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SB-691 Junk dealers and recyclers: nonferrous material.(2007-2008)



Current Version: 09/30/08 - Chaptered        


SB691:v87#DOCUMENT

Senate Bill No. 691
CHAPTER 730

An act to amend Sections 21606, 21606.5, 21608, and 21609 of, and to add Sections 21608.3 and 21608.5 to, the Business and Professions Code, relating to junk dealers, and declaring the urgency thereof, to take effect immediately.

[ Approved by Governor  September 30, 2008. Filed with Secretary of State  September 30, 2008. ]

LEGISLATIVE COUNSEL'S DIGEST


SB 691, Calderon. Junk dealers and recyclers: nonferrous material.
Existing law requires junk dealers and recyclers, as defined, to keep written records of all sales and purchases made in the course of their business. Existing law requires these records to include, among other things, the place and date of each sale or purchase of junk, a description of the item of junk, and the personal and vehicle information of the person purchasing or transporting the junk. Existing law exempts certain purchases of scrap metals by a junk dealer or recycler from these provisions. A violation of the provisions regulating junk dealers and recyclers is a crime.
This bill would require a junk dealer or recycler to report the information included in those written records to the chief of police or sheriff, as specified, upon request and on a monthly basis. The bill would authorize the chief of police or sheriff to request weekly reports for no more than a 2-month period, except as specified, if there is an ongoing investigation of the junk dealer or recycler concerning possible criminal activity.
The bill would prohibit a junk dealer or recycler from providing payment for nonferrous material, as defined, unless the payment is made by cash or check, the check is mailed or the cash or check is provided no earlier than 3 days after the date of sale, and the dealer or recycler obtains a photograph or video of the seller and certain other identifying information, as specified, including the thumbprint of a seller, to be retained by the dealer or recycler for a certain period of time. The bill would specify an exception to the payment by cash or check requirement and provide that these requirements do not apply to the redemption of nonferrous materials of a certain value at a recycling center, as specified, or to coin dealers or automobile dismantlers. The bill would also prohibit a city, county, or city and county, from adopting an ordinance related to junk dealer or recycler transactions involving nonferrous material, except under specified circumstances.
Under existing law, a knowing and willful violation of the recordkeeping requirements applicable to junk dealers and recyclers is punishable by specified fines, by imprisonment in the county jail for a specified period of time, or by both that fine and imprisonment. Existing law requires that, for a 3rd or subsequent violation, the court order the defendant to stop engaging in business as a junk dealer or recycler for a period of 30 days.
This bill would increase the minimum fines for those violations, as specified, and would also require the court, for a 3rd or subsequent violation, to order the defendant to stop engaging in business as a junk dealer or recycler for a period not less than one year. The bill would further impose a specified civil fine for the unauthorized disclosure of a seller’s personal identification information.
Under existing law, when a peace officer has probable cause to believe that property in the possession of a junk dealer or recycler is stolen, the peace officer may place a hold on that property. Existing law requires a court, upon conviction of a person for the theft of that property, to order the defendant to pay the reasonable costs for the storage of the property.
This bill would also require the court to order the defendant to pay the victim for the value of the property stolen and any reasonable collateral damage caused in the commission of the theft.
Because a violation of the bill’s provisions would be a crime, this bill would impose 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.
This bill would declare that it is to take effect immediately as an urgency statute and would provide that its provisions shall become operative on December 1, 2008.
Vote: 2/3   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.

 Section 21606 of the Business and Professions Code is amended to read:

21606.
 (a) Every junk dealer and every recycler shall set out in the written record required by this article all of the following:
(1) The place and date of each sale or purchase of junk made in the conduct of his or her business as a junk dealer or recycler.
(2) The name, valid driver’s license number and state of issue or California-issued identification card number, and vehicle license number including the state of issue of any motor vehicle used in transporting the junk to the junk dealer’s or recycler’s place of business.
(3) The name and address of each person to whom junk is sold or disposed of, and the license number of any motor vehicle used in transporting the junk from the junk dealer’s or recycler’s place of business.
(4) A description of the item or items of junk purchased or sold, including the item type and quantity, and identification number, if visible.
(5) A statement indicating either that the seller of the junk is the owner of it, or the name of the person he or she obtained it from, as shown on a signed transfer document.
(b) A person who makes, or causes to be made, a false or fictitious statement regarding any information required by this section is guilty of a misdemeanor.
(c) (1) Every junk dealer and every recycler shall report the information required under subdivision (a) to the chief of police, if the dealer’s or recycler’s business is located in a city, or to the sheriff, if the dealer’s or recycler’s business is located in an unincorporated part of a county, upon request of the chief of police or sheriff and on a monthly basis, except as provided in paragraph (2).
(2) The chief of police or sheriff may request the report described in this section on a weekly basis if there is an ongoing investigation of the junk dealer or recycler concerning possible criminal activity. The chief of police or sheriff may request weekly reports for no more than a two-month period unless the investigation of the junk dealer or recycler continues and the chief of police or sheriff makes a subsequent request for weekly reports for an additional two-month period or part thereof.
(d) The amendments to this section made by the act adding this subdivision shall become operative on December 1, 2008.

