BILL NUMBER: SB 646	AMENDED
	BILL TEXT

	AMENDED IN SENATE  APRIL 6, 2011

INTRODUCED BY   Senator Pavley

                        FEBRUARY 18, 2011

   An act to amend Section 25214.3 of the Health and Safety Code,
relating to toxics.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 646, as amended, Pavley. Toxics: enforcement: lead jewelry.
   Existing law prohibits, on and after March 1, 2008, the
manufacturing, shipping, selling, or offering for sale of jewelry, as
defined, for retail sale in the state, unless the jewelry is made
entirely from specified materials. Existing law also prohibits any
person, on or after September 1, 2007, from taking those actions with
regard to children's jewelry, as defined, unless the children's
jewelry is made entirely of specified materials.
   Existing law excludes a person who violates those prohibitions
from the criminal penalties otherwise imposed pursuant to the
hazardous waste control laws and instead provides that a person who
violates those prohibitions is liable for a civil penalty not to
exceed $2,500 per day for each violation. Existing law specifies that
a party that is a signatory to an amended consent judgment, or a
party to a consent judgment entered in a specified consolidation
action that contains certain terms is deemed to be in compliance with
those provisions. Existing law requires these collected civil
penalties to be deposited in the Hazardous Waste Control Account, for
expenditure by the Department of Toxic Substances Control, upon
appropriation by the Legislature, to implement and enforce those
prohibitions.
   This bill would  revise   delete  those
provisions  to specify   specifying  that a
party that is a signatory  as of January 1, 2012, 
to the above-described amended consent judgment, or consent judgment
enacted in a specified consolidation action  that contains
certain terms is deemed to be in compliance with those provisions
regulating the manufacturing, shipping, selling, or offering for sale
of lead jewelry   is deemed to be in compliance with
those provisions  .
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 25214.3 of the Health and Safety Code is
amended to read:
   25214.3.  (a) Except as provided in Sections 25214.3.3 and
25214.3.4, a person who violates this article shall not be subject to
criminal penalties imposed pursuant to this chapter and shall only
be subject to the administrative or civil penalty specified in
subdivision (b).
   (b) (1) A person who violates this article shall be liable for an
administrative or a civil penalty not to exceed two thousand five
hundred dollars ($2,500) per day for each violation. That
administrative or civil penalty may be assessed and recovered in an
administrative action filed with the Office of Administrative
Hearings or in a civil action brought in any court of competent
jurisdiction.
   (2) In assessing the amount of an administrative or a civil
penalty for a violation of this article, the presiding officer or the
court, as applicable, shall consider all of the following:
   (A) The nature and extent of the violation.
   (B) The number of, 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 article and the time these measures were taken.
   (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.
   (c) Administrative and civil penalties collected pursuant to this
article shall be deposited in the Toxic Substances Control Account,
for expenditure by the department, upon appropriation by the
Legislature, to implement and enforce this article, except as
provided in Section 25192. 
   (d) (1) Notwithstanding subdivision (b), a party that is a
signatory as of January 1, 2012, to the amended consent judgment, or
a party that is a signatory as of January 1, 2012, to a consent
judgment entered in the consolidated action entitled People vs.
Burlington Coat Factory Warehouse Corporation, et al. (Alameda
Superior Court Lead Case No. RG 04-162075) that contains identical or
substantially identical terms as provided in Sections 2, 3, and 4 of
the amended consent judgment, shall not be subject to enforcement
pursuant to this article, and an action brought to enforce this
article against the party shall be subject to Section 4 of the
amended consent judgment.  
   (2) The Legislature finds and declares that the amendment of this
subdivision by Chapter 575 of the Statutes of 2008 is declaratory of
existing law.  
   (e) 
    (d)  (1) For the purpose of administering and enforcing
this article, an authorized representative of the department, upon
obtaining consent or after obtaining an inspection warrant pursuant
to Title 13 (commencing with Section 1822.50) of Part 3 of the Code
of Civil Procedure, may, upon presenting appropriate credentials and
at a reasonable time, do any of the following:
   (A) Enter a factory, warehouse, or establishment where jewelry is
manufactured, packed, held, or sold; enter a vehicle that is being
used to transport, hold, or sell jewelry; or enter a place where
jewelry is being held or sold.
   (B) Inspect a factory, warehouse, establishment, vehicle, or place
described in subparagraph (A), and all pertinent equipment, raw
material, finished and unfinished materials, containers, and labeling
in the factory, warehouse, establishment, vehicle, or place. In the
case of a factory, warehouse, or establishment where jewelry is
manufactured, packed, held, or sold, this inspection shall include
any record, file, paper, process, control, and facility that has a
bearing on whether the jewelry is being manufactured, packed, held,
transported, sold, or offered for sale or for promotional purposes in
violation of this article.
   (2) (A) An authorized representative of the department may secure
a sample of jewelry when taking an action authorized pursuant to this
subdivision. If the representative obtains a sample prior to leaving
the premises, he or she shall leave a receipt describing the sample
obtained.
   (B) The department shall return, upon request, a sample that is
not destroyed during testing when the department no longer has any
purpose for retaining the sample.
   (C) A sample that is secured in compliance with this section and
found to be in compliance with this article that is destroyed during
testing shall be subject to a claim for reimbursement.
   (3) An authorized representative of the department shall have
access to all records of a carrier in commerce relating to the
movement in commerce of jewelry, or the holding of that jewelry
during or after the movement, and the quantity, shipper, and
consignee of the jewelry. A carrier shall not be subject to the other
provisions of this article by reason of its receipt, carriage,
holding, or delivery of jewelry in the usual course of business as a
carrier.
   (4) An authorized representative of the department shall be deemed
to have received implied consent to enter a retail establishment,
for purposes of this section, if the authorized representative enters
the location of that retail establishment where the public is
generally granted access.