BILL NUMBER: AB 1751 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 18, 2016
AMENDED IN ASSEMBLY MARCH 28, 2016
INTRODUCED BY Assembly Member Low
(Coauthors: Assembly Members Bigelow, Calderon, Cooper, Dababneh,
Gatto, Jones, Jones-Sawyer, Lackey, Mathis, Mullin, Olsen, Rodriguez,
Waldron, and Wilk)
(Coauthors: Senators Anderson, Berryhill, Block, Hill, Mendoza,
Morrell, Nguyen, and Vidak)
FEBRUARY 2, 2016
An act to amend Section 21628 of, to repeal Section 21628.1 of,
and to repeal and add Section 21630 of, the Business and Professions
Code, relating to secondhand goods, and declaring the urgency
thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 1751, as amended, Low. Secondhand goods.
Existing law provides for the regulation of secondhand dealers and
coin dealers, as defined. Existing law makes it unlawful for a
person to engage in the business of a secondhand dealer without a
license issued by the chief of police, the sheriff, or, where
appropriate, the police commission. Existing law requires a local law
enforcement agency to issue a license to engage in the business of a
secondhand dealer or pawnbroker to an applicant who meets designated
criteria. Existing law authorizes the local licensing authority and
the Department of Justice to charge an initial licensure fee and a
renewal fee, as specified. Existing law requires a secondhand dealer
to report, as specified, to the chief of police or sheriff all
secondhand "tangible personal property," as defined, purchased, taken
in trade, taken in pawn, accepted for sale on consignment, or
accepted for auctioning. Existing law requires the report to include,
among other things, the identification of the intended seller or
pledger of the property, verified by the person taking the
information by specified methods. Existing law requires the reporting
of this information to the Department of Justice through a single,
statewide, and uniform electronic reporting system. Existing law
requires the Department of Justice to develop descriptive categories
and secondhand dealers and coin dealers to use these categories in
their reports.
This bill would eliminate the requirements that the Department of
Justice develop, and secondhand dealers and coin dealers use,
descriptive categories in their reports of acquired tangible personal
property. Instead, the bill would require the Department of Justice
to accept the plain text property descriptions commonly recognized
and utilized by the pawn and secondhand dealer industries. The bill
would require the Department of Justice to encode the plain text
property descriptions, as specified, and would prohibit the
Department of Justice from using funds collected from the initial
licensing fee for these purposes. This bill would prohibit the
Department of Justice, chiefs of police, and sheriffs from requiring
secondhand dealers to report any additional information other than
that which is required by these provisions. The bill would require
that the single, statewide, and uniform electronic reporting system
be implemented and operated in compliance with the Administrative
Procedure Act and prohibit the Department of Justice from taking any
action with respect to the implementation, operation, or maintenance
of the electronic reporting system by adoption of an emergency
regulation. The bill would also require the Department of
Justice to convene a meeting with the Department of Technology to
discuss issues pertaining to any proposed changes or upgrades, and
authorize the Department of Technology to provide
technological assistance for ongoing improvements, updates, or
changes, to the single, statewide, and uniform electronic reporting
system.
Existing law provides an exception to the reporting requirement
for the acquisition of the same property from the same customer
within 12 months of a reported transfer, except when submission of
the report is specifically requested in writing by the local
authorities.
This bill would expand the reporting requirement exception to all
acquisitions of the same property from the same customer within 12
months of a reported transfer.
This bill would declare that it is to take effect immediately as
an urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) It is the intent of the Legislature to clarify that
pawnbrokers and other secondhand dealers are to report their
acquisition of tangible personal property received in pledge, trade,
consignment, or auction or by purchase using plain text, in
descriptive language historically used in the pawn and secondhand
industries when reporting to the single, statewide, and uniform
electronic reporting system operated by the Department of Justice, or
if not yet implemented in their respective jurisdictions, on paper
forms sent to the local police chief or sheriff of the jurisdiction
in which the secondhand dealer is physically located.
