BILL ANALYSIS
AB 85
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Date of Hearing: May 12, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 85 (Berryhill) - As Amended: April 14, 2009
PROPOSED CONSENT
SUBJECT : JUNK DEALERS AND RECYCLERS
KEY ISSUE : SHOULD LAWS RELATED TO JUNK DEALERS AND RECYCLERS BE
AMENDED TO CORRECT SPECIFIED TECHNICAL ERRORS IN THE LAWS AS
CURRENTLY WORDED?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This non-controversial bill corrects technical errors in the
existing laws related to junk dealers and recyclers. First, the
bill clarifies that an individual who sells nonferrous material
to a junk dealer or recycler may collect payment on or after the
third business day after the date of sale, rather than exactly
on the third day. Second, the bill corrects an erroneous
cross-reference to clarify that a junk dealer or recycler's
record of a seller's thumbprint may only be released pursuant to
a valid search warrant. The bill passed the Assembly Business &
Professions Committee by a vote of 10-0 on consent. There is no
known opposition.
SUMMARY : Corrects technical errors in the existing laws related
to junk dealers and recyclers. Specifically, this bill :
1)Clarifies that an individual who sells nonferrous material to
a junk dealer or recycler may collect payment for those
materials either on or after the third business day after the
date of sale.
2)Clarifies that inspection of the seller's thumbprint, which
junk dealers and recyclers are required to collect upon making
a purchase, may only be performed by a peace officer in
response to a criminal search warrant, where probable cause
AB 85
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for the warrant is based on a theft involving the transaction
for which the thumbprint was given.
EXISTING LAW :
1)Prohibits junk dealers and recyclers from providing payment
for nonferrous material, as defined, unless payment is made by
cash or check, and the payment is mailed or provided on the
third business day after the date of sale. (Business &
Professions Code section 21608.5(a)(1).)
2)Requires junk dealers and recyclers to allow for periodic
inspection of their premises or junk, to determine compliance
with recordkeeping requirements, and requires junk dealers and
recyclers to produce their records of sales and purchases and
any property purchased, for inspection by any of the
following:
a) An officer holding a search warrant;
b) A person appointed by the county sheriff or head of the
police department; or
c) An officer with a court order to inspect the records or
property. (Business & Professions Code section 21606.5.)
3)Requires junk dealers and recyclers to obtain a thumbprint
from a seller, and to maintain the thumbprint record for 2
years after the date of sale. (Business and Professions Code
section 21608.5(6)(A).)
4)Provides that inspections or seizures of thumbprints shall
only be performed by a peace officer under a criminal search
warrant, where probable cause for the warrant was based on a
theft related to the sale for which the thumbprint was
collected. (Business and Professions Code section
21608.5(6)(B).)
5)Provides an exception to the requirement that junk dealers and
recyclers produce their records for inspection on demand,
indicating a cross-reference to section 21608.5(3)(A), which
refers to the junk dealer or recycler's obligation to obtain a
copy of the seller's valid driver's license. (Business &
Professions Code section 21606.5)
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COMMENTS : According to the author, "AB 85 will fix technical
errors in AB 844. Current cross references contradict the
intent of the legislature regarding the release of the required
thumbprint, as well as clarifying the payment release
timeframe."
Payment release timeframe . The statute as currently worded
indicates that payment for nonferrous materials must be mailed
or retrieved by the seller exactly "on the third business day
after the date of sale." Such a rigid requirement is not
necessary to further the intent of the statute (i.e., to provide
a three-day wait period after sale to ensure the materials are
not stolen), and would be difficult to adhere to. Therefore it
is reasonable to amend the statute to provide more flexibility
so that the payment can be mailed or retrieved "on or after the
third business day after the date of sale."
Cross-reference correction . The statute currently provides that
junk dealers and recyclers must obtain a thumbprint from a
seller of nonferrous materials and maintain the record of the
thumbprint for 2 years after the sale. The statute also
provides that junk dealers and recyclers are only required to
produce a seller's thumbprint pursuant to a valid search
warrant. However, in the statute that refers to junk dealers'
and recyclers' general obligation to produce records for
inspection, where the statute provides an exception to the
general requirement to produce records, it incorrectly
cross-references another section. Specifically, the statute
cross-references a section that relates to seller's driver's
license records, rather than the thumbprint records. Therefore
it is necessary to correct the cross-reference to refer
correctly to the thumbprint record, as a record that shall not
be provided during a regular records inspection, since it can
only be produced pursuant to a search warrant, as specified.
PRIOR LEGISLATION : AB 844 (Berryhill), Chapter 731, Statutes of
2008: Required junk dealers and recyclers to comply with
additional recordkeeping requirements and new payment
restrictions when purchasing nonferrous materials.
REGISTERED SUPPORT/OPPOSITION :
Support
AB 85
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California Farm Bureau Federation
Opposition
None on file
Analysis Prepared by : Drew Liebert and Rachel Anderson / JUD. /
(916) 319-2334