100-144
BUSINESS AND PROFESSIONS CODE
SECTION 100-144
100. There is in the state government, in the State and Consumer
Services Agency, a Department of Consumer Affairs.
101. The department is comprised of:
(a) The Dental Board of California.
(b) The Medical Board of California.
(c) The State Board of Optometry.
(d) The California State Board of Pharmacy.
(e) The Veterinary Medical Board.
(f) The California Board of Accountancy.
(g) The California Architects Board.
(h) The Bureau of Barbering and Cosmetology.
(i) The Board for Professional Engineers and Land Surveyors.
(j) The Contractors' State License Board.
(k) The Bureau for Private Postsecondary Education.
(l) The Bureau of Electronic and Appliance Repair, Home
Furnishings, and Thermal Insulation.
(m) The Board of Registered Nursing.
(n) The Board of Behavioral Sciences.
(o) The State Athletic Commission.
(p) The Cemetery and Funeral Bureau.
(q) The State Board of Guide Dogs for the Blind.
(r) The Bureau of Security and Investigative Services.
(s) The Court Reporters Board of California.
(t) The Board of Vocational Nursing and Psychiatric Technicians.
(u) The Landscape Architects Technical Committee.
(v) The Division of Investigation.
(w) The Bureau of Automotive Repair.
(x) The Respiratory Care Board of California.
(y) The Acupuncture Board.
(z) The Board of Psychology.
(aa) The California Board of Podiatric Medicine.
(ab) The Physical Therapy Board of California.
(ac) The Arbitration Review Program.
(ad) The Physician Assistant Committee.
(ae) The Speech-Language Pathology and Audiology Board.
(af) The California Board of Occupational Therapy.
(ag) The Osteopathic Medical Board of California.
(ah) The Naturopathic Medicine Committee.
(ai) The Dental Hygiene Committee of California.
(aj) The Professional Fiduciaries Bureau.
(ak) Any other boards, offices, or officers subject to its
jurisdiction by law.
101.6. The boards, bureaus, and commissions in the department are
established for the purpose of ensuring that those private businesses
and professions deemed to engage in activities which have potential
impact upon the public health, safety, and welfare are adequately
regulated in order to protect the people of California.
To this end, they establish minimum qualifications and levels of
competency and license persons desiring to engage in the occupations
they regulate upon determining that such persons possess the
requisite skills and qualifications necessary to provide safe and
effective services to the public, or register or otherwise certify
persons in order to identify practitioners and ensure performance
according to set and accepted professional standards. They provide a
means for redress of grievances by investigating allegations of
unprofessional conduct, incompetence, fraudulent action, or unlawful
activity brought to their attention by members of the public and
institute disciplinary action against persons licensed or registered
under the provisions of this code when such action is warranted. In
addition, they conduct periodic checks of licensees, registrants, or
otherwise certified persons in order to ensure compliance with the
relevant sections of this code.
101.7. (a) Notwithstanding any other provision of law, boards shall
meet at least three times each calendar year. Boards shall meet at
least once each calendar year in northern California and once each
calendar year in southern California in order to facilitate
participation by the public and its licensees.
(b) The director at his or her discretion may exempt any board
from the requirement in subdivision (a) upon a showing of good cause
that the board is not able to meet at least three times in a calendar
year.
(c) The director may call for a special meeting of the board when
a board is not fulfilling its duties.
102. Upon the request of any board regulating, licensing, or
controlling any professional or vocational occupation created by an
initiative act, the Director of Consumer Affairs may take over the
duties of the board under the same conditions and in the same manner
as provided in this code for other boards of like character. Such
boards shall pay a proportionate cost of the administration of the
department on the same basis as is charged other boards included
within the department. Upon request from any such board which has
adopted the provisions of Chapter 5 (commencing with Section 11500)
of Part 1 of Division 3 of Title 2 of the Government Code as rules of
procedure in proceedings before it, the director shall assign
hearing officers for such proceedings in accordance with Section
110.5.
102.1. (a) If the Cemetery Board and the Funeral Directors and
Embalmers Board are not consolidated or otherwise restructured on
January 1, 1996, the Department of Consumer Affairs shall succeed to,
and is vested with, all the duties, powers, purpose,
responsibilities, and jurisdiction of the boards, including the
employment of one executive director for the purposes of performing
the department's obligations herewithin.
(b) Notwithstanding Section 107, any law authorizing the
appointment of an executive officer by the Cemetery Board and the
Funeral Directors and Embalmers Board shall not be implemented and
shall have no force or effect while either board is inoperative or
repealed.
(c) If legislation consolidating or otherwise restructuring the
Cemetery Board and the Funeral Directors and Embalmers Board is not
enacted, the Controller is authorized to transfer the necessary
amount of funds from Item 1335-001-0258 of the 1995 Budget Act to the
department for expenditure by the department for purposes of this
section.
(d) This section shall be operative only during the period that
legislation is not enacted to consolidate or otherwise restructure
the Cemetery Board and the Funeral Directors and Embalmers Board into
another board or entity.
102.2. (a) If the Structural Pest Control Board does not comply
with the contingencies specified in paragraphs (a) to (d), inclusive,
of Provision 1 of Item 1530-001-0775 of the Budget Act of 1995 by
January 1, 1996, as determined by the Department of Consumer Affairs,
then the department may succeed to and is vested with all the
duties, powers, purpose, responsibilities, and jurisdiction of the
board, including the employment of one executive director for the
purposes of performing the department obligations herein.
(b) If the department elects to not exercise control over the
board pursuant to subdivision (a), the department shall monitor the
board on a monthly basis and the Controller shall, on a monthly
basis, transfer the necessary amount of funds, not to exceed
one-sixth of the amount of the appropriation for each fund identified
in subdivision (c), to the board for the purpose of this
subdivision. If at any time the department determines that the board
is not meeting satisfactory progress toward the obligations set forth
in subdivision (a), the department may invoke privileges of
succession as allowed by subdivision (a).
Monitoring shall include a monthly report from the board, the
status of meeting the obligations set forth in subdivisions (a)
through (d), inclusive, of Provision 1 of Item 1530-001-0775 of the
Budget Act of 1995 in addition to other statutory obligations as
prescribed by law.
