BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON
          BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT
                              Senator Jerry Hill, Chair
                                2015 - 2016  Regular 

          Bill No:            AB 236          Hearing Date:    June 15,  
          2015
           ----------------------------------------------------------------- 
          |Author:   |Lackey                                                |
          |----------+------------------------------------------------------|
          |Version:  |April 15, 2015                                        |
           ----------------------------------------------------------------- 
           ---------------------------------------------------------------- 
          |Urgency:  |No                     |Fiscal:    |Yes              |
           ---------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Consultant|Mark Mendoza                                          |
          |:         |                                                      |
           ----------------------------------------------------------------- 
          
           Subject:  Weighmasters: exemptions: pawnbrokers and secondhand  
                                      dealers.


          SUMMARY:  Adds pawnbrokers and secondhand dealers to the list of persons  
          who are not weighmasters and makes other technical changes.

          Existing law:
          
          1) Defines a "weighmaster" to mean any person who, for hire or  
             otherwise, weighs, measures, or counts any commodity and  
             issues a statement or memorandum of the weight, measure or  
             count which is used as the basis for either the purchase or  
             sale of that commodity or charge for service.  (Business and  
             Professions Code (BPC) BPC § 12700)

          2) Specifies that the following persons are  not  weighmasters:   
             (BPC § 12701) 

                  a)        Retailers weighing, measuring or counting  
                    commodities for sale by them in retail stores directly  
                    to consumers;

                  b)        Producers of agriculture commodities or  
                    livestock, as specified, when no charge is made for  
                    the weighing, or when no signed or initiated statement  
                    or memorandum is issued of the weight upon which a  
                    purchase or sale of the commodity is based; 








          AB 236 (Lackey)                                         Page 2  
          of ?
          
          
                  c)        Common carriers issuing bills of lading, as  
                    specified;

                  d)        Milk samplers and weighers, as specified;

                  e)        Persons who measure the amount of oil, gas, or  
                    other fuels for purposes of royalty computation and  
                    payment, or other operations of fuel and oil companies  
                    and their retail outlets;

                  f)        Newspaper publishers weighing or counting  
                    newspapers for sale to dealers or distributors;

                  g)        Textile maintenance establishments, as  
                    specified;

                  h)        County sanitation districts; as specified;

                  i)        Facilities that handle medical waste, as  
                    specified;

                  j)        Persons who purchase scrap metal or salvage  
                    materials pursuant to a nonprofit recycling program,  
                    as specified;

                  aa)       Licensed pest control operators; 

                  bb)       Retailers or recycling centers established  
                    solely for the redemption of empty beverage  
                    containers; as defined in the Public Resources Code,  
                    as specified; and,

                  cc)       Any log scaler who performs log scaling  
                    functions, as specified.  


          3) Requires an applicant for a weighmaster's license, who is a  
             recycler or junk dealer, as specified, or performing services  
             on behalf of a recycler or junk dealer, to pay additional  
             licensing fees to the California Department of Food and  
             Agriculture (CDFA), as specified.  (BPC § 12704)


          4) Defines a "secondhand dealer" to mean "any person,  








          AB 236 (Lackey)                                         Page 3  
          of ?
          
          
             co-partnership, firm, or corporation whose business includes  
             buying, selling, trading, taking in pawn, accepting for sale  
             on consignment, accepting for auctioning, or auctioning  
             secondhand tangible personal property," and specifies that a  
             "secondhand dealer" does not include a coin dealer or  
             participant at gun shows or events, as specified.  (BPC §  
             21626 (a))


          5) Specifies that "secondhand dealers" are not persons who  
             perform the services of an auctioneer for a fee or salary, or  
             persons whose business is limited to the reconditioning and  
             selling of major household appliances, as long as specified  
             conditions are met.  (BPC § 21626.5)


          6) Provides that "tangible personal property" includes, but is  
             not limited to, all secondhand tangible personal property  
             which bears a serial number or personalized initials or  
             inscription or which, at the time it is acquired by the  
             secondhand dealer, bears evidence of having had a serial  
             number or personalized initials or inscription. (BPC §  
             21627(a)).


          7) Defines a pawnbroker as "every person engaged in the business  
             of receiving goods, including motor vehicles, in pledge as  
             security for a loan." (Financial Code § 21000). 


          This bill:

          1) Specifies that a pawnbroker or secondhand dealer, who is  
             weighing property that is acquired and reports the  
             acquisition of the property as specified, is not a  
             weighmaster. 

          2) Clarifies that the weighmaster's requirements for junk  
             dealers and recyclers do not apply to pawnbrokers.

