BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 1978 (Galgiani)
As Amended April 17, 2012
Hearing Date: June 26, 2012
Fiscal: No
Urgency: No
BCP
SUBJECT
Salvageable Personal Property: Collection Boxes
DESCRIPTION
This bill would provide that a person may not place or maintain
a collection box on private property unless the owner or
operator of the collection box first obtains the written consent
of the property owner.
This bill would provide civil immunity for owners of property
who act reasonably to remove a collection box placed on the
property without consent, and for tow truck operators who act
reasonably in removing a collection box upon the authorization
of the property owner.
This bill would impose liability on a property owner or person
in lawful possession of private property who causes the removal
of a collection box despite valid written consent, as specified.
BACKGROUND
Organizations seek donations from the public through various
ways, including the use of unattended collection boxes. Those
collection boxes are used by both nonprofit and for-profit
entities, and, have been the subject of scrutiny in recent years
due to concern that members of the public may be aware of the
actual cause that the donations are benefiting.
To facilitate greater awareness of the source of the unattended
collection box, existing law requires those boxes to include
(more)
AB 1978 (Galgiani)
PageB of?
specific disclosures on the front of every unattended box,
including the owner and operator of the box, whether the box is
operated by a for-profit or non-profit organization, and, if the
box is a nonprofit, the charitable cause that will benefit from
the donations. Those disclosures were enacted by AB 918 (Adams,
Chapter 75, Statutes of 2010) in an effort to ensure that the
members of the public who donate goods are aware of the
charitable cause that will benefit from their donation.
In response to the related issue of unattended collection boxes
reportedly being placed on properties without the property
owners' consent, this bill would require a property owner's
consent before a box may be placed on private property and
provide an enforcement mechanism consisting of both immunity and
liability for the property owner.
CHANGES TO EXISTING LAW
Existing law requires the front of every collection box to
conspicuously display both of the following: (1) the name,
address, telephone number, and, if available, the Internet Web
site address of the owner and operator of the collection box;
and (2) a statement that either reads "this collection box is
owned and operated by a for-profit organization" or "this
collection box is owned and operated by a nonprofit
organization." (Welf. & Inst. Code Sec. 151(a).)
Existing law requires collection boxes owned by a nonprofit
organization to display a statement describing the charitable
cause that will benefit from the donations and requires a
collection box owned by a for-profit entity to display a
statement that the donation is not tax deductible. (Welf. &
Inst. Code Sec. 151(b)-(c).)
Existing law authorizes a city, county, or city and county to
have the authority to declare a collection box in violation of
the above provisions to be a public nuisance and abate the
nuisance accordingly. (Welf. & Inst. Code Sec. 152.)
Existing law provides that nothing in the above provisions shall
be construed to limit or infringe upon the powers of a city,
county, or city and county to impose additional requirements
upon the solicitation and sale of salvageable personal property.
(Welf. & Inst. Code Sec. 153.)
AB 1978 (Galgiani)
PageC of?
This bill would provide that a person may not place or maintain
a collection box on private property unless the owner or
operator of the collection box first obtains the written consent
of the property owner. An owner may rescind his or her written
consent by providing written notice of the rescission to the
collection box owner or operator.
This bill would provide the following civil immunities relating
to the removal of collection boxes:
an owner of property, who acts reasonably, shall not be
civilly liable to a collection box owner or operator for the
removal of a collection box placed on the owner's property
without the owner's written consent;
an owner of property who has rescinded his or her written
consent shall not be civilly liable to the owner or operator
of the collection box if the property owner has acted
reasonably in the removal or disposal of the collection box;
and
a tow truck operator, who acts reasonably, shall not be
civilly liable to a collection box owner or operator for the
removal of a collection box from private property if the
operator first obtains authorization from the property owner.
This bill would further provide that a property owner or person
in lawful possession of private property who causes the removal
of a collection box to a storage facility, or otherwise disposes
of a collection box, despite valid written consent from the
property owner at the time of removal, shall be civilly liable
to the owner or operator of the collection box for four times
the amount of towing and storage charges, or $1,000, whichever
is higher.
This bill would provide that the above civil liability would not
apply if removal of a collection box is necessary to comply with
enforcement of applicable permitting, zoning, or other local
ordinances.
COMMENT
1. Stated need for the bill
According to the author:
Current law . . . does not require the owner or operator of
an unattended donation box to obtain the consent of the
AB 1978 (Galgiani)
PageD of?
property owner to employ their collection box. In addition,
local governments who decide to adopt ordinances governing
unattended donation boxes are restricted by resources
necessary to enforce such an ordinance. In recent years, we
have witnessed a flood of unattended collection boxes being
placed on commercial properties without any knowledge or
permission of property owners. Not only are these
unattended collection boxes a nuisance and violation of
property rights, but they siphon millions of dollars in
donations away from our legitimate local charities and into
the hands of for-profit companies that share a tiny fraction
of the amounts they make with charitable causes.