(c) Notwithstanding Section 107, any provision of law authorizing
the appointment of an executive officer by the Structural Pest
Control Board shall not be implemented and shall have no force or
effect while the board is inoperative or repealed. This subdivision
shall be in effect only if the Department of Consumer Affairs invokes
privileges of succession pursuant to subdivision (a).
(d) In the event that the Structural Pest Control Board does not
comply with Provision 1 of Item 1530-001-0775 of the Budget Act of
1995 by January 1, 1996, as determined by the department, the sum of
one million three hundred fifty-five thousand dollars ($1,355,000) is
thereupon appropriated from the Structural Pest Control Fund to the
department, and the sum of one hundred three thousand dollars
($103,000) is thereupon appropriated from the Structural Pest Control
Education and Enforcement Fund to the department, for purposes of
this section.
102.3. (a) The director may enter into an interagency agreement
with an appropriate entity within the Department of Consumer Affairs
as provided for in Section 101 to delegate the duties, powers,
purposes, responsibilities, and jurisdiction that have been succeeded
and vested with the department, of a board, as defined in Section
477, which became inoperative and was repealed in accordance with
Chapter 908 of the Statutes of 1994.
(b) (1) Where, pursuant to subdivision (a), an interagency
agreement is entered into between the director and that entity, the
entity receiving the delegation of authority may establish a
technical committee to regulate, as directed by the entity, the
profession subject to the authority that has been delegated. The
entity may delegate to the technical committee only those powers that
it received pursuant to the interagency agreement with the director.
The technical committee shall have only those powers that have been
delegated to it by the entity.
(2) Where the entity delegates its authority to adopt, amend, or
repeal regulations to the technical committee, all regulations
adopted, amended, or repealed by the technical committee shall be
subject to the review and approval of the entity.
(3) The entity shall not delegate to a technical committee its
authority to discipline a licentiate who has violated the provisions
of the applicable chapter of the Business and Professions Code that
is subject to the director's delegation of authority to the entity.
(c) An interagency agreement entered into, pursuant to subdivision
(a), shall continue until such time as the licensing program
administered by the technical committee has undergone a review by the
Joint Committee on Boards, Commissions, and Consumer Protection to
evaluate and determine whether the licensing program has demonstrated
a public need for its continued existence. Thereafter, at the
director's discretion, the interagency agreement may be renewed.
103. Each member of a board, commission, or committee created in
the various chapters of Division 2 (commencing with Section 500) and
Division 3 (commencing with Section 5000), and in Chapter 2
(commencing with Section 18600) and Chapter 3 (commencing with
Section 19000) of Division 8, shall receive the moneys specified in
this section when authorized by the respective provisions.
Each such member shall receive a per diem of one hundred dollars
($100) for each day actually spent in the discharge of official
duties, and shall be reimbursed for traveling and other expenses
necessarily incurred in the performance of official duties.
The payments in each instance shall be made only from the fund
from which the expenses of the agency are paid and shall be subject
to the availability of money.
Notwithstanding any other provision of law, no public officer or
employee shall receive per diem salary compensation for serving on
those boards, commissions, committees, or the Consumer Advisory
Council on any day when the officer or employee also received
compensation for his or her regular public employment.
104. All boards or other regulatory entities within the department'
s jurisdiction that the department determines to be health-related
may adopt regulations to require licensees to display their licenses
or registrations in the locality in which they are treating patients,
and to inform patients as to the identity of the regulatory agency
they may contact if they have any questions or complaints regarding
the licensee. In complying with this requirement, those boards may
take into consideration the particular settings in which licensees
practice, or other circumstances which may make the displaying or
providing of information to the consumer extremely difficult for the
licensee in their particular type of practice.
105. Members of boards in the department shall take an oath of
office as provided in the Constitution and the Government Code.
105.5. Notwithstanding any other provision of this code, each
member of a board, commission, examining committee, or other
similarly constituted agency within the department shall hold office
until the appointment and qualification of his successor or until one
year shall have elapsed since the expiration of the term for which
he was appointed, whichever first occurs.
106. The Governor has power to remove from office at any time, any
member of any board appointed by him for continued neglect of duties
required by law, or for incompetence, or unprofessional or
dishonorable conduct. Nothing in this section shall be construed as a
limitation or restriction on the power of the Governor, conferred on
him by any other provision of law, to remove any member of any
board.
106.5. Notwithstanding any other provision of law, the Governor may
remove from office a member of a board or other licensing entity in
the department if it is shown that such member has knowledge of the
specific questions to be asked on the licensing entity's next
examination and directly or indirectly discloses any such question or
questions in advance of or during the examination to any applicant
for that examination.
The proceedings for removal shall be conducted in accordance with
the provisions of Chapter 5 of Part 1 of Division 3 of Title 2 of the
Government Code, and the Governor shall have all the powers granted
therein.
107. Pursuant to subdivision (e) of Section 4 of Article VII of the
California Constitution, each board may appoint a person exempt from
civil service and may fix his or her salary, with the approval of
the Department of Personnel Administration pursuant to Section 19825
of the Government Code, who shall be designated as an executive
officer unless the licensing act of the particular board designates
the person as a registrar.
107.5. If any board in the department uses an official seal
pursuant to any provision of this code, the seal shall contain the
words "State of California" and "Department of Consumer Affairs" in
addition to the title of the board, and shall be in a form approved
by the director.
108. Each of the boards comprising the department exists as a
separate unit, and has the functions of setting standards, holding
meetings, and setting dates thereof, preparing and conducting
examinations, passing upon applicants, conducting investigations of
violations of laws under its jurisdiction, issuing citations and
holding hearings for the revocation of licenses, and the imposing of
penalties following those hearings, insofar as these powers are given
by statute to each respective board.
108.5. In any investigation, proceeding or hearing which any board,
commission or officer in the department is empowered to institute,
conduct, or hold, any witness appearing at such investigation,
proceeding or hearing whether upon a subpoena or voluntarily, may be
paid the sum of twelve dollars ($12) per day for every day in actual
attendance at such investigation, proceeding or hearing and for his
actual, necessary and reasonable expenses and such sums shall be a
legal charge against the funds of the respective board, commission or
officer; provided further, that no witness appearing other than at
the instance of the board, commission or officer may be compensated
out of such fund.
