performed by a qualified individual.
(14) (A) "Qualified individual" means any individual who performs
services during the production period in an activity related to the
production of a qualified motion picture.
(B) "Qualified individual" shall not include either of the
following:
(i) Any individual related to the qualified taxpayer as described
in subparagraph (A), (B), or (C) of Section 51(i)(1) of the Internal
Revenue Code.
(ii) Any 5-percent owner, as defined in Section 416(i)(1)(B) of
the Internal Revenue Code, of the qualified taxpayer.
(15) (A) "Qualified motion picture" means a motion picture that is
produced for distribution to the general public, regardless of
medium that is one of the following:
(i) A feature with a minimum production budget of one million
dollars ($1,000,000) and a maximum production budget of seventy-five
million dollars ($75,000,000).
(ii) A movie of the week or miniseries with a minimum production
budget of five hundred thousand dollars ($500,000).
(iii) A new television series produced in California with a
minimum production budget of one million dollars ($1,000,000)
licensed for original distribution on basic cable.
(iv) An independent film.
(v) A television series that relocated to California.
(B) To qualify as a "qualified motion picture," all of the
following conditions shall be satisfied:
(i) At least 75 percent of the production days occur wholly in
California or 75 percent of the production budget is incurred for
payment for services performed within the state and the purchase or
rental of property used within the state.
(ii) Production of the qualified motion picture is completed
within 30 months from the date on which the qualified taxpayer's
application is approved by the California Film Commission. For
purposes of this section, a qualified motion picture is "completed"
when the process of postproduction has been finished.
(iii) The copyright for the motion picture is registered with the
United States Copyright Office pursuant to Title 17 of the United
States Code.
(iv) Principal photography of the qualified motion picture
commences after the date on which the application is approved by the
California Film Commission, but no later than 180 days after the date
of that approval.
(C) For the purposes of subparagraph (A), in computing the total
wages paid or incurred for the production of a qualified motion
picture, all amounts paid or incurred by all persons or entities that
share in the costs of the qualified motion picture shall be
aggregated.
(D) "Qualified motion picture" shall not include commercial
advertising, music videos, a motion picture produced for private
noncommercial use, such as weddings, graduations, or as part of an
educational course and made by students, a news program, current
events or public events program, talk show, game show, sporting event
or activity, awards show, telethon or other production that solicits
funds, reality television program, clip-based programming if more
than 50 percent of the content is comprised of licensed footage,
documentaries, variety programs, daytime dramas, strip shows,
one-half hour (air time) episodic television shows, or any production
that falls within the recordkeeping requirements of Section 2257 of
Title 18 of the United States Code.
(16) "Qualified expenditures" means amounts paid or incurred to
purchase or lease tangible personal property used within this state
in the production of a qualified motion picture and payments,
including qualified wages, for services performed within this state
in the production of a qualified motion picture.
(17) (A) "Qualified taxpayer" means a taxpayer who has paid or
incurred qualified expenditures and has been issued a credit
certificate by the California Film Commission pursuant to subdivision
(g).
(B) (i) In the case of any passthrough entity, the determination
of whether a taxpayer is a qualified taxpayer under this section
shall be made at the entity level and any credit under this section
is not allowed to the passthrough entity, but shall be passed through
to the partners or shareholders in accordance with applicable
provisions of Part 10 (commencing with Section 17001) or Part 11
(commencing with Section 23001). For purposes of this paragraph,
"passthrough entity" means any entity taxed as a partnership or "S"
corporation.
(ii) In the case of an "S" corporation, the credit allowed under
this section shall not be used by an "S" corporation as a credit
against a tax imposed under Chapter 4.5 (commencing with Section
23800) of Part 11 of Division 2.
(18) (A) "Qualified wages" means all of the following:
(i) Any wages required to be reported under Section 13050 of the
Unemployment Insurance Code that were paid or incurred by any
taxpayer involved in the production of a qualified motion picture
with respect to a qualified individual for services performed on the
qualified motion picture production within California.
(ii) The portion of any employee fringe benefits paid or incurred
by any taxpayer involved in the production of the qualified motion
picture that are properly allocable to qualified wage amounts
described in clause (i).
(iii) Any payments made to a qualified entity for services
performed in California by qualified individuals within the meaning
of paragraph (14).
(iv) Remuneration paid to an independent contractor who is a
qualified individual for services performed within California by that
qualified individual.
(B) "Qualified wages" shall not include any of the following:
(i) Expenses, including wages, related to new use, reuse, clip
use, licensing, secondary markets, or residual compensation, or the
creation of any ancillary product, including, but not limited to, a
soundtrack album, toy, game, trailer, or teaser.
(ii) Expenses, including wages, paid or incurred with respect to
acquisition, development, turnaround, or any rights thereto.
(iii) Expenses, including wages, related to financing, overhead,
marketing, promotion, or distribution of a qualified motion picture.
(iv) Expenses, including wages, paid per person per qualified
motion picture for writers, directors, music directors, music
composers, music supervisors, producers, and performers, other than
background actors with no scripted lines.
(19) "Residual compensation" means supplemental compensation paid
at the time that a motion picture is exhibited through new use,
reuse, clip use, or in secondary markets, as distinguished from
payments made during production.
(20) "Reuse" means any use of a qualified motion picture in the
same medium for which it was created, following the initial use in
that medium.
(21) "Secondary markets" means media in which a qualified motion
picture is exhibited following the initial media in which it is
exhibited.
(22) "Television series that relocated to California" means a
television series, without regard to episode length or initial media
exhibition, that filmed all of its prior season or seasons outside of
California and for which the taxpayer certifies that the credit
provided pursuant to this section is the primary reason for
relocating to California.
(c) (1) Notwithstanding subdivision (i) of Section 23036, relating
to credits attributable to a passthrough business entity, in the
case where the credit allowed by this section exceeds the taxpayer's
tax liability computed under this part, a qualified taxpayer may
elect to assign any portion of the credit allowed under this section
to one or more affiliated corporations for each taxable year in which
the credit is allowed. For purposes of this subdivision, "affiliated
corporation" has the meaning provided in subdivision (b) of Section
25110, as that section was amended by Chapter 881 of the Statutes of
1993, as of the last day of the taxable year in which the credit is
allowed, except that "100 percent" is substituted for "more than 50
percent" wherever it appears in the section, and "voting common stock"
is substituted for "voting stock" wherever it appears in the
section.
(2) The election provided in paragraph (1):
(A) May be based on any method selected by the qualified taxpayer
that originally receives the credit.
(B) Shall be irrevocable for the taxable year the credit is
allowed, once made.
(C) May be changed for any subsequent taxable year if the election
to make the assignment is expressly shown on each of the returns of
qualified taxpayer and a qualified taxpayer's affiliated corporations
that assign and receive the credits.
(3) (A) Notwithstanding any other law, a qualified taxpayer, may
sell any credit allowed under this section that is attributable to an
independent film, as defined in paragraph (6) of subdivision (b), to
an unrelated party.
(B) The qualified taxpayer shall report to the Franchise Tax Board
prior to the sale of the credit, in the form and manner specified by
the Franchise Tax Board, all required information regarding the
purchase and sale of the credit, including the social security or
other taxpayer identification number of the unrelated party to whom
the credit has been sold, the face amount of the credit sold, and the
amount of consideration received by the qualified taxpayer for the
sale of the credit.
(4) In the case where the credit allowed under this section
exceeds the "tax," the excess credit may be carried over to reduce
the "tax" in the following taxable year, and succeeding five taxable
years, if necessary, until the credit has been exhausted.
(5) A credit shall not be sold pursuant to this subdivision to
more than one taxpayer, nor may the credit be resold by the unrelated
party to another taxpayer or other party.
(6) A party that has been assigned or acquired tax credits under
this paragraph shall be subject to the requirements of this section.
(7) In no event may a qualified taxpayer assign or sell any tax
credit to the extent the tax credit allowed by this section is
claimed on any tax return of the qualified taxpayer.
(8) In the event that both the taxpayer originally allocated a
credit under this section by the California Film Commission and a
taxpayer to whom the credit has been sold both claim the same amount
of credit on their tax returns, the Franchise Tax Board may disallow
the credit of either taxpayer, so long as the statute of limitations
upon assessment remains open.
(9) 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
standard, criterion, procedure, determination, rule, notice, or
guideline established or issued by the Franchise Tax Board pursuant
to this subdivision.
(d) No credit shall be allowed pursuant to this section unless the
qualified taxpayer provides the following to the California Film
Commission:
(1) Identification of each qualified individual.
(2) The specific start and end dates of production.
(3) The total wages paid.
(4) The amount of qualified wages paid to each qualified
individual.
(5) The copyright registration number, as reflected on the
certificate of registration issued under the authority of Section 410
of Title 17 of the United States Code, relating to registration of
claim and issuance of certificate. The registration number shall be
provided on the return claiming the credit.
(6) The total amounts paid or incurred to purchase or lease
tangible personal property used in the production of a qualified
motion picture.
(7) Information to substantiate its qualified expenditures.
(8) Information required by the California Film Commission under
regulations promulgated pursuant to subdivision (g) necessary to
verify the amount of credit claimed.
(e) The California Film Commission may prescribe rules and
regulations to carry out the purposes of this section including any
rules and regulations necessary to establish procedures, processes,
requirements, and rules identified in or required to implement this
section. The regulations shall include provisions to set aside a
percentage of annual credit allocations for independent films.
(f) If the qualified taxpayer fails to provide the copyright
registration number as required in paragraph (5) of subdivision (d),
the credit shall be disallowed and assessed and collected under
Section 19051 until the procedures are satisfied.
(g) For purposes of this section, the California Film Commission
shall do the following:
(1) On or after July 1, 2009, and before July 1, 2014, allocate
tax credits to applicants.
(A) Establish a procedure for applicants to file with the
commission a written application, on a form jointly prescribed by the
commission and the Franchise Tax Board for the allocation of the tax
credit. The application shall include, but not be limited to, the
following information:
(i) The budget for the motion picture production.
(ii) The number of production days.
(iii) A financing plan for the production.
(iv) The diversity of the workforce employed by the applicant,
including, but not limited to, the ethnic and racial makeup of the
individuals employed by the applicant during the production of the
qualified motion picture, to the extent possible.
(v) Any other information deemed relevant by the commission or the
Franchise Tax Board.
(B) Establish criteria, consistent with the requirements of this
section, for allocating tax credits.
(C) Determine and designate applicants who meet the requirements
of this section.
(D) Process and approve, or reject, all applications on a
first-come-first-served basis.
(E) Subject to the annual cap established as provided in
subdivision (i), allocate an aggregate amount of credits under this
section and Section 17053.85, and allocate any carryover of
unallocated credits from prior years.
(2) Certify tax credits allocated to qualified taxpayers.
(A) Establish a verification procedure for the amount of qualified
expenditures paid or incurred by the applicant.
(B) Establish audit requirements that must be satisfied before a
credit certificate may be issued by the California Film Commission.
(C) Issue a credit certificate to a qualified taxpayer upon
completion of the qualified motion picture, reflecting the credit
amount allocated after qualified expenditures have been verified
under this section. The amount of a credit shown in the credit
certificate shall not exceed the amount of credit allocated to that
qualified taxpayer pursuant to this section.
(h) The California Film Commission shall provide the Franchise Tax
Board and the board annually with a list of qualified taxpayers and
the tax credit amounts allocated to each qualified taxpayer by the
California Film Commission. The list shall include the names and
taxpayer identification numbers, including taxpayer identification
numbers of each partner or shareholder, as applicable, of the
qualified taxpayer.
(i) (1) The aggregate amount of credits that may be allocated in
any fiscal year pursuant to this section and Section 17053.85 shall
be an amount equal to the sum of all of the following:
(A) One hundred million dollars ($100,000,000) in credits for the
2009-10 fiscal year and each fiscal year thereafter, through and
including the 2013-14 fiscal year.
(B) The unused allocation credit amount, if any, for the preceding
fiscal year.
(C) The amount of previously allocated credits not certified.
(2) If the amount of credits applied for in any particular fiscal
year exceeds the aggregate amount of tax credits authorized to be
allocated for under this section, such excess shall be treated as
having been applied for on the first day of the subsequent fiscal
year. However, credits may not be allocated from a
fiscal year other than the fiscal year in
which the credit was originally applied for or the immediately
succeeding fiscal year.
(3) Notwithstanding the foregoing, the California Film Commission
shall set aside up to ten million dollars ($10,000,000) of tax
credits each fiscal year for independent films allocated in
accordance with rules and regulations developed pursuant to
subdivision (e).
(4) Any act that reduces the amount that may be allocated pursuant
to paragraph (1) constitutes a change in state taxes for the purpose
of increasing revenues within the meaning of Section 3 of Article
XIII A of the California Constitution and may be passed by not less
than two-thirds of all Members elected to each of the two houses of
the Legislature.
(j) The California Film Commission shall have the authority to
allocate tax credits in accordance with this section and in
accordance with any regulations prescribed pursuant to subdivision
(e) upon adoption.
SEC. 284. Section 23685 of the Revenue and Taxation Code, as added
by Section 9 of Chapter 17 of the 3rd Extraordinary Session of the
Statutes of 2009, is amended to read:
23685. (a) (1) For taxable years beginning on or after January 1,
2011, there shall be allowed to a qualified taxpayer a credit
against the "tax," as defined in Section 23036, in an amount equal to
the applicable percentage, as specified in paragraph (4), of the
qualified expenditures for the production of a qualified motion
picture in California.
(2) The credit shall be allowed for the taxable year in which the
California Film Commission issues the credit certificate pursuant to
subdivision (g) for the qualified motion picture, and shall be for
the applicable percentage of all qualified expenditures paid or
incurred by the qualified taxpayer in all taxable years for that
qualified motion picture.
(3) The amount of the credit allowed to a qualified taxpayer shall
be limited to the amount specified in the credit certificate issued
to the qualified taxpayer by the California Film Commission pursuant
to subdivision (g).
(4) For purposes of paragraphs (1) and (2), the applicable
percentage shall be:
(A) Twenty percent of the qualified expenditures attributable to
the production of a qualified motion picture in California.
(B) Twenty-five percent of the qualified expenditures attributable
to the production of a qualified motion picture in California where
the qualified motion picture is a television series that relocated to
California or an independent film.
(b) For purposes of this section:
(1) "Ancillary product" means any article for sale to the public
that contains a portion of, or any element of, the qualified motion
picture.
(2) "Budget" means an estimate of all expenses paid or incurred
during the production period of a qualified motion picture. It shall
be the same budget used by the qualified taxpayer and production
company for all qualified motion picture purposes.
(3) "Clip use" means a use of any portion of a motion picture,
other than the qualified motion picture, used in the qualified motion
picture.
(4) "Credit certificate" means the certificate issued by the
California Film Commission pursuant to subparagraph (C) of paragraph
(2) of subdivision (g).
(5) (A) "Employee fringe benefits" means the amount allowable as a
deduction under this part to the qualified taxpayer involved in the
production of the qualified motion picture, exclusive of any amounts
contributed by employees, for any year during the production period
with respect to any of the following:
(i) Employer contributions under any pension, profit-sharing,
annuity, or similar plan.
(ii) Employer-provided coverage under any accident or health plan
for employees.
(iii) The employer's cost of life or disability insurance provided
to employees.
(B) Any amount treated as wages under clause (i) of subparagraph
(A) of paragraph (18) shall not be taken into account under this
paragraph.
(6) "Independent film" means a motion picture with a minimum
budget of one million dollars ($1,000,000) and a maximum budget of
ten million dollars ($10,000,000) that is produced by a company that
is not publicly traded and publicly traded companies do not own,
directly or indirectly, more than 25 percent of the producing
company.
(7) "Licensing" means any grant of rights to distribute the
qualified motion picture, in whole or in part.
(8) "New use" means any use of a motion picture in a medium other
than the medium for which it was initially created.
(9) (A) "Postproduction" means the final activities in a qualified
motion picture's production, including editing, foley recording,
automatic dialogue replacement, sound editing, scoring and music
editing, beginning and end credits, negative cutting, negative
processing and duplication, the addition of sound and visual effects,
soundmixing, film-to-tape transfers, encoding, and color correction.
(B) "Postproduction" does not include the manufacture or shipping
of release prints.
(10) "Preproduction" means the process of preparation for actual
physical production which begins after a qualified motion picture has
received a firm agreement of financial commitment, or is greenlit,
with, for example, the establishment of a dedicated production
office, the hiring of key crew members, and includes, but is not
limited to, activities that include location scouting and execution
of contracts with vendors of equipment and stage space.
(11) "Principal photography" means the phase of production during
which the motion picture is actually shot, as distinguished from
preproduction and postproduction.
(12) "Production period" means the period beginning with
preproduction and ending upon completion of postproduction.
(13) "Qualified entity" means a personal service corporation as
defined in Section 269A(b)(1) of the Internal Revenue Code, a payroll
services corporation, or any entity receiving qualified wages with
respect to services performed by a qualified individual.
(14) (A) "Qualified individual" means any individual who performs
services during the production period in an activity related to the
production of a qualified motion picture.
(B) "Qualified individual" shall not include either of the
following:
(i) Any individual related to the qualified taxpayer as described
in subparagraph (A), (B), or (C) of Section 51(i)(1) of the Internal
Revenue Code.
(ii) Any 5-percent owner, as defined in Section 416(i)(1)(B) of
the Internal Revenue Code, of the qualified taxpayer.
(15) (A) "Qualified motion picture" means a motion picture that is
produced for distribution to the general public, regardless of
medium that is one of the following:
(i) A feature with a minimum production budget of one million
dollars ($1,000,000) and a maximum production budget of seventy-five
million dollars ($75,000,000).
(ii) A movie of the week or miniseries with a minimum production
budget of five hundred thousand dollars ($500,000).
(iii) A new television series produced in California with a
minimum production budget of one million dollars ($1,000,000)
licensed for original distribution on basic cable.
(iv) An independent film.
(v) A television series that relocated to California.
(B) To qualify as a "qualified motion picture," all of the
following conditions shall be satisfied:
(i) At least 75 percent of the production days occur wholly in
California or 75 percent of the production budget is incurred for
payment for services performed within the state and the purchase or
rental of property used within the state.
(ii) Production of the qualified motion picture is completed
within 30 months from the date on which the qualified taxpayer's
application is approved by the California Film Commission. For
purposes of this section, a qualified motion picture is "completed"
when the process of postproduction has been finished.
(iii) The copyright for the motion picture is registered with the
United States Copyright Office pursuant to Title 17 of the United
States Code.
(iv) Principal photography of the qualified motion picture
commences after the date on which the application is approved by the
California Film Commission, but no later than 180 days after the date
of that approval.
(C) For the purposes of subparagraph (A), in computing the total
wages paid or incurred for the production of a qualified motion
picture, all amounts paid or incurred by all persons or entities that
share in the costs of the qualified motion picture shall be
aggregated.
(D) "Qualified motion picture" shall not include commercial
advertising, music videos, a motion picture produced for private
noncommercial use, such as weddings, graduations, or as part of an
educational course and made by students, a news program, current
events or public events program, talk show, game show, sporting event
or activity, awards show, telethon or other production that solicits
funds, reality television program, clip-based programming if more
than 50 percent of the content is comprised of licensed footage,
documentaries, variety programs, daytime dramas, strip shows,
one-half hour (air time) episodic television shows, or any production
that falls within the recordkeeping requirements of Section 2257 of
Title 18 of the United States Code.
(16) "Qualified expenditures" means amounts paid or incurred to
purchase or lease tangible personal property used within this state
in the production of a qualified motion picture and payments,
including qualified wages, for services performed within this state
in the production of a qualified motion picture.
(17) (A) "Qualified taxpayer" means a taxpayer who has paid or
incurred qualified expenditures and has been issued a credit
certificate by the California Film Commission pursuant to subdivision
(g).
(B) (i) In the case of any passthrough entity, the determination
of whether a taxpayer is a qualified taxpayer under this section
shall be made at the entity level and any credit under this section
is not allowed to the passthrough entity, but shall be passed through
to the partners or shareholders in accordance with applicable
provisions of Part 10 (commencing with Section 17001) or Part 11
(commencing with Section 23001). For purposes of this paragraph,
"passthrough entity" means any entity taxed as a partnership or "S"
corporation.
(ii) In the case of an "S" corporation, the credit allowed under
this section shall not be used by an "S" corporation as a credit
against a tax imposed under Chapter 4.5 (commencing with Section
23800) of Part 11 of Division 2.
(18) (A) "Qualified wages" means all of the following:
(i) Any wages required to be reported under Section 13050 of the
Unemployment Insurance Code that were paid or incurred by any
taxpayer involved in the production of a qualified motion picture
with respect to a qualified individual for services performed on the
qualified motion picture production within California.
(ii) The portion of any employee fringe benefits paid or incurred
by any taxpayer involved in the production of the qualified motion
picture that are properly allocable to qualified wage amounts
described in clause (i).
(iii) Any payments made to a qualified entity for services
performed in California by qualified individuals within the meaning
of paragraph (14).
(iv) Remuneration paid to an independent contractor who is a
qualified individual for services performed within California by that
qualified individual.
(B) "Qualified wages" shall not include any of the following:
(i) Expenses, including wages, related to new use, reuse, clip
use, licensing, secondary markets, or residual compensation, or the
creation of any ancillary product, including, but not limited to, a
soundtrack album, toy, game, trailer, or teaser.
(ii) Expenses, including wages, paid or incurred with respect to
acquisition, development, turnaround, or any rights thereto.
(iii) Expenses, including wages, related to financing, overhead,
marketing, promotion, or distribution of a qualified motion picture.
(iv) Expenses, including wages, paid per person per qualified
motion picture for writers, directors, music directors, music
composers, music supervisors, producers, and performers, other than
background actors with no scripted lines.
(19) "Residual compensation" means supplemental compensation paid
at the time that a motion picture is exhibited through new use,
reuse, clip use, or in secondary markets, as distinguished from
payments made during production.
(20) "Reuse" means any use of a qualified motion picture in the
same medium for which it was created, following the initial use in
that medium.
(21) "Secondary markets" means media in which a qualified motion
picture is exhibited following the initial media in which it is
exhibited.
(22) "Television series that relocated to California" means a
television series, without regard to episode length or initial media
exhibition, that filmed all of its prior season or seasons outside of
California and for which the taxpayer certifies that the credit
provided pursuant to this section is the primary reason for
relocating to California.
(c) (1) Notwithstanding subdivision (i) of Section 23036, relating
to credits attributable to a passthrough business entity, in the
case where the credit allowed by this section exceeds the taxpayer's
tax liability computed under this part, a qualified taxpayer may
elect to assign any portion of the credit allowed under this section
to one or more affiliated corporations for each taxable year in which
the credit is allowed. For purposes of this subdivision, "affiliated
corporation" has the meaning provided in subdivision (b) of Section
25110, as that section was amended by Chapter 881 of the Statutes of
1993, as of the last day of the taxable year in which the credit is
allowed, except that "100 percent" is substituted for "more than 50
percent" wherever it appears in the section, and "voting common stock"
is substituted for "voting stock" wherever it appears in the
section.
(2) The election provided in paragraph (1):
(A) May be based on any method selected by the qualified taxpayer
that originally receives the credit.
(B) Shall be irrevocable for the taxable year the credit is
allowed, once made.
(C) May be changed for any subsequent taxable year if the election
to make the assignment is expressly shown on each of the returns of
qualified taxpayer and a qualified taxpayer's affiliated corporations
that assign and receive the credits.
(3) (A) Notwithstanding any other law, a qualified taxpayer, may
sell any credit allowed under this section that is attributable to an
independent film, as defined in paragraph (6) of subdivision (b), to
an unrelated party.
(B) The qualified taxpayer shall report to the Franchise Tax Board
prior to the sale of the credit, in the form and manner specified by
the Franchise Tax Board, all required information regarding the
purchase and sale of the credit, including the social security or
other taxpayer identification number of the unrelated party to whom
the credit has been sold, the face amount of the credit sold, and the
amount of consideration received by the qualified taxpayer for the
sale of the credit.
(4) In the case where the credit allowed under this section
exceeds the "tax," the excess credit may be carried over to reduce
the "tax" in the following taxable year, and succeeding five taxable
years, if necessary, until the credit has been exhausted.
(5) A credit shall not be sold pursuant to this subdivision to
more than one taxpayer, nor may the credit be resold by the unrelated
party to another taxpayer or other party.
(6) A party that has been assigned or acquired tax credits under
this paragraph shall be subject to the requirements of this section.
(7) In no event may a qualified taxpayer assign or sell any tax
credit to the extent the tax credit allowed by this section is
claimed on any tax return of the qualified taxpayer.
(8) In the event that both the taxpayer originally allocated a
credit under this section by the California Film Commission and a
taxpayer to whom the credit has been sold both claim the same amount
of credit on their tax returns, the Franchise Tax Board may disallow
the credit of either taxpayer, so long as the statute of limitations
upon assessment remains open.
(9) 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
standard, criterion, procedure, determination, rule, notice, or
guideline established or issued by the Franchise Tax Board pursuant
to this subdivision.
(d) No credit shall be allowed pursuant to this section unless the
qualified taxpayer provides the following to the California Film
Commission:
(1) Identification of each qualified individual.
(2) The specific start and end dates of production.
(3) The total wages paid.
(4) The amount of qualified wages paid to each qualified
individual.
(5) The copyright registration number, as reflected on the
certificate of registration issued under the authority of Section 410
of Title 17 of the United States Code, relating to registration of
claim and issuance of certificate. The registration number shall be
provided on the return claiming the credit.
(6) The total amounts paid or incurred to purchase or lease
tangible personal property used in the production of a qualified
motion picture.
(7) Information to substantiate its qualified expenditures.
(8) Information required by the California Film Commission under
regulations promulgated pursuant to subdivision (g) necessary to
verify the amount of credit claimed.
(e) The California Film Commission may prescribe rules and
regulations to carry out the purposes of this section including any
rules and regulations necessary to establish procedures, processes,
requirements, and rules identified in or required to implement this
section. The regulations shall include provisions to set aside a
percentage of annual credit allocations for independent films.
(f) If the qualified taxpayer fails to provide the copyright
registration number as required in paragraph (5) of subdivision (d),
the credit shall be disallowed and assessed and collected under
Section 19051 until the procedures are satisfied.
(g) For purposes of this section, the California Film Commission
shall do the following:
(1) On or after July 1, 2009, and before July 1, 2014, allocate
tax credits to applicants.
(A) Establish a procedure for applicants to file with the
commission a written application, on a form jointly prescribed by the
commission and the Franchise Tax Board for the allocation of the tax
credit. The application shall include, but not be limited to, the
following information:
(i) The budget for the motion picture production.
(ii) The number of production days.
(iii) A financing plan for the production.
(iv) The diversity of the workforce employed by the applicant,
including, but not limited to, the ethnic and racial makeup of the
individuals employed by the applicant during the production of the
qualified motion picture, to the extent possible.
(v) Any other information deemed relevant by the commission or the
Franchise Tax Board.
(B) Establish criteria, consistent with the requirements of this
section, for allocating tax credits.
(C) Determine and designate applicants who meet the requirements
of this section.
(D) Process and approve, or reject, all applications on a
first-come-first-served basis.
(E) Subject to the annual cap established as provided in
subdivision (i), allocate an aggregate amount of credits under this
section and Section 17053.85, and allocate any carryover of
unallocated credits from prior years.
(2) Certify tax credits allocated to qualified taxpayers.
(A) Establish a verification procedure for the amount of qualified
expenditures paid or incurred by the applicant.
(B) Establish audit requirements that must be satisfied before a
credit certificate may be issued by the California Film Commission.
(C) Issue a credit certificate to a qualified taxpayer upon
completion of the qualified motion picture, reflecting the credit
amount allocated after qualified expenditures have been verified
under this section. The amount of a credit shown in the credit
certificate shall not exceed the amount of credit allocated to that
qualified taxpayer pursuant to this section.
(h) The California Film Commission shall provide the Franchise Tax
Board and the board annually with a list of qualified taxpayers and
the tax credit amounts allocated to each qualified taxpayer by the
California Film Commission. The list shall include the names and
taxpayer identification numbers, including taxpayer identification
numbers of each partner or shareholder, as applicable, of the
qualified taxpayer.
(i) (1) The aggregate amount of credits that may be allocated in
any fiscal year pursuant to this section and Section 17053.85 shall
be an amount equal to the sum of all of the following:
(A) One hundred million dollars ($100,000,000) in credits for the
2009-10 fiscal year and each fiscal year thereafter, through and
including the 2013-14 fiscal year.
(B) The unused allocation credit amount, if any, for the preceding
fiscal year.
(C) The amount of previously allocated credits not certified.
(2) If the amount of credits applied for in any particular fiscal
year exceeds the aggregate amount of tax credits authorized to be
allocated under this section, such excess shall be treated as having
been applied for on the first day of the subsequent fiscal year.
However, credits may not be allocated from a fiscal year other than
the fiscal year in which the credit was originally applied for or the
immediately succeeding fiscal year.
(3) Notwithstanding the foregoing, the California Film Commission
shall set aside up to ten million dollars ($10,000,000) of tax
credits each fiscal year for independent films allocated in
accordance with rules and regulations developed pursuant to
subdivision (e).
(4) Any act that reduces the amount that may be allocated pursuant
to paragraph (1) constitutes a change in state taxes for the purpose
of increasing revenues within the meaning of Section 3 of Article
XIII A of the California Constitution and may be passed by not less
than two-thirds of all Members elected to each of the two houses of
the Legislature.
(j) The California Film Commission shall have the authority to
allocate tax credits in accordance with this section and in
accordance with any regulations prescribed pursuant to subdivision
(e) upon adoption.
SEC. 285. Section 24422 of the Revenue and Taxation Code is
amended to read:
24422. No deduction shall be allowed for both of the following:
(a) Any amount paid out for new buildings or for permanent
improvements or betterments made to increase the value of any
property or estate. This subdivision shall not apply to:
(1) Expenditures for the development of mines or deposits
deductible under Section 616 of the Internal Revenue Code.
(2) Soil and water conservation expenditures deductible under
Section 24369.
(3) Expenditures for farmers for fertilizer, etc., deductible
under Section 24377.
(4) Research and experimental expenditures deductible under
Section 24365.
(5) Expenditures for which a deduction is allowed under Section
24356.7.
(6) Expenditures for removal of architectural and transportation
barriers to the handicapped and elderly that the taxpayer elects to
deduct under Section 24383.
(b) Any amount expended in restoring property or in making good
the exhaustion thereof for which an allowance is or has been made.
SEC. 286. Section 24875 of the Revenue and Taxation Code is
amended to read:
24875. (a) A financial asset securitization investment trust
(FASIT) shall be subject to the minimum franchise tax imposed under
Section 23153.
(b) For purposes of Chapter 4 of Part 10.2 (commencing with
Section 19001) the taxes imposed by this section shall be treated as
taxes to which the deficiency procedures of that article apply.
SEC. 287. Section 24875.5 of the Revenue and Taxation Code is
repealed.
SEC. 288. Section 143 of the Streets and Highways Code is amended
to read:
143. (a) (1) "Best value" means a value determined by objective
criteria, including, but not limited to, price, features, functions,
life-cycle costs, and other criteria deemed appropriate by the
department or the regional transportation agency.
(2) "Contracting entity or lessee" means a public or private
entity, or consortia thereof, that has entered into a comprehensive
development lease agreement with the department or a regional
transportation agency for a transportation project pursuant to this
section.
(3) "Design-build" means a procurement process in which both the
design and construction of a project are procured from a single
entity.
(4) "Regional transportation agency" means any of the following:
(A) A transportation planning agency as defined in Section 29532
or 29532.1 of the Government Code.
(B) A county transportation commission as defined in Section
130050, 130050.1, or 130050.2 of the Public Utilities Code.
(C) Any other local or regional transportation entity that is
designated by statute as a regional transportation agency.
(D) A joint exercise of powers authority as defined in Chapter 5
(commencing with Section 6500) of Division 7 of Title 1 of the
Government Code, with the consent of a transportation planning agency
or a county transportation commission for the jurisdiction in which
the transportation project will be developed.
(5) "Public Infrastructure Advisory Commission" means a unit or
auxiliary organization established by the Business, Transportation
and Housing Agency that advises the department and regional
transportation agencies in developing transportation projects through
performance-based infrastructure partnerships.
(6) "Transportation project" means one or more of the following:
planning, design, development, finance, construction, reconstruction,
rehabilitation, improvement, acquisition, lease, operation, or
maintenance of highway, public street, rail, or related facilities
supplemental to existing facilities currently owned and operated by
the department or regional transportation agencies that is consistent
with the requirements of subdivision (c).
(b) (1) The Public Infrastructure Advisory Commission shall do all
of the following:
(A) Identify transportation project opportunities throughout the
state.
(B) Research and document similar transportation projects throughout
the state, nationally, and internationally, and further identify and
evaluate lessons learned from these projects.
(C) Assemble and make available to the department or regional
transportation agencies a library of information, precedent,
research, and analysis concerning infrastructure partnerships and
related types of public-private transactions for public
infrastructure.
(D) Advise the department and regional transportation agencies,
upon request, regarding infrastructure partnership suitability and
best practices.
(E) Provide, upon request, procurement-related services to the
department and regional transportation agencies for infrastructure
partnership.
(2) The Public Infrastructure Advisory Commission may charge a fee
to the department and regional transportation agencies for the
services described in subparagraphs (D) and (E) of paragraph (1), the
details of which shall be articulated in an agreement entered into
between the Public Infrastructure Advisory Commission and the
department or the regional transportation agency.
(c) (1) Notwithstanding any other provision of law, only the
department, in cooperation with regional transportation agencies, and
regional transportation agencies, may solicit proposals, accept
unsolicited proposals, negotiate, and enter into comprehensive
development lease agreements with public or private entities, or
consortia thereof, for transportation projects.
(2) Projects proposed pursuant to this section and associated
lease agreements shall be submitted to the California Transportation
Commission. The commission, at a regularly scheduled public hearing,
shall select the candidate projects from projects nominated by the
department or a regional transportation agency after reviewing the
nominations for consistency with paragraphs (3) and (4). Approved
projects may proceed with the process described in paragraph (5).
(3) The projects authorized pursuant to this section shall be
primarily designed to achieve the following performance objectives:
(A) Improve mobility by improving travel times or reducing the
number of vehicle hours of delay in the affected corridor.
(B) Improve the operation or safety of the affected corridor.
(C) Provide quantifiable air quality benefits for the region in
which the project is located.
(4) In addition to meeting the requirements of paragraph (3), the
projects authorized pursuant to this section shall address a known
forecast demand, as determined by the department or regional
transportation agency.
(5) At least 60 days prior to executing a final lease agreement
authorized pursuant to this section, the department or regional
transportation agency shall submit the agreement to the Legislature
and the Public Infrastructure Advisory Commission for review. Prior
to submitting a lease agreement to the Legislature and the Public
Infrastructure Advisory Commission, the department or regional
transportation agency shall conduct at least one public hearing at a
location at or near the proposed facility for purposes of receiving
public comment on the lease agreement. Public comments made during
this hearing shall be submitted to the Legislature and the Public
Infrastructure Advisory Commission with the lease agreement. The
Secretary of Business, Transportation and Housing or the chairperson
of the Senate or Assembly fiscal committees or policy committees with
jurisdiction over transportation matters may, by written
notification to the department or regional transportation agency,
provide any comments about the proposed agreement within the 60-day
period prior to the execution of the final agreement. The department
or regional transportation agency shall consider those comments prior
to executing a final agreement and shall retain the discretion for
executing the final lease agreement.
(d) For the purpose of facilitating those projects, the agreements
between the parties may include provisions for the lease of
rights-of-way in, and airspace over or under, highways, public
streets, rail, or related facilities for the granting of necessary
easements, and for the issuance of permits or other authorizations to
enable the construction of transportation projects. Facilities
subject to an agreement under this section shall, at all times, be
owned by the department or the regional transportation agency, as
appropriate. For department projects, the commission shall certify
the department's determination of the useful life of the project in
establishing the lease agreement terms. In consideration therefor,
the agreement shall provide for complete reversion of the leased
facility, together with the right to collect tolls and user fees, to
the department or regional transportation agency, at the expiration
of the lease at no charge to the department or regional
transportation agency. At the time of the reversion, the facility
shall be delivered to the department or regional transportation
agency, as applicable, in a condition that meets the performance and
maintenance standards established by the department or regional
transportation agency and that is free of any encumbrance, lien, or
other claims.