SEC. 2.

 Section 21606.5 of the Business and Professions Code is amended to read:

21606.5.
 Every junk dealer or recycler shall, during normal business hours, allow periodic inspection of any premises maintained and any junk thereon for the purpose of determining compliance with the recordkeeping requirements of this article, and shall during those hours produce his or her records of sales and purchases, except as provided in subparagraph (A) of paragraph (4) of subdivision (a) of Section 21608.5, and all property purchased incident to those transactions which is in the possession of the junk dealer or recycler for inspection by any of the following persons:
(a) An officer holding a warrant authorizing him or her to search for personal property.
(b) A person appointed by the sheriff of a county or appointed by the head of the police department of a city.
(c) An officer holding a court order directing him or her to examine the records or property.
(d) The amendments to this section made by the act adding this subdivision shall become operative on December 1, 2008.

SEC. 3.

 Section 21608 of the Business and Professions Code is amended to read:

21608.
 (a) A junk dealer or recycler who fails in any respect to keep the written record required by this article, or to set out in that written record any matter required by this article to be set out therein, is guilty of a misdemeanor.
Every junk dealer or recycler who refuses, upon demand pursuant to Section 21606.5, to exhibit the written record required by this article, or who destroys that record within two years after making the final entry of a purchase or sale of junk therein, is guilty of a misdemeanor.
(b) Any knowing and willful violation of subdivision (a) shall be punishable as follows:
(1) For a first offense, by a fine of not less than one thousand dollars ($1,000), or by imprisonment in the county jail for not less than 30 days, or by both that fine and imprisonment.
(2) For a second offense, by a fine of not less than two thousand dollars ($2,000), or by imprisonment in the county jail for not less than 30 days, or by both that fine and imprisonment. In addition to any other sentence imposed pursuant to this paragraph, the court may order the defendant to stop engaging in business as a junk dealer or recycler for a period not to exceed 30 days.
(3) For a third or any subsequent offense, by a fine of not less than four thousand dollars ($4,000), or by imprisonment in the county jail for not less than six months, or by both that fine and imprisonment. In addition to any other sentence imposed pursuant to this paragraph, the court shall order the defendant to stop engaging in business as a junk dealer or recycler for not less than one year.
(c) The amendments to this section made by the act adding this subdivision shall become operative on December 1, 2008.

SEC. 4.

 Section 21608.3 is added to the Business and Professions Code, to read:

21608.3.
 (a) Any unauthorized disclosure of personal identification information collected from a seller by a junk dealer or recycler is prohibited, and any such disclosure shall render the violator liable for a civil fine of up to five thousand dollars ($5,000).
(b) This section shall become operative on December 1, 2008.

SEC. 5.

 Section 21608.5 is added to the Business and Professions Code, to read:

