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AB-1936 Price gouging: public safety power shutoffs.(2019-2020)

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Date Published: 01/16/2020 09:00 PM
AB1936:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 1936


Introduced by Assembly Member Rodriguez

January 16, 2020


An act to amend Section 396 of the Penal Code, relating to crimes.


LEGISLATIVE COUNSEL'S DIGEST


AB 1936, as introduced, Rodriguez. Price gouging: public safety power shutoffs.
Under existing law, upon the proclamation of a state of emergency, as defined, by the President of the United States or the Governor, or upon the declaration of a local emergency, as defined, by the executive officer of any county, city, or city and county, and for a specified period following the proclamation or declaration of emergency, it is a misdemeanor with specified penalties for a person, contractor, business, or other entity to sell or offer to sell certain goods and services for a price that exceeds by 10% the price charged by that person immediately prior to the proclamation or declaration of emergency, except as specified.
This bill would apply the price gouging prohibition and penalties described above upon an announcement of a public safety power shutoff, as defined, by an official, board, or other governing body authorized to make that announcement in any county, city, or city and county. By creating a new crime, this bill would create a state-mandated local program.
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 no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.

 Section 396 of the Penal Code is amended to read:

396.
 (a) The Legislature hereby finds that during a state of emergency or local emergency, including, but not limited to, an earthquake, flood, fire, riot, storm, drought, plant or animal infestation or disease, or other natural or manmade man-made disaster, and during a public safety power shutoff, some merchants have taken unfair advantage of consumers by greatly increasing prices for essential consumer goods and services. While the pricing of consumer goods and services is generally best left to the marketplace under ordinary conditions, when a declared state of emergency or local emergency or a public safety power shutoff results in abnormal disruptions of the market, the public interest requires that excessive and unjustified increases in the prices of essential consumer goods and services be prohibited. It is the intent of the Legislature in enacting this act to protect citizens from excessive and unjustified increases in the prices charged during or shortly after a declared state of emergency or local emergency or a public safety power shutoff for goods and services that are vital and necessary for the health, safety, and welfare of consumers. Further, it is the intent of the Legislature that this section be liberally construed so that its beneficial purposes may be served.
(b) Upon the proclamation of a state of emergency declared by the President of the United States or the Governor, or upon the declaration of a local emergency by an official, board, or other governing body vested with authority to make that declaration in any county, city, or city and county, or upon the announcement of a public safety power shutoff by an official, board, or other governing body vested with authority to make that announcement in any county, city, or city and county, and for a period of 30 days following that proclamation or declaration, proclamation, declaration, or announcement, it is unlawful for a person, contractor, business, or other entity to sell or offer to sell any consumer food items or goods, goods or services used for emergency cleanup, emergency supplies, medical supplies, home heating oil, building materials, housing, transportation, freight, and storage services, or gasoline or other motor fuels for a price of more than 10 percent greater than the price charged by that person for those goods or services immediately prior to the proclamation or declaration of emergency. emergency or announcement of a public safety power shutoff. However, a greater price increase is not unlawful if that person can prove that the increase in price was directly attributable to additional costs imposed on it by the supplier of the goods, or directly attributable to additional costs for labor or materials used to provide the services, during the state of emergency or local emergency, emergency or public safety power shutoff, and the price is no more than 10 percent greater than the total of the cost to the seller plus the markup customarily applied by the seller for that good or service in the usual course of business immediately prior to the onset of the state of emergency or local emergency. emergency or public safety power shutoff.
(c) Upon the proclamation of a state of emergency declared by the President of the United States or the Governor, or upon the declaration of a local emergency by an official, board, or other governing body vested with authority to make that declaration in any county, city, or city and county, or upon the announcement of a public safety power shutoff by an official, board, or other governing body vested with authority to make that announcement in any county, city, or city and county, and for a period of 180 days following that proclamation or declaration, proclamation, declaration, or announcement, it is unlawful for a contractor to sell or offer to sell any repair or reconstruction services or any services used in emergency cleanup for a price of more than 10 percent above the price charged by that person for those services immediately prior to the proclamation or declaration of emergency. emergency or announcement of a public safety power shutoff. However, a greater price increase is not unlawful if that person can prove that the increase in price was directly attributable to additional costs imposed on it by the supplier of the goods, or directly attributable to additional costs for labor or materials used to provide the services, during the state of emergency or local emergency, emergency or public safety power shutoff, and the price represents no more than 10 percent greater than the total of the cost to the contractor plus the markup customarily applied by the contractor for that good or service in the usual course of business immediately prior to the onset of the state of emergency or local emergency. emergency or public safety power shutoff.
