BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 1107 (Irwin)
          Version: April 8, 2015
          Hearing Date: July 7, 2015
          Fiscal: Yes
          Urgency: No
          BCP


                                        SUBJECT
                                           
                           Sellers of travel:  regulation

                                      DESCRIPTION  

          Existing law regulates sellers of travel, as defined, and  
          requires their registration with the Attorney General.  Existing  
          law requires a seller of travel to deposit sums received from  
          any person or entity into a trust account, as specified, and  
          requires the seller of travel to file with the Attorney General  
          an agreement allowing the Attorney General, a district attorney,  
          or their representative to examine and obtain copies of all  
          business records, including, but not limited to, those related  
          to the trust account.

          This bill would require a seller of travel to maintain all  
          business records for a minimum period of three years.  The bill  
          would also authorize the Attorney General to maintain an action  
          for recovery of examination costs and expenses in any court of  
          competent jurisdiction, as specified.  The bill would require  
          the seller of travel to pay for costs and expenses for any  
          examination if the Attorney General bills the seller of travel,  
          provided that the examination shows that the seller of travel  
          has failed to comply with certain requirements.

          This bill would require assessments from the Travel Consumer  
          Restitution Corporation to be due 45 days from the date the bill  
          for that assessment is sent to the seller of travel.

                                      BACKGROUND  









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          Under existing law, the Seller of Travel Act (Act), all sellers  
          of travel must register with the Attorney General's (AG's)  
          Office and display that registration number on all advertising.   
          The AG notes that "[w]hile not assuring that a company is  
          reputable, a valid registration signals that the seller of  
          travel has at least followed the law to be registered." (Office  
          of Atty. Gen., SELLER OF TRAVEL (https://oag.ca.gov/travel [as  
          of June 30, 2015].)  Furthermore, the AG provides the following  
          information to consumers about the protections provided by the  
          Act:

            Registration - All sellers of travel must register with the  
            Attorney General's Office, Seller of Travel Program, before  
            they can operate lawfully within the State of California or  
            market to persons, businesses, or retail vendors located  
            within the state.  Registration requires, among other  
            things, disclosure by the seller of business addresses,  
            fictitious business names (dba's) used, identifying  
            information as to principals and owners, relationship with  
            the airlines, the location of a trust account or information  
            about a surety bond (if one of these protections is  
            required).  Registration is not the same as licensing which  
            usually involves some review and approval.  So long as the  
            seller discloses the necessary information in its  
            application, a registration number will be issued to the  
            applicant.  However, in the event a seller does not provide  
            the tickets or lodging, and the purchaser is having  
            difficulty locating that seller, information in the  
            registration file will assist in determining who actually  
            made the sale.  One of the purposes of registration is to  
            have sufficient information about both reputable and crooked  
            sellers to be able to locate them should anything go wrong.

            The registration number must be clearly and conspicuously  
            displayed by the seller of travel on all advertising  
            materials including newspaper advertisements, flyers,  
            mailers, television and radio broadcasts, faxes, and  
            websites.

            When first contacting a seller, ask for the registration  
            number and expiration date of that seller's current  
            registration.  Registration is good for one year and must be  
            renewed annually.  Do not deal with any seller who does not  
            disclose its registration number in advertising materials,  
            or who declines to tell you the number and expiration date.   







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            While registration does not mean that the seller is  
            reputable, you should avoid any seller who has not taken  
            those simple safeguards required by law to protect your  
            payments, as revealed in its application for registration to  
            the Attorney General's Office.

            Keeping payment in trust - Some sellers of travel are  
            required to deposit all payments received into a trust  
            account or to obtain a surety bond on behalf of their  
            customers.  Others are not required to maintain either a  
            trust account or post a bond.  All sellers, however, who  
            receive a payment from one passenger may not use that money  
            to buy travel on behalf of another passenger or to pay for  
            rent, overhead, or any personal use, until such time as it  
            has delivered to you the goods and services that you have  
            purchased.

            If a seller tells you that it is not able to obtain travel  
            that you have purchased because your payment has been spent  
            on some other trip, or for business or personal purposes,  
            immediately contact the police, your local District  
            Attorney, or the Attorney General's office.  Such taking of  
            your payment may be prosecuted as a felony.