The board, commission or officer will determine the sums due any
such witness and enter the amount on its minutes.
109. (a) The decisions of any of the boards comprising the
department with respect to setting standards, conducting
examinations, passing candidates, and revoking licenses, are not
subject to review by the director, but are final within the limits
provided by this code which are applicable to the particular board,
except as provided in this section.
(b) The director may initiate an investigation of any allegations
of misconduct in the preparation, administration, or scoring of an
examination which is administered by a board, or in the review of
qualifications which are a part of the licensing process of any
board. A request for investigation shall be made by the director to
the Division of Investigation through the chief of the division or to
any law enforcement agency in the jurisdiction where the alleged
misconduct occurred.
(c) The director may intervene in any matter of any board where an
investigation by the Division of Investigation discloses probable
cause to believe that the conduct or activity of a board, or its
members or employees constitutes a violation of criminal law.
The term "intervene," as used in paragraph (c) of this section may
include, but is not limited to, an application for a restraining
order or injunctive relief as specified in Section 123.5, or a
referral or request for criminal prosecution. For purposes of this
section, the director shall be deemed to have standing under Section
123.5 and shall seek representation of the Attorney General, or other
appropriate counsel in the event of a conflict in pursuing that
action.
110. The department shall have possession and control of all
records, books, papers, offices, equipment, supplies, funds,
appropriations, land and other property--real or personal--now or
hereafter held for the benefit or use of all of the bodies, offices
or officers comprising the department. The title to all property held
by any of these bodies, offices or officers for the use and benefit
of the state, is vested in the State of California to be held in the
possession of the department. Except as authorized by a board, the
department shall not have the possession and control of examination
questions prior to submission to applicants at scheduled
examinations.
111. Unless otherwise expressly provided, any board may, with the
approval of the appointing power, appoint qualified persons, who
shall be designated as commissioners on examination, to give the
whole or any portion of any examination. A commissioner on
examination need not be a member of the board but he shall have the
same qualifications as one and shall be subject to the same rules.
112. Notwithstanding any other provision of this code, no agency in
the department, with the exception of the Board for Professional
Engineers and Land Surveyors, shall be required to compile, publish,
sell, or otherwise distribute a directory. When an agency deems it
necessary to compile and publish a directory, the agency shall
cooperate with the director in determining its form and content, the
time and frequency of its publication, the persons to whom it is to
be sold or otherwise distributed, and its price if it is sold. Any
agency that requires the approval of the director for the
compilation, publication, or distribution of a directory, under the
law in effect at the time the amendment made to this section at the
1970 Regular Session of the Legislature becomes effective, shall
continue to require that approval. As used in this section,
"directory" means a directory, roster, register, or similar
compilation of the names of persons who hold a license, certificate,
permit, registration, or similar indicia of authority from the
agency.
113. Upon recommendation of the director, officers, and employees
of the department, and the officers, members, and employees of the
boards, committees, and commissions comprising it or subject to its
jurisdiction may confer, in this state or elsewhere, with officers or
employees of this state, its political subdivisions, other states,
or the United States, or with other persons, associations, or
organizations as may be of assistance to the department, board,
committee, or commission in the conduct of its work. The officers,
members, and employees shall be entitled to their actual traveling
expenses incurred in pursuance hereof, but when these expenses are
incurred with respect to travel outside of the state, they shall be
subject to the approval of the Governor and the Director of Finance.
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,
(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.
115. The provisions of Section 114 of this code are also applicable
to a licensee or registrant whose license or registration was
obtained while in the armed services.
116. (a) The director may audit and review, upon his or her own
initiative, or upon the request of a consumer or licensee, inquiries
and complaints regarding licensees, dismissals of disciplinary cases,
the opening, conduct, or closure of investigations, informal
conferences, and discipline short of formal accusation by the Medical
Board of California, the allied health professional boards, and the
California Board of Podiatric Medicine. The director may make
recommendations for changes to the disciplinary system to the
appropriate board, the Legislature, or both.
(b) The director shall report to the Chairpersons of the Senate
Business and Professions Committee and the Assembly Health Committee
annually, commencing March 1, 1995, regarding his or her findings
from any audit, review, or monitoring and evaluation conducted
pursuant to this section.
118. (a) The withdrawal of an application for a license after it
has been filed with a board in the department shall not, unless the
board has consented in writing to such withdrawal, deprive the board
of its authority to institute or continue a proceeding against the
applicant for the denial of the license upon any ground provided by
law or to enter an order denying the license upon any such ground.
(b) The suspension, expiration, or forfeiture by operation of law
of a license issued by a board in the department, or its suspension,
forfeiture, or cancellation by order of the board or by order of a
court of law, or its surrender without the written consent of the
board, shall not, during any period in which it may be renewed,
restored, reissued, or reinstated, deprive the board of its authority
to institute or continue a disciplinary proceeding against the
licensee upon any ground provided by law or to enter an order
suspending or revoking the license or otherwise taking disciplinary
action against the licensee on any such ground.
(c) As used in this section, "board" includes an individual who is
authorized by any provision of this code to issue, suspend, or
revoke a license, and "license" includes "certificate,"
"registration," and "permit."
119. Any person who does any of the following is guilty of a
misdemeanor:
(a) Displays or causes or permits to be displayed or has in his or
her possession either of the following:
(1) A canceled, revoked, suspended, or fraudulently altered
license.
(2) A fictitious license or any document simulating a license or
purporting to be or have been issued as a license.
(b) Lends his or her license to any other person or knowingly
permits the use thereof by another.
(c) Displays or represents any license not issued to him or her as
being his or her license.
(d) Fails or refuses to surrender to the issuing authority upon
its lawful written demand any license, registration, permit, or
certificate which has been suspended, revoked, or canceled.
(e) Knowingly permits any unlawful use of a license issued to him
or her.