          3) States the intent of the Legislature is to clarify that  
             licensed pawnbrokers and secondhand dealers are not  
             weighmasters and declares that the clarification is necessary  
             based on the California Department of Food and Agriculture's  








          AB 236 (Lackey)                                         Page 4  
          of ?
          
          
             (CDFA) administrative interpretation of  SB 485  (Calderon,  
             Chapter 518, Statutes of 2013), placing pawnbrokers and  
             secondhand dealers within the meaning of weighmasters.

          
          FISCAL  
          EFFECT:  This bill is keyed "fiscal" by Legislative Counsel.   
          According to the Assembly Appropriations Committee: 

                 Minor and absorbable costs to the CDFA.


          
          COMMENTS:
          
          1. Purpose.  This bill is sponsored by the  California  
             Pawnbroker's Association  .  According to the Author, this bill  
             "simply clarifies that the fee created by SB 485 (Calderon,  
             Chapter 518 Statutes of 2013) does not apply to pawnbrokers.   
             SB 485 was passed in 2013 as a measure to help increase  
             compliance with metal theft laws.  Scrap metal recyclers  
             agreed to assess a new $500 fee on their weighmaster permit  
             in order to improve enforcement.  In 2014, several  
             pawnbrokers in the Los Angeles area were told that they must  
             become weighmasters and pay the fee despite SB 485's intent  
             being clear that it only applied to scrap metal dealers.   
             [This bill] explicitly exempts pawnbrokers from being  
             considered a weighmaster.  This is appropriate because  
             pawnbrokers do not deal with commodities exclusively priced  
             by weight.  Instead the value of products they purchase is  
             based on a variety of factors.  This bill prevents  
             pawnbrokers around California from unnecessarily being  
             charged a $500 fee to fund improved compliance with metal  
             theft laws-something that could violate Prop 26's provisions  
             because pawnbrokers have nothing to do with metal theft."

          2. Background.   According to the sponsor, those individuals  
             involved in pawnbroking or secondhand dealing typically do  
             not conduct transactions which require the use of a scale;  
             yet, the Author and sponsor state that recently pawnbrokers  
             have been required by the CDFA to obtain a weighmaster's  
             license.  The sponsor contends that pawnbrokers loan money on  
             an item based on several criteria and not solely on the  
             factor of the weight alone.  Further, to clarify that if a  








          AB 236 (Lackey)                                         Page 5  
          of ?
          
          
             pawnbroker were using a scale for the valuation of  
             commodities and needed an additional weighmasters license, he  
             or she would not be required to pay the additional fee which  
             is currently required for junk dealers and recyclers under  
             BPC § 12704(b), as a result of 
          SB 485.

             BPC § 21625 specifies the intent of the Legislature in  
             establishing the provisions for secondhand dealers was to  
             help curtail the dissemination of stolen property and help  
             facilitate the recovery of stolen property through a  
             statewide, uniform reporting system.  Every secondhand  
             dealer, including pawnbrokers, are required to report daily  
             or on the first working day after the purchase of property to  
             the Department of Justice (DOJ).  The reporting helps law  
             enforcement track and monitor items of high crimes as  
             determined by the DOJ in an effort to prevent stolen property  
             from being sold between secondhand dealers or taken in pawn.   


             The regulation of weighmasters is found in a separate section  
             of the BPC.  Weighmasters weigh, measure, or count any  
             commodity and issue a statement or memorandum of the weight,  
             measure or count which is used as the basis for either the  
             purchase or sale of that commodity or charge for service.   
             Weighmasters, include those individuals who are junk dealers  
             and recyclers who typically buy recycled "junk" including all  
             ferrous and nonferrous scrap materials.    

             Unlike pawnbrokers and secondhand dealers, junk dealers  
             typically base the value of their items on the weight of the  
             commodity and are therefore subject to the provisions  
             requiring a weighmaster's license.  Under current law,  
             pawnbrokers are specifically exempt from the laws regulating  
             junk dealers and recyclers, however, they are not exempt from  
             the weighmasters law.  This bill seeks to clarify that  
             pawnbrokers and secondhand dealers, while conducting  
             transactions with a scale and holding and reporting property  
             as required, are not required to obtain a weighmaster's  
             license when performing those duties for which they are  
             licensed.

          3. Pawnbrokers and Secondhand Dealers.  A secondhand dealer  
             includes a person, business or corporation whose main purpose  








          AB 236 (Lackey)                                         Page 6  
          of ?
          
