BILL ANALYSIS Ó ----------------------------------------------------------------------- |Hearing Date:June 25, 2012 |Bill No:AB | | |1583 | ----------------------------------------------------------------------- SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT Senator Curren D. Price, Jr., Chair Bill No: AB 1583Author:Roger Hernández As Amended: June 15, 2012Fiscal: Yes SUBJECT: Bulk merchandise pallets. SUMMARY: Prohibits junk dealers and recyclers from purchasing or receiving bulk merchandise pallets, as defined, marked with indicia of ownership, as defined, from anyone except the indicated owner, unless specified information is provided. 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 keep a written record of all junk sales and purchases for at least two years and requires the written information to be reported to the chief of police or sheriff, as specified, and makes it a misdemeanor to make a false or fictitious statement in the written record. The written record must include: (BPC § 21606) a) The place and date of the transaction. b) The name, driver's license number and state of issue, and the license plate number and state of issue of any vehicle used in transporting the junk. c) The name and address of each person to whom the junk is sold AB 1583 Page 2 and that person's vehicle license number. d) A description of the junk purchased or sold. e) A signed statement indicating that the seller owns or is authorized to sell the junk. 3)Defines "merchandise pallet" as a wooden or plastic carrier or container of specified size, used by a manufacturer or distributor to transport merchandise to retail outlets, which has a notice permanently affixed to it identifying the owner of the pallet and providing other specified information. (BPC § 22750) 4)Makes it a crime for an unauthorized person, as defined, to possess a merchandise pallet or for a person other than its owner to obliterate the identification notice on a merchandise pallet. (BPC § 22753) 5)Requires any person or entity purchasing plastic bulk merchandise containers who is in the business of recycling, shredding, or destruction of plastic bulk merchandise containers, as defined, to obtain a proof of ownership record and other identifying information from a person selling five or more containers, and to retain the required record for one year from the date do purchase or delivery, as specified. Makes a violation of these provisions a misdemeanor. (BPC § 22755) This bill: 1)Defines the following terms: a) "Indicia of ownership" to mean words, symbols, or registered trademarks printed, stamped, etched, attached, or otherwise displayed on the exterior surface of the merchandise pallet that reasonably identifies the owner. b) "Bulk merchandise pallets" to mean plastic or wood containers, carriers, or holders used by a manufacturer or distributor for bulk transport of merchandise to wholesale or retail outlets. 2)Prohibits a junk dealer or recycler from purchasing or receiving bulk merchandise pallets marked with indicia of ownership from any person or entity other than the indicated owner. 3)Authorizes a junk dealer or recycler to purchase or receive bulk AB 1583 Page 3 merchandise pallets if the seller is not the indicated owner, only if the seller or transferor provides a receipt verifying his or her current ownership or a document indicating that he or she is authorized by the owner to sell or transfer the merchandise pallets, and requires the junk dealer or recycler to maintain copies of these documents as part of the written record of the transaction. 4)Requires a junk dealer or recycler to make payment for a single transaction involving five or more bulk merchandise pallets marked with indicia of ownership where the seller is not the indicated owner by mailed check or by cash or check collected by the seller after three business days. 5)Makes the obliteration of the indicia of ownership on a merchandise pallet punishable under provisions of law guarding against grand and petty theft, as specified. 6)Requires a person or entity purchasing or transporting plastic bulk merchandise containers who is in the business of recycling, shredding, or destruction of plastic bulk merchandise containers, or is in the business of transporting plastic bulk merchandise containers for those purposes, to obtain a proof of ownership record or bill of lading and other identifying information from the person selling or delivering five or more containers, and to retain this information, as specified. 7)Makes technical and conforming changes. FISCAL EFFECT: The Assembly Appropriations Committee analysis dated May 2, 2012, cites negligible, non-reimbursable costs for prosecution and/or incarceration, offset by fine revenue, for misdemeanor violations of provisions associated with obliterating the indicia of ownership on a merchandise pallet. COMMENTS: 1.Purpose. This bill is sponsored by MillerCoors (Sponsor) to prohibit junk dealers and recyclers from purchasing or receiving bulk merchandise pallets marked with indicia of ownership from anyone except the indicated owner, unless the seller or transporter provides proof of ownership. The Author contends that AB 1583 will ensure businesses stop losing their property because the legislation applies to all merchandise pallets, not only to plastic ones used for milk, eggs, and beverages. 