Business and Professions Code 7028.1 BP – Asbestos/Underground Tank Work without Certification

Business and Professions Code 7028.1 makes it a crime to perform asbestos-related work without certification, or to install or remove an underground storage tank without certification.

The full language of the code section reads as follows:

7028.1. It is a misdemeanor for any contractor, whether licensed or unlicensed, to perform or engage in asbestos-related work, as defined in Section 6501.8 of the Labor Code, without certification pursuant to Section 7058.5 of this code, or to perform or engage in a removal or remedial action, as defined in subdivision (d) of Section 7058.7, or, unless otherwise exempted by this chapter, to bid for the installation or removal of, or to install or remove, an underground storage tank, without certification pursuant to Section 7058.7. A contractor in violation of this section is subject to one of the following penalties:

(a) Conviction of a first offense is punishable by a fine of not less than one thousand dollars ($1,000) or more than three thousand dollars ($3,000), and by possible revocation or suspension of any contractor’s license.

(b) Conviction of a subsequent offense requires a fine of not less than three thousand dollars ($3,000) or more than five thousand dollars ($5,000), or imprisonment in the county jail not exceeding one year, or both the fine and imprisonment, and a mandatory action to suspend or revoke any contractor’s license.

Examples

• Carlos enters into an agreement, worth $4,000, to perform certain asbestos-related work, despite the fact that he has no certification.
• John operates Johnny Builders, LLC and enters into several contracts for the removal of underground storage tanks, even though he is not certified to do so.
• Without certification, Beth creates Pools-R-Us and removes an underground storage tank so she can create room for an in-ground pool

Defenses

Luckily, there are several legal defenses that a person can raise if accused of a crime under this code section. These include showing that an accused party was:

• not a “contractor,”
• arrested after a coerced confession, and/or
• falsely accused.

Penalties

A violation is charged as a misdemeanor, as opposed to a California felony or an infraction.

A first-time violation results in a fine of between $1,000 and $3,000.

A second or subsequent violation results in:

• a fine of between $3,000 and $5,000, and/or
• imprisonment in the county jail for up to one year.

Please note that in lieu of jail time, a judge may award a defendant with misdemeanor (or summary) probation.

Our California criminal defense attorneys will explain the following in this article:

• 1.What does Business & Professions Code 7028.1 prohibit?
• 2. Are there legal defenses?
  • 2.1. Not a Contractor
  • 2.2. Coerced confession
  • 2.3. Falsely accused
• 3. Penalties, Punishment, and Sentencing
• 4. Related Offenses
  • 4.1. Contracting without a license – BPC 7028
  • 4.2. Fraudulent use of a contractor’s license number – BPC 7027.3
  • 4.3. False Advertising – BPC 17500

1. What does Business & Professions Code 7028.1 prohibit?

California Business and Professions Code 7028.1 BPC is the California statute that makes it a crime for a contractor to either:

1. perform asbestos-related work without certification, or
2. install or remove an underground storage tank without certification.¹

2. Are there legal defenses?

A person accused of violating this statute can raise a legal defense. A good defense can work to reduce or even dismiss a charge.

Three common defenses to alleged violations of this statute are:

1. not a contractor,
2. coerced confession, and/or
3. falsely accused.

2.1. Not a Contractor

Please note that Business and Professions Code 7028.1 only applies to “contractors.” Thus, a solid legal defense is for a party to show that he was not technically a “contractor” while performing any work in question.

2.2. Coerced confession

California law states that police may not use overbearing measures to coerce a confession.

If a party can show that the police coerced him into a confession, then:

1. the judge may exclude the confession from evidence, or
2. the case could get dropped altogether if the party got pressured into confessing to a crime he didn’t commit.

2.3. Falsely accused

Unfortunately, it is not at all uncommon for people to get prosecuted based on false allegations. People get falsely accused out of

• jealousy,
• revenge, and
• anger.

Thus, it is a valid defense for a defendant to say that a party falsely accused him of violating the code.

3. Penalties, Punishment, and Sentencing

A violation of BPC 7028.1 is charged as a misdemeanor.²

A first-time violation results in a fine of between $1,000 and $3,000.³

A second or subsequent violation results in:

• a fine of between $3,000 and $5,000, and/or
• imprisonment in the county jail for up to one year.⁴

Please note that in lieu of jail time, a judge may award a defendant with misdemeanor (or summary) probation.

4. Related Offenses

There are three crimes related to engaging in asbestos/underground tank work without certification. These are:

1. Contracting without a license – BPC 7028,
2. Fraudulent use of a Contractor’s license number – BPC 7027.3, and
3. False advertising – BPC 17500.

4.1. Contracting without a license – BPC 7028

Business and Professions Code 7028 BPC is the California statute regarding contractors working without a license.

BPC 7028 makes it a crime for a person to do either of the following:

1. serve as a contractor without a license from the Contractors State License Board; and,
2. operate as a contractor under a license that is suspended for failure to pay a civil penalty, or, to comply with an order of correction.⁵

A violation of BPC 7028 is a misdemeanor offense.⁶

A first conviction for the crime is punishable by:

• imprisonment in the county jail for up to six months; and/or,
• a fine of up to $5,000.⁷

4.2. Fraudulent use of a Contractor’s license number – BPC 7027.3

Business and Professions Code 7027.3 is the California law regarding the fraudulent use of a contractor’s license number.

BPC 7027.3 makes it a crime when a person:

1. willfully and intentionally uses,
2. with the intent to defraud,
3. a contractor’s license number.⁸

A violation of BPC 7027.3 is a wobbler offense, meaning it can be charged as either a misdemeanor or a felony.

If charged as a misdemeanor, the crime is punishable by a jail term of up to one year.⁹

If charged as a felony, the offense is punishable by a prison term of up to three years.¹⁰

4.3. False Advertising – BP 17500

Business and Professions Code 17500 makes it a crime for a person or company to engage in false advertising.

Under BP 17500, false or deceptive advertising is when a person or company makes false or misleading statements to consumers about the nature of a product or service.¹¹

A person or company that violates BP 17500 is guilty of a misdemeanor. The offense is punishable by:

• imprisonment in the county jail for up to six months; and/or,
• a fine not to exceed $2,500.¹²

A person or company guilty of false advertisement may also face a civil lawsuit and/or an injunction.

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