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AB-492 Public records: Department of Consumer Affairs: solicitation fees.(2017-2018)

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Date Published: 03/29/2017 09:00 PM
AB492:v98#DOCUMENT

Amended  IN  Assembly  March 29, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 492


Introduced by Assembly Member Grayson

February 13, 2017


An act to add Article 1.5 (commencing with Section 6271) to Chapter 3.5 of Division 7 of Title 1 of the Government Code, relating to public records.


LEGISLATIVE COUNSEL'S DIGEST


AB 492, as amended, Grayson. Public records: Department of Consumer Affairs: solicitation fees.
The California Public Records Act requires state and local agencies to make their records available for public inspection, unless an exemption from disclosure applies. Existing law also requires prompt disclosure of reasonably identifiable records to a person upon payment of fees covering the direct costs of duplication, or a statutory fee if applicable. Existing law establishes the Department of Consumer Affairs and charges it with licensing and regulating various business and professions.
This bill would require a business or individual soliciting a fee for providing a copy of a public record to state on the top of the document to be used for solicitation that the solicitation is not from a state or local agency; that no action is legally required by the person being solicited; the fee for, or the cost of, obtaining a copy of the record; and other specified information. The bill would authorize the Department of Consumer Affairs to promulgate rules specifying the contents and form of the solicitation document.

The bill would also prohibit a business or individual soliciting a fee for providing a copy of a public record from charging a fee of more than 4 times the amount charged by the state or local agency that has custody of the record for a copy of the same record.

The bill would require businesses and individuals soliciting fees from property owners for providing a deed of property to furnish the office of the county recorder of the county where the solicitations are to be distributed with a copy of the document that will be used for those solicitations not less than 15 days before distribution. By increasing the level of service provided by local government agencies, the bill would impose a state-mandated local program.

The bill additionally would authorize the department to investigate violations, and to bring actions or request the Department of Justice or a district attorney to bring an action against any person in violation of those provisions. The bill also would authorize a court to order penalties for violations of those provisions of no more than $100 for each solicitation document for a first violation, and $200 for each subsequent violation.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

The bill would authorize the Attorney General, a district attorney, or a city attorney to bring an action against a person who violates this provision and would authorize the court to order the person in violation to refund all of the moneys paid to the victim. The bill would require the court to impose a civil penalty in an amount of not more than $100 for each unlawful solicitation document distributed, and not more than $200 for each subsequent document distributed in violation of this provision.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YESNO  

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


SECTION 1.

 Article 1.5 (commencing with Section 6271) is added to Chapter 3.5 of Division 7 of Title 1 of the Government Code, to read:
Article  1.5. Public Records: Solicitation Fees

6271.
 (a) A business or individual soliciting a fee for providing a copy of a public record shall state on the top of the document used for the solicitation, in at least 24-point type, all of the following:
(1) That the solicitation is not from a state or local agency.
(2) That no action is legally required by the person being solicited.
(3) The fee for, or the cost of, obtaining a copy of the record from the state or local agency that has custody of the record.
(4) The information necessary to contact the state or local agency that has custody of the record.
(5) The name and physical address of the business or individual soliciting the fee.
(b) The document used for a solicitation under this section may not be in a form or use deadline dates or other language that makes the document appear to be a document issued by a state or local agency or that appears to impose a legal duty on the person being solicited. The department may promulgate rules specifying the contents and form of the solicitation document.

(c)A business or individual soliciting a fee for providing a copy of a public record may not charge a fee of more than four times the amount charged by the state or local agency that has custody of the record for a copy of the same record.

(d)A business or individual soliciting a fee from property owners for providing a copy of a deed shall furnish the office of the county recorder where the solicitations are to be distributed with a copy of the document that will be used for those solicitations not less than 15 days before distribution.

(e)The department may investigate violations of this section. The department may bring an action or request that the Department of Justice or a district attorney bring an action against any person who violates this section. The court may order the person who violates this section to refund all of the moneys paid to the violator and to forfeit, for a first violation, not more than one hundred dollars ($100) for each solicitation document distributed in violation of this section, and not more than two hundred dollars ($200) for each subsequent document distributed in violation of this section.

(c) The Attorney General, a district attorney, or a city attorney may bring an action against any person who violates this section. The court may order the person who violates this section to refund all of the moneys paid to the victim. The court shall impose a civil penalty of not more than one hundred dollars ($100) for each solicitation document distributed in violation of this section, and not more than two hundred dollars ($200) for each subsequent document distributed in violation of this section. The civil penalty shall be payable to the general fund of whichever governmental entity brought the action to assess the civil penalty.

(f)

(d) This section does not apply to a title insurance company authorized to do business in this state or its authorized agent.

(g)As used in this section, the following definitions apply:

(1)“Department” means the Department of Consumer Affairs.

(2)“Solicit” means

(e) As used in this section, “solicit” means to directly advertise or market through writing or graphics and via mail, telefax, or email to an individually identified person, residence, or business location. “Solicit” does not include any of the following:

(A)

(1) Communicating through a mass advertisement, including a catalog, a radio or television broadcast, or an Internet Web site.

(B)

(2) Communicating via telephone, mail, or electronic communication, if initiated by the consumer.

(C)

(3) Advertising and marketing to those with whom the solicitor has a preexisting business relationship.

SEC. 2.

If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.