(d) Upon the proclamation of a state of emergency declared by the President of the United States or the Governor, or upon the declaration of a local emergency by an official, board, or other governing body vested with authority to make that declaration in any county, city, or city and county, or upon the announcement of a public safety power shutoff by an official, board, or other governing body vested with authority to make that announcement in any county, city, or city and county, and for a period of 30 days following that proclamation or declaration, proclamation, declaration, or announcement, it is unlawful for an owner or operator of a hotel or motel to increase the hotel hotel’s or motel’s regular rates, as advertised immediately prior to the proclamation or declaration of emergency, by more than 10 percent. However, a greater price increase is not unlawful if the owner or operator can prove that the increase in price is directly attributable to additional costs imposed on it for goods or labor used in its business, to seasonal adjustments in rates that are regularly scheduled, or to previously contracted rates.
(e) Upon the proclamation of a state of emergency declared by the President of the United States or the Governor, or upon the declaration of a local emergency by an official, board, or other governing body vested with authority to make that declaration in any city, county, or city and county, or upon the announcement of a public safety power shutoff by an official, board, or other governing body vested with authority to make that announcement in any county, city, or city and county, and for a period of 30 days following that proclamation or declaration, proclamation, declaration, or announcement, or any period the proclamation or declaration state of emergency, local emergency, or public safety power shutoff is extended by the applicable authority, it is unlawful for any person, business, or other entity, to increase the rental price, as defined in paragraph (11) of subdivision (j), advertised, offered, or charged for housing, to an existing or prospective tenant, by more than 10 percent. However, a greater rental price increase is not unlawful if that person can prove that the increase is directly attributable to additional costs for repairs or additions beyond normal maintenance that were amortized over the rental term that caused the rent to be increased greater than 10 percent or that an increase was contractually agreed to by the tenant prior to the proclamation or declaration. proclamation, declaration, or announcement. It shall not be a defense to a prosecution under this subdivision that an increase in rental price was based on the length of the rental term, the inclusion of additional goods or services, except as provided in paragraph (11) of subdivision (j) with respect to furniture, or that the rent was offered by, or paid by, an insurance company, or other third party, on behalf of a tenant. This subdivision does not authorize a landlord to charge a price greater than the amount authorized by a local rent control ordinance.
(f) It is unlawful for a person, business, or other entity to evict any residential tenant of residential housing after the proclamation of a state of emergency declared by the President of the United States or the Governor, or upon the declaration of a local emergency by an official, board, or other governing body vested with authority to make that declaration in any city, county, or city and county, or upon the announcement of a public safety power shutoff by an official, board, or other governing body vested with authority to make that announcement in any county, city, or city and county, and for a period of 30 days following that proclamation or declaration, proclamation, declaration, or announcement, or any period that the proclamation or declaration state of emergency, local emergency, or public safety power shutoff is extended by the applicable authority and rent or offer to rent to another person at a rental price greater than the evicted tenant could be charged under this section. It shall not be a violation of this subdivision for a person, business, or other entity to continue an eviction process that was lawfully begun prior to the proclamation or declaration of emergency. emergency or announcement of a public safety power shutoff.
(g) The prohibitions of this section may be extended for additional 30-day periods, as needed, by a local legislative body, local official, the Governor, or the Legislature, if deemed necessary to protect the lives, property, or welfare of the citizens.
(h) A violation of this section is a misdemeanor punishable by imprisonment in a county jail for a period not exceeding one year, or by a fine of not more than ten thousand dollars ($10,000), or by both that fine and imprisonment.
(i) A violation of this section shall constitute an unlawful business practice and an act of unfair competition within the meaning of Section 17200 of the Business and Professions Code. The remedies and penalties provided by this section are cumulative to each other, the remedies under Section 17200 of the Business and Professions Code, and the remedies or penalties available under all other laws of this state.

(j)For the purposes of this section, the following terms have the following meanings:

(1)“State of emergency” means a natural or manmade emergency resulting from an earthquake, flood, fire, riot, storm, drought, plant or animal infestation or disease, or other natural or manmade disaster for which a state of emergency has been declared by the President of the United States or the Governor.

(2)“Local emergency” means a natural or manmade emergency resulting from an earthquake, flood, fire, riot, storm, drought, plant or animal infestation or disease, or other natural or manmade disaster for which a local emergency has been declared by an official, board, or other governing body vested with authority to make that declaration in any county, city, or city and county in California.

