BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 568|
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THIRD READING
Bill No: AB 568
Author: Lieu (D)
Amended: 07/23/09 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-0, 7/14/09
AYES: Corbett, Harman, Florez, Leno
NO VOTE RECORDED: Walters
SENATE APPROPRIATIONS COMMITTEE : 8-0, 8/17/09
AYES: Kehoe, Cox, Corbett, Denham, Leno, Oropeza, Runner,
Wolk
NO VOTE RECORDED: Hancock, Price, Walters, Wyland, Yee
ASSEMBLY FLOOR : 76-0, 5/28/09 (Consent) - See last page
for vote
SUBJECT : Counterfeit goods: abatement
SOURCE : Los Angeles County District Attorney
DIGEST : This bill provides that every nonresidential
building or place used for the purpose of willfully
manufacturing, intentionally selling, or knowingly
possessing for sale nay counterfeit goods is a nuisance
which shall be enjoined, abated, and prevented, and for
which damages may be recovered. This bill permits a
district attorney, city attorney, or any citizen or
resident to bring an action to abate and prevent the
nuisance and perpetually enjoin the person conducting or
CONTINUED
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maintaining the nuisance. This bill sunsets on January 1,
2015.
ANALYSIS : Existing law defines a nuisance as anything
which is injurious to health, including but not limited to,
the illegal sale of controlled substances, or is indecent
or offensive to the senses, or an obstruction to the free
use of property, so as to interfere with the comfortable
enjoyment of life or property, or unlawfully obstructs the
free passage or use, in the customary manner, of any
navigable lake, river, bay, stream, canal, or basin, or any
public park, square, street, or highway. (Civil Code
Section 3479.)
Existing law makes it a crime for any person to willfully
manufacture, intentionally sell, or knowingly possess for
sale any counterfeit mark registered with the Secretary of
State or patented by the United States Patent and Trademark
Office. Existing law provides for criminal fines,
imprisonment, or both, based on the volume of counterfeited
goods. Upon a conviction or plea of nolo contendere,
existing law requires a court to order forfeiture and
destruction of all counterfeit marks, and the means of
making the marks, as specified. (Penal Code Section 350.)
Existing law makes it a crime for any person to fail to
disclose the origin of a recording or audiovisual work if,
for commercial advantage or financial gain, he or she
knowingly advertises or offers for sale or rent any
recording or audiovisual work, the cover, jacket, or label
of which does not truthfully disclose the product's actual
manufacturer, artist, performer, producer, or programmer.
(Penal Code Section 653w.)
Existing law provides that a person is guilty of a
misdemeanor when he or she maintains or commits any public
nuisance or willfully omits to perform any legal duty
relating to the removal of a public nuisance. (Penal Code
Section 372.)
Existing law specifies that a person is guilty of a
misdemeanor when, after notice from public prosecutors, he
or she maintains, permits, or allows a public nuisance to
exist upon his or her property, or leases the property and
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maintains, permits, or allows a public nuisance to exist.
Under current law, the existence of such a nuisance for
each and every day after the service of the notice is
deemed to be a separate and distinct offense. And, it is
the duty of the district attorney or the city attorney, as
specified, to prosecute all persons guilty of violating
this section by continuous prosecutions until the nuisance
is abated and removed. (Penal Code Section 373a.)
Existing law provides that certain uses of buildings or
places constitute a nuisance, including those buildings or
places used for the purposes of: (1) illegal gambling or
prostitution (Penal Code Section 11225); (2) unlawfully
selling, serving, storing, keeping, manufacturing, or
giving away any controlled substance (Health & Safety Code
Sections 11570); and (3) unlawfully selling, serving, or
giving away alcoholic liquor (Penal Code Section 11200).
This bill provides that if there is a conviction of
specified crimes by any person, then a non-residential
building or place used by that person for the purpose of
willfully manufacturing, intentionally selling, or
knowingly possessing for sale any counterfeit goods shall
be deemed a nuisance which shall be enjoined, abated, and
prevented against the person convicted, and for which
damages may be recovered.
This bill defines "counterfeit goods" as any counterfeit of
a registered state or federal trademark, or any recording
or audiovisual work that does not disclose the actual
manufacturer, author, producer, or artist, as specified.
Existing law provides that whenever there is reason to
believe that a nuisance as defined (illegal gambling or
prostitution, unlawful sale, storage, or manufacture of
controlled substances, and unlawful sale of liquor) is
kept, maintained, or exists, a district attorney, city
attorney, or any citizen may bring an action to abate and
prevent the nuisance. Current law also specifies
procedures for public prosecutors to follow when proceeding
with an action for abatement and allows the court to order
closure of the premises. (Penal Code Sections 11200 et
seq., 11225 et seq., and Health & Safety Code Section 11570
et seq.)