(e) Agreements between the department or regional transportation
agency and the contracting entity or lessee shall authorize the
contracting entity or lessee to use a design-build method of
procurement for transportation projects, subject to the requirements
for utilizing such a method contained in Chapter 6.5 (commencing with
Section 6800) of Part 1 of Division 2 of the Public Contract Code,
other than Sections 6802, 6803, and 6813 of that code, if those
provisions are enacted by the Legislature during the 2009-10 Regular
Session, or a 2009-10 extraordinary session.
(f) (1) (A) Notwithstanding any other provision of this chapter,
for projects on the state highway system, the department is the
responsible agency for the performance of project development
services, including performance specifications, preliminary
engineering, prebid services, the preparation of project reports and
environmental documents, and construction inspection services. The
department is also the responsible agency for the preparation of
documents that may include, but need not be limited to, the size,
type, and desired design character of the project, performance
specifications covering the quality of materials, equipment, and
workmanship, preliminary plans, and any other information deemed
necessary to describe adequately the needs of the department or
regional transportation agency.
(B) The department may use department employees or consultants to
perform the services described in subparagraph (A), consistent with
Article XXII of the California Constitution. Department resources,
including personnel requirements, necessary for the performance of
those services shall be included in the department's capital outlay
support program for workload purposes in the annual Budget Act.
(2) The department or a regional transportation agency may
exercise any power possessed by it with respect to transportation
projects to facilitate the transportation projects pursuant to this
section. The department, regional transportation agency, and other
state or local agencies may provide services to the contracting
entity or lessee for which the public entity is reimbursed,
including, but not limited to, planning, environmental planning,
environmental certification, environmental review, preliminary
design, design, right-of-way acquisition, construction, maintenance,
and policing of these transportation projects. The department or
regional transportation agency, as applicable, shall regularly
inspect the facility and require the contracting entity or lessee to
maintain and operate the facility according to adopted standards.
Except as may otherwise be set forth in the lease agreement, the
contracting entity or lessee shall be responsible for all costs due
to development, maintenance, repair, rehabilitation, and
reconstruction, and operating costs.
(g) (1) In selecting private entities with which to enter into
these agreements, notwithstanding any other provision of law, the
department and regional transportation agencies may utilize, but are
not limited to utilizing, one or more of the following procurement
approaches:
(A) Solicitations of proposals for defined projects and calls for
project proposals within defined parameters.
(B) Prequalification and short-listing of proposers prior to final
evaluation of proposals.
(C) Final evaluation of proposals based on qualifications and best
value. The California Transportation Commission shall develop and
adopt criteria for making that evaluation prior to evaluation of a
proposal.
(D) Negotiations with proposers prior to award.
(E) Acceptance of unsolicited proposals, with issuance of requests
for competing proposals. Neither the department nor a regional
transportation agency may award a contract to an unsolicited bidder
without receiving at least one other responsible bid.
(2) When evaluating a proposal submitted by the contracting entity
or lessee, the department or the regional transportation agency may
award a contract on the basis of the lowest bid or best value.
(h) The contracting entity or lessee shall have the following
qualifications:
(1) Evidence that the members of the contracting entity or lessee
have completed, or have demonstrated the experience, competency,
capability, and capacity to complete, a project of similar size,
scope, or complexity, and that proposed key personnel have sufficient
experience and training to competently manage and complete the
design and construction of the project, and a financial statement
that ensures that the contracting entity or lessee has the capacity
to complete the project.
(2) The licenses, registration, and credentials required to design
and construct the project, including, but not limited to,
information on the revocation or suspension of any license,
credential, or registration.
(3) Evidence that establishes that members of the contracting
entity or lessee have the capacity to obtain all required payment and
performance bonding, liability insurance, and errors and omissions
insurance.
(4) Evidence that the contracting entity or lessee has workers'
compensation experience, history, and a worker safety program of
members of the contracting entity or lessee that is acceptable to the
department or regional transportation agency.
(5) A full disclosure regarding all of the following with respect
to each member of the contracting entity or lessee during the past
five years:
(A) Any serious or willful violation of Part 1 (commencing with
Section 6300) of Division 5 of the Labor Code or the federal
Occupational Safety and Health Act of 1970 (P.L. 91-596).
(B) Any instance where members of the contracting entity or lessee
were debarred, disqualified, or removed from a federal, state, or
local government public works project.
(C) Any instance where members of the contracting entity or
lessee, or its owners, officers, or managing employees submitted a
bid on a public works project and were found to be nonresponsive or
were found by an awarding body not to be a responsible bidder.
(D) Any instance where members of the contracting entity or
lessee, or its owners, officers, or managing employees defaulted on a
construction contract.
(E) Any violations of the Contractors' State License Law (Chapter
9 (commencing with Section 7000) of Division 3 of the Business and
Professions Code), including, but not limited to, alleged violations
of federal or state law regarding the payment of wages, benefits,
apprenticeship requirements, or personal income tax withholding, or
Federal Insurance Contributions Act (FICA) withholding requirements.
(F) Any bankruptcy or receivership of any member of the
contracting entity or lessee, including, but not limited to,
information concerning any work completed by a surety.
(G) Any settled adverse claims, disputes, or lawsuits between the
owner of a public works project and any member of the contracting
entity or lessee during the five years preceding submission of a bid
under this article, in which the claim, settlement, or judgment
exceeds fifty thousand dollars ($50,000). Information shall also be
provided concerning any work completed by a surety during this
five-year period.
(H) If the contracting entity or lessee is a partnership, joint
venture, or an association that is not a legal entity, a copy of the
agreement creating the partnership or association that specifies that
all general partners, joint venturers, or association members agree
to be fully liable for the performance under the agreement.
(i) No agreement entered into pursuant to this section shall
infringe on the authority of the department or a regional
transportation agency to develop, maintain, repair, rehabilitate,
operate, or lease any transportation project. Lease agreements may
provide for reasonable compensation to the contracting entity or
lessee for the adverse effects on toll revenue or user fee revenue
due to the development, operation, or lease of supplemental
transportation projects with the exception of any of the following:
(1) Projects identified in regional transportation plans prepared
pursuant to Section 65080 of the Government Code.
(2) Safety projects.
(3) Improvement projects that will result in incidental capacity
increases.
(4) Additional high-occupancy vehicle lanes or the conversion of
existing lanes to high-occupancy vehicle lanes.
(5) Projects located outside the boundaries of a public-private
partnership project, to be defined by the lease agreement.
However, compensation to a contracting entity or lessee shall only
be made after a demonstrable reduction in use of the facility
resulting in reduced toll or user fee revenues, and may not exceed
the difference between the reduction in those revenues and the amount
necessary to cover the costs of debt service, including principal
and interest on any debt incurred for the development, operation,
maintenance, or rehabilitation of the facility.
(j) (1) Agreements entered into pursuant to this section shall
authorize the contracting entity or lessee to impose tolls and user
fees for use of a facility constructed by it, and shall require that
over the term of the lease the toll revenues and user fees be applied
to payment of the capital outlay costs for the project, the costs
associated with operations, toll and user fee collection,
administration of the facility, reimbursement to the department or
other governmental entity for the costs of services to develop and
maintain the project, police services, and a reasonable return on
investment. The agreement shall require that, notwithstanding
Sections 164, 188, and 188.1, any excess toll or user fee revenue
either be applied to any indebtedness incurred by the contracting
entity or lessee with respect to the project, improvements to the
project, or be paid into the State Highway Account, or for all three
purposes, except that any excess toll revenue under a lease agreement
with a regional transportation agency may be paid to the regional
transportation agency for use in improving public transportation in
and near the project boundaries.
(2) Lease agreements shall establish specific toll or user fee
rates. Any proposed increase in those rates not otherwise established
or identified in the lease agreement during the term of the
agreement shall first be approved by the department or regional
transportation agency, as appropriate, after at least one public
hearing conducted at a location near the proposed or existing
facility.
(3) The collection of tolls and user fees for the use of these
facilities may be extended by the commission or regional
transportation agency at the expiration of the lease agreement.
However, those tolls or user fees shall not be used for any purpose
other than for the improvement, continued operation, or maintenance
of the facility.
(k) Agreements entered into pursuant to this section shall include
indemnity, defense, and hold harmless provisions agreed to by the
department or regional transportation agency and the contracting
entity or lessee, including provisions for indemnifying the State of
California or the regional transportation agency against any claims
or losses resulting or accruing from the performance of the
contracting entity or lessee.
(l) The plans and specifications for each transportation project
on the state highway system developed, maintained, repaired,
rehabilitated, reconstructed, or operated pursuant to this section
shall comply with the department's standards for state transportation
projects. The lease agreement shall include performance standards,
including, but not limited to, levels of service. The agreement shall
require facilities on the state highway system to meet all
requirements for noise mitigation, landscaping, pollution control,
and safety that otherwise would apply if the department were
designing, building, and operating the facility. If a facility is on
the state highway system, the facility leased pursuant to this
section shall, during the term of the lease, be deemed to be a part
of the state highway system for purposes of identification,
maintenance, enforcement of traffic laws, and for the purposes of
Division 3.6 (commencing with Section 810) of Title 1 of the
Government Code.
(m) Failure to comply with the lease agreement in any significant
manner shall constitute a default under the agreement and the
department or the regional transportation agency, as appropriate,
shall have the option to initiate processes to revert the facility to
the public agency.
(n) The assignment authorized by subdivision (c) of Section 130240
of the Public Utilities Code is consistent with this section.
(o) A lease to a private entity pursuant to this section is deemed
to be public property for a public purpose and exempt from
leasehold, real property, and ad valorem taxation, except for the
use, if any, of that property for ancillary commercial purposes.
(p) Nothing in this section is intended to infringe on the
authority to develop high-occupancy toll lanes pursuant to Section
149.4, 149.5, or 149.6.
(q) Nothing in this section shall be construed to allow the
conversion of any existing nontoll or nonuser-fee lanes into tolled
or user fee lanes with the exception of a high-occupancy vehicle lane
that may be operated as a high-occupancy toll lane for vehicles not
otherwise meeting the requirements for use of that lane.
(r) The lease agreement shall require the contracting entity or
lessee to provide any information or data requested by the California
Transportation Commission or the Legislative Analyst. The
commission, in cooperation with the Legislative Analyst, shall
annually prepare a report on the progress of each project and
ultimately on the operation of the resulting facility. The report
shall include, but not be limited to, a review of the performance
standards, a financial analysis, and any concerns or recommendations
for changes in the program authorized by this section.
(s) Notwithstanding any other provision of this section, no lease
agreement may be entered into pursuant to the section that affects,
alters, or supersedes the Memorandum of Understanding (MOU), dated
November 26, 2008, entered into by the Golden Gate Bridge Highway and
Transportation District, the Metropolitan Transportation Commission,
and the San Francisco County Transportation Authority, relating to
the financing of the U.S. Highway 101/Doyle Drive reconstruction
project located in the City and County of San Francisco.
(t) No lease agreements may be entered into under this section on
or after January 1, 2017.
SEC. 289. Section 182.2 of the Streets and Highways Code is
amended to read:
182.2. Notwithstanding any other provision of law, toll bridge
seismic retrofit and replacement projects described in Section 188.5
shall continue to be governed by the provisions of former Article 4.9
(commencing with Section 180), as added by Chapter 15 of the
Statutes of 1994 and subsequently amended, as that article read on
January 1, 2005, other than former Section 180.7 relative to repeal.
This section shall become inoperative when all toll bridge seismic
retrofit and replacement projects described in Section 188.5 are
complete.
SEC. 290. Section 1188 of the Streets and Highways Code is amended
to read:
1188. The board shall cause the highway work provided for in this
article to be done in accordance with the provisions of Sections
20391 to 20395, inclusive, of the Public Contract Code, except that
the notice calling for bids shall be published in a newspaper
published in the division if there is such a newspaper. The
successful bidder shall deposit a bond in the amount the board
requires, conditioned on the faithful performance of the contract and
on the payment for all labor employed and all material used in the
work.
SEC. 291. Section 5898.15 of the Streets and Highways Code, as
added by Section 1 of Chapter 564 of the Statutes of 2010, is
repealed.
SEC. 292. Section 5898.23 of the Streets and Highways Code, as
added by Section 2 of Chapter 564 of the Statutes of 2010, is
repealed.
SEC. 293. Section 1088.5 of the Unemployment Insurance Code is
amended to read:
1088.5. (a) In addition to information reported in accordance
with Section 1088, effective July 1, 1998, each employer shall file,
with the department, the information provided for in subdivision (b)
on new employees.
(b) Each employer shall report the hiring of any employee who
works in this state and to whom the employer anticipates paying
wages.
(c) (1) This section shall not apply to any department, agency, or
instrumentality of the United States.
(2) State agency employers shall not be required to report
employees performing intelligence or counterintelligence functions,
if the head of the agency has determined that reporting pursuant to
this section would endanger the safety of the employee or compromise
an ongoing investigation or intelligence mission.
(d) (1) Employers shall submit a report as described in paragraph
(4) within 20 days of hiring any employee whom the employer is
required to report pursuant to this section.
(2) Notwithstanding subdivision (a), employers transmitting
reports magnetically or electronically shall submit the report by two
monthly transmissions not less than 12 days or more than 16 days
apart.
(3) For purposes of this section, an employer that has employees
in two or more states and that transmits reports magnetically or
electronically may designate one state in which the employer has
employees to which the employer will transmit the report described in
paragraph (4). Any employer that transmits reports pursuant to this
paragraph shall notify the United States Secretary of Health and
Human Services in writing as to which state the employer designates
for the purpose of sending reports.
(4) The report shall contain the following:
(A) The name, address, and social security number of the
employees.
(B) The employer's name, address, state employer identification
number (if one has been issued), and identifying number assigned to
the employer under Section 6109 of the Internal Revenue Code of 1986.
(C) The first date the employee worked.
(5) Employers may report pursuant to this section by submitting a
copy of the employee's W-4 form, a form provided by the department,
or any other hiring document transmitted by first-class mail,
magnetically, or electronically.
(e) For each failure to report the hiring of an employee, as
required and within the time required by this section, unless the
failure is due to good cause, the department may assess a penalty of
twenty-four dollars ($24), or four hundred ninety dollars ($490) if
the failure is the result of conspiracy between the employer and
employee not to supply the required report or to supply a false or
incomplete report.
(f) Information collected pursuant to this section may be used for
the following purposes:
(1) Administration of this code.
(2) Locating individuals for purposes of establishing paternity
and establishing, modifying, and enforcing child support obligations.
(3) Administration of employment security and workers'
compensation programs.
(4) Providing employer or employee information to the Franchise
Tax Board for the purpose of tax enforcement.
(5) Verification of eligibility of applicants for, or recipients
of, the public assistance programs listed in Section 1320b-7(b) of
Title 42 of the United States Code.
(g) For purposes of this section, "employer" includes, but is not
limited to, a labor union hiring hall.
(h) This section shall become operative on July 1, 1998.
SEC. 294. Section 1269 of the Unemployment Insurance Code, as
amended by Section 5 of Chapter 591 of the Statutes of 2010, is
amended to read:
1269. A determination of automatic eligibility for benefits under
this article shall be issued to an unemployed individual if the
director finds that any of the following applies:
(a) The training is authorized by the federal Workforce Investment
Act (P.L. 105-220) or by the Employment Training Panel established
pursuant to Chapter 3.5 (commencing with Section 10200) of Part 1 of
Division 3.
(b) The training is authorized by the federal Trade Act of 1974
(19 U.S.C. Sec. 2101 et seq.), as amended by the federal Trade Act of
2002 (P.L. 107-210), and as those acts may be amended by the Trade
and Globalization Adjustment Assistance Act of 2009, enacted under
the American Recovery and Reinvestment Act of 2009 (P.L. 111-5),
pursuant to a certified petition.
(c) The individual is a participant in the California Work
Opportunity and Responsibility to Kids (CalWORKs) program pursuant to
Article 3.2 (commencing with Section 11320) or Article 3.3
(commencing with Section 11330) of Chapter 2 of Part 3 of Division 9
of the Welfare and Institutions Code, and has entered into a contract
with the county welfare department to participate in an education or
training program.
(d) The individual is a participant in training with a provider
that is certified and on the state's Eligible Training Provider List
(ETPL), as authorized by the federal Workforce Investment Act (P.L.
105-220).
(e) The individual is a journey level union member and the
training or retraining course of instruction is industry-related
training necessary due to changes in technology, or industry demands,
or is necessary to retain employment or to become more competitive
in obtaining employment.
SEC. 296. Section 1755 of the Unemployment Insurance Code
is amended to read:
1755. If any person or employing unit is delinquent in the
payment of any contributions, penalties or interest provided for in
this division, the director may, not later than three years after the
payment became delinquent or within 10 years after the last entry of
a judgment under Article 5 (commencing with Section 1815) or within
10 years after the last recording or filing of a notice of state tax
lien under Section 7171 of the Government Code, collect the
delinquency or enforce any liens by levy served either personally or
by first-class mail, to all persons having in their possession or
under their control any credits or personal property belonging to the
delinquent person or employing unit, or owing any debts to the
person or employing unit at the time of the receipt of the notice of
levy or coming into their possession or under their control for the
period of one year from the time of receipt of the notice of levy.
Any person upon whom a levy has been served having in his or her
possession or under his or her control any credits or personal
property belonging to the delinquent person or employing unit or
owing any debts to the person or employing unit at the time of the
receipt of the levy or coming into his or her possession or under his
or her control for the period of one year from the time of receipt
of the notice of levy, shall surrender the credits or personal
property to the director or pay to the director the amount of any
debt owing the delinquent employer within five days of service of the
levy, and shall surrender the credits or personal property, or the
amount of any debt owing to the delinquent employer coming into his
or her possession or under his or her control within one year of
receipt of the notice of levy within five days of the date of coming
into possession or control of the credits or personal property, or
the amount of any debt owing to the delinquent employer is incurred.
Any person in possession of any credits or personal property or owing
any debts to the delinquent person or employing unit who surrenders
the credits or personal property or pays the debts owing the
delinquent person or employing unit shall be discharged from any
obligation or liability to the delinquent person or employing unit
with respect to the credits or personal property surrendered or debts
paid to the director. If the levy is made on a deposit or credits or
personal property in the possession or under the control of a bank
or savings and loan association, the notice of levy shall be
delivered or mailed to the centralized processing unit or location
designated by that bank or savings and loan association where the
credits or other property are held. If the levy is made on a bank or
savings and loan association, it will apply to all credits or
personal property as provided in this section, except that it will
apply to credits and personal property in a deposit account, as
defined in paragraph (29) of subdivision (a) of Section 9102 of the
Commercial Code, only at the time the notice of levy is received by
the bank or savings and loan association.
SEC. 297. Section 1757 of the Unemployment Insurance Code is
amended to read:
1757. Any person notified pursuant to Section 1755 or 1755.1 who
fails or refuses to surrender any credits or other personal property,
or pay any debts owing to the delinquent employer, up to the amount
specified in the levy, shall be liable in his or her own person and
estate to the director in an amount equal to the value of the credits
or other personal property in the amount of the debt, but not
exceeding the amount specified in the notice of levy, if solely by
reason of such failure or refusal, the department is unable to
recover the contributions, penalties, or interest owing by the person
with respect to which the notice was given.
SEC. 298. Section 3011 of the Unemployment Insurance Code is
amended to read:
3011. Whenever any warrant is drawn on an account in the
Disability Fund by the Controller, and the same remains unclaimed
after one year, the amount thereof shall revert to that account in
the Disability Fund from which the amount was payable.
SEC. 299. Section 3701 of the Unemployment Insurance Code is
amended to read:
3701. (a) (1) Any employer who is entitled under Section 3654 to
notice of the filing of a primary claim or additional claim and who,
within 10 days after mailing of the notice, submits to the department
any facts within its possession disclosing whether the exhaustee
left the most recent employment with the employer voluntarily and
without good cause or was discharged from the employment for
misconduct connected with his or her work, or whether the claimant
was a student employed on a temporary basis and whose employment
began within, and ended with his or her leaving to return to school
at the close of, his or her vacation period, or whether the claimant
left the employer's employ to accompany his or her spouse or domestic
partner to a place or join him or her at a place from which it is
impractical to commute to the employment, and to which a transfer of
the claimant by the employer is not available or whether the claimant'
s discharge or quit from his or her most recent employer was the
result of an irresistible compulsion to use or consume intoxicants
including alcoholic beverages, shall be entitled to a ruling as
prescribed by this section. The period during which the employer may
submit these facts may be extended by the director for good cause.
(2) For purposes of this section, "spouse" includes a person to
whom marriage is imminent, and "domestic partner" includes a person
to whom a domestic partnership, as described in Section 297 of the
Family Code, is imminent.
(b) The department shall consider these facts together with any
information in its possession. If the employer is entitled to a
determination pursuant to Section 3655, the department shall promptly
notify the employer of its ruling as to the cause of the termination
of the exhaustee's most recent employment. The employer may appeal
from a ruling or reconsidered ruling to an administrative law judge
within 20 days after mailing or personal service of notice of the
ruling or reconsidered ruling. The 20-day period may be extended for
good cause, which shall include, but not be limited to, mistake,
inadvertence, surprise, or excusable neglect. The director shall be
an interested party to any appeal. The department may for good cause
reconsider any ruling or reconsidered ruling within either five days
after the date an appeal to an administrative law judge is filed or,
if no appeal is filed, within 20 days after mailing or personal
service of notice of the ruling or reconsidered ruling, except that
any ruling or reconsidered ruling which related to a determination
that is reconsidered pursuant to subdivision (a) of Section 1332 may
also be reconsidered by the department within the time provided for
reconsideration of that determination.
(c) For purposes of this section only, if the claimant voluntarily
leaves the employer's employ without notification to the employer of
the reasons therefor, and if the employer submits all of the facts
within its possession concerning the leaving within the applicable
time period referred to in this section, the leaving shall be
presumed to be without good cause.
(d) An individual whose employment is terminated under the
compulsory retirement provisions of a collective bargaining agreement
to which the employer is a party shall not be deemed to have
voluntarily left his or her employment without good cause.
(e) Rulings under this section shall have the effect prescribed by
Section 1032.
SEC. 300. Section 15002 of the Unemployment Insurance Code is
amended to read:
15002. (a) The California Workforce Investment Board (CWIB) shall
establish a special committee known as the Green Collar Jobs Council
(GCJC), comprised of the appropriate representatives from the CWIB
existing membership, including the K-12 representative, the
California Community Colleges representative, the Business,
Transportation and Housing Agency representative, the Employment
Development Department representative, and other appropriate members.
The GCJC may consult with other state agencies, other higher
education representatives, local workforce investment boards, and
industry representatives as well as philanthropic, nongovernmental,
and environmental groups, as appropriate, in the development of a
strategic initiative.
(b) As part of the strategic initiative, the GCJC shall focus on
developing the framework, funding, strategies, programs, policies,
partnerships, and opportunities necessary to address the growing need
for a highly skilled and well-trained workforce to meet the needs of
California's emerging green economy. The GCJC shall do all of the
following:
(1) Assist in identifying and linking green collar job
opportunities with workforce development training opportunities in
local workforce investment areas (LWIAs), encouraging regional
collaboration among LWIAs to meet regional economic demands.
(2) Align workforce development activities with regional economic
recovery and growth strategies.
(3) Develop public, private, philanthropic, and nongovernmental
partnerships to build and expand the state's workforce development
programs, network, and infrastructure.
(4) Provide policy guidance for job training programs for the
clean and green technology sectors to help them prepare specific
populations, such as at-risk youth, displaced workers, veterans,
formerly incarcerated individuals, and others facing barriers to
employment.
(5) Develop, collect, analyze, and distribute statewide and
regional labor market data on California's new and emerging green
industries workforce needs, trends, and job growth.
(6) Collaborate with community colleges and other educational
institutions, registered apprenticeship programs, business and labor
organizations, and community-based and philanthropic organizations to
align workforce development services with strategies for regional
economic growth.
(7) Identify funding resources and make recommendations on how to
expand and leverage these funds.
(8) Foster regional collaboratives in the green economic sector.
(c) The CWIB may accept any revenues, moneys, grants, goods, or
services from federal and state entities, philanthropic
organizations, and other sources, to be used for purposes relating to
the administration and implementation of the strategic initiative,
as described in subdivision (b). The CWIB shall also ensure the
highest level of transparency and accountability and make information
available on the CWIB Internet Web site.
(d) Upon appropriation by the Legislature, the department may
expend the moneys and revenues received pursuant to subdivision (c)
for purposes related to the administration and implementation of the
strategic initiative, and for the award of workforce training grants
implementing the strategic initiative.
SEC. 301. Section 5007 of the Vehicle Code is amended to read:
5007. (a) The department shall, upon application and without
additional fees, issue a special license plate or plates pursuant to
procedures adopted by the department to all of the following:
(1) A disabled person.
(2) A disabled veteran.
(3) An organization or agency involved in the transportation of
disabled persons or disabled veterans if the motor vehicle that will
have the special license plate is used solely for the purpose of
transporting those persons.
(b) The special license plates issued under subdivision (a) shall
run in a regular numerical series that shall include one or more
unique two-letter codes reserved for disabled person license plates
or disabled veteran license plates. The International Symbol of
Access adopted pursuant to Section 3 of Public Law 100-641, commonly
known as the "wheelchair symbol" shall be depicted on each plate.
(c) (1) Except as provided in paragraph (3), prior to issuing a
special license plate to a disabled person or disabled veteran, the
department shall require the submission of a certificate, in
accordance with paragraph (2), signed by the physician and surgeon,
or to the extent that it does not cause a reduction in the receipt of
federal aid highway funds, by a nurse practitioner, certified nurse
midwife, or physician assistant, substantiating the disability,
unless the applicant's disability is readily observable and
uncontested. The disability of a person who has lost, or has lost the
use of, one or more lower extremities or one hand, for a disabled
veteran, or both hands for a disabled person, or who has significant
limitation in the use of lower extremities, may also be certified by
a licensed chiropractor. The blindness of an applicant shall be
certified by a licensed physician and surgeon who specializes in
diseases of the eye or a licensed optometrist. The physician and
surgeon, nurse practitioner, certified nurse midwife, physician
assistant, chiropractor, or optometrist certifying the qualifying
disability shall provide a full description of the illness or
disability on the form submitted to the department.
(2) The physician and surgeon, nurse practitioner, certified nurse
midwife, physician assistant, chiropractor, or optometrist who signs
a certificate submitted under this subdivision shall retain
information sufficient to substantiate that certificate and, upon
request of the department, shall make that information available for
inspection by the Medical Board of California or the appropriate
regulatory board.
(3) For a disabled veteran, the department shall accept, in lieu
of the certificate described in paragraph (1), a certificate from the
United States Department of Veterans Affairs that certifies that the
applicant is a disabled veteran as described in Section 295.7.
(d) A disabled person or disabled veteran who is issued a license
plate or plates under this section shall, upon request, present to a
peace officer, or person authorized to enforce parking laws,
ordinances, or regulations, a certification form that substantiates
the eligibility of the disabled person or veteran to possess the
plate or plates. The certification shall be on a form prescribed by
the department and contain the name of the disabled person or
disabled veteran to whom the plate or plates were issued, and the
name, address, and telephone number of the medical professional
described in subdivision (c) who certified the eligibility of the
person or veteran for the plate or plates.
(e) The certification requirements of subdivisions (c) and (d) do
not apply to an organization or agency that is issued a special
license plate or plates under paragraph (3) of subdivision (a).
(f) The special license plate shall, upon the death of the
disabled person or disabled veteran, be returned to the department
within 60 days or upon the expiration of the vehicle registration,
whichever occurs first.
(g) When a motor vehicle subject to paragraph (3) of subdivision
(a) is sold or transferred, the special license plate or plates
issued to an organization or agency under paragraph (3) of
subdivision (a) for that motor vehicle shall be immediately returned
to the department.
SEC. 302. Section 11205.4 of the Vehicle Code, as added by Chapter
599 of the Statutes of 2010, is amended to read:
11205.4. (a) The department may use a traffic assistance program
(TAP), or until January 1, 2013, a CAP established pursuant to
Section 11205.2, for monitoring of licensed traffic violator schools,
including, but not limited to, audits, inspections, review and
examination of business records, class records, business practices,
the content of the program of instruction set forth in the lesson
plan, or curriculum of a licensee. Inspection includes, but is not
limited to, the review of the business office, branch office, and
applicable classroom facilities of a licensee. Monitoring includes
onsite review of actual presentation of the traffic safety
instruction provided in a classroom and any other activity deemed
necessary to ensure high-quality education of traffic violators.
(b) This section shall become operative on September 1, 2011.
SEC. 303. 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 a physically and mentally qualified person who
meets one of the following requirements and who applies to the
department for an instruction permit:
(1) Is 15 years and 6 months of age or older, 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 15 years and 6 months of age or older, 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 15 years and 6 months of age and enrolled and participating
in an integrated automobile driver education and training program as
provided in subparagraph (B) of paragraph (3) of subdivision (a) of
Section 12814.6.
(4) Is over 16 years of age and is applying for a restricted
driver's license pursuant to Section 12814.7.
(5) Is over 17 years and 6 months of age.
(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 who is 18 years of age or over and whose
driving privilege is not subject to probation. 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 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
driver training instruction administered by the California National
Guard.
(f) 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.
(g) The department may further restrict permits issued under
subdivision (a) as it may determine to be appropriate to ensure the
safe operation of a motor vehicle by the permittee.
SEC. 304. Section 12804.9 of the Vehicle Code is amended to read:
12804.9. (a) (1) The examination shall include all of the
following:
(A) A test of the applicant's knowledge and understanding of this
code governing the operation of vehicles upon the highways.
(B) A test of the applicant's ability to read and understand
simple English used in highway traffic and directional signs.
(C) A test of the applicant's understanding of traffic signs and
signals, including the bikeway signs, markers, and traffic control
devices established by the Department of Transportation.
(D) An actual demonstration of the applicant's ability to exercise
ordinary and reasonable control in operating a motor vehicle by
driving it under the supervision of an examining officer. The
applicant shall submit to an examination appropriate to the type of
motor vehicle or combination of vehicles he or she desires a license
to drive, except that the department may waive the driving test part
of the examination for an applicant who submits a license issued by
another state, territory, or possession of the United States, the
District of Columbia, or the Commonwealth of Puerto Rico if the
department verifies through an acknowledged national driver record
data source that there are no stops, holds, or other impediments to
its issuance. The examining officer may request to see evidence of
financial responsibility for the vehicle prior to supervising the
demonstration of the applicant's ability to operate the vehicle. The
examining officer may refuse to examine an applicant who is unable to
provide proof of financial responsibility for the vehicle, unless
proof of financial responsibility is not required by this code.
(E) A test of the hearing and eyesight of the applicant, and of
other matters that may be necessary to determine the applicant's
mental and physical fitness to operate a motor vehicle upon the
highways, and whether any grounds exist for refusal of a license
under this code.
(2) The examination for a class A or class B driver's license
under subdivision (b) shall also include a report of a medical
examination of the applicant given not more than two years prior to
the date of the application by a health care professional. As used in
this paragraph, "health care professional" means a person who is
licensed, certified, or registered in accordance with applicable
state laws and regulations to practice medicine and perform physical
examinations in the United States. Health care professionals are
doctors of medicine, doctors of osteopathy, physician assistants, and
registered advanced practice nurses, or doctors of chiropractic who
are clinically competent to perform the medical examination presently
required of motor carrier drivers by the federal Department of
Transportation. The report shall be on a form approved by the
department, the federal Department of Transportation, or the Federal
Aviation Administration. In establishing the requirements,
consideration may be given to the standards presently required of
motor carrier drivers by the Federal Highway Administration.
(3) A physical defect of the applicant that, in the opinion of the
department, is compensated for to ensure safe driving ability shall
not prevent the issuance of a license to the applicant.
(b) In accordance with the following classifications, an applicant
for a driver's license shall be required to submit to an examination
appropriate to the type of motor vehicle or combination of vehicles
the applicant desires a license to drive:
(1) Class A includes the following:
(A) A combination of vehicles, if a vehicle being towed has a
gross vehicle weight rating of more than 10,000 pounds.
(B) A vehicle towing more than one vehicle.
(C) A trailer bus.
(D) The operation of all vehicles under class B and class C.
(2) Class B includes the following:
(A) Except as provided in subparagraph (H) of paragraph (3), a
single vehicle with a gross vehicle weight rating of more than 26,000
pounds.
(B) A single vehicle with three or more axles, except any
three-axle vehicle weighing less than 6,000 pounds.
(C) A bus except a trailer bus.
(D) A farm labor vehicle.
(E) A single vehicle with three or more axles or a gross vehicle
weight rating of more than 26,000 pounds towing another vehicle with
a gross vehicle weight rating of 10,000 pounds or less.
(F) A house car over 40 feet in length, excluding safety devices
and safety bumpers.
(G) The operation of all vehicles covered under class C.
(3) Class C includes the following:
(A) A two-axle vehicle with a gross vehicle weight rating of
26,000 pounds or less, including when the vehicle is towing a trailer
or semitrailer with a gross vehicle weight rating of 10,000 pounds
or less.
(B) Notwithstanding subparagraph (A), a two-axle vehicle weighing
4,000 pounds or more unladen when towing a trailer coach not
exceeding 9,000 pounds gross.
(C) A house car of 40 feet in length or less.
(D) A three-axle vehicle weighing 6,000 pounds gross or less.
(E) A house car of 40 feet in length or less or a vehicle towing
another vehicle with a gross vehicle weight rating of 10,000 pounds
or less, including when a tow dolly is used. A person driving a
vehicle may not tow another vehicle in violation of Section 21715.
(F) (i) A two-axle vehicle weighing 4,000 pounds or more unladen
when towing either a trailer coach or a fifth-wheel travel trailer
not exceeding 10,000 pounds gross vehicle weight rating, when the
towing of the trailer is not for compensation.
(ii) A two-axle vehicle weighing 4,000 pounds or more unladen when
towing a fifth-wheel travel trailer exceeding 10,000 pounds, but not
exceeding 15,000 pounds, gross vehicle weight rating, when the
towing of the trailer is not for compensation, and if the person has
passed a specialized written examination provided by the department
relating to the knowledge of this code and other safety aspects
governing the towing of recreational vehicles upon the highway.
The authority to operate combinations of vehicles under this
subparagraph may be granted by endorsement on a class C license upon
completion of that written examination.
(G) A vehicle or combination of vehicles with a gross combination
weight rating or a gross vehicle weight rating, as those terms are
defined in subdivisions (j) and (k), respectively, of Section 15210,
of 26,000 pounds or less, if all of the following conditions are met:
(i) Is operated by a farmer, an employee of a farmer, or an
instructor credentialed in agriculture as part of an instructional
program in agriculture at the high school, community college, or
university level.
(ii) Is used exclusively in the conduct of agricultural
operations.
(iii) Is not used in the capacity of a for-hire carrier or for
compensation.
(H) Firefighting equipment, provided that the equipment is
operated by a person who holds a firefighter endorsement pursuant to
Section 12804.11.
(I) A motorized scooter.
(J) Class C does not include a two-wheel motorcycle or a
two-wheel motor-driven cycle.
(4) Class M1 includes a two-wheel motorcycle or a motor-driven
cycle. Authority to operate a vehicle included in a class M1
license may be granted by
endorsement on a class A, B, or C license upon completion of an
appropriate examination.
(5) (A) Class M2 includes the following:
(i) A motorized bicycle or moped, or a bicycle with an attached
motor, except a motorized bicycle described in subdivision (b) of
Section 406.
(ii) A motorized scooter.
(B) Authority to operate vehicles included in class M2 may be
granted by endorsement on a class A, B, or C license upon completion
of an appropriate examination, except that no endorsement is required
for a motorized scooter. Persons holding a class M1 license or
endorsement may operate vehicles included in class M2 without further
examination.
