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AB-6 Attorney General: duties.(2019-2020)

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Date Published: 08/27/2020 08:03 PM
AB6:v93#DOCUMENT

Amended  IN  Senate  August 27, 2020
Amended  IN  Senate  August 25, 2020
Amended  IN  Senate  September 06, 2019
Amended  IN  Senate  August 30, 2019
Amended  IN  Assembly  April 02, 2019
Amended  IN  Assembly  March 18, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 6

Introduced by Assembly Member Reyes

December 03, 2018

An act to amend Section 17206 of the Business and Professions Code, to amend Section 5650.1 of the Fish and Game Code, relating to fish and wildlife. to amend Sections 12502 and 12530 of the Government Code, and to add and repeal Division 10.10 (commencing with Section 11999.30) of the Health and Safety Code, relating to the Attorney General, and making an appropriation therefor, to take effect immediately, bill related to the budget.


LEGISLATIVE COUNSEL'S DIGEST


AB 6, as amended, Reyes. Fish and wildlife: water pollution: civil penalties: enforcement. Attorney General: duties.
(1) The California Constitution exempts from state civil service various types of officers and employees, including officers elected by the people and a deputy and an employee selected by each of those officers. The California Constitution additionally authorizes the Attorney General to appoint or employ 6 deputies or 6 employees who are exempt from state civil service. Under existing law, the Governor, with the recommendation of the Attorney General, is required to appoint 2 directors and 2 associate directors of the Attorney General’s office who would be exempt from state civil service.
This bill would instead require the Governor, with the recommendation of the Attorney General, to appoint 6 directors and 6 associate directors of the Attorney General’s office who are exempt from state civil service.
(2) Existing law makes it unlawful to deposit, permit to pass, or place where it can pass, specified pollutants into the waters of this state, including petroleum, acid, or coal or oil tar. Existing law makes a violation of those provisions subject to a civil penalty of no more than $25,000 for each violation and an additional civil penalty of no more than $10 for each gallon or pound of material discharged, and requires the civil action to be brought by the Attorney General upon complaint by the Department of Fish and Wildlife or by the district attorney or city attorney in the name of the people of the State of California.
This bill would also authorize the Attorney General to bring a civil action under their own authority in the name of the people of the State of California, and would specify the Attorney General should notify the Department of Fish and Wildlife before bringing a civil action.
(3) Existing law provides that civil penalties collected for unfair business practice violations that are obtained through civil actions brought by the Attorney General are deposited in the Unfair Competition Law Fund within the General Fund.
This bill would provide that such civil penalties may also be deposited in the Public Rights Law Enforcement Special Fund for the enforcement of consumer protection laws.
(4) Certain entities involved in the marketing, distribution, or sale of opioids, or related activity, are in the process of entering into a Statewide Opioid Settlement Agreement with participating government entities, including the State of California, to resolve claims related to the opioid crisis.
This bill would make legislative findings and declarations, and express the intent of the Legislature to, among other things, facilitate a Statewide Opioid Settlement Agreement for the purpose of generating funds for opioid addiction programs and other issues related to the opioid crisis. The bill would require that funds obtained pursuant to a Statewide Opioid Settlement Agreement, as defined, be distributed in a manner consistent with that agreement, as specified, and would require that the expenditure of any funds received by the state be subject to appropriation by the Legislature. The bill would authorize the Attorney General to release any claim related to the subject matter of the settlement that may be brought by a government entity against a settling defendant, except those claims filed by a government entity before August 24, 2020. The bill would require that implementation of these provisions be contingent upon the execution of a Statewide Opioid Settlement Agreement, and would repeal these provisions on January 1, 2023.
(5) This bill would appropriate $1,000 from the Public Rights Law Enforcement Special Fund to the Department of Justice’s Public Rights Division for the enforcement of consumer protection laws.
(6) This bill would declare that it is to take effect immediately as a bill providing for appropriations related to the Budget Bill.
Vote: MAJORITY   Appropriation: NOYES   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 17206 of the Business and Professions Code is amended to read:

17206.
 Civil Penalty for Violation of Chapter
(a) Any person who engages, has engaged, or proposes to engage in unfair competition shall be liable for a civil penalty not to exceed two thousand five hundred dollars ($2,500) for each violation, which shall be assessed and recovered in a civil action brought in the name of the people of the State of California by the Attorney General, by any district attorney, by any county counsel authorized by agreement with the district attorney in actions involving violation of a county ordinance, by any city attorney of a city having a population in excess of 750,000, by any city attorney of any city and county, or, with the consent of the district attorney, by a city prosecutor in any city having a full-time city prosecutor, in any court of competent jurisdiction.
(b) The court shall impose a civil penalty for each violation of this chapter. In assessing the amount of the civil penalty, the court shall consider any one or more of the relevant circumstances presented by any of the parties to the case, including, but not limited to, the following: the nature and seriousness of the misconduct, the number of violations, the persistence of the misconduct, the length of time over which the misconduct occurred, the willfulness of the defendant’s misconduct, and the defendant’s assets, liabilities, and net worth.
(c) If the action is brought by the Attorney General, one-half of the penalty collected shall be paid to the treasurer of the county in which the judgment was entered, and one-half to the General Fund. If the action is brought by a district attorney or county counsel, the penalty collected shall be paid to the treasurer of the county in which the judgment was entered. Except as provided in subdivision (e), if the action is brought by a city attorney or city prosecutor, one-half of the penalty collected shall be paid to the treasurer of the city in which the judgment was entered, and one-half to the treasurer of the county in which the judgment was entered. The aforementioned funds shall be for the exclusive use by the Attorney General, the district attorney, the county counsel, and the city attorney for the enforcement of consumer protection laws.
(d) The Unfair Competition Law Fund is hereby created as a special account within the General Fund in the State Treasury. The portion of penalties that is payable to the General Fund or to the Treasurer recovered by the Attorney General from an action or settlement of a claim made by the Attorney General pursuant to this chapter or Chapter 1 (commencing with Section 17500) of Part 3 shall be deposited into this fund. fund or the Public Rights Law Enforcement Fund created by Section 12530 of the Government Code. Moneys in this fund, these funds, upon appropriation by the Legislature, shall be used by the Attorney General to support investigations and prosecutions of California’s consumer protection laws, including implementation of judgments obtained from such prosecutions or investigations and other activities which are in furtherance of this chapter or Chapter 1 (commencing with Section 17500) of Part 3. Notwithstanding Section 13340 of the Government Code, any civil penalties deposited in the fund pursuant to the National Mortgage Settlement, as provided in Section 12531 of the Government Code, are continuously appropriated to the Department of Justice for the purpose of offsetting General Fund costs incurred by the Department of Justice.
(e) If the action is brought at the request of a board within the Department of Consumer Affairs or a local consumer affairs agency, the court shall determine the reasonable expenses incurred by the board or local agency in the investigation and prosecution of the action.
Before any penalty collected is paid out pursuant to subdivision (c), the amount of any reasonable expenses incurred by the board shall be paid to the Treasurer for deposit in the special fund of the board described in Section 205. If the board has no such special fund, the moneys shall be paid to the Treasurer. The amount of any reasonable expenses incurred by a local consumer affairs agency shall be paid to the general fund of the municipality or county that funds the local agency.
(f) If the action is brought by a city attorney of a city and county, the entire amount of the penalty collected shall be paid to the treasurer of the city and county in which the judgment was entered for the exclusive use by the city attorney for the enforcement of consumer protection laws. However, if the action is brought by a city attorney of a city and county for the purposes of civil enforcement pursuant to Section 17980 of the Health and Safety Code or Article 3 (commencing with Section 11570) of Chapter 10 of Division 10 of the Health and Safety Code, either the penalty collected shall be paid entirely to the treasurer of the city and county in which the judgment was entered or, upon the request of the city attorney, the court may order that up to one-half of the penalty, under court supervision and approval, be paid for the purpose of restoring, maintaining, or enhancing the premises that were the subject of the action, and that the balance of the penalty be paid to the treasurer of the city and county.

SECTION 1.SEC. 2.

