BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:  April 12, 2016


                   ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS


                                  Rudy Salas, Chair


          AB 1751  
          (Low) - As Amended March 28, 2016


          NOTE: This bill contains an urgency clause.


          SUBJECT:  Secondhand goods.


          SUMMARY:  Eliminates the requirements for the Department of  
          Justice (DOJ) to develop descriptive categories for the single,  
          statewide, and uniform electronic reporting system for purposes  
          of reporting requirements of tangible personal property for  
          secondhand dealers, and instead requires the DOJ to accept the  
          plain text property descriptions commonly recognized and  
          utilized by the pawn and secondhand dealer industries; requires  
          the DOJ to encode those plain text property descriptions and  
          prohibits the DOJ from using initial licensing fees for that  
          purpose, as specified; requires the single, statewide, and  
          uniform electronic reporting system to be implemented and  
          operated in compliance with the Administrative Procedure Act and  
          prohibits the DOJ from taking any action with respect to the  
          implementation, operation, or maintenance of the electronic  
          reporting system by adoption of an emergency regulation;  
          specifies that a secondhand dealer is not required to provide  
          additional information about a seller or pledger, other than  
          what is required in existing law; and, makes other technical and  
          clarifying amendments.









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          EXISTING LAW:


          1)Defines a "secondhand dealer" to mean and include any person,  
            copartnership, firm or corporation whose business includes  
            buying, selling, trading, taking in pawn, accepting for sale  
            on consignment; accepting for auctioning, or auctioning  
            secondhand tangible personal property, but does not include a  
            coin dealer or participants at guns shows or events, as  
            specified.  (Business and Professions Code (BPC) Section  
            21626(a))

          2)Defines "tangible personal property" all secondhand tangible  
            personal property which bears a serial number or personalized  
            initials or inscription, or which at the time it is acquired  
            by the secondhand dealer, bears evidence of having had a  
            serial number or personalized initials or inscription.  (BPC  
            Section 21627(a))


          3)Defines "tangible personal property" to also mean all tangible  
            personal property that the Attorney General (AG) statistically  
            determines through the most recent DOJ "Crime in California"  
            report to constitute a significant class of stolen goods and  
            requires the DOJ to supply a list of such personal property to  
            all local law enforcement agencies, post it on the AG's Web  
            site, and update it annually beginning January 1, 2016.  (BPC  
            Section 21627(c)).

          4)Defines a "significant class of stolen goods" to mean those  
            items determined through the DOJ's annual "Crime in  
            California" report to constitute more than 10% of property  
            reported stolen in the calendar year preceding the annual  
            posting of the list of significant classes of stolen goods.   
            (BPC Section 21627(e))

          5)Requires every secondhand dealer or coin dealer, as specified,  
            to report daily, or on the first working day after receipt or  








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            purchase of secondhand tangible personal property, on forms or  
            through an electronic reporting system approved by the DOJ,  
            all secondhand tangible personal property, excluding firearms,  
            which he or she has purchased, taken in trade, taken in pawn,  
            accepted for sale on consignment, or accepted for auctioning  
            to the chief of police or to the sheriff; provides that the  
            report contain specified information including a complete and  
            reasonably accurate description of serialized property, as  
            specified, a complete and reasonably accurate description of  
            nonserialized property, a certification by the intended seller  
            or pledger that he or she is the owner of the property or has  
            the authority to sell or pledge, a certification of the  
            intended seller that to his or her knowledge and belief  
            information is true and complete, and a legible fingerprint  
            taken from the seller or pledger, as prescribed by the DOJ.   
            (BPC Section 21628(A)(1-7))
          6)Requires every secondhand dealer or coin dealer as specified,  
            to 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 DOJ,  
            all secondhand tangible personal property, except for  
            firearms, which he or she has taken in trade or pawn, accepted  
            for sale on consignment, or accepted for auctioning to the  
            chief of police or the sheriff as specified. (BPC 21628)

          7)Requires the DOJ, in consultation with appropriate law  
            enforcement agencies, to develop clear and comprehensive  
            descriptive categories denoting tangible personal property, as  
            specified, subject to reporting requirements.  (BPC Section  
            21628(d)(1))

          8)Defines an "item" to mean any single 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  
            table ware, "item" refers to the commonly accepted grouping. 

          THIS BILL:









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          9) Authorizes a secondhand dealer or coin dealer, as specified,  
            to submit daily transaction reports to the chief of police or  
            to the sheriff on paper forms until the electronic reporting  
            system operated by the DOJ is operational in the jurisdiction  
            where the secondhand dealer is located, and specifies that the  
            report may only include specified information. 
          10)Deletes the requirement that the DOJ, in consultation with  
            the appropriate law enforcement agencies, develop clear and  
            comprehensive descriptive categories denoting tangible  
            personal property and instead requires the DOJ to 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.