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This bill provides that if a nuisance (for counterfeit
goods purposes) is kept, maintained, or exists, in any
county a district attorney may, or any citizen, bring an
action to abate and prevent the nuisance and to perpetually
enjoin the person conducting or maintaining the nuisance,
and the owner, lessee, or agent of the building or place
from, directly or indirectly, maintaining or permitting the
nuisance.
This bill allows the court to order closure of the premises
under certain circumstances, and would require the court to
order the defendant to provide relocation assistance to
displaced tenants not involved in the nuisance activity, as
specified.
This bill provides that if the existence of a nuisance is
established in an action brought under this bill, then the
order of abatement shall direct the removal from the
nonresidential building or place of all fixtures, musical
instruments, and other moveable property used in
conducting, maintaining, aiding, or abetting the nuisance.
This bill additionally allows the court to assess a civil
penalty not to exceed $25,000 against any or all of the
defendants, based on the severity of the nuisance and its
duration.
This bill provides that if the court finds that any vacancy
resulting from the closure of the nonresidential building
or place may create a nuisance or that closure is otherwise
harmful to the community, the court may instead order the
person who is responsible for the nuisance or the person
who knowingly permits the manufacture or sale of
counterfeit goods to pay damages to the city or county in
whose jurisdiction the nuisance is located. The damages
shall be in an amount equal to the fair market value of the
building or place for up to one year and shall be used by
the city or county for the purpose of carrying out
counterfeit goods abatement programs.
This bill provides that a district attorney, city attorney,
or city prosecutor shall report to the Senate and Assembly
Committees on Judiciary by October 1, 2013, on their use of
the provisions of this bill and their effectiveness. The
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report shall include, but not be limited to all the
following:
A. The frequency of use of the nuisance abatement
provisions as well as statistics on whether the use of
the abatement provisions correlates with a decrease in
the use of criminal penalties.
B. Any statistics or information concerning the impact of
the use of these provisions on counterfeiting overall,
both in the relevant county or city and overall.
This bill sunsets on January 1, 2015.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 8/24/09)
Los Angeles County District Attorney (source)
American Federation of State, County, and Municipal
Employees, AFL-CIO
California Peace Officers' Association
California Police Chiefs Association
Central City Association of Los Angeles
City of Los Angeles
Los Angeles Area Chamber of Commerce
Motion Picture Association of America
Peace Officers Research Association
Sony Pictures Entertainment
OPPOSITION : (Verified 8/24/09)
American Civil Liberties Union
ARGUMENTS IN SUPPORT : The Los Angeles County District
Attorney's Office, sponsor of this bill, asserts that the
bill will provide law enforcement with important new tools,
including injunctions, abatement orders, and civil
penalties. This bill is based upon existing narcotics
abatement law and the sponsor explains that the law has
been successfully used by prosecutors and private litigants
in California since 1992. Also, California's Red Light
Abatement Law, which grants local authorities increased
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powers by declaring a property used for unlawful purposes a
public nuisance, has been used successfully to combat
prostitution, according to the sponsor. The sponsor
believes that this bill will similarly enhance the power of
local authorities to combat counterfeiting and piracy.
ARGUMENTS IN OPPOSITION : The American Civil Liberties
Union (ACLU) opposes the bill, arguing that, while
counterfeiting may be unlawful, it does not constitute a
nuisance to tenants or neighbors in the same manner as
prostitution, illegal drugs, or illegal weapons. The ACLU
writes, "by extending the 'public nuisance' designation to
counterfeiting and sales, it is hard to imagine which
illegal activities could not be considered a public
nuisance."
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill
Berryhill, Tom Berryhill, Blakeslee, Block, Blumenfield,
Brownley, Buchanan, Caballero, Charles Calderon, Carter,
Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon,
DeVore, Emmerson, Eng, Feuer, Fletcher, Fong, Fuentes,
Fuller, Furutani, Gaines, Galgiani, Garrick, Gilmore,
Hagman, Hall, Harkey, Hayashi, Hernandez, Hill, Huber,
Huffman, Jeffries, Jones, Knight, Krekorian, Lieu, Logue,
Bonnie Lowenthal, Ma, Miller, Monning, Nava, Niello,
Nielsen, John A. Perez, V. Manuel Perez, Portantino,
Price, Ruskin, Salas, Saldana, Silva, Skinner, Smyth,
Solorio, Audra Strickland, Swanson, Torlakson, Torres,
Torrico, Tran, Villines, Yamada, Bass
NO VOTE RECORDED: Duvall, Evans, Mendoza, Nestande
RJG:do 8/24/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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