21608.5.
 (a) A junk dealer or recycler in this state shall not provide payment for nonferrous material unless, in addition to meeting the written record requirements of Sections 21605 and 21606, all of the following requirements are met:
(1) The payment for the material is made by cash or check. The check may be mailed to the seller at the address provided pursuant to paragraph (3) or the check or cash may be collected by the seller from the junk dealer or recycler on the third business day after the date of sale.
(2) At the time of sale, the junk dealer or recycler obtains a clear photograph or video of the seller.
(3) (A) Except as provided in subparagraph (B), the junk dealer or recycler obtains a copy of the valid driver’s license of the seller containing a photograph and an address of the seller or a copy of a state or federal government issued identification card containing a photograph and an address of the seller.
(B) If the seller prefers to have the check for the material mailed to an alternative address, other than a post office box, the junk dealer or recycler shall obtain a copy of a driver’s license or identification card described in subparagraph (A) and a gas or electric utility bill addressed to the seller at that alternative address with a payment due date no more than two months prior to the date of sale. For purposes of this paragraph, “alternative address” means an address that is different from the address appearing on the seller’s driver’s license or identification card.
(4) The junk dealer or recycler obtains a clear photograph or video of the nonferrous material being purchased.
(5) The junk dealer or recycler shall preserve the information obtained pursuant to this paragraph for a period of two years after the date of sale.
(6) (A) The junk dealer or recycler obtains a thumbprint of the seller, as prescribed by the Department of Justice. The junk dealer or recycler shall keep this thumbprint with the information obtained under this subdivision and shall preserve the thumbprint in either hard copy or electronic format for a period of two years after the date of sale.
(B) Inspection or seizure of the thumbprint shall only be performed by a peace officer acting within the scope of his or her authority in response to a criminal search warrant signed by a magistrate and served on the junk dealer or recycler by the peace officer. Probable cause for the issuance of that warrant must be based upon a theft specifically involving the transaction for which the thumbprint was given.
(b) Paragraph (1) of subdivision (a) shall not apply if, during any three-month period commencing on or after the effective date of this section, the junk dealer or recycler completes five or more separate transactions per month, on five or more separate days per month, with the seller and, in order for paragraph (1) of subdivision (a) to continue to be inapplicable, the seller must continue to complete five or more separate transactions per month with the junk dealer or recycler.
(c) This section shall not apply if, on the date of sale, the junk dealer or recycler has on file or receives all of the following information:
(1) The name, physical business address, and business telephone number of the seller’s business.
(2) The business license number or tax identification number of the seller’s business.
(3) A copy of the valid driver’s license of the person delivering the nonferrous material on behalf of the seller to the junk dealer or the recycler.
(d) This section shall not apply to the redemption of nonferrous material having a value of not more than twenty dollars ($20) in a single transaction when the primary purpose of the transaction is the redemption of beverage containers under the California Beverage Container Recycling and Litter Reduction Act, as set forth in Division 12.1 (commencing with Section 14500) of the Public Resources Code.
(e) This section shall not apply to coin dealers or to automobile dismantlers, as defined in Section 220 of the Vehicle Code.
(f) For the purposes of this section, “nonferrous material” means copper, copper alloys, stainless steel, or aluminum, but does not include beverage containers, as defined in Section 14505 of the Public Resources Code, that are subject to a redemption payment pursuant to Section 14560 of the Public Resources Code.
(g) This section is intended to occupy the entire field of law related to junk dealer or recycler transactions involving nonferrous material. However, a city or county ordinance, or a city and county ordinance, relating to the subject matter of this section is not in conflict with this section if the ordinance is passed by a two-thirds vote and it can be demonstrated by clear and convincing evidence that the ordinance is both necessary and addresses a unique problem within and specific to the jurisdiction of the ordinance that cannot effectively be addressed under this section.
(h) This section shall become operative on December 1, 2008.

SEC. 6.

 Section 21609 of the Business and Professions Code is amended to read:

21609.
 (a) Whenever a peace officer has probable cause to believe that property in the possession of a junk dealer or recycler is stolen, in lieu of seizing the property, the peace officer as defined in subdivision (b) of Section 21606.5, at his or her option, may place a hold on the property for a period not to exceed 90 days. When a peace officer places a hold on the property, the peace officer shall give the junk dealer or recycler a written notice at the time the hold is placed, describing the item or items to be held plus the case number. During that period the junk dealer or recycler shall not release or dispose of the property, except pursuant to a court order or upon receipt of a written authorization signed by a peace officer who is a member of the law enforcement agency of which the peace officer placing the hold on the property is a member. Except as specifically set forth in this section, a junk dealer or recycler shall not be subject to civil liability for compliance with this section.
(b) Whenever property that is in the possession of a junk dealer or recycler is subject to a hold and the property is required by a peace officer in a criminal investigation, the junk dealer or recycler, upon reasonable notice, shall produce the property at reasonable times and places or may deliver the property to any peace officer upon the request of any peace officer who is a member of the law enforcement agency of which the peace officer placing the hold on the property is a member.
(c) Whenever property that is in the possession of a junk dealer or recycler is subject to a hold and the property is no longer required for the purpose of criminal investigation, the law enforcement agency that placed the hold on the property shall undertake the following:
(1) With respect to the property being held, if the law enforcement agency has no knowledge of the property on hold being reported as stolen, the property shall be released upon written notice to the junk dealer or recycler. The notice shall be provided in a timely fashion.
(2) If the law enforcement agency has knowledge that the property has been reported stolen, the law enforcement agency shall notify the person who reported the stolen property of the name and address of the junk dealer or recycler holding the property and authorize the release of the property to that person.
The law enforcement agency that placed the property on hold shall release the hold after 60 days has elapsed following the delivery of the notice to the person who reported the property stolen.
(3) If a victim seeks to recover property that is subject to a hold, the junk dealer or recycler shall advise the victim of the name and badge number of the peace officer who placed the hold on the property and the name of the law enforcement agency of which the officer is a member. If the property is not required to be held pursuant to a criminal prosecution the hold shall be released.
(d) Upon conviction of a person for the theft of property placed on hold pursuant to this section, the court shall order the defendant to do both of the following:
(1) Pay the junk dealer or recycler reasonable costs for storage of the property.
(2) Pay the victim for both the value of the property stolen and any reasonable collateral damage caused in the commission of the theft.
(e) The amendments to this section made by the act this subdivision shall become operative on December 1, 2008.

SEC. 7.

 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.

SEC. 8.

 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 Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order to address statewide concerns related to public safety, and to decrease theft of nonferrous materials, it is necessary that this act take effect immediately.