HomeMy WebLinkAboutMINUTES - 05212013 - C.28RECOMMENDATION(S):
a) ADOPT a position of “Oppose” for AB 537 (Bonta): Meyers-Milias-Brown Act: Impasse Procedures, as
recommended by the Legislation Committee.
b) ADOPT a position of “Oppose” for AB 616 (Bocanegra): Local Public Employee Organizations: Dispute, as
recommended by the Legislation Committee.
c) ADOPT a position of “Oppose” for SB 635 (Leno): Alcoholic Beverages: Hours of Sale, as recommended by the
Legislation Committee.
d) ADOPT a position of "Oppose" for AB 5 (Ammiano): Homelessness, as recommended by the Legislation
Committee.
FISCAL IMPACT:
No fiscal impact to the County from the action to oppose these bills.
BACKGROUND:
At their May 2, 2013 meeting, the Legislation Committee considered the following bills and accepted staff's
recommendation to recommend that the Board of Supervisors take action to oppose the following bills:
a)
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 05/21/2013 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Mary N. Piepho, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: L. DeLaney, (925)
335-1097
I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board
of Supervisors on the date shown.
ATTESTED: May 21, 2013
David Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc:
C. 28
To:Board of Supervisors
From:Legislation Committee
Date:May 21, 2013
Contra
Costa
County
Subject:Oppose Position on Various Bills, as recommended by the Legislation Committee
BACKGROUND: (CONT'D)
AB 537 (Bonta): Meyers-Milias-Brown Act: Impasse Procedures (Attachment A) – Authorizes the
representatives of a public agency and an employee organization, if they fail to reach an agreement, to request
mediation. Provides the time period for such action. Provides that if both sides fail to reach such agreement,
either party may make such request. Provides that a public agency must meet and confer promptly and to continue
for a reasonable time period with the employee organization prior to an agency budget for the next fiscal year.
Provides procedures upon reaching an agreement.
The following information was provided to the Assembly Public Employees, Retirement & Social Security
Committee by the author and the sponsors of the bill:
1) Collective bargaining is a process of negotiations between employers and a group of employees aimed at
reaching agreements that regulate working conditions. This process includes the determination of how the parties
will negotiate, which often includes the establishment of "ground rules" prior to engaging in the formal negotiation
process. Such ground rules often include time and place and parties participating in the negotiations as well as
procedures for caucuses, exchanging proposals, agreement or how to determine when the parties have reached
impasse.
Over the last several years, some local government employers have attempted to frustrate and disrupt this
bargaining process by insisting upon agreement of a 'ground rule' or the imposition of a 'negotiations or
bargaining policy' that limits the right of an employee organization or the employees of the agency to
communicate with officials of the public agency - effectively imposing a gag order on the employee
representatives. This attempt to unduly constrict an employee organization's access to publicly elected officials in
order to blunt full communication on the issues compromises a healthy collective bargaining relationship and
upsets the goal of collectively reaching an agreement to the benefit of all parties to the negotiation.
The bill adds a provision to current law affirming an employee organization's right to communicate with officials
of the public agency just as their management partners are permitted to do during the course of negotiations.
2) The statute currently provides that an agreement which the negotiators for a public agency and a recognized
employee organization reach shall not be final and binding upon the parties to the negotiations until it is presented
to the public agency's governing body or statutory representative for determination.
Unfortunately, too many governing bodies of public agencies reject a tentative agreement out-of-hand after the
parties' negotiators have expended considerable time and resources to arrive at that agreement, and the employee
organization has often already conducted a ratification vote among its members.
Employee organizations report that this delays or thwarts the bargaining process; if the employee organization's
members ratify the tentative agreement, the employee organization is bound to it, yet the public agency's
governing body is free to reject it. This provision is consistent with the requirement that negotiators possess
sufficient authority to bind their principals to an agreement.
This bill would specify that an agreement which the negotiators for a public agency and a recognized employee
organization reach shall be final and binding upon the parties to the negotiations when the agreement is signed by
both parties, or if the recognized employee organization's internal rules require ratification then upon such
ratification.
3) Mediation is a form of alternative dispute resolution, a way of resolving disputes between two or more parties
with concrete effects. Typically, a third party, the mediator assists the parties to negotiate a settlement. Mediators
are often helpful in narrowing the issues of disagreement or helping to sort out the accuracy of data, labor market
comparisons, fiscal statements, or other information which may assist the parties in reaching an agreement.
Moreover, mediators are often helpful in framing bargaining approaches consistent with bargaining history and
relevant public concerns.
Under current California law, mediation is mandatory if requested by either party with respect to employees
governed by the Educational Employment Relations Act, the Dills Act, and the Higher Education
Employer-Employee Relations Act.
Local public employees and their employers are often denied the assistance and expertise of a mediator who can
help overcome the intransigence of either party. Given the current law requirement that both parties have to agree
to proceed to mediation, the obstructionist party will continue to employ tactics to reject compromise or rush to
impasse, blocking the other party's attempt to request mediation to resolve their differences.
By conforming the mediation provisions of the MMBA to the aforementioned employee relations acts, the parties
will remain at the bargaining table with the assistance of a mediator up to the invocation of the impasse procedure
of fact-finding or binding interest arbitration, if applicable.
By amending the statute to require mediation if requested by either party, firefighters, social workers, and other
local government employees will have available the assistance of third party mediators to help reach agreements,
or at least avoid the indiscriminate imposition of last, best and final employer offers.
Likewise, employers would reap the benefits of access to a mediator to aid the parties in reaching agreement
where the employee organization may fail to recognize that the labor market doesn't support the contract demands,
their fiscal analysis is flawed, or other realities that may affect a successful settlement. An effective mediator tells
the truth to the parties and asks them to consider the options, including the fallout from failure to reach agreement.
4) Arbitration agreements are a common feature of memoranda of understanding negotiated and entered into
under MMBA. The Supreme Court has held that arbitration decisions issued under such agreements are binding
and entitled to judicial enforcement. See Taylor v. Crane, 24 Cal.3d 442, 450-51 (1979). As currently drafted,
however, the MMBA is silent as to the standards and procedures for enforcing arbitration agreements. This bill
will clarify the law regarding arbitration agreements in three respects.
First, the bill will make it clear that the provisions of the California Arbitration Act, apply to the enforcement of
arbitration agreements under the MMBA. While this generally has been assumed to be the true, some courts have
viewed a writ of mandate as the appropriate vehicle for enforcing an arbitration agreement. By adding a specific
reference to the California Arbitration Act, the bill will eliminate any confusion as to the appropriate procedure
for compelling arbitration.
Second, the bill will make it clear that procedural defenses to an arbitration claim - such as the contention that the
claim was untimely or that the party seeking arbitration failed to exhaust pre-arbitration remedies - will not be a
basis for refusing to arbitrate and will be submitted to the arbitrator for resolution. This is a codification of the
longstanding rule under federal law--the Labor Management Relations Act--as interpreted by the U.S. Supreme
Court in John Wiley & Sons v. Livingston, 376 U.S. 543, 557 (1964). The intent of the rule is to strengthen
arbitration and to prevent needless litigation over garden variety procedural defenses.
Third, the bill will make it clear that an agreement to arbitrate a dispute is enforceable, even where the conduct in
question may also constitute an unfair labor practice that could be brought in an administrative proceeding before
PERB.
Again, this is consistent with federal labor law, which has long recognized that the arbitrator and the labor board
may exercise concurrent jurisdictions in such situations.
5) Statute currently provides that a public agency may adopt reasonable rules and regulations governing the
administration of employer-employee relations after "consultation" in good faith with the recognized employee
organization(s).
Regrettably, the statute's existing term "consultation" has generated confusion and disagreement among public
agencies and recognized employee organizations regarding the nature of a public agency's bargaining obligation.
Employee organizations have reported that some public agencies merely meet and discuss proposed rules and
regulations with the recognized employee organization(s), and rush to implement the changes without having
obtained much (or any) input from the recognized employee organization(s). Existing law must be clarified so that
public agencies are required to a meet and confer obligation consistent with the stated purpose and intent of the
MMBA, in which the parties have an opportunity for full communication regarding these matters.
Full communication is absolutely critically considering that the rules and regulations to be adopted will govern
employer-employee relations. As such, it is particularly important that recognized employee organizations
understand the public agencies' proposals and have the opportunity to present information, comments and
counterproposals. This will increase the likelihood that the parties will have a mutual understanding regarding,
and comply with, the rules and regulations in the future.
This bill would clarify that a public agency must meet and confer in good faith with recognized employee
organization(s) before adopting reasonable rules and regulations governing the administration of
employer-employee relations. The amendment also specifies that disputes arising under the section are subject to
fact-finding is consistent with the PERB precedent holding that the fact-finding right is available when meet and
confers result in impasse.
Opponents state, "Employment law attorneys whose clients are public agencies have explained that generally they
encourage their clients to attempt mediation after impasse. However, since mediation is designed for the parties to
reach agreement, requiring the parties to participate, rather than agree to participate, in an involuntary mediation is
seldom successful.
This mandate for mediation will only delay the labor negotiations process. Additionally, delaying the negotiations
process will make it more difficult for agencies to prepare and plan their budgets."
Additionally, opponents state, "We support the use of mediation as an alternative means of dispute resolution.
However, we believe that mediation is only effective if the parties participate voluntarily with the mutual goal of
resolving outstanding disputes. The notion that one party can force the other to participate in mediation defeats the
very intent of the mediation process, which will seriously compromise the effectiveness of any resulting
mediation. As such, and contrary to the intent of the bill, mandated mediation will likely add to the length,
complexity, and cost of labor disputes. Thus, the grounds upon which mediation can be requested should be left to
the discretion of the local agency rules regarding employee labor negotiations, and the decision of whether to
participate should be left to the discretion of the parties, subject to those rules."
"In addition, the five (5) day time limit to agree upon the appointment of a mediator is of great concern. The five
day period seems unreasonably and unnecessarily short. The decision to agree upon a mediator who is trusted and
respected by both parties is one that requires careful deliberation and consideration. Attempting to force a decision
within five (5) days of the mediation request will only lead to additional delay, conflict, and expense on the part
of both parties, if that short time period proves insufficient. If the employer and the employee representatives have
not come to an agreement on matters related to terms and conditions of employment, it seems wise to give those
same parties additional time to review and select a mediator."
"Furthermore, the mandatory mediation would constitute a state mandated cost. As such, the mediation costs
incurred by local public agencies under AB 537 would add additional and unnecessary expense to our already
burdened public agencies."
CSAC remains strongly opposed to legislation that will fundamentally alter the local relationship between counties
and employee representatives. The Meyers-Milias-Brown Act (MMBA), the collective bargaining law that has
governed local public agencies since 1968, permits each agency to enact local rules to address many of the
elements of labor relations. AB 537, by Assembly Member Rob Bonta and AB 616, by Assembly Member Raul
Bocanegra, further detailed below, ignore the history and evolution of the local rules that counties and their
employees have developed and lived by for more than 30 years.
It should be noted that AB 537 was substantially amended on April 17 to include more changes to MMBA. AB
537 already sought to make mediation after labor impasse a mandatory procedure rather than subject to county
rules. Changes in AB 537 include the following:
• Prohibits employers from restricting communication between local agency representatives and employee
representatives as part of labor negotiation ground rules. This change is contrary to the understood ban on “direct
dealing” where a member of a bargaining team communicates directly with the members of the union or the
agency. The change is one-sided in that it does not prohibit the union from seeking a ground rule that the
employer cannot communicate directly with employees.
• Binds a governing body to any tentative agreement reached by the bargaining representatives. The MMBA
currently states that a tentative agreement is provided to the governing body for review. Again, this change is
one-sided in that the bill would not bind the employee representatives to the agreement until ratification by the
employees.
• Makes three changes related to arbitration: 1) Applies the provisions of the California Arbitration Act to the
enforcement of arbitration agreements under the MMBA; 2) Prohibits a rejection of a request for arbitration due
to procedural challenges (timelines, failure to exhaust pre-arbitration remedies); and, 3) Makes an agreement to
arbitrate a dispute enforceable, even if the conduct in question may also constitute an unfair labor practice.
• Requires “meet and confer” over local rules rather than “consultation” and subjects an impasse over local rules
to fact-finding procedures.
Counties are encouraged by CSAC to send letters in opposition to AB 537 and AB 616.
Support: American Federation of State, County and Municipal Employees (Co-Sponsor), California Professional
Firefighters (Co-Sponsor), Service Employees International Union (Co-Sponsor)
Opposition: Association of California Water Districts, Butte County Board of Supervisors, California Association
of Sanitation Agencies, California State Association of Counties, County of Sonoma Board of Supervisors, El
Dorado Irrigation District, Lassen County Administrative Officer, League of California Cities, Rural County
Representatives of Calfornia, San Joaquin County Board of Supervisors
DISPOSITION: Pending in Assembly Appropriations Committee
b) AB 616 (Bocanegra): Local Public Employee Organizations: Dispute (Attachment B) – Relates to local
public employee organizations. Authorizes such organization, if a dispute was not submitted to a mediation, to
request that the public agency submit the parties' differences to a fact-finding panel. Provides that if either party
disputes that a genuine impasse has been reached, the issue of whether the impasse exists may be submitted to the
Public Employment Relations Board for resolution before the dispute is submitted to a fact-finding panel.