(c) A driver's license or driver certificate is not valid for
operating a commercial motor vehicle, as defined in subdivision (b)
of Section 15210, any other motor vehicle defined in paragraph (1) or
(2) of subdivision (b), or any other vehicle requiring a driver to
hold a driver certificate or a driver's license endorsement under
Section 15275, unless a medical certificate approved by the
department, the federal Department of Transportation, or the Federal
Aviation Administration, that has been issued within two years of the
date of the operation of that vehicle, is within the licensee's
immediate possession, and a copy of the medical examination report
from which the certificate was issued is on file with the department.
Otherwise, the license is valid only for operating class C vehicles
that are not commercial vehicles, as defined in subdivision (b) of
Section 15210, and for operating class M1 or M2 vehicles, if so
endorsed, that are not commercial vehicles, as defined in subdivision
(b) of Section 15210.
(d) A license or driver certificate issued prior to the enactment
of Chapter 7 (commencing with Section 15200) is valid to operate the
class or type of vehicles specified under the law in existence prior
to that enactment until the license or certificate expires or is
otherwise suspended, revoked, or canceled.
(e) The department may accept a certificate of driving skill that
is issued by an employer, authorized by the department to issue a
certificate under Section 15250, of the applicant, in lieu of a
driving test, on class A or B applications, if the applicant has
first qualified for a class C license and has met the other
examination requirements for the license for which he or she is
applying. The certificate may be submitted as evidence of the
applicant's skill in the operation of the types of equipment covered
by the license for which he or she is applying.
(f) The department may accept a certificate of competence in lieu
of a driving test on class M1 or M2 applications, when the
certificate is issued by a law enforcement agency for its officers
who operate class M1 or M2 vehicles in their duties, if the applicant
has met the other examination requirements for the license for which
he or she is applying.
(g) The department may accept a certificate of satisfactory
completion of a novice motorcyclist training program approved by the
commissioner pursuant to Section 2932 in lieu of a driving test on
class M1 or M2 applications, if the applicant has met the other
examination requirements for the license for which he or she is
applying. The department shall review and approve the written and
driving test used by a program to determine whether the program may
issue a certificate of completion.
(h) Notwithstanding subdivision (b), a person holding a valid
California driver's license of any class may operate a short-term
rental motorized bicycle without taking a special examination for the
operation of a motorized bicycle, and without having a class M2
endorsement on that license. As used in this subdivision, "short-term"
means 48 hours or less.
(i) A person under the age of 21 years shall not be issued a class
M1 or M2 license or endorsement unless he or she provides evidence
satisfactory to the department of completion of a motorcycle safety
training program that is operated pursuant to Article 2 (commencing
with Section 2930) of Chapter 5 of Division 2.
(j) A driver of a vanpool vehicle may operate with a class C
license but shall possess evidence of a medical examination required
for a class B license when operating vanpool vehicles. In order to be
eligible to drive the vanpool vehicle, the driver shall keep in the
vanpool vehicle a statement, signed under penalty of perjury, that he
or she has not been convicted of reckless driving, drunk driving, or
a hit-and-run offense in the last five years.
SEC. 305. Section 12804.11 of the Vehicle Code is amended to read:
12804.11. (a) To operate firefighting equipment, a driver,
including a tiller operator, is required to obtain and maintain a
firefighter endorsement issued by the department and obtain and
maintain a class A, class B, or class C license. To qualify for a
firefighter endorsement the driver shall do all of the following:
(1) (A) Provide to the department proof of current employment as a
firefighter or registration as a volunteer firefighter with a fire
department and evidence of fire equipment operation training by
providing a letter, or other indication, from the chief of the fire
department, or his or her designee.
(B) For purposes of this section, evidence of fire equipment
operation training means the applicant has successfully completed
Fire Apparatus Driver/Operator 1A taught by an instructor registered
with the Office of the State Fire Marshal or fire department driver
training that meets all of the following requirements:
(i) Meets or exceeds the standards outlined in NFPA 1002, Chapter
4 (2008 version) or the Fire Apparatus Driver/Operator 1A course
adopted by the Office of the State Fire Marshal.
(ii) Prepares the applicant to safely operate the department's
fire equipment that the applicant will be authorized to operate.
(iii) Includes a classroom (cognitive) portion of at least 16
hours.
(iv) Includes a manipulative portion of at least 14 hours, which
includes directly supervised behind-the-wheel driver training.
(C) Driver training shall be conducted by a person who is
registered with the Office of the State Fire Marshal to instruct
Driver/Operator 1A or a person who meets all of the following
criteria:
(i) Possesses a minimum of five years of fire service experience
as an emergency vehicle operator, three of which must be at the rank
of engineer or higher.
(ii) Possesses a valid California class A or B license or a class
A or B license restricted to the operation of firefighting equipment.
(iii) Is certified as a qualified training instructor or training
officer by the State of California, the federal government, or a
county training officers' association.
(2) Pass the written firefighter examination developed by the
department with the cooperation of the State Fire Marshal's office.
(3) Submit a report of medical examination on a form approved by
the department. The report shall be dated within four years preceding
the application date, except as required by paragraph (2) of
subdivision (a) of Section 12804.9. A holder of a restricted
firefighters license as of January 1, 2011, is not subject to the
requirement for a medical examination until he or she renews his or
her license.
(b) There shall be no additional charge for adding a firefighter
endorsement to an original license or when renewing a license. To add
a firefighter endorsement to an existing license when not renewing
the license, the applicant shall pay the fee for a duplicate license
pursuant to Section 14901.
(c) (1) A driver of firefighting equipment is subject to the
requirements of subdivision (a) if both of the following conditions
exist:
(A) The equipment is operated by a person employed as a
firefighter by a federal or state agency, by a regularly organized
fire department of a city, county, city and county, or district, or
by a tribal fire department or registered as a volunteer member of a
regularly organized fire department having official recognition of
the city, county, city and county, or district in which the
department is located, or of a tribal fire department.
(B) The motor vehicle is used to travel to and from the scene of
any emergency situation, or to transport equipment used in the
control of any emergency situation, and which is owned, leased, or
rented by, or under the exclusive control of, a federal or state
agency, a regularly organized fire department of a city, county, city
and county, or district, a volunteer fire department having official
recognition of the city, county, city and county, or district in
which the department is located, or a tribal fire department.
(2) A driver of firefighting equipment is not required to obtain
and maintain a firefighter endorsement pursuant to subdivision (a) if
the driver is operating the firefighting equipment for training
purposes, during a nonemergency, while under the direct supervision
of a fire department employee who is properly licensed to operate the
equipment and is authorized by the fire department to provide
training.
(d) For purposes of this section, a tiller operator is the driver
of the rear free-axle portion of a ladder truck.
(e) For purposes of this section, "firefighting equipment" means a
motor vehicle, that meets the definition of a class A or class B
vehicle described in subdivision (b) of Section 12804.9, that is used
to travel to and from the scene of an emergency situation, or to
transport equipment used in the control of an emergency situation,
and that is owned, leased, or rented by, or under the exclusive
control of, a federal or state agency, a regularly organized fire
department of a city, county, city and county, or district, or a
volunteer fire department having official recognition of the city,
county, city and county, or district in which the department is
located.
(f) Notwithstanding subdivision (a), a regularly organized fire
department, having official recognition of the city, county, city and
county, or district in which the department is located, may require
an employee or a volunteer of the fire department who is a driver or
operator of firefighting equipment to hold a class A or B license.
(g) This section applies to a person hired by a fire department,
or to a person renewing a driver's license, on or after January 1,
2011.
SEC. 306. Section 13352 of the Vehicle Code 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 a court showing that the person has
been convicted of a violation of Section 23152 or 23153, subdivision
(a) of Section 23109, or Section 23109.1, 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 or Section 23109.1. If an 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 13352.1 or 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 shall 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
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 shall 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 shall 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
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, participation, 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.
(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
shall 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 he or she may apply to the department
for a restriction of the driving privilege, which may include credit
for a suspension period served under subdivision (c) of Section
13353.3, subject to the following conditions:
(A) Completion of 12 months of the suspension period, or
completion of 90 days of the suspension period if the underlying
conviction did not include the use of drugs as defined in Section 312
and the person was found to be only under the influence of an
alcoholic beverage at the time of the violation.
(B) The person satisfactorily provides, 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.
(C) The person agrees, as a condition of the restriction, to
continue satisfactory participation in the program described in
subparagraph (B).
(D) The person submits the "Verification of Installation" form
described in paragraph (2) of subdivision (g) of Section 13386.
(E) The person agrees to maintain the ignition interlock device as
required under subdivision (g) of Section 23575.
(F) The person provides proof of financial responsibility, as
defined in Section 16430.
(G) The person pays all reissue fees and any restriction fee
required by the department.
(H) The person pays to the department a fee sufficient to cover
the costs of administration of this paragraph, as determined by the
department.
(I) 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 paragraph (4) of
subdivision (b) of Section 23562 of this 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 12 months of the
revocation period, which may include credit for a 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 12 months of an 18-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code.
(ii) The initial 12 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 (g) 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 shall 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 of this 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 he or she may apply to the department
for a restriction of the driving privilege, which may include credit
for a suspension period served under subdivision (c) of Section
13353.3, subject to the following conditions:
(A) Completion of 12 months of the suspension period, or
completion of six months of the suspension period if the underlying
conviction did not include the use of drugs as defined in Section 312
and the person was found to be only under the influence of an
alcoholic beverage at the time of the violation.
(B) The person satisfactorily provides, 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, and the person agrees, as a condition of the restriction,
to continue satisfactory participation in the 30-month
driving-under-the-influence program.
(C) The person submits the "Verification of Installation" form
described in paragraph (2) of subdivision (g) 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) 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.
(G) The person pays all applicable reinstatement or reissue fees
and any restriction fee required by the department.
(H) The person pays to the department a fee sufficient to cover
the costs of administration of this paragraph, as determined by the
department.
(I) 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 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 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 completion of 12 months of the
revocation period, which may include credit for a 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) Completion of the initial 12 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) Completion of the initial 12 months of 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 (g) 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 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 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.
(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 of a violation of Section 23153 punishable under
Section 23550.5, the privilege shall be revoked for a period of four
years. The privilege shall not be reinstated until the person files
proof of financial responsibility and gives proof satisfactory to the
department of successful completion of 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 completion of 12 months of the revocation period,
which may include credit for a 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 12 months of an 18-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code.
(ii) The initial 12 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 (g) 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 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.
(8) Upon a conviction or finding of a violation of subdivision (a)
of Section 23109 that is punishable under subdivision (e) of that
section or Section 23109.1, the privilege shall be suspended for a
period of 90 days to six months, if ordered by the court. The
privilege shall 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 shall 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 or Section 23109.1, 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 a 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 the 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 the 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).
SEC. 307. Section 13557 of the Vehicle Code is amended to read:
13557. (a) The department shall review the determination made
pursuant to Section 13353, 13353.1, or 13353.2 relating to a person
who has received a notice of an order of suspension or revocation of
the person's privilege to operate a motor vehicle pursuant to Section
13353, 13353.1, 13353.2, 13382, or 23612,. The department shall
consider the sworn report submitted by the peace officer pursuant to
Section 23612 or 13380 and any other evidence accompanying the
report.
(b) (1) If the department determines in the review of a
determination made under Section 13353 or 13353.1, by a preponderance
of the evidence, all of the following facts, the department shall
sustain the order of suspension or revocation:
(A) The peace officer had reasonable cause to believe that the
person had been driving a motor vehicle in violation of Section
23136, 23140, 23152, 23153, or 23154.
(B) The person was placed under arrest or, if the alleged
violation was of Section 23136, that the person was lawfully
detained.
(C) The person refused or failed to complete the chemical test or
tests after being requested by a peace officer.
(D) Except for the persons described in Section 23612 who are
incapable of refusing, the person had been told that his or her
privilege to operate a motor vehicle would be suspended or revoked if
he or she refused to submit to, and complete, the required testing.
(2) If the department determines, by a preponderance of the
evidence, that any of the facts required under paragraph (1) were not
proven, the department shall rescind the order of suspension or
revocation and, if the person is otherwise eligible, return or
reissue the person's driver's license pursuant to Section 13551. The
determination of the department upon administrative review is final
unless a hearing is requested pursuant to Section 13558.
(3) If the department determines in the review of a determination
made under Section 13353.2, by the preponderance of the evidence, all
of the following facts, the department shall sustain the order of
suspension or revocation, or if the person is under 21 years of age
and does not yet have a driver's license, the department shall delay
issuance of that license for one year:
(A) The peace officer had reasonable cause to believe that the
person had been driving a motor vehicle in violation of Section
23136, 23140, 23152, 23153, or 23154.
(B) The person was placed under arrest or, if the alleged
violation was of Section 23136, the person was lawfully detained.
(C) The person was driving a motor vehicle under any of the
following circumstances:
(i) When the person had 0.08 percent or more, by weight, of
alcohol in his or her blood.
(ii) When the person was under 21 years of age and had 0.05
percent or more, by weight, of alcohol in his or her blood.
(iii) When the person was under 21 years of age and had a
blood-alcohol concentration of 0.01 percent or greater, as measured
by a preliminary alcohol screening test, or other chemical test.
(iv) When the person was driving a vehicle that requires a
commercial driver's license and the person had 0.04 percent or more,
by weight, of alcohol in his or her blood.
(v) When the person was on probation for a violation of Section
23152 or 23153 and had a blood-alcohol concentration of 0.01 percent
or greater, as measured by a preliminary alcohol screening test or
other chemical test.
(4) If the department determines that any of those facts required
under paragraph (3) were not proven by the preponderance of the
evidence, the department shall rescind the order of suspension or
revocation and, if the person is otherwise eligible, return or
reissue the person's driver's license pursuant to Section 13551. For
persons under 21 years of age, the determination of the department
pursuant to paragraph (3) is final unless a hearing is requested
within 10 days of the determination, which hearing shall be conducted
according to Section 13558. For persons over 21 years of age, the
determination of the department upon administrative review is final
unless a hearing is requested pursuant to Section 13558.
(c) The department shall make the determination upon
administrative review before the effective date of the order of
suspension or revocation.
(d) The administrative review does not stay the suspension or
revocation of a person's privilege to operate a motor vehicle. If the
department is unable to make a determination on administrative
review within the time limit in subdivision (c), the department shall
stay the effective date of the order of suspension or revocation
pending the determination and, if the person's driver's license has
been taken by the peace officer pursuant to Section 13382, 13388,
13389, or 23612, the department shall notify the person before the
expiration date of the temporary permit issued pursuant to Section
13382, 13388, 13389, or 23612, or the expiration date of any previous
extension issued pursuant to this subdivision, in a form that
permits the person to establish to any peace officer that his or her
privilege to operate a motor vehicle is not suspended or revoked.
(e) A person may request and be granted a hearing pursuant to
Section 13558 without first receiving the results of an
administrative review pursuant to this section. After receiving a
request for a hearing, the department is not required to conduct an
administrative review of the same matter pursuant to this section.
(f) A determination of facts by the department under this section
has no collateral estoppel effect on a subsequent criminal
prosecution and does not preclude litigation of those same facts in
the criminal proceeding.
SEC. 308. Section 29004 of the Vehicle Code is amended to read:
29004. (a) (1) Except as required under paragraph (2), a towed
vehicle shall be coupled to the towing vehicle by means of a safety
chain, cable, or equivalent device in addition to the regular
drawbar, tongue, or other connection.
(2) A vehicle towed by a tow truck shall be coupled to the tow
truck by means of at least two safety chains in addition to the
primary restraining system. The safety chains shall be securely
affixed to the truck frame, bed, or towing equipment, independent of
the towing sling, wheel lift, or under-reach towing equipment.
(3) A vehicle transported on a slide back carrier or conventional
trailer shall be secured by at least four tiedown chains, straps, or
an equivalent device, independent of the winch or loading cable. This
subdivision does not apply to vehicle bodies that are being
transported in compliance with Sections 393.100 to 393.136,
inclusive, of Title 49 of the Code of Federal Regulations.
(b) All safety connections and attachments shall be of sufficient
strength to control the towed vehicle in the event of failure of the
regular hitch, coupling device, drawbar, tongue, or other connection.
All safety connections and attachments also shall have a positive
means of ensuring that the safety connection or attachment does not
become dislodged while in transit.
(c) No more slack may be left in a safety chain, cable, or
equivalent device than is necessary to permit proper turning. When a
drawbar is used as the towing connection, the safety chain, cable, or
equivalent device shall be connected to the towed and towing vehicle
and to the drawbar so as to prevent the drawbar from dropping to the
ground if the drawbar fails.
(d) Subdivision (a) does not apply to a semitrailer having a
connecting device composed of a fifth wheel and kingpin assembly, and
does not apply to a towed motor vehicle when steered by a person who
holds a license for the type of vehicle being towed.
(e) For purposes of this section, a "tow truck" includes both of
the following:
(1) A repossessor's tow vehicle, as defined in subdivision (b) of
Section 615.
(2) An automobile dismantler's tow vehicle, as defined in
subdivision (c) of Section 615.
(f) A vehicle towed by a repossessor's tow vehicle, as defined in
subdivision (b) of Section 615, is exempt from the multisafety chain
requirement of paragraph (2) of subdivision (a) so long as the
vehicle is not towed more than one mile on a public highway and is
secured by one safety chain.
SEC. 309. Section 34515 of the Vehicle Code is amended to read:
34515. (a) As used in this division and in regulations adopted
pursuant to this division, "maintenance facility or terminal" means
any place or places where a vehicle of a type listed in Section 34500
is regularly garaged or maintained, or from which it is operated or
dispatched. "Maintenance facility or terminal" may include a private
business or residence.
(b) For the purpose of the inspections required by Section
34501.12, "terminal" means the location or locations in this state
that are designated by a motor carrier, where subject vehicles may be
inspected by the department pursuant to paragraph (4) of subdivision
(a) of Section 34501, and where vehicle maintenance and inspection
records and drivers' records will be made available for inspection.
SEC. 310. Section 40305.5 of the Vehicle Code is amended to read:
40305.5. (a) If a nonresident is arrested for violating this code
while driving a commercially registered motor vehicle, excluding
house cars, with an unladen weight of 7,000 pounds or more, and does
not furnish satisfactory evidence of identity and an address within
this state at which he or she can be located, the arresting officer
may, in lieu of the procedures set forth in Section 40305, accept a
guaranteed traffic arrest bail bond certificate, and the nonresident
shall be released from custody upon giving a written promise to
appear as provided in Article 2 (commencing with Section 40500). The
officer may require the arrested person, if he or she has no
satisfactory identification, to place a right thumbprint, or a left
thumbprint or fingerprint if the person has a missing or disfigured
right thumb, on the notice to appear as provided in Article 2
(commencing with Section 45000). Except for law enforcement purposes
relating to the identity of the arrestee, a person or entity shall
not sell, give away, allow the distribution of, include in a
database, or create a database with, this print.
(b) Every guaranteed traffic arrest bail bond certificate shall
contain all of the following information:
(1) The name and address of the surety and of the issuer, if other
than the surety.
(2) The name, address, driver's license number and signature of
the individual covered by the certificate.
(3) The maximum amount guaranteed.
(4) Exclusions from coverage.
(5) A statement that the issuing company guarantees the appearance
of a person to whom a guaranteed traffic arrest bail bond
certificate is issued and, in the event of the failure of the person
to appear in court at the time of trial, the issuing company shall
pay any fine or forfeiture imposed on the person, not to exceed the
amount stated on the certificate.
(6) The expiration date of the certificate.
(c) A guaranteed traffic arrest bail bond certificate may be
issued by a surety admitted in this state. The certificate may also
be issued by an association of motor carriers if all of the following
conditions are met:
(1) The association is incorporated, or authorized to do business,
in this state.
(2) The association is covered by a guaranteed traffic arrest bail
bond issued by a surety admitted in this state.
(3) The association agrees to pay fines or bail assessed against
the guaranteed traffic arrest bail bond certificate.
(4) The surety guarantees payment of fines or bail assessed
against the guaranteed traffic arrest bail bond certificates issued
by the association.
(d) The arresting officer shall file the guaranteed traffic arrest
bail bond certificate with the notice to appear required to be filed
by Section 40506.
(e) A "guaranteed traffic arrest bail bond certificate" is a
document that guarantees the payment of fines or bail assessed
against an individual for violation of this code, except driving
while under the influence of alcohol or drugs, driving without a
license or driving with a suspended or revoked license, operating a
motor vehicle without the permission of the owner, or any violation
punishable as a felony.
(f) A "guaranteed traffic arrest bail bond" is a bond issued by a
surety guaranteeing the obligations of the issuer of guaranteed
traffic arrest bail bond certificates. The bond shall be in the
amount of fifty thousand dollars ($50,000) and shall be filed with
the Secretary of State. Any court in this state may assess against
the surety the amount of covered fines or bail that the issuer of a
guaranteed traffic arrest bail bond certificate fails to pay.
(g) (1) A person contesting a charge by claiming under penalty of
perjury not to be the person issued the notice to appear may choose
to submit a right thumbprint, or a left thumbprint if the person has
a missing or disfigured right thumb, to the issuing court through his
or her local law enforcement agency for comparison with the one
placed on the notice to appear. A local law enforcement agency
providing this service may charge the requester no more than the
actual costs. The issuing court may refer the thumbprint submitted
and the notice to appear to the prosecuting attorney for comparison
of the thumbprints. If there is no thumbprint or fingerprint on the
notice to appear or the comparison of thumbprints is inconclusive,
the court shall refer the notice to appear or copy of the notice to
appear back to the issuing agency for further investigation, unless
the court finds that referral is not in the interest of justice.
(2) Upon initiation of the investigation or comparison process by
referral of the court, the court shall continue the case and the
speedy trial period shall be tolled for 45 days.
(3) Upon receipt of the issuing agency's or prosecuting attorney's
response, the court may make a finding of factual innocence pursuant
to Section 530.6 of the Penal Code if the court determines that
there is insufficient evidence that the person cited is the person
charged and shall immediately notify the Department of Motor Vehicles
of its determination. If the Department of Motor Vehicles determines
the citation or citations in question formed the basis of a
suspension or revocation of the person's driving privilege, the
department shall immediately set aside the action.
(4) If the prosecuting attorney or issuing agency fails to respond
to a court referral within 45 days, the court shall make a finding
of factual innocence pursuant to Section 530.6 of the Penal Code,
unless the court determines that a finding of factual innocence is
not in the interest of justice.
(5) The citation or notice to appear may be held by the
prosecuting attorney or issuing agency for future adjudication should
the arrestee who received the citation or notice to appear be found.
SEC. 311. Section 41501 of the Vehicle Code, as added by Chapter
599 of the Statutes of 2010, is amended to read:
41501. (a) After a deposit of bail and bail forfeiture, a plea of
guilty or no contest, or a conviction, the court may order a
continuance of a proceeding against a person, who receives a notice
to appear in court for a violation of a statute relating to the safe
operation of a vehicle, in consideration for successful completion of
a course of instruction at a licensed school for traffic violators
and pursuant to Section 1803.5 or 42005, the court may order that the
conviction be held confidential by the department in accordance with
Section 1808.7. The court shall notify a person that only one
conviction within 18 months will be held confidential.
(b) Subdivision (a) does not apply to a person who receives a
notice to appear as to, or is otherwise charged with, a violation of
an offense described in subdivisions (a) to (e), inclusive, of
Section 12810.
(c) This section shall become operative on July 1, 2011.
SEC. 312. Section 1126 of the Water Code is amended to read:
1126. (a) It is the intent of the Legislature that all issues
relating to state water law decided by the board be reviewed in state
courts, if a party seeks judicial review. It is further the intent
of the Legislature that the courts assert jurisdiction and exercise
discretion to fashion appropriate remedies pursuant to Section 389 of
the Code of Civil Procedure to facilitate the resolution of state
water rights issues in state courts.
(b) Any party aggrieved by any decision or order may, not later
than 30 days from the date of final action by the board, file a
petition for a writ of mandate for review of the decision or order.
Except in cases where the decision or order is issued under authority
delegated to an officer or employee of the board, reconsideration
before the board is not an administrative remedy that is required to
be exhausted before filing a petition for writ of mandate. The time
for filing the petition for writ of mandate and the time for filing
an action or proceeding in which the board is a respondent under
Section 21167 of the Public Resources Code shall be extended for any
person who seeks reconsideration by the board pursuant to this
article. The amendment of this subdivision made during the 2001
portion of the 2001-02 Regular Session does not constitute a change
in, but is declaratory of, existing law.
(c) Section 1094.5 of the Code of Civil Procedure shall govern
judicial proceedings under this section. For the purposes of
subdivision (c) of Section 1094.5 of the Code of Civil Procedure, the
court shall exercise its independent judgment on the evidence in any
case involving the judicial review of a cease and desist order
issued pursuant to Article 2 (commencing with Section 1831) of
Chapter 12 of Part 2 of Division 2, and in any other case in which
the court is authorized by law to exercise its independent judgment
on the evidence.
(d) If no aggrieved party petitions for a writ of mandate within
the time provided by this section, the decision or order of the board
is not subject to review by any court.
(e) In any court case reviewing a decision or order by the board
relating to a permit or license to appropriate water held by the
state through the department or any other state agency, or to a
permit or license to appropriate water held by the United States
through the Bureau of Reclamation or any other federal agency, the
election by the United States, or any agency thereof, not to be a
party shall not, in and of itself, be the basis for dismissal
pursuant to Section 389 of the Code of Civil Procedure or any other
provision of law.
SEC. 313. Section 12986 of the Water Code, as amended by Section 1
of Chapter 23 of the Statutes of 2010, is amended to read:
12986. (a) It is the intention of the Legislature to reimburse an
eligible local agency pursuant to this part for costs incurred in
any year for the maintenance or improvement of project or nonproject
levees as follows:
(1) No costs incurred shall be reimbursed if the entire cost
incurred per mile of project or nonproject levee is one thousand
dollars ($1,000) or less.
(2) Not more than 75 percent of any costs incurred in excess of
one thousand dollars ($1,000) per mile of project or nonproject levee
shall be reimbursed.
(3) (A) As part of the project plans approved by the board, the
department shall require the local agency or an independent financial
consultant to provide information regarding the agency's ability to
pay for the cost of levee maintenance or improvement. Based on that
information, the department may require the local agency or an
independent financial consultant to prepare a comprehensive study on
the agency's ability to pay.
(B) The information or comprehensive study of the agency's ability
to pay shall be the basis for determining the maximum allowable
reimbursement eligible under this part. Nothing in this paragraph
shall be interpreted to increase the maximum reimbursement allowed
under paragraph (2).
(4) Reimbursements made to the local agency in excess of the
maximum allowable reimbursement shall be returned to the department.
(5) The department may recover, retroactively, excess
reimbursements paid to the local agency from any time after January
1, 1997, based on an updated study of the agency's ability to pay.
(6) All final costs allocated or reimbursed under a plan shall be
approved by the reclamation board for project and nonproject levee
work.
(7) Costs incurred pursuant to this part that are eligible for
reimbursement include construction costs and associated engineering
services, financial or economic analyses, environmental costs,
mitigation costs, and habitat improvement costs.
(b) Upon completion of its evaluation pursuant to Sections 139.2
and 139.4, by January 1, 2008, the department shall recommend to the
Legislature and the Governor priorities for funding under this
section.
(c) Reimbursements made pursuant to this section shall reflect the
priorities of, and be consistent with, the Delta Plan established
pursuant to Chapter 1 (commencing with Section 85300) of Part 4 of
Division 35.
(d) This section shall become inoperative on July 1, 2013, and, as
of January 1, 2014, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2014, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 314. Section 13385 of the Water Code is amended to read:
13385. (a) A person who violates any of the following shall be
liable civilly in accordance with this section:
(1) Section 13375 or 13376.
(2) A waste discharge requirement or dredged or fill material
permit issued pursuant to this chapter or any water quality
certification issued pursuant to Section 13160.
(3) A requirement established pursuant to Section 13383.
(4) An order or prohibition issued pursuant to Section 13243 or
Article 1 (commencing with Section 13300) of Chapter 5, if the
activity subject to the order or prohibition is subject to regulation
under this chapter.
(5) A requirement of Section 301, 302, 306, 307, 308, 318, 401, or
405 of the federal Clean Water Act (33 U.S.C. Sec. 1311, 1312, 1316,
1317, 1318, 1341, or 1345), as amended.
(6) A requirement imposed in a pretreatment program approved
pursuant to waste discharge requirements issued under Section 13377
or approved pursuant to a permit issued by the administrator.
(b) (1) Civil liability may be imposed by the superior court in an
amount not to exceed the sum of both of the following:
(A) Twenty-five thousand dollars ($25,000) for each day in which
the violation occurs.
(B) Where there is a discharge, any portion of which is not
susceptible to cleanup or is not cleaned up, and the volume
discharged but not cleaned up exceeds 1,000 gallons, an additional
liability not to exceed twenty-five dollars ($25) multiplied by the
number of gallons by which the volume discharged but not cleaned up
exceeds 1,000 gallons.
(2) The Attorney General, upon request of a regional board or the
state board, shall petition the superior court to impose the
liability.
(c) Civil liability may be imposed administratively by the state
board or a regional board pursuant to Article 2.5 (commencing with
Section 13323) of Chapter 5 in an amount not to exceed the sum of
both of the following:
(1) Ten thousand dollars ($10,000) for each day in which the
violation occurs.
(2) Where there is a discharge, any portion of which is not
susceptible to cleanup or is not cleaned up, and the volume
discharged but not cleaned up exceeds 1,000 gallons, an additional
liability not to exceed ten dollars ($10) multiplied by the number of
gallons by which the volume discharged but not cleaned up exceeds
1,000 gallons.
(d) For purposes of subdivisions (b) and (c), "discharge" includes
any discharge to navigable waters of the United States, any
introduction of pollutants into a publicly owned treatment works, or
any use or disposal of sewage sludge.
(e) In determining the amount of any liability imposed under this
section, the regional board, the state board, or the superior court,
as the case may be, shall take into account the nature,
circumstances, extent, and gravity of the violation or violations,
whether the discharge is susceptible to cleanup or abatement, the
degree of toxicity of the discharge, and, with respect to the
violator, the ability to pay, the effect on its ability to continue
its business, any voluntary cleanup efforts undertaken, any prior
history of violations, the degree of culpability, economic benefit or
savings, if any, resulting from the violation, and other matters
that justice may require. At a minimum, liability shall be assessed
at a level that recovers the economic benefits, if any, derived from
the acts that constitute the violation.
(f) (1) Except as provided in paragraph (2), for the purposes of
this section, a single operational upset that leads to simultaneous
violations of more than one pollutant parameter shall be treated as a
single violation.
(2) (A) For the purposes of subdivisions (h) and (i), a single
operational upset in a wastewater treatment unit that treats
wastewater using a biological treatment process shall be treated as a
single violation, even if the operational upset results in
violations of more than one effluent limitation and the violations
continue for a period of more than one day, if all of the following
apply:
(i) The discharger demonstrates all of the following:
(I) The upset was not caused by wastewater treatment operator
error and was not due to discharger negligence.
(II) But for the operational upset of the biological treatment
process, the violations would not have occurred nor would they have
continued for more than one day.
(III) The discharger carried out all reasonable and immediately
feasible actions to reduce noncompliance with the applicable effluent
limitations.
(ii) The discharger is implementing an approved pretreatment
program, if so required by federal or state law.
(B) Subparagraph (A) only applies to violations that occur during
a period for which the regional board has determined that violations
are unavoidable, but in no case may that period exceed 30 days.
(g) Remedies under this section are in addition to, and do not
supersede or limit, any other remedies, civil or criminal, except
that no liability shall be recoverable under Section 13261, 13265,
13268, or 13350 for violations for which liability is recovered under
this section.
(h) (1) Notwithstanding any other provision of this division, and
except as provided in subdivisions (j), (k), and ( l ), a
mandatory minimum penalty of three thousand dollars ($3,000) shall be
assessed for each serious violation.
(2) For the purposes of this section, a "serious violation" means
any waste discharge that violates the effluent limitations contained
in the applicable waste discharge requirements for a Group II
pollutant, as specified in Appendix A to Section 123.45 of Title 40
of the Code of Federal Regulations, by 20 percent or more or for a
Group I pollutant, as specified in Appendix A to Section 123.45 of
Title 40 of the Code of Federal Regulations, by 40 percent or more.
(i) (1) Notwithstanding any other provision of this division, and
except as provided in subdivisions (j), (k), and ( l ), a
mandatory minimum penalty of three thousand dollars ($3,000) shall be
assessed for each violation whenever the person does any of the
following four or more times in any period of six consecutive months,
except that the requirement to assess the mandatory minimum penalty
shall not be applicable to the first three violations:
(A) Violates a waste discharge requirement effluent limitation.
(B) Fails to file a report pursuant to Section 13260.
(C) Files an incomplete report pursuant to Section 13260.
(D) Violates a toxicity effluent limitation contained in the
applicable waste discharge requirements where the waste discharge
requirements do not contain pollutant-specific effluent limitations
for toxic pollutants.
(2) For the purposes of this section, a "period of six consecutive
months" means the period commencing on the date that one of the
violations described in this subdivision occurs and ending 180 days
after that date.
(j) Subdivisions (h) and (i) do not apply to any of the following:
(1) A violation caused by one or any combination of the following:
(A) An act of war.
(B) An unanticipated, grave natural disaster or other natural
phenomenon of an exceptional, inevitable, and irresistible character,
the effects of which could not have been prevented or avoided by the
exercise of due care or foresight.
(C) An intentional act of a third party, the effects of which
could not have been prevented or avoided by the exercise of due care
or foresight.
(D) (i) The operation of a new or reconstructed wastewater
treatment unit during a defined period of adjusting or testing, not
to exceed 90 days for a wastewater treatment unit that relies on a
biological treatment process and not to exceed 30 days for any other
wastewater treatment unit, if all of the following requirements are
met:
(I) The discharger has submitted to the regional board, at least
30 days in advance of the operation, an operations plan that
describes the actions the discharger will take during the period of
adjusting and testing, including steps to prevent violations and
identifies the shortest reasonable time required for the period of
adjusting and testing, not to exceed 90 days for a wastewater
treatment unit that relies on a biological treatment process and not
to exceed 30 days for any other wastewater treatment unit.
(II) The regional board has not objected in writing to the
operations plan.
(III) The discharger demonstrates that the violations resulted
from the operation of the new or reconstructed wastewater treatment
unit and that the violations could not have reasonably been avoided.
(IV) The discharger demonstrates compliance with the operations
plan.
(V) In the case of a reconstructed wastewater treatment unit, the
unit relies on a biological treatment process that is required to be
out of operation for at least 14 days in order to perform the
reconstruction, or the unit is required to be out of operation for at
least 14 days and, at the time of the reconstruction, the cost of
reconstructing the unit exceeds 50 percent of the cost of replacing
the wastewater treatment unit.
(ii) For the purposes of this section, "wastewater treatment unit"
means a component of a wastewater treatment plant that performs a
designated treatment function.
(2) (A) Except as provided in subparagraph (B), a violation of an
effluent limitation where the waste discharge is in compliance with
either a cease and desist order issued pursuant to Section 13301 or a
time schedule order issued pursuant to Section 13300, if all of the
following requirements are met:
(i) The cease and desist order or time schedule order is issued
after January 1, 1995, but not later than July 1, 2000, specifies the
actions that the discharger is required to take in order to correct
the violations that would otherwise be subject to subdivisions (h)
and (i), and the date by which compliance is required to be achieved
and, if the final date by which compliance is required to be achieved
is later than one year from the effective date of the cease and
desist order or time schedule order, specifies the interim
requirements by which progress towards compliance will be measured
and the date by which the discharger will be in compliance with each
interim requirement.
(ii) The discharger has prepared and is implementing in a timely
and proper manner, or is required by the regional board to prepare
and implement, a pollution prevention plan that meets the
requirements of Section 13263.3.
(iii) The discharger demonstrates that it has carried out all
reasonable and immediately feasible actions to reduce noncompliance
with the waste discharge requirements applicable to the waste
discharge and the executive officer of the regional board concurs
with the demonstration.
(B) Subdivisions (h) and (i) shall become applicable to a waste
discharge on the date the waste discharge requirements applicable to
the waste discharge are revised and reissued pursuant to Section
13380, unless the regional board does all of the following on or
before that date:
(i) Modifies the requirements of the cease and desist order or
time schedule order as may be necessary to make it fully consistent
with the reissued waste discharge requirements.
