BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 2820       Hearing Date:    June 14, 2016     
          
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          |Author:    |Chiu                                                 |
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          |Version:   |March 15, 2016                                       |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|ML                                                   |
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               Subject:  Crimes:  Price Gouging:  States of Emergency



          HISTORY

          Source:   Author

          Prior Legislation:ABX1 57 (Archie-Hudson) - Ch. 51, Stats. 1994
                         SB 1363 (Ducheny) - Ch. 492, Stats. 2004
                         AB 457 (Núñez) -2006, died in Senate

          Support:  Consumer Attorneys of California; Office of Attorney  
          General Kamala D. Harris

          Opposition:California Public Defenders Association

          Assembly Floor Vote:                 68 - 10


          PURPOSE

          The purpose of this bill is to revise the definition of state of  
          emergency and local emergency for purposes of criminal price  
          gouging, specifying that criminal price gouging during a  
          declared emergency includes the rental of any housing with an  
          initial lease of up to one year and also the transportation of  
          persons and towing services.









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          Existing law finds that during emergencies and major disasters,  
          including, but not limited to, earthquakes, fires, floods, or  
          civil disturbances, some merchants have taken unfair advantage  
          of consumers by greatly increasing prices for essential consumer  
          goods and services. (Penal Code § 396, subd. (a).) 

          Existing law states that it is the intent of the Legislature in  
          to protect citizens from excessive and unjustified increases in  
          the prices charged during or shortly after a declared state of  
          emergency for goods and services that are vital and necessary  
          for the health, safety, and welfare of consumers. (Penal Code §  
          396, subd. (a).)

          Existing law provides that upon the declaration of a state of  
          emergency resulting from an earthquake, flood, fire, riot,  
          storm, or natural or manmade disaster declared by the President  
          of the United States or the Governor, or upon the declaration of  
          a local emergency resulting from an earthquake, flood, fire,  
          riot, storm, or natural or manmade disaster by the executive  
          officer of any county, city, or city and county, and for a  
          period of 30 days following that declaration, it is unlawful for  
          a person, contractor, business, or other entity to sell or offer  
          to sell any consumer food items or goods, goods or services used  
          for emergency cleanup, emergency supplies, medical supplies,  
          home heating oil, building materials, housing, transportation,  
          freight, and storage services, or gasoline or other motor fuels  
          for a price of more than 10 percent above the price charged by  
          that person for those goods or services immediately prior to the  
          proclamation of emergency. (Penal Code § 396, subd. (b).)

          Existing law states that upon the declaration of a state of  
          emergency resulting from an earthquake, flood, fire, riot, or  
          storm declared by the President of the United States or the  
          Governor, or upon the declaration of a local emergency resulting  
          from an earthquake, flood, fire, riot, or storm by the executive  
          officer of any county, city, or city and county, and for a  
          period of 180 days following that declaration, it is unlawful  
          for a contractor to sell or offer to sell any repair or  
          reconstruction services or any services used in emergency  
          cleanup for a price of more than 10 percent above the price  
          charged by that person for those services immediately prior to  
          the proclamation of emergency. (Penal Code § 396, subd. (c).)

          Existing law specifies that upon the proclamation of a state of  









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          emergency resulting from an earthquake, flood, fire, riot,  
          storm, or other natural disaster declared by the President of  
          the United States or the Governor, or upon the declaration of a  
          local emergency resulting from an earthquake, flood, fire, riot,  
          storm, or other natural disaster by the executive officer of any  
          county, city, or city and county, and for a period of 30 days  
          following that proclamation or declaration, it is unlawful for  
          an owner or operator of a hotel or motel to increase the hotel  
          or motel's regular rates, as advertised immediately prior to the  
          proclamation or declaration of emergency, by more than 10  
          percent. (Penal Code § 396, subd. (d).)

          Existing law specifies that, a greater price increase for the  
          goods and services, mentioned above, is not unlawful if that  
          person can prove that the increase in price was directly  
          attributable to additional costs imposed by specified  
          circumstances. (Penal Code § 396, subd. (a)-(c).)

          Existing law provides that time frame prohibiting specified  
          price increases may be extended for additional 30-day periods by  
          a local legislative body or the California Legislature, if  
          deemed necessary to protect the lives, property, or welfare of  
          the citizens. (Penal Code § 396, subd. (e).)

          Existing law states that the conduct described above is a  
          misdemeanor punishable by imprisonment in a county jail for a  
          period not exceeding one year, or by a fine of not more than ten  
          thousand dollars ($10,000), or by both that fine and  
          imprisonment. (Penal Code § 396 subd. (f).)

