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SB-579 Water quality control plans: alternative measures.(2017-2018)

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Date Published: 08/25/2018 04:00 AM
SB579:v93#DOCUMENT

Amended  IN  Assembly  August 24, 2018
Amended  IN  Assembly  August 22, 2017
Amended  IN  Assembly  July 10, 2017
Amended  IN  Senate  May 15, 2017
Amended  IN  Senate  May 01, 2017
Amended  IN  Senate  March 29, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 579


Introduced by Senator Galgiani
(Coauthors: Senators Anderson, Bates, Hertzberg, Pan, and Wilk)(Coauthor: Assembly Member Baker)

February 17, 2017


An act to amend Section 1739.7 of the Civil Sections 13170 and 13241 of the Water Code, relating to collectibles, and declaring the urgency thereof, to take effect immediately. water quality.


LEGISLATIVE COUNSEL'S DIGEST


SB 579, as amended, Galgiani. Collectibles: sale of autographed collectibles. Water quality control plans: alternative measures.
Existing law establishes the State Water Resources Control Board and the 9 California regional water quality control boards as the principal state agencies with authority over matters relating to water quality. Existing law requires the state board to formulate and adopt state policy for water quality control. Existing law requires each regional board to formulate and adopt water quality control plans for all areas within the region and prohibits a water quality control plan, or a revision of the plan, adopted by a regional board from becoming effective unless it is approved by the state board. Existing law authorizes the state board to adopt certain water quality control plans.
This bill, if a water quality control plan or any amendment to a water quality control plan is adopted that has an impact on stream flow, would require the state board or a regional board to analyze the contribution that nonflow measures and adaptive management can provide to the achievement of relevant water quality objectives and ensure those contributions are accounted for in the water quality control plan or amendment to the water quality control plan.

Existing law regulates the sale or offer to sell by a dealer to a consumer of a collectible in or from this state, as specified. Existing law defines the term “collectible” to mean any autographed item, as specified, sold or offered for sale in or from this state by a dealer, to a consumer for $5 or more.

This bill would instead define “autographed collectible” to mean autographed sports or entertainment media items, as specified, sold or offered for sale in or from this state by a dealer to a consumer for $50 or more, bearing the signature of a person signed by that individual’s own hand. The bill would exclude, among other items, works of fine art, signed books, furniture, and certain decorative objects, from the definition of an autographed collectible.

Existing law defines a “dealer,” among other things, as a person who is principally in the business of selling or offering for sale collectibles in or from this state or a person who by his or her occupation holds himself or herself out as having knowledge or skill peculiar to collectibles. Existing law includes a person engaged in a cable television business for the sale of collectibles in the definition of dealer. Existing law excludes from the definition of dealer, among other persons, the personality who signs the memorabilia. Existing law also excludes from the definition of dealer a provider or operator of an online marketplace, provided that the marketplace provider or operator is not principally in the business of selling, or offering for sale, collectibles, in or from the state, exclusively or nonexclusively, or does not hold itself out as having knowledge or skill peculiar to collectibles.

The bill would amend the definition of a dealer to be, among other things, a person who is in the business of selling autographed collectibles and sells 3 or more autographed collectibles in a period of 12 months. The bill would include an auctioneer, an auction company, and a person engaged in any television business for the sale of autographed collectibles in the definition of dealer. The bill would amend the terms under which a provider or operator of an online marketplace is excluded from the definition of dealer to exclude a provider or operator through which prospective buyers connect with the sellers of autographed collectibles who are in actual physical possession of the merchandise being offered for sale and does not hold itself out as having knowledge or skill peculiar to collectibles.

Existing law requires a dealer, as defined, to provide a certificate of authenticity for each collectible to, among other things, indicate whether the item was obtained or purchased from a third party. If the item was obtained or purchased from a third party, existing law requires the certificate of authenticity to indicate the name and address of this third party.

This bill instead would require a dealer to provide an express warranty, as specified. The bill also would require a dealer, for items obtained on and after January 1, 2018, separate from the express warranty, to maintain a record stating whether the autographed collectible was purchased by the dealer from a third party, for a period of 7 years, as well as the name and address of that third party. The bill would permit discovery of this information in a civil dispute, as specified.