(ii) Establishes in the modified cease and desist order or time
schedule order a date by which full compliance with the reissued
waste discharge requirements shall be achieved. For the purposes of
this subdivision, the regional board may not establish this date
later than five years from the date the waste discharge requirements
were required to be reviewed pursuant to Section 13380. If the
reissued waste discharge requirements do not add new effluent
limitations or do not include effluent limitations that are more
stringent than those in the original waste discharge requirements,
the date shall be the same as the final date for compliance in the
original cease and desist order or time schedule order or five years
from the date that the waste discharge requirements were required to
be reviewed pursuant to Section 13380, whichever is earlier.
(iii) Determines that the pollution prevention plan required by
clause (ii) of subparagraph (A) is in compliance with the
requirements of Section 13263.3 and that the discharger is
implementing the pollution prevention plan in a timely and proper
manner.
(3) A violation of an effluent limitation where the waste
discharge is in compliance with either a cease and desist order
issued pursuant to Section 13301 or a time schedule order issued
pursuant to Section 13300 or 13308, if all of the following
requirements are met:
(A) The cease and desist order or time schedule order is issued on
or after July 1, 2000, and specifies the actions that the discharger
is required to take in order to correct the violations that would
otherwise be subject to subdivisions (h) and (i).
(B) The regional board finds that, for one of the following
reasons, the discharger is not able to consistently comply with one
or more of the effluent limitations established in the waste
discharge requirements applicable to the waste discharge:
(i) The effluent limitation is a new, more stringent, or modified
regulatory requirement that has become applicable to the waste
discharge after the effective date of the waste discharge
requirements and after July 1, 2000, new or modified control measures
are necessary in order to comply with the effluent limitation, and
the new or modified control measures cannot be designed, installed,
and put into operation within 30 calendar days.
(ii) New methods for detecting or measuring a pollutant in the
waste discharge demonstrate that new or modified control measures are
necessary in order to comply with the effluent limitation and the
new or modified control measures cannot be designed, installed, and
put into operation within 30 calendar days.
(iii) Unanticipated changes in the quality of the municipal or
industrial water supply available to the discharger are the cause of
unavoidable changes in the composition of the waste discharge, the
changes in the composition of the waste discharge are the cause of
the inability to comply with the effluent limitation, no alternative
water supply is reasonably available to the discharger, and new or
modified measures to control the composition of the waste discharge
cannot be designed, installed, and put into operation within 30
calendar days.
(iv) The discharger is a publicly owned treatment works located in
Orange County that is unable to meet effluent limitations for
biological oxygen demand, suspended solids, or both, because the
publicly owned treatment works meets all of the following criteria:
(I) Was previously operating under modified secondary treatment
requirements pursuant to Section 301(h) of the Clean Water Act (33
U.S.C. Sec. 1311(h)).
(II) Did vote on July 17, 2002, not to apply for a renewal of the
modified secondary treatment requirements.
(III) Is in the process of upgrading its treatment facilities to
meet the secondary treatment standards required by Section 301(b)(1)
(B) of the Clean Water Act (33 U.S.C. Sec. 1311(b)(1)(B)).
(C) (i) The regional board establishes a time schedule for
bringing the waste discharge into compliance with the effluent
limitation that is as short as possible, taking into account the
technological, operational, and economic factors that affect the
design, development, and implementation of the control measures that
are necessary to comply with the effluent limitation. Except as
provided in clause (ii), for the purposes of this subdivision, the
time schedule shall not exceed five years in length.
(ii) (I) For purposes of the upgrade described in subclause (III)
of clause (iv) of subparagraph (B), the time schedule shall not
exceed 10 years in length.
(II) Following a public hearing, and upon a showing that the
discharger is making diligent progress toward bringing the waste
discharge into compliance with the effluent limitation, the regional
board may extend the time schedule for an additional period not
exceeding five years in length, if the discharger demonstrates that
the additional time is necessary to comply with the effluent
limitation. This subclause does not apply to a time schedule
described in subclause (I).
(iii) If the time schedule exceeds one year from the effective
date of the order, the schedule shall include interim requirements
and the dates for their achievement. The interim requirements shall
include both of the following:
(I) Effluent limitations for the pollutant or pollutants of
concern.
(II) Actions and milestones leading to compliance with the
effluent limitation.
(D) The discharger has prepared and is implementing in a timely
and proper manner, or is required by the regional board to prepare
and implement, a pollution prevention plan pursuant to Section
13263.3.
(k) (1) In lieu of assessing all or a portion of the mandatory
minimum penalties pursuant to subdivisions (h) and (i) against a
publicly owned treatment works serving a small community, the state
board or the regional board may elect to require the publicly owned
treatment works to spend an equivalent amount towards the completion
of a compliance project proposed by the publicly owned treatment
works, if the state board or the regional board finds all of the
following:
(A) The compliance project is designed to correct the violations
within five years.
(B) The compliance project is in accordance with the enforcement
policy of the state board, excluding any provision in the policy that
is inconsistent with this section.
(C) The publicly owned treatment works has prepared a financing
plan to complete the compliance project.
(2) For the purposes of this subdivision, "a publicly owned
treatment works serving a small community" means a publicly owned
treatment works serving a population of 10,000 persons or fewer or a
rural county, with a financial hardship as determined by the state
board after considering such factors as median income of the
residents, rate of unemployment, or low population density in the
service area of the publicly owned treatment works.
(l) (1) In lieu of assessing penalties pursuant to subdivision (h)
or (i), the state board or the regional board, with the concurrence
of the discharger, may direct a portion of the penalty amount to be
expended on a supplemental environmental project in accordance with
the enforcement policy of the state board. If the penalty amount
exceeds fifteen thousand dollars ($15,000), the portion of the
penalty amount that may be directed to be expended on a supplemental
environmental project may not exceed fifteen thousand dollars
($15,000) plus 50 percent of the penalty amount that exceeds fifteen
thousand dollars ($15,000).
(2) For the purposes of this section, a "supplemental
environmental project" means an environmentally beneficial project
that a person agrees to undertake, with the approval of the regional
board, that would not be undertaken in the absence of an enforcement
action under this section.
(3) This subdivision applies to the imposition of penalties
pursuant to subdivision (h) or (i) on or after January 1, 2003,
without regard to the date on which the violation occurs.
(m) The Attorney General, upon request of a regional board or the
state board, shall petition the appropriate court to collect any
liability or penalty imposed pursuant to this section. Any person who
fails to pay on a timely basis any liability or penalty imposed
under this section shall be required to pay, in addition to that
liability or penalty, interest, attorney's fees, costs for collection
proceedings, and a quarterly nonpayment penalty for each quarter
during which the failure to pay persists. The nonpayment penalty
shall be in an amount equal to 20 percent of the aggregate amount of
the person's penalty and nonpayment penalties that are unpaid as of
the beginning of the quarter.
(n) (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, moneys
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 federal Clean Water Act (33 U.S.C. Sec. 1341)
in accordance with paragraph (5) of subdivision (a) shall be
deposited in the Waste 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.
(o) The state board shall continuously report and update
information on its Internet Web site, but at a minimum, annually on
or before January 1, regarding its enforcement activities. The
information shall include all of the following:
(1) A compilation of the number of violations of waste discharge
requirements in the previous calendar year, including stormwater
enforcement violations.
(2) A record of the formal and informal compliance and enforcement
actions taken for each violation, including stormwater enforcement
actions.
(3) An analysis of the effectiveness of current enforcement
policies, including mandatory minimum penalties.
(p) The amendments made to subdivisions (f), (h), (i), and (j)
during the second year of the 2001-02 Regular Session apply only to
violations that occur on or after January 1, 2003.
SEC. 315. Section 85031 of the Water Code is amended to read:
85031. (a) This division does not diminish, impair, or otherwise
affect in any manner whatsoever any area of origin, watershed of
origin, county of origin, or any other water rights protections,
including, but not limited to, rights to water appropriated prior to
December 19, 1914, provided under the law. This division does not
limit or otherwise affect the application of Article 1.7 (commencing
with Section 1215) of Chapter 1 of Part 2 of Division 2, Sections
10505, 10505.5, 11128, 11460, 11461, 11462, and 11463, and Sections
12200 to 12220, inclusive.
(b) For the purposes of this division, an area that utilizes water
that has been diverted and conveyed from the Sacramento River
hydrologic region, for use outside the Sacramento River hydrologic
region or the Delta, shall not be deemed to be immediately adjacent
thereto or capable of being conveniently supplied with water
therefrom by virtue or on account of the diversion and conveyance of
that water through facilities that may be constructed for that
purpose after January 1, 2010.
(c) Nothing in this division supersedes, limits, or otherwise
modifies the applicability of Chapter 10 (commencing with Section
1700) of Part 2 of Division 2, including petitions related to any new
conveyance constructed or operated in accordance with Chapter 2
(commencing with Section 85320) of Part 4.
(d) Unless otherwise expressly provided, nothing in this division
supersedes, reduces, or otherwise affects existing legal protections,
both procedural and substantive, relating to the state board's
regulation of diversion and use of water, including, but not limited
to, water right priorities, the protection provided to municipal
interests by Sections 106 and 106.5, and changes in water rights.
Nothing in this division expands or otherwise alters the board's
existing authority to regulate the diversion and use of water or the
courts' existing concurrent jurisdiction over California water
rights.
SEC. 316. Section 85034 of the Water Code is amended to read:
85034. (a) (1) The council shall administer all contracts,
grants, easements, and agreements made or entered into by the
California Bay-Delta Authority under Division 26.4 (commencing with
Section 79400), as that division read on December 31, 2009.
(2) The exercise of the authority described in paragraph (1) is
not subject to review or approval by the Department of General
Services.
(3) A contract, lease, license, or any other agreement to which
the California Bay-Delta Authority is a party is not void or voidable
as a result of the implementation of this subdivision, but shall
continue in full force and effect until the end of its term.
(b) The council shall be the successor to and shall assume from
the California Bay-Delta Authority all of the administrative rights,
abilities, obligations, and duties of that authority.
(c) The council shall have possession and control of all records,
papers, equipment, supplies, contracts, leases, agreements, and other
property, real or personal, connected with the administration of
Division 26.4 (commencing with Section 79400), as that division read
on December 31, 2009, or held for the benefit or use of the
California Bay-Delta Authority.
(d) The council shall assume from the California Bay-Delta
Authority all responsibility to manage, in accordance with Chapter 5
(commencing with Section 85280) of Part 3, the science program
element that was required to be undertaken by Division 26.4
(commencing with Section 79400), as that division read on December
31, 2009.
(e) Consistent with the responsibilities and duties assumed by the
council pursuant to this section, all staff, resources, and funding
within the Natural Resources Agency and the Department of Forestry
and Fire Protection for the support of the CALFED Bay-Delta Program
are hereby transferred to, and may be expended for the purposes of,
the council. The executive officer of the council shall confer with
the Director of Fish and Game, the director of the department, and
the executive director of the board regarding possible reallocation
of the staff and resources. The status, position, and rights of any
officer or employee shall not be affected by this transfer and all
officers and employees shall be retained pursuant to the State Civil
Service Act (Part 2 (commencing with Section 18500) of Division 5 of
Title 2 of the Government Code).
SEC. 317. Section 85230 of the Water Code is amended to read:
85230. (a) The board, in consultation with the council, shall
appoint, for a term of four years, a special master for the Delta,
whose title shall be "the Delta Watermaster."
(b) The board shall adopt internal procedures delegating authority
to the Delta Watermaster. The Delta Watermaster shall exercise the
board's authority to provide timely monitoring and enforcement of
board orders and license and permit terms and conditions. The Delta
Watermaster's delegated authority shall include authority
to require monitoring and
reporting, authority for approvals delegated to an officer or
employee of the board by the terms of a water right permit or
license, authority to approve temporary urgency changes pursuant to
Chapter 6.6 (commencing with Section 1435) of Part 2 of Division 2,
and authority to issue a notice of a proposed cease and desist order
or administrative civil liability complaint. The Delta Watermaster's
authority shall be limited to diversions in the Delta, and for the
monitoring and enforcement of the board's orders and license and
permit terms and conditions that apply to conditions in the Delta.
(c) The internal procedures adopted by the board shall provide for
due process in adjudicative proceedings, and may establish
procedures for the issuance of a stay of any order or decision of the
Delta Watermaster for which a petition for reconsideration is filed
or reconsideration is ordered under Section 1122. The board may
provide any additional duties or needs of the Delta Watermaster that
the board deems necessary for effective day-to-day enforcement of its
decisions.
(d) The Delta Watermaster shall submit regular reports to the
board and the council including, but not limited to, reports on water
rights administration, water quality issues, and conveyance
operations.
SEC. 318. Section 366.24 of the Welfare and Institutions Code is
amended to read:
366.24. (a) For purposes of this section, "tribal customary
adoption" means adoption by and through the tribal custom,
traditions, or law of an Indian child's tribe. Termination of
parental rights is not required to effect the tribal customary
adoption.
(b) Whenever an assessment is ordered pursuant to Section 361.5,
366.21, 366.22, 366.25, or 366.26 for Indian children, the assessment
shall address the option of tribal customary adoption.
(c) For purposes of Section 366.26, in the case of tribal
customary adoptions, all of the following apply:
(1) The child's tribe or the tribe's designee shall conduct a
tribal customary adoptive home study prior to final approval of the
tribal customary adoptive placement.
(A) If a tribal designee is conducting the home study, the
designee shall do so in consultation with the Indian child's tribe.
The designee may include a licensed county adoption agency, the State
Department of Social Services when it is acting as an adoption
agency in counties not served by a county adoption agency, or a
California-licensed adoption agency. Any tribal designee must be an
entity that is authorized to request a search of the Child Abuse
Central Index and, if necessary, a check of any other state's child
abuse and neglect registry, and must be an entity that is authorized
to request a search for state and federal level criminal offender
records information through the Department of Justice.
(B) The standard for the evaluation of the prospective adoptive
parents' home shall be the prevailing social and cultural standard of
the child's tribe. The home study shall include an evaluation of the
background, safety, and health information of the adoptive home,
including the biological, psychological, and social factors of the
prospective adoptive parent or parents, and an assessment of the
commitment, capability, and suitability of the prospective adoptive
parent or parents to meet the child's needs.
(2) In all cases, an in-state check of the Child Abuse Central
Index and, if necessary, a check of any other state's child abuse and
neglect registry shall be conducted. If the tribe chooses a designee
to conduct the home study, the designee shall perform a check of the
Child Abuse Central Index pursuant to Section 1522.1 of the Health
and Safety Code as it applies to prospective adoptive parents and
persons over 18 years of age residing in their household. If the
tribe conducts its own home study, the agency that has the placement
and care responsibility of the child shall perform the check.
(3) (A) In all cases prior to final approval of the tribal
customary adoptive placement, a state and federal criminal background
check through the Department of Justice shall be conducted on the
prospective tribal customary adoptive parents and on persons over 18
years of age residing in their household.
(B) If the tribe chooses a designee to conduct the home study, the
designee shall perform the state and federal criminal background
check required pursuant to subparagraph (A) through the Department of
Justice prior to final approval of the adoptive placement.
(C) If the tribe conducts its own home study, the public adoption
agency that is otherwise authorized to obtain criminal background
information for the purpose of adoption shall perform the state and
federal criminal background check required pursuant to subparagraph
(A) through the Department of Justice prior to final approval of the
adoptive placement.
(D) An individual who is the subject of a background check
conducted pursuant to this paragraph may be provided by the entity
performing the background check with a copy of his or her state or
federal level criminal offender record information search response as
provided to that entity by the Department of Justice if the entity
has denied a criminal background clearance based on this information
and the individual makes a written request to the entity for a copy
specifying an address to which it is to be sent. The state or federal
level criminal offender record information search response shall not
be modified or altered from its form or content as provided by the
Department of Justice and shall be provided to the address specified
by the individual in his or her written request. The entity shall
retain a copy of the individual's written request and the response
and date provided.
(4) If federal or state law provides that tribes may conduct all
required background checks for prospective adoptive parents, the
tribally administered background checks shall satisfy the
requirements of this section, so long as the standards for the
background checks are the same as those applied to all other
prospective adoptive parents in the State of California.
(5) Under no circumstances shall final approval be granted for an
adoptive placement in any home if the prospective adoptive parent or
any adult living in the prospective tribal customary adoptive home
has any of the following:
(A) A felony conviction for child abuse or neglect, spousal abuse,
crimes against a child, including child pornography, or a crime
involving violence, including rape, sexual assault, or homicide, but
not including other physical assault and battery. For purposes of
this subdivision, crimes involving violence means those violent
crimes contained in clause (i) of subparagraph (A) and subparagraph
(B), or paragraph (1) of, subdivision (g) of Section 1522 of the
Health and Safety Code.
(B) A felony conviction that occurred within the last five years
for physical assault, battery, or a drug-related offense.
(6) If the tribe identifies tribal customary adoption as the
permanent placement plan for the Indian child, the court may continue
the selection and implementation hearing governed by Section 366.26
for a period not to exceed 120 days to permit the tribe to complete
the process for tribal customary adoption and file with the court a
tribal customary adoption order evidencing that a tribal customary
adoption has been completed. The tribe shall file with the court the
tribal customary adoption order no less than 20 days prior to the
date set by the court for the continued selection and implementation
hearing. The department shall file with the court the addendum
selection and implementation hearing court report no less than seven
days prior to the date set by the court for the continued selection
and implementation hearing. The court shall have discretion to grant
an additional continuance to the tribe for filing a tribal customary
adoption order up to, but not exceeding, 60 days. If the child's
tribe does not file the tribal customary adoption order within the
designated time period, the court shall make new findings and orders
pursuant to subdivision (b) of Section 366.26 and this subdivision to
determine the best permanent plan for the child.
(7) The child, birth parents, or Indian custodian and the tribal
customary adoptive parents and their counsel, if applicable, may
present evidence to the tribe regarding the tribal customary adoption
and the child's best interest.
(8) Upon the court affording full faith and credit to the tribal
customary adoption order and the tribe's approval of the home study,
the child shall be eligible for tribal customary adoptive placement.
The agency that has placement and care responsibility of the child
shall be authorized to make a tribal customary adoptive placement and
sign a tribal customary adoptive placement agreement and,
thereafter, shall sign the adoption assistance agreement pursuant to
subdivision (g) of Section 16120. The prospective adoptive parent or
parents desiring to adopt the child may then file the petition for
adoption. The agency shall supervise the adoptive placement for a
period of six months unless either of the following circumstances
exists:
(A) The child to be adopted is a foster child of the prospective
adoptive parents whose foster care placement has been supervised by
an agency before the signing of the adoptive placement agreement in
which case the supervisory period may be shortened by one month for
each full month that the child has been in foster care with the
family.
(B) The child to be adopted is placed with a relative with whom he
or she has an established relationship.
(9) All licensed public adoption agencies shall cooperate with and
assist the department in devising a plan that will effectuate the
effective and discreet transmission to tribal customary adoptees or
prospective tribal customary adoptive parents of pertinent medical
information reported to the department or the licensed public
adoption agency, upon the request of the person reporting the medical
information.
(A) A licensed public adoption agency may not place a child for
tribal customary adoption unless a written report on the child's
medical background and, if available, the medical background on the
child's biological parents, so far as ascertainable, has been
submitted to the prospective tribal customary adoptive parents and
they have acknowledged in writing the receipt of the report.
(B) The report on the child's background shall contain all known
diagnostic information, including current medical reports on the
child, psychological evaluations, and scholastic information, as well
as all known information regarding the child's developmental
history.
(10) The tribal customary adoption order shall include, but not be
limited to, a description of (A) the modification of the legal
relationship of the birth parents or Indian custodian and the child,
including contact, if any, between the child and the birth parents or
Indian custodian, responsibilities of the birth parents or Indian
custodian, and the rights of inheritance of the child and (B) the
child's legal relationship with the tribe. The order shall not
include any child support obligation from the birth parents or Indian
custodian. There shall be a conclusive presumption that any parental
rights or obligations not specified in the tribal customary adoption
order shall vest in the tribal customary adoptive parents.
(11) Prior consent to a permanent plan of tribal customary
adoption of an Indian child shall not be required of an Indian parent
or Indian custodian whose parental relationship to the child will be
modified by the tribal customary adoption.
(12) After the prospective adoptive parent or parents desiring to
adopt the child have filed the adoption petition, the agency that has
placement, care, and responsibility for the child shall submit to
the court, a full and final report of the facts of the proposed
tribal customary adoption. The requisite elements of the final court
report shall be those specified for court reports in the department's
regulations governing agency adoptions.
(13) Notwithstanding any other provision of law, after the tribal
customary adoption order has been issued and afforded full faith and
credit by the state court, supervision of the adoptive placement has
been completed, and the state court has issued a final decree of
adoption, the tribal customary adoptive parents shall have all of the
rights and privileges afforded to, and are subject to all the duties
of, any other adoptive parent or parents pursuant to the laws of
this state.
(14) Consistent with Section 366.3, after the tribal customary
adoption has been afforded full faith and credit and a final adoption
decree has been issued, the court shall terminate its jurisdiction
over the Indian child.
(15) Nothing in this section is intended to prevent the transfer
of those proceedings to a tribal court where transfer is otherwise
permitted under applicable law.
(d) The following disclosure provisions shall apply to tribal
customary adoptions:
(1) The petition, agreement, order, report to the court from any
investigating agency, and any power of attorney filed in a tribal
customary adoption proceeding is not open to inspection by any person
other than the parties to the proceeding and their attorneys and the
department, except upon the written authority of the judge of the
juvenile court. A judge may not authorize anyone to inspect the
petition, agreement, order, report to the court from any
investigating agency, and any power of attorney except in exceptional
circumstances and for good cause approaching the necessitous.
(2) Except as otherwise permitted or required by statute, neither
the department nor any licensed adoption agency shall release
information that would identify persons who receive, or have
received, tribal customary adoption services. However, employees of
the department and licensed adoption agencies shall release to the
State Department of Social Services any requested information,
including identifying information, for the purpose of recordkeeping
and monitoring, evaluation, and regulation of the provision of tribal
customary adoption services.
(3) The department and any licensed adoption agency may, upon
written authorization for the release of specified information by the
subject of that information, share information regarding a
prospective tribal customary adoptive parent or birth parent with
other social service agencies, including the department and other
licensed adoption agencies, or providers of health care as defined in
Section 56.05 of the Civil Code.
(4) Notwithstanding any other law, the department and any other
licensed adoption agency may furnish information relating to a tribal
customary adoption petition or to a child in the custody of the
department or any licensed public adoption agency to the juvenile
court, county welfare department, public welfare agency, private
welfare agency licensed by the department, provider of foster care
services, potential adoptive parents, or provider of health care as
defined in Section 56.05 of the Civil Code, if it is believed the
child's welfare will be promoted thereby.
(5) The department and any licensed adoption agency may make
tribal customary adoption case records, including identifying
information, available for research purposes, provided that the
research will not result in the disclosure of the identity of the
child or the parties to the tribal customary adoption to anyone other
than the entity conducting the research.
(e) This section shall remain operative only to the extent that
compliance with its provisions does not conflict with federal law as
a condition of receiving funding under Title IV-E or the federal
Social Security Act (42 U.S.C. Sec. 670 et seq.).
(f) The Judicial Council shall adopt rules of court and necessary
forms required to implement tribal customary adoption as a permanent
plan for dependent Indian children. The Judicial Council shall study
California's tribal customary adoption provisions and their effects
on children, birth parents, adoptive parents, Indian custodians,
tribes, and the court, and shall report all of its findings to the
Legislature on or before January 1, 2013. The report shall include,
but not be limited to, the following:
(1) The number of families served and the number of completed
tribal customary adoptions.
(2) The length of time it takes to complete a tribal customary
adoption.
(3) The challenges faced by social workers, court, and tribes in
completing tribal customary adoptions.
(4) The benefits or detriments to Indian children from a tribal
customary adoption.
(g) This section shall remain in effect only until January 1,
2014, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2014, deletes or extends
that date.
SEC. 319. Section 4360 of the Welfare and Institutions Code is
amended to read:
4360. (a) The department shall provide mental health treatment
and supervision in the community for judicially committed persons.
The program established and administered by the department under this
chapter to provide these services shall be known as the Forensic
Conditional Release Program and may be used by the department in
accordance with this section to provide services in the community to
other patient populations for which the department has direct
responsibility.
(b) The department may provide directly, or through contract with
private providers or counties, for these services, including
administrative and ancillary services related to the provision of
direct services. These contracts shall be exempt from the
requirements contained in the Public Contract Code and the State
Administrative Manual, and from approval by the Department of General
Services. Subject to approval by the department, a county or private
provider under contract to the department to provide these services
may subcontract with private providers for those services.
(c) Notwithstanding Section 5328, programs providing services
pursuant to this section may inform a local law enforcement agency of
the names and addresses of program participants who reside within
that agency's jurisdiction. Providing notice under this subdivision
does not relieve a person or entity of any statutory duty.
SEC. 320. Section 4695.2 of the Welfare and Institutions Code is
amended to read:
4695.2. (a) Each direct care staff person employed in a licensed
community care facility that receives regional center funding shall
be required to satisfactorily complete two 35-hour competency-based
training courses approved, after consultation with the Community Care
Facility Direct Care Training Work Group, by the department or pass
a department-approved competency test for each of the 35-hour
training segments. Each direct care staff person to whom this
subdivision applies shall demonstrate satisfactory completion of the
competency-based training by passing a competency test applicable to
that training segment.
(b) Each direct care staff person employed prior to January 1,
2001, in a licensed community care facility that receives regional
center funding shall satisfactorily complete the first required
competency-based training course or pass a department-approved
competency test applicable to that training segment by January 1,
2002, and satisfactorily complete the second competency-based
training course or pass a department-approved competency test
applicable to that training segment by January 1, 2003.
(c) Each direct care staff person whose employment in a licensed
community care facility that receives regional center funding
commences on or after January 1, 2001, shall satisfactorily complete
the first required competency-based training course or pass a
department-approved competency test applicable to that training
segment within one year from the date the staff person was hired, and
satisfactorily complete the second competency-based training course
or pass a department-approved competency test applicable to that
training segment within two years from the date the person was hired.
(d) A direct care staff person who does not comply with this
section may not continue to provide direct care to consumers in a
licensed community care facility that receives regional center
funding, unless otherwise approved by the department pursuant to
conditions for a waiver specified in regulations adopted pursuant to
subdivision (e).
(e) The department shall adopt emergency regulations in order to
implement this section. These regulations may include, but are not
limited to, all of the following:
(1) Requirements for satisfactory completion of the 70 hours of
direct care staff training.
(2) Provisions for enforcement of training requirements.
(3) Continuing education requirements beyond the initial 70 hours
of required training.
(4) Provisions for waiving staff training and competency testing
requirements, provided that waivers shall not adversely impact the
health and safety of consumers living in licensed community care
facilities that receive regional center funding.
(f) The emergency regulations adopted by the department pursuant
to subdivision (e) shall be in accordance with the Administrative
Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code). The initial
adoption of emergency regulations and one readoption of the initial
regulations shall be deemed to be an emergency and necessary for the
immediate preservation of the public peace, health and safety, or
general welfare. Initial emergency regulations and the first
readoption of those regulations shall be exempt from review by the
Office of Administrative Law. The emergency regulations authorized by
this section shall be submitted to the Office of Administrative Law
for filing with the Secretary of State and publication in the
California Code of Regulations and shall remain in effect for no more
than 180 days.
SEC. 321. Section 5778 of the Welfare and Institutions Code is
amended to read:
5778. (a) This section shall be limited to specialty mental
health services reimbursed through a fee-for-service payment system.
(b) The following provisions shall apply to matters related to
specialty mental health services provided under the Medi-Cal
specialty mental health services waiver, including, but not limited
to, reimbursement and claiming procedures, reviews and oversight, and
appeal processes for mental health plans (MHPs) and MHP
subcontractors.
(1) During the initial phases of the implementation of this part,
as determined by the department, the MHP contractor and
subcontractors shall submit claims under the Medi-Cal program for
eligible services on a fee-for-service basis.
(2) A qualifying county may elect, with the approval of the
department, to operate under the requirements of a capitated,
integrated service system field test pursuant to Section 5719.5
rather than this part, in the event the requirements of the two
programs conflict. A county that elects to operate under that section
shall comply with all other provisions of this part that do not
conflict with that section.
(3) (A) No sooner than October 1, 1994, state matching funds for
Medi-Cal fee-for-service acute psychiatric inpatient services, and
associated administrative days, shall be transferred to the
department. No later than July 1, 1997, upon agreement between the
department and the State Department of Health Care Services, state
matching funds for the remaining Medi-Cal fee-for-service mental
health services and the state matching funds associated with field
test counties under Section 5719.5 shall be transferred to the
department.
(B) The department, in consultation with the State Department of
Health Care Services, a statewide organization representing counties,
and a statewide organization representing health maintenance
organizations shall develop a timeline for the transfer of funding
and responsibility for fee-for-service mental health services from
Medi-Cal managed care plans to MHPs. In developing the timeline, the
department shall develop screening, referral, and coordination
guidelines to be used by Medi-Cal managed care plans and MHPs.
(4) (A) (i) An MHP subcontractor providing specialty mental health
services shall be financially responsible for federal audit
exceptions or disallowances to the extent that these exceptions or
disallowances are based on the MHP subcontractor's conduct or
determinations.
(ii) The state shall be financially responsible for federal audit
exceptions or disallowances to the extent that these exceptions or
disallowances are based on the state's conduct or determinations. The
state shall not withhold payment from an MHP for exceptions or
disallowances that the state is financially responsible for pursuant
to this clause.
(iii) An MHP shall be financially responsible for state audit
exceptions or disallowances to the extent that these exceptions or
disallowances are based on the MHP's conduct or determinations. An
MHP shall not withhold payment from an MHP subcontractor for
exceptions or disallowances for which the MHP is financially
responsible pursuant to this clause.
(B) For purposes of subparagraph (A), a "determination" shall be
shown by a written document expressly stating the determination,
while "conduct" shall be shown by any credible, legally admissible
evidence.
(C) The department and the State Department of Health Care
Services shall work jointly with MHPs in initiating any necessary
appeals. The department may invoice or offset the amount of any
federal disallowance or audit exception against subsequent claims
from the MHP or MHP subcontractor. This offset may be done at any
time, after the audit exception or disallowance has been withheld
from the federal financial participation claim made by the State
Department of Health Care Services. The maximum amount that may be
withheld shall be 25 percent of each payment to the plan or
subcontractor.
(5) (A) Oversight by the department of the MHPs and MHP
subcontractors may include client record reviews of Early Periodic
Screening Diagnosis and Treatment (EPSDT) specialty mental health
services under the Medi-Cal specialty mental health services waiver
in addition to other audits or reviews that are conducted.
(B) The department may contract with an independent,
nongovernmental entity to conduct client record reviews. The contract
awarded in connection with this section shall be on a competitive
bid basis, pursuant to the Department of General Services contracting
requirements, and shall meet both of the following
additional requirements:
(i) Require the entity awarded the contract to comply with all
federal and state privacy laws, including, but not limited to, the
federal Health Insurance Portability and Accountability Act (HIPAA;
42 U.S.C. Sec. 1320d et seq.) and its implementing regulations, the
Confidentiality of Medical Information Act (Part 2.6 (commencing with
Section 56) of Division 1 of the Civil Code), and Section 1798.81.5
of the Civil Code. The entity shall be subject to existing penalties
for violation of these laws.
(ii) Prohibit the entity awarded the contract from using, selling,
or disclosing client records for a purpose other than the one for
which the record was given.
(C) For purposes of this paragraph, the following terms shall have
the following meanings:
(i) "Client record" means a medical record, chart, or similar
file, as well as other documents containing information regarding an
individual recipient of services, including, but not limited to,
clinical information, dates and times of services, and other
information relevant to the individual and services provided and that
evidences compliance with legal requirements for Medi-Cal
reimbursement.
(ii) "Client record review" means examination of the client record
for a selected individual recipient for the purpose of confirming
the existence of documents that verify compliance with legal
requirements for claims submitted for Medi-Cal reimbursement.
(D) The department shall recover overpayments of federal financial
participation from MHPs within the timeframes required by federal
law and regulation and return those funds to the State Department of
Health Care Services for repayment to the federal Centers for
Medicare and Medicaid Services. The department shall recover
overpayments of General Fund moneys utilizing the recoupment methods
and timeframes required by the State Administrative Manual.
(6) (A) The department, in consultation with mental health
stakeholders, the California Mental Health Directors Association, and
MHP subcontractor representatives, shall provide an appeals process
that specifies a progressive process for resolution of disputes about
claims or recoupments relating to specialty mental health services
under the Medi-Cal specialty mental health services waiver.
(B) The department shall provide MHPs and MHP subcontractors the
opportunity to directly appeal findings in accordance with procedures
that are similar to those described in Article 1.5 (commencing with
Section 51016) of Chapter 3 of Subdivision 1 of Division 3 of Title
22 of the California Code of Regulations, until new regulations for a
progressive appeals process are promulgated. When an MHP
subcontractor initiates an appeal, it shall give notice to the MHP.
The department shall propose a rulemaking package by no later than
the end of the 2008-09 fiscal year to amend the existing appeals
process. The reference in this subparagraph to the procedures
described in Article 1.5 (commencing with Section 51016) of Chapter 3
of Subdivision 1 of Division 3 of Title 22 of the California Code of
Regulations, shall only apply to those appeals addressed in this
subparagraph.
(C) The department shall develop regulations as necessary to
implement this paragraph.
(7) The department shall assume the applicable program oversight
authority formerly provided by the State Department of Health Care
Services, including, but not limited to, the oversight of utilization
controls as specified in Section 14133. The MHP shall include a
requirement in any subcontracts that all inpatient subcontractors
maintain necessary licensing and certification. MHPs shall require
that services delivered by licensed staff are within their scope of
practice. Nothing in this part shall prohibit the MHPs from
establishing standards that are in addition to the minimum federal
and state requirements, provided that these standards do not violate
federal and state Medi-Cal requirements and guidelines.
(8) Subject to federal approval and consistent with state
requirements, the MHP may negotiate rates with providers of mental
health services.
(9) Under the fee-for-service payment system, any excess in the
payment set forth in the contract over the expenditures for services
by the plan shall be spent for the provision of specialty mental
health services under the Medi-Cal specialty mental health service
waiver and related administrative costs.
(10) Nothing in this part shall limit the MHP from being
reimbursed appropriate federal financial participation for any
qualified services even if the total expenditures for service exceeds
the contract amount with the department. Matching nonfederal public
funds shall be provided by the plan for the federal financial
participation matching requirement.
(c) This subdivision shall apply to managed mental health care
funding allocations and risk-sharing determinations and arrangements.
(1) The department shall allocate and distribute annually the full
appropriated amount to each MHP for the managed mental health care
program, exclusive of the EPSDT specialty mental health services
program, provided under the mental health services waiver. The
allocated funds shall be considered to be funds of the plan to be
used as specified in this part.
(2) Each fiscal year the state matching funds for Medi-Cal
specialty mental health services shall be included in the annual
budget for the department. The amount included shall be based on
historical cost, adjusted for changes in the number of Medi-Cal
beneficiaries and other relevant factors. The appropriation for
funding the state share of the costs for EPSDT specialty mental
health services provided under the Medi-Cal specialty mental health
services waiver shall only be used for reimbursement payments of
claims for those services.
(3) Initially, the MHP shall use the fiscal intermediary of the
Medi-Cal program of the State Department of Health Care Services for
the processing of claims for inpatient psychiatric hospital services
and may be required to use that fiscal intermediary for the remaining
mental health services. The providers for other Short-Doyle Medi-Cal
services shall not be initially required to use the fiscal
intermediary but may be required to do so on a date to be determined
by the department. The department and its MHPs shall be responsible
for the initial incremental increased matching costs of the fiscal
intermediary for claims processing and information retrieval
associated with the operation of the services funded by the
transferred funds.