(b) It is further the intent of the Legislature that by specifying
this manner of reporting, it will relieve all secondhand dealers and
pawnbrokers of the inherent costs and burdens imposed under existing
law that requires these businesses to report their daily
acquisitions of secondhand tangible personal property on paper forms
limited to a single transaction, or where the electronic reporting
system is implemented, the cost associated with converting industry
standard descriptions to specific law enforcement categories, the
ongoing costs of training to that standard, and the costs of
implementing software to maintain that standard.
(c) Further, it is the intent of the Legislature that the
Department of Justice shall continue to accept the plain text
descriptive language historically used in the pawn and secondhand
industries and shall have the continuing obligation to convert those
descriptions as may be required by law enforcement databases in order
to protect the integrity of law enforcement databases. It is the
intent of the Legislature that only properly trained law enforcement
personnel of the Department of Justice or local law enforcement
classify and encode for law enforcement databases property reported
by pawnbrokers and secondhand dealers and that the cost of the
classification or the training of law enforcement personnel not be
funded by pawnbrokers or secondhand dealers.
SEC. 2. Section 21628 of the Business and Professions Code, as
amended by Section 1 of Chapter 169 of the Statutes of 2015, is
amended to read:
21628. (a) Every secondhand dealer or coin dealer described in
Section 21626 shall report daily, or on the first working day after
receipt or purchase of secondhand tangible personal property, on
forms or through an electronic reporting system approved by the
Department of Justice, all secondhand tangible personal property,
except for firearms, which he or she has purchased, taken in trade,
taken in pawn, accepted for sale on consignment, or accepted for
auctioning, to the electronic reporting system operated by the
Department of Justice, or until such time as this system is
operational in the jurisdiction where the secondhand dealer is
located, on paper forms sent to the chief of police or to the
sheriff, in accordance with the provisions of Sections 21630 and
21633 and subdivision (d). The report shall be legible, prepared in
English, completed where applicable, and include only the following
information:
(1) The name and current address of the intended seller or pledger
of the property.
(2) The identification of the intended seller or pledger. The
identification of the seller or pledger of the property shall be
verified by the person taking the information, who may use
technology, including, but not limited to, cameras or software, or
both, to obtain information and verify identity remotely. The
verification shall be valid if the person taking the information
reasonably relies on any one of the following documents, provided
that the document is currently valid or has been issued within five
years and contains a photograph or description, or both, of the
person named on it, and, where applicable, is signed by the person,
and bears a serial or other identifying number:
(A) A passport of the United States.
(B) A driver's license issued by any state or Canada.
(C) An identification card issued by any state.
(D) An identification card issued by the United States.
(E) A passport from any other country in addition to another item
of identification bearing an address.
(F) A Matricula Consular in addition to another item of
identification bearing an address.
(3) (A) A complete and reasonably accurate description of
serialized property, including, but not limited to, the following:
serial number and other identifying marks or symbols, owner-applied
numbers, manufacturer's name brand, and model name or number. Watches
need not be disassembled when special skill or special tools are
required to obtain the required information, unless specifically
requested to do so by a peace officer. A special tool does not
include a penknife, caseknife, or similar instrument and
disassembling a watch with a penknife, caseknife, or similar
instrument does not constitute a special skill. In all instances
where the required information may be obtained by removal of a
watchband, then the watchband shall be removed. The cost associated
with opening the watch shall be borne by the pawnbroker, secondhand
dealer, or customer.
(B) In the case of the receipt or purchase of a handheld
electronic device by a secondhand dealer, the serial number reported
pursuant to subparagraph (A) may be the International Mobile Station
Equipment Identity (IMEI), the mobile equipment identifier (MEID), or
other unique identifying number assigned to that device by the
device manufacturer. If none of these identifying numbers are
available by the time period required for reporting pursuant to this
subdivision, the report shall be updated with the IMEI, MEID, or
other unique identifying number assigned to that device by the device
manufacturer as soon as reasonably possible but no later than 10
working days after receipt or purchase of the handheld electronic
device.