          Existing law specifies that the conduct described above shall  
          constitute an unlawful business practice and an act of unfair  
          competition. (Penal Code § 396 subd. (g).)

          Existing law defines "state of emergency" as "a natural or  
          manmade disaster or emergency resulting from an earthquake,  
          flood, fire, riot, or storm for which a state of emergency has  
          been declared by the President of the United States or the  
          Governor of California." (Penal Code § 396, subd. (g)(1).)

          Existing law defines "Local emergency" as "a natural or manmade  
          disaster or emergency resulting from an earthquake, flood, fire,  
          riot, or storm for which a local emergency has been declared by  
          the executive officer or governing body of any city or county in  









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          California." (Penal Code § 396, subd. (g)(2).)

          Existing law defines "housing" as "any rental housing leased on  
          a month-to-month term" for purposes of criminal price gouging.  
          (Penal Code § 396, subd. (g)(2).)

          Existing law states that except as specified, in all leases of  
          lands from week to week, month to month, or other period less  
          than a month, the landlord may, upon giving notice in writing to  
          the tenant, in the appropriate manner, change the terms of the  
          lease to take effect, as to tenancies for less than one month,  
          upon the expiration of a period at least as long as the term of  
          the hiring itself, and, as to tenancies from month to month, to  
          take effect at the expiration of not less than 30 days, but if  
          that change takes effect within a rental term, the rent accruing  
          from the first day of the term to the date of that change shall  
          be computed at the rental rate obtained immediately prior to  
          that change. (Civil Code § 827, subd. (a).)

          Existing law specifies that the notice, when served upon the  
          tenant, shall in and of itself operate and be effectual to  
          create and establish, as a part of the lease, the terms, rents,  
          and conditions specified in the notice, if the tenant shall  
          continue to hold the premises after the notice takes effect.

          Existing law states that all leases of a residential dwelling,  
          or of any interest therein, from week to week, month to month,  
          or other period less than a month, the landlord may increase the  
          rent provided in the lease or rental agreement, upon giving  
          written notice to the tenant, as follows, by either of the  
          following procedures:

             a)   By delivering a copy to the tenant personally; or (Civil  
               Code § 827, subd. (b)(1)(A).)
             b)   By serving a copy by mail under the procedures as  
               specified. (Civil Code § 827, subd. (b)(1)(B).)

          Existing law states that for an increase in rent greater than  
          10%, the minimum notice period required pursuant to that  
          paragraph shall be increased by an additional 30 days, but does  
          not apply to an increase in rent caused by a change in a  
          tenant's income or family composition as determined by a  
          recertification required by statute or regulation. (Civil Code §  
          827, subd. (b)(3).)









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          This bill revises the definition of a state of emergency to mean  
          a natural or manmade disaster or emergency caused by conditions  
          such as, but not limited to, air pollution, earthquake, fire,  
          flood, storm, epidemic, riot, drought, sudden and severe energy  
          shortage, plant or animal infestation or disease, for which a  
          state of emergency has been declared by the President of the  
          United States or the Governor of California.

          This bill revises the definition a local emergency to mean a  
          natural or manmade disaster or emergency caused by conditions  
          such as, but not limited to, air pollution, earthquake, fire,  
          flood, storm, epidemic, riot, drought, sudden and severe energy  
          shortage, plant or animal infestation or disease, for which a  
          local emergency has been declared by an official, board, or  
          governing body vested with authority to make such a declaration  
          in any city, county, or city and county in California.

          This bill applies the definitions above, throughout the criminal  
          price gouging statute.

          This bill includes the transportation of persons and towing  
          services in the crime of price gouging during a declared  
          emergency.

          This bill specifies that criminal price gouging during a  
          declared emergency includes any rental housing with an initial  
          lease term of up to one year.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several years this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  









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          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 2015 Status Report in Response to  
          February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge  
          Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 Status Report in Response to February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).)  
           
          While significant gains have been made in reducing the prison  
          population, the state must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and









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              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          COMMENTS

          1.  Stated Need for This Bill

          The author states:

            Following the devastating Aliso Canyon gas leak, unscrupulous  
            individuals took advantage of a loophole in current law and  
            raised the prices of short-term rentals.  Current law protects  
            those with month-to-month leases, but does not apply if the  
            initial lease is longer than 30 days. It also does not apply  
            to hotel and motel operators if the disaster is man-made  
            rather than natural, leaving families vulnerable to  
            exploitation.  Current law also does not explicitly apply to  
            towing service or personal transport providers.

