BILL ANALYSIS �
SENATE GOVERNANCE & FINANCE COMMITTEE
Senator Lois Wolk, Chair
BILL NO: SB 450 HEARING: 5/8/13
AUTHOR: Galgiani FISCAL: No
VERSION: 5/1/13 TAX LEVY: No
CONSULTANT: Lui
LOCAL REGULATION OF COLLECTION BOXES
Requires a city or county, if it removes an unattended
collection box, to charge a box owner or operator for its
removal and storage costs.
Background and Existing Law
The California Constitution allows cities and counties to
adopt local police, sanitary, and other ordinances that
don't conflict with the state's general laws. Using this
power to regulate private behavior to achieve public goals,
cities and counties can adopt zoning ordinances. Some
local zoning ordinances require property owners to obtain
use permits for certain land uses.
For 50 years, state law has regulated how organizations
solicit and sell "salvageable personal property" by placing
boxes on public property, abutting public sidewalks or
streets, or in businesses open to the public. State law
allows cities and counties to impose additional
requirements on soliciting and selling salvageable personal
property (SB 928, McBride, 1959).
Charitable organizations collect salvageable property such
as clothes, books, and furniture for resale and
distribution to the poor. Some groups operate from
storefronts, while others collect goods from unattended
collection boxes. In 2011, the Legislature required owners
of unattended collection boxes to inform donors about where
their donations go. Boxes must display the name, address,
telephone number, and Internet Web address of the
collection box's owner and operator, plus a statement in
two-inch type that the collection box is owned by either a
for-profit or a nonprofit organization. If a nonprofit
organization owns the collection box, the box's front must
also display a statement describing the charitable cause
SB 450 -- 5/1/13 -- Page 2
that will benefit from the donations (AB 918, Adams, 2010).
Different state laws govern the circumstances under which
public officials and private property owners can tow
vehicles. "Public tows" occur when a peace officer, traffic
control officer, or parking control officer have a vehicle
towed in various circumstances, like when a vehicle impedes
traffic flow. Charges for the towing and storage related
to a public tow are set by the law enforcement agency that
requested the tow (AB 1589, Duvall, 2007). "Private
property tows" occur when private property owners have
vehicles towed when they are illegally or improperly parked
on their property, with specified conditions and procedures
in state law. Current law limits what a towing company can
charge for towing and storage to the rate approved by the
law enforcement agency or the California Highway Patrol's
approved rate for the towing company (AB 515, Hagman,
2009). For these types of tows, the towing company has a
lien against a vehicle for costs related to the towing,
storage, or labor.
State law defines a nuisance as anything that is injurious
to health, indecent or offensive to the senses, obstructs
the free use of property, or unlawfully obstructs free
passage. Counties and cities can adopt ordinances that
establish local procedures for abating nuisances (AB 2593,
Veysey, 1965) and can charge the property owner for any
costs to remove or abate a nuisance. Some charitable
organizations worry that property owners would be held
financially responsible for removing collection boxes that
were placed on their property without consent. The author
wants to require local governments to recover the costs for
removing and storing a collection box, from the box's owner
or operator.
Proposed Law
Senate Bill 450 requires a city or county that has adopted
a local ordinance regulating or permitting the placement of
unattended collection boxes, which includes a provision
that authorizes the city or county to remove a collection
box that is in violation of the ordinance, to impose a
charge on the collection box's owner or operator for the
reasonable costs of its removal and storage, if the county
SB 450 -- 5/1/13 -- Page 3
or city removes the collection box pursuant to the local
ordinance.
SB 450 requires a city or county that causes the removal of
a collection box to send a written notice of removal and
charge to the address displayed on the box, pursuant to
state law. The notice must be mailed five days before the
removal and must include the current location of the box.
The written notice requirement does not apply if no address
appears on the front of the box.