Authorizes a representative from each party on the panel .
AB 616 would make the following changes to statute governing MMBA:
1) Provides that if either party disputes that a genuine impasse has been reached, it may submit that dispute to
PERB for resolution. If PERB determines that a genuine impasse exists, the parties' differences are subject to the
remainder of the fact finding procedures of the MMBA.
2) Provides that if either party disputes that a genuine impasse has been reached, it may submit that dispute to
PERB for resolution. If PERB determines that a genuine impasse exists, the parties' differences are subject to the
remainder of the fact finding procedures of the MMBA.
3) Provides that if either party disputes that a genuine impasse has been reached, it may submit that dispute to
PERB for resolution. If PERB determines that a genuine impasse exists, the parties' differences are subject to the
remainder of the fact finding procedures of the MMBA.
AB 616 was heard in the Assembly Public Employees, Retirement and Social Security Committee on April 24.
According to the author, with respect to impasse procedures, "When a public employer and a public employee
organization reach an impasse in collective bargaining and the dispute has not been submitted to voluntary
mediation, the employee organization may request that the parties' differences be submitted to a fact-finding panel
not later than 30 days following the date that either party provided the other with a written notice of a declaration
of impasse. PERB has interpreted this provision, in its regulations and its administrative rulings, to require the
employee organization to make this request within 30 days of a declaration of impasse, without regard to whether
the employer and union have in fact reached a genuine impasse in the negotiations. This loophole could allow a
public employer to evade its duty to bargain in good faith by declaring impasse prematurely or in bad faith."
On the issue of extending the time from 30 to 60 days for the submission of differences to a fact-finding panel,
opponents believe this will do nothing more than lengthen the negotiating period to the benefit of the party
interested in maintaining the status quo.
Support: Coalition of California Utility Employees, International Brotherhood of Electrical Workers
Opposition: California Association of Sanitation Agencies, California State Association of Counties, County of
Lassen, County of Sonoma Board of Supervisors, Butte County Board of Supervisors, League of California Cities,
Rural County Representatives of California
DISPOSITION: Pending in Assembly Appropriations Committee
c) SB 635 (Leno): Alcoholic Beverages: Hours of Sale (Attachment C) – Allows an on-sale licensee to apply to
the Department of Alcoholic Beverage control to authorize the selling, giving, delivering or purchasing of
alcoholic beverages at the licensed premises between the certain hours upon completion of specified requirements
by the local jurisdiction. Requires the applicant to notify specified persons of the application for additional hours .
SB 635 establishes a process, as described, involving local government, local law enforcement, the general public
and the Department of Alcoholic Beverage Control (ABC) whereby an on-sale licensee may apply to the ABC for
the privilege of extending hours of alcohol sales between 2 a.m. to a.m. Specifically, this measure:
1) Permits the ABC to authorize, with or without conditions, the selling, giving, delivering, or purchasing of
alcoholic beverages at individual on-sale licensed premises between the hours of 2 a.m. and 4 a.m. within a city,
county or a city and a county provided the local governing body:
a) Develops and approves a local plan, relative to the additional hours of service, that:
(1) shows the public convenience or necessity will be served;
(2) identifies the area that will be affected and indicates how the area will benefit;
(3) exhibits resident and business support;
(4) includes an assessment by local law enforcement regarding the potential impact on the area and a public safety
plan, created by local law enforcement, for managing those impacts;
(5) shows that transportation services are readily accessible in the area during the additional service hours; and,
(6) includes programs to increase public awareness of the transportation services available and the impacts of
alcohol consumption.
b) Resolves and certifies the local plan and submits it to the ABC.
2) Requires the ABC to review the local plan, within an unspecified time frame, to ensure compliance with
existing law and regulations and notify the local governing body of its approval or denial of the plan.
Also, requires the ABC, during the review process, to post the plan on its Internet website.
3) Prohibits an on-sale licensee from applying for additional hours of service until the ABC has approved the local
plan in which the licensed premise is located.
4) Provides that upon receipt of an application by an on-sale licensee for additional hours the ABC shall make a
thorough investigation to determine whether the additional hours would unreasonably interfere with local residents
quiet enjoyment of their property.
5) Requires the licensed applicant to notify law enforcement agencies, residents within 500 feet of the premises,
and any other interested parties, as determined by the local governing body, of the application for additional hours
within 30 consecutive days of the filing of the application in a manner determined by the local governing body.
6) Provides that protests may be filed within 30 days from the first date of notice of the filing of an application for
additional hours. Also, permits the ABC to extend the 30-day period by an additional 20 days.
7) Provides that the ABC may reject protests, except protests made by a public agency or public official, if it
determines the protests are false, vexatious, frivolous, or without reasonable or probable cause at any time before
hearing thereon. If after investigation, ABC recommends that additional hours be authorized notwithstanding a
public protest by a public agency or a public official, ABC must notify the agency or official in writing of its
determination and the reasons therefor.
8) Also, provides that if, after investigation, the ABC recommends that additional hours be authorized, with or
without conditions on the applicant's license, the ABC must notify the local governing body and all protesting
parties whose protests have been accepted in writing of its determination.
9) Provides that any person who has filed a verified protest in a timely fashion that has been accepted by ABC
may request a hearing on the issue or issues raised in the protest. The request must be in writing and filed with
ABC within 15 business days of the date ABC notifies the protesting party of its determination.
10) Requires ABC to notify the applicant of the outcome of the application and provides that any conditions
placed upon the license shall be subject to existing provisions of the ABC Act pertaining to conditional licenses.
11) Requires the applicant to include an unspecified fee with his/her application for additional hours, which shall
be deposited in the ABC Fund.
EXISTING LAW
The enactment of the 21st Amendment to the U.S. Constitution in 1933 repealed the 18th Amendment and ended
the era of Prohibition. Accordingly, states were granted the authority to establish alcoholic beverage laws and
administrative structures to regulate the sale and distribution of alcoholic beverages.
Existing law establishes the Department of Alcoholic Beverage Control (ABC) and grants it exclusive authority to
administer the provisions of the ABC Act in accordance with laws enacted by the Legislature.
Existing law (B&P code Section 25631) provides that any on-sale or off-sale licensee, or agent or employee of
the licensee, who sells, gives, or delivers to any person any alcoholic beverage between the hours of 2 a.m. and 6
a.m. of the same day, and any person who knowingly purchases any alcoholic beverages between those hours, is
guilty of a misdemeanor.
Existing law defines an "on-sale" license as authorizing the sale of all types of alcoholic beverages: namely, beer,
wine and distilled spirits, for consumption on the premises (such as at a restaurant or bar). An "off-sale" license
authorizes the sale of all types of alcoholic beverages for consumption off the premises in original, sealed
containers.
BACKGROUND
Purpose of SB 635: Currently, the ABC Act prohibits the selling, giving, delivering or purchasing of alcoholic
beverages from 2 a.m. to 6 a.m. The author's office claims that the current uniform closing hour of 2 a.m. creates
stress on public services, transportation, and local law enforcement when patrons are simultaneously pushed out
on to the street at that hour. According to the author's office, this bill is intended to grant local governments and
communities an optional tool to manage current problems around uniform closing hours. It allows on-sale
licensed establishments to apply to the ABC for extended sales hours up to 4 a.m. provided the local jurisdiction
that is supportive of extended service hours develops a plan, with community guidance and local law enforcement
input, demonstrating among other things, that there is a clear benefit and necessity and that residents and
businesses also support the additional hours. The ABC is charged with reviewing and approving the local plan to
ensure that it does not conflict with any state laws or ABC rules and regulations. The bill also contains various
provisions relative to procedures for protest and public hearings regarding application for extended hours of
service. The bill would not permit extended hours at liquor stores and other off-sale licensed premises.
The author's office notes that SB 635 simply allows California's destination cities (e.g., San Francisco, Los
Angeles and San Diego) to initiate local conversations about the possibility of expanding night life and the
benefits it could provide the community by boosting jobs, tourism and local tax revenue.
The author's office points out that SB 635 would align California with at least 15 other states where local
jurisdictions have the authority to decide alcoholic beverage service hours. The author's office maintains there is
no evidence to suggest that places with flexible or extended sales hours have experienced higher rates of
alcohol-related crashes and deaths compared to states with extended sales hours of 2 a.m. or earlier. Currently,
numerous cities and towns throughout the country have late-night service hours, including Chicago, Washington,
D.C., New York City, Buffalo, Las Vegas, Louisville, Atlanta, Miami Beach, New Orleans and Albany. In
addition, many cities across the globe have extended or flexible service times, including Barcelona, Tokyo, Berlin,
Rio de Janeiro and Sydney which allow local businesses to be creative in their social and cultural offerings.
Arguments in Support: Proponents note that this bill would establish a public process whereby the local
community, along with the ABC and law enforcement, may craft a local plan for extended alcoholic beverage
service hours that is appropriate for their economy, public safety and community needs. Proponents contend that
SB 635 would enable certain California cities to compete with other world-class cities in attracting tourists,
conventions and conferences from around the world. Additionally, proponents emphasize that social and nightlife
venues are an economic driver in many communities and they reference the fact that the State's food service and
entertainment industry generates billions of dollars in consumer spending and employs well over a million
workers making these sectors an indisputable driving force in the State's economy.
Arguments in Opposition: Opponents raise numerous health and safety concerns and believe SB 635 will lead to:
unintended consequences, quality of life deterioration for adjacent neighborhoods, drinkers driving from areas
where bars close earlier to bars with later last calls, late night drinkers sharing the road with early morning
commuters, increased DUI accidents and fatalities, and limited budgets and personnel to deal effectively with the
extra service calls. Also, opponents cite evidence that shows that two more hours of alcohol sales will nearly
double alcohol-related violence, crime, police calls, emergency visits, etc. Additionally, opponents argue that SB
635 will reverse the very sensible direction that the legislature has gone in years past and will "exacerbate the
growing phenomenon in which restaurants morph into bars/dance clubs when they stop serving food late at
night." Furthermore, opponents contend that the legislative findings contained in the bill have no basis in fact and
are simply statements of policy to promote late night alcohol service.
PRIOR/RELATED LEGISLATION
AB 2433 (Leno) 2003-04 Session. Would have extended the hours of alcohol sales for on-sale licensees in the
City and County of San Francisco from 2 a.m. to 4 a.m. (Failed passage in Assembly policy committee)
SUPPORT: As of April 19, 2013:
Argent Ventures LLC Bixel & Company Event Production Blue Palms Brewhouse California Hotel & Lodging
Association California Music and Cultural Association California Restaurant Association CalSmallBiz California
Teamsters Public Affairs Council DeSoto Club Golden Gate Restaurant Association Hollywood Hospitality
Association Kitchen 24 San Francisco Chamber of Commerce San Francisco Council of District Merchants San
Francisco Travel Sbe Entertainment Group The Sunset Landmark Taxpayers for Improving Public Safety The
Honorable Edwin M. Lee, Mayor City of San Francisco 213 Spirited Ventures Triptych UNITE-HERE, AFL-CIO
Vessel, Audio and Bergerac - San Francisco
OPPOSE: As of April 19, 2013:
Alcohol Justice Asian American Drug Abuse Program Ban Billboard Blight Bay Area Community Resources
California Alliance for Retired Americans California Center for Youth Development and Health Promotion
California Council on Alcohol Problems California Narcotic Officers' Association California Police Chiefs
Association California State Sheriffs' Association Cole Valley Improvement Association County Alcohol and
Drug Program Administrators Association of California Crescenta Valley Drug & Alcohol Prevention Coalition
Friday Night Live Hermosa Beach, City of Institute for Public Strategies Kern County Sheriff Donny Youngblood
Koreatown Youth and Community Center - Los Angeles Los Angeles, City of Los Angeles County Sheriff Lee
Baca Lutheran Office of Public Policy California Metro United Methodist Urban Ministry Partnership for a
Positive Pomona Paso Por Paso, Inc. People Reaching Out Phoenix House Prevention Institute Pueblo Y Salud,
Inc. Sacramento, County of Social Model Recovery Systems The Wall - Las Memorias Project Woman's Christian
Temperance Union of Southern California Women Against Gun Violence Writers in Treatment Youth Leadership
Institute And, numerous private individuals
DISPOSITION: Pending
LOCATION: Senate Governmental Organization Committee
d) AB 5 (Ammiano): Homelessness (Attachment D) – Enacts the Homeless Person's Bill of Rights and Fairness
Act. Provides that no person's rights, privileges, or access to public services may be denied or abridged because
he or she is homeless. Provides the right to specified actions, confidentiality of certain records, legal assistance,
and restitution. Prohibits retaliation against a public employer for assisting the homeless. Requires reports and
public information regarding ordinances and certain actions against the homeless. Provides civil penalties.
