BILL NUMBER: AB 1751 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 31, 2016
AMENDED IN ASSEMBLY APRIL 25, 2016
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 Sections
21628 and 21642.5 of, to add Section 21627.5 to,
to repeal Section Sections
21628.1 and 21633 of, and to repeal and add Section 21630
of, the Business and Professions Code, relating to secondhand goods,
making an appropriation therefor, 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 define "CAPSS" as the California Pawnbroker
and SecondhandDealer System, which is the single, statewide, and
uniform electronic reporting system operated by the Department of
Justice. The bill would eliminate the requirement that a secondhand
dealer send reports on paper forms. The 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 require that necessary costs
incurred by the department in mapping the plain text property
descriptions received by pawnbrokers and secondhand dealers to any
law enforcement database be funded by the Secondhand Dealer and
Pawnbroker Fund, thereby making an appropriation. The
bill would authorize a secondhand dealer to utilize an article field
descriptor provided by the Department of Justice, if using the
article field descriptor would, in whole or in part, populate the
property description. 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
a future change to the reporting requirements of CAPSS
that substantively alters the reporting standards 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 CAPSS
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. CAPSS.
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: yes 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. may provide article field descriptors to
secondhand dealers in order to facilitate communication between the
single, statewide, and uniform electronic reporting system and 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 all necessary costs required for the
Department of Justice to map the industry plain text property
descriptions to any law enforcement database be paid from the
Secondhand Dealer and Pawnbroker Fund established by subdivision (d)
of Section 21642.5 of the Business and Professions Code.
dealers.
SEC. 2. Section 21627.5 is added to the
Business and Professions Code , to read:
21627.5. "CAPSS" means the California Pawnbroker and
SecondhandDealer System, which is a single, statewide, uniform
electronic reporting system that receives secondhand dealer reports
and is operated by the Department of Justice consistent with
Resolution Chapter 16 of the Statutes of 2010. The maintenance and
operation of CAPSS is funded by the Secondhand Dealer and Pawnbroker
Fund established pursuant to Section 21642.5.
SEC. 2. SEC. 3. 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 no later than the next business day excluding
weekends and holidays after receipt or purchase of secondhand
tangible personal property, on forms or through an
electronic reporting system approved by the Department of Justice,
to CAPSS, 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 Section 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 property description. The property description
shall be a complete and reasonably accurate description of
serialized the property, including, but
not limited to, the following: serial number
number, personalized inscriptions, and other identifying marks
or symbols, owner-applied numbers, manufacturer's name
brand, and model name or number. the size color,
material, and, if known by the secondhand dealer, the manufacturer's
pattern name. The property description shall include the brand and
model name or number of the item if known to, or reasonably
ascertainable by, the secondhand dealer. The property description may
include a plain text description of the item generally accepted by
the secondhand industry. 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) A secondhand dealer may utilize an article field descriptor,
the format of which shall be provided by the Department of Justice,
if using the article field descriptor would, in whole or in part,
accurately populate the property description with a plain text
description generally accepted in the secondhand industry. The lack
of an article field descriptor by a secondhand dealer shall not be
relevant to any determination as to whether the secondhand dealer has
received evidence of authority to sell or pledge the property
pursuant to paragraph (1) of subdivision (b).
(B)
(C) 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)
(D) 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)
(4) 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)
(5) A certification by the intended seller or pledger
that to his or her knowledge and belief the information is true and
complete.
(7)
(6) 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.
(7) A report submitted by a pawnbroker or secondhand dealer shall
be deemed to have been accepted by the Department of Justice if a
good faith effort has been made to supply all of the required
information. An error or omission on the report shall be noted, and
the reporting pawnbroker or secondhand dealer shall be notified of
the error or omission by the Department of Justice. A reporting
pawnbroker or secondhand dealer shall have three business days from
that notice to amend or correct the report before being subject to
any enforcement violation.
(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.
(c) Upon request from a local law enforcement agency, the
Department of Justice shall electronically provide to the requesting
local law enforcement agency transaction data reported by a
secondhand dealer who is not licensed by the requesting local law
enforcement agency but who is attending a gun show or event, as
defined in Section 478.100 of Title 27 of the Code of Federal
Regulations, in the jurisdiction of the requesting local law
enforcement agency.
(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 pawnbrokers and
secondhand dealers, as has been the longstanding practice of chiefs
of police and sheriffs when they receive had
received paper reports from pawnbrokers and
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. All necessary costs incurred by the Department
of Justice in mapping the plain text property descriptions received
by pawnbrokers and secondhand dealers to any law enforcement database
shall be funded by the Secondhand Dealer and Pawnbroker Fund
established in subdivision (d) of Section 21642.5.
(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
(2) A report required of a
secondhand dealer pursuant to this section shall be
transmitted by electronic means. means to
CAPSS by the secondhand dealer.