(f) Photographs, photostats, duplicates, manufactures, or in any
way reproduces any license or facsimile thereof in a manner that it
could be mistaken for a valid license, or displays or has in his or
her possession any such photograph, photostat, duplicate,
reproduction, or facsimile unless authorized by this code.
(g) Buys or receives a fraudulent, forged, or counterfeited
license knowing that it is fraudulent, forged, or counterfeited. For
purposes of this subdivision, "fraudulent" means containing any
misrepresentation of fact.
As used in this section, "license" includes "certificate,"
"permit," "authority," and "registration" or any other indicia giving
authorization to engage in a business or profession regulated by
this code or referred to in Section 1000 or 3600.
120. (a) Subdivision (a) of Section 119 shall not apply to a
surviving spouse having in his or her possession or displaying a
deceased spouse's canceled certified public accountant certificate or
canceled public accountant certificate that has been canceled by
official action of the California Board of Accountancy.
(b) Notwithstanding Section 119, any person who has received a
certificate of certified public accountant or a certificate of public
accountant from the board may possess and may display the
certificate received unless the person's certificate, permit, or
registration has been suspended or revoked.
121. No licensee who has complied with the provisions of this code
relating to the renewal of his or her license prior to expiration of
such license shall be deemed to be engaged illegally in the practice
of his or her business or profession during any period between such
renewal and receipt of evidence of such renewal which may occur due
to delay not the fault of the applicant.
As used in this section, "license" includes "certificate,"
"permit," "authorization," and "registration," or any other indicia
giving authorization, by any agency, board, bureau, commission,
committee, or entity within the Department of Consumer Affairs, to
engage in a business or profession regulated by this code or by the
board referred to in the Chiropractic Act or the Osteopathic Act.
121.5. Except as otherwise provided in this code, the application
of delinquency fees or accrued and unpaid renewal fees for the
renewal of expired licenses or registrations shall not apply to
licenses or registrations that have lawfully been designated as
inactive or retired.
122. Except as otherwise provided by law, the department and each
of the boards, bureaus, committees, and commissions within the
department may charge a fee for the processing and issuance of a
duplicate copy of any certificate of licensure or other form
evidencing licensure or renewal of licensure. The fee shall be in an
amount sufficient to cover all costs incident to the issuance of the
duplicate certificate or other form but shall not exceed twenty-five
dollars ($25).
123. It is a misdemeanor for any person to engage in any conduct
which subverts or attempts to subvert any licensing examination or
the administration of an examination, including, but not limited to:
(a) Conduct which violates the security of the examination
materials; removing from the examination room any examination
materials without authorization; the unauthorized reproduction by any
means of any portion of the actual licensing examination; aiding by
any means the unauthorized reproduction of any portion of the actual
licensing examination; paying or using professional or paid
examination-takers for the purpose of reconstructing any portion of
the licensing examination; obtaining examination questions or other
examination material, except by specific authorization either before,
during, or after an examination; or using or purporting to use any
examination questions or materials which were improperly removed or
taken from any examination for the purpose of instructing or
preparing any applicant for examination; or selling, distributing,
buying, receiving, or having unauthorized possession of any portion
of a future, current, or previously administered licensing
examination.
(b) Communicating with any other examinee during the
administration of a licensing examination; copying answers from
another examinee or permitting one's answers to be copied by another
examinee; having in one's possession during the administration of the
licensing examination any books, equipment, notes, written or
printed materials, or data of any kind, other than the examination
materials distributed, or otherwise authorized to be in one's
possession during the examination; or impersonating any examinee or
having an impersonator take the licensing examination on one's
behalf.
Nothing in this section shall preclude prosecution under the
authority provided for in any other provision of law.
In addition to any other penalties, a person found guilty of
violating this section, shall be liable for the actual damages
sustained by the agency administering the examination not to exceed
ten thousand dollars ($10,000) and the costs of litigation.
(c) If any provision of this section or the application thereof to
any person or circumstances is held invalid, that invalidity shall
not affect other provisions or applications of the section that can
be given effect without the invalid provision or application, and to
this end the provisions of this section are severable.
123.5. Whenever any person has engaged, or is about to engage, in
any acts or practices which constitute, or will constitute, a
violation of Section 123, the superior court in and for the county
wherein the acts or practices take place, or are about to take place,
may issue an injunction, or other appropriate order, restraining
such conduct on application of a board, the Attorney General or the
district attorney of the county.
The proceedings under this section shall be governed by Chapter 3
(commencing with Section 525) of Title 7 of Part 2 of the Code of
Civil Procedure.
The remedy provided for by this section shall be in addition to,
and not a limitation on, the authority provided for in any other
provision of law.
124. Notwithstanding subdivision (c) of Section 11505 of the
Government Code, whenever written notice, including a notice, order,
or document served pursuant to Chapter 3.5 (commencing with Section
11340), Chapter 4 (commencing with Section 11370), or Chapter 5
(commencing with Section 11500), of Part 1 of Division 3 of Title 2
of the Government Code, is required to be given by any board in the
department, the notice may be given by regular mail addressed to the
last known address of the licentiate or by personal service, at the
option of the board.
125. Any person, licensed under Division 1 (commencing with Section
100), Division 2 (commencing with Section 500), or Division 3
(commencing with Section 5000) is guilty of a misdemeanor and subject
to the disciplinary provisions of this code applicable to him or
her, who conspires with a person not so licensed to violate any
provision of this code, or who, with intent to aid or assist that
person in violating those provisions does either of the following:
(a) Allows his or her license to be used by that person.
(b) Acts as his or her agent or partner.
125.3. (a) Except as otherwise provided by law, in any order issued
in resolution of a disciplinary proceeding before any board within
the department or before the Osteopathic Medical Board, upon request
of the entity bringing the proceeding may request the administrative
law judge to direct a licentiate found to have committed a violation
or violations of the licensing act to pay a sum not to exceed the
reasonable costs of the investigation and enforcement of the case.
(b) In the case of a disciplined licentiate that is a corporation
or a partnership, the order may be made against the licensed
corporate entity or licensed partnership.
