California Prorater Law
The Commissioner's investigatory powers under the Government Code:
Government Code section 11180 provides: "The head of each department may make investigations and prosecute actions concerning: (a) All matters relating to the business activities and subjects under the jurisdiction of the department." In order to conduct such an investigation, an agency may "issue subpoenas for the attendance of witnesses and the production of papers, books, accounts, documents, any writing as defined by Section 250 of the Evidence Code, tangible things, and testimony pertinent or material to any inquiry, investigation, hearing, proceeding, or action conducted in any part of the state." (Gov. Code, 11181, subd. (e).)
The Prorater Law:
Section 12002.1 defines a "prorater" under the law. (See fn. 3, ante.) Section 12100 provides a list of the persons and types of transactions that are exempt from the scope of the law. For example, services offered by persons licensed to practice law ( 12100, subd. (c)), and services provided by persons licensed as certified public accountants ( 12100, subd. (i)) may be exempt. Particular types of transactions may also be subject to an exemption. (See, e.g., 12100, subds. (d), (h) providing the Prorater Law does not apply to, "any transaction in which money or other property is paid to a 'joint control agent' for disbursal or use in payment of the cost of labor, materials, services, permits, fees, or other items of expense incurred in construction of improvements upon real property," or "a common law or statutory assignment for the benefit of creditors or the operation or liquidation of property or a business enterprise under supervision of a creditor's committee".) Section 12101.5 provides, "In any proceeding under this law, the burden of proving an exemption or an exception from a definition is upon the person claiming it."
Section 12200 requires persons who propose to engage in prorating to obtain a license from the Commissioner: "No person shall engage in the business, for compensation, of selling checks, drafts, money orders, or other commercial paper serving the same purpose, or of receiving money as agent of an obligor for the purpose of paying bills, invoices, or accounts of such obligor, or acting as a prorater, nor shall any person, without direct compensation and not as an authorized agent for a utility company, accept money for the purpose of forwarding it to others in payment of utility bills, without first obtaining a license from the commissioner."
Sections 12300 through 12331 contain numerous provisions that regulate the practice of prorating. (See, e.g., 12314, 12315 prohibiting proraters from charging various fees, 12315.1 requiring that creditors be given notice of the services being provided by a prorater.)
The Prorater Law specifically authorizes the Commissioner to conduct investigations and issue subpoenas. Section 12305 provides: "For the purpose of discovering violations of this division the commissioner may at any time investigate the business and examine the books, accounts, records, and files used therein, of any licensee, of any agent, and of any person who the commissioner has reason to believe is engaging in the business defined in this division." Section 12106, subdivision (b) provides: "For the purpose of any investigation or proceeding under this section, the commissioner or any officer designated by the commissioner may administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence, and require the production of any books, papers, correspondence, memoranda, agreements, or other documents or records the commissioner deems relevant or material to the inquiry."
Section 12106 also outlines in part the Commissioner's investigatory powers. That section provides in relevant part:
"(a) The commissioner may do the following, at his or her discretion:
"(1) Make public or private investigations within or outside of this state necessary to determine whether any person has violated, or is about to violate, any provision of this division or any rule or order promulgated pursuant to this division, or to aid in the enforcement of the law."