(3)“Consumer food item” means any article that is used or intended for use for food, drink, confection, or condiment by a person or animal.

(4)“Repair or reconstruction services” means services performed by any person who is required to be licensed under the Contractors’ State License Law (Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code), for repairs to residential or commercial property of any type that is damaged as a result of a disaster.

(5)“Emergency supplies” includes, but is not limited to, water, flashlights, radios, batteries, candles, blankets, soaps, diapers, temporary shelters, tape, toiletries, plywood, nails, and hammers.

(6)“Medical supplies” includes, but is not limited to, prescription and nonprescription medications, bandages, gauze, isopropyl alcohol, and antibacterial products.

(7)“Building materials” means lumber, construction tools, windows, and anything else used in the building or rebuilding of property.

(8)“Gasoline” means any fuel used to power any motor vehicle or power tool.

(9)“Transportation, freight, and storage services” means any service that is performed by any company that contracts to move, store, or transport personal or business property or that rents equipment for those purposes, including towing services.

(10)“Housing” means any rental housing with an initial lease term of no longer than one year, including, but not limited to, a space rented in a mobilehome park or campground.

(11)“Rental price” for housing means any of the following:

(A)For housing rented within one year prior to the time of the proclamation or declaration of emergency, the actual rental price paid by the tenant. For housing not rented at the time of the declaration or proclamation, but rented, or offered for rent, within one year prior to the proclamation or declaration of emergency, the most recent rental price offered before the proclamation or declaration of emergency. For housing rented at the time of the proclamation or declaration of emergency but which becomes vacant while the proclamation or declaration of emergency remains in effect and which is subject to any ordinance, rule, regulation, or initiative measure adopted by any local governmental entity that establishes a maximum amount that a landlord may charge a tenant for rent, the actual rental price paid by the previous tenant or the amount specified in subparagraph (B), whichever is greater. This amount may be increased by 5 percent if the housing was previously rented or offered for rent unfurnished, and it is now being offered for rent fully furnished. This amount shall not be adjusted for any other good or service, including, but not limited to, gardening or utilities currently or formerly provided in connection with the lease.

(B)For housing not rented and not offered for rent within one year prior to the proclamation or declaration of emergency, 160 percent of the fair market rent established by the United States Department of Housing and Urban Development. This amount may be increased by 5 percent if the housing is offered for rent fully furnished. This amount shall not be adjusted for any other good or service, including, but not limited to, gardening or utilities currently or formerly provided in connection with the lease.

(C)Housing advertised, offered, or charged, at a daily rate at the time of the declaration or proclamation of emergency, shall be subject to the rental price described in subparagraph (A), if the housing continues to be advertised, offered, or charged, at a daily rate. Housing advertised, offered, or charged, on a daily basis at the time of the declaration or proclamation of emergency, shall be subject to the rental price in subparagraph (B), if the housing is advertised, offered, or charged, on a periodic lease agreement after the declaration or proclamation of emergency.

(D)For mobilehome spaces rented to existing tenants at the time of the proclamation or declaration of emergency and subject to a local rent control ordinance, the amount authorized under the local rent control ordinance. For new tenants who enter into a rental agreement for a mobilehome space that is subject to rent control but not rented at the time of the proclamation or declaration of emergency, the amount of rent last charged for a space in the same mobilehome park. For mobilehome spaces not subject to a local rent control ordinance and not rented at the time of the proclamation or declaration of emergency, the amount of rent last charged for the space.

(12)“Goods” has the same meaning as defined in subdivision (c) of Section 1689.5 of the Civil Code.

(k)

(j) This section does not preempt any local ordinance prohibiting the same or similar conduct or imposing a more severe penalty for the same conduct prohibited by this section.

(l)

(k) A business offering an item for sale at a reduced price immediately prior to the proclamation or declaration of the emergency or announcement of a public safety power shutoff may use the price at which it usually sells the item to calculate the price pursuant to subdivision (b) or (c).