(4) The goal for funding of the future capitated system shall be
to develop statewide rates for beneficiary, by aid category and with
regional price differentiation, within a reasonable time period. The
formula for distributing the state matching funds transferred to the
department for acute inpatient psychiatric services to the
participating counties shall be based on the following principles:
(A) Medi-Cal state General Fund matching dollars shall be
distributed to counties based on historic Medi-Cal acute inpatient
psychiatric costs for the county's beneficiaries and on the number of
persons eligible for Medi-Cal in that county.
(B) All counties shall receive a baseline based on historic and
projected expenditures up to October 1, 1994.
(C) Projected inpatient growth for the period October 1, 1994, to
June 30, 1995, inclusive, shall be distributed to counties below the
statewide average per eligible person on a proportional basis. The
average shall be determined by the relative standing of the aggregate
of each county's expenditures of mental health Medi-Cal dollars per
beneficiary. Total Medi-Cal dollars shall include both
fee-for-service Medi-Cal and Short-Doyle Medi-Cal dollars for both
acute inpatient psychiatric services, outpatient mental health
services, and psychiatric nursing facility services, both in
facilities that are not designated as institutions for mental disease
and for beneficiaries who are under 22 years of age and
beneficiaries who are over 64 years of age in facilities that are
designated as institutions for mental disease.
(D) There shall be funds set aside for a self-insurance risk pool
for small counties. The department may provide these funds directly
to the administering entity designated in writing by all counties
participating in the self-insurance risk pool. The small counties
shall assume all responsibility and liability for appropriate
administration of these funds. For purposes of this subdivision,
"small counties" means counties with a population of fewer than
200,000 persons. Nothing in this paragraph shall in any way obligate
the state or the department to provide or make available any
additional funds beyond the amount initially appropriated and set
aside for each particular fiscal year, unless otherwise authorized in
statute or regulations, nor shall the state or the department be
liable in any way for mismanagement of loss of funds by the entity
designated by the counties under this paragraph.
(5) The allocation method for state funds transferred for acute
inpatient psychiatric services shall be as follows:
(A) For the 1994-95 fiscal year, an amount equal to 0.6965 percent
of the total shall be transferred to a fund established by small
counties. This fund shall be used to reimburse MHPs in small counties
for the cost of acute inpatient psychiatric services in excess of
the funding provided to the MHP for risk reinsurance, acute inpatient
psychiatric services and associated administrative days,
alternatives to hospital services as approved by participating small
counties, or for costs associated with the administration of these
moneys. The methodology for use of these moneys shall be determined
by the small counties, through a statewide organization representing
counties, in consultation with the department.
(B) The balance of the transfer amount for the 1994-95 fiscal year
shall be allocated to counties based on the following formula:
County Percentage
Alameda.............................. 3.5991
Alpine............................... .0050
Amador............................... .0490
Butte................................ .8724
Calaveras............................ .0683
Colusa............................... .0294
Contra Costa......................... 1.5544
Del Norte............................ .1359
El Dorado............................ .2272
Fresno............................... 2.5612
Glenn................................ .0597
Humboldt............................. .1987
Imperial............................. .6269
Inyo................................. .0802
Kern................................. 2.6309
Kings................................ .4371
Lake................................. .2955
Lassen............................... .1236
Los Angeles.......................... 31.3239
Madera............................... .3882
Marin................................ 1.0290
Mariposa............................. .0501
Mendocino............................ .3038
Merced............................... .5077
Modoc................................ .0176
Mono................................. .0096
Monterey............................. .7351
Napa................................. .2909
Nevada............................... .1489
Orange............................... 8.0627
Placer............................... .2366
Plumas............................... .0491
Riverside............................ 4.4955
Sacramento........................... 3.3506
San Benito........................... .1171
San Bernardino....................... 6.4790
San Diego............................ 12.3128
San Francisco........................ 3.5473
San Joaquin.......................... 1.4813
San Luis Obispo...................... .2660
San Mateo............................ .0000
Santa Barbara........................ .0000
Santa Clara.......................... 1.9284
Santa Cruz........................... 1.7571
Shasta............................... .3997
Sierra............................... .0105
Siskiyou............................. .1695
Solano............................... .0000
Sonoma............................... .5766
Stanislaus........................... 1.7855
Sutter/Yuba.......................... .7980
Tehama............................... .1842
Trinity.............................. .0271
Tulare............................... 2.1314
Tuolumne............................. .2646
Ventura.............................. .8058
Yolo................................. .4043
(6) The allocation method for the state funds transferred for
subsequent years for acute inpatient psychiatric and other specialty
mental health services shall be determined by the department in
consultation with a statewide organization representing counties.
(7) The allocation methodologies described in this section shall
only be in effect while federal financial participation is received
on a fee-for-service reimbursement basis. When federal funds are
capitated, the department, in consultation with a statewide
organization representing counties, shall determine the methodology
for capitation consistent with federal requirements. The share of
cost ratio arrangement for EPSDT specialty mental health services
provided under the Medi-Cal specialty mental health services waiver
between the state and the counties in existence during the 2007-08
fiscal year shall remain as the share of cost ratio arrangement for
these services unless changed by statute.
(8) The formula that specifies the amount of state matching funds
transferred for the remaining Medi-Cal fee-for-service mental health
services shall be determined by the department in consultation with a
statewide organization representing counties. This formula shall
only be in effect while federal financial participation is received
on a fee-for-service reimbursement basis.
(9) (A) For the managed mental health care program, exclusive of
EPSDT specialty mental health services provided under the Medi-Cal
specialty mental health services waiver, the department shall
establish, by regulation, a risk-sharing arrangement between the
department and counties that contract with the department as MHPs to
provide an increase in the state General Fund allocation, subject to
the availability of funds, to the MHP under this section, where there
is a change in the obligations of the MHP required by federal or
state law or regulation, or required by a change in the
interpretation or implementation of any such law or regulation which
significantly increases the cost to the MHP of performing under the
terms of its contract.
(B) During the time period required to redetermine the allocation,
payment to the MHP of the allocation in effect at the time the
change occurred shall be considered an interim payment, and shall be
subject to increase effective as of the date on which the change is
effective.
(C) In order to be eligible to participate in the risk-sharing
arrangement, the county shall demonstrate, to the satisfaction of the
department, its commitment or plan of commitment of all annual
funding identified in the total mental health resource base, from
whatever source, but not including county funds beyond the required
maintenance of effort, to be spent on specialty mental health
services. This determination of eligibility shall be made annually.
The department may limit the participation in a risk-sharing
arrangement of any county that transfers funds from the mental health
account to the social services account or the health services
account, in accordance with Section 17600.20 during the year to which
the transfers apply to MHP expenditures for the new obligation that
exceed the total mental health resource base, as measured before the
transfer of funds out of the mental health account and not including
county funds beyond the required maintenance of effort. The State
Department of Mental Health shall participate in a risk-sharing
arrangement only after a county has expended its total annual mental
health resource base.
(d) The following provisions govern the administrative
responsibilities of the department and the State Department of Health
Care Services:
(1) It is the intent of the Legislature that the department and
the State Department of Health Care Services consult and collaborate
closely regarding administrative functions related to and supporting
the managed mental health care program in general, and the delivery
and provision of EPSDT specialty mental health services provided
under the Medi-Cal specialty mental health services waiver in
particular. To this end, the following provisions shall apply:
(A) Commencing in the 2009-10 fiscal year, and each fiscal year
thereafter, the department shall consult with the State Department of
Health Care Services and amend the interagency agreement between the
two departments as necessary to include improvements or updates to
procedures for the accurate and timely processing of Medi-Cal claims
for specialty mental health services provided under the Medi-Cal
specialty mental health services waiver. The interagency agreement
shall ensure that there are consistent and adequate time limits,
consistent with federal and state law, for claims submitted and the
need to correct errors.
(B) Commencing in the 2009-10 fiscal year, and each fiscal year
thereafter, upon a determination by the department and the State
Department of Health Care Services that it is necessary to amend the
interagency agreement, the department and the State Department of
Health Care Services shall process the interagency agreement to
ensure final approval by January 1, for the following fiscal year,
and as adjusted by the budgetary process.
(C) The interagency agreement shall include, at a minimum, all of
the following:
(i) A process for ensuring the completeness, validity, and timely
processing of Medi-Cal claims as mandated by the federal Centers for
Medicare and Medicaid Services.
(ii) Procedures and timeframes by which the department shall
submit complete, valid, and timely invoices to the State Department
of Health Care Services, which shall notify the department of
inconsistencies in invoices that may delay payments.
(iii) Procedures and timeframes by which the department shall
notify MHPs of inconsistencies that may delay payment.
(2) (A) The department shall consult with the State Department of
Health Care Services and the California Mental Health Directors
Association in February and September of each year to review the
methodology used to forecast future trends in the provision of EPSDT
specialty mental health services provided under the Medi-Cal
specialty mental health services waiver, to estimate these yearly
EPSDT specialty mental health services-related costs, and to estimate
the annual amount of funding required for reimbursements for EPSDT
specialty mental health services to ensure relevant factors are
incorporated in the methodology. The estimates of costs and
reimbursements shall include both federal financial participation
amounts and any state General Fund amounts for EPSDT specialty mental
health services provided under the State Medi-Cal specialty mental
health services waiver. The department shall provide the State
Department of Health Care Services the estimate adjusted to a cash
basis.
(B) The estimate of annual funding described in subparagraph (A)
shall include, but not be limited to, the following factors:
(i) The impacts of interactions among caseload, type of services,
amount or number of services provided, and billing unit cost of
services provided.
(ii) A systematic review of federal and state policies, trends
over time, and other causes of change.
(C) The forecasting and estimates performed under this paragraph
are primarily for the purpose of providing the Legislature and the
Department of Finance with projections that are as accurate as
possible for the State Budget process, but will also be informative
and useful for other purposes. Therefore, it is the intent of the
Legislature that the information produced under this paragraph shall
be taken into consideration under paragraph (9) of subdivision (c).
SEC. 322. Section 10850.4 of the Welfare and Institutions Code is
amended to read:
10850.4. (a) Within five business days of learning that a child
fatality has occurred in the county and that there is a reasonable
suspicion that the fatality was caused by abuse or neglect, the
custodian of records for the county child welfare agency, upon
request, shall release the following information:
(1) The age and gender of the child.
(2) The date of death.
(3) Whether the child was in foster care or in the home of his or
her parent or guardian at the time of death.
(4) Whether an investigation is being conducted by a law
enforcement agency or the county child welfare agency.
(b) All cases in which abuse or neglect leads to a child's death
shall be subject to the disclosures required in subdivision (c).
Abuse or neglect is determined to have led to a child's death if one
or more of the following conditions are met:
(1) A county child protective services agency determines that the
abuse or neglect was substantiated.
(2) A law enforcement investigation concludes that abuse or
neglect occurred.
(3) A coroner or medical examiner concludes that the child who
died had suffered abuse or neglect.
(c) Upon completion of the child abuse or neglect investigation
into the child's death, as described in subdivision (b), the
following documents from the juvenile case file shall be released by
the custodian of records upon request, subject to the redactions set
forth in subdivision (e):
(1) All of the information in subdivision (a).
(2) For cases in which the child's death occurred while living
with a parent or guardian, all previous referrals of abuse or neglect
of the deceased child while living with that parent or guardian
shall be disclosed along with the following documents:
(A) The emergency response referral information form and the
emergency response notice of referral disposition form completed by
the county child welfare agency relating to the abuse or neglect that
caused the death of the child.
(B) Any cross reports completed by the county child welfare agency
to law enforcement relating to the deceased child.
(C) All risk and safety assessments completed by the county child
welfare services agency relating to the deceased child.
(D) All health care records of the deceased child, excluding
mental health records, related to the child's death and previous
injuries reflective of a pattern of abuse or neglect.
(E) Copies of police reports about the person against whom the
child abuse or neglect was substantiated.
(3) For cases in which the child's death occurred while the child
was in foster care, the following documents in addition to those
specified in paragraphs (1) and (2) generated while the child was
living in the foster care placement that was the placement at the
time of the child's death:
(A) Records pertaining to the foster parents' initial licensing
and renewals and type of license or licenses held, if in the case
file.
(B) All reported licensing violations, including notices of
action, if in the case file.
(C) Records of the training completed by the foster parents, if in
the case file.
(d) The documents listed in subdivision (c) shall be released to
the public by the custodian of records within 10 business days of the
request or the disposition of the investigation, whichever is later.
(e) (1) Prior to releasing any document pursuant to subdivision
(c), the custodian of records shall redact the following information:
(A) The names, addresses, telephone numbers, ethnicity, religion,
or any other identifying information of any person or institution,
other than the county or the State Department of Social Services,
that is mentioned in the documents listed in paragraphs (2) and (3)
of subdivision (c).
(B) Any information that would, after consultation with the
district attorney, jeopardize a criminal investigation or proceeding.
(C) Any information that is privileged, confidential, or not
subject to disclosure pursuant to any other state or federal law.
(2) (A) The State Department of Social Services shall promulgate a
regulation listing the laws described in subparagraph (C) of
paragraph (1) and setting forth standards governing redactions.
(B) Notwithstanding 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),
until emergency regulations are filed with the Secretary of State,
the State Department of Social Services may implement the changes
made to Section 827 and this section at the 2007-08 Regular Session
of the Legislature through all-county letters or similar instructions
from the director. The department shall adopt as emergency
regulations, as necessary to implement those changes, no later than
January 1, 2009.
(C) The adoption of regulations pursuant to this paragraph shall
be deemed to be an emergency necessary for the immediate preservation
of the public peace, health, safety, or general welfare. The
emergency regulations authorized by this section shall be exempt from
review by the Office of Administrative Law. The emergency
regulations authorized by this section shall be submitted for filing
with the Secretary of State and shall remain in effect for no more
than 180 days, by which time the final regulations shall be adopted.
(f) Upon receiving a request for the documents listed in
subdivision (c), the custodian of records shall notify and provide a
copy of the request upon counsel for any child who is directly or
indirectly connected to the juvenile case file. If counsel for a
child, including the deceased child or any sibling of the deceased
child, objects to the release of any part of the documents listed in
paragraphs (2) and (3) of subdivision (c), they may petition the
juvenile court for relief to prevent the release of any document or
part of a document requested pursuant to paragraph (2) of subdivision
(a) of Section 827.
(g) Documents from the juvenile case file, other than those listed
in paragraphs (2) and (3) of subdivision (c), shall only be
disclosed upon an order by the juvenile court pursuant to Section
827.
(h) Once
documents pursuant to this section have been released by the
custodian of records, the State Department of Social Services or the
county welfare department or agency may comment on the case within
the scope of the release.
(i) Information released by a custodian of records consistent with
the requirements of this section does not require prior notice to
any other individual.
(j) Each county welfare department or agency shall notify the
State Department of Social Services of every child fatality that
occurred within its jurisdiction that was the result of child abuse
or neglect. Based on these notices and any other relevant information
in the State Department of Social Services' possession, the
department shall annually issue a report identifying the child
fatalities and any systemic issues or patterns revealed by the
notices and other relevant information. The State Department of
Social Services, after consultation with interested stakeholders,
shall provide instructions by an all-county letter regarding the
procedure for notification.
(k) For purposes of this section, the following definitions apply:
(1) "Child abuse or neglect" has the same meaning as defined in
Section 11165.6 of the Penal Code.
(2) "Custodian of records," for the purposes of this section and
paragraph (2) of subdivision (a) of Section 827, means the county
welfare department or agency.
(3) "Juvenile case files" or "case files" include any juvenile
court files, as defined in Rule 5.552 of the California Rules of
Court, and any county child welfare department or agency or State
Department of Social Services records regardless of whether they are
maintained electronically or in paper form.
(4) "Substantiated" has the same meaning as defined in Section
11165.12 of the Penal Code.
(l) A person disclosing juvenile case file information as required
by this section shall not be subject to suit in civil or criminal
proceedings for complying with the requirements of this section.
(m) This section shall apply only to deaths that occur on or after
January 1, 2008.
(n) Nothing in this section shall require a custodian of records
to retain documents beyond any date otherwise required by law.
(o) Nothing in this section shall be construed as requiring a
custodian of records to obtain documents not in the case file.
SEC. 323. Section 11327.5 of the Welfare and Institutions Code, as
added by Section 3 of Chapter 8 of the 4th Extraordinary Session of
the Statutes of 2009, is amended to read:
11327.5. (a) Sanctions shall be imposed in accordance with
subdivision (b) or (c), as appropriate, if an individual has failed
or refused to comply with program requirements without good cause and
conciliation efforts, as described in Section 11327.4, have failed.
(b) The sanctions provided for in subdivisions (c) and (d) shall
not apply to an individual who is exempt from the requirements of
this article but is voluntarily participating in the program. If that
individual engages in conduct that would bring about the actions
provided for in subdivisions (c) and (d), except for his or her
status as a voluntary program participant, the individual shall not
be given priority so long as other individuals are actively seeking
to participate.
(c) Financial sanctions for failing or refusing to comply with
program requirements without good cause shall cause a reduction in
the family's grant, in accordance with subdivision (d).
(1) For families that qualify for aid due to unemployment of the
family's primary wage earner, the sanctioned parent shall be removed
from the assistance unit. Unless the spouse or the family's second
parent meets the provisions of subparagraph (A) of paragraph (2), if
the sanctioned parent's spouse or the family's second parent is not
participating in the program, both the sanctioned parent and the
spouse or second parent shall be removed from the assistance unit.
The county shall notify the spouse of the noncomplying participant or
second parent in writing at the commencement of conciliation of his
or her own opportunity to participate and the impact on sanctions of
that participation.
(2) (A) Except as provided in subparagraph (B), exemption criteria
specified in Section 11320.3, conciliation specified in Section
11327.4, and good cause criteria specified in Section 11320.31 and
subdivision (f) of Section 11320.3 shall apply to the sanctioned
parent's spouse or the family's second parent.
(B) Exemption criteria specified in paragraphs (5) and (6) of
subdivision (b) of Section 11320.3 do not apply to a spouse or second
parent who is participating to avoid the sanction of the
noncomplying parent.
(C) If the sanctioned parent's spouse or the family's second
parent chooses to participate to avoid the noncomplying parent's
sanction, subsequently fails or refuses to participate without good
cause, and does not conciliate, he or she shall be removed from the
assistance unit for a period of time specified in subdivision (d).
(D) If the sanctioned parent's spouse or the family's second
parent is under his or her own sanction at the time of the first
parent's sanction, the spouse or second parent shall not be provided
the opportunity to avoid the first parent's sanction until the spouse
or second parent's sanction is completed.
(3) For families that qualify due to the absence or incapacity of
a parent, only the noncomplying parent shall be removed from the
assistance unit.
(4) If the noncomplying individual is the only dependent child in
the family, his or her needs shall not be taken into account in
determining the family's need for assistance and the amount of the
assistance payment.
(5) If the noncomplying individual is one of several dependent
children in the family, his or her needs shall not be taken into
account in determining the family's need for assistance and the
amount of the assistance payment.
(d) (1) An instance of noncompliance without good cause shall
result in a financial sanction, consisting of removing the
noncomplying family member from the assistance unit, after the
noncompliance persists for three cumulative months. The conciliation
process described in Section 11327.4 shall occur during the first 30
days of this three-month period. A sanction under this section shall
terminate at any point if the noncomplying participant performs the
activity or activities he or she previously refused to perform.
(2) (A) If the instance of noncompliance persists for three
cumulative months, the county shall review and assess the
circumstances of the noncomplying individual in order to determine
and identify potential barriers to participation, assess the need for
services or resources, and provide tools to connect the individual
with services and activities. The review and assessment shall be
conducted by a social worker or employment services worker. The
county shall make a good faith effort to remediate any barriers that
are identified. If barriers relating to substance abuse, mental
health, or domestic violence are suspected, the county shall schedule
assessments with an employment specialist or social worker for the
individual in order to assess and review for treatment. This review
shall occur within 30 days after the grant reduction made pursuant to
paragraph (1).
(B) If the county fails to conduct a review or remediate any
issues pursuant to this paragraph, or if the county determines that
the individual is in compliance pursuant to paragraph (1), or is
exempt from welfare-to-work requirements, the sanction shall
terminate. If failure to conduct a review or remediate an issue is
the result of the recipient's noncompliance, the sanction shall
continue.
(3) (A) If the instance of noncompliance persists for an
additional three cumulative months after a grant reduction is made
pursuant to paragraph (1), the grant shall be decreased by an amount
equal to 25 percent of the child-only grant, which already reflects
the removal of the parent.
(B) If the instance of noncompliance persists for an additional
three cumulative months after the family's grant is reduced under
subparagraph (A), a second review and assessment shall be conducted
in accordance with the requirements of paragraph (2). The second
review and assessment shall be conducted within 30 days of the most
recent grant reduction pursuant to subparagraph (A). After the review
and assessment conducted under this paragraph, if the instance of
noncompliance persists for an additional three cumulative months
after the most recent reduction, the family's aid grant shall be
decreased by an amount equal to 50 percent of the child-only grant
level that existed prior to the 25-percent reduction.
(C) At any time, if the noncomplying member is determined to be
exempt, or comes into compliance with applicable CalWORKs work
requirements, the sanction shall terminate and the full aid grant
amount shall be restored.
(4) (A) With respect to an assistance unit from which the adult's
share of the grant has been terminated due to the expiration of the
60-month period provided for pursuant to Section 11454, the county
shall impose the sanctions provided for in this section only if the
county makes available to the adult necessary child care services,
and all applicable exemptions. If the Legislature has made a specific
appropriation for transportation services for families who have
exceeded the 60-month time limit and the county has not made this
service available to the adult, as necessary, a sanction shall not be
imposed. These cases shall receive a review pursuant to subdivision
(h) of Section 11320.2 at the 42nd or 54th month of aid in
preparation for this assessment by the county, including reviewing
possible exemptions and discussing possible grant reductions if the
family is not in compliance after the 60 months with the state
participation requirements, as determined by the county. The
individual shall receive notice of the review, which shall include
informing the individual of the risk of having the grant further
reduced by 25 percent if the parent does not comply with CalWORKs
requirements after the 48th or 60th month on aid, as well as
opportunities to come into compliance and services that may be
available from the county.
(B) If the county determines after the 48th or 60th month on aid
that the adult is not in compliance and does not otherwise meet
exemption criteria, such as SSI eligibility or being an elderly
caregiver, and the service requirements of the county as specified in
subparagraph (A) have been met, then the aid grant shall be
decreased by an amount equal to 25 percent of the child-only portion
of the grant, thus resulting in a grant level equal to 75 percent of
the child-only grant level in the 47th or 59th month, or the month
prior to entering the safety net. Review and assessment pursuant to
paragraph (2) shall be scheduled with the adult in this assistance
unit at this time.
(C) If the noncompliance persists for three cumulative months
after the grant reduction pursuant to subparagraph (B), the review
and assessment conducted pursuant to paragraph (2), and the county
has met the service requirements specified in subparagraph (A), then
the aid grant shall be decreased by an amount equal to 50 percent of
the child-only aid grant thus resulting in a grant level equal to 50
percent of the child-only grant level in the 47th or 59th month, or
the month prior to entering the safety net.
(D) At any time, if the noncomplying member is determined to be
exempt from welfare-to-work activities, or comes into compliance with
applicable CalWORKs work requirements, the sanction shall terminate
and the full aid grant amount shall be restored.
(5) (A) After 60 full months of aid, with respect to an assistance
unit for which there is no adult share due to the adult being (i)
not lawfully present in the United States, (ii) a person described by
Section 608(a)(9)(A) of Title 42 of the United States Code, or (iii)
convicted of any offense classified as a felony by the law of the
jurisdiction involved and that has as an element of the possession,
use, or distribution of a controlled substance, as defined in Section
802(6) of Title 21 of the United States Code, the county shall apply
the sanction provisions contained in subparagraph (B) to the
assistance unit allowing for all applicable exemptions. If the county
makes available to the adult, at county expense or pursuant to a
specific General Fund appropriation, necessary supportive services of
child care and transportation, in addition to community service
opportunities, and the family is in compliance with work requirements
the family shall receive the full child-only grant. These cases
shall receive a self-sufficiency review pursuant to subdivision (h)
of Section 11320.2 at the 54th month of aid, in preparation for this
assessment by the county, including reviewing possible exemptions,
and discussing possible grant reductions if the family is not in
compliance with the state participation requirements after 60 months,
as determined by the county.
(B) If the county determines after the 60 months of aid that the
adult does not otherwise meet exemption criteria, including those
that acknowledge the adult's inability to work, such as SSI
eligibility or being an elderly caregiver, and the service
requirements of the county as specified in subparagraph (A) have been
met, then the aid grant shall be decreased by an amount equal to 25
percent of the child-only portion of the grant amount, thus resulting
in a grant level equal to 75 percent of the child-only grant level
in the 59th month or the month prior to entering the safety net.
Review and assessment pursuant to paragraph (2) shall be scheduled
with the adult in this assistance unit at this time.
(C) If the noncompliance persists for three cumulative months
after the review and assessment conducted pursuant to paragraph (2),
and the service requirements of the county as specified in
subparagraph (A) have been met, the family's aid grant shall be
decreased to an amount equal to 50 percent of the child-only portion
of the grant amount, thus resulting in a grant level equal to 50
percent of the child-only grant level in the 59th month prior to
entering the safety net.
(D) At any time, if the noncomplying member is determined to be
exempt from welfare-to-work activities, or comes into compliance with
applicable CalWORKs work requirements, the sanction shall terminate
and the full aid grant amount shall be restored.
(e) Sanctions shall become effective on the first day of the first
payment-month that the sanctioned individual's needs are removed or
further reductions are made to aid under this chapter.
(f) The additional monetary sanctions imposed in subdivision (d)
shall not apply if the only sanctioned individual in the family is a
dependent child.
(g) The county shall send individuals subject to sanction a notice
by the end of their second cumulative month on sanction, and a
notice by the end of their fifth cumulative month on sanction,
reminding them that their aid will further decrease if the sanction
is not cured by the end of the third or sixth month, respectively.
(h) In addition to the notice required pursuant to subdivision
(d), counties shall attempt to contact the noncompliant individual
prior to imposing a sanction reducing the family's aid. This contact
may be achieved through telephone calls, letters, home visits, or
some combination of these methods.
(i) The review and assessment described in paragraph (2) of
subdivision (d) shall be deemed to satisfy the requirements for a
self-sufficiency review pursuant to Section 11320.2 if the review and
assessment occurs within the same month that a self-sufficiency
review under Section 11320.2 would have been scheduled. If failure to
conduct the review or assessment is the result of the recipient's
noncompliance, the sanction or further reduction shall become
effective under this chapter.
(j) Any review or assessment required under this section may be
conducted through face-to-face meetings or home visits.
(k) This section shall become operative on July 1, 2011.
SEC. 324. Section 11453 of the Welfare and Institutions Code is
amended to read:
11453. (a) Except as provided in subdivision (c), the amounts set
forth in Section 11452 and subdivision (a) of Section 11450 shall be
adjusted annually by the department to reflect any increases or
decreases in the cost of living. These adjustments shall become
effective July 1 of each year, unless otherwise specified by the
Legislature. For the 2000-01 fiscal year to the 2003-04 fiscal year,
inclusive, these adjustments shall become effective October 1 of each
year. The cost-of-living adjustment shall be calculated by the
Department of Finance based on the changes in the California
Necessities Index, which as used in this section means the weighted
average changes for food, clothing, fuel, utilities, rent, and
transportation for low-income consumers. The computation of annual
adjustments in the California Necessities Index shall be made in
accordance with the following steps:
(1) The base period expenditure amounts for each expenditure
category within the California Necessities Index used to compute the
annual grant adjustment are:
Food............................... $ 3,027
Clothing (apparel and upkeep)...... 406
Fuel and other utilities........... 529
Rent, residential.................. 4,883
Transportation..................... 1,757
Total............................ $10,602
(2) Based on the appropriate components of the Consumer Price
Index for All Urban Consumers, as published by the United States
Department of Labor, Bureau of Labor Statistics, the percentage
change shall be determined for the 12-month period ending with the
December preceding the year for which the cost-of-living adjustment
will take effect, for each expenditure category specified in
paragraph (1) within the following geographical areas: Los
Angeles-Long Beach-Anaheim, San Francisco-Oakland, San Diego, and, to
the extent statistically valid information is available from the
Bureau of Labor Statistics, additional geographical areas within the
state which include not less than 80 percent of recipients of aid
under this chapter.
(3) Calculate a weighted percentage change for each of the
expenditure categories specified in paragraph (1) using the
applicable weighting factors for each area used by the Department of
Industrial Relations to calculate the California Consumer Price Index
(CCPI).
(4) Calculate a category adjustment factor for each expenditure
category in paragraph (1) by (1) adding 100 to the applicable
weighted percentage change as determined in paragraph (2) and (2)
dividing the sum by 100.
(5) Determine the expenditure amounts for the current year by
multiplying each expenditure amount determined for the prior year by
the applicable category adjustment factor determined in paragraph
(4).
(6) Determine the overall adjustment factor by dividing (1) the
sum of the expenditure amounts as determined in paragraph (4) for the
current year by (2) the sum of the expenditure amounts as determined
inparagraph (4) for the prior year.
(b) The overall adjustment factor determined by the preceding
computation steps shall be multiplied by the schedules established
pursuant to Section 11452 and subdivision (a) of Section 11450 as are
in effect during the month of June preceding the fiscal year in
which the adjustments are to occur and the product rounded to the
nearest dollar. The resultant amounts shall constitute the new
schedules which shall be filed with the Secretary of State.
(c) (1) No adjustment to the maximum aid payment set forth in
subdivision (a) of Section 11450 shall be made under this section for
the purpose of increasing the benefits under this chapter for the
1990-91, 1991-92, 1992-93, 1993-94, 1994-95, 1995-96, 1996-97, and
1997-98 fiscal years, and through October 31, 1998, to reflect any
change in the cost of living. For the 1998-99 fiscal year, the
cost-of-living adjustment that would have been provided on July 1,
1998, pursuant to subdivision (a) shall be made on November 1, 1998.
No adjustment to the maximum aid payment set forth in subdivision (a)
of Section 11450 shall be made under this section for the purpose of
increasing the benefits under this chapter for the 2005-06 and
2006-07 fiscal years to reflect any change in the cost of living.
Elimination of the cost-of-living adjustment pursuant to this
paragraph shall satisfy the requirements of Section 11453.05, and no
further reduction shall be made pursuant to that section.
(2) No adjustment to the minimum basic standard of adequate care
set forth in Section 11452 shall be made under this section for the
purpose of increasing the benefits under this chapter for the 1990-91
and 1991-92 fiscal years to reflect any change in the cost of
living.
(3) In any fiscal year commencing with the 2000-01 fiscal year to
the 2003-04 fiscal year, inclusive, when there is any increase in tax
relief pursuant to the applicable paragraph of subdivision (a) of
Section 10754 of the Revenue and Taxation Code, then the increase
pursuant to subdivision (a) of this section shall occur. In any
fiscal year commencing with the 2000-01 fiscal year to the 2003-04
fiscal year, inclusive, when there is no increase in tax relief
pursuant to the applicable paragraph of subdivision (a) of Section
10754 of the Revenue and Taxation Code, then any increase pursuant to
subdivision (a) of this section shall be suspended.
(4) Notwithstanding paragraph (3), an adjustment to the maximum
aid payments set forth in subdivision (a) of Section 11450 shall be
made under this section for the 2002-03 fiscal year, but the
adjustment shall become effective June 1, 2003.
(5) No adjustment to the maximum aid payment set forth in
subdivision (a) of Section 11450 shall be made under this section for
the purpose of increasing benefits under this chapter for the
2007-08, 2008-09, and 2009-10 fiscal years.
(6) For the 2010-11 fiscal year and each fiscal year thereafter,
no adjustment to the maximum aid payment set forth in subdivision (a)
of Section 11450 shall be made under this section unless otherwise
specified by statute.
(d) For the 2004-05 fiscal year, the adjustment to the maximum aid
payment set forth in subdivision (a) shall be suspended for three
months commencing on the first day of the first month following the
effective date of the act adding this subdivision.
(e) Adjustments for subsequent fiscal years pursuant to this
section shall not include any adjustments for any fiscal year in
which the cost-of-living adjustment was suspended pursuant to
subdivision (c).
SEC. 325. Section 12201 of the Welfare and Institutions Code is
amended to read:
12201. (a) Except as provided in subdivision (d), the payment
schedules set forth in Section 12200 shall be adjusted annually to
reflect any increases or decreases in the cost of living. Except as
provided in subdivision (e), (f), or (g), these adjustments shall
become effective January 1 of each year. The cost-of-living
adjustment shall be based on the changes in the California
Necessities Index, which as used in this section shall be the
weighted average of changes for food, clothing, fuel, utilities,
rent, and transportation for low-income consumers. The computation of
annual adjustments in the California Necessities Index shall be made
in accordance with the following steps:
(1) The base period expenditure amounts for each expenditure
category within the California Necessities Index used to compute the
annual grant adjustment are:
Food............................... $ 3,027
Clothing (apparel and upkeep)...... 406
Fuel and other utilities........... 529
Rent, residential.................. 4,883
Transportation..................... 1,757
-----------
Total............................ $10,602
(2) Based on the appropriate components of the Consumer Price
Index for All Urban Consumers, as published by the United States
Department of Labor, Bureau of Labor Statistics, the percentage
change shall be determined for the 12-month period which ends 12
months prior to the January in which the cost-of-living adjustment
will take effect, for each expenditure category specified in
paragraph (1) within the following geographical areas: Los
Angeles-Long Beach-Anaheim, San Francisco-Oakland, San Diego, and, to
the extent statistically valid information is available from the
Bureau of Labor Statistics, additional geographical areas within the
state which include not less than 80 percent of recipients of aid
under this chapter.
(3) Calculate a weighted percentage change for each of the
expenditure categories specified in paragraph (1) using the
applicable weighting factors for each area used by the Department of
Industrial Relations to calculate the California Consumer Price Index
(CCPI).
(4) Calculate a category adjustment factor for each expenditure
category in paragraph (1) by (1) adding 100 to the applicable
weighted percentage change as determined in paragraph (2) and (2)
dividing the sum by 100.
(5) Determine the expenditure amounts for the current year by
multiplying each expenditure amount determined for the prior year by
the applicable category adjustment factor determined in paragraph
(4).
(6) Determine the overall adjustment factor by dividing (1) the
sum of the expenditure amounts as determined in paragraph (4) for the
current year by (2) the sum of the expenditure amounts as determined
in paragraph (4) for the prior year.
(b) The overall adjustment factor determined by the preceding
computational steps shall be multiplied by the payment schedules
established pursuant to Section 12200 as are in effect during the
month of December preceding the calendar year in which the
adjustments are to occur, and the product rounded to the nearest
dollar. The resultant amounts shall constitute the new schedules for
the categories given under subdivisions (a), (b), (c), (d), (e), (f),
and (g) of Section 12200, and shall be filed with the Secretary of
State. The amount as set forth in subdivision (h) of Section 12200
shall be adjusted annually pursuant to this section in the event that
the secretary agrees to administer payment under that subdivision.
The payment schedule for subdivision (i) of Section 12200 shall be
computed as specified, based on the new payment schedules for
subdivisions (a), (b), (c), and (d) of Section 12200.
(c) The department shall adjust any amounts of aid under this chapter
to ensure that the minimum level required by the Social Security Act
in order to maintain eligibility for funds under Title XIX of that
act is met.
(d) (1) No adjustment shall be made under this section for the
1991, 1992, 1993, 1994, 1995, 1996, 1997, 1998, 2004, 2006, 2007,
2008, 2009, and 2010 calendar years to reflect any change in the cost
of living. Elimination of the cost-of-living adjustment pursuant to
this paragraph shall satisfy the requirements of Section 12201.05,
and no further reduction shall be made pursuant to that section.
(2) Any cost-of-living adjustment granted under this section for
any calendar year shall not include adjustments for any calendar year
in which the cost-of-living adjustment was suspended pursuant to
paragraph (1).
(e) For the 2003 calendar year, the adjustment required by this
section shall become effective June 1, 2003.
(f) For the 2005 calendar year, the adjustment required by this
section shall become effective April 1, 2005.
(g) (1) For the 2011 calendar year and each calendar year
thereafter, no adjustment shall be made under this section unless
otherwise specified by statute.