SB 450 authorizes a city or county, if the collection box's
owner or operator does not pay the reasonable costs of
removal and storage to the city or county, to sell the
collection box and its contents and dispose of it in any
other manner.
State Revenue Impact
No estimate.
Comments
1. Purpose of the bill . Existing law regulates
information displayed on a collection box. It does not
address the problem of box operators placing unattended
boxes on private property without first obtaining a
property owner's consent.
SB 450's proponents point to a recent surge of unattended
collection boxes placed on private property, and worry that
property owners have no recourse to remove the unwanted
boxes. When property owners call a city or county
enforcement line, a city or county may not prioritize
abating these collection boxes. If they do, a property
owner may be responsible for the costs of abating the box.
SB 450 requires a local government, that has adopted an
ordinance regulating the placement of these unattended
collection boxes, to charge a box owner or operator for the
cost of a county or city removing or storing the box. At a
time when a city or county may not be able to afford or may
not prioritize public nuisance and abatement enforcement
activities, SB 450 allows local governments to remove and
SB 450 -- 5/1/13 -- Page 4
store these boxes at the box operator's expense.
2. Local authority . Local officials already have the
authority to regulate collection boxes through zoning
enforcement, trespass laws, and nuisance statutes. Charter
cities can constitutionally control their own "municipal
affairs," including permit programs for collection boxes.
The proliferation of unwanted collection boxes reflects
local enforcement priorities, not flaws in state statutes
concerning nuisance and abatement laws. It is unknown how
many California cities and counties have adopted collection
box ordinances. Is statutory intervention justified when
local jurisdictions that have already exercised discretion
in adopting these ordinances can amend those same
ordinances to address local needs?
3. Implementation issues . SB 450's provisions appear to
replicate state laws governing vehicle abatement and
towing, but the bill omits key provisions, which could
complicate implementation and lead to unintended
consequences. In the case of vehicle tows, a towing
company can take a lien against the vehicle for related
towing, storage, and labor costs. Proponents of the bill
estimate the value of a collection box around $2,000 to
$3,000. It is unclear whether a towing company would find
enough value in a box and its contents to place a lien.
The Committee may wish to consider whether the boxes have
any inherent value to justify a change in law.
Further, unlike state laws governing vehicle tows, SB 450
does not specify:
A notice of removal and indication to where the
item has been moved;
Specified responsibilities of a tow truck operator
removing the item from private property;
Towing and storage charges and rates;
The authorization to inspect the box at the storage
yard; or,
An itemized invoice of charges to the owner, or to
his or her agent.
The Committee may wish to consider amending the bill to
fill in these blanks.
4. Due process . Under the State Constitution, when a
government takes private property, it cannot do so without
due process. SB 450 does not address the length of time a
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city or county must wait before it can sell or dispose of a
box. The bill also does not specify if the written notice
is to be mailed five calendar days or five business days
prior to a box's removal. SB 450 is silent on due process
procedures that would allow a box owner or operator to
contest towing and storage charges. The Committee may wish
to recommend including due process procedures in the bill's
next policy committee, Senate Judiciary.
5. Inconsistencies . SB 450 requires a city or county to
charge a box's owner or operator the reasonable costs of a
collection box's removal and storage, if the county or city
removes the box pursuant to the local ordinance. But, the
bill also contains language that reads a "city or county
that causes the removal," indicating the potential for a
city to contract with a private towing company to remove
the collection box. If a towing company -- not the city or
county -- removes the box, can the local government still
recover its costs from the box operator? The Committee may
wish to clarify what entity is responsible for physically
removing the box and if that entity is authorized to
recover its costs.
6. Market shares . Charities, charitable fundraisers, and
for-profit companies compete for donations of clothes,
books, furniture, and other salvageable property. If a
local government has adopted an ordinance that contains a
provision authorizing a city or county to remove a
collection box, SB 450 could facilitate the ease of towing
a competitor's collection box, if a charity asked a
property owner for exclusive access to private property.