2.Background. While much of the recent focus of the efforts to curb AB 1583 Page 4 the recycling of stolen goods has been upon metal theft, the Sponsor indicates that there are significant problems with the theft of plastics. The Sponsor states the following regarding the existing problems with the theft of plastic pallets: "Despite current requirements on junk dealers and recyclers when purchasing merchandise pallets, theft of merchandise pallets is becoming a serious problem for food and beverage manufacturers and distributors. Higher scrap values paid recyclers of the plastic resins typically used in pallets is a major factor in these thefts. Replacing a pallet can cost approximately $30 and total losses are estimated in the millions of dollars. "In December of 2011, the L.A. County Sheriff investigators recovered $1.3 million in stolen plastic containers, boxes, and crates. According to lead detective Shelley Jones from the Sheriff's Industry Substation, stolen plastic pallets cost businesses in the San Gabriel Valley alone nearly $10 million annually. Sheriff's officials said the recovered property was part of a complex web of organized crime operating nationally and internationally that deals in stealing, recycling, and reselling trademarked plastic containers. "AB 1583 tightens and clarifies existing laws relative to purchase of merchandise pallets, adding a prohibition on purchasing or receiving pallets marked with indicia of ownership unless the seller can prove lawful ownership or possession. When the seller is not the indicated owner, payment must be made by check mailed to the address on the seller's photo ID or by cash after the third business day. The bill also expands current law to require that persons who transport bulk merchandise containers for the purpose of shredding, recycling, or destroying, whether or not they are a junk dealer or recycler, also obtain or carry proof of ownership or lawful possession." 3.Related Legislation: In 2007, the Senate Governmental Organization Committee authored SB 520 (Chapter 349, Statutes of 2007) which added BPC § 21609.5 to prohibit junk dealers or recyclers from purchasing or receiving aluminum beer kegs with marks indicating ownership, unless the kegs are being provided directly by the owner. According to the Sponsor, AB 1583 is designed to enact similar provisions regarding plastic merchandise pallets. AB 1508 (Carter, 2012) revises the exemption on the sale of nonferrous materials with a value under $20 from certain payment AB 1583 Page 5 restrictions by requiring the majority of the transaction be for the redemption of beverage containers and prohibiting the redemption of materials made of copper or copper alloys, as specified. This bill is set for hearing June 25, 2012 in this Committee. AB 2003 (Torres, 2012) requires junk dealers and recyclers to provide payment to sellers of nonferrous material by mailed check only, as specified. This bill failed passage in this Committee on June 18, 2012. AB 2298 (Ma, 2012) authorizes an appointee of the head of a county agriculture commission to inspect written records of sales and purchases by junk dealers or recyclers. This bill is set for hearing on June 26 in Senate Public Safety Committee. SB 1387 (Emmerson, 2012) prohibits a junk dealer or recycler from possessing manhole covers, backflow devices, and fire hydrants without written certification on the letterhead of the public agency or utility that owns or previously owned that material. Failure to comply with this provision would result in a criminal fine of up to $3,000. This bill has been referred to the Assembly Public Safety Committee for hearing. SB 1045 (Emmerson, 2012) provides that any junk dealer or recycler who possesses a fire hydrant, a fire department connection, as specified, or a backflow device or connection to that device or part of that device without a prescribed written certification, from the agency or utility owning or previously owning the material is liable to the agency or utility for the wrongful possession of that material. This bill is awaiting hearing in the Assembly. 4.Arguments in Support. California Beer and Beverage Distributors state that in recent years, California beer distributors have experienced a higher frequency in the theft of pallets used in the delivery of beer. AB 1583 de-incentivizes the theft of pallets which are a costly and crucial element in the transportation and distribution of beer. California Grocers Association believes AB 1583 will ensure businesses in California stop losing their property, it applies to all merchandise pallets, not only to plastic ones used for milk, eggs, and beverages; making sure people do not make a profit out of stolen wood and plastic pallets. California Nevada Soft Drink Association states: "Many bottlers are continuing to experience substantial financial loss in the theft and AB 1583 Page 6 misappropriation of plastic pallets and shells