This bill establishes specific rights for homeless persons. Specifically, this bill:
1) Provides that every homeless person in the state shall have a right to:
a) Move freely, rest (as defined, and including sleeping), solicit donations, pray, meditate, or practice
religion, and eat, share, accept, or give food or water in state or local public spaces (as defined) in the same
manner as any other person; occupy a motor vehicle or recreational vehicle either to rest, sleep, or use for
the purposes of shelter, provided that the vehicle is legally parked on public property; decline admittance to
a public or private shelter or any other accommodation, including social services programs, for any reason
he or she sees fit;
b) Do any activity in (a) without being subject to criminal or civil sanctions, harassment or arrest by law
enforcement, public or private security personnel, or Business Improvement District (BID) agents because
he or she is homeless.
c) Engage in lawful self-employment, in the same manner as any other person, including, but not limited to,
the right to seek self-employment in junk removal and recycling, without being subject to criminal or civil
sanctions, harassment, or arrest because he or she is homeless.
d) Receive assistance of counsel, at county cost, if a county chooses to initiate judicial proceedings under
any laws prohibiting specified activities, such as loitering. 2) Provides that law enforcement may enforce
existing local laws regarding resting in a public place only if all of the following conditions are met: the
person's county of residence provides General Assistance 12 months per year for employable, able-bodied
adults compliant with county program rules; the jurisdiction is not an area of high unemployment, as
defined; and the county's public housing waiting list contains fewer than 50 persons.
3) Prohibits the civil sanction, arrest, or harassment of any person or organization offering food or water in
a public space to a homeless person.
4) Prohibits retaliation by an employer against a public employee for offering available public resources to a
homeless person to protect the person from harm.
5) Provides that every local government and disadvantaged unincorporated community within the state shall
have sufficient health and hygiene centers available 24 hours a day, seven days a week, for use by
homeless people.
Requires the health and hygiene centers, at a minimum to contain bathroom and shower facilities, to be
funded by the California Department of Public Health (CDPH), and requires the department to provide
notices identifying these facilities.
6) Requires law enforcement agencies to:
a) Annually compile and review the number of citations, arrests, and other enforcement activities
under laws prohibiting 16 enumerated activities, such as loitering, obstructing a sidewalk, lying
down, camping, bathing in public spaces, etc.
b) Make public the records of citations, arrests and other enforcement activities under laws that are
alleged to be selectively enforced against homeless people, and to report these records to the Attorney
General's (AG's) office annually. 7) Provides that any person whose rights have been violated under
this part may enforce that right in a civil action in which the court may award appropriate relief and
damages, including restitution for loss of property or personal effects and belongings as well as
reasonable attorneys' fees and costs to a prevailing plaintiff.
According to the author, no state law defines a uniform standard protecting basic civil rights of our
most vulnerable citizens. The author asserts that numerous laws "infringe on poor people's ability to
exist in public space, to acquire housing, employment, and basic services, and to equal protection
under the law. The Homeless Person's Bill of Rights and Fairness Act is a response that can help
alleviate poverty and homelessness while protecting people from discrimination and ensuring a right
to privacy and personal property."
The author contends that cities have enacting "quality of life" or "anti-nuisance" ordinances, mainly
targeting the homeless, which "criminalize sleeping, sitting, and even food-sharing in public spaces.
Just like discriminatory laws from the past, they deny people their right to exist in local
communities." This bill is sponsored by the Western Center on Law and Poverty, JERICHO, and the
Western Regional Advocacy Project. The sponsors indicate that, with investments in affordable
housing decreasing significantly over the last 30 years, there has been an "uptick in laws that make it
illegal to be poor and homeless in public spaces."
The East Bay Community Law Center adds, "We have seen firsthand the trend toward criminalization
of homelessness, and its ill effects. Our clients are charged with trespassing for standing on a public
sidewalk, while nearby housed people are - unsurprisingly - not cited. AB 5 would prohibit that kind
of selective enforcement...AB 5 would curtail the government resources spent on giving homeless
people citations they cannot afford to pay for acts that should not be criminal to begin with, and will
thereby reduce jail and court costs that our state can ill afford to pay."
This bill is opposed by many local government entities, including numerous individual cities, and by
business groups. The League of California Cities, California Downtown Association, and California
Special District Associations jointly state, "We recognize the interconnectedness of safe, decent, and
permanent housing when addressing other needs of California's homeless population, such as mental
health or substance abuse treatment, and unemployment. However, any solution must strike a balance
between promoting health and safety for all residents and respecting the local designation of
resources. Unfortunately, AB 5 would create costly mandates, blur the line between local jurisdiction
authority, and undermine the local decision making process."
DISPOSITION: Pending in Assembly Appropriations Committee
CONSEQUENCE OF NEGATIVE ACTION:
If the Board of Supervisors does not adopt a position of "oppose" on these bills, it will not have an official
position on these bills from which to advocate.
ATTACHMENTS
Attachment A: AB 537
Attachment B: AB 616
Attachment C: SB 635
Attachment D: AB 5
AMENDED IN ASSEMBLY APRIL 30, 2013
AMENDED IN ASSEMBLY APRIL 8, 2013
california legislature—2013–14 regular session
ASSEMBLY BILL No. 5
Introduced by Assembly Member Ammiano
December 3, 2012
An act to add Part 2.2 (commencing with Section 53.1) to Division
1 of the Civil Code, and to amend Section 11135 of the Government
Code, relating to homelessness.
legislative counsel’s digest
AB 5, as amended, Ammiano. Homelessness.
Existing law provides that no person in the state shall, on the basis
of race, national origin, ethnic group identification, religion, age, sex,
sexual orientation, color, genetic information, or disability, be unlawfully
denied full and equal access to the benefits of, or be unlawfully subjected
to discrimination under, any program or activity that is conducted,
operated, or administered by the state or by any state agency, is funded
directly by the state, or receives any financial assistance from the state.
This bill would enact the Homeless Person’s Bill of Rights and
Fairness Act, which would provide that no person’s rights, privileges,
or access to public services may be denied or abridged because he or
she is homeless, has a low income, or suffers from a mental illness or
physical disability homeless. The bill would provide that every person
in the state, regardless of actual or perceived housing status, low income,
sexual orientation, gender identity, citizenship, or immigration status,
shall be free from specified forms of discrimination and shall be entitled
to certain basic human rights, including the right to be free from
97
Attachment D
discrimination by law enforcement, in the workplace, and while seeking
services. The bill would provide that every homeless person has the
right, among others, to access public property, possess personal property,
access public restrooms, clean water, educational supplies move freely,
rest, eat, share, accept, or give food or water, and solicit donations in
public spaces, as defined, and the right to lawful self-employment, as
specified, emergency and nonemergency health care, confidentiality of
medical specified records, assistance of legal counsel in specified
proceedings, and restitution, under specified circumstances. By requiring
a county to pay the cost of providing legal counsel, as specified, the
bill would increase the duties of local agencies, thereby imposing a
state-mandated local program. The bill would provide immunity from
employer retaliation, retaliation to a public employee who provides
specified assistance to a homeless person. The bill would require local
law enforcement agencies to make specified information available to
the public and report to the Attorney General on an annual basis with
regard to enforcement of local ordinances against homeless persons
and compliance with the act, as specified, thereby imposing a
state-mandated local program. The bill would provide for judicial relief
and impose civil penalties for a violation of the act.
This bill would require the State Department of Public Health to fund
the provision of health and hygiene centers, as specified, for use by
homeless persons in designated areas.
This bill would provide that its provisions address a matter of
statewide concern. The bill would provide that its provisions are
severable.
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 these statutory
provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
The people of the State of California do enact as follows:
line 1 SECTION 1. This act shall be known and may be cited as the
line 2 Homeless Person’s Bill of Rights and Fairness Act.
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Attachment D
line 1 SEC. 2. The Legislature finds and declares all of the following:
line 2 (a) In the State of California, there has been a long history of
line 3 discriminatory laws and ordinances that have disproportionately
line 4 affected people with low incomes and who are without homes,
line 5 including, but not limited to, all of the following:
line 6 (1) Jim Crow laws: After the Civil War, many states, especially
line 7 in the south, passed laws denying African Americans basic human
line 8 rights. In California, these laws also targeted Chinese immigrants.
line 9 In San Francisco, Chinese residents were forced to live in one area
line 10 of the city. The same segregation laws also prohibited interracial
line 11 marriage between Chinese and non-Chinese persons.
line 12 (2) Ugly laws: In 1867, San Francisco was the first city in the
line 13 country to pass a law making it illegal for people with “unsightly
line 14 or disgusting” disabilities to appear in public. In many cities, these
line 15 laws persisted until the 1970s.
line 16 (3) Anti-Okie laws: In 1937, California passed an Anti-Okie
line 17 law that criminalized “bringing or assisting in bringing” extremely
line 18 poor people into the state. The United States Supreme Court struck
line 19 down the law in 1941, when it declared that these laws are in
line 20 violation of the commerce clause, and therefore unconstitutional.
line 21 (4) Sundown town ordinances: Town policies and real estate
line 22 covenants were aimed at preventing minorities, homeless persons,
line 23 and other persons considered to be socially undesirable from
line 24 remaining within city limits after sunset. Thousands of these towns
line 25 existed prior to the federal Civil Rights Act of 1968, which made
line 26 these ordinances and covenants illegal.
line 27 (5) Vagrancy laws: Vagrancy laws have been held to be
line 28 discriminatory on their face because they criminalize a person’s
line 29 status rather than a behavior. Nevertheless, these laws existed in
line 30 California until the Legislature revised them in 1961.
line 31 (b) Act of living ordinances, often known as “quality of life
line 32 ordinances” and other similar ordinances, are the modern
line 33 reincarnations of laws of this kind. They are designed to force
line 34 homeless people to flee local jurisdictions. These local ordinances
line 35 result in de facto segregation as homeless people are forced out of
line 36 specific jurisdictions or out of specific neighborhoods within
line 37 jurisdictions. These practices tend to condemn large groups of
line 38 inhabitants to dwell in segregated districts or under depressed
line 39 living conditions that result in crowded, unsanitary, substandard,
line 40 and unhealthful accommodations. Furthermore, these policies
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AB 5— 3 — Attachment D
line 1 result in criminalization of homeless persons who do not choose,
line 2 or are unable, to migrate.
line 3 (c) Today, in the state, many people are denied the following:
line 4 (1) Housing due to their status of being homeless, living in a
line 5 shelter, a vehicle, the street, or the public domain.
line 6 (2) Employment due to their current status of being homeless
line 7 or living in a shelter or a vehicle on the street.
line 8 (3) Housing and employment as a result of not having a fixed
line 9 or residential mailing address or having a post office box as a
line 10 mailing address.
line 11 (4) Equal protection of the laws and due process by law
line 12 enforcement and prosecuting agencies.
line 13 (5) The ability to make certain purchases or enter certain contests
line 14 as a result of not having a fixed or residential mailing address or
line 15 having a post office box as a mailing address.
line 16 (6) Access to safe, clean restrooms, water, and hygienic supplies
line 17 necessary to maintain health, safety, and dignity, especially with
line 18 the proliferation of closures of public restrooms.
line 19 (d) Homeless persons are unfairly targeted by law enforcement,
line 20 often resulting in the violation of homeless persons’ constitutional
line 21 rights. Lacking the resources necessary to obtain adequate legal
line 22 representation, homeless persons are often denied relief or damages
line 23 through the courts.
line 24 (e) Homeless persons rarely have access to shelters, and when
line 25 shelter is available, its conditions can be so poor as to jeopardize
line 26 their health and physical and mental safety.
line 27 (f) Homeless persons are often forced to separate from loved
line 28 ones, give up their personal property, abandon pets, and make
line 29 other inhumane choices in order to access even minimal shelter.
line 30 (g) Lesbian, gay, bisexual, transgender, gender nonconforming,
line 31 and queer individuals often are forced to accept inappropriate or
line 32 unsafe accommodations to access publicly funded emergency
line 33 shelters.
line 34 (h) Children in homeless families are denied the ability to
line 35 continue receiving education in their preferred school if their
line 36 family’s shelter lies outside the boundaries of their former district.
line 37 (i) At the present time, many persons have been rendered
line 38 homeless as a result of a deep and prolonged economic recession,
line 39 a severe shortage of safe and affordable housing, a failed mental
line 40 health system, and a shrinking social safety net.