An unintended consequence of SB 450 may be to heighten
competition among charitable sector organizations.
7. What's mine isn't yours . To protect donations and
ensure that the charitable donations are not misapplied or
squandered through fraud, the Attorney General's Office
regulates charities and professional fundraisers, who
solicit on their behalf, by administering the Registry of
Charitable Trusts. Attorneys and auditors of the
Charitable Trusts Section also investigate and bring legal
action against charities that misuse charitable assets.
Once an individual donates an item to an organization's
unattended collection box, the item becomes a charitable
asset and the organization's property. If a city or county
removes a box, the Attorney General may no longer be able
SB 450 -- 5/1/13 -- Page 6
to establish direct ownership of the box, which compromises
the disposition of charitable assets. By authorizing a
city or county to sell or dispose of the box's contents in
any manner, the bill directly contradicts the Attorney
General's practice in establishing chain of ownership of a
charitable asset. Further, the city can't sell a donated
good because it has been legally donated to a specific
program or organization. Because disposing of the box's
contents may be considered misuse of charitable assets, SB
450 may place these charities in jeopardy of litigation.
8. Legislative history . SB 450 is not the first bill
addressing unattended collection boxes.
AB 1978 (2011) would have required a person to
obtain a private property owner's written consent
before a collection box is placed or maintained on
that property. The bill would have provided liability
immunity to property owners who remove a collection
box. Governor Brown vetoed the bill, citing concerns
for unintended consequences to local charities and
nonprofits.
AB 2610 (Davis, 2008) tackled the problems posed by
unattended collection boxes with a combination of
state standards, local enforcement, and defined
penalties. Governor Schwarzenegger vetoed the bill,
saying that it was not a priority.
9. Double-referred . Senate Rules Committee has ordered a
double referral of SB 450 to the Senate Judiciary
Committee.
Support and Opposition (5/2/13)
Support : Goodwill Industries of San Joaquin Valley, Inc.;
Andreini & Company; Caught in the Moment Photography;
California Association of Realtors; California Retailers
Association; California Waste Recovery Systems, LLC; Cities
of Manteca, Patterson, Riverbank, Sacramento, Stockton, and
Waterford; City of Manteca Mayor Willie W. Weatherford;
City of Stockton Council Member Moses Zapien; Council of
California Goodwill Industries; Croce & Company; County of
Sacramento; Goodwill Industries of the Greater East Bay;
Good Industries of the Redwood Empire; Goodwill Industries
of Sacramento Valley & Northern Nevada, Inc.; Goodwill
Industries of San Diego County; Goodwill Industries of San
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Francisco, San Mateo, and Marin Counties; Goodwill
Industries of Santa Cruz, Monterey & San Luis Obispo
Counties; Goodwill of Orange County; Goodwill Serving the
People of Southern Los Angeles County; Goodwill Southern
California; Greater Stockton Chamber of Commerce; Gregory
D. Bynum and Associates, Inc.; Grupe Commercial Company; HR
NETwork, Inc.; Keegan & Coppin Real Estate; Long Beach Area
Chamber of Commerce; New Directions Alcohol and Drug
Awareness Programs; New Image Emergency Shelter for the
Homeless, Inc.; Power Marketing; Robert Ellis Leasing &
Investment, Inc.; SCL Company; VERVE Networks; 10
individuals.
Opposition : 7th Generation Recycling; AIDS Healthcare
Foundation; American Textile Recycling Services; The
Bargain; California Narcotics Officers' Association;
California Police Chiefs Association; Cigarettes & 98 Cts.
Mart; Cottonwood Food & Gas; County of Los Angeles;
D.A.R.E. America; EJ Automotive; Express Mart; Gaia
Movement USA; Leaning Tree; Northern California Recycling
Association; Planet Aid, Inc.; Secondary Materials and
Recycled Textiles (SMART); South Port Deli; St. John's
School; USAgain, LLC; Village Food Mart; 200 individuals.