            Restitution Fund - If you are located in California and  
            purchase from a registered seller of travel whose principal  
            place of business is also in California, and you do not  
            receive what you have paid for, you can file a claim with  
            the Travel Consumer Restitution Corporation ("TCRC"), which  
            operates the Travel Consumer Restitution Fund. Registered  
            California sellers and out-of-state sellers whose stock is  
            nationally traded are required to pay an annual assessment  
            to TCRC. If a seller is not registered, it cannot be a  
            participant in the fund.

            A person in California who purchases from an unregistered  
            seller will not be able to obtain restitution from TCRC  
            should anything go wrong.  The restitution fund was created  
            by law to pay out on claims arising from the seller's  
            failure to provide the contracted for goods and services  
            owing to its own wrongful taking of your payment, bankruptcy  
            filing, or closure of business. It does not cover the  
            cessation of an air or sea carrier or a failure by another  
            registered seller to which your seller has forwarded your  
            funds. For more information about the Restitution Fund and  







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            how to make a claim, see Consumer Refunds.

            Automatic Refund - In the event that there is a cancellation  
            not in accord with your contract, you are entitled to  
            receive a prompt and automatic refund. You do not have to  
            request a refund. The obligation is on the seller to make  
            one. Under law, any "material misrepresentation" by the  
            seller requires that a refund be issued.

            Written Disclosures - Prior to or at the time of receiving  
            any payment, even a partial one, a seller of travel must  
            provide you with various written disclosures including its  
            name, business address and telephone number, an itinerary, a  
            statement about its cancellation policy, the total amount to  
            be paid, the amount paid to date, the date of any future  
            payment, the purpose of the payment made, an itemized  
            statement of the balance due, if any, whether it has a trust  
            account or surety bond, whether your payment is protected by  
            the Restitution Fund, and how to make a claim to TCRC. If a  
            seller fails to provide you with its cancellation policy in  
            writing, it cannot later impose penalties in the event that  
            you cancel.

            Quick Ticketing - Once full payment has been received by the  
            seller, it must promptly deliver to you any tickets that you  
            purchased.
             (Office of Atty. Gen., Frequently Asked Questions -  
            Consumers Travel (https://oag.ca.gov/travel/faqs) [as of  
            June 30, 2015]

          This bill seeks to update the Seller of Travel law by: (1)  
          authorizing the Travel Consumer Restitution Corporation to  
          electronically bill sellers of travel; (2) requiring business  
          records to be retained for at least 3 years for auditing  
          purposes; and (3) allowing the AG to recover its costs and  
          expenses, including attorney's fees, for an examination.

                                CHANGES TO EXISTING LAW
           
          1.    Existing law  , generally regulates sellers of travel, and  
            requires a seller of travel, unless exempted, to register with  
            the Attorney General (AG) and to comply with various  
            requirements.  (Bus. & Prof. Code Sec. 17550 et seq.)

             Existing law  defines a "seller of travel" to mean a person who  







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            sells, provides, furnishes, contracts for, arranges, or  
            advertises that he or she can or may arrange, or has arranges,  
            wholesale or retail, either of the following:  (1) air or sea  
            transportation either separately or in conjunction with other  
            travel services; or (2) land or water vessel transportation,  
            other than sea carriage, either separately or in conjunction  
            with other travel services if the total charge to the  
            passenger exceeds $300.  (Bus. & Prof. Sec. 17550.1.)

             Existing law  requires a seller of travel to deposit all sums  
            received from any person or entity for air or sea  
            transportation, or for any travel services, directly into a  
            trust account in a federally insured bank, savings and loan  
            association, or credit union.  (Bus. & Prof. Code Sec.  
            17550.15(b).)  Existing law prohibits a seller of travel from  
            in any manner, encumbering the corpus of the trust account or  
            withdrawing money, except as provided.  (Bus. & Prof. Code  
            Sec. 17550.15 (c).)  

             Existing law  requires the seller of travel to serve as trustee  
            of the trust accounts, as specified, and, except as otherwise  
            provided, requires all trust accounts to be maintained at a  
            branch of a federally insured bank, savings and loan  
            association, or credit union.  (Bus. & Prof. Code Sec.  
            17550.15(e), (f)(1).)