(m)

(l) This section does not prohibit an owner from evicting a tenant for any lawful reason, including pursuant to Section 1161 of the Code of Civil Procedure.
(m) For the purposes of this section, the following terms have the following meanings:
(1) “Building materials” means lumber, construction tools, windows, and anything else used in the building or rebuilding of property.
(2) “Consumer food item” means any article that is used or intended for use for food, drink, confection, or condiment by a person or animal.
(3) “Emergency supplies” includes, but is not limited to, water, flashlights, radios, batteries, candles, blankets, soaps, diapers, temporary shelters, tape, toiletries, plywood, nails, and hammers.
(4) “Gasoline” means any fuel used to power any motor vehicle or power tool.
(5) “Goods” has the same meaning as defined in subdivision (c) of Section 1689.5 of the Civil Code.
(6) “Housing” means any rental housing with an initial lease term of no longer than one year, including, but not limited to, a space rented in a mobilehome park or campground.
(7) “Local emergency” means a natural or man-made emergency resulting from an earthquake, flood, fire, riot, storm, drought, plant or animal infestation or disease, or other natural or man-made disaster for which a local emergency has been declared by an official, board, or other governing body vested with authority to make that declaration in any county, city, or city and county in California.
(8) “Medical supplies” includes, but is not limited to, prescription and nonprescription medications, bandages, gauze, isopropyl alcohol, and antibacterial products.
(9) “Public safety power shutoff” means the intentional deenergization of electrical lines by an electrical corporation, as defined in Section 218 of the Public Utilities Code, or a local publicly owned electric utility, as defined in Section 224.3 of the Public Utilities Code.
(10) “Rental price” for housing means any of the following:
(A) For housing rented within one year prior to the time of the proclamation or declaration of emergency or announcement of a public safety power shutoff, the actual rental price paid by the tenant. For housing not rented at the time of the proclamation or declaration of emergency or announcement of a public safety power shutoff but rented, or offered for rent, within one year prior to the proclamation or declaration of emergency or announcement of a public safety power shutoff, the most recent rental price offered before the proclamation or declaration of emergency or announcement of a public safety power shutoff. For housing rented at the time of the proclamation or declaration of emergency or announcement of a public safety power shutoff but that becomes vacant while the state of emergency, local emergency, or public safety power shutoff remains in effect and that is subject to any ordinance, rule, regulation, or initiative measure adopted by any local governmental entity that establishes a maximum amount that a landlord may charge a tenant for rent, the actual rental price paid by the previous tenant or the amount specified in subparagraph (B), whichever is greater. This amount may be increased by 5 percent if the housing was previously rented or offered for rent unfurnished, and is now being offered for rent fully furnished. This amount shall not be adjusted for any other good or service, including, but not limited to, gardening or utilities currently or formerly provided in connection with the lease.
(B) For housing not rented and not offered for rent within one year prior to the proclamation or declaration of emergency or announcement of a public safety power shutoff, 160 percent of the fair market rent established by the United States Department of Housing and Urban Development. This amount may be increased by 5 percent if the housing is offered for rent fully furnished. This amount shall not be adjusted for any other good or service, including, but not limited to, gardening or utilities currently or formerly provided in connection with the lease.
(C) Housing advertised, offered, or charged at a daily rate at the time of the declaration or proclamation of emergency or announcement of a public safety power shutoff shall be subject to the rental price described in subparagraph (A) if the housing continues to be advertised, offered, or charged at a daily rate. Housing advertised, offered, or charged on a daily basis at the time of the declaration or proclamation of emergency or announcement of a public safety power shutoff shall be subject to the rental price in subparagraph (B) if the housing is advertised, offered, or charged on a periodic lease agreement after the declaration or proclamation of emergency or announcement of a public safety power shutoff.
(D) For mobilehome spaces rented to existing tenants at the time of the proclamation or declaration of emergency or announcement of a public safety power shutoff and subject to a local rent control ordinance, the amount authorized under the local rent control ordinance. For new tenants who enter into a rental agreement for a mobilehome space that is subject to rent control but not rented at the time of the proclamation or declaration of emergency or announcement of a public safety power shutoff, the amount of rent last charged for a space in the same mobilehome park. For mobilehome spaces not subject to a local rent control ordinance and not rented at the time of the proclamation or declaration of emergency or announcement of a public safety power shutoff, the amount of rent last charged for the space.
(11) “Repair or reconstruction services” means services performed by any person who is required to be licensed under the Contractors’ State License Law (Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code) for repairs to residential or commercial property of any type that is damaged as a result of a disaster.
(12) “State of emergency” means a natural or man-made emergency resulting from an earthquake, flood, fire, riot, storm, drought, plant or animal infestation or disease, or other natural or man-made disaster for which a state of emergency has been declared by the President of the United States or the Governor.
(13) “Transportation, freight, and storage services” means any service that is performed by any company that contracts to move, store, or transport personal or business property or that rents equipment for those purposes, including towing services.

SEC. 2.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.