(C) For the purpose of this paragraph, "handheld electronic device"
means any portable device that is capable of creating, receiving,
accessing, or storing electronic data or communications and includes,
but is not limited to, a cellular phone, smartphone, or tablet.
(4) A complete and reasonably accurate description of
nonserialized property, including, but not limited to, the following:
size, color, material, manufacturer's pattern name (when known),
owner-applied numbers and personalized inscriptions, and other
identifying marks or symbols. Watches need not be disassembled when
special skill or special tools are required to obtain the required
information, unless specifically requested to do so by a peace
officer. A special tool does not include a penknife, caseknife, or
similar instrument and disassembling a watch with a penknife,
caseknife, or similar instrument does not constitute a special skill.
In all instances where the required information may be obtained by
removal of a watchband, then the watchband shall be removed. The cost
associated with opening the watch shall be borne by the pawnbroker,
secondhand dealer, or customer.
(5) A certification by the intended seller or pledger that he or
she is the owner of the property or has the authority of the owner to
sell or pledge the property.
(6) A certification by the intended seller or pledger that to his
or her knowledge and belief the information is true and complete.
(7) A legible fingerprint taken from the intended seller or
pledger, as prescribed by the Department of Justice. This requirement
does not apply to a coin dealer, unless required pursuant to local
regulation.
(b) (1) When a secondhand dealer complies with all of the
provisions of this section, he or she shall be deemed to have
received from the seller or pledger adequate evidence of authority to
sell or pledge the property for all purposes included in this
article, and Division 8 (commencing with Section 21000) of the
Financial Code.
(2) In enacting this subdivision, it is the intent of the
Legislature that its provisions shall not adversely affect the
implementation of, or prosecution under, any provision of the Penal
Code.
(c) Any person who conducts business as a secondhand dealer at any
gun show or event, as defined in Section 478.100 of Title 27 of the
Code of Federal Regulations, or its successor, outside the
jurisdiction that issued the secondhand dealer license in accordance
with subdivision (d) of Section 21641, may be required to submit a
duplicate of the transaction report prepared pursuant to this section
to the local law enforcement agency where the gun show or event is
conducted.
(d) (1) The Department of Justice shall recognize and accept the
plain text property descriptions generally accepted in the pawn and
secondhand industries provided by secondhand dealers, as has been the
longstanding practice of chiefs of police and sheriffs when they
receive paper reports from secondhand dealers. The Department of
Justice shall have the continuing duty to encode the plain text
property descriptions received by pawnbrokers and secondhand dealers
for law enforcement databases in order for those descriptions to be
useful for law enforcement purposes. Funds collected pursuant to
Section 21642.5 shall not be used by the Department of Justice for
the encoding or to train personnel to encode these descriptions.
(2) With the consultation by the Department of Justice with local
law enforcement agencies and representatives from the secondhand
dealer businesses, pursuant to Resolution Chapter 16 of the Statutes
of 2010, and upon the availability of sufficient funds in the
Secondhand Dealer and Pawnbroker Fund created pursuant to Section
21642.5, the department shall promptly develop a single, statewide,
uniform electronic reporting system to be used to transmit these
secondhand dealer reports.
(3) (A) Except as otherwise provided in this section, any report
required of a secondhand dealer shall be transmitted by electronic
means.
(B) Until the date that the Department of Justice implements the
single, statewide, uniform electronic reporting system described in
paragraph (2), each secondhand dealer may continue to report the
information required by this section under the reporting categories
described in paragraph (1) in paper format on forms approved or
provided by the Department of Justice. Chiefs of police and sheriffs
continuing to receive paper forms shall also continue to recognize
and accept the plain text property descriptions generally recognized
in the pawn and secondhand industries.