(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)
(3) 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
(4) If there is a future change to the
reporting requirements of CAPSS that substantively alters the
reporting standards provided by this article, those changes
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,
a future change to CAPSS, 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 CAPSS required by this chapter by
adoption of an emergency regulation.
(F)
(5) 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 CAPSS 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
CAPSS required by this chapter, as requested.
(4)
(6) 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)
(7) 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)
(8) Nothing in this subdivision shall be construed as
excepting a secondhand dealer from the fingerprinting requirement of
paragraph (7) (6) 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. SEC. 4. Section 21628.1 of
the Business and Professions Code is repealed.
SEC. 4. SEC. 5. Section 21630 of the
Business and Professions Code is repealed.
SEC. 5. SEC. 6. Section 21630 is
added to the Business and Professions Code, to read:
21630. (a) A secondhand dealer or coin dealer shall
electronically transmit to the Department of Justice's
single, statewide, uniform electronic reporting system on
CAPSS no later than the next business day after the date
of transaction excluding week ends and holidays
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. 7. Section 21633 of the Business
and Professions Code is repealed.
21633. The report forms approved by the Department of Justice
shall consist of not less than an original and two copies. The
Department of Justice shall not require the report form to consist of
more than an original and two copies when the forms are obtained
from a source other than the department. A local law enforcement
agency may request secondhand dealers within its jurisdiction to use
a report form consisting of more than an original and two copies.
However, each secondhand dealer or group of dealers shall be required
only to use a form consisting of an original and two copies when the
dealer does not use a form obtained from the Department of Justice.
The Department of Justice shall allow the use of forms which are
compatible with computerization. The original and the duplicate copy
shall be submitted by the secondhand dealer in accordance with the
provisions of Sections 21628 and 21630. One copy shall be retained by
the secondhand dealer in his place of business for a period of three
years and shall be made available for inspection by any law
enforcement officer.
SEC. 8. Section 21642.5 of the Business
and Professions Code is amended to read:
21642.5. (a) The Department of Justice shall require each
applicant for an initial license under Section 21641 of this code or
Section 21300 of the Financial Code and each applicant for renewal of
a license under Section 21642 of this code or Section 21301 of the
Financial Code to pay a fee not to exceed three hundred dollars
($300), but in no event exceeding the costs described in subdivision
(b), except that the fee may be increased at a rate not to exceed any
increase in the California Consumer Price Index as compiled and
reported by the Department of Industrial Relations.
(b) The fees assessed pursuant to subdivision (a) shall be no more
than necessary to cover the reasonable regulatory costs to the
department of doing all of the following:
(1) Processing initial license applications under Section 21641 of
this code and Section 21300 of the Financial Code.
(2) Processing renewal applications under Section 21642 of this
code and Section 21301 of the Financial Code.
(3) Implementing, operating, and maintaining the single,
statewide, uniform electronic reporting system CAPSS
described in subdivision (j) of Section
21628. 21627.5.
(c) All licensees holding a license issued before the effective
date of the act adding this section pursuant to Section 21641 or
21642 of this code or Section 21300 or 21301 of the Financial Code
shall, within 120 days after enactment of the act adding this section
in the 2011-12 Regular Session, in addition to any fee required
under subdivision (a), pay a fee not to exceed two hundred
eighty-eight dollars ($288) to the Department of Justice.
(d) The fees paid pursuant to subdivisions (a) and (c) shall be
deposited in the Secondhand Dealer and Pawnbroker Fund, which is
hereby established in the State Treasury. The revenue in the fund
shall, upon appropriation by the Legislature, be used by the
Department of Justice for the purpose of paying for the costs
described in paragraphs (1) to (3), inclusive, of subdivision (b),
except that the revenue received pursuant to subdivision (c) shall,
upon appropriation by the Legislature, be used by the Department of
Justice for the purpose of paying for the costs described in
paragraph (3) of subdivision (b).
(e) Applicants described in subdivision (a) shall submit to the
Department of Justice fingerprint images and related information
required by the Department of Justice for the purposes of obtaining
information as to the existence and contents of a record of state
convictions and state arrests and information as to the existence and
contents of a record of state arrests for which the Department of
Justice establishes that the person is free on bail or on his or her
own recognizance pending trial or appeal.
(1) The Department of Justice shall prepare a state-level response
pursuant to paragraph (1) of subdivision (l) of Section 11105 of the
Penal Code.
(2) The Department of Justice shall provide subsequent
notification service pursuant to Section 11105.2 of the Penal Code
for applicants described in this subdivision.
(3) The Department of Justice shall charge a fee sufficient to
cover the cost of processing the request described in this
subdivision. The fee revenues shall be deposited in the Fingerprint
Fee Account and shall, upon appropriation by the Legislature, be used
by the department for the purposes of paying the costs associated
with this subdivision.
SEC. 6. SEC. 9. 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.