 Section 5650.1 of the Fish and Game Code is amended to read:

5650.1.
 (a) A person who violates Section 5650 is subject to a civil penalty of not more than twenty-five thousand dollars ($25,000) for each violation.
(b) The civil penalty imposed for each separate violation pursuant to this section is separate, and in addition to, any other civil penalty imposed for a separate violation pursuant to this section or any other provision of law, except as provided in subdivision (j).
(c) In determining the amount of a civil penalty imposed pursuant to this section, the court shall take into consideration all relevant circumstances, including, but not limited to, the nature, circumstance, extent, and gravity of the violation. In making this determination, the court shall consider the degree of toxicity and volume of the discharge, the extent of harm caused by the violation, whether the effects of the violation may be reversed or mitigated, and with respect to the defendant, the ability to pay, the effect of any civil penalty on the ability to continue in business, any voluntary cleanup efforts undertaken, any prior history of violations, the gravity of the behavior, the economic benefit, if any, resulting from the violation, and any other matters the court determines justice may require.
(d) (1) Every civil action brought under this section shall be brought by the Attorney General upon complaint by the department, or by the district attorney or city attorney in the name of the people of the State of California, and any actions relating to the same violation may be joined or consolidated.
(2) The Attorney General may bring a civil action under this section upon their own authority in the name of the people of the State of California. The Attorney General should notify the department before bringing a civil action under this section.
(e) In a civil action brought pursuant to this chapter in which a temporary restraining order, preliminary injunction, or permanent injunction is sought, it is not necessary to allege or prove at any stage of the proceeding that irreparable damage will occur if the temporary restraining order, preliminary injunction, or permanent injunction is not issued, or that the remedy at law is inadequate.
(f) After the party seeking the injunction has met its burden of proof, the court shall determine whether to issue a temporary restraining order, preliminary injunction, or permanent injunction without requiring the defendant to prove that it will suffer grave or irreparable harm. The court shall make the determination whether to issue a temporary restraining order, preliminary injunction, or permanent injunction by taking into consideration, among other things, the nature, circumstance, extent, and gravity of the violation, the quantity and characteristics of the substance or material involved, the extent of environmental harm caused by the violation, measures taken by the defendant to remedy the violation, the relative likelihood that the material or substance involved may pass into waters of the state, and the harm likely to be caused to the defendant.
(g) The court, to the maximum extent possible, shall tailor a temporary restraining order, preliminary injunction, or permanent injunction narrowly to address the violation in a manner that will otherwise allow the defendant to continue business operations in a lawful manner.
(h) All civil penalties collected pursuant to this section shall not be considered fines or forfeitures as defined in Section 13003 and shall be apportioned in the following manner:
(1) Fifty percent shall be distributed to the county treasurer of the county in which the action is prosecuted. Amounts paid to the county treasurer shall be deposited in the county fish and wildlife propagation fund established pursuant to Section 13100.
(2) Fifty percent shall be distributed to the department for deposit in the Fish and Game Preservation Fund. These funds may be expended to cover the costs of legal actions or for any other law enforcement purpose consistent with Section 9 of Article XVI of the California Constitution.
(i) Except as provided in subdivision (j), in addition to any other penalty provided by law, a person who violates Section 5650 is subject to a civil penalty of not more than ten dollars ($10) for each gallon or pound of material discharged. The total amount of the civil penalty shall be reduced for every gallon or pound of the illegally discharged material that is recovered and properly disposed of by the responsible party.
(j) A person shall not be subject to a civil penalty imposed under this section and to a civil penalty imposed pursuant to Article 9 (commencing with Section 8670.57) of Chapter 7.4 of Division 1 of Title 2 of the Government Code for the same act or failure to act.

SEC. 3.

 Section 12502 of the Government Code is amended to read:

12502.
 (a) The Attorney General may appoint and fix the salaries of Assistant Attorneys General, Deputy Attorneys General, service agents, experts, and technical and clerical employees as the Attorney General deems necessary for the proper performance of the duties of the Attorney General’s office. Each appointee is a civil executive officer.
(b) Notwithstanding any other law, but consistent with Section 4 of Article VII of the California Constitution, the Governor, with the recommendation of the Attorney General, shall appoint two six directors and two six associate directors of the Attorney General’s office who shall be exempt from state civil service. Appointments to these exempt positions shall not result in any net increase in the expenditures of the Department of Justice.

SEC. 4.

