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AB-492 Advertising and solicitations: government documents.(2017-2018)

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Date Published: 06/19/2017 02:00 PM
AB492:v97#DOCUMENT

Amended  IN  Senate  June 19, 2017
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. add Section 17533.6.5 to the Business and Professions Code, relating to government documents.


LEGISLATIVE COUNSEL'S DIGEST


AB 492, as amended, Grayson. Public records: Department of Consumer Affairs: solicitation fees. Advertising and solicitations: government documents.
Existing law makes it unlawful for a person, firm, corporation, or association that is a nongovernmental entity to use a seal, emblem, insignia, trade or brand name, or any term, symbol, or content that reasonably could be interpreted or construed as implying any federal, state, or local government, military veteran entity, or military or veteran service organization connection, approval, or endorsement of a product or service, unless certain criteria are met. This provision includes financial products, goods, or services, including mailings, electronic messages, Internet Web sites, periodicals, or television commercials disseminated unless the nongovernmental entity has an expressed connection with or approval of that governmental entity.
Existing law, despite that general prohibition, permits a nongovernmental entity, as specified, to advertise or promote an event, presentation, seminar, workshop, or other public gathering using a seal, emblem, insignia, trade or brand name, or any other term, symbol, or content, if that nongovernmental entity has an expressed connection with, or the approval or endorsement of, a federal, state, or local government, military veteran entity, or military or veteran service organization. Existing law authorizes a nongovernmental entity to solicit information, solicit the purchase of or payment for a product or service, or solicit the contribution of funds or membership fees, by any means, including, but not limited to, a mailing, electronic message, Internet Web site, periodical, or television commercial disseminated in this state, using a seal, emblem, insignia, trade or brand name, or any other term, symbol, or content, if the person, firm, corporation, or association that is a nongovernmental entity meets certain requirements, including prominently disclosing that the product or service has not been approved or endorsed by any governmental agency.
This bill would permit a person, firm, corporation, or association that is a nongovernmental entity to solicit a fee for providing a copy of a public record if that solicitation meets specified requirements. Those requirements would include a certain disclosure requirement stating that the document is an advertisement, the fee or cost charged by the relevant state or local government agency to obtain a copy of the record that the solicitation is offering to obtain, and information necessary to contact the state or local agency with custody of the record. The bill would define “solicit” for purposes of these provisions. 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. The bill would include related legislature findings.

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.

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 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: NO  

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


SECTION 1.

 (a) The Legislature hereby finds and declares the following:
(1) There have been an increasing number of complaints to the Department of Justice in California regarding solicitation mailings to consumers at private residences.
(2) The Department of Justice keeps track of complaints for misleading solicitations. In 2012, the department received 561 complaints, yet by 2015, it had received 2,337 complaints, and in 2016, it received 1,563.
(3) Most of these complaints involve companies that impersonate the Office of the Secretary of State and claim consumers need to pay them to file or renew corporate documents.
(b) It is the intent of the Legislature in enacting this act to prevent these misleading and deceptive business practices and increase consumer protection.
(c) It is not the intent of this act to restrict, or create barriers to, the ability of individuals to obtain public records pursuant to the California Public Records Act.
(d) Rather, this act aims to address consumer concerns by strengthening safeguards against falsely presented documents that do not align with the intent of the California Public Records Act to enhance the public’s right of access to public information.

SEC. 2.

 Section 17533.6.5 is added to the Business and Professions Code, to read:

17533.6.5.
 (a) Notwithstanding any other law, a person, firm, corporation, or association that is a nongovernmental entity may solicit a fee for providing a copy of a public record if that solicitation meets all of the requirements set forth in paragraphs (1) to (3), inclusive:
(1) Contains at the top of the solicitation, in at least 24-point type, all of the following:
(A) The following disclosure statement: “THIS IS AN ADVERTISEMENT. THIS OFFER IS NOT BEING MADE BY, OR ON BEHALF OF, ANY GOVERNMENT AGENCY. YOU ARE NOT REQUIRED TO MAKE ANY PAYMENT OR TAKE ANY OTHER ACTION IN RESPONSE TO THIS OFFER.”
(B) The fee or cost charged by the relevant state or local agency to obtain a copy of the record that the solicitation is offering to obtain.
(C) The information necessary to contact the state or local agency that has custody of the record.
(D) The name and physical address of the nongovernmental entity soliciting the fee.
(2) The disclosures in paragraph (1) shall not be preceded, followed, or surrounded by symbols, terms, or other content that result in the disclosures not being conspicuous or that introduce, modify, qualify, or explain the text of those disclosures.
(3) A solicitation subject to this subdivision shall not be in a form, use deadline dates, or contain other language or content that reasonably could be interpreted or construed as implying:
(A) That it was issued by a state or local government agency or is otherwise connected, approved, or endorsed by a state or local government agency.
(B) A legal duty on the person being solicited, that any payment to the nongovernmental entity is mandatory or required by law, or that penalties, fines, or other consequences will occur if payment is not made by that person.
(b) 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.
(c) 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:
(1) Communicating through a mass advertisement, including a catalog, a radio or television broadcast, or an Internet Web site.
(2) Communicating via telephone, mail, or electronic communication, if initiated by the consumer.
(3) Advertising the sale of public data to other businesses and entities for a legitimate business purpose, including to research and reporting firms, government agencies, government procurement officers, and government contractors who receive value-added benefits for the purchase and use of public data.
(d) This section does not apply to a title insurance company authorized to do business in this state or its authorized agent.
(e) This section is not subject to Section 17534 or any other criminal penalty provision.

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:
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.

(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.

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

(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:

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

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

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