             Existing law  requires a seller of travel to file with the AG  
            an irrevocable agreement in writing allowing the AG, a  
            district attorney, or their representatives, upon written  
            request, to examine and obtain copies of all business records,  
            including, but not limited to, those related to the trust  
            account wherever those records may be, and including, but not  
            limited to, those records relating to any travel business  
            account, or any account used for any travel business  
            transaction, or account to which trust funds have been  
            deposited.  Existing law requires the statement to indicate  
            that the authorization remains in effect as long as the seller  
            of travel, financial institution, or other custodian of  
            records retains records.  (Bus. & Prof. Code Sec.  
            17550.15(f)(2).)

             This bill  would require a seller of travel to maintain all  
            business records described above for a minimum of three years.  
             








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             This bill  would allow the AG to maintain an action for  
            recovery of examination costs and expenses in any court of  
            competent jurisdiction, and may recover his or her reasonable  
            attorney's fees as an item of costs, as specified.  

             This bill  would provide that costs and expenses for  
            examination shall be paid for by the seller of travel if the  
            AG bills the seller of travel for those costs and expenses,  
            provided that the examination shows that the seller of travel  
            has failed to comply with specified requirements.  

          2.    Existing law  establishes the Travel Consumer Restitution  
            Corporation (TCRC), which creates the Travel Consumer  
            Restitution Fund as a mechanism for an aggrieved passenger to  
            be reimbursed when a seller of travel fails to provide for  
            travel or in the event that a seller of travel becomes  
            insolvent.  (Bus. & Prof. Code Sec. 17550.38.)

             Existing law  provides that, in addition to other specified  
            assessments, the TCRC shall bill and collect from each  
            participant an annual assessment that in the aggregate  
            consists of assessments for the operations fund and the  
            restitution fund.  (Bus. & Prof. Code Sec. 17550.44(a).)

             Existing law  provides that if, on May 1 or October 15 of any  
            year, the balance in the restitution fund is less than  
            $900,000, the corporation shall make an emergency assessment  
            of participants, not more than twice per year, up to a maximum  
            amount of $150 per year for each location in the state from  
            which the participant does business, for deposit in the trust  
            account to return the level of restitution fund to an expected  
            balance of $1,600,000.  (Bus. & Prof. Code Sec. 17550.44(d).)

             Existing law  provides that, in addition to the above  
            assessments, if at any time during the fiscal year the board  
            of directors of the TCRC determines that the operations fund  
            will be insufficient to pay the costs of operations and  
            administration for the current or next fiscal year, the  
            corporation shall do either of the following: (1) make an  
            emergency assessment, as specified; or (2) transfer any or all  
            interest earned on the Restitution Fund to the Operations  
            Fund, as specified.  (Bus. & Prof. Code Sec. 17550.44(e).)

             Existing law  provides that the above assessments shall be due  
            45 days from the date the bill for that assessment is mailed  







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            by the TCRC.  (Bus. & Prof. Code Sec. 17550.44(f).)

             This bill  would, instead, provide that the assessments shall  
            be due 45 days from the date the bill is sent to the seller of  
            travel.







                                        COMMENT
           
          1.    Stated need for the bill  

          According to the author:

          The Seller of Travel (SOT) law was enacted 25 years ago to  
          require that sellers of travel register with the Attorney  
          General's Office, display the registration number on all  
          advertising, and support the state's unique Travel Consumer  
          Restitution Fund (TCR) that is available to California consumers  
          for refunds for travel services that failed to be delivered as  
          promised, i.e. fails to deliver the travel documents, becomes  
          insolvent, or refuses to refund a client.

          AB 1107 provides updates to the existing Seller of Travel (SOT)  
          law in the Business and Professions Code in order to enhance the  
          consumer protections and the efficiency of the law. These  
          include:
                     Authorizing electronic billing by the travel  
                 Consumer Restitution Corporation (TCRC) of sellers of  
                 travel,
                     Requiring that SOTs retain at least 3 years of  
                 business records for auditing purposes, and
                     Allowing the Attorney General's office to recover  
                 its costs from an audit when a violation has been  
                 determined.

