BILL NUMBER: AB 1751 CHAPTERED
BILL TEXT
CHAPTER 793
FILED WITH SECRETARY OF STATE SEPTEMBER 29, 2016
APPROVED BY GOVERNOR SEPTEMBER 29, 2016
PASSED THE SENATE AUGUST 23, 2016
PASSED THE ASSEMBLY AUGUST 31, 2016
AMENDED IN SENATE AUGUST 19, 2016
AMENDED IN SENATE AUGUST 15, 2016
AMENDED IN SENATE JUNE 20, 2016
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 Sections 21628 and 21642.5 of, to add Section
21627.5 to, to repeal Sections 21628.1 and 21633 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, Low. Secondhand goods.
Existing law regulates secondhand dealers and coin dealers, and
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 also regulates pawnbrokers. 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 has not been
convicted of an offense involving stolen property. 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, 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 Pawn and
SecondhandDealer System, which is the single, statewide, 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 properly spelled and
non-abbreviated plain text property descriptions commonly recognized
and utilized by the pawn and secondhand dealer industries. The bill
would require a secondhand dealer to provide a property description
in an article field descriptor, as specified. 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 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 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 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.
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 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.
SEC. 2. Section 21627.5 is added to the Business and Professions
Code, to read:
21627.5. "CAPSS" means the California Pawn 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. 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 no later than the next business
day excluding weekends and holidays after receipt or purchase of
secondhand tangible personal property, 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, in accordance with the
provisions of Section 21630 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 the property,
including, but not limited to, the following: serial number,
personalized inscriptions, and other identifying marks or symbols,
owner-applied numbers, 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 shall 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 shall utilize in the article field either
an article field descriptor, the format of which shall be provided by
the Department of Justice, or a properly spelled and non-abbreviated
plain text descriptor commonly recognized and utilized by the pawn
and secondhand dealer industry. The lack of an article field
descriptor provided by the Department of Justice 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) so long as the
secondhand dealer reports an article field descriptor consistent with
this subdivision.
(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.
(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 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.
(5) A certification by the intended seller or pledger that to his
or her knowledge and belief the information is true and complete.
(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.
(d) (1) The Department of Justice shall recognize and accept the
properly spelled and non-abbreviated plain text property descriptors
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 had received
paper reports from pawnbrokers and secondhand dealers.
(2) A report required of a secondhand dealer pursuant to this
section shall be transmitted by electronic means to CAPSS by the
secondhand dealer.
(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.
(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 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 CAPSS
required by this chapter by adoption of an emergency regulation.
(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 CAPSS required by
this chapter. The Department of Technology may provide technological
assistance for ongoing improvements, updates, or changes to CAPSS
required by this chapter, as requested.
(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.
(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.
(8) Nothing in this subdivision shall be construed as excepting a
secondhand dealer from the fingerprinting requirement of paragraph
(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. 4. Section 21628.1 of the Business and Professions Code is
repealed.
SEC. 5. Section 21630 of the Business and Professions Code is
repealed.
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 CAPSS no later than the next business day
after the date of transaction excluding weekends 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.
SEC. 7. Section 21633 of the Business and Professions Code is
repealed.
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 CAPSS described in
Section 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. 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 protect the public from the dissemination of stolen
property, make the single, statewide, uniform electronic system a
cost savings for secondhand dealers and pawnbrokers, and to require
the plain text property descriptions historically utilized by these
industries to be accepted by the Department of Justice, just as these
plain text descriptions have historically been accepted by chiefs of
police and sheriffs, at the earliest possible time, it is necessary
that this act take effect immediately.