(2) Notwithstanding paragraph (1), the pass along of federal
benefits provided for in Section 12201.05 shall be effective on
January 1 of each calendar year.
SEC. 326. Section 12301.06 of the Welfare and Institutions Code is
amended to read:
12301.06. (a) (1) Notwithstanding any other provision of law,
except as provided in subdivision (d), the department shall implement
a 3.6-percent reduction in hours of service to each recipient of
services under this article, which shall be applied to the recipient'
s hours as authorized pursuant to the most recent assessment. This
reduction shall be effective 90 days after the enactment of the act
that adds this section. The reduction required by this section shall
not preclude any reassessment to which a recipient would otherwise be
entitled. However, hours authorized pursuant to a reassessment shall
be subject to the 3.6-percent reduction required by this section.
(2) A recipient of services under this article may direct the
manner in which the reduction of hours is applied to the recipient's
previously authorized services.
(3) For those individuals who have a documented unmet need,
excluding protective supervision because of the limitations on
authorized hours under Section 12303.4, the reduction shall be taken
first from the documented unmet need.
(b) (1) The reduction in hours of service pursuant to subdivision
(a) shall cease to be implemented on July 1, 2012.
(2) It is the intent of the Legislature that on July 1, 2012,
services shall be restored to the level authorized pursuant to the
recipient's most recent assessment, and increased by the previously
deducted 3.6 percent.
(c) The notice of action informing the recipient of the reduction
pursuant to subdivision (a) shall be mailed at least 30 days prior to
the reduction going into effect. The notice of action shall be
understandable to the recipient and translated into all languages
spoken by a substantial number of the public served by the In-Home
Supportive Services program, in accordance with Section 7295.2 of the
Government Code. The notice shall not contain any recipient
financial or confidential identifying information other than the
recipient's name, address, and Case Management Information and
Payroll System (CMIPS) client identification number, and shall
include, but not be limited to, all of the following information:
(1) The aggregate number of authorized hours before the reduction
pursuant to subdivision (a) and the aggregate number of authorized
hours after the reduction.
(2) That the recipient may direct the manner in which the
reduction of authorized hours is applied to the recipient's
previously authorized services.
(3) That the reduction of hours shall remain in effect until July
1, 2012, at which time service hours shall be restored to the
recipient's authorized level, based on the most recent assessment,
and increased by the previously deducted 3.6 percent.
(d) A recipient shall have all appeal rights otherwise provided
for under Chapter 7 (commencing with Section 10950) of Part 2.
(e) (1) Notwithstanding 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),
the department may implement and administer this section through
all-county letters or similar instructions from the department.
(f) This section shall become inoperative on July 1, 2012, and, as
of January 1, 2013, is repealed, unless a later enacted statute that
is enacted before January 1, 2013, deletes or extends the dates on
which it becomes inoperative and is repealed.
SEC. 327. Section 12305.87 of the Welfare and Institutions Code is
amended to read:
12305.87. (a) (1) Commencing 90 days following the effective date
of the act that adds this section, a person specified in paragraph
(2) shall be subject to the criminal conviction exclusions provided
for in this section, in addition to the exclusions required under
Section 12305.81.
(2) This section shall apply to a person who satisfies either of
the following conditions:
(A) He or she is a new applicant to provide services under this
article.
(B) He or she is an applicant to provide services under this
article whose application has been denied on the basis of a
conviction and for whom an appeal of that denial is pending.
(b) Subject to subdivisions (c), (d), and (e), an applicant
subject to this section shall not be eligible to provide or receive
payment for providing supportive services for 10 years following a
conviction for, or incarceration following a conviction for, any of
the following:
(1) A violent or serious felony, as specified in subdivision (c)
of Section 667.5 of the Penal Code and subdivision (c) of Section
1192.7 of the Penal Code.
(2) A felony offense for which a person is required to register
under subdivision (c) of Section 290 of the Penal Code. For purposes
of this subparagraph, the 10-year time period specified in this
section shall commence with the date of conviction for, or
incarceration following a conviction for, the underlying offense, and
not the date of registration.
(3) A felony offense described in paragraph (2) of subdivision (c)
or paragraph (2) of subdivision (g) of Section 10980.
(c) Notwithstanding subdivision (b), an application shall not be
denied under this section if the applicant has obtained a certificate
of rehabilitation under Chapter 3.5 (commencing with Section
4852.01) of Title 6 of Part 3 of the Penal Code or the information or
accusation against him or her has been dismissed pursuant to Section
1203.4 of the Penal Code.
(d) (1) Notwithstanding subdivision (b), a recipient of services
under this article who wishes to employ a provider applicant who has
been convicted of an offense specified in subdivision (b) may submit
to the county an individual waiver of the exclusion provided for in
this section. This paragraph shall not be construed to allow a
recipient to submit an individual waiver with respect to a conviction
or convictions for offenses specified in Section 12305.81.
(2) The county shall notify a recipient who wishes to hire a
person who is applying to be a provider and who has been convicted of
an offense subject to exclusion under this section of that applicant'
s relevant criminal offense convictions that are covered by
subdivision (b). The notice shall include both of the following:
(A) A summary explanation of the exclusions created by subdivision
(b), as well as the applicable waiver process described in this
subdivision and the process for an applicant to seek a general
exception, as described in subdivision (e). This summary explanation
shall be developed by the department for use by all counties.
(B) An individual waiver form, which shall also be developed by
the department and used by all counties. The waiver form shall
include both of the following:
(i) A space for the county to include a reference to any Penal
Code sections and corresponding offense names or descriptions that
describe the relevant conviction or convictions that are covered by
subdivision (b) and that the provider applicant has in his or her
background.
(ii) A statement that the service recipient, or his or her
authorized representative, if applicable, is aware of the applicant's
conviction or convictions and agrees to waive application of this
section and employ the applicant as a provider of services under this
article.
(3) To ensure that the initial summary explanation referenced in
this subdivision is comprehensible for recipients and provider
applicants, the department shall consult with representatives of
county welfare departments and advocates for, or representatives of,
recipients and providers in developing the summary explanation and
offense descriptions.
(4) The individual waiver form shall be signed by the recipient,
or by the recipient's authorized representative, if applicable, and
returned to the county welfare department by mail or in person. The
county shall retain the waiver form and a copy of the provider
applicant's criminal offense record information search response until
the date that the convictions that are the subject of the waiver
request are no longer within the 10-year period specified in
subdivision (b).
(5) An individual waiver submitted pursuant to this subdivision
shall entitle a recipient to hire a provider applicant who otherwise
meets all applicable enrollment requirements for the In-Home
Supportive Services program. A provider hired pursuant to an
individual waiver may be employed only by the recipient who requested
that waiver, and the waiver shall only be valid with respect to
convictions that are specified in that waiver. A new waiver shall be
required if the provider is subsequently convicted of an offense to
which this section otherwise would apply. A provider who wishes to be
listed on a provider registry or to provide supportive services to a
recipient who has not requested an individual waiver shall be
required to apply for a general exception, as provided for in
subdivision (e).
(6) Nothing in this section shall preclude a provider who is
eligible to receive payment for services provided pursuant to an
individual waiver under this subdivision from being eligible to
receive payment for services provided to one or more additional
recipients who obtain waivers pursuant to this subdivision.
(7) The state and a county shall be immune from any liability
resulting from granting an individual waiver under this subdivision.
(e) (1) Notwithstanding subdivision (b), an applicant who has been
convicted of an offense identified in subdivision (b) may seek from
the department a general exception to the exclusion provided for in
this section.
(2) Upon receipt of a general exception request, the department
shall request a copy of the applicant's criminal offender record
information search response from the applicable county welfare
department. Notwithstanding any other provision of law, the county
shall provide a copy of the criminal offender record information
search response, as provided to the county by the Department of
Justice, to the department. The county shall provide this information
in a manner that protects the confidentiality and privacy of the
criminal offender record information search response. The state or
federal criminal history record information search response shall not
be modified or altered from its form or content as provided by the
Department of Justice.
(3) The department shall consider the following factors when
determining whether to grant a general exception under this
subdivision:
(A) The nature and seriousness of the conduct or crime under
consideration and its relationship to employment duties and
responsibilities.
(B) The person's activities since conviction, including, but not
limited to, employment or participation in therapy, education, or
community service, that would indicate changed behavior.
(C) The number of convictions and the time that has elapsed since
the conviction or convictions.
(D) The extent to which the person has complied with any terms of
parole, probation, restitution, or any other sanction lawfully
imposed against the person.
(E) Any evidence of rehabilitation, including character
references, submitted by the person, or by others on the person's
behalf.
(F) Employment history and current or former employer
recommendations. Additional consideration shall be given to employer
recommendations provided by a person who has received or has
indicated a desire to receive supportive or personal care services
from the applicant, including, but not limited to, those services,
specified in Section 12300.
(G) Circumstances surrounding the commission of the offense that
would demonstrate the unlikelihood of repetition.
(H) The granting by the Governor of a full and unconditional
pardon.
(f) If the department makes a determination to deny an application
to provide services pursuant to a request for a general exception,
the department shall notify the applicant of this determination by
either personal service or registered mail. The notice shall include
the following information:
(1) A statement of the department's reasons for the denial that
evaluates evidence of rehabilitation submitted by the applicant, if
any, and that specifically addresses any evidence submitted relating
to the factors in paragraph (3) of subdivision (e).
(2) A copy of the applicant's criminal offender record information
search response, even if the applicant already has received a copy
pursuant to Section 12301.6 or 12305.86. The department shall provide
this information in a manner that protects the confidentiality and
privacy of the criminal offender record information search response.
(A) The state or federal criminal history record shall not be
modified or altered from its form or content as provided by the
Department of Justice.
(B) The department shall retain a copy of each individual's
criminal offender record information search response until the date
that the convictions that are the subject of the exception are no
longer within the 10-year period specified in subdivision (b), and
shall record the date the copy of the response was provided to the
individual and the department.
(C) The criminal offender record information search response shall
not be made available by the department to any individual other than
the provider applicant.
(g) (1) Upon written notification that the department has
determined that a request for exception shall be denied, the
applicant may request an administrative hearing by submitting a
written request to the department within 15 business days of receipt
of the written notification. Upon receipt of a written request, the
department shall hold an administrative hearing consistent with the
procedures specified in Section 100171 of the Health and Safety Code,
except where those procedures are inconsistent with this section.
(2) A hearing under this subdivision shall be conducted by a
hearing officer or administrative law judge designated by the
director. A written decision shall be sent by certified mail to the
applicant.
(h) The department shall revise the provider enrollment form
developed pursuant to Section 12305.81 to include both of the
following:
(1) The text of subdivision (c) of Section 290 of the Penal Code,
subdivision (c) of Section 667.5 of the Penal Code, subdivision (c)
of Section 1192.7 of the Penal Code, and paragraph (2) of
subdivisions (c) and (g) of Section 10980 of this code.
(2) A statement that the provider understands that if he or she
has been convicted of, or incarcerated following conviction for, any
of the crimes specified in the provisions identified in paragraph (b)
in the last 10 years, and has not received a certificate of
rehabilitation or had the information or accusation dismissed, as
provided in subdivision (c), he or she shall only be authorized to
receive payment for providing in-home supportive services under an
individual waiver or general exception as described in this section,
and upon meeting all other applicable criteria for enrollment as a
provider in the program.
(i) (1) Notwithstanding 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),
the department may implement and administer this section through
all-county letters or similar instructions from the department until
regulations are adopted. The department shall adopt emergency
regulations implementing these provisions no later than July 1, 2011.
The department may readopt any emergency regulation authorized by
this section that is the same as or substantially equivalent to an
emergency regulation previously adopted under this section.
(2) The initial adoption of emergency regulations pursuant to this
section and one readoption of emergency regulations shall be deemed
an emergency and necessary for the immediate preservation of the
public peace, health, safety, or general welfare. Initial emergency
regulations and the one readoption of emergency regulations
authorized by this section shall be exempt from review by the Office
of Administrative Law. The initial emergency regulations and the one
readoption of emergency regulations authorized by this section shall
be submitted to the Office of Administrative Law for filing with the
Secretary of State and each shall remain in effect for no more than
180 days, by which time final regulations may be adopted.
(j) In developing the individual waiver form and all-county
letters or information notices or similar instructions, the
department shall consult with stakeholders, including, but not
limited to, representatives of the county welfare departments, and
representatives of consumers and providers. The consultation shall
include at least one in-person meeting prior to the finalization of
the individual waiver form and all-county letters or information
notices or similar instructions.
SEC. 328. Section 14043.1 of the Welfare and Institutions Code is
amended to read:
14043.1. As used in this article:
(a) "Abuse" means either of the following:
(1) Practices that are inconsistent with sound fiscal or business
practices and result in unnecessary cost to the federal Medicaid and
Medicare programs, the Medi-Cal program, another state's Medicaid
program, or other health care programs operated, or financed in whole
or in part, by the federal government or a state or local agency in
this state or another state.
(2) Practices that are inconsistent with sound medical practices
and result in reimbursement by the federal Medicaid and Medicare
programs, the Medi-Cal program or other health care programs
operated, or financed in whole or in part, by the federal government
or a state or local agency in this state or another state, for
services that are unnecessary or for substandard items or services
that fail to meet professionally recognized standards for health
care.
(b) "Applicant" means an individual, partnership, group,
association, corporation, institution, or entity, and the officers,
directors, owners, managing employees, or agents thereof, that apply
to the department for enrollment as a provider in the Medi-Cal
program.
(c) "Application or application package" means a completed and
signed application form, signed under penalty of perjury or notarized
pursuant to Section 14043.25, a disclosure statement, a provider
agreement, and all attachments or changes in the form, statement, or
agreement.
(d) "Appropriate volume of business" means a volume that is
consistent with the information provided in the application and any
supplemental information provided by the applicant or provider, and
is of a quality and type that would reasonably be expected based upon
the size and type of business operated by the applicant or provider.
(e) "Business address" means the location where an applicant or
provider provides services, goods, supplies, or merchandise, directly
or indirectly, to a Medi-Cal beneficiary. A post office box or
commercial box is not a business address. The business address for
the location of a vehicle or vessel owned and operated by an
applicant or provider enrolled in the Medi-Cal program and used to
provide services, goods, supplies, or merchandise, directly or
indirectly, to a Medi-Cal beneficiary shall either be the business
address location listed on the provider's application as the location
where similar services, goods, supplies, or merchandise would be
provided or the applicant's or provider's pay to address.
(f) "Convicted" means any of the following:
(1) A judgment of conviction has been entered against an
individual or entity by a federal, state, or local court, regardless
of whether there is a posttrial motion, an appeal pending, or the
judgment of conviction or other record relating to the criminal
conduct has been expunged or otherwise removed.
(2) A federal, state, or local court has made a finding of guilt
against an individual or entity.
(3) A federal, state, or local court has accepted a plea of guilty
or nolo contendere by an individual or entity.
(4) An individual or entity has entered into participation in a
first offender, deferred adjudication, or other program or
arrangement where judgment of conviction has been withheld.
(g) "Debt due and owing" means 60 days have passed since a notice
or demand for repayment of an overpayment or another amount resulting
from an audit or examination, for a penalty assessment, or for
another amount due to the department was sent to the provider,
regardless of whether the provider is an institutional provider or a
noninstitutional provider and regardless of whether an appeal is
pending.
(h) "Enrolled or enrollment in the Medi-Cal program" means
authorized under any processes by the department or its agents or
contractors to receive, directly or indirectly, reimbursement for the
provision of services, goods, supplies, or merchandise to a Medi-Cal
beneficiary.
(i) "Fraud" means an intentional deception or misrepresentation
made by a person with the knowledge that the deception could result
in some unauthorized benefit to himself or herself or some other
person. It includes any act that constitutes fraud under applicable
federal or state law.
(j) "Location" means a street, city, or rural route address or a
site or place within a street, city, or rural route address, and the
city, county, state, and nine-digit ZIP Code.
(k) "Not currently enrolled at the location for which the
application is submitted" means either of the following:
(1) The provider is changing location and moving to a different
location than that for which the provider was issued a provider
number.
(2) The provider is adding a business address.
(l) (1) "Individual dentist practice" means a dentist licensed by
the Dental Board of California enrolled or enrolling in Medi-Cal as
an individual provider who is a sole proprietor of his or her
practice or is a corporation owned solely by the individual dentist
and the only dentist practitioner is the owner. An individual dentist
practice may include nondentist allied dental health professionals
employed and supervised by the dentist.
(2) "Individual physician practice" means a physician and surgeon
licensed by the Medical Board of California or the Osteopathic
Medical Board of California enrolled or enrolling in Medi-Cal as an
individual provider who is sole proprietor of his or her practice or
is a corporation owned solely by the individual physician and the
only physician practitioner is the owner. An individual physician
practice may include nonphysician medical practitioners employed and
supervised by the physician.
(m) "Preenrollment period" or "preenrollment" includes the period
of time during which an application package for enrollment, continued
enrollment, or for the addition of or change in a location is
pending.
(n) "Professionally recognized standards of health care" means
statewide or national standards of care, whether in writing or not,
that professional peers of the individual or entity whose provision
of care is an issue recognize as applying to those peers practicing
or providing care within a state. When the United States Department
of Health and Human Services has declared a treatment modality not to
be safe and effective, practitioners that employ that treatment
modality shall be deemed not to meet professionally recognized
standards of health care. This subdivision shall not be construed to
mean that all other treatments meet professionally recognized
standards of care.
(o) "Provider" means an individual, partnership, group,
association, corporation, institution, or entity, and the officers,
directors, owners, managing employees, or agents of a partnership,
group association, corporation, institution, or entity, that provides
services, goods, supplies, or merchandise, directly or indirectly,
to a Medi-Cal beneficiary and that has been enrolled in the Medi-Cal
program.
(p) "Unnecessary or substandard items or services" means those
that are either of the following:
(1) Substantially in excess of the provider's usual charges or
costs for the items or services.
(2) Furnished, or caused to be furnished, to patients, whether or
not covered by Medicare, Medicaid, or any of the state health care
programs to which the definitions of applicant and provider apply,
and which are substantially in excess of the patient's needs, or of a
quality that fails to meet professionally recognized standards of
health care. The department's determination that the items or
services furnished were excessive or of unacceptable quality shall be
made on the basis of information, including sanction reports, from
the following sources:
(A) The professional review organization for the area served by
the individual or entity.
(B) State or local licensing or certification authorities.
(C) Fiscal agents or contractors or private insurance companies.
(D) State or local professional societies.
(E) Any other sources deemed appropriate by the department.
SEC. 329. Section 14132.275 of the Welfare and Institutions Code
is amended to read:
14132.275. (a) The department shall seek federal approval to
establish pilot projects described in this section pursuant to a
Medicare or a Medicaid demonstration project or waiver, or a
combination thereof. Under a
Medicare demonstration, the department may operate the Medicare
component of a pilot project as a delegated Medicare benefit
administrator, and may enter into financing arrangements with the
federal Centers for Medicare and Medicaid Services to share in any
Medicare program savings generated by the operation of any pilot
project.
(b) After federal approval is obtained, the department shall
establish pilot projects that enable dual eligibles to receive a
continuum of services, and that maximize the coordination of benefits
between the Medi-Cal and Medicare programs and access to the
continuum of services needed. The purpose of the pilot projects is to
develop effective health care models that integrate services
authorized under the federal Medicaid Program (Title XIX of the
federal Social Security Act (42 U.S.C. Sec. 1396 et seq.)) and the
federal Medicare Program (Title XVIII of the federal Social Security
Act (42 U.S.C. Sec. 1395 et seq.)). These pilot projects may also
include additional services as approved through a demonstration
project or waiver, or a combination thereof.
(c) Not sooner than March 1, 2011, the department shall identify
health care models that may be included in a pilot project, shall
develop a timeline and process for selecting, financing, monitoring,
and evaluating these pilot projects, and shall provide this timeline
and process to the appropriate fiscal and policy committees of the
Legislature. The department may implement these pilot projects in
phases.
(d) Goals for the pilot projects shall include all of the
following:
(1) Coordinating Medi-Cal benefits, Medicare benefits, or both,
across health care settings and improving continuity of acute care,
long-term care, and home- and community-based services.
(2) Coordinating access to acute and long-term care services for
dual eligibles.
(3) Maximizing the ability of dual eligibles to remain in their
homes and communities with appropriate services and supports in lieu
of institutional care.
(4) Increasing the availability of and access to home- and
community-based alternatives.
(e) Pilot projects shall be established in up to four counties,
and shall include at least one county that provides Medi-Cal services
via a two-plan model pursuant to Article 2.7 (commencing with
Section 14087.3) and at least one county that provides Medi-Cal
services under a county organized health system pursuant to Article
2.8 (commencing with Section 14087.5). In determining the counties in
which to establish a pilot project, the director shall consider the
following:
(1) Local support for integrating medical care, long-term care,
and home- and community-based services networks.
(2) A local stakeholder process that includes health plans,
providers, community programs, consumers, and other interested
stakeholders in the development, implementation, and continued
operation of the pilot project.
(f) The director may enter into exclusive or nonexclusive
contracts on a bid or negotiated basis and may amend existing managed
care contracts to provide or arrange for services provided under
this section. Contracts entered into or amended pursuant to this
section shall be exempt from the provisions of Chapter 2 (commencing
with Section 10290) of Part 2 of Division 2 of the Public Contract
Code and Chapter 6 (commencing with Section 14825) of Part 5.5 of
Division 3 of Title 2 of the Government Code.
(g) Services under Section 14132.95 or 14132.952, or Article 7
(commencing with Section 12300) of Chapter 3, that are provided under
the pilot projects established by this section shall be provided
through direct hiring of personnel, contract, or establishment of a
public authority or nonprofit consortium, in accordance with, and
subject to, Section 12302 or 12301.6, as applicable.
(h) Notwithstanding any other provision of state law, the
department may require that dual eligibles be assigned as mandatory
enrollees into managed care plans established or expanded as part of
a pilot project established under this section. Mandatory enrollment
in managed care for dual eligibles shall be applicable to the
beneficiary's Medi-Cal benefits only. Dual eligibles shall have the
option to enroll in a Medicare Advantage special needs plan (SNP)
offered by the managed care plan established or expanded as part of a
pilot project established pursuant to subdivision (e). To the extent
that mandatory enrollment is required, any requirement of the
department and the health plans, and any requirement of continuity of
care protections for enrollees, as specified in Section 14182, shall
be applicable to this section. Dual eligibles shall have the option
to forgo receiving Medicare benefits under a pilot project. Nothing
in this section shall be interpreted to reduce benefits otherwise
available under the Medi-Cal program or the Medicare Program.
(i) For purposes of this section, a "dual eligible" means an
individual who is simultaneously eligible for full scope benefits
under Medi-Cal and the federal Medicare Program.
(j) Persons meeting requirements for the Program of All-Inclusive
Care for the Elderly (PACE) pursuant to Chapter 8.75 (commencing with
Section 14590), may select a PACE plan if one is available in that
county.
(k) Notwithstanding Section 10231.5 of the Government Code, the
department shall conduct an evaluation to assess outcomes and the
experience of dual eligibles in these pilot projects and shall
provide a report to the Legislature after the first full year of
pilot operation, and annually thereafter. A report submitted to the
Legislature pursuant to this subdivision shall be submitted in
compliance with Section 9795 of the Government Code. The department
shall consult with stakeholders regarding the scope and structure of
the evaluation.
(l) This section shall be implemented only if and to the extent
that federal financial participation or funding is available to
establish these pilot projects.
(m) Notwithstanding Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code, the
department may implement, interpret, or make specific this section
and any applicable federal waivers and state plan amendments by means
of all-county letters, plan letters, plan or provider bulletins, or
similar instructions, without taking regulatory action. Prior to
issuing any letter or similar instrument authorized pursuant to this
section, the department shall notify and consult with stakeholders,
including advocates, providers, and beneficiaries. The department
shall notify the appropriate policy and fiscal committees of the
Legislature of its intent to issue instructions under this section at
least five days in advance of the issuance.
SEC. 330. Section 14165.50 of the Welfare and Institutions Code is
amended to read:
14165.50. (a) To facilitate the financial viability of a new
private nonprofit hospital that will serve the population of South
Los Angeles that was formerly served by the Los Angeles County Martin
Luther King, Jr.-Harbor Hospital, Medi-Cal funding shall, at a
minimum, be made available, as specified in this section, or pursuant
to mechanisms that provide equivalent funding under successor or
modified Medi-Cal payment systems.
(b) (1) (A) Payment for Medi-Cal inpatient hospital services
provided by the new hospital, including, but not limited to,
supplemental payments, may be negotiated under the selective provider
contracting program, as set forth in Article 2.6 (commencing with
Section 14081). The negotiations for per diem payments shall include
consideration of the new hospital's projected Medi-Cal costs for
providing the services and level of Medi-Cal reimbursement thereof,
exclusive of any supplemental payments, necessary for the financial
viability of the new hospital, and all other factors allowable under
Section 14083.
(B) Notwithstanding any other provision of law, Medi-Cal
supplemental payment for debt service costs shall be made to the new
hospital pursuant to Section 14085.5 with respect to capital projects
located at the site of the new hospital that previously were
determined eligible under Section 14085.5 based on the debt service
costs incurred by the County of Los Angeles, and if applicable, the
new hospital. Alternatively, the rate required to be paid to the new
hospital pursuant to subparagraph (A) may be increased to take into
account the amount of the supplemental payments for debt service
during the time the payments would be due. Nothing in this
subparagraph shall be construed to increase the department's
obligations set forth in paragraph (2) of subdivision (g) of Section
14085.5.
(2) Notwithstanding any other provision of law, in the event the
new hospital does not enter into a contract under the selective
provider contracting program as described in paragraph (1), all of
the following shall apply:
(A) Health facility planning area 935, or a successor health
facility planning area, that includes the area in which the new
hospital will operate, shall be opened to enable the cost-based
reimbursement methodology for Medi-Cal inpatient hospital services
set forth in the Medi-Cal state plan to apply with respect to
services provided by the new hospital.
(B) The department shall seek federal approval, as necessary, to
enable the new hospital to receive Medi-Cal supplemental payments in
addition to the cost-based reimbursement provided for in subparagraph
(A). The nonfederal share of the supplemental payments may be funded
with public funds that are transferred to the state from the County
of Los Angeles, at the county's election, pursuant to Section 14164.
(C) (i) Any public funds transferred to the state as described in
subparagraph (B) for supplemental payments to the new hospital with
respect to a fiscal period shall be expended solely for the
nonfederal share of the supplemental payments, except for an amount
that may be retained by the state for the benefit of the Medi-Cal
program negotiated between the department and the County of Los
Angeles, limited as follows:
(I) For each fiscal year before the 2017-18 fiscal year, the
retained amount shall not be more than the amount of the nonfederal
share of the reimbursement, exclusive of any supplemental payments,
for the fiscal year to be paid pursuant to the cost-based
reimbursement methodology described in subparagraph (A) that exceeds
77 percent of the new hospital's projected Medi-Cal costs.
(II) For the 2017-18 fiscal year and each subsequent fiscal year,
the retained amount shall not be more than the amount of the
nonfederal share of the reimbursement, exclusive of any supplemental
payments, for the fiscal year to be paid pursuant to the cost-based
reimbursement methodology described in subparagraph (A) that exceeds
72 percent of the new hospital's projected Medi-Cal costs.
(ii) For purposes of this subparagraph, the new hospital's
projected Medi-Cal costs shall be based on the cost finding
principles applied under subdivision (b) of Section 14166.4, and are
not subject to the reimbursement limitations set forth in Article 7.5
(commencing with Section 51536) of Chapter 3 of Subdivision 1 of
Division 3 of Title 22 of the California Code of Regulations. The new
hospital's projected Medi-Cal costs may take into account audit
adjustments to allowable costs for prior periods.
(D) Reimbursement under this paragraph shall be available to the
new hospital only if the necessary federal approval described in
subparagraph (B) is obtained. If the necessary federal approval is
not obtained, the new hospital shall be reimbursed for Medi-Cal
inpatient hospital services as set forth in paragraph (1) and the per
diem payments shall reimburse the hospital at no less than 72
percent of the hospital's projected Medi-Cal costs for providing the
services, exclusive of any supplemental payments and the payments
described in subparagraph (B) of paragraph (1).
(3) Notwithstanding any other provision of law, and only to the
extent federal approval is obtained, the new hospital shall be
reimbursed for Medi-Cal outpatient services under the cost-based
reimbursement methodology established in Section 14105.24. The
department shall seek federal approval, as necessary, to expand the
methodology to include outpatient services provided to Medi-Cal
beneficiaries by the new hospital.
(c) Nothing in this section shall be construed to preclude the new
hospital from receiving any other payment for which it is eligible
in addition to the payments provided for by this section.
(d) Notwithstanding the rulemaking provisions of Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code, the department may implement this section by
means of all-facility letters, all-county letters, or similar
instructions, without taking further regulatory action. Nothing in
this section shall be construed to preclude the department from
adopting regulations.
(e) (1) Except as otherwise provided herein, this section shall be
implemented only if, and to the extent that, federal financial
participation is available and this section does not jeopardize the
federal financial participation available for any other state
program.
(2) This section shall be implemented only if, and to the extent
that, necessary approval from the federal Centers for Medicare and
Medicaid Services is obtained.
(f) For purposes of this article, "new hospital" means a health
facility that is certified under Title XVIII and Title XIX of the
federal Social Security Act, and is licensed pursuant to Chapter 2
(commencing with Section 1250) of Division 2 of the Health and Safety
Code to provide acute inpatient hospital services, and includes all
components of the facility, with an inpatient hospital service
location on the campus of the former Los Angeles County Martin Luther
King, Jr.-Harbor Hospital.
SEC. 331. Section 14166.20 of the Welfare and Institutions Code is
amended to read:
14166.20. (a) With respect to each project year, the total amount
of stabilization funding shall be the sum of the following:
(1) (A) Federal Medicaid funds available in the Health Care
Support Fund, established pursuant to Section 14166.21, reduced by
the amount necessary to meet the baseline funding amount, or the
adjusted baseline funding amount, as appropriate, for project years
after the 2005-06 project year for each designated public hospital,
project year private DSH hospitals in the aggregate, and
nondesignated public hospitals in the aggregate as determined in
Sections 14166.5, 14166.13, and 14166.18, respectively, taking into
account all other payments to each hospital under this article. This
amount shall be not less than zero.
(B) For purposes of subparagraph (A), federal Medicaid funds
available in the Health Care Support Fund shall not include health
care coverage initiative amounts identified under paragraph (2) of
subdivision (e) of Section 14166.9.
(C) The federal financial participation amount arising from the
certified public expenditures that has been paid to designated public
hospitals, or the governmental entities with which they are
affiliated, pursuant to subdivision (g) of Section 14166.221, shall
be disregarded for purposes of this section.
(2) The state general funds that were made available due to the
receipt of federal funding for previously state-funded programs
through the safety net care pool and any federal Medicaid hospital
reimbursements resulting from these expenditures, unless otherwise
recognized under paragraph (1), to the extent those funds are in
excess of the amount necessary to meet the baseline funding amount,
or the adjusted baseline funding amount, as appropriate, for project
years after the 2005-06 project year for each designated public
hospital, for project year private DSH hospitals in the aggregate,
and for nondesignated public hospitals in the aggregate, as
determined in Sections 14166.5, 14166.13, and 14166.18, respectively.
(3) To the extent not included in paragraph (1) or (2), the amount
of the increase in state General Fund expenditures for Medi-Cal
inpatient hospital services for the project year for project year
private DSH hospitals and nondesignated public hospitals, including
amounts expended in accordance with paragraph (1) of subdivision (c)
of Section 14166.23, that exceeds the expenditure amount for the same
purpose and the same hospitals necessary to provide the aggregate
baseline funding amounts applicable to the project determined
pursuant to Sections 14166.13 and 14166.18, and any direct grants to
designated public hospitals for services under the demonstration
project.
(4) To the extent not included in paragraph (2), federal Medicaid
funds received by the state as a result of the General Fund
expenditures described in paragraph (3).
(5) The federal Medicaid funds received by the state as a result
of federal financial participation with respect to Medi-Cal payments
for inpatient hospital services made to project year private DSH
hospitals and to nondesignated public hospitals for services rendered
during the project year, the state share of which was derived from
intergovernmental transfers or certified public expenditures of any
public entity that does not own or operate a public hospital.
(6) Federal safety net care pool funds claimed and received for
inpatient hospital services rendered under the health care coverage
initiative identified under paragraph (3) of subdivision (e) of
Section 14166.9.
(b) With respect to the 2005-06, 2006-07, and subsequent project
years, the stabilization funding determined under subdivision (a)
shall be allocated as follows:
(1) Eight million dollars ($8,000,000) shall be paid to San Mateo
Medical Center. All or a portion of this amount may be paid as
disproportionate share hospital payments in addition to the hospital'
s allocation that would otherwise be determined under Section
14166.6. The amount provided for in this paragraph shall be
disregarded in the application of the limitations described in
paragraph (3) of subdivision (a) of Section 14166.6, and in paragraph
(1) of subdivision (a) of Section 14166.7.
(2) (A) Ninety-six million two hundred twenty-eight thousand
dollars ($96,228,000) shall be allocated to designated public
hospitals to be paid in accordance with Section 14166.75.
(B) Forty-two million two hundred twenty-eight thousand dollars
($42,228,000) shall be allocated to private DSH hospitals to be paid
in accordance with Section 14166.14.
(C) Five hundred forty-four thousand dollars ($544,000) shall be
allocated to nondesignated public hospitals to be paid in accordance
with Section 14166.17.
(D) In the event that stabilization funding is less than one
hundred forty-seven million dollars ($147,000,000), the amounts
allocated to designated public hospitals, private DSH hospitals, and
nondesignated public hospitals under this paragraph shall be reduced
proportionately.
(3) (A) An amount equal to the lesser of 10 percent of the total
amount determined under subdivision (a) or twenty-three million five
hundred thousand dollars ($23,500,000), but at least fifteen million
three hundred thousand dollars ($15,300,000), shall be made available
for additional payments to distressed hospitals that participate in
the selective provider contracting program under Article 2.6
(commencing with Section 14081), including designated public
hospitals, in amounts to be determined by the California Medical
Assistance Commission. The additional payments to designated public
hospitals shall be negotiated by the California Medical Assistance
Commission, but shall be paid by the department in the form of a
direct grant rather than as Medi-Cal payments.
(B) Notwithstanding subparagraph (A) and solely for the 2006-07
fiscal year, if the amount that otherwise would be made available for
additional payments to distressed hospitals under subparagraph (A)
is equal to or greater than eighteen million three hundred thousand
dollars ($18,300,000), that amount shall be reduced by eighteen
million three hundred thousand dollars ($18,300,000) and the state's
obligation to make these payments shall be reduced by this amount. In
the event the amount that otherwise would be made available under
subparagraph (A) is less than eighteen million three hundred thousand
dollars ($18,300,000), but greater than or equal to the minimum
amount of fifteen million three hundred thousand dollars
($15,300,000), then the amount available under this paragraph shall
be zero and the state's obligation to make these payments shall be
zero.
(C) Notwithstanding subparagraph (A) and solely for the 2008-09
and 2009-10 fiscal years, the amount to be made available shall be
reduced by fifteen million three hundred thousand dollars
($15,300,000) in each of the two years. The funds generated from this
reduction shall be retained in the General Fund.
(4) An amount equal to 0.64 percent of the total amount determined
under subdivision (a), to nondesignated public hospitals to be paid
in accordance with Section 14166.19.
(5) The amount remaining after subtracting the amount determined
in paragraphs (1) and (2), subparagraph (A) of paragraph (3), and
paragraph (4), without taking into account subparagraphs (B) and (C)
of paragraph (3), shall be allocated as follows:
(A) Sixty percent to designated public hospitals to be paid in
accordance with Section 14166.75.
(B) Forty percent to project year private DSH hospitals to be paid
in accordance with Section 14166.14.
(c) By April 1 of the year following the project year for which
the payment is made, and after taking into account final amounts
otherwise paid or payable to hospitals under this article, the
director shall calculate in accordance with subdivision (a), allocate
in accordance with subdivision (b), and pay to hospitals in
accordance with Sections 14166.75, 14166.14, and 14166.19, as
applicable, the stabilization funding.