The bill would require a consumer to have the right to cancel the contract for the purchase of an autographed collectible represented by a dealer as authentic until at least midnight of the 3rd day after the day on which the consumer purchased the autographed collectible, except when the autographed collectible is purchased at a public auction, as specified. The bill would specify procedures and conditions of the cancellation. The bill would require the 3-day right of return, except as specified, to be included in the sign and the onscreen message a dealer is required to display.

Existing law prohibits a dealer from displaying or offering for sale a collectible in this state at any trade show or similar event primarily featuring sales of collectibles or other memorabilia that offers onsite admission ticket sales, except as provided. Existing law requires a promoter who arranges or organizes a trade show featuring collectibles and autograph signings to provide a specified notification to any dealer who agrees to purchase or rent space in the trade show.

This bill would repeal those provisions.

Existing law provides that a consumer who is injured by a failure of the dealer to provide a certificate of authenticity is entitled to recover from that dealer, among other things, 10 times his or her actual damages.

This bill instead would provide for specified civil penalties in a civil action against the dealer for failure to comply with the provisions regarding express warranties. The bill would also provide for civil penalties for knowingly providing a false warranty, as well as attorney’s fees and other costs to be paid to the consumer.

This bill would declare that it is to take effect immediately as an urgency statute.

Vote: TWO_THIRDSMAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 13170 of the Water Code is amended to read:

13170.
 (a) The state board may adopt water quality control plans in accordance with the provisions of Sections 13240 to 13244, inclusive, insofar as they are applicable, for waters for which water quality standards are required by the Federal Water Pollution Control Act and acts amendatory thereof or supplementary thereto. Such These plans, when adopted, supersede any regional water quality control plans for the same waters to the extent of any conflict. If a water quality control plan or any amendment to a water quality control plan is adopted that has an impact on stream flow, the state board shall analyze the contributions that nonflow measures and adaptive management can provide to the achievement of relevant water quality objectives and ensure those contributions are accounted for in the water quality control plan or amendment to the water quality control plan.
(b) The amendments to this section made by the act adding this subdivision shall not be construed as an additional grant of authority to the state board.

SEC. 2.

 Section 13241 of the Water Code is amended to read:

13241.
 (a) Each regional board shall establish such water quality objectives in water quality control plans as in its judgment will ensure the reasonable protection of beneficial uses and the prevention of nuisance; however, it is recognized that it may be possible for the quality of water to be changed to some degree without unreasonably affecting beneficial uses. Factors to be considered by a regional board in establishing water quality objectives shall include, but not necessarily be limited to, all of the following:

(a)

(1) Past, present, and probable future beneficial uses of water.

(b)

(2) Environmental characteristics of the hydrographic unit under consideration, including the quality of water available thereto.

(c)

(3) Water quality conditions that could reasonably be achieved through the coordinated control of all factors which affect water quality in the area.

(d)

(4) Economic considerations.

(e)

(5) The need for developing housing within the region.

(f)

(6) The need to develop and use recycled water.
(b) If a water quality control plan or any amendment to a water quality control plan is adopted that has an impact on stream flow, a regional board shall analyze the contributions that nonflow measures and adaptive management can provide to the achievement of relevant water quality objectives and ensure those contributions are accounted for in the water quality control plan or amendment to the water quality control plan.
(c) The amendments to this section made by the act adding this subdivision shall not be construed as an additional grant of authority to a regional board.

SECTION 1.Section 1739.7 of the Civil Code is amended to read:
1739.7.

(a)As used in this section:

(1)“Autographed collectible” means an item purporting to bear the signature of a particular person in that person’s own hand that is sold or offered for sale for fifty dollars ($50) or more, excluding sales tax, shipping fees, other surcharges, and buyer’s premiums, when the dealer offers the signed item at a higher price than the dealer would charge for a comparable item without the signature.

(2)For purposes of this section, an autographed collectible shall be limited to the following items:

(A)Sports items, including, but not limited to, a photograph, ticket, plaque, sports program, trading card, item of sports equipment or clothing, or other sports memorabilia.

(B)Entertainment media items related to music, television, and films, including, but not limited to, a picture, photograph, record, compact disc, digital video disc, ticket, program, playbill, clothing, hat, poster, toy, plaque, trading card, musical instrument, or other entertainment memorabilia.

(3)For purposes of this section, and notwithstanding paragraph (2), an autographed collectible does not include the following items:

(A)Works of fine art, as defined by paragraph (1) of subdivision (d) of Section 982 that are originals or numbered multiples signed by the artist or maker.