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— 4 —AB 5
Attachment D
line 1 (j) Section 1 of Article I of the California Constitution provides
line 2 that “[a]ll people are by nature free and independent and have
line 3 inalienable rights. Among these are enjoying and defending life
line 4 and liberty, acquiring, possessing, and protecting property, and
line 5 pursuing and obtaining safety, happiness, and privacy.”
line 6 (k) Subdivision (a) of Section 7 of Article I of the California
line 7 Constitution provides, in part, that “[a] person may not be deprived
line 8 of life, liberty, or property without due process of law or denied
line 9 equal protection of the laws... .”
line 10 (l) Concordant with this fundamental belief, a person should
line 11 not be subject to discrimination based on his or her housing status,
line 12 income level, mental or physical disability, sexual orientation,
line 13 gender identity, citizenship, or immigration status. Therefore, it is
line 14 the intent of the Legislature in enacting this act to protect the rights
line 15 of all Californians, regardless of their housing status, and to
line 16 ameliorate the adverse effects of homelessness on people who have
line 17 no home and on our communities.
line 18 (m) It is the intent of the Legislature to enact legislation that
line 19 would require all state agencies to use the same definition for
line 20 “homeless persons or people” as follows:
line 21 (1) “Homeless” means those individuals or families who lack
line 22 or are perceived to lack a fixed, regular, and adequate nighttime
line 23 residence, or who have a primary nighttime residence in a shelter,
line 24 on the street, in a vehicle, in an enclosure or structure that is not
line 25 authorized or fit for human habitation.
line 26 (2) “Homeless” also means a person whose only residence is
line 27 a residential hotel or who is residing anywhere without tenancy
line 28 rights, and families with children staying in a residential hotel
line 29 whether or not they have tenancy rights.
line 30 (n) It is the intent of the Legislature that publicly funded social
line 31 and health care services be offered in a sufficient quantity to meet
line 32 the population’s needs, without barriers, including geographical
line 33 barriers, such as making locations inconvenient or creating
line 34 screen-out barriers, or prohibiting access due to a person’s
line 35 inability to provide identification or criminal justice history, or
line 36 disability, in order that persons are reasonably able to reach and
line 37 use that service.
line 38 SEC. 3. (a) It is the intent of the Legislature to enact legislation
line 39 that would, except when otherwise not permitted by federal law,
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AB 5— 5 — Attachment D
line 1 ensure that everyone in the state has the right to all of the
line 2 following:
line 3 (1) Access to income sufficient for survival, regardless of
line 4 employment status or criminal justice background, including, but
line 5 not limited to, the right to receive funds through public welfare
line 6 programs, private donations, collecting recyclable goods, or
line 7 soliciting donations in public spaces.
line 8 (2) Safe, decent, permanent, and affordable housing, as soon as
line 9 possible, and the right to be free from further dislocation, unless
line 10 and until safe, decent, permanent, and affordable housing is
line 11 available.
line 12 (3) Access to clean and safe facilities 24 hours a day, seven
line 13 days a week, with clearly identifiable staff able to react to safety
line 14 concerns, including, but not limited to, shelters and drop-in centers
line 15 that meet basic health, hygiene, and dignity needs, including any
line 16 special needs of lesbian, gay, bisexual, or transgender individuals,
line 17 youths, families, or those with mental illness or physical
line 18 disabilities. This includes the right of all individuals to secure
line 19 shelter without being required to state their gender or to share
line 20 confidential health information protected by the federal Health
line 21 Insurance Portability and Accountability Act of 1996 (Public Law
line 22 104-191).
line 23 (4) As a child enrolled in a publicly funded school, be provided
line 24 by his or her school with the supplies necessary to promote
line 25 academic success, including, but not limited to, backpacks,
line 26 textbooks, notebooks, pencils, pens, and appropriate academic
line 27 technology.
line 28 (5) Nonemergency health care and access to medical facilities
line 29 that provide quality care for both physical and mental needs.
line 30 (6) Access to emergency services, including, but not limited to,
line 31 emergency rooms at hospitals, shelters, drop-in centers,
line 32 rehabilitation centers, education, and special training, without the
line 33 possibility of being denied based on race, color, sex, language,
line 34 religion, political or other opinion, national or social origin, sexual
line 35 orientation, gender identity, mental or physical disability, income
line 36 level, housing status, citizenship, or immigration status.
line 37 (b) It is the intent of the Legislature to enact legislation that
line 38 would require all state agencies to use the same definition for
line 39 “homeless persons or people” as follows: “Homeless” means those
line 40 individuals or families who lack a fixed, regular, and adequate
97
— 6 —AB 5
Attachment D
line 1 nighttime residence or who have primary nighttime residence in
line 2 a shelter, on the street, in a vehicle, in an enclosure or structure
line 3 that is not authorized or fit for human habitation, substandard
line 4 apartments, dwellings, doubled up temporarily with friends or
line 5 families, or staying in transitional housing programs. “Homeless”
line 6 also means any person residing anywhere without tenancy rights,
line 7 and families with children staying in a residential hotel whether
line 8 or not they have tenancy rights.
line 9 (c) It is the intent of the Legislature that publicly funded social
line 10 and health care services be offered in a sufficient quantity to meet
line 11 the population’s needs, without barriers, including geographical
line 12 barriers, such as making locations inconvenient or creating
line 13 screen-out barriers, or prohibiting access due to a person’s inability
line 14 to provide identification or criminal justice history, or disability,
line 15 in order that persons are reasonably able to reach and use that
line 16 service.
line 17 SEC. 4.
line 18 SEC. 3. Part 2.2 (commencing with Section 53.1) is added to
line 19 Division 1 of the Civil Code, to read:
line 20
line 21 PART 2.2. HOMELESS PERSONS
line 22
line 23 53.1. For purposes of this part, the following definitions shall
line 24 apply:
line 25 (a) “Access,” as applied to an existing facility, service, or public
line 26 space means the ability and permission to enter and make use of
line 27 the facility, service, or public space. Otherwise, “access” means
line 28 the offering or availability of a facility or service.
line 29 (b)
line 30 (a) “BID” means a business improvement district, as established
line 31 under Chapter 2 (commencing with Section 36520) of Part 6 of
line 32 Division 18 of, or Chapter 2 (commencing with Section 36620)
line 33 of Part 7 of Division 18 of, the Streets and Highways Code, or any
line 34 public-private partnership established under any municipal or
line 35 county law authorized under Chapter 1 (commencing with Section
line 36 36500) of Part 6 of Division 18 of, or Chapter 1 (commencing
line 37 with Section 36600) of Part 7 of Division 18 of, the Streets and
line 38 Highways Code, whether or not the phrase “business improvement
line 39 district” is part of the public-private partnership’s name.
line 40 (c)
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AB 5— 7 — Attachment D
line 1 (b) “BID agent” means any person hired by a BID or any other
line 2 public-private partnership similar to a business improvement
line 3 district.
line 4 (d) “Damages” means, but is not limited to, losses.
line 5 (e)
line 6 (c) “Harassment” means any behavior that is meant to intimidate
line 7 or otherwise persuade an individual to alter his or her behavior,
line 8 whether or not otherwise lawful. a knowing and willful course of
line 9 conduct by law enforcement, public or private security personnel,
line 10 or a BID agent directed at a specific person that a reasonable
line 11 person would consider as seriously alarming, seriously annoying,
line 12 seriously tormenting, or seriously terrorizing a person.
line 13 (f)
line 14 (d) “Homeless persons” or “homeless people” means those
line 15 individuals or families lacking who lack or are perceived to lack
line 16 a fixed, regular, and adequate nighttime residence, or having who
line 17 have a primary nighttime residence in a shelter, on the street, in a
line 18 vehicle, in an enclosure or structure that is not authorized or fit for
line 19 human habitation, in a substandard apartment, dwelling, staying
line 20 temporarily with friends or families, or staying in transitional
line 21 housing programs or habitation. “Homeless” also means a person
line 22 whose only residence is a residential hotel or who is residing
line 23 anywhere without tenancy rights, and families with children staying
line 24 in a residential hotel whether or not they have tenancy rights.
line 25 (g) “Housing status” means the status of having or not having
line 26 a fixed or regular residence, including the status of living outdoors,
line 27 in a vehicle, or in a homeless shelter, or similar temporary
line 28 residence or elsewhere in the public domain.
line 29 (h) “Lack of permanent mailing address” means the absence of
line 30 an address fixed to a permanent home, and may include, but is not
line 31 limited to, post office boxes, addresses of friends or family
line 32 members, and shelter addresses.
line 33 (i) “Lawful representative” means any person who has been
line 34 asked to advocate on behalf of a person or any class that a person
line 35 identifies with, including, but not limited to, a homeless person’s
line 36 retained attorney, a nonprofit organization that advocates on behalf
line 37 of homeless persons, or a prosecuting attorney upon the request
line 38 of a homeless person.
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— 8 —AB 5
Attachment D
line 1 (j) “Losses” means, but is not limited to, any deprivation of
line 2 constitutionally held rights as well as the loss of property or
line 3 physical and mental wellbeing.
line 4 (k) “Low income” is defined as income at or lower than twice
line 5 the federal poverty level as established by the poverty guidelines
line 6 updated periodically in the Federal Register by the United States
line 7 Department of Health and Human Services under the authority of
line 8 Section 9902(2) of Title 42 of the United States Code.
line 9 (l) “Public service” means any program or activity that is
line 10 conducted, operated, or administered by the state, any state agency,
line 11 or local government agency, is funded directly by the state or any
line 12 local government, or received any financial assistance from the
line 13 state or any local government.
line 14 (m)
line 15 (e) “Public space” means any space property that is
line 16 predominantly within the public domain or owned by any state or
line 17 local government entity or upon which there is an easement for
line 18 public use and that is held open to the public, including, but not
line 19 limited to, plazas, courtyards, parking lots, sidewalks, public
line 20 transportation, public buildings and parks. “Public space” may
line 21 also refer to those places that receive additional services through
line 22 BIDs or other, similar public-private partnerships. does not include
line 23 a private business establishment.
line 24 (n)
line 25 (f) “Rest” means the state of not moving, holding certain
line 26 postures that include, but are not limited to, sitting, standing,
line 27 leaning, kneeling, squatting, sleeping, or lying.
line 28 (o)
line 29 (g) “Soliciting donations” means asking for food, water, or
line 30 money, which includes panhandling.
line 31 53.2. (a) The existence of homelessness requires that
line 32 fundamental rights that are amply protected in the home and in
line 33 private places be extended to the public domain to ensure the equal
line 34 rights of all Californians, homeless and housed. Every homeless
line 35 person in the state, regardless of actual or perceived housing status,
line 36 low income, sexual orientation, gender identity, citizenship, or
line 37 immigration status, state shall have the right to all of the following
line 38 basic human rights and legal and civil protections, except when
line 39 prohibited by federal law:
97
AB 5— 9 — Attachment D
line 1 (1) The right to move freely in the same manner as any other
line 2 person in public spaces, including, but not limited to, plazas,
line 3 parking lots, public sidewalks, public parks, public transportation,
line 4 public streets, and public buildings, in the same manner as any
line 5 other person, and without discrimination spaces without being
line 6 subject to criminal or civil sanctions, harassment or arrest by law
line 7 enforcement, public or private security personnel, or BID agents
line 8 because he or she is homeless.
line 9 (2) The right to rest and sleep in a public spaces space in the
line 10 same manner as any other person without being subject to criminal
line 11 or civil sanctions, harassment, or arrest by law enforcement, public
line 12 or private security personnel, or BID agents because he or she is
line 13 homeless, as long as such that rest does not maliciously or
line 14 substantially obstruct a passageway.
line 15 (3) The right to set down or leave at rest personal property in
line 16 public spaces without being subject to criminal or civil sanctions,
line 17 harassment, or arrest by law enforcement, public or private security
line 18 personnel, or BID agents, as long as that personal property does
line 19 not maliciously or substantially obstruct a passageway, or the
line 20 possession or placement of that personal property does not deny
line 21 another of the right to property. This includes the right to restitution
line 22 for loss of property or personal effects and belongings if the
line 23 property or personal effects are confiscated, removed, damaged,
line 24 or destroyed by law enforcement, public or private security
line 25 personnel, or BID agents in violation of this paragraph or any other
line 26 protections of property provided under state or federal law.
line 27 (4)
line 28 (3) The right to eat, share, accept, or give food or water in public
line 29 spaces in the same manner as any other person without being
line 30 subject to criminal or civil sanctions, harassment, or arrest by law
line 31 enforcement, public or private security personnel, or BID agents
line 32 because he or she is homeless.
line 33 (4) The right to solicit donations in public spaces in the same
line 34 manner as any other person without being subject to criminal or
line 35 civil sanctions, harassment, or arrest by law enforcement, public
line 36 or private security personnel, or BID agents because he or she is
line 37 homeless.
line 38 (5) The right to the same protections that law enforcement
line 39 agencies afford to the general public any other person, including,
97
— 10 —AB 5
Attachment D
line 1 but not limited to, the right to reasonable protection from assault,
line 2 domestic violence, sexual assault, or robberies.
line 3 (6) The right to sleep, sit, lie down, stand, eat, solicit donations,
line 4 or share food in a public place or in a vehicle rest in a public place
line 5 space, without being subject to criminal or civil sanctions,
line 6 harassment, or arrest by law enforcement, public or private security
line 7 personnel, or BID agents, except that law enforcement may enforce
line 8 existing local laws if all of the following are true: (1) the person’s
line 9 county of residence maintains 12 months per year of nonmedical
line 10 assistance provided for in Section 17000 of the Welfare and
line 11 Institutions Code for employable, able-bodied adults without
line 12 dependents who are compliant with program rules established by
line 13 the county, including work requirements; (2) the locality is not a
line 14 geographical area identified by the United States Department of
line 15 Labor in accordance with Subpart A of Part 654 of Section 20 of
line 16 the Code of Federal Regulations as an area of concentrated
line 17 unemployment or underemployment or an area of labor surplus;
line 18 and (3) the public housing waiting list maintained by the county
line 19 contains fewer than 50 persons.
line 20 (7) The right to be self-employed engage in lawful
line 21 self-employment in the same manner as any other person,
line 22 including, but not limited to, the right to seek self-employment in
line 23 junk removal and recycling that requires the collection, possession,
line 24 redemption, and storage of goods for reuse and recycling, without
line 25 being subject to criminal or civil sanctions, harassment, or arrest
line 26 by law enforcement, public or private security personnel, or BID
line 27 agents because he or she is homeless.
line 28 (8) The right to pray, meditate, or practice religion in public
line 29 spaces in the same manner as any other person, without being
line 30 subject to criminal or civil sanctions, harassment, or arrest by law
line 31 enforcement, public or private security personnel, or BID agents
line 32 because he or she is homeless.