          
             is to buy, sell, trade, take in pawn, accept for sale on  
             consignment, or accept for auction, secondhand tangible  
             personal property.  Current law specifically exempts certain  
             individuals from the definition of a secondhand dealer,  
             including coin dealers, certain auctioneers and certain  
             appliance repair persons.  According to the National  
             Pawnbrokers Association, the core of a pawn store's business  
             is making collateral loans by securing something of value.   
             The pawn store may have other business elements such as  
             retail sales.  However, pawnbrokers focus on lending money.   
             Customers bring in an item of value, and the pawnbroker  
             offers a loan based on a percentage of the item's estimated  
             value.  The pawnbroker then keeps the item until the customer  
             repays the loan with interest and any additional fees that  
             may apply.  Pawn stores are regulated on a federal, state,  
             and local level.  On average, customers receive only a  
             portion of the item's retail value. The average loan amount  
             nationally is $150.  The sponsors of this bill contend that  
             pawnbrokers typically value the item based on several factors  
             and not weight alone.

          4. Pawn Broker and Secondhand Dealer Transactions.  Traditional  
             pawn and secondhand dealer transactions typically take place  
             through face-to-face encounters where applicable state and  
             local laws can apply, such as California's 30-day hold  
             requirement.  In 2012,  AB 391  (Pan, Chapter 172, Statutes of  
             2012), was enacted and established a new requirement that  
             secondhand dealers and pawnbrokers electronically report to  
             the DOJ all secondhand tangible property which has been  
             purchased, taken in trade, taken in pawn, accepted for sale  
             on consignment or accepted for auctioning.  The new  
             electronic database is in the process of development. 

          5. Weighmasters.  Enforcement of California's weights and  
             measures laws and regulations is the responsibility of the  
             Division of Measurement Standards (DMS) under the CDFA.   
             Weights and measures officials have the authority to issue  
             citations for misdemeanor and infraction violations involving  
             weights and measures laws.  The CDFA is authorized to inspect  
             all weighmasters, including those of junk dealers and  
             recyclers, to ensure compliance with recordkeeping and  
             reporting requirements with relation to the issuance of  
             weighmaster certificates.  According to the CDFA, most  
             pawnbrokers are not required to obtain a weighmaster's  








          AB 236 (Lackey)                                         Page 7  
          of ?
          
          
             certificate unless they are conducting business services  
             which require a weighmaster's license.  The sponsor notes  
             that the majority of pawnbroking businesses do not overlap  
             with the requirements that would trigger a weighmaster's  
             license. 

             In 2013, SB 485 increased the amount of information that must  
             be provided by a junk dealer or recycler on an application  
             for a new weighmaster's license or renewal in order to  
             provide both the CDFA and the county sealers with better  
             information to determine if a junk dealer or recycler  
             business is operating a legitimate business.  

             The current license fee a weighmaster is required to pay to  
             the CDFA for each license year, depending on location, is:  
             $75 for a weighmaster operating at a fixed location; $30 for  
             each additional fixed location; and $200 if the weighmaster  
             is operating at other than a fixed location.  SB 485 enhanced  
             that fee by requiring a junk dealer or recycler to pay an  
             additional $500 fee for each fixed location or other location  
             where it operates to cover costs associated with the  
             investigative work performed by the DMS to review the  
             additional material submitted on the application for a  
             weighmaster's license or renewal.  

             The Author and sponsor explain that the pawnbrokers and  
             secondhand dealers are being required to pay the additional  
             $500 fee which was established for junk dealers.  BPC § 21603  
             explicitly states that pawnbrokers are not junk dealers.   
             This bill would explicitly exempt pawnbrokers from the  
             additional $500 fee - which was specifically required for  
             junk dealers and recyclers. 

          6. Related Legislation.   AB 632  (Eggman) of the current  
             legislative session, permits a secondhand dealer or  
             pawnbroker to submit the International Mobile Station  
             Equipment Identity (IMEI) or the mobile equipment identifier  
             (MEID) or other unique number assigned to a handheld  
             electronic device in lieu of the serial number for reporting  
             purposes and defines a "handheld electronic device".   
             (  Status:  This bill is currently referred to the Senate  
             Committee on Business, Professions and Economic Development).

              ACR 101  (Jones-Sawyer, Chapter 154, Statutes of 2014),  








          AB 236 (Lackey)                                         Page 8  
          of ?
          
          
             requested the DOJ convene stakeholder meetings in 2014 with  
             representatives from law enforcement, prosecutors, the  
             secondhand dealer and pawnbroker industry, and interested  
             members of the public to identify changes in current law  
             which would allow secondhand dealers and pawnbrokers to  
             conduct Internet-based business.  
             
