BILL NUMBER: SB 362 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 24, 2007
AMENDED IN SENATE APRIL 9, 2007
AMENDED IN SENATE MARCH 26, 2007
INTRODUCED BY Senator Simitian
FEBRUARY 20, 2007
An act to add Section 52.7 to the Civil Code, relating to
identification devices.
LEGISLATIVE COUNSEL'S DIGEST
SB 362, as amended, Simitian. Identification devices: subcutaneous
implanting.
Existing law accords every person the right of protection from
bodily restraint or harm, from personal insult, from defamation, and
from injury to his or her personal relations, subject to the
qualifications and restrictions provided by law.
This bill would prohibit a person from requiring, coercing, or
compelling any other individual to undergo the subcutaneous
implanting of an identification device, as defined. The bill would
authorize the Attorney General, a district attorney, a city
attorney, or provide for the assessment of civil
penalties for a violation thereof, as specified, and would allow
an aggrieved party to bring an action against a violator for
damages and injunctive relief or for the
assessment of civil penalties, as specified, to be determined by the
court , subject to a 3-year statute of limitation , or
as otherwise provided . The bill would also authorize
the court to grant a prevailing plaintiff reasonable attorney's fees
and costs allow an interested party to petition the
court on behalf of an incompetent or minor upon specified
circumstances .
Vote: majority. Appropriation: no. Fiscal committee: yes
no . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 52.7 is added to the Civil Code, to read:
52.7. (a) A person shall not require, coerce, or compel any other
individual to undergo the subcutaneous implanting of an
identification device.
(b) (1) Any person who violates or threatens to violate
subdivision (a) may be enjoined in any court of competent
jurisdiction.
(2) Any person who violates subdivision (a) may be assessed an
initial civil penalty of no more than ten thousand dollars ($10,000),
and no more than one thousand dollars ($1,000) for each day the
violation continues until the deficiency is corrected. That civil
penalty may be assessed and recovered in a civil action brought in
any court of competent jurisdiction. The court may also grant a
prevailing plaintiff reasonable attorney's fees and costs.
(3) In assessing the amount of the civil penalty for a violation
of subdivision (a), the court may consider all of the following:
(A) The nature and extent of the violation.
(B) The number and severity of the violations.
(C) The economic effect of the penalty on the violator.
(D) Whether the violator took good faith measures to comply with
this section and the time those measures took.
(E) The willfulness of the violator's misconduct.
(F) The deterrent effect that the imposition of the penalty would
have on both the violator and the regulated community as a whole.
(G) Any other factor that justice may require.
(4) Actions pursuant to this section may be brought by any
aggrieved party or by the Attorney General, a district attorney, or a
city attorney.
(5) An action brought pursuant to this section shall be commenced
within three years of the date upon which the identification device
was implanted, unless the person who received the implant lacked
capacity at the time of implantation, in which case, within three
years after the date of discovery.
(b) (1) Any person who violates subdivision (a) may be assessed an
initial civil penalty of no more than ten thousand dollars
($10,000), and no more than one thousand dollars ($1,000) for each
day the violation continues until the deficiency is corrected. That
civil penalty may be assessed and recovered in a civil action brought
in any court of competent jurisdiction. The court may also grant a
prevailing plaintiff reasonable attorney's fees and litigation costs,
including, but not limited to, expert witness fees and expenses as
part of the costs.
(2) A person who is implanted with a subcutaneous identification
device in violation of subdivision (a) may bring a civil action for
actual damages, compensatory damages, punitive damages, injunctive
relief, any combination of those, or any other appropriate relief.
(3) Additionally, punitive damages may also be awarded upon proof
of the defendant's malice, oppression, fraud, or duress in requiring,
coercing, or compelling the plaintiff to undergo the subcutaneous
implanting of an identification device.
(c) (1) An action brought pursuant to this section shall be
commenced within three years of the date upon which the
identification device was implanted.
(2) If the victim was an incompetent or minor when the
implantation occurred, actions brought pursuant to this section shall
be commenced within three years after the date the plaintiff, or his
or her guardian or parent, discovered or reasonably should have
discovered the implant, or within eight years after the plaintiff
attains the age of majority, whichever date occurs later.
(3) The statute of limitations shall not run against an
incompetent or minor plaintiff simply because a guardian ad litem has
been appointed. A guardian ad litem's failure to bring a plaintiff's
action within the applicable limitation period will not prejudice
the plaintiff's right to do so.
(4) A defendant is stopped to assert a defense of the statute of
limitations when the expiration of the statute is due to conduct by
the defendant inducing the plaintiff to delay the filing of the
action, or due to threats made by the defendant causing duress upon
the plaintiff.
(d) (1) For purposes of implantation only, any interested person
may file a petition for an order or judgment declaring an incompetent
or minor free from the control of a parent or guardian who is
requiring or preventing implantation of an identification device.
(2) The court shall consider that petition in light of applicable
law with respect to the best interests of the incompetent or minor.
(e) Any restitution paid by the defendant to the victim shall be
credited against any judgment, award, or settlement obtained pursuant
to this section. Any judgment, award, or settlement obtained
pursuant to an action under this section shall be subject to the
provisions of Section 13963 of the Government Code.
(c)
(f) The provisions of this section shall be liberally
construed so as to protect privacy and bodily integrity.
(d)
(g) Actions brought pursuant to this section are
independent of any other actions, remedies, or procedures that may be
available to an aggrieved party pursuant to any other law.
(e)
(h) For purposes of this section:
(1) "Identification device" means any item, application, or
product that is passively or actively capable of transmitting
personal information, including, but not limited to, devices using
radio frequency technology.
(2) "Person" means an individual, business association,
partnership, limited partnership, corporation, limited liability
company, trust, estate, cooperative association, or other entity.
(3) "Personal information" includes any of the following data
elements to the extent they are used alone or in conjunction with any
other information used to identify an individual:
(A) First or last name.
(B) Address.
(C) Telephone number.
(D) E-mail, Internet Protocol, or Web site address.
(E) Date of birth.
(F) Driver's license number or California identification card
number.
(G) Any unique personal identifier number contained or encoded on
a driver's license or identification card issued pursuant to Section
13000 of the Vehicle Code.
(H) Bank, credit card, or other financial institution account
number.
(I) Any unique personal identifier contained or encoded on a
health insurance, health benefit, or benefit card or record issued in
conjunction with any government-supported aid program.
(J) Religion.
(K) Ethnicity or nationality.
(L) Photograph.
(M) Fingerprint or other biometric identifier.
(N) Social security number.
(O) Any unique personal identifier.
(4) "Require, coerce, or compel" includes physical violence,
threat, intimidation, retaliation, the conditioning of any private or
public benefit or care on consent to implantation, including
employment, promotion, or other employment benefit, or by any means
that causes a reasonable person of ordinary susceptibilities to
acquiesce to implantation when he or she otherwise would not, but
does not include legitimate medical uses for which the patient or his
or her guardian or parent has consented.
(4)
(5) "Subcutaneous" means existing, performed, or
introduced under or on the skin.