(c) A certified copy of the actual costs, or a good faith estimate
of costs where actual costs are not available, signed by the entity
bringing the proceeding or its designated representative shall be
prima facie evidence of reasonable costs of investigation and
prosecution of the case. The costs shall include the amount of
investigative and enforcement costs up to the date of the hearing,
including, but not limited to, charges imposed by the Attorney
General.
(d) The administrative law judge shall make a proposed finding of
the amount of reasonable costs of investigation and prosecution of
the case when requested pursuant to subdivision (a). The finding of
the administrative law judge with regard to costs shall not be
reviewable by the board to increase the cost award. The board may
reduce or eliminate the cost award, or remand to the administrative
law judge where the proposed decision fails to make a finding on
costs requested pursuant to subdivision (a).
(e) Where an order for recovery of costs is made and timely
payment is not made as directed in the board's decision, the board
may enforce the order for repayment in any appropriate court. This
right of enforcement shall be in addition to any other rights the
board may have as to any licentiate to pay costs.
(f) In any action for recovery of costs, proof of the board's
decision shall be conclusive proof of the validity of the order of
payment and the terms for payment.
(g) (1) Except as provided in paragraph (2), the board shall not
renew or reinstate the license of any licentiate who has failed to
pay all of the costs ordered under this section.
(2) Notwithstanding paragraph (1), the board may, in its
discretion, conditionally renew or reinstate for a maximum of one
year the license of any licentiate who demonstrates financial
hardship and who enters into a formal agreement with the board to
reimburse the board within that one-year period for the unpaid costs.
(h) All costs recovered under this section shall be considered a
reimbursement for costs incurred and shall be deposited in the fund
of the board recovering the costs to be available upon appropriation
by the Legislature.
(i) Nothing in this section shall preclude a board from including
the recovery of the costs of investigation and enforcement of a case
in any stipulated settlement.
(j) This section does not apply to any board if a specific
statutory provision in that board's licensing act provides for
recovery of costs in an administrative disciplinary proceeding.
125.3. (a) Except as otherwise provided by law, in any order issued
in resolution of a disciplinary proceeding before any board within
the department or before the Osteopathic Medical Board, upon request
of the entity bringing the proceeding, the administrative law judge
may direct a licentiate found to have committed a violation or
violations of the licensing act to pay a sum not to exceed the
reasonable costs of the investigation and enforcement of the case.
(b) In the case of a disciplined licentiate that is a corporation
or a partnership, the order may be made against the licensed
corporate entity or licensed partnership.
(c) A certified copy of the actual costs, or a good faith estimate
of costs where actual costs are not available, signed by the entity
bringing the proceeding or its designated representative shall be
prima facie evidence of reasonable costs of investigation and
prosecution of the case. The costs shall include the amount of
investigative and enforcement costs up to the date of the hearing,
including, but not limited to, charges imposed by the Attorney
General.
(d) The administrative law judge shall make a proposed finding of
the amount of reasonable costs of investigation and prosecution of
the case when requested pursuant to subdivision (a). The finding of
the administrative law judge with regard to costs shall not be
reviewable by the board to increase the cost award. The board may
reduce or eliminate the cost award, or remand to the administrative
law judge if the proposed decision fails to make a finding on costs
requested pursuant to subdivision (a).
(e) If an order for recovery of costs is made and timely payment
is not made as directed in the board's decision, the board may
enforce the order for repayment in any appropriate court. This right
of enforcement shall be in addition to any other rights the board may
have as to any licentiate to pay costs.
(f) In any action for recovery of costs, proof of the board's
decision shall be conclusive proof of the validity of the order of
payment and the terms for payment.
(g) (1) Except as provided in paragraph (2), the board shall not
renew or reinstate the license of any licentiate who has failed to
pay all of the costs ordered under this section.
(2) Notwithstanding paragraph (1), the board may, in its
discretion, conditionally renew or reinstate for a maximum of one
year the license of any licentiate who demonstrates financial
hardship and who enters into a formal agreement with the board to
reimburse the board within that one-year period for the unpaid costs.
(h) All costs recovered under this section shall be considered a
reimbursement for costs incurred and shall be deposited in the fund
of the board recovering the costs to be available upon appropriation
by the Legislature.
(i) Nothing in this section shall preclude a board from including
the recovery of the costs of investigation and enforcement of a case
in any stipulated settlement.
(j) This section does not apply to any board if a specific
statutory provision in that board's licensing act provides for
recovery of costs in an administrative disciplinary proceeding.
(k) Notwithstanding the provisions of this section, the Medical
Board of California shall not request nor obtain from a physician and
surgeon, investigation and prosecution costs for a disciplinary
proceeding against the licentiate. The board shall ensure that this
subdivision is revenue neutral with regard to it and that any loss of
revenue or increase in costs resulting from this subdivision is
offset by an increase in the amount of the initial license fee and
the biennial renewal fee, as provided in subdivision (e) of Section
2435.
125.5. (a) The superior court for the county in which any person
has engaged or is about to engage in any act which constitutes a
violation of a chapter of this code administered or enforced by a
board within the department may, upon a petition filed by the board
with the approval of the director, issue an injunction or other
appropriate order restraining such conduct. The proceedings under
this section shall be governed by Chapter 3 (commencing with Section
525) of Title 7 of Part 2 of the Code of Civil Procedure. As used in
this section, "board" includes commission, bureau, division, agency
and a medical quality review committee.
(b) The superior court for the county in which any person has
engaged in any act which constitutes a violation of a chapter of this
code administered or enforced by a board within the department may,
upon a petition filed by the board with the approval of the director,
order such person to make restitution to persons injured as a result
of such violation.
(c) The court may order a person subject to an injunction or
restraining order, provided for in subdivision (a) of this section,
or subject to an order requiring restitution pursuant to subdivision
(b), to reimburse the petitioning board for expenses incurred by the
board in its investigation related to its petition.
(d) The remedy provided for by this section shall be in addition
to, and not a limitation on, the authority provided for in any other
section of this code.
