Today's Law As Amended

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



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 that 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.