line 33 (9) The right to decline admittance to a public or private shelter
line 34 or any other accommodation, including social services programs,
line 35 for any reason he or she sees fit, without facing being subject to
line 36 criminal or civil sanctions, harassment, or arrest, or threats of these
line 37 actions, arrest from law enforcement, public or private security
line 38 personnel, or BID agents.
line 39 (10) The right to occupy a motor vehicle, as defined in Section
line 40 415 of the Vehicle Code, or recreational vehicle, as defined in
97
AB 5— 11 — Attachment D
line 1 Section 18010 of the Health and Safety Code, either to rest, sleep,
line 2 or use for the purposes of shelter, provided that the vehicle is
line 3 legally parked on public property, without facing being subject to
line 4 criminal or civil sanctions, harassment, or arrest, or threats of these
line 5 actions, arrest from law enforcement, public or private security
line 6 personnel, or BID agents.
line 7 (11) If the person is a child or youth, the right to state
line 8 enforcement of the educational protections under the federal
line 9 McKinney-Vento Act (42 U.S.C. Sec. 11432), particularly with
line 10 regard to Sections 11432(e)(3)(C)(ii)(I) and 11432(e)(3)(C)(ii)(II)
line 11 of Title 42 of the United States Code, which provide that a school
line 12 shall provide assistance to the parent or guardian of each homeless
line 13 child or youth (or, in the case of an unaccompanied youth, the
line 14 youth) to exercise the right to attend the parent’s or guardian’s (or
line 15 youth’s) choice of school, and a school shall coordinate with the
line 16 local educational agency with jurisdiction for the school selected
line 17 by the parent or guardian (or youth), to provide transportation and
line 18 other necessary services.
line 19 (12)
line 20 (11) The right to be protected from disclosure confidentiality
line 21 of his or her records and information from by homeless shelters,
line 22 medical centers, schools, or any other publicly funded human
line 23 service provider to law enforcement agencies without appropriate
line 24 legal authority, and the right to confidentiality of personal records
line 25 and information in accordance with all limitations on disclosure
line 26 established by the federal Homeless Management Information
line 27 Systems, the federal Health Insurance Portability and
line 28 Accountability Act of 1996 (Public Law 104-191), and the federal
line 29 Violence Against Women Act (Public Law 103-322), employers,
line 30 or landlords, except that the records or information may be
line 31 disclosed if the disclosure is based on appropriate legal authority.
line 32 Disclosure of an individual’s records or information shall not be
line 33 allowed unless the individual received oral and written notice of
line 34 the legal authority to disclose this information and the individual’s
line 35 right to opt out of having the records or information disclosed.
line 36 (13) The right to confidentiality of personal records regarding
line 37 housing status, income level, mental illness, physical disability,
line 38 sexual orientation, gender identity, citizenship, or immigration
line 39 status, and to protection from disclosure of the information and
line 40 records to landlords and employers.
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— 12 —AB 5
Attachment D
line 1 (14)
line 2 (12) (A) If The right to assistance of counsel, if a county
line 3 chooses to initiate judicial proceedings subject to Section 40508
line 4 of the Vehicle Code, Section 853.6, 853.7, or 853.8 of the Penal
line 5 Code, or any similar law authorizing arrest for failure to appear
line 6 or pay bail of the amount listed on the notice to appear, the
line 7 defendant shall be guaranteed the right to assistance of counsel
line 8 under any law set forth in Section 53.5. The accused shall be
line 9 advised of this right to counsel before entering a plea, and any
line 10 waiver of this right shall be explicit. If the district attorney’s office
line 11 or its agent is representing the state in any part of an infraction
line 12 proceeding, the accused shall have the right to assistance of counsel
line 13 with regard to that infraction.
line 14 (B) The county where the citation was issued shall pay the cost
line 15 of providing counsel under this section paragraph.
line 16 (C) A county shall not use penalties under Section 1214.1 of
line 17 the Penal Code or any other civil assessment scheme in the
line 18 prosecution of municipal infractions unless the defendant was the
line 19 driver of a vehicle.
line 20 (15) The right to assistance of counsel in any civil or criminal
line 21 proceeding that may result in commitment to a public health
line 22 institution.
line 23 (16) The right to be free from arbitrary arrest, detention, or
line 24 deportation, handed over to another law enforcement agency, or
line 25 deported, without guarantees necessary for his or her timely
line 26 defense.
line 27 (b)
line 28 (C) This section paragraph shall not be construed to eliminate
line 29 any protection or right to representation available under Sections
line 30 5365 and 6500 of the Welfare and Institutions Code or any other
line 31 provision of law.
line 32 53.3. (a) A public employee shall not be retaliated against by
line 33 his or her employer, for offering available public resources to a
line 34 homeless person in order to protect that person from harm,
line 35 including, but not limited to, for offering or providing food,
line 36 blankets, first-aid supplies, or water.
line 37 (b) Any person or organization or water offering food or water
line 38 in a public spaces space to any homeless person pursuant to this
line 39 part shall not be subject to criminal or civil sanctions, arrest, or
97
AB 5— 13 — Attachment D
line 1 harassment by law enforcement, public or private security
line 2 personnel, or BID agents.
line 3 53.4. (a) Every local government and disadvantaged
line 4 unincorporated community within the state shall have sufficient
line 5 health and hygiene centers available 24 hours a day, seven days a
line 6 week, for use by homeless people. These facilities may be part of
line 7 the Neighborhood Health Center Program.
line 8 (b) For purposes of subdivision (a), the health and hygiene
line 9 centers shall be funded by the State Department of Public Health
line 10 through those county agencies that oversee public health programs,
line 11 and, at a minimum, shall contain public bathroom and shower
line 12 facilities.
line 13 (c) The State Department of Public Health shall distribute public
line 14 bulletins and notices identifying the facilities to be used as health
line 15 and hygiene centers.
line 16 (d) For purposes of this section, “disadvantaged unincorporated
line 17 community” means a fringe, island, or legacy community in which
line 18 the median household income is 80 percent less than the statewide
line 19 median household income shall be defined as in Section 65302.10
line 20 of the Government Code.
line 21 53.5. (a) To ensure equitable and cost-effective enforcement
line 22 of the Homeless Person’s Bill of Rights and Fairness Act (Ch.____,
line 23 Stats. 2013), every local law enforcement agency shall annually
line 24 compile and review the number of citations, arrests, and other
line 25 enforcement activities made pursuant to laws prohibiting the
line 26 following:
line 27 (1) Obstructing a sidewalk, whether by a person or personal
line 28 property.
line 29 (2) Loitering.
line 30 (3) Sitting.
line 31 (4) Lying down.
line 32 (5) Camping.
line 33 (6) Public lodging, including the prohibition specified in
line 34 subdivision (e) of Section 647 of the Penal Code.
line 35 (7) Sleeping in a public place.
line 36 (8) Soliciting donations.
line 37 (9) Soliciting donations at certain restricted locations, including
line 38 citing people for panhandling under Section 22520.5 of the Vehicle
line 39 Code.
line 40 (10) Bathing in public places.
97
— 14 —AB 5
Attachment D
line 1 (11) Sharing or receiving food.
line 2 (12) Inhabiting or sleeping in a vehicle.
line 3 (13) Violating public park closure laws.
line 4 (14) Crossing streets or highways at particular locations,
line 5 including subdivisions (c) and (d) of Section 21451 of, subdivision
line 6 (d) of Section 21453 of, subdivision (b) of Section 21456 of,
line 7 Section 21461.5 of, subdivision (b) of Section 21950 of, Section
line 8 21954 of, Section 21955 of, and subdivision (a) of Section 21956
line 9 of, the Vehicle Code.
line 10 (15) Trespassing, unless the trespassing charge is coupled with
line 11 any misdemeanor or felony, except those misdemeanors that are
line 12 included in Section 372 of, and subdivisions (h) to (j), inclusive,
line 13 and subdivisions (l) and (m), of Section 602 of, the Penal Code.
line 14 (16) Failing to appear, pay a fine, post bail, or comply with a
line 15 condition of a court order, as described in Section 40508 of the
line 16 Vehicle Code or Section 853.6, 853.7, or 853.8 of the Penal Code.
line 17 (16)
line 18 (17) Any other local or state law enforced against homeless
line 19 persons and identified by the Attorney General’s office, or a city
line 20 attorney’s office, or any nonprofit organization whose work or
line 21 mission includes assistance to research about, or advocate for, poor
line 22 and homeless people office.
line 23 (b) A local law enforcement agency shall make this information
line 24 publicly available under the terms set forth in the California Public
line 25 Records Act (Chapter 3.5 (commencing with Section 6250) of
line 26 Division 7 of Title 1 of the Government Code).
line 27 (c) A local law enforcement agency shall report the information
line 28 specified in this section to the Attorney General’s office on an
line 29 annual basis.
line 30 53.6. (a) Any person whose rights have been violated under
line 31 this part may enforce those rights and he or she, or his or her lawful
line 32 representative, may file a motion for relief in any trial or appellate
line 33 court with jurisdiction over the case as a matter of right. The court
line 34 shall act promptly on any motion for relief under this part in a civil
line 35 action.
line 36 (b) Any civil action alleging a violation of this part may be
line 37 brought against any person, entity, public entity, or public
line 38 employee. The court may award punitive damages, if applicable,
line 39 appropriate injunctive and declaratory relief, restitution for loss
line 40 of property or personal effects and belongings, actual damages,
97
AB 5— 15 — Attachment D
line 1 compensatory damages, general damages, special damages,
line 2 exemplary damages, statutory damages of one thousand dollars
line 3 ($1,000) per violation, if applicable, and reasonable attorneys’ fees
line 4 and costs to a prevailing plaintiff.
line 5 SEC. 5.
line 6 SEC. 4. Section 11135 of the Government Code is amended
line 7 to read:
line 8 11135. (a) No person in the State of California shall, on the
line 9 basis of race, national origin, ethnic group identification, religion,
line 10 age, sex, sexual orientation, color, housing status, genetic
line 11 information, or disability, be unlawfully denied full and equal
line 12 access to the benefits of, or be unlawfully subjected to
line 13 discrimination under, any program or activity that is conducted,
line 14 operated, or administered by the state or by any state agency, is
line 15 funded directly by the state, or receives any financial assistance
line 16 from the state. Notwithstanding Section 11000, this section applies
line 17 to the California State University.
line 18 (b) With respect to discrimination on the basis of disability,
line 19 programs and activities subject to subdivision (a) shall meet the
line 20 protections and prohibitions contained in Section 202 of the federal
line 21 Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132),
line 22 and the federal rules and regulations adopted in implementation
line 23 thereof, except that if the laws of this state prescribe stronger
line 24 protections and prohibitions, the programs and activities subject
line 25 to subdivision (a) shall be subject to the stronger protections and
line 26 prohibitions.
line 27 (c) (1) As used in this section, “disability” means any mental
line 28 or physical disability, as defined in Section 12926.
line 29 (2) The Legislature finds and declares that the amendments
line 30 made to this act are declarative of existing law. The Legislature
line 31 further finds and declares that in enacting Senate Bill 105 of the
line 32 2001–02 Regular Session (Chapter 1102 of the Statutes of 2002),
line 33 it was the intention of the Legislature to apply subdivision (d) to
line 34 the California State University in the same manner that
line 35 subdivisions (a), (b), and (c) already applied to the California State
line 36 University, notwithstanding Section 11000. In clarifying that the
line 37 California State University is subject to paragraph (2) of
line 38 subdivision (d), it is not the intention of the Legislature to increase
line 39 the cost of developing or procuring electronic and information
line 40 technology. The California State University shall, however, in
97
— 16 —AB 5
Attachment D
line 1 determining the cost of developing or procuring electronic or
line 2 information technology, consider whether technology that meets
line 3 the standards applicable pursuant to paragraph (2) of subdivision
line 4 (d) will reduce the long-term cost incurred by the California State
line 5 University in providing access or accommodations to future users
line 6 of this technology who are persons with disabilities, as required
line 7 by existing law, including this section, Title II of the federal
line 8 Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101
line 9 et seq.), and Section 504 of the Rehabilitation Act of 1973 (29
line 10 U.S.C. Sec. 794).
line 11 (d) (1) The Legislature finds and declares that the ability to
line 12 utilize electronic or information technology is often an essential
line 13 function for successful employment in the current work world.
line 14 (2) In order to improve accessibility of existing technology, and
line 15 therefore increase the successful employment of individuals with
line 16 disabilities, particularly blind and visually impaired and deaf and
line 17 hard-of-hearing persons, state governmental entities, in developing,
line 18 procuring, maintaining, or using electronic or information
line 19 technology, either indirectly or through the use of state funds by
line 20 other entities, shall comply with the accessibility requirements of
line 21 Section 508 of the federal Rehabilitation Act of 1973, as amended
line 22 (29 U.S.C. Sec. 794d), and regulations implementing that act as
line 23 set forth in Part 1194 of Title 36 of the Federal Code of
line 24 Regulations.
line 25 (3) Any entity that contracts with a state or local entity subject
line 26 to this section for the provision of electronic or information
line 27 technology or for the provision of related services shall agree to
line 28 respond to, and resolve any complaint regarding accessibility of
line 29 its products or services that is brought to the attention of the entity.
line 30 (e) As used in this section, “sex” and “sexual orientation” have
line 31 the same meanings as those terms are defined in subdivisions (q)
line 32 and (r) of Section 12926.
line 33 (f) As used in this section, “race, national origin, ethnic group
line 34 identification, religion, age, sex, sexual orientation, color, or
line 35 disability” includes a perception that a person has any of those
line 36 characteristics or that the person is associated with a person who
line 37 has, or is perceived to have, any of those characteristics.
line 38 (g) As used in this section, “genetic information” has the same
line 39 definition as in paragraph (2) of subdivision (e) of Section 51 of
line 40 the Civil Code.
