Bill Text: CA AB1810 | 2011-2012 | Regular Session | Amended
Bill Title: Custom upholsterers.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2012-05-21 - From committee without further action pursuant to Joint Rule 62(a). [AB1810 Detail]
Download: California-2011-AB1810-Amended.html
BILL NUMBER: AB 1810 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 26, 2012
INTRODUCED BY Assembly Member Norby
FEBRUARY 21, 2012
An act to add Section 37 to the Business and Professions
Code, relating to professions and vocations. An act to
amend Sections 19051 and 19060.6 of, and to repeal Section 19052 of,
the Business and Professions Code, relating to custom upholsterers.
LEGISLATIVE COUNSEL'S DIGEST
AB 1810, as amended, Norby. Professions and vocations:
occupational regulations. Custom upholsterers.
Existing law makes it unlawful for a person to advertise, solicit,
or contract to manufacture, repair, or renovate upholstered
furniture, as specified, without obtaining a custom upholsterer's
license from the Bureau of Electronic and Appliance Repair, Home
Furnishings, and Thermal Insulation within the Department of Consumer
Affairs.
This bill would eliminate those provisions. The bill would make
conforming changes.
Existing law requires a person who advertises, solicits, or
contracts to repair or renovate upholstered furniture and who does
not do the work himself or herself or have it done by employees to
obtain a license as a retail furniture dealer.
This bill would eliminate that requirement.
Existing law provides for the licensure and regulation of various
professions and vocations by state agencies. Under existing law,
protection of the public is the highest priority for those state
agencies in exercising their licensing, regulatory, and disciplinary
functions.
This bill would provide a person with a right to engage in a
lawful profession or vocation without the imposition of an
occupational regulation, as defined, that imposes a substantial
burden on a person unless the state or other person relying upon the
occupational regulation demonstrates that it has a compelling
interest in protecting against harm to the public health or safety,
and the occupational regulation is the least restrictive means of
furthering that interest. The bill would authorize a person to bring
an action for declaratory judgment or equitable relief for a
violation of that right. The bill would also authorize a person to
assert as a defense the right to engage in a lawful profession or
vocation in a proceeding to enforce a violation of that right. The
bill would declare the intent of the Legislature in this regard.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 19051 of the
Business and Professions Code is amended to read:
19051. Every upholstered-furniture retailer, unless he or she
holds an importer's license, a furniture and bedding manufacturer's
license, a wholesale furniture and bedding dealer's license,
a custom upholsterer's license, or a retail furniture and
bedding dealer's license shall hold a retail furniture dealer's
license.
(a) This section does not apply to a person whose sole business is
designing and specifying for interior spaces, and who purchases
specific amenable upholstered furniture items on behalf of a client,
provided that the furniture is purchased from an appropriately
licensed importer, wholesaler, or retailer. This section does not
apply to a person who sells "used" and "antique" furniture as defined
in Sections 19008.1 and 19008.2.
(b) This section does not apply to a person who is licensed as a
home medical device retail facility by the State Department of Health
Services, provided that the furniture is purchased from an
appropriately licensed importer, wholesaler, or retailer.
SEC. 2. Section 19052 of the Business
and Professions Code is repealed.
19052. Every custom upholsterer, unless he or she holds a
furniture and bedding manufacturer's license, shall hold a custom
upholsterer's license.
SEC. 3. Section 19060.6 of the Business
and Professions Code is amended to read:
19060.6. (a) Except
as provided in subdivision (b), every Every
person who, on his or her own account, advertises, solicits or
contracts to manufacture, repair , or renovate
upholstered furniture or bedding, and who either does the
work himself or herself or has others do it for him or her, shall
obtain the particular license required by this chapter for the
particular type of work that he or she solicits or advertises that he
or she will do, regardless of whether he or she has a shop or
factory.
(b) Every person who, on his or her own account, advertises,
solicits or contracts to repair or renovate upholstered furniture and
who does not do the work himself or herself nor have employees do it
for him or her but does have the work done by a licensed custom
upholsterer need not obtain a license as a custom upholsterer but
shall obtain a license as a retail furniture dealer. However, nothing
in this section shall exempt a retail furniture dealer from
complying with Sections 19162 and 19163.
SECTION 1. Section 37 is added to the Business
and Professions Code, to read:
37. (a) It is the intent of the Legislature to ensure that a
person may pursue a lawful profession or vocation free from
unnecessary regulations and protect against the misuse of
occupational regulations to reduce competition and increase prices to
consumers.
