BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1751


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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          1751 (Low)


          As Amended  August 19, 2016


          2/3 vote.  Urgency


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          Original Committee Reference:  B. & P.


          SUMMARY:  Revise and recasts the Department of Justice's (DOJ)  
          requirements for the implementation, construction, and  
          maintenance of the single, statewide and uniform electronic  
          reporting system, defined as CAPSS, revises the reporting  
          requirements for pawnbrokers and secondhand dealers and makes  
          numerous other technical and clarifying changes, as specified.  
          Specifically, this bill:


          1)Defines CAPSS to mean "the California Pawn and Secondhand  
            Dealer System which is a single, statewide, uniform electronic  
            reporting system that receives secondhand dealer reports and  
            is operated by the DOJ 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."
          2)Replaces "single, statewide and uniform electronic reporting  
            system" with "CAPSS".









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          3)Revises the reporting requirements to require every secondhand  
            dealer or coin dealer, as specified, to report daily or no  
            later than the next business day, excluding weekends and  
            holidays, as specified. 


          4)Revises the property description requirements, as specified.


          5)Requires a secondhand dealer to utilize in the article field  
            either an article field descriptor, the format which must be  
            provided by the DOJ, or a properly spelled and non-abbreviated  
            plain text descriptor commonly recognized and utilized by the  
            pawn and secondhand dealer industry.  


          6)Specifies that the lack of an article field descriptor  
            provided by the DOJ is not relevant to any determination as to  
            whether the secondhand dealer has received evidence of  
            authority to sell or pledge the property, as specified, so  
            long as the secondhand dealer reports an article field  
            descriptor consistent with the specified requirements.


          7)Specifies that a report submitted by a pawnbroker or  
            secondhand dealer is deemed to have been accepted by the DOJ  
            if a good faith effort has been made to supply all of the  
            required information. 


          8)Specifies that an error or omission on the report be noted,  
            the pawnbroker or secondhand dealer be notified of the error  
            by the DOJ, and the reporting pawnbroker or secondhand dealer  
            has three business days from the notice by the DOJ to amend or  
            correct the report before being subject to any enforcement  
            violation.


          9)Deletes the requirement that the DOJ, in consultation with the  
            appropriate law enforcement agencies, develop clear and  
            comprehensive descriptive categories denoting tangible  








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            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 pawnbrokers and  
            secondhand dealers.


          10)States that unless specifically identified in Business and  
            Professions Code (BPC) Section 21628, the DOJ, chiefs of  
            police, and sheriffs cannot 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, as specified. 


          11)States that if there is a future change to the reporting  
            requirement of CAPSS that substantively alters the reporting  
            standards, as specified, those changes must be implemented and  
            operated in compliance with the Administrative Procedure Act  
            and in implementing and operating a future change to CAPSS,  
            the DOJ chiefs of police and sheriffs must comply with current  
            reporting and holding requirements as specified.


          12)Prohibits the DOJ from taking any action with respect to the  
            implementation, operation, or maintenance of CAPSS by adoption  
            of an emergency regulation.


          13)Requires on or before July 1, 2017, the DOJ to convene a  
            meeting with the Department of Technology to discuss issues  
            pertaining to any proposed changes or upgrades to CAPSS, as  
            specified. 


          14)Requires a secondhand dealer or coin dealer to electronically  
            transmit to CAPSS, no later than the next business day, after  
            the date of the transaction, excluding weekends or holidays  
            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.








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          15)Deletes the provisions related to reporting on paper forms,  
            as specified. 


          16)Deletes current requirements pertaining to the development  
            and implementation of the CAPSS, as specified. 


          17)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 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.
          18)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. 
          19)Makes numerous technical and clarifying amendments to  
            secondhand dealer reporting requirements. 








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          The Senate amendments make technical and clarifying changes,  
          delete the changes to persons conducting business at a gun show,  
          and delete provisions from the urgency.


          FISCAL EFFECT:  According to the Senate Appropriations  
          Committee, this bill will result in: 


          1)Unknown potential information technology costs, to make  
            changes to CAPSS to reflect the changes required in the bill  
            (Secondhand Dealer and Pawnbroker Fund).  This bill would  
            require the Department of Justice to accept a plain text  
            description of a reported item. Currently, the Department is  
            requiring users of CAPSS to use specified classifications,  
            rather than plain text descriptions.  The Department may be  
            required to make system changes to CAPSS to allow the system  
            to accept plain text descriptions in addition to specified  
            classifications or to develop the ability to accept field  
            descriptors that would accurately reflect plain text  
            descriptions used in the secondhand industry.


          2)Potential ongoing staff costs in the hundreds of thousands per  
            year for the Department of Justice to classify items reported  
            to CAPSS based on the plain text descriptions submitted by  
            users (Secondhand Dealer and Pawnbroker Fund).  The sponsors  
            of the bill indicate that using the required classifications  
            imposes a burden on CAPSS users and that most users would  
            prefer to continue the historic practice of using plain text  
            descriptions.  If a significant number of users revert to  
            using plain text descriptions and the Department of Justice  
            wishes to continue classifying reported items, the Department  
            could incur substantial staff costs to do so.


          COMMENTS:  


          Purpose.  This bill revises the DOJ's current requirements for  








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          the implementation and construction of CAPSS 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 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 [CAPSS] 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  








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          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.   


          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  








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          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,  
          which the DOJ was mandated to develop and implement.  CAPSS was  
          intended to eliminate the need for paper reports in favor of a  
          uniform electronic database.  With the advent of CAPSS, 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.  CAPSS 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.  CAPSS 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. 


          CAPSS.  According to information provided on the DOJ's Web site,  
          CAPSS 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 CAPSS, 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.  


          CAPSS currently allows secondhand dealers to report two ways:   
          1) through an item-by-item manual transaction on the DOJ's Web  
          site, 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  








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          bulk upload feature is necessary for those shops which deal in  
          high volume transaction.  


          Issues with CAPSS and the Current Reporting Requirements.  Prior  
          to the implementation of CAPSS, 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. 


          CAPSS 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 CAPSS 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 CAPSS as raised by  
          the CPA, this bill makes numerous revisions to existing law  
          including:  1) revising plain text property description  
          requirements; 2) require the information collected about the  
          seller or pledger be only what is required under existing law;  
          3) revising reporting requirements; and, 4) require that any  
          future changes to CAPSS follow the Administrative Procedures Act  
          and not through emergency regulations, as specified, among  
          others.  


          This bill will also require the DOJ to convene a meeting with  








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          the Department of Transportation pertaining to any proposed  
          changes or upgrades to CAPSS.  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 plain text property  
          descriptions generally accepted in the pawn and secondhand  
          dealer industries.  


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


          Analysis Prepared by:                                             
                          Elissa Silva / B. & P. / (916) 319-3301  FN:  
          0004884