(B)Furniture and decorative objects, including works of pottery, jewelry, and design that are signed by the artist or maker.

(C)Signed books, manuscripts, and correspondence, as well as ephemera not related to sports or entertainment media.

(D)Signed numismatic items and bullion.

(4)“Consumer” means any natural person who purchases an autographed collectible from a dealer for personal, family, or household purposes. “Consumer” also includes a prospective purchaser meeting these criteria.

(5)(A)“Dealer” means a person who is in the business of selling or offering for sale autographed collectibles exclusively or nonexclusively, and sells three or more autographed collectibles in a period of 12 months. “Dealer” includes an auctioneer or auction company who sells autographed collectibles at a public auction conducted in the state, whether by broadcasting the auction from the state, or by being physically present in the state. “Dealer” includes a person engaged in a mail-order, telephone-order, online, or television business for the sale of autographed collectibles.

(B)“Dealer” does not include any of the following:

(i)A pawnbroker licensed pursuant to Chapter 3 (commencing with Section 21300) of Division 8 of the Financial Code, if the autographed collectible was acquired through a foreclosure on a collateral loan, provided that the pawnbroker does not hold himself or herself out as having knowledge or skill peculiar to autographed collectibles.

(ii)The personality who signs the autographed collectible.

(iii)An online technology provider or marketplace that meets all of the following criteria:

(I)Connects a prospective buyer to a seller of an autographed collectible.

(II)Does not have actual physical possession of the autographed collectible being offered for sale.

(III)Does not hold itself out as having knowledge or skill peculiar to autographed collectibles.

(6)“Limited edition” means any autographed collectible that meets all of the following requirements:

(A)A company has produced a specific quantity of an autographed collectible and placed it on the open market.

(B)The producer of the autographed collectible has posted a notice, at its primary place of business, that it will provide any consumer, upon request, with a copy of a notice that states the exact number of an autographed collectible produced in that series of limited editions.

(C)The producer makes available, upon request of a consumer, evidence that the electronic encoding, films, molds, or plates used to create the autographed collectible have been destroyed after the specified number of autographed collectibles have been produced.

(D)The sequence number of the autographed collectible and the number of the total quantity produced in the limited edition are printed on the collectible.

(7)“Person” means any natural person, partnership, corporation, limited liability company, company, trust, association, or other entity, however organized.

(8)“Representation” means any oral or written representation, including, but not limited to, a representation in an advertisement, brochure, catalog, flyer, invoice, sign, radio or television broadcast, online communication, Internet Web page, email, or other commercial or promotional material.

(9)“Auctioneer” means an auctioneer as defined in subdivision (d) of Section 1812.601, including any person who is a consignor, representative, or agent of an auctioneer.

(10)“Auction company” means an auction company as defined in subdivision (c) of Section 1812.601.

(b)A dealer who, in selling or offering to sell to a consumer an autographed collectible, makes a representation to a consumer that the signature on the autographed collectible is authentic, shall furnish an express warranty to the consumer at the time of sale. The certificate of authenticity shall be in writing, shall be signed by the dealer or his or her authorized agent, and shall specify the date of sale. The express warranty may be included in the bill of sale or invoice. The dealer shall retain a copy of the express warranty for not less than seven years. The express warranty shall meet all of the following criteria:

(1)Is written in at least 10-point type.

(2)Is signed by the dealer or his or her authorized agent, and contains the dealer’s true legal name, business street address, and the last four digits of the dealer’s seller’s permit account number, if any, from the California Department of Tax and Fee Administration.

(3)Specifies the date of sale and the purchase price.

(4)Describes the autographed collectible and specifies the name of the person who autographed it.

(5)Expressly warrants the autographed collectible as authentic, and that the warranty is conclusively presumed to be part of the bargain. The warranty shall not be negated or limited by reason of the lack of words such as “warranty” or “guarantee” or because the dealer does not have a specific intent or authorization to make the warranty or because any statement relevant to the autographed collectible is or purports to be, or is capable of being, merely the dealer’s opinion.

(6)If the autographed collectible is offered as one of a limited edition, specifies (A) how the autographed collectible and edition are numbered and (B) the size of the edition and the size of any prior or anticipated future edition, if the dealer has knowledge of that information. If the size of the edition and the size of any prior or anticipated future edition is not known, the warranty shall contain an explicit statement to that effect.