Goodwill Industries of Sacramento Valley & Northern Nevada, in
support, similarly notes: "Several local governments have
approved and deployed ordinances in an effort to create
accountability, transparency and prevent unsupported placement
of donation boxes on private and public property. However with
local governments strapped for budget funding, enforcement of
these ordinances become�s] near impossible."
To address those issues, the author asserts that "AB 1978
creates an enforcement mechanism that protects the public's
intent to donate goods for charitable purposes, the rights of
property owners, and the rights of collection boxes."
2. Balancing of interests
This bill seeks to address the issue of collection boxes being
placed on properties without the property owner's consent.
Goodwill Industries of Sacramento Valley & Northern Nevada, in
support, asserts that "there has been a recent surge of
unattended collection boxes. They have become a nuisance,
target for illegal dumping, and a blatant violation of property
rights. This is no more evident than when boxes are placed in
areas without a property owner's consent." In an effort to
address those issues and empower a property owner to remove
unwanted collection boxes, this bill would require consent of
the property owner before a person may place a collection box on
private property, and confer a civil immunity on property owners
and tow truck drivers that act reasonably to remove unauthorized
collection boxes. The author asserts that those provisions
"will create an enforcement mechanism that protects the public's
intent to donate goods for charitable purposes �as well as] the
rights of property owners."
AB 1978 (Galgiani)
PageE of?
a. Written consent
Pursuant to this bill, a collection box may not be placed or
maintained on private property unless the owner or operator
of the collection box first obtains the written consent of
the property owner. Any owner that elects to later rescind
his or her consent may do so by providing written notice to
the collection box owner or operator. The author notes that
while existing law regulates information displayed on
collection boxes, there currently is no requirement to get
the consent of the property owner for box placement, thus,
"allow�ing] bin operators the opportunity for uncontrolled
expansion without regard for property owner rights." That
consent requirement would be consistent with the inherent
rights of a property owner - those property rights arguably
include the ability to decide whether or not a collection
box should be on a property (especially when some of those
boxes have reportedly become a nuisance).
USAgain, LLC<1> asserts that "it is very important that the
bill does not limit who can sign the written consent to place
clothing collection bins, solely to property owners. Often
times property owners are 'absent' or in some instances, the
property is held in trust with the trustee located outside of
California or the United States. A property owner's agent,
lessee or person in lawful possession of private property has
the authority to act on behalf of the property owner in
deciding whether to place items such as clothing collection
bins on the property in question and is authorized to give the
type of written consent required by the proposed bill."
D.A.R.E. America similarly requests a "friendly amendment" to
allow those additional individuals to consent. Staff notes
that the practical effect of allowing individuals other than
the property owner to consent would be to facilitate the
placement those boxes. In response to concerns about limiting
consent to the property owner, the author offers the following
amendment to also allow agents to provide consent, rescind
consent, and receive immunity pursuant to the provisions of
this bill.
--------------------------
<1> According to their website, USAgain is "a for-profit company
that collects unwanted textiles and resells them in the U.S. and
abroad, effectively diverting millions of pounds of clothing
from landfills, generating new revenue streams for U.S.
businesses and non-profits, and fueling local economies in
emerging countries." ( http://www.usagain.com/about-us )
AB 1978 (Galgiani)
PageF of?
Author's amendment
On page 3, line 9 after the period, insert:
(e)(1) For purposes of this section, a property owner's
agent may provide written consent for the placement of the
collection box pursuant to subdivision (a)(1) if that
consent is consistent with the authority conferred upon the
agent by the property owner in writing. That agent may also
rescind his or her consent pursuant to subparagraph (a)(2).
(2) A property owner's agent shall be considered a property
owner for purposes of subdivisions (b), (c), and (d)
provided that the requirements of the subparagraphs are
otherwise met.
b. Civil immunity for property owners
This bill would provide civil immunity to owners of private
property and tow truck operators who act reasonably to
remove a collection box from private property. That
immunity would apply to a property owner who removes a box
that was placed on his or her private property without
consent and to an owner who removes a box after rescinding
his or her consent. Tow truck operators similarly would not
be civilly liable to a collection box owner or operator if
the operator first obtains authorization from the property
owner. It should be noted that all of those immunities only
apply if the person acts "reasonably" in removing the box;
thus, the immunity could arguably not be used to shield an
individual from recklessly damaging a box during removal.