          11)Requires the DOJ to 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.

          12)Specifies that funds collected by DOJ for processing  
            secondhand dealer applications and initial licenses,  
            processing renewal licenses, and implementing, operating, and  
            maintaining  the single statewide, uniform electronic  
            reporting system cannot be used by the DOJ for encoding or to  
            train personnel to encode the descriptions in 3 above. 


          13)Specifies that until the uniform electronic reporting system  
            is implemented, chiefs of police and sheriffs that continue to  
            receive paper forms must also recognize and accept the plain  
            text property descriptions generally recognized in the pawn  
            and secondhand industries. 


          14)States that unless specifically identified in BPC Section  
            21628, the DOJ, chiefs of police, and sheriffs cannot require  








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            a secondhand dealer to include any additional information  
            concerning the seller, the pledger, or the property received  
            by the secondhand dealer in the report, as specified. 


          15)States that the single, statewide and uniform electronic  
            reporting system, required as specified, must be implemented  
            and operated in compliance with the Administrative Procedures  
            Act and in implementing and operating the single, statewide  
            and uniform electronic reporting system, the DOJ chiefs of  
            police and sheriffs must comply with current reporting and  
            holding requirements as specified.


          16)Prohibits the DOJ from taking any action with respect to the  
            implementation, operation, or maintenance of the electronic  
            reporting system by adoption of an emergency regulation.


          17)Requires a secondhand dealer to electronically transmit to  
            the DOJ's single, statewide, uniform electronic reporting  
            system on the date of the transaction or, if not possible due  
            to an electrical, telecommunications, or other malfunction, as  
            soon as reasonable thereafter, the report of acquisition of  
            tangible personal property.


          18)States that this bill 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 the  
            facts constituting the necessity include:

             a)   In order to make the single, statewide, uniform  
               electronic reporting system a cost savings for secondhand  
               dealers and pawnbrokers, the plain text property  
               descriptions historically utilized by these industries must  
               be accepted by the DOJ, just as these plain text  
               descriptions have historically been accepted by chiefs of  
               police and sheriffs; and,








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             b)   Further, to protect the integrity of law enforcement  
               databases, it is necessary to specify that only trained law  
               enforcement personnel are to input classification codes of  
               property reported by these businesses, not the businesses  
               themselves. 

          19)States that it is the intent of the Legislature to clarify  
            that pawnbrokers and other secondhand dealers are to report  
            their acquisition of tangible personal property in  
            descriptive, plain text language commonly used in the pawn and  
            secondhand industries; by specifying the manner or reporting,  
            it relives 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; further states the  
            intent that the DOJ continue to accept the plain text  
            descriptive language historically used in the pawn and  
            secondhand industries; and, only properly trained law  
            enforcement personnel of the DOJ or local law enforcement  
            classify and encode for law enforcement databases. 
          FISCAL EFFECT:  Unknown.  This bill is keyed fiscal by the  
          Legislative Counsel. 


          COMMENTS:


          Purpose.  This bill revises the DOJ's current requirements for  
            the implementation and construction of the single, statewide  
            and uniform electronic reporting database which was funded as  
            a result of AB 391 (Pan), Chapter, 172, Statutes of 2012.   
            This bill is sponsored by the  California Pawnbrokers  
            Association  (CPA).  According to the author, "the need for  
            this legislation arises because in implementing the  
            [California Automated Pawn and Secondhand Dealer System  
            (CAPSS)] system, the DOJ is requiring that second hand dealers  
            to input optional information beyond what is statutorily  
            authorized by the Legislature.  [This bill] will continue the  








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            requirement of existing law by specifying that the plain text  
            property descriptions commonly recognized and utilized by the  
            pawn and secondhand dealer industries shall be the sole method  
            of describing property acquired by these businesses.  [This  
            bill] also makes it clear that the CAPSS system does not  
            expand beyond current law the information that is required to  
            be collected or reported by secondhand dealers and  
            pawnbrokers." 

          Licensing Requirements for Secondhand Dealers.  The regulation  
            of secondhand dealers and pawnbrokers occurred as a result of  
            AB 2967 (Young) Chapter 499, Statutes of 1980.  The intent of  
            regulation was to provide law enforcement agencies with a  
            means to curtail the selling of stolen property and to  
            facilitate its recovery by means of a uniform statewide, state  
            administered secondhand dealer licensing and reporting  
            program.  Secondhand dealers include persons whose business  
            includes buying, selling, trading, taking in pawn, accepting  
            for sale on consignment, accepting for auctioning or  
            auctioning secondhand tangible personal property.  