125.6. (a) (1) With regard to an applicant, every person who holds
a license under the provisions of this code is subject to
disciplinary action under the disciplinary provisions of this code
applicable to that person if, because of any characteristic listed or
defined in subdivision (b) or (e) of Section 51 of the Civil Code,
he or she refuses to perform the licensed activity or aids or incites
the refusal to perform that licensed activity by another licensee,
or if, because of any characteristic listed or defined in subdivision
(b) or (e) of Section 51 of the Civil Code, he or she makes any
discrimination, or restriction in the performance of the licensed
activity.
(2) Nothing in this section shall be interpreted to prevent a
physician or health care professional licensed pursuant to Division 2
(commencing with Section 500) from considering any of the
characteristics of a patient listed in subdivision (b) or (e) of
Section 51 of the Civil Code if that consideration is medically
necessary and for the sole purpose of determining the appropriate
diagnosis or treatment of the patient.
(3) Nothing in this section shall be interpreted to apply to
discrimination by employers with regard to employees or prospective
employees, nor shall this section authorize action against any club
license issued pursuant to Article 4 (commencing with Section 23425)
of Chapter 3 of Division 9 because of discriminatory membership
policy.
(4) The presence of architectural barriers to an individual with
physical disabilities that conform to applicable state or local
building codes and regulations shall not constitute discrimination
under this section.
(b) (1) Nothing in this section requires a person licensed
pursuant to Division 2 (commencing with Section 500) to permit an
individual to participate in, or benefit from, the licensed activity
of the licensee where that individual poses a direct threat to the
health or safety of others. For this purpose, the term "direct threat"
means a significant risk to the health or safety of others that
cannot be eliminated by a modification of policies, practices, or
procedures or by the provision of auxiliary aids and services.
(2) Nothing in this section requires a person licensed pursuant to
Division 2 (commencing with Section 500) to perform a licensed
activity for which he or she is not qualified to perform.
(c) (1) "Applicant," as used in this section, means a person
applying for licensed services provided by a person licensed under
this code.
(2) "License," as used in this section, includes "certificate,"
"permit," "authority," and "registration" or any other indicia giving
authorization to engage in a business or profession regulated by
this code.
125.7. In addition to the remedy provided for in Section 125.5, the
superior court for the county in which any licensee licensed under
Division 2 (commencing with Section 500), or any initiative act
referred to in that division, has engaged or is about to engage in
any act that constitutes a violation of a chapter of this code
administered or enforced by a board referred to in Division 2
(commencing with Section 500), may, upon a petition filed by the
board and accompanied by an affidavit or affidavits in support
thereof and a memorandum of points and authorities, issue a temporary
restraining order or other appropriate order restraining the
licensee from engaging in the business or profession for which the
person is licensed or from any part thereof, in accordance with this
section.
(a) If the affidavits in support of the petition show that the
licensee has engaged or is about to engage in acts or omissions
constituting a violation of a chapter of this code and if the court
is satisfied that permitting the licensee to continue to engage in
the business or profession for which the license was issued will
endanger the public health, safety, or welfare, the court may issue
an order temporarily restraining the licensee from engaging in the
profession for which he or she is licensed.
(b) The order may not be issued without notice to the licensee
unless it appears from facts shown by the affidavits that serious
injury would result to the public before the matter can be heard on
notice.
(c) Except as otherwise specifically provided by this section,
proceedings under this section shall be governed by Chapter 3
(commencing with Section 525) of Title 7 of Part 2 of the Code of
Civil Procedure.
(d) When a restraining order is issued pursuant to this section,
or within a time to be allowed by the superior court, but in any case
not more than 30 days after the restraining order is issued, an
accusation shall be filed with the board pursuant to Section 11503 of
the Government Code or, in the case of a licensee of the State
Department of Health Services, with that department pursuant to
Section 100171 of the Health and Safety Code. The accusation shall be
served upon the licensee as provided by Section 11505 of the
Government Code. The licensee shall have all of the rights and
privileges available as specified in Chapter 5 (commencing with
Section 11500) of Part 1 of Division 3 of Title 2 of the Government
Code. However, if the licensee requests a hearing on the accusation,
the board shall provide the licensee with a hearing within 30 days of
the request and a decision within 15 days of the date the decision
is received from the administrative law judge, or the court may
nullify the restraining order previously issued. Any restraining
order issued pursuant to this section shall be dissolved by operation
of law at the time the board's decision is subject to judicial
review pursuant to Section 1094.5 of the Code of Civil Procedure.
(e) The remedy provided for in this section shall be in addition
to, and not a limitation upon, the authority provided by any other
provision of this code.
125.8. In addition to the remedy provided for in Section 125.5, the
superior court for the county in which any licensee licensed under
Division 3 (commencing with Section 5000) or Chapter 2 (commencing
with Section 18600) or Chapter 3 (commencing with Section 19000) of
Division 8 has engaged or is about to engage in any act which
constitutes a violation of a chapter of this code administered or
enforced by a board referred to in Division 3 (commencing with
Section 5000) or Chapter 2 (commencing with Section 18600) or Chapter
3 (commencing with Section 19000) of Division 8 may, upon a petition
filed by the board and accompanied by an affidavit or affidavits in
support thereof and a memorandum of points and authorities, issue a
temporary restraining order or other appropriate order restraining
the licensee from engaging in the business or profession for which
the person is licensed or from any part thereof, in accordance with
the provisions of this section.
(a) If the affidavits in support of the petition show that the
licensee has engaged or is about to engage in acts or omissions
constituting a violation of a chapter of this code and if the court
is satisfied that permitting the licensee to continue to engage in
the business or profession for which the license was issued will
endanger the public health, safety, or welfare, the court may issue
an order temporarily restraining the licensee from engaging in the
profession for which he is licensed.
(b) Such order may not be issued without notice to the licensee
unless it appears from facts shown by the affidavits that serious
injury would result to the public before the matter can be heard on
notice.
(c) Except as otherwise specifically provided by this section,
proceedings under this section shall be governed by Chapter 3
(commencing with Section 525) of Title 7 of Part 2 of the Code of
Civil Procedure.
