BILL ANALYSIS
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|Hearing Date:June 22, 2009 |Bill No:AB |
| |85 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND
ECONOMIC DEVELOPMENT
Senator Gloria Negrete McLeod, Chair
Bill No: AB 85 Author:Tom Berryhill
As Amended:April 14, 2009 Fiscal: No
SUBJECT: Junk dealers and recyclers.
SUMMARY: Corrects technical errors in the existing laws related to
junk dealers and recyclers.
Existing law:
1)Regulates junk dealers and recyclers and defines "junk" as
secondhand and used machinery and all ferrous (containing iron) and
nonferrous (excludes iron) scrap metals (as defined) and alloys,
including any and all secondhand and used furniture, pallets, or
other personal property, excluding livestock (Business and
Professions Code (BPC) 21600).
2)Requires junk dealers and recyclers to allow for periodic inspection
of their premises or junk, to determine compliance with
recordkeeping requirements, and requires junk dealers and recyclers
to produce their records of sales and purchases and any property
purchased, for inspection by any of the following:
a) An officer holding a search warrant
b) A person appointed by the county sheriff or head of the police
department
c) An officer with a court order to inspect the records or
property (BPC 21606.5.)
1)Prohibits junk dealers and recyclers from providing payment for
nonferrous material, as defined, unless payment is made by cash or
check, and the payment is mailed or provided on the third business
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day after the date of sale (BPC 21608.5(a)(1)).
3)Requires junk dealers and recyclers to obtain a thumbprint from a
seller, and to maintain the thumbprint record for 2 years after the
date of sale (BPC 21608.5(a)(6)(A)).
4)Provides that inspections or seizures of thumbprints shall only be
performed by a peace officer under a criminal search warrant, where
probable cause for the warrant was based on a theft related to the
sale for which the thumbprint was collected (BPC
21608.5(a)(6)(B)).
5)Provides an exception to the requirement that junk dealers and
recyclers produce their records for inspection on demand, indicating
a cross-reference to Section 21608.5(a)(3)(A), which refers to the
junk dealer or recycler's obligation to obtain a copy of the
seller's valid driver's license (BPC 21606.5).
This bill:
1) Clarifies that an individual who sells nonferrous material to a
junk dealer or recycler may collect payment for those materials
either on or after the third business day after the date of sale.
2) Clarifies that inspection of the seller's thumbprint, which
junk dealers and recyclers are required to collect upon making a
purchase, may only be performed by a peace officer in response to a
criminal search warrant, where probable cause for the warrant is
based on a theft involving the transaction for which the thumbprint
was given.
3) Repeals a duplicative provision of law and makes technical
corrections.
FISCAL EFFECT: This bill has not been keyed "fiscal" by Legislative
Counsel.
COMMENTS:
1.Purpose. This bill is sponsored by California Farm Bureau (Sponsor)
to fix technical errors in AB 844 (Tom Berryhill, Chapter 731,
Statutes of 2008). The Sponsor states that current cross references
contradict the intent of the Legislature regarding the release of
the required thumbprint; and AB 85 will also clarify the payment
release timeframe.
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2.Payment Release Timeframe. As currently stated, the law specifies
that payment for nonferrous materials must be mailed or retrieved by
the seller "on the third business day after the date of sale." Such
a rigid requirement is not necessary to accomplish the purpose of
the law (i.e., to provide a three-day wait period after the sale to
ensure the materials are not stolen), and would be difficult to
adhere to. Therefore it is reasonable to amend the law to provide
more flexibility so that the payment may be mailed or retrieved "on
or after the third business day after the date of sale."
3.Cross Reference Correction. The current law requires junk dealers
and recyclers to obtain a thumbprint from a seller of nonferrous
materials and maintain the record of the thumbprint for 2 years
after the sale. Junk dealers and recyclers are only required to
produce a seller's thumbprint pursuant to a valid search warrant.
However, the junk dealers' and recyclers' general obligation to
produce records for inspection, provides an exception to the general
requirement to produce records, and incorrectly refers to another
section. Specifically, the statute cross-references a section that
relates to a seller's driver's license records, rather than the
thumbprint records. Therefore, it is necessary to correct the
cross-reference to refer correctly to the thumbprint record, as a
record that shall not be provided during a regular records
inspection, since it can only be produced pursuant to a search
warrant, as specified.
4. Prior Legislation. SB 691 (Calderon, Chapter 730, Statutes of
2008) and SB 844 (Berryhill, Chapter 731, Statutes of 2008) are
identical provisions which require junk dealers and recyclers to
comply with additional recordkeeping and identification
procedures and new payment restrictions when purchasing
nonferrous materials, as defined. These bills were enacted in
response to the massive increase of metal theft in California in
recent years. This measure essentially mirrors those
provisions, and likewise requires:
a. Additional Identification for sellers and a disclosure of
where materials came from.
b. Risk of fines or convictions for recyclers caught
violating this law.
c. Check-only transactions with a 3-day wait for non-business
sellers.
SB 447 (Maldonado, Chapter 732, Statutes of 2008) requires a
junk dealer or recycler to report information about each sale or
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purchase of junk to the chief of police of the city or the
sheriff of the county in which the junk dealer or recycler
purchased the junk, in the same manner as required by a
secondhand dealer or coin dealer, as specified.
AB 1778 (Ma, Chapter 733, Statutes of 2008) prohibits a junk
dealer or recycler from providing payment for newspaper valued
at $50 or more or California redemption value (CRV) containers
valued at $100 or more unless certain requirements are met
including payment by check or electronic transfer, and copies of
the seller's identification, which must be retained for two
years.
5.Related Legislation this Session. SB 627 (Calderon) requires core
recyclers (as defined) and recyclers to comply with additional
recordkeeping and identification procedures and new payment
restrictions when purchasing catalytic converters. This bill is
currently referred to the Assembly Business and Professions
Committee.
6.Technical Amendments. Committee staff recommends the following
technical amendments:
a. Correcting amendment. The title of the bill contains a
typographical error. The parentheses in the title are extraneous
and should be deleted.
b. Repeal duplicate section. As described in Comment #4 above,
last year SB 691 and
AB 844 were both enacted containing identical provisions. Because
both bills added identical sections of law (BPC 21608.3 and
21608.5), the ultimate result is the creation of two duplicate,
identical sections in the Business and Professions Code. This
bill repeals one of the duplicate sections (BPC 21608.5).
Committee staff recommends amending the bill to also repeal the
other duplicated section (BPC 21608.3). Legislative Counsel
has suggested to staff that this non-substantive amendment should
be done to clean up the Code and avoid unnecessary confusion.
SUPPORT AND OPPOSITION:
Support:
California Farm Bureau (Sponsor)
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Opposition:
None received as of June 16, 2009
Consultant:G. V. Ayers