            Pursuant to BPC Section 21641, local entities such as police  
            chiefs, the sheriff, or where appropriate the police  
            commission, have the responsibility to incorporate the  
            Secondhand Dealer and Pawnbroker licensing process into their  
            local programs.  It is the responsibility of the local  
            licensing agency to administer, maintain, and enforce state  
            law regarding the secondhand dealer and pawnbroker licenses.   
            Persons, entities, or corporations wishing to conduct business  
            as a secondhand dealer or pawnbroker, must first apply for a  
            specific license to conduct the business with the local  
            licensing agency (chief of police or sheriff) who then  
            receives background check results and a license number issued  
            by the DOJ's Secondhand Dealer and Pawnbroker Unit.  An  
            initial application for local licensure consists of  
            fingerprints, a licensing fee and evidence of a surety bond.   
            Secondhand dealers and pawnbrokers are required to renew their  
            licenses biannually and submit a new application packet with  
            each renewal.   








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          Once secondhand dealers and pawnbrokers have received the  
            appropriate license from the local agency, in addition to any  
            other locally required business licenses or permits needed to  
            operate, they are eligible to transact business with a wide  
            variety of tangible personal property.  Under current law, if  
            someone is operating as a secondhand dealer without a license  
            they are subject to punishment for unlawful conduct.  

          Pawnbroker Industry in California.  According to information  
          provided by the CPA, there are thousands of different "articles"  
          that are pawned or bought daily in California by approximately  
          600 California pawnbrokers.  Further, the daily transactions for  
          pawnbrokers vary from shop to shop with a low of 10 to a high of  
          600, with the average around 50. 

          Reporting Requirements for Secondhand Dealers.  To help curtail  
            the dissemination of stolen property, BPC Section 21628  
            specifies that when secondhand dealers or pawnbrokers take in  
            items, whether buying outright or loaning money and holding  
            for collateral, they are required to report daily or on the  
            first working day after they have taken possession of an item.  
             Until January 1, 2016, that property report was completed on  
            the "JUS 123" standardized paper form which was completed for  
            each item purchased, taken in trade, taken in pawn or accepted  
            for sale on consignment.  The form required very specific  
            information including, but not limited to, name and  
            identification of the seller, a description of the property,  
            (such as serial numbers or other identifying marks),  
            certification of ownership, certification that the seller's  
            knowledge of the item is correct, and a fingerprint.  Once  
            completed, a copy was provided to local law enforcement, and a  
            copy retained by the dealer.  This was to help ensure that  
            items received by a secondhand dealer or pawnbroker were not  
            stolen, and provided a mechanism for law enforcement to  
            review, retrieve or hold as part of an investigation.  

          AB 391 (Pan), Chapter 172, Statutes of 2012, required secondhand  
            dealers and coin dealers to help fund a new reporting system,  








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            which the DOJ was mandated to develop and implement. The  
            result was the California Pawn and SecondhandDealer  
            System(CAPSS).  The CAPSS system was intended to eliminate the  
            need for paper reports in favor of a uniform electronic  
            database.  With the advent of the CAPSS system, licensed  
            secondhand dealers and pawnbrokers are able to submit the  
            requisite tangible personal property transaction information  
            to the DOJ online instead of on paper, saving time and  
            providing a functional system for law enforcement purposes.   
            The CAPSS system is funded through licensing fees from the  
            secondhand dealers.  As a result of implementing the funding  
            mechanism, licensing fees for secondhand dealers rose from $12  
            to $300 biannually.  The single uniform database was intended  
            to alleviate the need for the submission of multiple paper  
            reports which were described as costly and time consuming, and  
            resource intensive for local law enforcement. 

          The CAPPS System.  According to information provided on the  
            DOJ's website, the initial CAPSS system was implemented in  
            December 2014.  Since that time, the DOJ reports that its  
            contractor has been working diligently on phase-in  
            improvements.

          Pursuant to BPC Section 21628(d)(1), in establishing the CAPSS  
          system, the DOJ was required to consult with appropriate law  
          enforcement agencies to develop clear and comprehensive  
          descriptive categories denoting tangible personal property,  
          where the categories are to be incorporated by secondhand  
          dealers and coin dealers for purposes of reporting requirements.  
           The sponsors of this bill, report concerns with the usability  
          of the system.  