(d) When a restraining order is issued pursuant to this section,
or within a time to be allowed by the superior court, but in any case
not more than 30 days after the restraining order is issued, an
accusation shall be filed with the board pursuant to Section 11503 of
the Government Code. The accusation shall be served upon the
licensee as provided by Section 11505 of the Government Code. The
licensee shall have all of the rights and privileges available as
specified in Chapter 5 (commencing with Section 11500) of Part 1 of
Division 3 of Title 2 of the Government Code; however, if the
licensee requests a hearing on the accusation, the board must provide
the licensee with a hearing within 30 days of the request and a
decision within 15 days of the date of the conclusion of the hearing,
or the court may nullify the restraining order previously issued.
Any restraining order issued pursuant to this section shall be
dissolved by operation of law at such time the board's decision is
subject to judicial review pursuant to Section 1094.5 of the Code of
Civil Procedure.
125.9. (a) Except with respect to persons regulated under Chapter
11 (commencing with Section 7500), and Chapter 11.6 (commencing with
Section 7590) of Division 3, any board, bureau, or commission within
the department, the board created by the Chiropractic Initiative Act,
and the Osteopathic Medical Board of California, may establish, by
regulation, a system for the issuance to a licensee of a citation
which may contain an order of abatement or an order to pay an
administrative fine assessed by the board, bureau, or commission
where the licensee is in violation of the applicable licensing act or
any regulation adopted pursuant thereto.
(b) The system shall contain the following provisions:
(1) Citations shall be in writing and shall describe with
particularity the nature of the violation, including specific
reference to the provision of law determined to have been violated.
(2) Whenever appropriate, the citation shall contain an order of
abatement fixing a reasonable time for abatement of the violation.
(3) In no event shall the administrative fine assessed by the
board, bureau, or commission exceed five thousand dollars ($5,000)
for each inspection or each investigation made with respect to the
violation, or five thousand dollars ($5,000) for each violation or
count if the violation involves fraudulent billing submitted to an
insurance company, the Medi-Cal program, or Medicare. In assessing a
fine, the board, bureau, or commission shall give due consideration
to the appropriateness of the amount of the fine with respect to
factors such as the gravity of the violation, the good faith of the
licensee, and the history of previous violations.
(4) A citation or fine assessment issued pursuant to a citation
shall inform the licensee that if he or she desires a hearing to
contest the finding of a violation, that hearing shall be requested
by written notice to the board, bureau, or commission within 30 days
of the date of issuance of the citation or assessment. If a hearing
is not requested pursuant to this section, payment of any fine shall
not constitute an admission of the violation charged. Hearings shall
be held pursuant to Chapter 5 (commencing with Section 11500) of Part
1 of Division 3 of Title 2 of the Government Code.
(5) Failure of a licensee to pay a fine within 30 days of the date
of assessment, unless the citation is being appealed, may result in
disciplinary action being taken by the board, bureau, or commission.
Where a citation is not contested and a fine is not paid, the full
amount of the assessed fine shall be added to the fee for renewal of
the license. A license shall not be renewed without payment of the
renewal fee and fine.
(c) The system may contain the following provisions:
(1) A citation may be issued without the assessment of an
administrative fine.
(2) Assessment of administrative fines may be limited to only
particular violations of the applicable licensing act.
(d) Notwithstanding any other provision of law, if a fine is paid
to satisfy an assessment based on the finding of a violation, payment
of the fine shall be represented as satisfactory resolution of the
matter for purposes of public disclosure.
(e) Administrative fines collected pursuant to this section shall
be deposited in the special fund of the particular board, bureau, or
commission.
126. Notwithstanding any other provision of this code, any board,
commission, examining committee, or other similarly constituted
agency within the department required prior to the effective date of
this section to submit reports to the Governor under any provision of
this code shall not be required to submit such reports.
127. Notwithstanding any other provision of this code, the director
may require such reports from any board, commission, examining
committee, or other similarly constituted agency within the
department as he deems reasonably necessary on any phase of their
operations.
128. Notwithstanding any other provision of law, it is a
misdemeanor to sell equipment, supplies, or services to any person
with knowledge that the equipment, supplies, or services are to be
used in the performance of a service or contract in violation of the
licensing requirements of this code.
The provisions of this section shall not be applicable to cash
sales of less than one hundred dollars ($100).
For the purposes of this section, "person" includes, but is not
limited to, a company, partnership, limited liability company, firm,
or corporation.
For the purposes of this section, "license" includes certificate
or registration.
A violation of this section shall be punishable by a fine of not
less than one thousand dollars ($1,000) and by imprisonment in the
county jail not exceeding six months.
128.5. (a) Notwithstanding any other provision of law, if at the
end of any fiscal year, an agency within the Department of Consumer
Affairs, except the agencies referred to in subdivision (b), has
unencumbered funds in an amount that equals or is more than the
agency's operating budget for the next two fiscal years, the agency
shall reduce license or other fees, whether the license or other fees
be fixed by statute or may be determined by the agency within limits
fixed by statute, during the following fiscal year in an amount that
will reduce any surplus funds of the agency to an amount less than
the agency's operating budget for the next two fiscal years.
(b) Notwithstanding any other provision of law, if at the end of
any fiscal year, the California Architects Board, the Board of
Behavioral Sciences, the Veterinary Medical Board, the Court
Reporters Board of California, the Medical Board of California, the
Board of Vocational Nursing and Psychiatric Technicians, or the
Bureau of Security and Investigative Services has unencumbered funds
in an amount that equals or is more than the agency's operating
budget for the next two fiscal years, the agency shall reduce license
or other fees, whether the license or other fees be fixed by statute
or may be determined by the agency within limits fixed by statute,
during the following fiscal year in an amount that will reduce any
surplus funds of the agency to an amount less than the agency's
operating budget for the next two fiscal years.
129. (a) As used in this section, "board" means every board,
bureau, commission, committee and similarly constituted agency in the
department which issues licenses.
(b) Each board shall, upon receipt of any complaint respecting a
licentiate thereof, notify the complainant of the initial
administrative action taken on his complaint within 10 days of
receipt. Each board shall thereafter notify the complainant of the
final action taken on his complaint. There shall be a notification
made in every case in which the complainant is known. If the
complaint is not within the jurisdiction of the board or if the board
is unable to dispose satisfactorily of the complaint, the board
shall transmit the complaint together with any evidence or
information it has concerning the complaint to the agency, public or
private, whose authority in the opinion of the board will provide the
most effective means to secure the relief sought. The board shall
notify the complainant of such action and of any other means which
may be available to the complainant to secure relief.