              SB 485  (Calderon, Chapter 518, Statutes of 2013), required a  
             junk dealer or recycler to submit additional information  
             regarding its junk dealer business to the CDFA when applying  
             for a weighmaster's license or a renewal license; required  
             the CDFA to complete an investigation of the information on  
             the application or renewal within a specified period of time  
             and revoke the license if the information submitted in the  
             application or renewal is materially inaccurate; increases  
             the fees that junk dealers or recyclers pay for each fixed  
             location; and sunsets these provisions on January 1, 2019.  

              SB 757  (Berryhill) of 2013, would have made conforming  
             changes to authorize a junk dealer or recycler buying  
             newspaper or California Redemption Value (CRV) containers, as  
             specified, to accept as valid seller identification a  
             passport from any country or a Matricula Consular issued by  
             Mexico.  It also specified that the term "secondhand dealer"  
             did not include a junk dealer.  (  Status  : This bill was  
             amended to address an unrelated issue: Groundwater  
             management).

              AB 909  (Gray) of 2013, would have required the Board of State  
             and Community Corrections to establish the Metal Theft Task  
             Force Program to provide, evaluate and monitor grants  
             disbursed to enhance the capacity of local law enforcement  
             and prosecutors to deter, investigate, and prosecute metal  
             theft and related metal theft crimes.  (  Status:  This bill was  
             vetoed by Governor Brown). 

              AB 841  (Torres) of 2013, would have required junk dealers and  
             recyclers to provide payment to sellers of nonferrous  
             material by mailed check only, as specified.  (  Status  : This  
             bill was vetoed by Governor Brown.  In the Governor's veto  
             message he stated that "he signed four bills last year to  
             prevent more theft?What's really missing today is robust  
             enforcement of our laws.")









          AB 236 (Lackey)                                         Page 9  
          of ?
          
          
              AB 316  (Carter, Chapter 317, Statutes of 2011), provided that  
             every person who steals, takes, or carries away copper  
             materials which are of a value exceeding $950 is guilty of  
             grand theft, punishable by a fine not exceeding $2,500,  
             imprisonment in a county jail not exceeding one year, or by  
             both that fine and imprisonment, or by imprisonment in a  
             county jail or the state prison not exceeding 16 months, or 2  
             or 3 years and a fine not to exceed $10,000, as specified.

              AB 1778  (Ma, Chapter 733, Statutes of 2009), required  
             recyclers to obtain identifying information of individuals  
             who bring in more than $50 worth of CRV recyclables and  
             newspapers.  AB 1778 also required that payments of $50 or  
             more be made by check.

              SB 447  (Maldonado, Chapter 732, Statutes of 2008), required  
             scrap metal dealers and recyclers to report what materials  
             are being scraped at their facilities and by whom on a daily  
             basis.

              AB 844  (Berryhill, Chapter 731, Statutes of 2008), required  
             recyclers to hold payment for three days, check a photo ID,  
             and take a thumbprint of anyone selling scrap metals.  Also  
             required any person convicted of metal theft to pay  
             restitution for the materials stolen and for any collateral  
             damage caused during the theft.

              SB 691  (Calderon, Chapter 730, Statutes of 2008), required  
             junk dealers and recyclers to take thumbprints of individuals  
             selling copper, copper alloys, aluminum, and stainless steel.  
              The bill also required sellers to show a government  
             identification (ID) and proof of their current address.   
             Recyclers who violated the law faced suspension or revocation  
             of their business license and increased fines and jail time.

          7. Arguments in Support.   The California Pawnbroker's  
             Association   is the sponsor of this measure and writes that  
             "pawnbrokers are not commodity dealers, recyclers, or junk  
             dealers; we loan money on a multitude of factors other than  
             metal weights and we already report to DOJ all reportable  
             transactions and pay a large biannual fee to do so." 

              West Coast Chapter of the Institute of Scrap Recycling  
             Industries, Inc.  argues that "SB 485 [Calderon, 2013] was  








          AB 236 (Lackey)                                         Page 10  
          of ?
          
          
             never intended to encompass secondhand dealers or pawn  
             brokers as it is being interpreted by the Department of Food  
             and Agriculture.  AB 236 clarifies this misinterpretation of  
             the law."
          

          SUPPORT AND OPPOSITION:
          
           Support:  

          California Pawnbroker's Association (Sponsor)
          West Coast Chapter of the Institute of Scrap Recycling  
          Industries, Inc. 

           Opposition:  

          None on file as of June 9, 2015. 


                                      -- END --