          2.   Attorney General (AG) enforcement and SOT business record  
          retention  

          Under existing law, sellers of travel must generally deposit all  
          sums received from any person into a trust account.  Sellers of  







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          travel must also file an irrevocable agreement with the AG  
          allowing the AG, district attorney, or their representatives, to  
          examine and obtain copies of all business records, including  
          those related to the trust account.  This bill would clarify  
          that those business records must be maintained for a minimum  
          period of three years.  As existing law does not specify a  
          retention period, that three-year minimum retention period would  
          provide some level of certainty for sellers of travel as to how  
          long business records should be retained.  

          In support of the proposed change, the author asserts that  
          existing law "[r]ecord retention would be very helpful to the  
          Attorney General's office [who] has responsibility for the  
          oversight of the [] law including audits and investigations."
          The California Coalition of Travel Organizations (CCTO, sponsor,  
          further notes that the three-year period would be sufficient for  
          most state auditing cycles, and, that the current "lack of a  
          retention requirement can impact the effectiveness of any audit  
          or examination."  

          Related to the issue of retention of business records, and the  
          AG's examination of those records, this bill would also allow  
          the AG to maintain an action for recovery of examination costs  
          and expenses, and provide that the AG may recover his or her  
          reasonable costs and attorney's fees as an item of costs.   
          While, as a general rule, each side in an action is responsible  
          for paying his or her own attorney's fees, as a matter of  
          policy, that obligation can be shifted by statute.  In this  
          case, the bill would shift the obligation to the seller of  
          travel if the AG elected to bring an action to recover their  
          examination costs and expenses.  The CCTO asserts that this  
          provision would "reduce operating costs of the [AG's sellers of  
          travel] unit at the office," and author further states:

          While the [] law provides that the TCRC shall recover costs and  
          expenses for examinations or investigations when it participates  
          in an investigation (Business and Professions Code Section  
          17550.33), there is no corresponding provision allowing the  
          Attorney General's office to recover costs for its examinations  
          or audits. In other contests, these audits or examination costs  
          are usually chargeable to the examinee when a violation is  
          found.

            This would be remedied by . . . allowing the Attorney  
            General's Office to recover costs and expenses from audits  







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            or examinations whenever a violation is found. This revision  
            would assist in the funding of the costs of the AG by  
            providing authority for the AG to recover its costs when an  
            audit finds that the SOT Law has been violated.

          Accordingly, the bill specifically requires the seller of travel  
          to pay the costs and expenses for an examination if the AG bills  
          the seller for those costs and expenses, and, the examination  
          shows the seller failed to comply with any of the requirements,  
          as specified.  

          3.   Authorizing electronic billing  

          Under existing law, the TCRC assesses each registered seller of  
          travel for both its operations and restitution funds.  A seller  
          of travel must pay an assessment 45 days from the date the bill  
          for that assessment is mailed by the TCRC.  In order to allow  
          for electronic billing, this bill would, instead, require the  
          assessment to be paid 45 days from the date the bill for that  
          assessment is sent to the seller of travel.  The California  
          Coalition of Travel Organizations states that "[t]his provision  
          would provide process efficiencies and eases the burden on  
          sellers of travel by authorizing the TCRC to bill the  
          participants electronically to provide funds in the Travel  
          Consumer Restitution Fund [TCRF]."  The author further asserts:

          The current [seller of travel] law (Business and Professions  
          Code Section 17550 et seq.), enacted in 1995 and prior to the  
          advancement of Internet and electronic transactions, required  
          the Travel Consumer Restitution Corporation (TCRC) to bill  
          sellers of travel by mail. . . . It would be more efficient for  
          billings to be made electronically.

           Support  :  None Known

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  California Coalition of Travel Organizations
          
           Related Pending Legislation  :  None Known

           Prior Legislation  :  None Known








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           Prior Vote  :

          Senate Business, Professions and Economic Development Committee  
          (Ayes 9, Noes 0)
          Assembly Floor (Ayes 78, Noes 0)
          Assembly Appropriations Committee (Ayes 17, Noes 0)
          Assembly Business and Professions Committee (Ayes 14, Noes 0)

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