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AB 5— 17 — Attachment D
line 1 (h) For purposes of this section section, “housing status” has
line 2 the same meaning as that term is means status as a “homeless
line 3 person” as defined in subdivision (g) of Section 53.1 of the Civil
line 4 Code.
line 5 SEC. 6.
line 6 SEC. 5. The Legislature finds and declares that the need to
line 7 address discriminatory practices is a matter of statewide concern
line 8 and is not a municipal affair, as that term is used in Section 5 of
line 9 Article XI of the California Constitution. Therefore, this act shall
line 10 apply to all cities, including charter cities.
line 11 SEC. 7.
line 12 SEC. 6. The provisions of this act are severable. If any
line 13 provision of this act or its application is held invalid, that invalidity
line 14 shall not affect other provisions or applications that can be given
line 15 effect without the invalid provision or application.
line 16 SEC. 8.
line 17 SEC. 7. If the Commission on State Mandates determines that
line 18 this act contains costs mandated by the state, reimbursement to
line 19 local agencies and school districts for those costs shall be made
line 20 pursuant to Part 7 (commencing with Section 17500) of Division
line 21 4 of Title 2 of the Government Code.
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— 18 —AB 5
Attachment D
AMENDED IN ASSEMBLY APRIL 17, 2013
AMENDED IN ASSEMBLY MARCH 19, 2013
california legislature—2013–14 regular session
ASSEMBLY BILL No. 537
Introduced by Assembly Member Bonta
February 20, 2013
An act to amend Section Sections 3505, 3505.1, 3505.2, and 3507
of, and to add Section 3505.8 to, the Government Code, relating to
public employment.
legislative counsel’s digest
AB 537, as amended, Bonta. Meyers-Milias-Brown Act: impasse
procedures.
The Meyers-Milias-Brown Act requires the governing body of a local
public agency to meet and confer in good faith regarding wages, hours,
and other terms and conditions of employment with representatives of
recognized employee organizations. Under the act, if the representatives
of the public agency and the employee organization fail to reach an
agreement, they may mutually agree on the appointment of a mediator
and equally share the cost.
This bill would instead authorize the representatives of the public
agency or the employee organization, if they fail to reach an agreement,
to request mediation. The bill would require that the parties agree upon
the appointment of a mediator mutually agreeable to the parties within
5 days of a request by one of the parties. If the parties fail to agree on
the selection of a mediator within 5 days, the bill would provide that
either party may request the appointment of a mediator, as specified.
97
Attachment A
By requiring a higher level of service by a local public agency, the bill
would impose a state-mandated local program.
The act requires that, in order to meet and confer in good faith, a
public agency meet personally and confer promptly, and continue for
a reasonable period of time, with the employee organization in order
to exchange freely prior to the agency adopting a budget for the next
fiscal year.
This bill would prohibit a public agency from conditioning the meeting
and conferring on a limitation on the right of employees or an employee
organization to communicate with officials of the agency.
The act requires, if an agreement is reached, that the parties prepare
jointly a nonbinding written memorandum of understanding of the
agreement that would then be presented to the governing body or its
statutory representative for determination.
This bill would require that, if an agreement is reached, the parties
would prepare a written memorandum of understanding, which would
be binding upon execution or ratification, as specified.
Under existing law, a written agreement to submit to arbitration a
specified controversy is valid, enforceable, and irrevocable, except if
grounds exist for the revocation of the written agreement.
This bill would additionally provide that an arbitration agreement
contained in a memorandum of understanding entered into under the
Meyers-Milias-Brown Act is enforceable, as specified.
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 these statutory
provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
The people of the State of California do enact as follows:
line 1 SECTION 1. Section 3505 of the Government Code is amended
line 2 to read:
line 3 3505. (a) The governing body of a public agency, or such the
line 4 boards, commissions, administrative officers or other
line 5 representatives as may be properly designated by law or by such
97
— 2 —AB 537
Attachment A
line 1 a governing body, shall meet and confer in good faith regarding
line 2 wages, hours, and other terms and conditions of employment with
line 3 representatives of such those recognized employee organizations,
line 4 as defined in subdivision (b) of Section 3501, and shall consider
line 5 fully such presentations as are made by the employee organization
line 6 on behalf of its members prior to arriving at a determination of
line 7 policy or course of action.
line 8 “Meet
line 9 (b) “Meet and confer in good faith” means that a public agency,
line 10 or such representatives as it may designate, and representatives of
line 11 recognized employee organizations, shall have the mutual
line 12 obligation personally to meet and confer promptly upon request
line 13 by either party and continue for a reasonable period of time in
line 14 order to exchange freely information, opinions, and proposals, and
line 15 to endeavor to reach agreement on matters within the scope of
line 16 representation prior to the adoption by the public agency of its
line 17 final budget for the ensuing year. A public agency shall not propose
line 18 as a condition of meeting and conferring a limitation on the right
line 19 of an employee organization or employees of the agency to
line 20 communicate with officials of the agency. The process should
line 21 include adequate time for the resolution of impasses where specific
line 22 procedures for such resolution are contained in local rule,
line 23 regulation, or ordinance, or when such procedures are utilized by
line 24 mutual consent.
line 25 SEC. 2. Section 3505.1 of the Government Code is amended
line 26 to read:
line 27 3505.1. If agreement is reached by the authorized
line 28 representatives of the public agency and a recognized employee
line 29 organization or recognized employee organizations, they shall
line 30 jointly prepare a written memorandum of such understanding,
line 31 which shall not be binding, and present it to the governing body
line 32 or its statutory representative for determination which shall be
line 33 binding upon final execution by the authorized representatives or,
line 34 if ratification is required by the recognized employee
line 35 organization’s internal rules, upon ratification pursuant to those
line 36 rules.
line 37 SECTION 1.
line 38 SEC. 3. Section 3505.2 of the Government Code is amended
line 39 to read:
97
AB 537— 3 — Attachment A
line 1 3505.2. If after a reasonable period of time, representatives of
line 2 the public agency and the recognized employee organization fail
line 3 to reach agreement, either the public agency or the recognized
line 4 employee organization or recognized employee organizations may
line 5 request mediation. Within five days of a request by one of the
line 6 parties, the parties shall agree upon the appointment of a mediator
line 7 mutually agreeable to the parties. If the parties fail to agree on the
line 8 selection of a mediator within five days, either party may request
line 9 that the board appoint a mediator. The board shall, no later than
line 10 five days after receipt of the request, appoint a mediator in
line 11 accordance with rules prescribed by the board. Costs of mediation
line 12 shall be divided one-half to the public agency and one-half to the
line 13 recognized employee organization or recognized employee
line 14 organizations.
line 15 SEC. 4. Section 3505.8 is added to the Government Code, to
line 16 read:
line 17 3505.8. An arbitration agreement contained in a memorandum
line 18 of understanding entered into under this chapter shall be
line 19 enforceable in an action brought pursuant to Title 9 (commencing
line 20 with Section 1280) of Part 3 of the Code of Civil Procedure. An
line 21 assertion that the arbitration claim is untimely or that the party
line 22 seeking arbitration has failed to satisfy the procedural prerequisites
line 23 to arbitration shall not be a basis for refusing to submit the dispute
line 24 to arbitration. All procedural defenses shall be presented to the
line 25 arbitrator for resolution. A court shall not refuse to order
line 26 arbitration because a party to the memorandum of understanding
line 27 contends that the conduct in question arguably constitutes an
line 28 unfair practice subject to the jurisdiction of the board.
line 29 SEC. 5. Section 3507 of the Government Code is amended to
line 30 read:
line 31 3507. (a) A public agency may adopt reasonable rules and
line 32 regulations after consultation meeting and conferring in good faith
line 33 with representatives of a recognized employee organization or
line 34 organizations for the administration of employer-employee
line 35 relations under this chapter. An impasse in these negotiations shall
line 36 be resolved pursuant to the procedures of Sections 3505.4 to
line 37 3505.7, inclusive.
line 38 The
line 39 (b) The rules and regulations described in subdivision (a) may
line 40 include provisions for all of the following:
97
— 4 —AB 537
Attachment A
line 1 (1) Verifying that an organization does in fact represent
line 2 employees of the public agency.
line 3 (2) Verifying the official status of employee organization
line 4 officers and representatives.
line 5 (3) Recognition of employee organizations.
line 6 (4) Exclusive recognition of employee organizations formally
line 7 recognized pursuant to a vote of the employees of the agency or
line 8 an appropriate unit thereof, subject to the right of an employee to
line 9 represent himself or herself as provided in Section 3502.
line 10 (5) Additional procedures for the resolution of disputes involving
line 11 wages, hours and other terms and conditions of employment.
line 12 (6) Access of employee organization officers and representatives
line 13 to work locations.
line 14 (7) Use of official bulletin boards and other means of
line 15 communication by employee organizations.
line 16 (8) Furnishing nonconfidential information pertaining to
line 17 employment relations to employee organizations.
line 18 (9) Any other matters that are necessary to carry out the purposes
line 19 of this chapter.
line 20 (b)
line 21 (c) Exclusive recognition of employee organizations formally
line 22 recognized as majority representatives pursuant to a vote of the
line 23 employees may be revoked by a majority vote of the employees
line 24 only after a period of not less than 12 months following the date
line 25 of recognition.
line 26 (c)
line 27 (d) No public agency shall unreasonably withhold recognition
line 28 of employee organizations.
line 29 (d)
line 30 (e) Employees and employee organizations shall be able to
line 31 challenge a rule or regulation of a public agency as a violation of
line 32 this chapter. This subdivision shall not be construed to restrict or
line 33 expand the board’s jurisdiction or authority as set forth in
line 34 subdivisions (a) to (c), inclusive, of Section 3509.
line 35 SEC. 2.
line 36 SEC. 6. If the Commission on State Mandates determines that
line 37 this act contains costs mandated by the state, reimbursement to
line 38 local agencies and school districts for those costs shall be made
97
AB 537— 5 — Attachment A
line 1 pursuant to Part 7 (commencing with Section 17500) of Division
line 2 4 of Title 2 of the Government Code.
O
97
— 6 —AB 537
Attachment A
AMENDED IN ASSEMBLY APRIL 25, 2013
AMENDED IN ASSEMBLY MARCH 19, 2013
california legislature—2013–14 regular session
ASSEMBLY BILL No. 616
Introduced by Assembly Member Bocanegra
February 20, 2013
An act to amend Sections 3505.4, 3507, 3507.1, 3507.3, 3507.5, and
3509 Section 3505.4 of the Government Code, relating to local public
employee organizations.
legislative counsel’s digest
AB 616, as amended, Bocanegra. Local public employee
organizations: dispute: factfinding panel.
Existing law requires the governing body of a local public agency,
or those boards, commissions, administrative officers, or other
representatives as may be properly designated by law or by a governing
body, to meet and confer in good faith regarding wages, hours, and
other terms and conditions of employment with representatives of
recognized employee organizations. Existing law provides that
authorizes an employee organization may to request that the parties’
differences be submitted to a factfinding panel not sooner that 30 days
or more than 45 days following the appointment or selection of a
mediator pursuant to the parties’ agreement to mediate or a mediation
process required by a public agency’s local rules. Existing law authorizes
an employee organization, if the dispute was not submitted to a
mediation, to request that the parties’ differences be submitted to a
factfinding panel not later than 30 days following the date that either
97
Attachment B
party provided the other with a written notice of a declaration of
impasse.
This bill would instead authorize an employee organization, if the
dispute was not submitted to a mediation, to request in writing that the
public agency submit the parties’ differences to a factfinding panel not
later than 60 days following the date that either party provided the other
with a written notice of a declaration of impasse. The bill would provide
that if either party disputes that a genuine impasse, as defined, has been
reached, the issue of whether an impasse exists may be submitted to
the Public Employment Relations Board for resolution before the dispute
is submitted to a factfinding panel, as specified. The bill would also
authorize each party to select a person to serve as its member of the
factfinding panel.
Existing law authorizes a public agency to adopt reasonable rules and
regulations for the administration of employer-employee relations, as
specified, including provisions for verification that an organization does
in fact represent employees of the organization, recognition of employee
organizations, and exclusive recognition of employee organizations, as
specified.
This bill would delete provisions that authorize a public agency to
establish rules and regulations that provide for verification that an
organization does in fact represent employees of the organization,
recognition of employee organizations, and exclusive recognition of
employee organizations.
Existing law authorizes a public agency to determine and process unit
determinations and representation elections pursuant to rules it has
adopted.
This bill would instead provide that the board, pursuant to rules and
regulations it has adopted, shall determine and process unit
determinations and representation elections. The bill would specify
criteria that the board would be required to take into account in
determining an appropriate unit.
Existing law authorizes a public agency to adopt reasonable rules and
regulations providing for designation of management and confidential
employees of the public agency and restricting those employees form
representing any employee organization that represents other employees
of the public agency on matters within the scope of representation.