          The current CAPSS system allows secondhand dealers to report two  
          ways: 1) through an item-by-item manual transaction on the DOJ's  
          website, via a secure log-in; and 2) through a "bulk upload"  
          which permits a secondhand dealer to report multiple records of  
          seller or pledger records as opposed to a single item by item.   
          The bulk upload feature is necessary for those shops which deal  
          in high volume transaction.  








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          Issues with the CAPSS System and the Current Reporting  
            Requirements.  Prior to the implementation of the CAPSS  
            system, secondhand dealers would utilize paper "JUS 123"  
            forms, which required the use of plain text (handwritten)  
            descriptions to describe the property acquired.  Secondhand  
            dealers would fill out the documents using terminology more  
            common to the pawn and secondhand industry, as there was not  
            specific descriptive language requirements or categories that  
            secondhand dealers were required to use.  These paper forms  
            were submitted daily or on the next business day to local law  
            enforcement who would in turn enter the data into a database  
            system.  Law enforcement would then transfer the property as  
            described on the "JUS 123" into the appropriate law  
            enforcement data base system. 

          The CAPSS system was intended to alleviate the burden of filling  
            out paper "JUS 123" forms where, the report of daily  
            acquisitions of secondhand tangible personal property was  
            limited to a single transaction.  However, the revised  
            reporting process implemented through the DOJ's CAPSS system  
            has become an issue for the CPA.  According to the CPA, "the  
            DOJ is placing the obligation on secondhand dealers and their  
            employees to categorize the property these businesses acquire  
            utilizing law enforcement classifications rather than the  
            historic plain text descriptions commonly utilized by and  
            recognized in the secondhand and pawn industries.
          This requirement by the DOJ now obligates the businesses to  
            transmit their property descriptions in the language of law  
            enforcement rather than language recognized in their  
            businesses. Property descriptions utilized by these industries  
            are generally significantly more descriptive because dealing  
            in the trade requires describing items for their customer to  
            review and approve."

          In addition, the CPA raised concerns about the request to  
          disclose more information about a seller or pledger than what is  
          required under current law.  BPC Section 21628 specifies that  
          information that is to be reported by secondhand dealers on the  








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          "JUS 123," which includes, a report written in English that is  
          legible, contain specified information about the seller or  
          pledger of the property, a complete and reasonable description  
          of the property including serial numbers or other identifiers, a  
          certification from the seller or pledger that he or she is he  
          owner and can sell or pledge the property, a certification that  
          the seller or pledger's knowledge of the item is correct, and a  
          legible fingerprint.  Pursuant to BPC Section 21628(b)(1), only  
          upon successful completion of the reporting requirements  
          described above, can the secondhand dealer have the adequate  
          authority to take possession of the property.  

          BPC Section 21628(a)(2) specifies the identification that a  
            secondhand dealer can accept from a seller or pledger which  
            includes: 1) a passport of the United States; 2) a driver's  
            license issued by any state or Canada; 3) any state  
            identification card; 4) a passport from any other country in  
            addition to another item of identification bearing an address;  
            and, 5) a Matricula Consular card.  The CPA notes that  
            additional information beyond the identification regarding the  
            seller or pledger has been requested to be reported, which the  
            CPA contends is not explicitly authorized under 21628.  This  
            bill seeks to clarify that the DOJ, sheriffs and chiefs of  
            police cannot require secondhand dealers to include any  
            additional information about the seller or pledger, or the  
            property received other than what is specified, under current  
            law.


          In order to address the multiple issues with the CAPSS system as  
                                                                                         raised by the CPA, this bill does four things: 1) allow  
            secondhand dealers to use plain text property descriptions  
            when reporting daily; 2) require the information collected  
            about the seller or pledger be only what is required under  
            existing law; 3) authorize the continuation of the paper  "JUS  
            123" with the acceptance of plain text property descriptions;  
            and, 4) require that DOJ's implementation of the CAPSS system  
            follow the Administrative Procedures Act and not through  
            emergency regulations.  








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          This bill will allow for the continued use of the "JUS 123"  
          until the CAPSS system is fully implemented (if this bill were  
          to pass, the DOJ would need to revise the current database in  
          order to accept electronic reports with the plain text property  
          description), and would allow secondhand dealers to report as  
          soon as possible in the event of a technological malfunction of  
          the system and not be out of compliance for not reporting as  
          specified in existing law.  In addition, this bill deletes the  
          requirement for the DOJ to consult with local law enforcement to  
          create clear and comprehensive descriptive categories, and  
          instead recognize and accept the plain text property 

          This bill contains an urgency clause to expedite the requirement  
          for the DOJ to update its current CAPSS system and allow for  
          transaction reports to be accepted with plain text property  
          descriptions.  