            AB 2820 refines short-term housing as any housing with a lease  
            term of no longer than one year.  It also prohibits towing and  
            transportation service providers from raising rates more than  
            10 percent when a state of emergency is declared.  Since  
            current law has been limited and inconsistent depending on the  
            type of disaster, AB 2820 also ensures that whether the  
            disaster prompting the declaration of a state of emergency is  
            natural or manmade, familiar or unprecedented, consumers  
            across the state will be protected from excessive price  
            increases.  Disaster victims should not be victimized twice.

          2.  What This Bill Would Do
          
          This bill clarifies the definition of State of Emergency and  
          Local Emergency.  This bill applies the definitions consistently  
          within the existing statute prohibiting price gouging during a  
          declared emergency.  The existing statute prohibits raising  
          prices above a specified amount, for a variety of goods and  
          services, once an emergency has been declared.  The existing  
          statute has different definitions of what constitutes a  
          triggering emergency depending on the type of goods or services  
          being sold.  For example, the prohibition against increasing  
          hotel or motel prices more than 10% does not apply if the  









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          emergency is a result of a manmade disaster.  In contrast, the  
          prohibition on price increases for goods such as food, medical  
          supplies, housing, or gasoline includes both natural and manmade  
          disasters.  This bill provides a consistent definition of  
          emergency throughout the statute, including both natural and  
          manmade disasters.

          3.  Background - Aliso Canyon Disaster

          In October of 2015, a large leak was discovered at the Aliso  
          Canyon natural gas storage facility.  The methane leak forced  
          more than 4,600 households into temporary housing and took 112  
          days to plug.<1> The Los Angeles Board of Supervisors declared a  
          state of emergency in December of 2015.  Governor Brown declared  
          a state of emergency in January of 2016.

          A news story by KPCC in January of 2016 discussed the extent to  
          which rental prices increased after the leak was discovered.   
          KPCC quoted, Allen Brodetsky, president of Boutique Realty in  
          Tarzana, who stated "Where rental prices would normally go  
          between $3,000 and $4,000, now landlords are asking six, seven,  
          eight, nine thousand dollars- double, triple the rent of what it  
          should be."<2> Brodetsky also said that "The rental market  
          around Porter Ranch has gotten so hot, that some home sellers,  
          including a neighbor of his, have taken their houses off the  
          market and turn them into short-term rentals."<3>

          To the extent that the rent increases described above were for  
          month-to-month leases and the leases were entered into after the  
          declaration of a state of emergency, the conduct would be  
          prohibited under the current price gouging law. However, there  
          was concern that existing law was not providing sufficient  
          protection to individuals and families displaced by the Aliso  
          Canyon disaster when landlords were demanding a year lease in  
          conjunction with the high monthly rental prices.  Current law  
          does not cover rental contracts entered during a declared  
          emergency if the rental contracts were for any period longer  
          ---------------------------
          <1>  
          http://thinkprogress.org/climate/2016/02/12/3749190/aliso-canyon- 
          methane-leak-stopped/
          <2>  
          http://www.scpr.org/news/2016/01/07/56700/fears-of-price-gouging- 
          as-porter-ranch-families-lo/
          <3> ibid.








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          than month to month.  This bill expands the scope of the leases  
          that would be covered under criminal price gouging to include  
          leases with an initial term of up to one year.

          4.  Argument in Support
          
          According to the Consumer Attorneys of California:

            AB 2820 will prevent prices for short-term housing units and  
            towing services from being raised more than 10% without  
            justification when a state of emergency has been declared.  AB  
            2820 further provides that all consumer price gouging  
            protections in current law apply during a state of emergency  
            whether the disaster was natural or manmade.

            The need for this bill is highlighted by the aftermath of the  
            Aliso Canyon gas leak.  Following the devastating leak,  
            unscrupulous individuals took advantage of a traffic loophole  
            in current law and raised the prices of short-term rentals.   
            Landlords in nearby Woodland Hills and Northridge jacked up  
            rents after the gas leak was discovered.  Rental prices in the  
            area were typically between $3,000 and $4,000 per month,  
            during the gas leak, landlords were commonly asking for $6000  
            to $9000 per month - double or triple the amount of normal  
            rents.  Current law protects those with month-to-month leases,  
            but does not apply if the initial lease is longer than 30  
            days.  It also does not apply to hotel and motel operators if  
            the disaster is man-made rather than natural, leaving families  
            vulnerable to exploitation.

            During some disasters residents have had no choice but to  
            abandon their vehicles as they fled to safety.  Towing  
            companies have taken advantage of the crisis by charging  
            exorbitant rates.  AB 2820 will specifically prohibit towing  
            service providers from raising rates more than 10% when a  
            state of emergency is declared.


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