BILL ANALYSIS
AB 568
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 568 (Lieu)
As Amended September 4, 2009
Majority vote
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|ASSEMBLY: |76-0 |(May 28, 2009) |SENATE: |35-2 |(September 9, |
| | | | | |2009) |
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Original Committee Reference: JUD.
SUMMARY : Declares that, until January 1, 2015, any
non-residential property unlawfully used for the manufacture,
sale, or knowing possession of counterfeit goods constitutes a
nuisance and authorizes various public and private remedies,
including injunctions and abatement orders to abate and prevent
the nuisance. Specifically, this bill :
1)Declares that every non-residential building or place used for
the purpose of willfully manufacturing, intentionally selling,
or knowingly possessing for sale any counterfeit goods is a
nuisance which shall be enjoined, abated, and prevented, and
for which damages may be recovered. Specifies that
"counterfeit goods" means 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.
2)Provides that whenever it is believed that a nuisance, as
described above, is kept, maintained or exists, a district
attorney, city attorney, or city prosecutor, or citizen, as
specified, may maintain an action to abate and prevent the
nuisance and perpetually enjoin the person conducting or
maintaining it.
3)Requires the district attorney, city attorney, or city
prosecutor to report, by October 1, 2013, to the Senate and
Assembly Committees on Judiciary on their use of these
abatement provisions and their effectiveness.
The Senate amendments:
1)Delete provisions empowering local authorities to bring
unlawful detainer actions against properties subject to the
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nuisance and add the provision requiring local authorities to
issue a report on the use and effectiveness of abatement
orders by October 1, 2013.
2)Delete language detailing procedures and requirements for
seeking injunctive and other equitable relief relating to the
nuisance and instead cross-reference and amend Penal Code
provisions that already permit local authorities to use
equitable remedies to abate or prevent a nuisance and to
perpetually enjoin the person conducting or maintaining it.
EXISTING LAW :
1)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.
Provides, upon conviction, for criminal fines, imprisonment,
or both, depending upon the volume of counterfeited goods
involved and the number of prior convictions. Provides
further that the court shall, under certain circumstances,
take other actions, including the forfeiture and destruction
of counterfeit goods and any equipment or devices used to
manufacture, reproduce, transport, or assemble goods.
2)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.
3)Provides that a tenant who maintains, commits, or permits a
nuisance upon the premises, or who uses the premises for an
unlawful purpose, thereby terminates the lease, entitling the
landlord to restitution of the premises under unlawful
detainer.
4)Specifies that a person who illegally possesses certain
firearms or ammunition on the premises, or who illegally
possesses or sells a controlled substance on the premises, or
who uses the premises to further either purpose, shall be
deemed to have committed a nuisance upon the premises for the
purpose of bringing an unlawful detainer against that person.
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5)Authorizes, on a pilot project basis, the city attorney or
prosecutor in specified cities to file, in the name of the
people, an action for unlawful detainer against any person who
is engaged in, maintaining, or permitting a nuisance with
respect to the illegal possession or sale of a controlled
substance on the premises. Specifies that the city attorney
or prosecutor may bring this action only if the owner of the
property fails to take action after 30-days, as specified.
Limits this pilot project to the cities of Los Angeles, Long
Beach, Palmdale, San Diego, and Oakland.
6)Authorizes, on a pilot project basis, the city attorney or
prosecutor in specified cities to file, in the name of the
people, an action for unlawful detainer against any person who
is in violation of the nuisance provisions with respect to
illegally possessing or selling specified weapons or
ammunition on the premises or using the premises to further
that purpose. Limits this option only to courts having
jurisdiction over unlawful detainer cases involving property
situated in the cities of Los Angeles, Long Beach, San Diego,
Oakland, and Sacramento.
7)Provides that the pilot projects described in 5) and 6),
above, shall sunset on January 1, 2010.
8)Requires the city attorney or prosecutor in each jurisdiction
participating in the pilot project to provide the Judicial
Council with specified data for the purpose of evaluating the
merits of the above pilot programs.
AS PASSED BY THE ASSEMBLY , this bill contained substantially
similar abatement provisions but also would have permitted local
authorities to initiate unlawful detainer actions against the
subject properties.
FISCAL EFFECT : Unknown
COMMENTS : According to a 2007 report of the Los Angeles
Economic Development Corporation (LAEDC), counterfeit and
pirated goods are sold every day in Los Angeles in plain site.
Pirated and counterfeit CDs, DVDs, computer software, and
clothing and fashion accessories are openly sold on city
streets, at flea markets and swap meets, and, increasingly, in
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commercial storefronts that appear to sell legitimate brand name
items. The report claimed that although many people do not take
piracy or counterfeiting trademarked goods serious - in part
because it has become so easy to download music and movies from
the Internet - piracy and counterfeiting are in fact serious
crimes that cause real and measurable losses in industry
profits, jobs, and tax revenue. The report, based on 2005 data,
noted that the nine economic sectors most vulnerable to piracy
and counterfeiting represent about one-quarter of the total
employment in Los Angeles County. According to the report and
the claims of several of the supporters of this bill, the annual
costs run high indeed: billions of dollars in lost profits; tens
of thousands of lost jobs; and a half-million dollars in lost
sales tax revenue in the City and County of Los Angeles alone.
According to the sponsor, the Los Angeles County District
Attorneys Office, this measure will provide law enforcement with
important new tools, including injunctions, abatement orders,
and civil penalties. This bill, the sponsor believes, will
similarly enhance the power of local authorities to combat
counterfeiting and piracy. In response to concerns raised about
the bill's possible impact on innocent tenants who might be
displaced by a closure or unlawful detainer, the author agreed
to remove provisions authorizing local authorities to initiate
unlawful detainer actions against properties declared to be a
nuisance under the provisions of the bill. The bill will sunset
on January 1, 2015.
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0003067