          Current Related Legislation.  AB 2236 (Santiago and Bonta) of  
            the current legislative session, defines "tangible personal  
            property" to exclude these specified types of property that  
            have a value of $950 or less.  Note: This bill is pending in  
            the Assembly Committee on Business and Professions.

          Prior Related Legislation: AB 1182 (Santiago), Chapter 749,  
            Statutes of 2015 narrowed the definition of tangible personal  
            property, as specified, and requires the DOJ to annually  
            update the list of items which represent a significant class  
            of stolen goods, beginning January 1, 2016, and post it on its  
            Web site, and makes other technical and clarifying amendments.  
             


          AB 632 (Eggman), Chapter 169, Statutes of 2015, would authorize  
            specified unique identifying numbers to be used as the serial  
            number reported for handheld electronic devices, as specified.  
             









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          SB 782 (Hill), Chapter 318, Statutes of 2013, clarifies the  
          interests of licensed pawnbrokers and secondhand dealers  
          relating to the seizure and disposition of property during a  
          criminal investigation or case.  


          AB 391 (Pan), Chapter 172, Statutes of 2012, requires secondhand  
          dealers and coin dealers to report certain information using the  
          electronic reporting system developed by DOJ on and after the  
          date that the system is implemented.  

          AB 1796 (Galgiani), of 2012 would have included in the  
          definition of criminal profiteering activity the unlicensed sale  
          of tangible personal property or other secondhand goods,  
          including gold and other precious metals, without a license.   
          Note: This bill failed passage in the Assembly Public Safety  
          Committee.

          AB 704 (Ma) of 2011 would have required that a person conducting  
          business as a secondhand dealer provide specified information to  
          any peace officer upon demand and allow for the storage of the  
          item for up to 90 days, required an impounding agency to satisfy  
          specified requirements regarding impounded property and further  
          would have authorized a nonprofit association composed of 50 or  
          more licensed secondhand dealers to bring an action to enjoin a  
          person from conducting business as a secondhand dealer without  
          being licensed.  Note: This bill was held in the Assembly  
          Judiciary Committee. 

          SB 1520 (Schiff), Chapter 994, Statutes of 2000, makes the  
          reporting system for pawned and secondhand property more  
          effective for law enforcement purposes through development of  
          specified reporting categories and reporting in electronic form.
          


          ARGUMENTS IN SUPPORT: 









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          The  California Pawnbrokers Association  writes in support, "The  
          California Pawnbrokers Association is proud to sponsor and  
          support [this bill].  This important urgency measure when  
          enacted may keep hundreds of small businesses operating in  
          California.
          ARGUMENTS IN OPPOSITION:


          The  California State Sheriffs' Association  writes in opposition,  
          "The proponents of this bill now argue that this reporting  
          requirement is difficult or will require additional training and  
          technology.  The DOJ has made significant overtures to assist  
          the affected industry with the new reporting methodology.   
          Additionally, abandoning the requirement that person who is in  
          possession of the item (the pawnbroker) describe the item in  
          favor of requiring DOJ to interpret a free-form, plain text  
          description without the benefit of seeing or holding the item  
          will lead to a database that contains less-than-accurate  
          information and will severely limit the utility of this  
          important crime-fighting tool."  


          POLICY ISSUE(S) FOR CONSIDERATION:


             1)   This bill will likely result in the DOJ modifying or  
               revising the current CAPSS system and will also require, in  
               the process, that the implementation and operation of the  
               system be done in compliance with the Administrative  
               Procedures Act, and not through emergency regulations.  The  
               timeframe necessary to complete a system update and  
               navigate through the regulation process will take an  
               unknown amount of time.  Although, the current database  
               will may be operational, many secondhand dealers will need  
               to return to the "JUS 123" to report.   











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             2)   To facilitate an exchange of information regarding the  
               DOJ's single, statewide, and uniform electronic reporting  
               system, the author should amend the bill as follows: 
             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 and  
            the Department of Technology may provide technological  
            assistance for ongoing improvements, updates or changes to the  
            single, statewide, and uniform electronic reporting system, as  
            requested. 


           REGISTERED SUPPORT:  


          California Pawnbrokers Association (sponsor)




          REGISTERED OPPOSITION:  
          California State Sheriffs' Association


          California Police Chiefs Association




          Analysis Prepared by:Elissa Silva / B. & P. / (916) 319-3301
















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