(d) For purposes of determining amounts paid or payable to
hospitals under subdivision (c), the department shall apply the
following:
(1) In determining amounts paid or payable to designated public
hospitals that are based on allowable costs incurred by the hospital,
or the governmental entity with which it is affiliated, the
following shall apply:
(A) If the final payment amount is based on the hospital's
Medicare cost report, the department shall rely on the cost report
filed with the Medicare fiscal intermediary for the project year for
which the calculation is made, reduced by a percentage that
represents the average percentage change from total reported costs to
final costs for the three most recent cost reporting periods for
which final determinations have been made, taking into account all
administrative and judicial appeals. Protested amounts shall not be
considered in determining the average percentage change unless the
same or similar costs are included in the project year cost report.
(B) If the final payment amount is based on costs not included in
subparagraph (A), the reported costs as of the date the determination
is made under subdivision (c), shall be reduced by 10 percent.
(C) In addition to adjustments required in subparagraphs (A) and
(B), the department shall adjust amounts paid or payable to
designated public hospitals by any applicable deferrals or
disallowances identified by the federal Centers for Medicare and
Medicaid Services as of the date the determination is made under
subdivision (c) not otherwise reflected in subparagraphs (A) and (B).
(2) Amounts paid or payable to project year private DSH hospitals
and nondesignated public hospitals shall be determined by the most
recently available Medi-Cal paid claims data increased by a
percentage to reflect an estimate of amounts remaining unpaid.
(e) The department shall consult with hospital representatives
regarding the appropriate calculation of stabilization funding before
stabilization funds are paid to hospitals. The calculation may be
comprised of multiple steps involving interim computations and
assumptions as may be necessary to determine the total amount of
stabilization funding under subdivision (a) and the allocations under
subdivision (b). No later than 30 days after this consultation, the
department shall establish a final determination of stabilization
funding that shall not be modified for any reason other than
mathematical errors or mathematical omissions on the part of the
department.
(f) The department shall distribute 75 percent of the estimated
stabilization funding on an interim basis throughout the project
year.
(g) The allocation and payment of stabilization funding shall not
reduce the amount otherwise paid or payable to a hospital under this
article or any other provision of law, unless the reduction is
required by the demonstration project's Special Terms and Conditions
or by federal law.
(h) It is the intent of the Legislature that the amendments made
to Section 14166.12 and to this section by the act that added this
subdivision in the 2007-08 Regular Session shall not be construed to
amend or otherwise alter the ongoing structure of the department's
Medicaid Demonstration Project and Waiver approved by the federal
Centers for Medicare and Medicaid Services to begin on September 1,
2005.
SEC. 332. Section 14167.352 of the Welfare and Institutions Code
is amended to read:
14167.352. (a) Notwithstanding any other provision of this
article or Article 5.21 (commencing with Section 14167.1) requiring
federal approvals, the department may impose and collect the quality
assurance fee and may make payments under this article and Article
5.21 (commencing with Section 14167.1), including increased
capitation payments, based upon receiving a letter from the federal
Centers for Medicare and Medicaid Services or the United States
Department of Health and Human Services that indicates likely federal
approval, but only if and to the extent that the letter is
sufficient as set forth in subdivision (b).
(b) In order for the letter to be sufficient under this section,
the director shall find that the letter meets all of the following
requirements:
(1) The letter is in writing and signed by an official of the
federal Centers for Medicare and Medicaid Services or an official of
the United States Department of Health and Human Services.
(2) The director, after consultation with the hospital community,
has determined, in the exercise of his or her sole discretion, that
the letter provides a sufficient level of assurance to justify
advanced implementation of the fee and payment provisions.
(c) Nothing in this section shall be construed as modifying the
requirement under Section 14167.14 that payments shall be made only
to the extent a sufficient amount of funds collected as the quality
assurance fee are available to cover the nonfederal share of those
payments.
(d) Upon notice from the federal government that final federal
approval for the fee model under this article or for any payment
method under Article 5.21 (commencing with Section 14167.1) has been
denied, any fees collected pursuant to this section shall be refunded
and any payments made pursuant to this article or Article 5.21
(commencing with Section 14167.1) shall be recouped, including, but
not limited to, supplemental payments, increased capitation payments,
payments to hospitals by health care plans resulting from the
increased capitation payments, grants, increased payments, and
payments for the health care coverage of children. To the extent fees
were paid by a hospital that also received payments under this
section, the payments may first be recouped from fees that would
otherwise be refunded to the hospital prior to the use of any other
recoupment method allowed under law.
(e) Any payment made pursuant to this section shall be a
conditional payment until all final federal approvals necessary to
fully implement this article and Article 5.21 (commencing with
Section 14167.1) have been received.
(f) The director shall have broad authority under this section to
collect the quality assurance fee for an interim period pending
receipt of all necessary federal approvals. This authority shall
include discretion to determine both of the following:
(1) Whether the quality assurance fee should be collected on a
full or pro rata basis during the interim period.
(2) The dates on which payments of the quality assurance fee are
due.
(g) The department may draw against the Hospital Quality Assurance
Revenue Fund for all administrative costs associated with
implementation under this article or Article 5.21 (commencing with
Section 14167.1).
(h) This section shall be implemented only to the extent federal
financial participation is not jeopardized by implementation prior to
the receipt of all necessary final federal approvals.
SEC. 333. Section 14167.354 of the Welfare and Institutions Code
is amended to read:
14167.354. (a) (1) Upon receipt of a letter that indicates
likely federal approval that the director determines is sufficient
for implementation under Section 14167.352, or upon the receipt of
all final federal approvals necessary for the implementation of this
article and Article 5.21 (commencing with Section 14167.1), the
following shall occur:
(A) To the maximum extent possible, and consistent with the
availability of funds in the Hospital Quality Assurance Revenue Fund,
the department shall make all of the payments under Sections
14167.2, 14167.3, 14167.4, 14167.6, and 14167.11, and subdivision (d)
of Section 14167.5, including, but not limited to, supplemental
payments and increased capitation payments, prior to January 1, 2011.
(B) The department shall make supplemental payments to hospitals
under Article 5.21 (commencing with Section 14167.1) consistent with
the timeframe described in Section 14167.9 or a modified timeline
developed pursuant to Section 14167.353.
(2) (A) In determining the amount available for the nonfederal
share of payments in a particular payment cycle, the department shall
deduct no more than the following amounts to account for the
priority payments to the state under paragraph (2) of subdivision (c)
of Section 14167.35:
(i) Eighty million dollars ($80,000,000) for children's health
coverage for each subject fiscal quarter for which some or all
supplemental payments to hospitals have already been made.
(ii) Eighty million dollars ($80,000,000) for children's health
coverage for each subject fiscal quarter for which supplemental
payments are being calculated to be paid to hospitals, subject to the
availability of funding, in the current payment cycle.
(B) Notwithstanding any other provision of law, in determining the
amount available for the nonfederal share of payments in a payment
cycle described in subparagraph (A), the department shall not
consider any payments for children's health care coverage previously
made under paragraph (2) of subdivision (c) of Section 14167.35.
(3) (A) In determining the amount available in a particular
payment cycle, the department shall deduct no more than the following
amounts whether made directly to the designated public hospitals or
retained by the state:
(i) Seventy-three million seven hundred fifty thousand dollars
($73,750,000) for each subject fiscal quarter for which some or all
supplemental payments to hospitals have already been made.
(ii) Seventy-three million seven hundred fifty thousand dollars
($73,750,000) for each subject fiscal quarter for which supplemental
payments are being calculated to be paid to hospitals, subject to the
availability of funding, in the current payment cycle.
(B) Notwithstanding any other provision of law, in determining the
amount available for a payment cycle described in subparagraph (A),
the department shall not consider any payments of direct grants
previously made to the designated public hospitals or transferred to
the state from the Hospital Quality Assurance Revenue Fund under
Section 14167.5 to account for the direct grants described in Section
14167.5.
(b) Notwithstanding any other provision of this article or Article
5.21 (commencing with Section 14167.1), if the director determines,
on or after December 15, 2010, that there are insufficient funds
available in the Hospital Quality Assurance Revenue Fund to make all
scheduled payments under Article 5.21 (commencing with Section
14167.1) by the end of the 2010 calendar year, he or she shall
consult with representatives of the hospital community to develop an
acceptable plan for making additional payments to providers in the
first two quarters of 2011 to maximize the use of delinquent fee
payments or other deposits or interest projected to become available
in the fund after December 15, 2010, but before June 30, 2011.
(c) Nothing in this section shall require the department to
continue to make payments under Article 5.21 (commencing with Section
14167.1) if, after the consultation required under subdivision (b),
the director determines in the exercise of his or her sole discretion
that a workable plan for the continued payments cannot be developed.
(d) Subdivisions (b) and (c) shall be implemented only if and to
the extent federal financial participation is available for continued
supplemental payments to providers.
(e) If any payment or payments made pursuant to this section are
found to be inconsistent with federal law, the department shall
recoup the payments by means of withholding or any other available
remedy.
(f) Nothing in this section shall be read as affecting the
department's ongoing authority to continue, after December 31, 2010,
to collect quality assurance fees imposed on or before December 31,
2010.
SEC. 334. Section 14182 of the Welfare and Institutions Code is
amended to read:
14182. (a) (1) In furtherance of the waiver or demonstration
project developed pursuant to Section 14180, the department may
require seniors and persons with disabilities who do not have other
health coverage to be assigned as mandatory enrollees into new or
existing managed care health plans. To the extent that enrollment is
required by the department, an enrollee's access to fee-for-service
Medi-Cal shall not be terminated until the enrollee has been assigned
to a managed care health plan.
(2) For purposes of this section:
(A) "Other health coverage" means health coverage providing the
same full or partial benefits as the Medi-Cal program, health
coverage under another state or federal medical care program, or
health coverage under contractual or legal entitlement, including,
but not limited to, a private group or indemnification insurance
program.
(B) "Managed care health plan" means an individual, organization,
or entity that enters into a contract with the department pursuant to
Article 2.7 (commencing with Section 14087.3), Article 2.81
(commencing with Section 14087.96), Article 2.91 (commencing with
Section 14089), or Chapter 8 (commencing with Section 14200).
(b) In exercising its authority pursuant to subdivision (a), the
department shall do all of the following:
(1) Assess and ensure the readiness of the managed care health
plans to address the unique needs of seniors or persons with
disabilities pursuant to the applicable readiness evaluation criteria
and requirements set forth in paragraphs (1) to (8), inclusive, of
subdivision (b) of Section 14087.48.
(2) Ensure the managed care health plans provide access to
providers that comply with applicable state and federal laws,
including, but not limited to, physical accessibility and the
provision of health plan information in alternative formats.
(3) Develop and implement an outreach and education program for
seniors and persons with disabilities, not currently enrolled in
Medi-Cal managed care, to inform them of their enrollment options and
rights under the demonstration project. Contingent upon available
private or public dollars other than moneys from the General Fund,
the department or its designated agent for enrollment and outreach
may partner or contract with community-based, nonprofit consumer or
health insurance assistance organizations with expertise and
experience in assisting seniors and persons with disabilities in
understanding their health care coverage options. Contracts entered
into or amended pursuant to this paragraph shall be exempt from
Chapter 2 (commencing with Section 10290) of Part 2 of Division 2 of
the Public Contract Code and any implementing regulations or policy
directives.
(4) At least three months prior to enrollment, inform
beneficiaries who are seniors or persons with disabilities, through a
notice written at no more than a sixth-grade reading level, about
the forthcoming changes to their delivery of care, including, at a
minimum, how their system of care will change, when the changes will
occur, and who they can contact for assistance with choosing a
delivery system or with problems they encounter. In developing this
notice, the department shall consult with consumer representatives
and other stakeholders.
(5) Implement an appropriate cultural awareness and sensitivity
training program regarding serving seniors and persons with
disabilities for managed care health plans and plan providers and
staff in the Medi-Cal Managed Care Division of the department.
(6) Establish a process for assigning enrollees into an organized
delivery system for beneficiaries who do not make an affirmative
selection of a managed care health plan. The department shall develop
this process in consultation with stakeholders and in a manner
consistent with the waiver or demonstration project developed
pursuant to Section 14180. The department shall base plan assignment
on an enrollee's existing or recent utilization of providers, to the
extent possible. If the department is unable to make an assignment
based on the enrollee's affirmative selection or utilization history,
the department shall base plan assignment on factors, including, but
not limited to, plan quality and the inclusion of local health care
safety net system providers in the plan's provider network.
(7) Review and approve the mechanism or algorithm that has been
developed by the managed care health plan, in consultation with their
stakeholders and consumers, to identify, within the earliest
possible timeframe, persons with higher risk and more complex health
care needs pursuant to paragraph (11) of subdivision (c).
(8) Provide managed care health plans with historical utilization
data for beneficiaries upon enrollment in a managed care health plan
so that the plans participating in the demonstration project are
better able to assist beneficiaries and prioritize assessment and
care planning.
(9) Develop and provide managed care health plans participating in
the demonstration project with a facility site review tool for use
in assessing the physical accessibility of providers, including
specialists and ancillary service providers that provide care to a
high volume of seniors and persons with disabilities, at a clinic or
provider site, to ensure that there are sufficient physically
accessible providers. Every managed care health plan participating in
the demonstration project shall make the results of the facility
site review tool publicly available on their Internet Web site and
shall regularly update the results to the department's satisfaction.
(10) Develop a process to enforce legal sanctions, including, but
not limited to, financial penalties, withholding of Medi-Cal
payments, enrollment termination, and contract termination, in order
to sanction any managed care health plan in the demonstration project
that consistently or repeatedly fails to meet performance standards
provided in statute or contract.
(11) Ensure that managed care health plans provide a mechanism for
enrollees to request a specialist or clinic as a primary care
provider. A specialist or clinic may serve as a primary care provider
if the specialist or clinic agrees to serve in a primary care
provider role and is qualified to treat the required range of
conditions of the enrollee.
(12) Ensure that managed care health plans participating in the
demonstration project are able to provide communication access to
seniors and persons with disabilities in alternative formats or
through other methods that ensure communication, including assistive
listening systems, sign language interpreters, captioning, pad and
pencil, plain language or written translations and oral interpreters,
including for those who are limited English-proficient, or
non-English speaking, and that all managed care health plans are in
compliance with applicable cultural and linguistic requirements.
(13) Ensure that managed care health plans participating in the
demonstration project provide access to out-of-network providers for
new individual members enrolled under this section who have an
ongoing relationship with a provider if the provider will accept the
health plan's rate for the service offered, or the applicable
Medi-Cal fee-for-service rate, whichever is higher, and the health
plan determines that the provider meets applicable professional
standards and has no disqualifying quality of care issues.
(14) Ensure that managed care health plans participating in the
demonstration project comply with continuity of care requirements in
Section 1373.96 of the Health and Safety Code.
(15) Ensure that the medical exemption criteria applied in
counties operating under Chapter 4.1 (commencing with Section 53800)
or Chapter 4.5 (commencing with Section 53900) of Subdivision 1 of
Division 3 of Title 22 of the California Code of Regulations are
applied to seniors and persons with disabilities served under this
section.
(16) Ensure that managed care health plans participating in the
demonstration project take into account the behavioral health needs
of enrollees and include behavioral health services as part of the
enrollee's care management plan when appropriate.
(17) Develop performance measures that are required as part of the
contract to provide quality indicators for the Medi-Cal population
enrolled in a managed care health plan and for the subset of
enrollees who are seniors and persons with disabilities. These
performance measures may include measures from the Healthcare
Effectiveness Data and Information Set (HEDIS) or measures indicative
of performance in serving special needs populations, such as the
National Committee for Quality Assurance (NCQA) Structure and Process
measures, or both.
(18) Conduct medical audit reviews of participating managed care
health plans that include elements specifically related to the care
of seniors and persons with disabilities. These medical audits shall
include, but not be limited to, evaluation of the delivery model's
policies and procedures, performance in utilization management,
continuity of care, availability and accessibility, member rights,
and quality management.
(19) Conduct financial audit reviews to ensure that a financial
statement audit is performed on managed care health plans annually
pursuant to the Generally Accepted Auditing Standards, and conduct
other risk-based audits for the purpose of detecting fraud and
irregular transactions.
(c) Prior to exercising its authority under this section and
Section 14180, the department shall ensure that each managed care
health plan participating in the demonstration project is able to do
all of the following:
(1) Comply with the applicable readiness evaluation criteria and
requirements set forth in paragraphs (1) to (8), inclusive, of
subdivision (b) of Section 14087.48.
(2) Ensure and monitor an appropriate provider network, including
primary care physicians, specialists, professional, allied, and
medical supportive personnel, and an adequate number of accessible
facilities within each service area. Managed care health plans shall
maintain an updated, accurate, and accessible listing of a provider's
ability to accept new patients and shall make it available to
enrollees, at a minimum, by phone, written material, or Internet Web
site.
(3) Assess the health care needs of beneficiaries who are seniors
or persons with disabilities and coordinate their care across all
settings, including coordination of necessary services within and,
where necessary, outside of the plan's provider network.
(4) Ensure that the provider network and informational materials
meet the linguistic and other special needs of seniors and persons
with disabilities, including providing information in an
understandable manner in plain language, maintaining toll-free
telephone lines, and offering member or ombudsperson services.
(5) Provide clear, timely, and fair processes for accepting and
acting upon complaints, grievances, and disenrollment requests,
including procedures for appealing decisions regarding coverage or
benefits. Each managed care health plan participating in the
demonstration project shall have a grievance process that complies
with Section 14450, and Sections 1368 and 1368.01 of the Health and
Safety Code.
(6) Solicit stakeholder and member participation in advisory
groups for the planning and development activities related to the
provision of services for seniors and persons with disabilities.
(7) Contract with safety net and traditional providers as defined
in subdivisions (hh) and (jj) of Section 53810 of Title 22 of the
California Code of Regulations, to ensure access to care and
services. The managed care health plan shall establish participation
standards to ensure participation and broad representation of
traditional and safety net providers within a service area.
(8) Inform seniors and persons with disabilities of procedures for
obtaining transportation services to service sites that are offered
by the plan or are available through the Medi-Cal program.
(9) Monitor the quality and appropriateness of care for children
with special health care needs, including children eligible for, or
enrolled in, the California Children Services Program, and seniors
and persons with disabilities.
(10) Maintain a dedicated liaison to coordinate with each regional
center operating within the plan's service area to assist members
with developmental disabilities in understanding and accessing
services and act as a central point of contact for questions, access
and care concerns, and problem resolution.
(11) At the time of enrollment apply the risk stratification
mechanism or algorithm described in paragraph (7) of subdivision (b)
approved by the department to determine the health risk level of
beneficiaries.
(12) (A) Managed care health plans shall assess an enrollee's
current health risk by administering a risk assessment survey tool
approved by the department. This risk assessment survey shall be
performed within the following timeframes:
(i) Within 45 days of plan enrollment for individuals determined
to be at higher risk pursuant to paragraph (11).
(ii) Within 105 days of plan enrollment for individuals determined
to be at lower risk pursuant to paragraph (11).
(B) Based on the results of the current health risk assessment,
managed care health plans shall develop individual care plans for
higher risk beneficiaries that shall include the following minimum
components:
(i) Identification of medical care needs, including primary care,
specialty care, durable medical equipment, medications, and other
needs with a plan for care coordination as needed.
(ii) Identification of needs and referral to appropriate community
resources and other agencies as needed for services outside the
scope of responsibility of the managed care health plan.
(iii) Appropriate involvement of caregivers.
(iv) Determination of timeframes for reassessment and, if
necessary, circumstances or conditions that require redetermination
of risk level.
(13) (A) Establish medical homes to which enrollees are assigned
that include, at a minimum, all of the following elements, which
shall be considered in the provider contracting process:
(i) A primary care physician who is the primary clinician for the
beneficiary and who provides core clinical management functions.
(ii) Care management and care coordination for the beneficiary
across the health care system including transitions among levels of
care.
(iii) Provision of referrals to qualified professionals, community
resources, or other agencies for services or items outside the scope
of responsibility of the managed care health plan.
(iv) Use of clinical data to identify beneficiaries at the care
site with chronic illness or other significant health issues.
(v) Timely preventive, acute, and chronic illness treatment in the
appropriate setting.
(vi) Use of clinical guidelines or other evidence-based medicine
when applicable for treatment of beneficiaries' health care issues or
timing of clinical preventive services.
(B) In implementing this section, and the terms and conditions of
the demonstration project, the department may alter the medical home
elements described in this paragraph as necessary to secure the
increased federal financial participation associated with the
provision of medical assistance in conjunction with a health home, as
made available under the federal Patient Protection and Affordable
Care Act (P.L. 111-148), as amended by the federal Health Care and
Education Reconciliation Act of 2010 (P.L. 111-152), and codified in
Section 1945 of Title XIX of the federal Social Security Act. The
department shall notify the appropriate policy and fiscal committees
of the Legislature of its intent to alter medical home elements under
this section at least five days in advance of taking this action.
(14) Perform, at a minimum, the following care management and care
coordination functions and activities for enrollees who are seniors
or persons with disabilities:
(A) Assessment of each new enrollee's risk level and health needs
shall be conducted through a standardized risk assessment survey by
means such as telephonic, Web-based, or in-person communication or by
other means as determined by the department.
(B) Facilitation of timely access to primary care, specialty care,
durable medical equipment, medications, and other health services
needed by the enrollee, including referrals for any physical or
cognitive barriers to access.
(C) Active referral to community resources or other agencies for
needed services or items outside the managed care health plans
responsibilities.
(D) Facilitating communication among the beneficiaries' health
care providers, including mental health and substance abuse providers
when appropriate.
(E) Other activities or services needed to assist beneficiaries in
optimizing their health status, including assisting with
self-management skills or techniques, health education, and other
modalities to improve health status.
(d) Except in a county where Medi-Cal services are provided by a
county organized health system, and notwithstanding any other
provision of law, in any county in which fewer than two existing
managed care health plans contract with the department to provide
Medi-Cal services under this chapter, the department may contract
with additional managed care health plans to provide Medi-Cal
services for seniors and persons with disabilities and other Medi-Cal
beneficiaries.
(e) Beneficiaries enrolled in managed care health plans pursuant
to this section shall have the choice to continue an established
patient-provider relationship in a managed care health plan
participating in the demonstration project if his or her treating
provider is a primary care provider or clinic contracting with the
managed care health plan and agrees to continue to treat that
beneficiary.
(f) The department, or as applicable, the California Medical
Assistance Commission, may contract with existing managed care health
plans to operate under the demonstration project to provide or
arrange for services under this section. Notwithstanding any other
provision of law, the department, or as applicable, the commission,
may enter into the contract without the need for a competitive bid
process or other contract proposal process, provided the managed care
health plan provides written documentation that it meets all
qualifications and requirements of this section.
(g) This section shall be implemented only to the extent that
federal financial participation is available.
(h) (1) The development of capitation rates for managed care
health plan contracts shall include the analysis of data specific to
the seniors and persons with disabilities population. For the
purposes of developing capitation rates for payments to managed care
health plans, the director may require managed care health plans,
including existing managed care health plans, to submit financial and
utilization data in a form, time, and substance as deemed necessary
by the department.
(2) Notwithstanding Section 14301, the department may incorporate,
on a one-time basis for a three-year period, a risk sharing
mechanism in a contract with the local initiative health plan in the
county with the highest normalized fee-for-service risk score over
the normalized managed care risk score listed in Table 1.0 of the
Medi-Cal Acuity Study Seniors and Persons with Disabilities (SPD)
report written by Mercer Government Human
Services Consulting and dated September 28, 2010. The
Legislature finds and declares that this risk sharing mechanism will
limit the risk of beneficial or adverse effects associated with a
contract to furnish services pursuant to this section on an at-risk
basis.
(i) Persons meeting participation requirements for the Program of
All-Inclusive Care for the Elderly (PACE) pursuant to Chapter 8.75
(commencing with Section 14590), may select a PACE plan if one is
available in that county.
(j) Persons meeting the participation requirements in effect on
January 1, 2010, for a Medi-Cal primary care case management (PCCM)
plan in operation on that date, may select that PCCM plan or a
successor health care plan that is licensed pursuant to the
Knox-Keene Health Care Service Plan Act of 1975 (Chapter 2.2
(commencing with Section 1340) of Division 2 of the Health and Safety
Code) to provide services within the same geographic area that the
PCCM plan served on January 1, 2010.
(k) Notwithstanding Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code, the
department may implement, interpret, or make specific this section
and any applicable federal waivers and state plan amendments by means
of all-county letters, plan letters, plan or provider bulletins, or
similar instructions, without taking regulatory action. Prior to
issuing any letter or similar instrument authorized pursuant to this
section, the department shall notify and consult with stakeholders,
including advocates, providers, and beneficiaries. The department
shall notify the appropriate policy and fiscal committees of the
Legislature of its intent to issue instructions under this section at
least five days in advance of the issuance.
(l) Consistent with state law that exempts Medi-Cal managed care
contracts from Chapter 2 (commencing with Section 10290) of Part 2 of
Division 2 of the Public Contract Code, and in order to achieve
maximum cost savings, the Legislature hereby determines that an
expedited contract process is necessary for contracts entered into or
amended pursuant to this section. The contracts and amendments
entered into or amended pursuant to this section shall be exempt from
Chapter 2 (commencing with Section 10290) of Part 2 of Division 2 of
the Public Contract Code and the requirements of State
Administrative Management Manual Memo 03-10. The department shall
make the terms of a contract available to the public within 30 days
of the contract's effective date.
(m) In the event of a conflict between the terms and conditions of
the approved demonstration project, including any attachment
thereto, and any provision of this part, the terms and conditions
shall control. If the department identifies a specific provision of
this article that conflicts with a term or condition of the approved
waiver or demonstration project, or an attachment thereto, the term
or condition shall control, and the department shall so notify the
appropriate fiscal and policy committees of the Legislature within 15
business days.
(n) In the event of a conflict between the provisions of this
article and any other provision of this part, the provisions of this
article shall control.
(o) Any otherwise applicable provisions of this chapter, Chapter 8
(commencing with Section 14200), or Chapter 8.75 (commencing with
Section 14590) not in conflict with this article or with the terms
and conditions of the demonstration project shall apply to this
section.
(p) To the extent that the director utilizes state plan amendments
or waivers to accomplish the purposes of this article in addition to
waivers granted under the demonstration project, the terms of the
state plan amendments or waivers shall control in the event of a
conflict with any provision of this part.
(q) (1) Enrollment of seniors and persons with disabilities into a
managed care health plan under this section shall be accomplished
using a phased-in process to be determined by the department and
shall not commence until necessary federal approvals have been
acquired or until June 1, 2011, whichever is later.
(2) Notwithstanding paragraph (1), and at the director's
discretion, enrollment in Los Angeles County of seniors and persons
with disabilities may be phased in over a 12-month period using a
geographic region method that is proposed by Los Angeles County
subject to approval by the department.
(r) A managed care health plan established pursuant to this
section, or under the terms and conditions of the demonstration
project pursuant to Section 14180, shall be subject to, and comply
with, the requirement for submission of encounter data specified in
Section 14182.1.
(s) (1) Commencing January 1, 2011, and until January 1, 2014, the
department shall provide the fiscal and policy committees of the
Legislature with semiannual updates regarding core activities for the
enrollment of seniors and persons with disabilities into managed
care health plans pursuant to the pilot program. The semiannual
updates shall include key milestones, progress towards the objectives
of the pilot program, relevant or necessary changes to the program,
submittal of state plan amendments to the federal Centers for
Medicare and Medicaid Services, submittal of any federal waiver
documents, and other key activities related to the mandatory
enrollment of seniors and persons with disabilities into managed care
health plans. The department shall also include updates on the
transition of individuals into managed care health plans, the health
outcomes of enrollees, the care management and coordination process,
and other information concerning the success or overall status of the
pilot program.
(2) (A) The requirement for submitting a report imposed under
paragraph (1) is inoperative on January 1, 2015, pursuant to Section
10231.5 of the Government Code.
(B) A report to be submitted pursuant to paragraph (1) shall be
submitted in compliance with Section 9795 of the Government Code.
(t) The department, in collaboration with the State Department of
Social Services and county welfare departments, shall monitor the
utilization and caseload of the In-Home Supportive Services (IHSS)
program before and during the implementation of the pilot program.
This information shall be monitored in order to identify the impact
of the pilot program on the IHSS program for the affected population.
(u) Services under Section 14132.95 or 14132.952, or Article 7
(commencing with Section 12300) of Chapter 3 that are provided to
individuals assigned to managed care health plans under this section
shall be provided through direct hiring of personnel, contract, or
establishment of a public authority or nonprofit consortium, in
accordance with and subject to the requirements of Section 12302 or
12301.6, as applicable.
(v) The department shall, at a minimum, monitor on a quarterly
basis the adequacy of provider networks of the managed care health
plans.
(w) The department shall suspend new enrollment of seniors and
persons with disabilities into a managed care health plan if it
determines that the managed care health plan does not have sufficient
primary or specialty providers to meet the needs of their enrollees.
SEC. 335. Section 14182.1 of the Welfare and Institutions Code is
amended to read:
14182.1. (a) Beginning March 2011, the department shall convene a
stakeholder workgroup to review the existing encounter, claims, and
financial data submission process required by the department under
managed care health plan contracts. The workgroup members shall be
selected by the department and shall include interested
representatives from Medi-Cal managed care health plans, managed care
health plan associations, hospitals, individual health care
providers, physician groups, and consumer representatives. In
reviewing the process, the department shall consider input from the
stakeholder workgroup and develop data quality submission standards
by October 2011.
(b) Beginning January 1, 2012, managed care health plans shall
comply with the quality submission standards developed pursuant to
subdivision (a) when submitting data to the department. The director
may impose a penalty for each month that a managed care health plan
fails to submit data in compliance with these standards. The penalty
shall be in proportion to that plan's failure to comply with the data
submission standards, as the director in his or her sole discretion
determines, and in no event shall the penalty exceed 2 percent of the
total monthly capitation rate for that plan.
(c) Notwithstanding Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code, the
department may implement, interpret, or make specific this section by
means of all-county letters, plan letters, plan or provider
bulletins, or similar instructions, without taking regulatory action.
Prior to issuing any letter or similar instrument authorized
pursuant to this section, the department shall notify and consult
with stakeholders, including advocates, providers, and beneficiaries.
The department shall notify the appropriate policy and fiscal
committees of the Legislature of its intent to issue instructions
under this section at least five days in advance of the issuance. If
the department elects to adopt regulations, the adoption of
regulations shall be deemed an emergency and necessary for the
immediate preservation of the public peace, health and safety, or
general welfare.
SEC. 336. Section 15657.5 of the Welfare and Institutions Code, as
amended by Section 5 of Chapter 64 of the Statutes of 2010, is
amended to read:
15657.5. (a) Where it is proven by a preponderance of the
evidence that a defendant is liable for financial abuse, as defined
in Section 15610.30, in addition to compensatory damages and all
other remedies otherwise provided by law, the court shall award to
the plaintiff reasonable attorney's fees and costs. The term "costs"
includes, but is not limited to, reasonable fees for the services of
a conservator, if any, devoted to the litigation of a claim brought
under this article.
(b) Where it is proven by a preponderance of the evidence that a
defendant is liable for financial abuse, as defined in Section
15610.30, and where it is proven by clear and convincing evidence
that the defendant has been guilty of recklessness, oppression,
fraud, or malice in the commission of the abuse, in addition to
reasonable attorney's fees and costs set forth in subdivision (a),
compensatory damages, and all other remedies otherwise provided by
law, the limitations imposed by Section 377.34 of the Code of Civil
Procedure on the damages recoverable shall not apply.
(c) The standards set forth in subdivision (b) of Section 3294 of
the Civil Code regarding the imposition of punitive damages on an
employer based upon the acts of an employee shall be satisfied before
any punitive damages may be imposed against an employer found liable
for financial abuse as defined in Section 15610.30. This subdivision
shall not apply to the recovery of compensatory damages or attorney'
s fees and costs.
(d) Nothing in this section affects the award of punitive damages
under Section 3294 of the Civil Code.
(e) Any money judgment in an action under this section shall
include a statement that the damages are awarded based on a claim for
financial abuse of an elder or dependent adult, as defined in
Section 15610.30. If only part of the judgment is based on that
claim, the judgment shall specify what amount was awarded on that
basis.
SEC. 337. Section 15910 of the Welfare and Institutions Code is
amended to read:
15910. (a) Subject to federal approval of a demonstration project
effective on or after November 1, 2010, the department shall, by no
later than March 1, 2011, or alternatively, 180 days after federal
approval of the demonstration project, whichever occurs later,
authorize local CEED projects to provide scheduled health care
services, consistent with the terms and conditions of the
demonstration project, to uninsured adults 19 to 64, inclusive, years
of age, who are not otherwise eligible for Medicare or Medi-Cal,
with incomes up to 133 percent of the federal poverty level. To the
extent federal financial participation is made available under the
terms and conditions of the demonstration project and pursuant to
Section 15910.1, CEED project services may be made available to
individuals with incomes between 134 through 200 percent of the
federal poverty level.
(b) Eligible entities, consistent with the terms and conditions of
the demonstration project, may perform outreach and enrollment
activities to target populations, including, but not limited to,
people who are homeless, individuals who frequently use hospital
inpatient or emergency department services for avoidable reasons, or
people with mental health or substance abuse treatment needs.
(c) CEED projects shall be designed and implemented with the
systems and program elements necessary to facilitate the transition
of those eligible individuals to Medi-Cal coverage, or alternatively,
to coverage through the California Health Benefit Exchange, by 2014,
pursuant to state and federal law, and the terms and conditions of
the demonstration project.
(d) The department shall authorize CEED projects that meet the
requirements set forth in this part and the terms and conditions of
the demonstration project.
(e) (1) By January 1, 2011, or alternatively, 60 days after
federal approval of the demonstration project, whichever occurs
later, the department shall notify all eligible entities of the
opportunity to elect to implement a CEED project, the applicable
requirements, and the process for submitting an application for
department approval of a CEED project.
(2) The director shall approve or deny an eligible entity's CEED
project application within 60 days of receipt of the application. If
the director denies an application, the denial shall be in writing
and shall specify the reasons therefor.
(3) Within 10 days of a denial by the director under this
subdivision, a participating entity may submit a written request for
reconsideration. The director shall respond in writing to a request
for reconsideration within 20 days, confirming or reversing the
denial, and specifying the reasons for the reconsidered decision.
(4) An approval of a CEED project may be effective retroactively,
and shall be effective on the date specified in the application, so
long as the effective date is consistent with the terms and
conditions of the demonstration project. If the eligible entity had
in operation a Health Care Coverage Initiative program under Part 3.5
(commencing with Section 15900) as of August 31, 2010, and the
eligible entity elects to continue funding the program, then the
existing Health Care Coverage Initiative program shall, to the extent
permitted by the terms and conditions of the demonstration project,
remain in effect until the CEED project is effective, but no later
than 180 days after the department provides notice to eligible
entities pursuant to this subdivision.
(f) Services provided pursuant to this part shall be available to
those eligible, uninsured individuals enrolled in an applicable CEED
project, subject to the limitations of this part and the terms and
conditions of the demonstration project. However, nothing in this
part is intended to create an entitlement program of any kind.
(g) Each CEED project shall establish an income eligibility
standard for individuals to enroll in the CEED project, which shall
be expressed as a percentage between 0 and 133 of the federal poverty
level. Notwithstanding the established eligibility standard, a CEED
project may impose a limit on enrollment in the CEED project, which
shall be subject to all of the following provisions:
(1) The special terms and conditions required by the federal
Centers for Medicare and Medicaid Services for the approval of the
demonstration project described in Section 14180 permit a limitation
on enrollment in a CEED project.
(2) Any enrollment limitation by a CEED project shall be
administered in accordance with the special terms and conditions
required by the federal Centers for Medicare and Medicaid Services.
(3) Any enrollment limitation by a CEED project is subject to
approval by the director.
(4) Prior to applying for approval from the director, the CEED
project shall submit to the director a resolution from the county
board of supervisors in which the CEED project is located approving
the proposed limitation on enrollment by the CEED project.
(h) CEED projects shall be established and implemented only to the
extent that federal financial participation is available and only to
the extent that available federal financial participation is not
jeopardized.