 Section 12530 of the Government Code is amended to read:

12530.
 (a) The Public Rights Law Enforcement Special Fund is hereby established in the State Treasury, to be administered by the Department of Justice. Moneys Subject to subdivision (b), moneys in the fund, upon appropriation by the Legislature, shall be used by the Attorney General to support the investigation and prosecution of any matter within the authority of the Department of Justice’s Public Rights Division.
(b) Moneys deposited in the fund pursuant to Section 17206 of the Business and Professions Code shall, upon appropriation by the Legislature, be used by the Attorney General for the enforcement of consumer protection laws.

SEC. 5.

 Division 10.10 (commencing with Section 11999.30) is added to the Health and Safety Code, to read:

DIVISION 10.10. Statewide Opioid Settlement Agreement Act

11999.30.
 (a) The Legislature finds and declares all of the following:
(1) The opioid crisis presents serious public health concerns in the state and nationwide.
(2) A statewide coordinated resolution of state and local claims is critical to resolving current litigation regarding the opioid crisis.
(3) It is the policy of the state that financial burdens imposed on the state and local government entities by opioid addiction be borne by entities involved in the marketing, distribution, or sale of opioids, or related activities, rather than by the state to the extent that those entities either determine to enter into a settlement with the state or are found culpable by the courts.
(b) Therefore, it is the intent of the Legislature to:
(1) Facilitate a Statewide Opioid Settlement Agreement and other settlement agreements between state and local government entities and those entities involved in the marketing, distribution, or sale of opioids, or related activities, to generate funds for opioid addiction programs and other issues related to the opioid crisis.
(2) Encourage government entities that filed a lawsuit before August 24, 2020, alleging claims related to the Statewide Opioid Settlement Agreement to participate in negotiations and to join the settlement.
(3) Provide legislative oversight of the use of state funds acquired pursuant to the Statewide Opioid Settlement Agreement or any other agreement related to the claims regarding the opioid crisis.
(4) Implement future legislation that would further the purposes of any settlement agreement reached that relates to the opioid crisis.

11999.31.
 The definitions contained in this section shall govern the construction of this division.
(a) “Government entity” means all of the following:
(1) The State of California and any department, agency, division, board, commission, or instrumentality thereof.
(2) Any governmental subdivision within the boundaries of the state, including, but not limited to, a county, municipality, district, city or town, and any of their subdivisions, whether governed by charter, general-law municipality, or statute, and any department, agency, division, board, commission, or instrumentality thereof.
(b) “Statewide Opioid Settlement Agreement” means any settlement agreements, consent or stipulated judgments, and related documents entered into by the Attorney General on behalf of the State of California before January 1, 2022, concerning the marketing, distribution, or sale of opioids, or related activities. A copy of the settlement agreement, or consent or stipulated judgment, including any amendments thereto, shall be kept on file by the Attorney General, and shall be made available to the public on the Attorney General’s internet website.

11999.32.
 The funds obtained by the state pursuant to a Statewide Opioid Settlement Agreement shall be distributed in a manner consistent with that agreement, including any transfer of moneys to the General Fund to fund programs that mitigate harm to the state caused by the opioid crisis. The expenditure of any funds received by the state shall be subject to appropriation by the Legislature.

11999.33.
 In a Statewide Opioid Settlement Agreement, the Attorney General may release any claim related to the subject matter of the settlement that may be brought by a government entity against a settling defendant, except those claims filed by a government entity before August 24, 2020. This section does not limit the Attorney General’s authority under any other law to release a claim brought by a government entity.

11999.34.
 (a) The implementation of this division is contingent upon the execution or entry of a Statewide Opioid Settlement Agreement.
(b) This division shall remain in effect only until January 1, 2023, and, as of that date, is repealed.

SEC. 6.

 The sum of one thousand dollars ($1,000) is hereby appropriated from the Public Rights Law Enforcement Special Fund to the Department of Justice’s Public Rights Division for the enforcement of consumer protection laws.

SEC. 7.

 This act is a bill providing for appropriations related to the Budget Bill within the meaning of subdivision (e) of Section 12 of Article IV of the California Constitution, has been identified as related to the budget in the Budget Bill, and shall take effect immediately.