(b) Notwithstanding any other provision of law, a person shall
have a right to engage in a lawful profession or vocation without the
imposition of an occupational regulation that imposes a substantial
burden on a person, unless the state or other person relying upon the
occupational regulation demonstrates that the state has a compelling
interest in protecting against present and recognizable harm to
public health or safety, and the occupational regulation is the least
restrictive means of furthering that compelling interest.
(c) A person may bring an action for a declaratory judgment or
injunctive relief or other equitable relief for a violation of
subdivision (b).
(d) A person may assert as a defense the right to engage in a
lawful profession or vocation in any judicial or administrative
proceeding to enforce an occupational regulation that violates
subdivision (b).
(e) A person who brings an action or asserts a defense under this
section has the initial burden of proof to demonstrate that an
occupational regulation substantially burdens the person's right to
engage in a lawful profession or vocation.
(f) If the person meets the burden of proof under subdivision (e),
the state or other person relying upon the occupational regulation
shall demonstrate by clear and convincing evidence that the state has
a compelling interest in protecting against present and recognizable
harm to the public health or safety, and that the occupational
regulation is the least restrictive means for furthering that
compelling interest.
(g) A court shall liberally construe this section to protect the
right established in subdivision (b). A court shall make its own
findings of fact and conclusions of law. A court shall not grant any
weight to a legislative declaration of harm to the public health or
safety, or a declaration that the regulation is the least restrictive
means of furthering a compelling state interest.
(h) For the purposes of this section, the following terms shall
have the following meanings:
(1) (A) "Certification" is a voluntary program for which the
Legislature establishes the criteria to grant recognition to a person
who has met predetermined qualifications. The person who meets the
qualification may use "certified" as a designated title, or advertise
that the person holds a "certification." Using the title "certified"
or advertising the holding of a certification by a person who has
not met the qualifications is against the law.
(B) A person who does not participate in the voluntary program for
certification or who does not meet the qualifications for
certification may, nonetheless, perform the lawful profession or
vocation for compensation.
(2) "Court" means a court, administrative tribunal, or other
government agency acting in a judicial or quasi-judicial capacity.
(3) (A) "Lawful profession or vocation" means a course of conduct,
pursuit, or profession that includes the sale of goods or services
that are not themselves illegal to sell irrespective of whether the
person selling them is subject to an occupational regulation.
(B) For the purposes of this section, "lawful profession or
vocation" shall not include the work of a person employed by the
government or acting as a legally recognized fiduciary.
(4) "Least restrictive" occupational regulations include, from
least to most restrictive, (A) a provision for private civil action
to remedy consumer harm, (B) a provision requiring inspection related
to a lawful profession or vocation, (C) a provision requiring the
posting of a bond related to a lawful profession or vocation, (D)
certification as defined in this section, and (E) a license as
defined in this section.
(5) "License" is a nontransferable authorization to perform a
lawful profession or vocation for compensation based on meeting
predetermined qualifications established by the Legislature, such as
(A) satisfactory completion of an approved education program, and (B)
acceptable performance on a qualifying examination or series of
examinations. It is unlawful for nonlicensed persons to perform the
profession or vocation for compensation. Licensing is the most
restrictive form of occupational regulation.
(6) "Occupational regulation" means a statute, rule, ordinance,
practice, policy, or other government-prescribed requirement for a
person to engage in a lawful profession or vocation.
(7) (A) "Professional registration" means a requirement
established by the Legislature pursuant to which a person (i) submits
notification pursuant to subparagraph (B) to a state agency, and
(ii) may use "registered" as a designated title. Professional
registration may include a requirement to post a bond related to a
lawful profession or vocation, but it does not include education or
experience requirements.
(B) The notification shall include the person's name and address,
the person's agent for service of process, the location where the
person engages in the profession or vocation, and a description of
the service the person provides.
(C) It shall be unlawful for a person to perform a lawful
profession or vocation for compensation while using "registered" as a
designated title, or advertising that he or she holds a registration
if he or she has not met the requirements of professional
registration.
(8) "Substantial burden" means a legal or other regulatory
obstacle that imposes significant difficulty or cost on a person
seeking to enter into or continue in a lawful profession or vocation.
A substantial burden is a burden that is more than incidental.
