Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a) A
program administrator shall not enroll a PACE solicitor if as a result of the
review of readily and publicly available information regarding the PACE
solicitor conducted as part of the program administrator's enrollment process,
the program administrator finds a clear pattern of consumer complaints about
the PACE solicitor regarding dishonesty, misrepresentations, or omissions, a
high likelihood that the PACE solicitor will solicit assessment contracts in a
manner that does not comply with applicable law. or a clear pattern of the PACE
solicitor failing to timely receive and respond to property owner complaints
regarding the PACE solicitor.
(b) A
clear pattern may be evidenced by recurring complaints regarding the PACE
solicitor that allege deception, misrepresentation, or omission, including
where the complaints contain information that suggests a pattern of dishonest
business practices.
(1) In considering whether
a clear pattern of a dishonest business practices exists, the program
administrator may consider the volume of complaints relative to the size of the
PACE solicitor, the egregiousness of the alleged conduct, the PACE solicitor's
response to the allegations, and the PACE solicitor's subsequent resolution of
the complaints.
(2) A program
administrator shall keep in its books and records documentation that it
reviewed readily and publicly available information of consumer complaints
about a PACE solicitor regarding dishonesty, misrepresentations, or omissions,
and its findings. If the program administrator finds a clear pattern of
consumer complaints about the PACE solicitor regarding dishonesty,
misrepresentations, or omissions, the program administrator shall not enroll
the PACE solicitor. If the program identifies applicable complaints but enrolls
the PACE solicitor, the program administrator shall document the rationale for
the determination that the consumer complaints regarding dishonesty,
misrepresentations, or omissions do not constitute a clear pattern of a
dishonest business practice.
(3)
For purposes of establishing a clear pattern of consumer complaints about a
PACE solicitor, complaints against a PACE solicitor agent employed or retained
by a PACE solicitor shall constitute complaints about the PACE solicitor, while
the PACE solicitor agent is engaged by the PACE solicitor during the time of
the complaints and the subject of the complaints involves acts by the PACE
solicitor agent while soliciting property owners on behalf of the PACE
solicitor.
(c)
(1) A high likelihood that a PACE solicitor
will solicit assessment contracts in a manner that does not comply with
applicable law may be evidenced by one or more of the following, with the
severity of the actions determined by the standards of the program
administrator:
(A) The readily and publicly
available information about the PACE solicitor, such as court records and
business or consumer reviews, demonstrate a pattern of disregard for the laws
applicable to the PACE solicitor, including compliance under the Contractors
State License Law, as applicable.
(B) The information regarding the PACE
solicitor obtained during the enrollment process indicates the PACE solicitor
has not complied with the requirements for a home improvement contractor under
article 10 of chapter 9, division 3 of the Business and Professions Code
regarding home improvement contractors, if applicable to the PACE solicitor,
such as notifying the CSLB of the employment of a registered home improvement
salesperson or otherwise failing to comply with the requirements, and the PACE
solicitor is unwilling or unable to bring its operations into compliance for
enrollment as a PACE solicitor.
(C)
The PACE solicitor, or an individual with control over the operations of the
PACE solicitor, has, within the last 7 years, been convicted of or pleaded nolo
contendere to a crime, or committed an act and been held liable in a civil
action, involving dishonesty, fraud, or deceit. For purposes of this
subparagraph, a program administrator may rely on the background check
conducted by the Contractors State License Board.
(D) The PACE solicitor has at any time had
its license revoked by the Contractors State License Board or has a complaint
on file with the registrar that, at the time of the review conducted as part of
the program administrator's enrollment process, is available to the public on
the website of the Contractors State License Board pursuant to Business and
Professions Code section
7124.6.
(E) The PACE solicitor has a disciplinary
action against it by another regulatory agency for failing to comply with
applicable law, including an action for fraud, misrepresentation, or
deceit.
(F) The PACE solicitor has
engaged in elder financial abuse.
(2) A program administrator shall keep in its
books and records documentation demonstrating that the program administrator
has conducted a review of readily and publicly available information for the
purpose of identifying whether there is a high likelihood that the PACE
solicitor will solicit assessment contracts in a manner that does not comply
with applicable law, and its findings. Where the review identifies evidence of
past noncompliance with applicable law as set forth in paragraph (1), the
program administrator either shall not enroll the PACE solicitor or document
the reason it has determined the past noncompliance does not establish a high
likelihood that a PACE solicitor will solicit assessment contracts in a manner
that does not comply with applicable law.
(3) For purposes of establishing a high
likelihood that the PACE solicitor will solicit assessment contracts in a
manner that does not comply with applicable law, the acts of a PACE solicitor
agent employed or retained by a PACE solicitor shall be considered if the PACE
solicitor knows or should have known of the acts.
(d)
(1) A
clear pattern of a PACE solicitor failing to timely receive and respond to
property owner complaints regarding the PACE solicitor may be established by
actions by a PACE solicitor such as failing to record multiple complaints;
failing to respond to multiple complainants over a sustained period of time,
notwithstanding repeated contact by the complainants; or unreasonably delaying
the response to, or investigation of, multiple complaints; with the severity of
the actions or inaction being determined by the standards of the program
administrator.
(2) A program
administrator shall keep in its books and records documentation demonstrating
that the program administrator has conducted a review of readily and publicly
available information for the purpose of identifying whether a PACE solicitor
has clear pattern of failing to timely receive and respond to property owner
complaints regarding the PACE solicitor, and its findings. Where the review
identifies that the PACE solicitor has failed to timely receive and respond to
property owner complaints, the program administrator either shall not enroll
the PACE solicitor or shall document the reason it has determined the past
failures do not constitute a clear pattern of a PACE solicitor failing to
timely receive and respond to property owner complaints regarding the PACE
solicitor.
(3) For purposes of
establishing a clear pattern of a PACE solicitor failing to timely receive and
respond to property owner complaints regarding the PACE solicitor, the acts of
a PACE solicitor agent employed or retained by a PACE solicitor shall be
considered if the PACE solicitor agent knows or should have known of the
acts.
(4) For purposes of this
subdivision, a program administrator may presume that complaint responses are
timely if the PACE solicitor ordinarily acknowledges complaints within three
business days and takes actions to reach a resolution of complaints within
thirty days, but longer time periods may be appropriate based on the
characteristics of the business and the details of the complaints. For purposes
of identifying whether longer time periods are timely, a program administrator
may consider factors such as, but not limited to, the size and resources of the
PACE solicitor, the length of time in business, the product or service of the
PACE solicitor, the nature of the complaints received, and whether the PACE
solicitor's actions demonstrate an intent to address the complainant's
concerns, resolve the complaint, and identify the need for changes to improve
business practices.
1. New
section filed 8-5-2021; operative 10-1-2021 (Register 2021, No. 32).
Transmission deadline specified in Government Code section
11346.4(b)
extended 60 calendar days pursuant to Executive Order N-40-20 and an additional
60 calendar days pursuant to Executive Order N-71-20. Filing deadline specified
in Government Code section
11349.3(a)
extended 60 calendar days pursuant to Executive Order N-40-20 and an additional
60 calendar days pursuant to Executive Order
N-71-20.
Note: Authority cited: Section
22150,
Financial Code. Reference: Section
22680,
Financial Code.