(c) The board shall, when the board deems it appropriate, notify
the person against whom the complaint is made of the nature of the
complaint, may request appropriate relief for the complainant, and
may meet and confer with the complainant and the licentiate in order
to mediate the complaint. Nothing in this subdivision shall be
construed as authorizing or requiring any board to set or to modify
any fee charged by a licentiate.
(d) It shall be the continuing duty of the board to ascertain
patterns of complaints and to report on all actions taken with
respect to such patterns of complaints to the director and to the
Legislature at least once a year. The board shall evaluate those
complaints dismissed for lack of jurisdiction or no violation and
recommend to the director and to the Legislature at least once a year
such statutory changes as it deems necessary to implement the board'
s functions and responsibilities under this section.
(e) It shall be the continuing duty of the board to take whatever
action it deems necessary, with the approval of the director, to
inform the public of its functions under this section.
130. (a) Notwithstanding any other provision of law, the term of
office of any member of an agency designated in subdivision (b) shall
be for a term of four years expiring on June 1.
(b) Subdivision (a) applies to the following boards or committees:
(1) The Medical Board of California.
(2) The California Board of Podiatric Medicine.
(3) The Physical Therapy Board of California.
(4) The Board of Registered Nursing.
(5) The Board of Vocational Nursing and Psychiatric Technicians.
(6) The State Board of Optometry.
(7) The California State Board of Pharmacy.
(8) The Veterinary Medical Board.
(9) The California Architects Board.
(10) The Landscape Architect Technical Committee.
(11) The Board for Professional Engineers and Land Surveyors.
(12) The Contractors' State License Board.
(13) The State Board of Guide Dogs for the Blind.
(14) The Board of Behavioral Sciences.
(15) The Court Reporters Board of California.
(16) The State Athletic Commission.
(17) The Osteopathic Medical Board of California.
(18) The Respiratory Care Board of California.
(19) The Acupuncture Board.
(20) The Board of Psychology.
131. Notwithstanding any other provision of law, no member of an
agency designated in subdivision (b) of Section 130 or member of a
board, commission, committee, or similarly constituted agency in the
department shall serve more than two consecutive full terms.
132. No board, commission, examining committee, or any other agency
within the department may institute or join any legal action against
any other agency within the state or federal government without the
permission of the director.
Prior to instituting or joining in a legal action against an
agency of the state or federal government, a board, commission,
examining committee, or any other agency within the department shall
present a written request to the director to do so.
Within 30 days of receipt of the request, the director shall
communicate his or her approval or denial of the request and his or
her reasons for approval or denial to the requesting agency in
writing. If the director does not act within 30 days, the request
shall be deemed approved.
A requesting agency within the department may override the
director's denial of its request to institute or join a legal action
against a state or federal agency by a two-thirds vote of the members
of the board, commission, examining committee, or other agency,
which vote shall include the vote of at least one public member of
that board, commission, examining committee, or other agency.
134. When the term of any license issued by any agency in the
department exceeds one year, initial license fees for licenses which
are issued during a current license term shall be prorated on a
yearly basis.
135. No agency in the department shall, on the basis of an
applicant's failure to successfully complete prior examinations,
impose any additional limitations, restrictions, prerequisites, or
requirements on any applicant who wishes to participate in subsequent
examinations except that any examining agency which allows an
applicant conditional credit for successfully completing a divisible
part of an examination may require that an applicant be reexamined in
those parts successfully completed if such applicant has not
successfully completed all parts of the examination within a required
period of time established by the examining agency. Nothing in this
section, however, requires the exemption of such applicant from the
regular fees and requirements normally associated with examinations.
136. (a) Each person holding a license, certificate, registration,
permit, or other authority to engage in a profession or occupation
issued by a board within the department shall notify the issuing
board at its principal office of any change in his or her mailing
address within 30 days after the change, unless the board has
specified by regulations a shorter time period.
(b) Except as otherwise provided by law, failure of a licentiate
to comply with the requirement in subdivision (a) constitutes grounds
for the issuance of a citation and administrative fine, if the board
has the authority to issue citations and administrative fines.
137. Any agency within the department may promulgate regulations
requiring licensees to include their license numbers in any
advertising, soliciting, or other presentments to the public.
However, nothing in this section shall be construed to authorize
regulation of any person not a licensee who engages in advertising,
solicitation, or who makes any other presentment to the public on
behalf of a licensee. Such a person shall incur no liability pursuant
to this section for communicating in any advertising, soliciting, or
other presentment to the public a licensee's license number exactly
as provided to him by the licensee or for failure to communicate such
number if none is provided to him by the licensee.
138. Every board in the department, as defined in Section 22, shall
initiate the process of adopting regulations on or before June 30,
1999, to require its licentiates, as defined in Section 23.8, to
provide notice to their clients or customers that the practitioner is
licensed by this state. A board shall be exempt from the requirement
to adopt regulations pursuant to this section if the board has in
place, in statute or regulation, a requirement that provides for
consumer notice of a practitioner's status as a licensee of this
state.
139. (a) The Legislature finds and declares that occupational
analyses and examination validation studies are fundamental
components of licensure programs. It is the intent of the Legislature
that the policy developed by the department pursuant to subdivision
(b) be used by the fiscal, policy, and sunset review committees of
the Legislature in their annual reviews of these boards, programs,
and bureaus.
(b) Notwithstanding any other provision of law, the department
shall develop, in consultation with the boards, programs, bureaus,
and divisions under its jurisdiction, and the Osteopathic Medical
Board of California and the State Board of Chiropractic Examiners, a
policy regarding examination development and validation, and
occupational analysis. The department shall finalize and distribute
this policy by September 30, 1999, to each of the boards, programs,
bureaus, and divisions under its jurisdiction and to the Osteopathic
Medical Board of California and the State Board of Chiropractic
Examiners. Thi