(7)Indicates whether the dealer is surety bonded or is otherwise insured to protect the consumer against errors and omissions of the dealer and, if bonded or insured, provides proof thereof.

(8)Indicates whether the autographed collectible has a certificate of authenticity from a third party, or if it was autographed in the presence of the dealer, and any proof thereof.

(9)Indicates an identifying serial number that corresponds to an identifying number printed on the autographed collectible item, if any.

(c)In addition to retaining the express warranty described in subdivision (b), the dealer shall also retain, on and after January 1, 2018, a record stating whether the autographed collectible was purchased by the dealer from a third party and the name and address of that third party. This third-party information may be discoverable during a civil dispute. However, nothing in this subdivision prohibits a party from objecting to a discovery request on the grounds of a right to privacy.

(d)(1)In addition to any other right or remedy provided under existing law, including, but not limited to, any rights and remedies provided under contract law, a consumer shall have the right to cancel the contract for the purchase of an autographed collectible represented by a dealer as authentic until midnight of the third day after the day on which the consumer purchased the autographed collectible. Notice of the cancellation may be provided in person or in a written or electronic form, and is deemed effective once communicated or sent. The autographed collectible shall be returned to the dealer within 30 days of the sale in the same condition in which it was sold, and the cost of the return shall be borne by the consumer. The price paid by the consumer shall be refunded within 10 days of receipt of the returned autographed collectible. Nothing in this section prevents the parties from agreeing to cancel a contract after midnight of the third day after the day on which the consumer purchases the autographed collectible.

(2)This subdivision does not apply to an autographed collectible sold by an auctioneer or auction company.

(e)(1)No dealer shall display or offer for sale an autographed collectible in this state unless, at the location where the autographed collectible is offered for sale and in close proximity to the autographed collectible merchandise, there is a conspicuous sign that reads as follows:
“SALE OF AUTOGRAPHED COLLECTIBLES: AS REQUIRED BY LAW, A DEALER WHO SELLS TO A CONSUMER ANY AUTOGRAPHED COLLECTIBLE DESCRIBED AS BEING AUTOGRAPHED MUST PROVIDE AN EXPRESS WARRANTY AT THE TIME OF SALE AND A THREE-DAY RIGHT OF RETURN. THIS DEALER MAY BE SURETY BONDED OR OTHERWISE INSURED TO ENSURE THE AUTHENTICITY OF ANY AUTOGRAPHED COLLECTIBLE SOLD BY THIS DEALER.”

(2)This subdivision does not apply to a collectible sold by an auctioneer or auction company at a public auction.

(f)Any dealer engaged in a mail-order, telephone-order, or online business for the sale of autographed collectibles:

(1)Shall include the disclosure specified in subdivision (e), in type of conspicuous size, in any written advertisement relating to an autographed collectible.

(2)Shall include in each television or online advertisement relating to an autographed collectible the following written onscreen message, which shall be prominently displayed, easily readable, and clearly visible for no less than five seconds, and which shall be repeated for five seconds once during each four-minute segment of the advertisement following the initial four minutes:
“A written express warranty is provided with each autographed collectible, as required by law. This dealer may be surety bonded or otherwise insured to ensure the authenticity of any autographed collectible sold by this dealer.”

(3)Shall include as part of the oral message of each radio advertisement for an autographed collectible the disclosure specified in subdivision (e).

(g)(1)A dealer who fails to provide an express warranty or provides an express warranty that does not comply with all of the requirements of subdivision (b), shall be subject to a civil penalty of up to one thousand dollars ($1,000), payable to the consumer in a civil action brought against the dealer.

(2)A dealer who knowingly provides a false certificate of responsibility shall be subject to a civil penalty of up to five thousand dollars ($5,000), payable to the consumer, plus court costs, reasonable attorney’s fees, interest, and expert witness fees, if applicable, incurred by the consumer in a civil action brought against the dealer.

(3)The remedy specified in this section is in addition to, and not in lieu of, any other remedy that may be provided by law.

(h)A dealer may be surety bonded or otherwise insured for purposes of indemnification against errors and omissions arising from the authentication, sale, or resale of autographed collectibles.

SEC. 2.

This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:

In order to alleviate some of the burdens on, and to protect the privacy of, bookstore owners, comic book retailers, consignors, art galleries, antique dealers, and auction houses as soon as possible, it is necessary that this act take effect immediately.