(i) For the purposes of operating a CEED project approved under
this part, and notwithstanding Section 14181, participating entities
shall be exempt from the provisions of Chapter 2.2 (commencing with
Section 1340) of Division 2 of the Health and Safety Code, shall not
be considered Medi-Cal managed care health plans subject to the
requirements applicable to the two-plan model and geographic managed
care plans, as contained in Article 2.7 (commencing with Section
14087.3), Article 2.81 (commencing with Section 14087.96) and Article
2.91 (commencing with Section 14089) of Chapter 7 of Part 1 and the
corresponding regulations, and shall not be considered prepaid health
plans as defined in Section 14251.
SEC. 338. Section 15910.2 of the Welfare and Institutions Code is
amended to read:
15910.2. (a) The department shall approve any CEED project that
meets both of the following requirements and any additional
requirements imposed by the terms and conditions of the demonstration
project:
(1) Is proposed by an eligible entity that voluntarily agrees to
commit, on an annual basis, to provide the nonfederal share of CEED
project expenditures for services to individuals who meet the income
eligibility standards specified for the CEED project.
(2) Includes the CEED project elements set forth in subdivision
(b).
(b) An approved CEED project shall include all of the following
elements, subject to the terms and conditions of the demonstration
project:
(1) Development of standardized eligibility and enrollment
procedures that interface with Medi-Cal processes according to the
milestones developed in consultation with the counties, county health
departments, public hospitals, and county human service departments.
CEED projects shall migrate to the standardized procedures in
accordance with the terms and conditions of the demonstration
project. If authorized under the terms and conditions of the
demonstration project, eligibility for CEED benefits may be provided
retroactively for any of the three months prior to the enrollment
date in which the individual would have been found eligible had he or
she applied during that month. If an individual is determined to be
retroactively eligible, CEED project coverage for the retroactive
period shall be limited to those services provided within the
approved CEED project network.
(2) (A) Assignment of eligible individuals to a medical home. For
purposes of this paragraph and subject to the terms and conditions of
the demonstration project, "medical home" means a single provider,
facility, or health care team that maintains an individual's medical
information, and coordinates health care services for enrolled
individuals. The medical home shall provide, at a minimum, all of the
following elements, which shall be considered in the provider
contracting process:
(i) A primary health care contact who facilitates the enrollee's
access to preventive, primary, specialty, mental health, or chronic
illness treatment, as appropriate.
(ii) An intake assessment of each new enrollee's general health
status.
(iii) Referrals to qualified professionals, community resources,
or other agencies as needed.
(iv) Care coordination for the beneficiary across the service
delivery system, as agreed to between the medical home and the CEED
project. This may include facilitating communication among enrollee's
health care providers, including appropriate outreach to mental
health providers.
(v) Care management, case management, and transitions among levels
of care, if needed and as agreed to between the medical home and the
CEED project.
(vi) Use of clinical guidelines and other evidence-based medicine
when applicable for treatment of the enrollee's health care issues
and timing of clinical preventive services.
(vii) Focus on continuous improvement in quality of care.
(viii) Timely access to qualified health care interpretation as
needed and as appropriate for enrollees with limited English
proficiency, as determined by applicable federal guidelines.
(ix) Health information, education, and support to beneficiaries
and, where appropriate, their families, if and when needed, in a
culturally competent manner.
(B) In implementing this section, and the terms and conditions of
the demonstration project, the department may alter the medical home
elements described in this paragraph as necessary to secure the
increased federal financial participation associated with the
provision of medical assistance in conjunction with a health home, as
made available under the federal Patient Protection and Affordable
Care Act (P.L. 111-148), as amended by the federal Health Care and
Education Reconciliation Act of 2010 (P.L. 111-152), and codified in
Section 1945 of Title XIX of the federal Social Security Act.
(3) A scheduled package of services required under the terms and
conditions of the demonstration project that shall be limited to
those services provided within an approved CEED project's provider
network and service delivery system.
(4) A provider network and service delivery system that seeks to
promote the viability of the existing safety net health care system
that serves the population to be covered by the CEED project. The
provider network and service delivery system shall meet the standards
established in the terms and conditions of the demonstration
project.
(5) Development of an outreach and enrollment plan that reaches
potential project enrollees and begins to prepare to transition
eligible individuals to Medi-Cal coverage in 2014, or alternatively,
to coverage through the California Health Benefit Exchange.
(6) A quality measurement and quality monitoring system.
(7) Data tracking systems to provide the department with required
data for quality monitoring, quality improvement, and evaluation.
(8) Demonstration of how the CEED project will provide consumer
assistance to individuals applying for, participating in, or
accessing, services in the CEED projects, including the availability
of materials that provide information on all of the following:
(A) The scope of covered services.
(B) The exceptions, reductions, and limitations that apply to
covered services.
(C) Any premium, copayment, or deductible requirements that may be
incurred by the enrollee.
(D) The participating providers in the CEED project network.
(E) The medical homes within the CEED project network from which
the enrollee may select.
(F) The CEED project's telephone number or numbers that may be
used by an enrollee to receive additional information about the
covered services or participating providers.
(9) Ability to meet program requirements, standards, and
performance measurements developed by the department, in consultation
with participating counties, for the CEED projects.
SEC. 339. Section 15911 of the Welfare and Institutions Code is
amended to read:
15911. (a) Funding for each CEED project shall be based on all of
the following:
(1) The amount of funding that the participating entity
voluntarily provides for the nonfederal share of CEED project
expenditures.
(2) Any limitations imposed by the terms and conditions of the
demonstration project.
(3) Whether additional funds are allocated to the CEED projects
under Section 15910.1 for services to individuals with incomes
between 134 and 200 percent of the federal poverty level.
(4) Whether funding under this part would result in the reduction
of other payments under the demonstration project.
(b) Nothing in this part shall be construed to require a political
subdivision of the state to participate in the program of CEED
projects as set forth in this part, and those local funds expended or
transferred for the nonfederal share of CEED project expenditures
under this part shall be considered voluntary contributions for
purposes of the federal Patient Protection and Affordable Care Act
(P.L. 111-148), as amended by the federal Health Care and Education
Reconciliation Act of 2010 (P.L. 111-152), and the federal American
Recovery and Reinvestment Act of 2009 (P.L. 111-5), as amended by the
federal Patient Protection and Affordable Care Act.
(c) No state General Fund moneys shall be used to fund CEED
project services, nor to fund any related administrative costs
incurred by counties or any other political subdivision of the state.
(d) Subject to the terms and conditions of the demonstration
project, if a participating entity elects to fund the nonfederal
share of a CEED project, the nonfederal funding and payments to the
CEED project shall be provided through one of the following
mechanisms, at the option of the participating entity:
(1) On a quarterly basis, the participating entity shall transfer
to the department for deposit in the CEED Project Fund established
for the participating counties and pursuant to subparagraph (A), the
amount necessary to meet the nonfederal share of estimated payments
to the CEED project for the next quarter under subdivision (g)
Section 15910.3.
(A) The CEED Project Fund is hereby created in the State Treasury.
Notwithstanding Section 13340 of the Government Code, all moneys in
the fund shall be continuously appropriated to the department for the
purposes specified in this part. The fund shall contain all moneys
deposited into the fund in accordance with this paragraph.
(B) The department shall obtain the related federal financial
participation and pay the rates established under Section 15910.3,
provided that the intergovernmental transfer is transferred in
accordance with the deadlines imposed under the Medi-Cal Checkwrite
Schedule, no later than the next available warrant release date. This
payment shall be a nondiscretionary obligation of the department,
enforceable under a writ of mandate pursuant to Section 1085 of the
Code of Civil Procedure. Participating entities may request expedited
processing within seven
business days of the transfer as made available by the State
Controller's Office, provided that the participating entity prepay
the department for the additional administrative costs associated
with the expedited processing.
(C) Total quarterly payment amounts shall be determined in
accordance with estimates of the number of enrollees in each rate
category, subject to annual reconciliation to final enrollment data.
(2) If a participating entity operates its CEED project through a
contract with another entity, the participating entity may pay the
operating entity based on the per enrollee rates established under
Section 15910.3 on a quarterly basis in accordance with estimates of
the number of enrollees in each rate category, subject to annual
reconciliation to final enrollment data.
(A) (i) On a quarterly basis, the participating entity shall
certify the expenditures made under this paragraph and submit the
report of certified public expenditures to the department.
(ii) The department shall report the certified public expenditures
of a participating entity under this paragraph on the next available
quarterly report as necessary to obtain federal financial
participation for the expenditures. The total amount of federal
financial participation associated with the participating entity's
expenditures under this paragraph shall be paid to the participating
entity.
(B) At the option of the participating entity, the CEED project
may be reimbursed on a cost basis in accordance with the methodology
applied to Health Care Coverage Initiative programs established under
Part 3.5 (commencing with Section 15900) including interim quarterly
payments.
(e) Notwithstanding Section 15910.3 and subdivision (d) of this
section, if the participating entity cannot reach an agreement with
the department as to the appropriate rate to be paid under Section
15910.3, at the option of the participating entity, the CEED project
shall be reimbursed on a cost basis in accordance with the
methodology applied to Health Care Coverage Initiative programs
established under Part 3.5 (commencing with Section 15900), including
interim quarterly payments. If the participating entity and the
department reach an agreement as to the appropriate rate, the rate
shall be applied no earlier than the first day of the CEED project
year in which the parties agree to the rate.
(f) If authorized under the terms and conditions of the
demonstration project, pending the department's development of rates
in accordance with Sections 15910.3, the department shall make
interim quarterly payments to approved CEED projects for expenditures
based on estimated costs submitted for ratesetting.
(g) Participating entities that operate a CEED project directly or
through contract with another entity shall be entitled to any
federal financial participation available for administrative
expenditures incurred in the operation of the Medi-Cal program or the
demonstration project, including, but not limited to, outreach,
screening and enrollment, program development, data collection,
reporting and quality monitoring, and contract administration, but
only to the extent that the expenditures are allowable under federal
law and only to the extent the expenditures are not taken into
account in the determination of the per enrollee rates under Section
15910.3.
(h) On and after January 1, 2014, the state shall implement
comprehensive health care reform for the populations targeted by the
CEED in compliance with federal health care reform law, regulation,
and policy, including the federal Patient Protection and Affordable
Care Act (P.L. 111-148), as amended by the federal Health Care and
Education Reconciliation Act of 2010 (P.L. 111-152), and subsequent
amendments.
(i) Participation in the CEED projects under this article is
voluntary on the part of the county or counties for purposes of all
applicable federal laws. As part of its voluntary participation under
this article, the county or counties shall agree to reimburse the
state for the nonfederal share of state staffing or administrative
costs directly attributable to the cost of administering that county
or counties' CEED project. This section shall be implemented only to
the extent federal financial participation is not jeopardized.
SEC. 340. Section 18293 of the Welfare and Institutions Code is
amended to read:
18293. (a) In order to be eligible for funding pursuant to this
chapter, a domestic violence shelter-based program shall demonstrate
its ability to receive and make use of any funds available from
governmental, voluntary, philanthropic, or other sources that may be
used to augment any state or county funds appropriated for the
purposes of this chapter. Each domestic violence shelter-based
program shall make every attempt to qualify the domestic violence
shelter-based program for any available federal funding.
(b) No provision of this section is intended to prohibit domestic
violence shelter-based programs receiving funds pursuant to this
chapter from receiving additional funds from any other public or
private source. Funds provided pursuant to this chapter shall not be
used to reduce the financial support from other public or private
sources.
(c) Proposed or existing domestic violence shelter-based programs
that meet the requirements set forth in Section 18294, shall receive
funding pursuant to this chapter upon the approval of the local board
of supervisors.
(d) Funding shall be given to agencies and organizations whose
primary function is to administer domestic violence shelter-based
programs. Any additional fees received by Alameda County, Contra
Costa County, Solano County, and the City of Berkeley at the time of
issuance of a marriage license pursuant to Sections 18308, 18309,
18309.5, and 18309.6 that are in excess of the twenty-three dollar
($23) fee collected pursuant to this act, shall be available to that
city or county for funding domestic violence programs other than
domestic violence shelter-based programs.
(e) Prior to approving a domestic violence shelter-based program
or programs for this funding, the board shall consult with
individuals and groups that have expertise in the problems of
domestic violence and in the operation of domestic violence
shelter-based programs including operations of existing domestic
violence shelter-based programs.
(f) Upon approving one or more domestic violence shelter-based
programs for funding, the board shall direct the county treasurer to
disburse moneys from the county's domestic violence shelter-based
program special fund and for funding, the board shall designate a
local agency to monitor the domestic violence shelter-based program
or programs. This monitoring shall include information regarding the
number of persons requesting services, the number of persons
receiving services according to the type of services provided, and
the need, if any, for additional services or staffing.
(g) Programs that receive funding through this chapter shall, to
the extent feasible, provide services to persons with a physical
disability who are victims of domestic violence. If the program
cannot provide the services, then the program's staff, to the extent
feasible, shall assist in referring the person with a physical
disability to other programs and services in the community where
assistance may be obtained.
(h) The process to determine eligibility of a domestic violence
shelter-based program to receive funding pursuant to this chapter
shall have as its primary purpose to ascertain that the program meets
the service requirements of Section 18294. The process shall be
expedient and shall include a mechanism for annual recertification.
(i) Funding obtained pursuant to this chapter is for the
unrestricted use of a recipient domestic violence shelter-based
program, and may be used for direct and indirect costs.
SEC. 341. Section 18951 of the Welfare and Institutions Code is
amended to read:
18951. As used in this chapter:
(a) "Child" means an individual under 18 years of age.
(b) "Child services" means services for or on behalf of children,
and includes the following:
(1) Protective services.
(2) Caretaker services.
(3) Day care services, including dropoff care.
(4) Homemaker services or family aides.
(5) Counseling services.
(c) "Adult services" means services for or on behalf of a parent
of a child, which shall include, but not be limited to, the
following:
(1) Access to voluntary placement, long or short term.
(2) Counseling services before and after a crisis.
(3) Homemaker services or family aides.
(d) "Multidisciplinary personnel" means any team of three or more
persons who are trained in the prevention, identification,
management, or treatment of child abuse or neglect cases and who are
qualified to provide a broad range of services related to child abuse
or neglect. The team may include, but need not be limited to, any of
the following:
(1) Psychiatrists, psychologists, marriage and family therapists,
or other trained counseling personnel.
(2) Police officers or other law enforcement agents.
(3) Medical personnel with sufficient training to provide health
services.
(4) Social workers with experience or training in child abuse
prevention, identification, management, or treatment.
(5) A public or private school teacher, administrative officer,
supervisor of child welfare and attendance, or certificated pupil
personnel employee.
(6) A CalWORKs case manager whose primary responsibility is to
provide cross program case planning and coordination of CalWORKs and
child welfare services for those mutual cases or families that may be
eligible for CalWORKs services and that, with the informed written
consent of the family, receive cross program case planning and
coordination.
(e) "Child abuse" as used in this chapter means a situation in
which a child suffers from any one or more of the following:
(1) Serious physical injury inflicted upon the child by other than
accidental means.
(2) Harm by reason of intentional neglect or malnutrition or
sexual abuse.
(3) Going without necessary and basic physical care.
(4) Willful mental injury, negligent treatment, or maltreatment of
a child under the age of 18 years by a person who is responsible for
the child's welfare under circumstances that indicate that the child'
s health or welfare is harmed or threatened thereby, as determined in
accordance with regulations prescribed by the Director of Social
Services.
(5) Any condition that results in the violation of the rights or
physical, mental, or moral welfare of a child or jeopardizes the
child's present or future health, opportunity for normal development,
or capacity for independence.
(f) "Parent" means any person who exercises care, custody, and
control of the child as established by law.
SEC. 342. Section 18987.7 of the Welfare and Institutions Code is
amended to read:
18987.7. (a) The State Department of Social Services shall
convene a workgroup of public and private nonprofit stakeholders that
shall develop a plan for transforming the current system of group
care for foster children or youth, and for children with serious
emotional disorders (SED), into a system of residentially based
services. The stakeholders may include, but not be limited to,
representatives of the department and of the State Department of
Mental Health, the State Department of Education, the State
Department of Alcohol and Drug Programs, and the Department of
Corrections and Rehabilitation; county child welfare, probation,
mental health, and alcohol and drug programs; local education
authorities; current and former foster youth, parents of foster
children or youth, and children or youth with SED; private nonprofit
agencies operating group homes; children's advocates; and other
interested parties.
(b) The plan developed pursuant to this chapter shall utilize the
reports delivered to the Legislature pursuant to Section 75 of
Chapter 311 of the Statutes of 1998 by the Steering Committee for the
Reexamination of the Role of Group Care in a Family-Based System of
Care in June 2001 and August 2002, and the "Framework for a New
System for Residentially-Based Services in California" published in
March 2006.
(c) In the development, implementation, and subsequent revisions
of the plan developed pursuant to subdivision (a), the knowledge and
experience gained by counties and private nonprofit agencies through
the operation of their residentially based services programs created
under voluntary agreements made pursuant to Section 18987.72,
including, but not limited to, the results of evaluations prepared
pursuant to paragraph (3) of subdivision (c) of Section 18987.72
shall be utilized.
(d) By July 1, 2014, the department shall provide a copy of the
plan developed by the workgroup pursuant to subdivision (a) to the
Legislature. The plan shall include, in addition to other
requirements set forth in this chapter, any statutory revisions
necessary for its implementation.
SEC. 343. Section 2 of Chapter 166 of the Statutes of 2009 is
amended to read:
Sec. 2. (a) The Director of General Services may dispose of all or
any portion of approximately 85 acres located at the East Campus of
the Agnews Developmental Center in Santa Clara County in accordance
with Section 11011.1 of the Government Code.
(b) After the East Campus property has been made available to
public entities pursuant to Section 11011.1 of the Government Code,
and after meeting any other contractual obligations, the remaining
East Campus property, if any, shall be made available to the public
pursuant to Section 11011.1 of the Government Code. The State Office
of Historic Preservation shall determine the historic resources at
the East Campus property and advise the Department of General
Services of any economically feasible opportunities to reuse the
historic resources.
(c) The resolution or mitigation of any disputes or claims related
to the land lease agreement and the energy purchase agreement
between the state and Agnews Developmental Center Cogeneration
Facility, dated December 31, 1990, shall be a cost of sale of all the
property authorized to be disposed of at the East Campus. The
department may utilize funds from sales of this property for the
resolution or mitigation of these disputes or claims.
SEC. 344. Section 1 of Chapter 191 of the Statutes of 2010 is
amended to read:
Section 1. (a) The City of Los Angeles may transfer to the Los
Angeles Unified School District parkland known as the Vernon Branch
Library Pocket Park and the facilities on that land, if all of the
following conditions are met:
(1) The city complies with Section 5096.343 of the Safe
Neighborhood Parks, Clean Water, Clean Air, and Coastal Protection
Bond Act of 2000 (the Villaraigosa-Keeley Act) (Chapter 1.692
(commencing with Section 5096.300) of Division 5 of the Public
Resources Code), and submits to the Department of Parks and
Recreation a copy of the recorded deed and title policy for, and map
of, the substitute parkland.
(2) The city submits to the department a revised map of Vernon
Branch Library Pocket Park, with the revised acreage.
(3) The city enters into an agreement with the Los Angeles Unified
School District that identifies the parcels in the city that will be
acquired and developed as substitute parkland and the facilities
that will be constructed on the substitute parkland.
(4) The city provides a detailed land plan that shows the
following:
(A) The specific parcels of Vernon Branch Library Pocket Park that
will be transferred to the Los Angeles Unified School District.
(B) The parcels in the city that will be acquired and developed as
substitute parkland.
(C) The facilities that will be constructed on the substitute
parkland.
(D) A demonstration that there is no net loss in park acreage as a
result of the transfer pursuant to this section.
(5) The transferred property is used only for a school facility.
(6) The city ensures that the substituted parkland is developed
and dedicated in perpetuity for park purposes.
(7) At least 45 days prior to transferring the property, the city
adopts an ordinance at a public meeting that does all of the
following:
(A) Identifies the Vernon Branch Library Pocket Park parcels that
are to be transferred to the school district, and the parcels that
the city will acquire to replace the transferred property.
(B) Makes a finding that the replacement property used as a
substitute parkland has a value that equals the amount of the grant
used to acquire the property known as the Vernon Branch Library
Pocket Park, the fair market value of that real property, or the
proceeds from the sale or other disposition, whichever is greater.
(C) Makes a finding that the replacement parcels and facilities
will be provided or paid for by the school district and will have
acreage that is equal to or larger than the acreage of the Vernon
Branch Library Pocket Park parcels transferred to the school
district.
(D) Makes a finding that the transfer does not diminish the
environmental integrity or recreational value of Vernon Branch
Library Pocket Park.
(E) Makes a finding that the replacement parcels, including
facilities, will provide an equivalent or higher level of
recreational and environmental service to the current users of Vernon
Branch Library Pocket Park.
(F) Makes a finding that the replacement parcels and facilities
are in addition to existing city property.
(G) Makes a finding that the city has obtained all required state
and federal approvals for the transfer of the Vernon Branch Library
Pocket Park parcels to the school district.
(b) The transfer pursuant to subdivision (a) shall not occur until
the department determines that all of the conditions set forth in
subdivision (a) have been met.
SEC. 345. Section 2 of Chapter 251 of the Statutes of 2010 is
amended to read:
Sec. 2. (a) It is the intent of the Legislature to recognize the
historical and architectural significance of the California Memorial
Stadium located on the University of California, Berkeley, campus.
Furthermore, the Legislature recognizes that the Alquist-Priolo
Earthquake Fault Zoning Act (Chapter 7.5 (commencing with Section
2621) of Division 2 of the Public Resources Code) provides an
exemption process for local historical structures through the local
planning process; however, buildings owned by the state, including
the University of California, are not subject to the local planning
process and therefore cannot use this process to obtain an exemption.
(b) The Alquist-Priolo Earthquake Fault Zoning Act (Chapter 7.5
(commencing with Section 2621) of Division 2 of the Public Resources
Code) shall not apply to the California Memorial Stadium located on
the University of California, Berkeley, campus. However, the
Legislature finds and declares that the California Memorial Stadium
located on the University of California, Berkeley, campus requires
seismic retrofitting, as defined in Section 8894.2 of the Government
Code, which is necessary to strengthen structures and provide
increased resistance to ground shaking from an earthquake.
(c) This section does not conflict with the intent or the
applicability of any provision of the Alquist-Priolo Earthquake Fault
Zoning Act (Chapter 7.5 (commencing with Section 2621) of Division 2
of the Public Resources Code).
SEC. 346. Section 1 of Chapter 321 of the Statutes of 2010 is
amended to read:
Section 1. (a) The Legislature authorizes, pursuant to paragraph
(2) of subdivision (a) of Section 5919 of the Public Resources Code,
the County of San Bernardino to sell or exchange property it owns
within the Chino Agricultural Preserve that was purchased with grant
funds provided pursuant to the California Wildlife, Coastal, and Park
Land Conservation Act (Division 5.8 (commencing with Section 5900)
of the Public Resources Code), provided that the sale or exchange
satisfies the original purposes of the grant agreement between the
county and department, except as modified by paragraph (1), the
conditions of subdivision (b) of Section 5919 of the Public Resources
Code, and all of the following conditions:
(1) The County of San Bernardino shall preserve all lands and
conservation easements acquired or dedicated as authorized by this
subdivision in perpetuity for agricultural preservation, including
community gardens, agricultural heritage projects, agricultural and
wildlife education or wildlife habitat, or for open-space
conservation purposes.
(2) By April 1, 2011, the County of San Bernardino shall place a
deed restriction on each property it acquired with grant funds from
the California Wildlife, Coastal, and Park Land Conservation Act. The
deed restriction shall be written for the purposes set forth in
paragraph (1). Each deed restriction shall be recorded with the
county recorder. Each deed restriction shall be in effect until
either a conservation easement is recorded on the property, pursuant
to subparagraph (A) of paragraph (2) of subdivision (c), or until the
County of San Bernardino sells or exchanges the property.
(3) The County of San Bernardino satisfies all conditions in
paragraphs (1) and (2) of subdivision (c) that are necessary to
develop and implement the adopted plan.
(b) For purposes of this section, the following definitions apply:
(1) "County" means the County of San Bernardino.
(2) "Board" means the Board of Supervisors for the County of San
Bernardino.
(3) "Department" means the California Department of Parks and
Recreation.
(4) "Plan" means the detailed land plan that is prepared to show
the existing and proposed disposition of lands purchased by the
County of San Bernardino in the Chino Agricultural Preserve with
funds from the California Wildlife, Coastal, and Park Land
Conservation Act (Division 5.8 (commencing with Section 5900) of the
Public Resources Code).
(5) "Grant funds" means the grant that was made to the County of
San Bernardino from the California Department of Parks and Recreation
provided pursuant to the California Wildlife, Coastal, and Park Land
Conservation Act (Division 5.8 (commencing with Section 5900) of the
Public Resources Code).
(6) "Preserve" means the Chino Agricultural Preserve as defined by
the boundaries of the 14,000-acre Chino Agricultural Preserve as it
existed on June 8, 1988, and includes property surrounding the Chino
airport.
(c) (1) The county shall not sell, exchange, or otherwise acquire
replacement land or conservation easements pursuant to this section
unless and until the board adopts a detailed land plan by December
31, 2011. The adopted plan shall meet all of the following
conditions:
(A) The plan identifies each parcel of property acquired with
grant funds and shows which specific parcels the county will sell,
exchange, purchase, or retain.
(B) For each parcel to be sold, exchanged, purchased, or retained,
the plan identifies whether the parcel will be acquired or retained
in fee title or as a conservation easement.
(C) To the extent feasible and practical, the plan will maximize
the connectivity of lands for the purposes set forth in paragraph (1)
of subdivision (a).
(D) If the plan results in any net loss in acreage or habitat
value of protected land in comparison to what was purchased with
grant funds, the plan shall identify the additional replacement land
within the preserve that the county shall acquire or dedicate to
compensate for that loss.
(E) An environmental review accompanies the land plan.
(F) The land plan was provided to the department for its review
and approval no less than 90 days prior to the county's adoption. The
land plan shall be approved by the department before it can be
approved by the board. If the department does not approve or
disapprove the land plan within 45 days of receipt, it shall provide
written comments to the county setting forth its concerns or
suggested modifications to the county that could lead to the
department's approval if the land plan was accordingly modified.
(G) The county holds a public hearing before the board for the
purpose of reviewing the land plan and taking public comment. The
hearing shall be scheduled for a specific time during a regularly
scheduled meeting of the board, and shall be separately noticed and
publicized.
(H) The land plan and environmental review demonstrate that there
is no net loss in acreage or habitat value as a result of
implementation of the plan.
(I) The initial land plan approved by the county and the
department may be amended from time to time by the county so long as
it follows the same steps required for approving the initial plan,
including approval by the department.
(2) To implement the adopted land plan, the county shall take the
following steps, which are required to fulfill the adopted land plan
as well as any other actions that may be necessitated by the land
plan:
(A) By April 1, 2012, the county shall record a conservation
easement for the purposes set forth in paragraph (1) of subdivision
(a) on each property identified for retention in the adopted plan.
(B) Within 90 days of the acquisition of any property in fee
title, the county shall record a conservation easement on the
property for the purposes set forth in paragraph (1) of subdivision
(a).
(C) If the plan identifies a net loss in acreage or habitat value
of protected lands, the county shall acquire or dedicate additional
replacement land or conservation easements within the preserve to
compensate for that loss no later than one year following the sale of
the last property to be disposed. Any conservation easement shall be
for the purposes set forth in paragraph (1) of subdivision (a).
(D) If the county acquires a conservation easement through
purchase or exchange in furtherance of the plan, the conservation
easement shall be for the purposes set forth in paragraph (1) of
subdivision (a).
(E) Prior to closing any real property transactions with respect
to the land plan, the county shall submit independent appraisals of
the land to be sold or exchanged and the land to be acquired to the
department for concurrence with state appraisal standards. The county
and department shall make these appraisals available to the public
no later than 60 days following the sale or exchange of the last
property to be disposed.
(F) Before recordation, each conservation easement shall be
approved by the department. Each conservation easement shall be in
perpetuity. The department shall review and approve or disapprove
each conservation easement within 60 days of receipt from the county.
If the department disapproves
the conservation easement, it shall provide the reasons in
writing to the county.
(d) (1) After the approved land plan is fully implemented, the
county shall provide a report to the department on all expenditures
and revenues from all of the sales or exchanges of land under the
land plan, on the acreages of all lands or easements sold, exchanged,
and held, and on any funds from all of the sales or exchanges of
land under the land plan that have not been expended. If there are
unexpended proceeds from the sales or exchanges of land under the
land plan, the county may propose a plan to the department for the
expenditure of these funds for the acquisition of land or easements,
or capital improvements to land or easements purchased with grant
funds.
(2) With the exception of revenues from the sale or exchange of
land, the county may use all income generated from the properties it
owns within the preserve that were purchased with grant funds, or
that were acquired by exchange or purchase as authorized herein, for
the acquisition of additional replacement land within the preserve
pursuant to the land plan or for the improvement, operation, and
maintenance of existing or replacement land within the preserve.
(3) All proposed uses of the funds from the sales or exchanges of
land shall be approved by the department and be eligible expenditures
under the California Wildlife, Coastal, and Park Land Conservation
Act (Division 5.8 (commencing with Section 5900) of the Public
Resources Code).
(e) If the county fails to adopt a detailed land plan by December
31, 2011, that satisfies the criteria outlined in this section, it
may apply to the department to extend the deadline specified in
subdivision (c) to a specific different date. Elements or
requirements of the land plan shall not be eliminated or
substantively modified as part of the extension. The department shall
review and approve or disapprove the request to extend the deadline
within 60 days of receipt from the county. If the department
disapproves the request for extension or modifies the requested date
of the extension, it shall provide the reasons in writing to the
county. If the county does not apply for an extension of the deadline
or the department does not approve an amendment, the county shall
record a conservation easement on all lands purchased within the
preserve with grant funds no later than June 1, 2012. Before
recordation, each conservation easement shall be approved by the
department. Each conservation easement shall be for the purposes set
forth in paragraph (1) of subdivision (a), and each shall be in
perpetuity. The department shall review and approve or disapprove
each conservation easement within 60 days of receipt from the county.
If the department disapproves the conservation easement, it shall
provide the reasons in writing to the county.
(f) This section does not exempt the county from the requirements
of the California Environmental Quality Act (Division 13 (commencing
with Section 21000) of the Public Resources Code).
SEC. 347. Section 2 of Chapter 377 of the Statutes of 2010 is
amended to read:
Sec. 2. (a) There is hereby granted and conveyed in trust to the
City of Long Beach in the County of Los Angeles all the right, title,
and interest of the State of California in certain trust lands,
acquired and held by the state, subject to the common law public
trust and the city's statutory trust, pursuant to the agreement that
was approved as Calendar Item 8 of the June 5, 1991, State Lands
Commission meeting, which are further described as follows:
(1) Southern Parcel, which consists of land described as follows:
Southern parcel
Description: The land referred to herein is situated in the County
of Los Angeles, State of California, and is described as follows:
That certain parcel of land, in the City of Long Beach, described
as follows:
Beginning at the intersection of the easterly prolongation of the
northerly line of lot "e" as shown on map of ocean front of the City
of Long Beach, recorded in book 39 pages 18 to 33, inclusive of
miscellaneous records, in the office of the county recorder of said
county, and a line parallel with and 50.00 feet easterly of the
easterly lines of lots "e" and "k" of said ocean front of the City of
Long Beach; thence along said parallel line, South 00 05'02" East,
405.24 feet; thence South 89 54'58" West, 69.85 feet; thence South
00 05'02" East, 40.00 feet to the true point of beginning; thence
North 89 54'58" East, 38.57 feet to a point on a nontangent curve
concave to the southwest and having a radius of 29.50 feet, a radial
line through said point bears North 47 13'55" East; thence southerly
along said curve through a central angle of 38 56'41" an arc
distance of 20.05 feet; thence South 03 49'24" East 56.57 feet to
the southerly line of that particular parcel of land described in
deed recorded in book 44843, page 136 of official records in the
office of said county recorder; thence along said southerly line
North 89 18'18" West, 231.02 feet; thence North 52 02'37" East,
27.08 feet to the beginning of a curve concave southeasterly having a
radius of 260.00 feet; thence northeasterly along said curve through
a central angle of 37 52'21" an arc distance of 171.86 feet to the
true point of beginning.
Except that portion shown as Pine Avenue on map of said ocean
front of the City of Long Beach.
Also except that portion of said land lying easterly of the
easterly line of said lot "k" and/or its southerly prolongation; and
(2) Street Parcel, which consists of land described as follows:
Street parcel
Description: A parcel of land in the City of Long Beach, in the
County of Los Angeles, State of California, described as follows:
Beginning at the intersection of the easterly prolongation of the
northerly line of lot "e" as shown on the map of ocean front of the
City of Long Beach, recorded in book 39 pages 18 to 33, inclusive of
miscellaneous records, in the office of the county recorder of said
county, and a line parallel with and 50.00 feet easterly of the
easterly lines of lots "e" and "k" of said ocean front of the City of
Long Beach; thence along said parallel line South 00 05'02" East,
405.24 feet; thence South 89 54'58" West, 69.85 feet; thence South
00 05'02" East, 40.00 feet; thence North 89 54'58" East, 19.85 feet
more or less to the southerly prolongation of the East line of said
lot "k", being the true point of beginning; thence North 89 54'58"
East 40 feet to the easterly line of the parcel of land described in
deed recorded in book 44843, page 136 of official records in the
office of the county recorder of said county; thence southerly along
said easterly line 74.66 feet more or less to the southeasterly
corner of said described parcel of land; thence along the southerly
line thereof North 89 18'18" West 40 feet to the southerly
prolongation of the east line of said lot "k"; thence North 00 05'02"
West 74.12 feet more or less to the true point of beginning.
(b) The lease of the lands described in subdivision (a),
designated as PRC 7545, from the State Lands Commission to the City
of Long Beach shall terminate on January 1, 2011.
(c) The City of Long Beach shall hold, operate, and manage, in
trust for the benefit of the statewide public, the public trust lands
described in subdivision (a) in accordance with the common law
public trust doctrine and the terms, trusts, and conditions set forth
in Chapter 676 of the Statutes of 1911, Chapter 102 of the Statutes
of 1925, Chapter 158 of the Statutes of 1935, and Chapter 138 of the
Statutes of 1964 (First Extraordinary Session), as amended.
SEC. 348. Section 3 of Chapter 431 of the Statutes of 2010 is
amended to read:
Sec. 3. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to implement, as soon as possible, the provisions of
Senate Bill 702 of the 2009-10 Regular Session of the Legislature
ensuring background checks for ancillary day care providers, it is
necessary that this act take effect immediately.
SEC. 349. Section 2 of Chapter 716 of the Statutes of 2010 is
amended to read:
Sec. 2. The Legislature finds and declares that a special law is
necessary and that a general law cannot be made applicable within the
meaning of Section 16 of Article IV of the California Constitution
because of the unique transportation funding needs in the County of
Fresno.
SEC. 350. Section 173 of Chapter 717 of the Statutes of 2010 is
amended to read:
Sec. 173. The State Department of Health Care Services shall
provide the fiscal and appropriate policy committees of the
Legislature with semiannual updates regarding all of California's
Medicaid waivers to be provided in March and October of each year. At
a minimum, the semiannual updates shall include a listing of all
Medicaid waivers with all of the following information for each
waiver:
(a) Description of what federal laws or regulations are being
waived.
(b) Description of the purpose of the waiver.
(c) Description of whom the waiver serves and the number of
enrollees.
(d) Status of the waiver, including its expiration date and
pending renewal dates where applicable.
(e) State plan amendment number listing and date that is
applicable to the waiver.
(f) Department that administers the program.
(g) Any other information deemed useful by the department,
including any separate attachments or reports on a particular waiver.
SEC. 351. Any section of any act enacted by the Legislature during
the 2011 calendar year that takes effect on or before January 1,
2012, 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 2011 calendar year and takes
effect on or before January 1, 2012, amends, amends and renumbers,
adds, repeals and adds, or repeals any section contained in that
article, chapter, part, title, or division.