With respect to the need for an immunity provision, the
California Retailers Association (CRA), in support, notes
that "�t]he uncertainty that comes with removing these
�unauthorized] collection boxes is a particularly difficult
issue. AB 1978 would give our members certainty by laying
out a process for the removal of these collection boxes from
their premises . . ." Furthermore, from a policy
perspective, it is unclear why a property owner should be
liable if he or she acts reasonably to remove a collection
box that was placed on his or her private property without
consent. If reasonable removal of those boxes resulted in
liability for the property owner, that liability itself
could have the effect of preventing some owners from fully
AB 1978 (Galgiani)
PageG of?
asserting their property rights.
Planet Aid, in opposition, contends that this bill would
allow "private parties to seize and tow away a collection
bin without any procedural safeguards or due process
whatsoever," and further asserts:
The bill simply says consent to placement of a bin can be
rescinded and the collection bins towed. Ostensibly, it
sets a standard of "reasonableness," but offers no
specifics. For instance, it provides for no grace period
after rescission to allow an owner time to remove a bin,
requires absolutely no notice of the towing, says nothing
regarding ultimate disposition of the collection bins,
contains no provisions for reasonable and fair sale
procedures, and no provisions for disposition of the sale
proceeds. It essentially allows any private party to
deprive another of property and then insulates the
wrongdoer from a wrongful seizure by limiting its
liability.
As noted above, this bill creates a set of immunities when
acting reasonably, a liability, and imposes a requirement of
consent. While the bill includes no definition of
"reasonableness," courts do have extensive experience
determining whether an action was reasonable under the
circumstances, and it is that flexibility which arguably
could allow a court to find that immunity was not
appropriate in a circumstance where an individual wrongfully
seized the property of another. Despite that flexibility,
from a policy standpoint, it appears appropriate to amend
the bill to give the owner of the collection box a
reasonable amount of time to pick up the box when the
property owner revokes his or her consent. Since the bill
does impose liability if a property owner elects to remove a
box after providing written consent (unless the consent has
been rescinded), that amendment would also give the property
owner a definitive time at which the consent was deemed to
be officially rescinded. Accordingly, the following
amendment would clarify that consent can be revoked by
providing 10 days written notice to the address that is
required to be placed on the collection box pursuant to
Section 151 of the Welfare & Institutions Code.
Suggested amendment:
AB 1978 (Galgiani)
PageH of?
On page 2, line 10 after the period, insert:
For purposes of this section, consent shall be deemed
rescinded 10 calendar days after the owner of private
property deposits a written notice of rescission in the
United States mail, postage prepaid, addressed to the
address displayed on the collection box pursuant to
section 151.
Similarly, it also appears appropriate for a property owner
receiving immunity under this section to also inform the
owner of the collection box that the box has been removed
from the property due to lack of consent. That amendment
could both alert the owner to the towing of their property
(which may result in significant towing / storage charges),
and inform the owner about the current location of the box
so that it can be recovered. From a practical standpoint,
that notice requirement would only apply when contact
information for the owner appears on the front of the
collection box, as required by existing law.
Suggested amendment :
On page 3, line 9 after the period, insert:
(d) A property owner who causes the removal of a collection
box shall send a written notice of removal to the address
that is conspicuously displayed on the front of every
collection box pursuant to section 151. That notice must
be mailed within 5 days of removal and include the current
location of the box. This section shall not apply if no
address appears on the front of the collection box.
c. Civil liability
This bill would also provide that a property owner or person
in lawful possession of private property that causes the
removal of a collection box despite valid written consent
from the property owner is civilly liable to the owner or
operator of the collection box for four times the amount of
the towing and storage charges, or $1,000, whichever is
higher. Similar to the above protections for property
owners, this provision would arguably provide some
protection for collection box owners who reasonably believe
that, due to the consent of the property owner, the box will
AB 1978 (Galgiani)
PageI of?
not be removed from the property.
d. Delayed enactment
Planet Aid, in opposition, contends that: "�a]s a matter of
fairness and due process, this bill should be amended to
make clear that it applies only to new consents obtained
after January 1, 2013�, o]therwise, it would deprive the
parties of their vested rights." In response to those
concerns, the author proposes to delay enactment by 60 days,
thus, giving companies that have placed collection boxes
without a property owner's consent to either get that
consent or remove the box by March 1, 2013. Considering
that the Governor must either sign or veto this bill by
September 30th, that delayed enactment date would
essentially provide owners of collection boxes with a five
month notice that they must obtain the consent of the owner
or remove the box.
Author's amendment:
On page 3, after line 9, insert:
(f) This section shall become operative on March 1, 2013.