This bill would instead authorize the board to adopt those rules and
regulations.
This bill would also make other conforming changes.
97
— 2 —AB 616
Attachment B
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
The people of the State of California do enact as follows:
line 1 SECTION 1. Section 3505.4 of the Government Code is
line 2 amended to read:
line 3 3505.4. (a) The employee organization may request that the
line 4 parties’ differences be submitted to a factfinding panel not sooner
line 5 than 30 days, but not more than 45 days, following the appointment
line 6 or selection of a mediator pursuant to the parties’ agreement to
line 7 mediate or a mediation process required by a public agency’s local
line 8 rules. If the dispute was not submitted to mediation, an employee
line 9 organization may request, in writing, that the public agency submit
line 10 the parties’ differences to a factfinding panel not later than 60 days
line 11 following the date that either party provided the other with a written
line 12 notice of a declaration of impasse. Within five days after receipt
line 13 of the written request, each party shall select a person to serve as
line 14 its member of the factfinding panel. The Public Employment
line 15 Relations Board shall, within five days after the selection of panel
line 16 members by the parties, select a chairperson of the factfinding
line 17 panel.
line 18 (b) Notwithstanding subdivision (a), if either party disputes that
line 19 a genuine impasse has been reached, the issue as to whether an
line 20 impasse exists may be submitted to the Public Employment
line 21 Relations Board for resolution. If the board determines that an
line 22 impasse existed as of the date of written notice of a declaration of
line 23 impasse and that the impasse has persisted through the date of the
line 24 employee organization’s request for a factfinding panel, it shall,
line 25 within five working days of the receipt of a request, notify the
line 26 parties of its determination.
line 27 (c) Within five days after receipt of the written request pursuant
line 28 to subdivision (a) or five days after receipt of the board’s
line 29 determination that a genuine impasse has been reached and persists
line 30 pursuant to subdivision (b), each party shall select a person to serve
line 31 as its member of the factfinding panel. The board shall, within five
line 32 days after the selection of panel members by the parties, select a
line 33 chairperson of the factfinding panel.
97
AB 616— 3 — Attachment B
line 1 (d) Within five days after the board selects a chairperson of the
line 2 factfinding panel, the parties may mutually agree upon a person
line 3 to serve as chairperson in lieu of the person selected by the board.
line 4 (e) The panel shall, within 10 days after its appointment, meet
line 5 with the parties or their representatives, either jointly or separately,
line 6 and may make inquiries and investigations, hold hearings, and
line 7 take any other steps it deems appropriate. For the purpose of the
line 8 hearings, investigations, and inquiries, the panel shall have the
line 9 power to issue subpoenas requiring the attendance and testimony
line 10 of witnesses and the production of evidence. Any state agency, as
line 11 defined in Section 11000, the California State University, or any
line 12 political subdivision of the state, including any board of education,
line 13 shall furnish the panel, upon its request, with all records, papers,
line 14 and information in its possession relating to any matter under
line 15 investigation by or in issue before the panel.
line 16 (f) In arriving at their findings and recommendations, the
line 17 factfinders shall consider, weigh, and be guided by all the following
line 18 criteria:
line 19 (1) State and federal laws that are applicable to the employer.
line 20 (2) Local rules, regulations, or ordinances.
line 21 (3) Stipulations of the parties.
line 22 (4) The interests and welfare of the public and the financial
line 23 ability of the public agency.
line 24 (5) Comparison of the wages, hours, and conditions of
line 25 employment of the employees involved in the factfinding
line 26 proceeding with the wages, hours, and conditions of employment
line 27 of other employees performing similar services in comparable
line 28 public agencies.
line 29 (6) The consumer price index for goods and services, commonly
line 30 known as the cost of living.
line 31 (7) The overall compensation presently received by the
line 32 employees, including direct wage compensation, vacations,
line 33 holidays, and other excused time, insurance and pensions, medical
line 34 and hospitalization benefits, the continuity and stability of
line 35 employment, and all other benefits received.
line 36 (8) Any other facts, not confined to those specified in paragraphs
line 37 (1) to (7), inclusive, that are normally or traditionally taken into
line 38 consideration in making the findings and recommendations.
line 39 (g) The procedural right of an employee organization to request
line 40 a factfinding panel cannot be waived.
97
— 4 —AB 616
Attachment B
line 1 (h) For purposes of this section, “impasse” means that the parties
line 2 to a dispute over a matter within the scope of representation have
line 3 reached a point in meeting and negotiating at which their difference
line 4 in position is so substantial or prolonged that future meetings would
line 5 be futile.
line 6 (i) Notwithstanding subdivisions (a) to (g), inclusive, the
line 7 employee relations commissions established by, and in effect for,
line 8 the County of Los Angeles and the City of Los Angeles pursuant
line 9 to Section 3507 shall have the authority to maintain and amend
line 10 existing rules and regulations providing for impasse resolution
line 11 procedures and to issue determinations and orders as the employee
line 12 relations commissions deem necessary, consistent with and
line 13 pursuant to the policies of this chapter.
line 14 SEC. 2. Section 3507 of the Government Code is amended to
line 15 read:
line 16 3507. (a) A public agency may adopt reasonable rules and
line 17 regulations after consultation in good faith with representatives of
line 18 a recognized employee organization or organizations for the
line 19 administration of employer-employee relations under this chapter.
line 20 The rules and regulations may include provisions for all of the
line 21 following:
line 22 (1) Verifying the official status of employee organization
line 23 officers and representatives.
line 24 (2) Additional procedures for the resolution of disputes involving
line 25 wages, hours and other terms and conditions of employment.
line 26 (3) Access of employee organization officers and representatives
line 27 to work locations.
line 28 (4) Use of official bulletin boards and other means of
line 29 communication by employee organizations.
line 30 (5) Furnishing nonconfidential information pertaining to
line 31 employment relations to employee organizations.
line 32 (6) Any other matters that are necessary to carry out the purposes
line 33 of this chapter.
line 34 (b) Exclusive recognition of employee organizations formally
line 35 recognized as majority representatives pursuant to a vote of the
line 36 employees may be revoked by a majority vote of the employees
line 37 only after a period of not less than 12 months following the date
line 38 of recognition.
line 39 (c) No public agency shall unreasonably withhold recognition
line 40 of employee organizations.
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AB 616— 5 — Attachment B
line 1 (d) Employees and employee organizations shall be able to
line 2 challenge a rule or regulation of a public agency as a violation of
line 3 this chapter. This subdivision shall not be construed to restrict or
line 4 expand the board’s jurisdiction or authority as set forth in
line 5 subdivisions (a) and (b) of Section 3509.
line 6 SEC. 3. Section 3507.1 of the Government Code is amended
line 7 to read:
line 8 3507.1. (a) Unit determinations and representation elections
line 9 shall be determined and processed by the board in accordance with
line 10 the rules and regulations it has adopted in accordance with this
line 11 chapter, subject to subdivision (c) of Section 3509. In a
line 12 representation election, a majority of the votes cast by the
line 13 employees in the appropriate bargaining unit shall be required.
line 14 (b) Notwithstanding subdivision (a) and rules adopted by the
line 15 board, a bargaining unit in effect as of the effective date of this
line 16 section shall continue in effect unless changed under the rules
line 17 adopted by the board pursuant to and consistent with the policies
line 18 of this chapter.
line 19 (c) (1) In determining an appropriate unit, the board shall take
line 20 into consideration all of the following criteria:
line 21 (A) The internal and occupational community of interest among
line 22 the employees, including, but not limited to, the extent to which
line 23 they perform functionally related services or work toward
line 24 established common goals.
line 25 (B) The history of employee representation in state government
line 26 and in similar employment.
line 27 (C) The extent to which the employees have common skills,
line 28 working conditions, job duties, or similar educational or training
line 29 requirements.
line 30 (D) The extent to which the employees have common
line 31 supervision.
line 32 (2) Notwithstanding subparagraph (1), or any other law, an
line 33 appropriate group of skilled crafts employees shall have the right
line 34 to be a separate unit of representation based upon occupation.
line 35 Skilled crafts employees shall include, but not necessarily be
line 36 limited to, those within employment categories such as carpenters,
line 37 plumbers, electricians, painters, and operating engineers.
line 38 (3) There shall be a presumption that professional employees
line 39 and nonprofessional employees should not be included in the same
line 40 unit. However, the presumption shall be rebuttable, depending
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Attachment B
line 1 upon what the evidence pertinent to the criteria set forth in this
line 2 subdivision establishes.
line 3 (d) A public agency shall grant exclusive or majority recognition
line 4 to an employee organization based on a signed petition,
line 5 authorization cards, or union membership cards showing that a
line 6 majority of the employees in an appropriate bargaining unit desire
line 7 the representation, unless another labor organization has previously
line 8 been lawfully recognized as exclusive or majority representative
line 9 of all or part of the same unit. Exclusive or majority representation
line 10 shall be determined by a neutral third party selected by the public
line 11 agency and the employee organization who shall review the signed
line 12 petition, authorization cards, or union membership cards to verify
line 13 the exclusive or majority status of the employee organization. In
line 14 the event the public agency and the employee organization cannot
line 15 agree on a neutral third party, the California State Mediation and
line 16 Conciliation Service shall be the neutral third party and shall verify
line 17 the exclusive or majority status of the employee organization. In
line 18 the event that the neutral third party determines, based on a signed
line 19 petition, authorization cards, or union membership cards, that a
line 20 second labor organization has the support of at least 30 percent of
line 21 the employees in the unit in which recognition is sought, the neutral
line 22 third party shall order an election to establish which labor
line 23 organization, if any, has majority status.
line 24 SEC. 4. Section 3507.3 of the Government Code is amended
line 25 to read:
line 26 3507.3. Professional employees shall not be denied the right
line 27 to be represented separately from nonprofessional employees by
line 28 a professional employee organization consisting of those
line 29 professional employees. In the event of a dispute on the
line 30 appropriateness of a unit of representation for professional
line 31 employees, upon request of any of the parties, the dispute shall be
line 32 submitted to the board for resolution, subject to subdivision (c) of
line 33 Section 3509.
line 34 “Professional employees,” for the purposes of this section, means
line 35 employees engaged in work requiring specialized knowledge and
line 36 skills attained through completion of a recognized course of
line 37 instruction, including, but not limited to, attorneys, physicians,
line 38 registered nurses, engineers, architects, teachers, and the various
line 39 types of physical, chemical, and biological scientists.
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AB 616— 7 — Attachment B
line 1 SEC. 5. Section 3507.5 of the Government Code is amended to
line 2 read:
line 3 3507.5. The board may adopt reasonable rules and regulations
line 4 providing for designation of the management and confidential
line 5 employees of the public agency and restricting those employees
line 6 from representing any employee organization that represents other
line 7 employees of the public agency on matters within the scope of
line 8 representation. Except as specifically provided otherwise in this
line 9 chapter, this section does not otherwise limit the right of employees
line 10 to be members of and to hold office in an employee organization.
line 11 SEC. 6. Section 3509 of the Government Code is amended to
line 12 read:
line 13 3509. (a) The powers and duties of the board described in
line 14 Section 3541.3 shall also apply, as appropriate, to this chapter and
line 15 shall include the authority as set forth in subdivisions (b) and (c).
line 16 Included among the appropriate powers of the board are the power
line 17 to determine appropriate units, to order elections, to conduct any
line 18 election the board orders, and to adopt rules to apply in these areas
line 19 in accordance with this chapter.
line 20 (b) A complaint alleging any violation of this chapter or of any
line 21 rules and regulations adopted by a public agency pursuant to
line 22 Section 3507 shall be processed as an unfair practice charge by
line 23 the board. The initial determination as to whether the charge of
line 24 unfair practice is justified and, if so, the appropriate remedy
line 25 necessary to effectuate the purposes of this chapter, shall be a
line 26 matter within the exclusive jurisdiction of the board, except that
line 27 in an action to recover damages due to an unlawful strike, the board
line 28 shall have no authority to award strike-preparation expenses as
line 29 damages, and shall have no authority to award damages for costs,
line 30 expenses, or revenue losses incurred during, or as a consequence
line 31 of, an unlawful strike. The board shall apply and interpret unfair
line 32 labor practices consistent with existing judicial interpretations of
line 33 this chapter.
line 34 (c) Notwithstanding subdivisions (a) and (b), the employee
line 35 relations commissions established by, and in effect for, the County
line 36 of Los Angeles and the City of Los Angeles pursuant to Section
line 37 3507 shall have the exclusive power and responsibility to take
line 38 actions on recognition, unit determinations, elections, and all unfair
line 39 practices, and to issue determinations and orders as the employee
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Attachment B
line 1 relations commissions deem necessary, consistent with and
line 2 pursuant to the policies of this chapter.
line 3 (d) Notwithstanding subdivisions (a) and (b), consistent with,
line 4 and pursuant to, Sections 3500 and 3505.4, superior courts shall
line 5 have exclusive jurisdiction over actions involving interest
line 6 arbitration, as governed by Title 9 (commencing with Section
line 7 1280) of Part 3 of the Code of Civil Procedure, when the action
line 8 involves an employee organization that represents firefighters, as
line 9 defined in Section 3251.
line 10 (e) This section shall not apply to employees designated as
line 11 management employees under Section 3507.5.
line 12 (f) The board shall not find it an unfair practice for an employee
line 13 organization to violate a rule or regulation adopted by a public
line 14 agency if that rule or regulation is itself in violation of this chapter.
line 15 This subdivision shall not be construed to restrict or expand the
line 16 board’s jurisdiction or authority as set forth in subdivisions (a) and
line 17 (b).