used in the delivery of beverage products to retailers. We believe this is occurring on a large scale where these shells are sold to plastic re-processors and ground into plastic flake. This requires bottlers to replace these expensive items and defeats the environmental goal to reuse these items in the delivery of our products." California Retailers Association (CRA) states that in a slumping economy, organized retail crime has been on the rise causing retailers to do all that they can to minimize their losses. The theft of merchandise pallets is an ongoing problem and an area of potentially significant financial loss for CRA's members. With the increased value of resin, merchandise pallet theft has become a highly lucrative business for thieves. AB 1583 would serve as a deterrent to pallet thieves and would minimize the frequency of these crimes, according to CRA. Writing in support, Rockview Farms indicates that it purchases nearly 450,000 milk crates annually at a cost of more than $1.7 million, and police reports and investigations have found that milk crates and plastic pallets are stolen and sold illegally to junk dealers/recyclers who then grind the plastic containers into chips to be resold for a lesser price. Safeway Inc. states: "Theft of merchandise pallets has become a serious problem for Safeway. We manufacture and distribute our own products as well as operate retail facilities and have noticed that higher scrap values paid recyclers for he resins typically used in pallets is a major factor in these thefts. AB 1583 will ensure that Safeway will stop losing our property as it applies to all merchandise pallets, including our plastic and wood pallets." 5.Oppose Unless Amended. The California Chapters of the Institute of Scrap Recycling Industries (ISRI) has taken an "oppose unless amended" position on the bill. Although ISRI indicates that it supports many provisions in the bill, it believes that the proposed BPC § 21609.7 is unnecessary in that it is duplicative of current law. Specifically, ISRI points out that BPC §§ 22750 and 22755(b) provide "any person or entity purchasing plastic bulk merchandise containers, who is in the business of recycling, shredding, or destruction of plastic bulk merchandise containers, shall obtain a proof of ownership record from a person selling five or more plastic bulk merchandise containers that shows that the person selling the containers has lawful possession or ownership of the containers, and shall also verify the seller's identity by a driver's license or other government-issued photo identification." It further states AB 1583 Page 7 that "any person who violates the provisions of this section is guilty of a misdemeanor." ISRI argues that the duplicate provisions should be removed from the bill since the existing law relating to the purchasing of plastic bulk merchandise containers is clearly sufficient. ISRI further opposes the amendments to BPC § 21609.7(c) and 22755(c) which provide that payment may only be made by check and only after the third business day. ISRI points out that this requirement was established for the sale or purchase of non-ferrous metals (copper, aluminum, etc.). The Legislature imposed the requirement, which ISRI supported, because the theft of non-ferrous metals poses a health and safety issue. "However, the recycling of merchandise containers is not a health and safety issue it is a proof of ownership issue. If a recycler has an authorization letter or a contract with the owner of the merchandise containers, we believe payment of said containers should be left up to the parties at hand. Once that ownership has been established, why would the Legislature want to interject itself on a legitimate transaction?" As amended on June 15, 2012, AB 1583 deleted the payment provision in section 22755(c), but the same payment language is still found in section 21609.7(c), and ISRI would ask that it also be removed from the bill. Ultimately ISRI argues that the problem is not the sufficiency of the current law; it is the lack of judicial enforcement of the current law. "Simply stated, few local police agencies have the desire to redirect their scarce resources to enforce the merchandise container laws. This is not an issue of substantive law. This is an issue where dairy, bakery, and soft drink industries need to make sure the supermarkets in which their products are sold keep the merchandise containers in a secure location." SUPPORT AND OPPOSITION: Support: MillerCoors (Sponsor) California Beer and Beverage Distributors California Grocers Association California Nevada Soft Drink Association California Police Chiefs Association California Retailers Association Coca-Cola Refreshments AB 1583 Page 8 Dairy Institute Downey Distribution/Manufacturing Center of the Coca-Cola Bottling Company of Southern California Intelligent Global Pooling Systems Los Angeles County District Attorney's Office Los Angeles County Sheriff's Department Rockview Farms Safeway Inc. Oppose Unless Amended: California Chapters of the Institute of Scrap Recycling Industries Opposition: None on file as of June 20, 2012 Consultant:G. V. Ayers