(C) On and after the date that the Department of Justice
implements the single, statewide, uniform electronic reporting system
described in paragraph (2), each secondhand dealer shall
electronically report using that system the information required by
this section under the reporting standard described in paragraph (1),
except that for the first 30 days following the implementation date,
each secondhand dealer shall also report the information in paper
format as described in subparagraph (B).
(D) Unless specifically identified in this section, the Department
of Justice, chiefs of police, and sheriffs shall not require a
secondhand dealer to include any additional information concerning
the seller, the pledger, or the property received by the secondhand
dealer in the report required by this section.
(E) The single, statewide, and uniform electronic reporting system
required by this chapter shall be implemented and operated in
compliance with the Administrative Procedure Act (Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code). In implementing and operating the single,
statewide, and uniform electronic reporting system required by this
chapter, the Department of Justice, chiefs of police, and sheriffs
shall comply with Sections 21637 and 21638. Notwithstanding any other
law, the Department of Justice shall not take any action with
respect to the implementation, operation, or maintenance of the
electronic reporting system required by this chapter by adoption of
an emergency regulation.
(F) On or before July 1, 2017, the Department of Justice shall
convene a meeting with the Department of Technology to discuss issues
pertaining to any proposed changes or upgrades to the single,
statewide, and uniform electronic reporting system required by this
chapter. The Department of Technology may provide technological
assistance for ongoing improvements, updates, or changes to the
single, statewide, and uniform electronic reporting system required
by this chapter, as requested.
(4) A coin dealer shall report the information required by this
section under the reporting standard described in paragraph (1) on a
form developed by the Attorney General that the coin dealer shall
transmit each day by facsimile transmission or by mail to the chief
of police or sheriff. A transaction shall consist of not more than
one item.
(5) For purposes of this subdivision, "item" shall mean any single
physical article. However, with respect to a commonly accepted
grouping of articles that are purchased as a set, including, but not
limited to, a pair of earrings or place settings of china,
silverware, or other tableware, "item" shall mean that commonly
accepted grouping.
(6) Nothing in this subdivision shall be construed as excepting a
secondhand dealer from the fingerprinting requirement of paragraph
(7) of subdivision (a).
(e) Nothing in this section shall be construed to exempt a person
licensed as a firearms dealer pursuant to Sections 26700 to 26915,
inclusive, of the Penal Code from the reporting requirements for the
delivery of firearms pursuant to Sections 26700 to 26915, inclusive,
of the Penal Code.
SEC. 3. Section 21628.1 of the Business and Professions Code is
repealed.
SEC. 4. Section 21630 of the Business and Professions Code is
repealed.
SEC. 5. Section 21630 is added to the Business and Professions
Code, to read:
21630. (a) A secondhand dealer shall electronically transmit to
the Department of Justice's single, statewide, uniform electronic
reporting system on the date of transaction or, if not then possible
due to an electrical, telecommunications, or other malfunction, as
soon as reasonable thereafter, the report of acquisition of tangible
personal property as required by Section 21628.
(b) Notwithstanding Section 21628, submission of a tangible
property acquisition report is not required if the report of an
acquisition of the same property from the same customer has been
submitted within the preceding 12 months.
(c) If the electronic reporting system operated by the Department
of Justice has not been implemented in the jurisdiction where the
secondhand dealer is located, the report shall be submitted to the
chief of police of the city or his or her designee within the
territorial limits of the incorporated city in which the secondhand
dealer is located. If the transaction takes place outside the
territorial limits of an incorporated city in which the secondhand
dealer is located, the report shall be submitted to the sheriff of
the county or his or her designee.
SEC. 6. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to make the single, statewide, uniform electronic system
a cost savings for secondhand dealers and pawnbrokers, the plain text
property descriptions historically utilized by these industries must
be accepted by the Department of Justice, just as these plain text
descriptions have historically been accepted by chiefs of police and
sheriffs.
Further, to protect the integrity of law enforcement databases, it
is necessary to specify that only trained law enforcement personnel
shall input classification codes of property reported by these
businesses, not the businesses themselves.