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AB 616— 9 — Attachment B
AMENDED IN SENATE APRIL 17, 2013
SENATE BILL No. 635
Introduced by Senator Leno
February 22, 2013
An act to amend Section 25631 of, and to add Section 25634 to, the
Business and Professions Code, relating to alcoholic beverages.
legislative counsel’s digest
SB 635, as amended, Leno. Alcoholic beverages: hours of sale.
The Alcoholic Beverage Control Act provides that any on- or off-sale
licensee, or agent or employee of the licensee, who sells, gives, or
delivers to any person any alcoholic beverage between the hours of 2
a.m. and 6 a.m. of the same day, and any person who knowingly
purchases any alcoholic beverages between those hours, is guilty of a
misdemeanor.
This bill would allow the local governing body of a county or a city
and county an on-sale licensee to apply to the Department of Alcoholic
Beverage Control to authorize, with or without conditions on the
licensees within those jurisdictions on-sale license, the selling, giving,
delivering, or purchasing of alcoholic beverages at an on-sale the
licensed premises between the hours of 2 a.m. and 4 a.m., upon
completion of specified requirements by the local jurisdiction in which
the licensee is located, as provided. This bill would require the local
governing body applicant to notify specified persons of the application
for additional hours and would provide a procedure for protest and
hearing regarding the application.
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.
98
Attachment C
This bill would provide that no reimbursement is required by this act
for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
The people of the State of California do enact as follows:
line 1 SECTION 1. The Legislature finds and declares all of the
line 2 following:
line 3 (a) It is the policy of the state to promote the responsible
line 4 consumption of alcoholic beverages through making multiple
line 5 planning options available to local communities and entertainment
line 6 areas of the state, including the option of extended services hours
line 7 up to a limit of 4 a.m. in communities and areas of the state where
line 8 those extended hours are found by the governing body of the
line 9 responsible community to be proper and appropriate.
line 10 (b) It is the policy of the state to encourage local communities
line 11 to implement local entertainment and licensed venue operation
line 12 policies designed for their specific communities and to support
line 13 those local initiatives by all appropriate means.
line 14 (c) It is the policy of the state that modified closing times can
line 15 improve the quality of life in local jurisdictions by mitigating public
line 16 safety and nuisance issues associated with the uniform 2 a.m.
line 17 closing hour.
line 18 (d) It is the policy of the state that local communities consider
line 19 different approaches to address issues of the 2 a.m. uniform closing
line 20 hour and encourage responsible consumption by, including, but
line 21 not limited to, extending service hours within a limited
line 22 geographical area, staggering service hours to alleviate stress on
line 23 public services, differentiating between the end of sale hour and
line 24 the end of consumption hour, and extending service hours only on
line 25 holidays or specific days of the week.
line 26 (e) At least 15 states across the country delegate complete or
line 27 partial authority for setting service hours to local jurisdictions or
line 28 allow local jurisdictions to extend the hours of service, subject to
line 29 state approval.
line 30 (f) The Legislature supports a well-planned and managed
line 31 nightlife that can have a profound positive impact on a local
line 32 economy, generating direct tax revenues, and growing public funds
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Attachment C
line 1 through increased property value, revitalized business districts,
line 2 and increased tourism.
line 3 (g) The Legislature supports the world-renowned California
line 4 licensed restaurant, venue, and entertainment industry, which
line 5 generates more than fifty billion dollars ($50,000,000,000) every
line 6 year in consumer spending in California communities on jobs,
line 7 goods and services, and related industries, and that attracts
line 8 world-class acts as well as tourists to visit and enjoy California.
line 9 (h) The Legislature has determined that it is in the best interest
line 10 of the State of California for extended hours of operation policies
line 11 to be administered by the Department of Alcoholic Beverage
line 12 Control in connection with applications for additional hour
line 13 privileges, with the fees for those applications to be determined
line 14 and assessed by the department at a rate that will fully reimburse
line 15 the department for administrative expenses.
line 16 SECTION 1.
line 17 SEC. 2. Section 25631 of the Business and Professions Code
line 18 is amended to read:
line 19 25631. (a) (1) Except as provided in subdivision (b), any on-
line 20 or off-sale licensee, or agent or employee of that licensee, who
line 21 sells, gives, or delivers to any persons any alcoholic beverage or
line 22 any person who knowingly purchases any alcoholic beverage
line 23 between the hours of 2 a.m. and 6 a.m. of the same day, is guilty
line 24 of a misdemeanor.
line 25 (2) For the purposes of this subdivision, on the day that a time
line 26 change occurs from Pacific standard time to Pacific daylight saving
line 27 time, or back again to Pacific standard time, “2 a.m.” means two
line 28 hours after midnight of the day preceding the day such change
line 29 occurs.
line 30 (b) (1) In a city, county, or city and county that has additional
line 31 serving hours pursuant to Section 25634, any on-sale licensee, or
line 32 agent or employee of the licensee, who sells, gives, or delivers to
line 33 any person any alcoholic beverage or any person who knowingly
line 34 purchases any alcoholic beverage between the hours of 4 a.m. and
line 35 6 a.m. of the same day, is guilty of a misdemeanor.
line 36 (2) For the purposes of this subdivision, on the day that a time
line 37 change occurs from Pacific standard time to Pacific daylight time,
line 38 or back again to Pacific standard time, “4 a.m.” means four hours
line 39 after 12 midnight of the day preceding the day the change occurs.
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SB 635— 3 — Attachment C
line 1 SEC. 2.
line 2 SEC. 3. Section 25634 is added to the Business and Professions
line 3 Code, to read:
line 4 25634. (a) Notwithstanding Section 25631, the department
line 5 may authorize, with or without conditions on the licensees, the
line 6 selling, giving, delivering, or purchasing of alcoholic beverages
line 7 at an individual on-sale licensed premises between the hours of 2
line 8 a.m. and 4 a.m. within a city, county, or a city and county if the
line 9 local governing body of that city, county, or city and county, or
line 10 its designated subordinate officer or body, applies to the department
line 11 and shows the departmentthe public convenience or necessity
line 12 served by the additional hours. does the following:
line 13 (1) Develops and approves a local plan that meets the following
line 14 requirements:
line 15 (A) Shows that the public convenience or necessity will be served
line 16 by the additional hours.
line 17 (B) Identifies the area that will be affected by the additional
line 18 hours and demonstrates how that area will benefit from the
line 19 additional hours.
line 20 (C) Shows that residents and businesses within the additional
line 21 hours service area support the additional hours.
line 22 (D) Includes an assessment by local law enforcement regarding
line 23 the potential impact of an additional hours service area and the
line 24 public safety plan, created by local law enforcement, for managing
line 25 those impacts that has been approved by the local governing body.
line 26 (E) Shows that transportation services are readily accessible
line 27 in the additional hours service area during the additional service
line 28 hours.
line 29 (F) Includes programs to increase public awareness of the
line 30 transportation services available in the additional hours service
line 31 area and the impacts of alcohol consumption.
line 32 (2) Resolves and certifies the local plan and submits the local
line 33 plan to the department.
line 34 (b) Upon receipt of a local plan developed pursuant to
line 35 paragraph (1) of subdivision (a), the department shall review the
line 36 local plan to ensure compliance with existing law and regulations
line 37 promulgated by the department. The department shall review the
line 38 local plan within ____ days of receipt and shall notify the local
line 39 governing body of its approval or denial of the plan. During the
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Attachment C
line 1 review process the department shall post the local plan on its
line 2 Internet Web site.
line 3 (c) An on-sale licensee shall not apply for additional hours
line 4 pursuant to this section until the department has approved the
line 5 local plan of the city, county, or city and county in which the
line 6 licensed premises is located.
line 7 (b)
line 8 (d) (1) Upon receipt of an application by an on-sale licensee
line 9 for additional hours pursuant to this section, the department shall
line 10 make a thorough investigation to determine whether the additional
line 11 hours would serve the public convenience or necessity sought by
line 12 the applicant would unreasonably interfere with the quiet
line 13 enjoyment of their property by the residents of the city, county, or
line 14 city and county in which the applicant’s licensed premises are
line 15 located.
line 16 (2) The local governing body of the county or city and county
line 17 applicant shall notify the law enforcement agencies of the county
line 18 or city and county city, county, or city and county, the residents
line 19 of the city, county, or city and county located within 500 feet of
line 20 the premises for which additional hours are sought, and any other
line 21 interested parties, as determined by the local governing body, of
line 22 the application by an on-sale licensee for additional hours pursuant
line 23 to this section within 30 consecutive days of the filing of the
line 24 application, in a manner determined by the local governing body.
line 25 (3) Protests may be filed at any office of the department within
line 26 30 days from the first date of notice of the filing of an application
line 27 by an on-sale licensee for additional hours. The time within which
line 28 a local law enforcement agency may file a protest shall be extended
line 29 by the period prescribed in Section 23987.
line 30 (4) The department may reject protests, except protests made
line 31 by a public agency or public official, if it determines the protests
line 32 are false, vexatious, frivolous, or without reasonable or probable
line 33 cause at any time before hearing thereon, notwithstanding Section
line 34 24016 or 24300. If, after investigation, the department recommends
line 35 that additional hours be authorized notwithstanding a protest by a
line 36 public agency or a public official, the department shall notify the
line 37 agency or official in writing of its determination and the reasons
line 38 therefor, in conjunction with the notice of hearing provided to the
line 39 protestant pursuant to Section 11509 of the Government Code. If
line 40 the department rejects a protest as provided in this section, a
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SB 635— 5 — Attachment C
line 1 protestant whose protest has been rejected may, within 10 days,
line 2 file an accusation with the department alleging the grounds of
line 3 protest as a cause for revocation of the additional hours and the
line 4 department shall hold a hearing as provided in Chapter 5
line 5 (commencing with Section 11500) of Part 1 of Division 3 of Title
line 6 2 of the Government Code.
line 7 (5) This section shall not be construed as prohibiting or
line 8 restricting any right that the individual making the protest might
line 9 have to a judicial proceeding.
line 10 (c)
line 11 (e) (1) If, after investigation, the department recommends that
line 12 additional hours be authorized, with or without conditions on the
line 13 licensees, applicant’s license, notwithstanding that one or more
line 14 protests have been accepted by the department, the department
line 15 shall notify the local governing body and all protesting parties
line 16 whose protests have been accepted in writing of its determination.
line 17 (2) Any person who has filed a verified protest in a timely
line 18 fashion pursuant to subdivision (b) (d) that has been accepted
line 19 pursuant to this article section may request that the department
line 20 conduct a hearing on the issue or issues raised in the protest. The
line 21 request shall be in writing and shall be filed with the department
line 22 within 15 business days of the date the department notifies the
line 23 protesting party of its determination as required under paragraph
line 24 (1).
line 25 (3) At any time prior to the issuance of the license, the
line 26 department may, in its discretion, accept a late request for a hearing
line 27 upon a showing of good cause. Any determination of the
line 28 department pursuant to this subdivision shall not be an issue at the
line 29 hearing nor grounds for appeal or review.
line 30 (4) If a request for a hearing is filed with the department
line 31 pursuant to paragraph (2), the department shall schedule a hearing
line 32 on the protest. The issues to be determined at the hearing shall be
line 33 limited to those issues raised in the protest or protests of the person
line 34 or persons requesting the hearing.
line 35 (5) Notwithstanding that a hearing is held pursuant to paragraph
line 36 (4), the protest or protests of any person or persons who did not
line 37 request a hearing as authorized in this section shall be deemed
line 38 withdrawn.
line 39 (6) If a request for a hearing is not filed with the department
line 40 pursuant to this section, any protest or protests shall be deemed
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Attachment C
line 1 withdrawn and the department may issue the license approve the
line 2 on-sale licensee’s application for additional hours without any
line 3 further proceeding.
line 4 (7) If the person filing the request for a hearing fails to appear
line 5 at the hearing, the protest shall be deemed withdrawn.
line 6 (d)
line 7 (f) The department shall notify the on-sale licensees within the
line 8 county or city and county applicant of the outcome of the
line 9 application for additional hours. Any conditions placed upon the
line 10 licensees license pursuant to this section shall be subject to Article
line 11 1.5 (commencing with Section 23800).
line 12 (e)
line 13 (g) The local governing body applicant shall, at the time of
line 14 application for additional hours pursuant to this section, accompany
line 15 the application with a fee of ____ dollars ($____). Fees collected
line 16 pursuant to this section shall be deposited in the Alcohol Beverage
line 17 Control Fund.
line 18 SEC. 3.
line 19 SEC. 4. No reimbursement is required by this act pursuant to
line 20 Section 6 of Article XIIIB of the California Constitution because
line 21 the only costs that may be incurred by a local agency or school
line 22 district will be incurred because this act creates a new crime or
line 23 infraction, eliminates a crime or infraction, or changes the penalty
line 24 for a crime or infraction, within the meaning of Section 17556 of
line 25 the Government Code, or changes the definition of a crime within
line 26 the meaning of Section 6 of Article XIIIB of the California
line 27 Constitution.
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SB 635— 7 — Attachment C