BILL ANALYSIS Ó
SB 1045
Page 1
SENATE THIRD READING
SB 1045 (Emmerson)
As Amended August 16, 2012
Majority vote
SENATE VOTE :37-0
JUDICIARY 10-0
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|Ayes:|Feuer, Wagner, Atkins, | | |
| |Dickinson, Gorell, Huber, | | |
| |Jones, Monning, | | |
| |Wieckowski, Chesbro | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Establishes civil liability upon junk dealers and
recyclers for the possession of specified metal fixtures owned
by a public agency. Specifically, this bill :
1)Provides that any junk dealer or recycler who possesses a fire
hydrant, fire department connection (including brass fittings
and parts), manhole cover or lid, or backflow device or
connection to that device (collectively, "prohibited metal
items") without a written certification from the agency or
utility owning or previously owning the material, shall be
liable to the agency or utility for the wrongful possession of
that material, except as provided.
2)Provides that the above written certification shall be on the
agency's or utility's letterhead and shall certify both that
the agency or utility has sold the material described or is
offering the material for sale, salvage, or recycling, and
that the person possessing the certification or identified in
the certification is authorized to negotiate the sale of that
material.
3)Requires a junk dealer or recycler to notify the appropriate
law enforcement agency by the end of the next business day
upon discovery that he or she has unknowingly taken possession
of any prohibited metal items as part of a load of otherwise
non-prohibited materials without the written certification
required by this bill.
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4)Provides that written confirmation, as defined, of notice to
the appropriate law enforcement agency shall relieve the junk
dealer or recycler of liability to the public utility or other
agency for the possession of prohibited metal items owned or
previously owned by the utility or agency.
5)Provides that the liability of the junk dealer or recycler for
wrongful possession is for the actual damages incurred by the
agency or utility, including the value of the material, the
cost of replacing the material, labor costs, and the costs of
repairing any damage caused by the removal of the material.
Further requires an award of exemplary damages of three times
the actual damages incurred by the agency or utility, unless
the court decides that extenuating circumstances do not
justify such an award.
6)Establishes that nothing in this act is intended to create a
basis for liability on the part of a junk dealer or recycler
to third parties for damages or injuries arising from the
theft of prohibited metal items, as specified above.
7)Make specified legislative findings, including, among other
things, that theft of fire hydrants, manhole covers, and
backflow devices has significantly increased in recent years
and represents very substantial health and safety issues.
EXISTING LAW :
1)Defines "junk" as any and all secondhand and used machinery
and all ferrous and nonferrous scrap metals and alloys,
including any and all secondhand and used furniture, pallets,
or other personal property, other than livestock, or parts or
portions thereof.
2)Defines "junk dealer" as any person engaged in the business of
buying, selling and dealing in junk, any person purchasing,
gathering, collecting, soliciting or traveling about from
place to place procuring junk, and any person operating,
carrying on, conducting or maintaining a junk yard or place
where junk is gathered together and stored or kept for
shipment, sale or transfer.
3)Requires junk dealers and recyclers to keep a written record
of all sales and purchases made in the course of his or her
business, and preserve such records for at least two years
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after making the final entry of purchase or sale of junk, with
failure to comply punishable as a misdemeanor.
4)Requires junk dealers and recyclers to specify certain
information in the written record, including:
a) A description of the item or items of junk purchased or
sold, including the item type and quantity, and
identification number, if visible.
b) 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 the junk from, as shown on a signed transfer
document.
5)Requires junk dealers and recyclers to report the information
in the written record to the chief of police or the sheriff on
a daily basis or on the first working day after receipt or
purchase of the junk, as specified.
FISCAL EFFECT : None
COMMENTS : This bill seeks to establish specified civil
liability for junk dealers or recyclers for possession of a fire
hydrant, fire department connection, manhole cover, or backflow
device-all of which are metal fixtures typically owned by public
utilities or agencies that potentially pose public health or
safety concerns if stolen or improperly removed. According to
the author:
Metal theft has devastated both public and private
property and has harmed critical public
infrastructure, making it difficult to deliver
essential utilities to customers. Moreover, the theft
of certain metal devices can seriously threaten public
health and safety. While several laws have been
enacted to curb metal theft, it is still prevalent
throughout California. SB 1045 seeks to address the
metal theft epidemic and provide cities, counties,
special districts and private utility companies with
the tools they need to recover costs and impose stiff
civil penalties on thieves and recyclers who violate
the law.
This bill focuses on deterring the theft of three particular
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metal items that protect public safety: fire hydrants and
connections, manhole covers, and backflow devices. As explained
by the Irvine Ranch Water District in its letter of support:
These are large, easily identifiable items that
typically are not found in possession by a member of
the general public. Individuals have been severely
injured falling down manholes where the cover was
stolen. Automobiles have been damaged driving over
open manholes. Stolen backflow devices leave potable
water sources vulnerable to cross-contamination, and
stolen fire hydrants render properties defenseless to
fire. Additionally, the act of stealing these items
often results in significant damage to both the public
and private properties from which these articles are
stolen.
Under this bill, a junk dealer or recycler who possesses one of
these specified metal items is liable for wrongful possession
only if the proper written certification from the agency or
utility that owns or previously owned the material was not
obtained. The bill requires the written certification to be on
the agency's or utility's letterhead and that it specify both
that: 1) the agency or utility has sold the material described
or is offering the material for sale, salvage, or recycling; and
2) that the person possessing the certification or identified in
the certification is authorized to negotiate the sale of that
material. This requirement is intended to relieve a junk dealer
or recycler from the responsibility of determining whether a
particular item in question is stolen or not because such items
will simply not be eligible for recycling without the required
certification.
As recently amended, the bill further clarifies the
responsibilities of a junk dealer or recycler who discovers that
he or she has unknowingly taken possession of a prohibited metal
items as part of a load of otherwise non-prohibited materials
without the written certification required by this bill. In
that case, the bill requires the junk dealer or recycler upon
discovery of its possession of such items to notify the
appropriate law enforcement agency of that fact by the end of
the next business day. The bill provides that after written
confirmation of the notice is received from law enforcement, the
junk dealer or recycler shall then be relieved of liability to
the public utility or other agency for the possession of those
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prohibited metal items owned or previously owned by the utility
or agency.
Under this bill, a junk dealer or recycler in violation of these
provisions would be liable to the agency or utility owning or
previously owning the prohibited material for actual damages
incurred by the agency or utility, including the value of the
material, the cost of replacing the material, labor costs, and
the costs of repairing any damage caused by the removal of the
material. The award of actual damages is directed at making the
agency or utility whole again by compensating it for its losses.
On the other hand, the bill allows for the award of exemplary
(i.e., punitive) damages in the amount of three times the actual
damages incurred by the agency or utility, unless the court
decides that extenuating circumstances do not justify such an
award. This preserves some discretion to be exercised by the
court to withhold exemplary damages in cases where, for example,
the court finds the junk dealer or recycler took exceptional
steps to comply and should not be punished despite a violation
having occurred. The availability of exemplary damages should
provide a strong disincentive to junk dealers and recyclers to
complete a sale for the prohibited items under this bill when
there is any doubt about the legitimate right of the seller to
possess such items as evidenced by the required written
certificate.
The bill also clarifies that nothing in this act is intended to
create a basis for liability on the part of a junk dealer or
recycler to third parties for damages or injuries arising from
the theft of prohibited metal items.
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334
FN: 0004919