3. Concerns about some collection boxes
In addition to preserving property rights, this bill also seeks
to ensure that the collection box owner actually seeks
permission before placing a collection box on an owner's
property. The act of seeking that permission would allow the
property owner to engage in a dialog with the collection box
owner about the charities or causes benefiting from any
donations received. With respect to problems relating to
collection boxes, the Chicago Tribune's May 15, 2011 article
reported:
The process of donating used clothing used to be pretty
straightforward, with most of it going to big charities like
the Salvation Army, Goodwill and St. Vincent de Paul. In
recent years, however, clothing donation has become more
confusing -- even as it's grown more convenient -- as a wide
array of colorful collection boxes has sprouted up in
parking lots all over the nation.
AB 1978 (Galgiani)
PageJ of?
Though the drop-off boxes may look similar at first glance,
only some are operated by charities. Other boxes are placed
by commercial companies that may -- or may not -- donate
some money to charity. And some of the charities involved
don't meet the baseline standards of the Better Business
Bureau or the Chicago-based American Institute of
Philanthropy. (Eng, Drop-off boxes not equally charitable,
Chicago Tribune (May 14, 2011).)
Similarly, Goodwill Industries of Sacramento Valley & Northern
Nevada express concern that "some for-profit companies,
disguised as 'charities' have leveraged people's good nature
in order to use these bins to generate revenue. Full
disclosure is not required at the site of these bins and
donors do not know that their donations may be going to
for-profit companies as opposed to charity. As a result, they
siphon off the flow of donations form our most reputable local
charities that rely on donations to fund social services,
which have become more reliant on donations during these tough
economic times." Although this bill would not directly
address the lack of disclosure to individuals who may
mistakenly believe their donations are going to a specific
charity, this bill would empower property owners to remove
boxes for which they did not provide consent. Similarly, any
box that is legally on private property would arguably be
there because the actual owner of the box approached the
property owner and sought consent for that specific
organization to place a collection box on the owner's
property.
4. Remaining opposition concerns
USAgain, LLC additionally expresses concern that this bill
"does not attach liability to unscrupulous tow truck operators
who remove bins without proper written consent . . . and
notice to collection box operators. There have been incidents
in New York and Georgia where tow truck operators have removed
USAgain boxes without consent and scrapped the metal for a
profit, causing a loss to USAgain. We strongly urge that the
bill be amended to . . . hold truck operators accountable or
in the alternative that it make reference to Vehicle Code
Section 22658, which governs the removal of property by
private tow truck operators." Despite those concerns, it is
unclear why the unauthorized removal and scrapping of a box
would not already be considered theft, subjecting the
AB 1978 (Galgiani)
PageK of?
unscrupulous tow truck driver to civil liability, if not
criminal penalties. It should also be noted that the
amendment discussed in Comment 2 would require the property
owner to disclose the current location of the box (arguably
the storage yard), thus providing a notice similar to the
signs posted on property to inform vehicle owners of the
number to call if their car is towed.
Campus California and Planet Aid similarly contend that this
bill would cause violations of the charitable trust, is vague
and broad, and would reduce charitable giving. Eva Nielsen,
President of the Gaia Movement, further asserts that the
sponsor "does not use collection boxes in its operations, but
a chain of collection sites and retail outlets," that this
bill will create a chaotic situation because "the sponsors of
this bill . . . �are] prepared to finance the removal of
recycling bins on a large scale from their current locations,"
and raises concerns about limiting consent to property owners
that are similar to those discussed in Comment 2 (a). In
response to those concerns, the sponsor writes:
Goodwill's intent is to ensure the public perception of
donated goods collection is positive and based on a set of
rules that allow a property owner to make an informed
decision to allow a non-profit to operate on his or her
property. When an organization masquerading as a non-profit
commits a crime of trespass it reflects on all non-profits
negatively. The rules proposed in AB 1978 will not deter
legitimate law abiding non-profits from expanding their
respective missions impact by obtaining owner consent to
collect donated goods on his or her property.
5. Clarifying amendment
The following amendment is suggested to remove the word
"disposal" which does not appear in the subsection providing
liability for removal without consent:
Suggested Amendment :
On page 2, line 18, strike "or disposal"
Support : Browman Development Company, Inc.; California Business
Properties Association; California Council of Goodwill
AB 1978 (Galgiani)
PageL of?
Industries; California Retailers Association; California Waste
Recovery Systems; Goodwill Industries of the Greater East Bay;
Goodwill Industries of Santa Cruz, Monterey & San Luis Obispo
Counties; Goodwill Industries of the Redwood Empire; Target;
Goodwill Industries of Southern California
Opposition : Campus California; Planet Aid; The Gaia Movement;
USAgain, LLC
HISTORY
Source : Goodwill Industries of Sacramento Valley & Northern
Nevada, Inc.; Goodwill Industries of San Joaquin Valley, Inc.
Related Pending Legislation : None Known
Prior Legislation : AB 918 (Adams, Chapter 75, Statutes of 2010)
See Background.
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Floor (Ayes 71, Noes 0)
**************