BILL ANALYSIS �
AB 2212
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Date of Hearing: April 10, 2012
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2212 (Block) - As Introduced: February 24, 2012
SUMMARY : Clarifies that buildings or places used for human
trafficking can be declared a public nuisance, and specifies
that half of any civil penalties collected therefrom shall be
directed to fund grants for human trafficking victim services
and prevention programs. Specifically, this bill :
1)Classifies a building or place used for the purpose of, or in
or upon which occur acts of, human trafficking as a public
nuisance.
2)Divides civil penalties collected through the nuisance
provisions, in cases of human trafficking, between the
Victim-Witness Assistance Fund, to be available upon
appropriation by the Legislature to the California Emergency
Management Agency to fund grants for human trafficking victim
services and prevention programs, and the city attorney and
city prosecutor or district attorney, to be used exclusively
for enforcement of nuisance abatement laws.
EXISTING LAW :
1)States that every building or place used for the purpose of
illegal gambling as defined by state law or local ordinance,
lewdness, assignation, or prostitution, and every building or
place in or upon which acts of illegal gambling as defined by
state law or local ordinance, lewdness, assignation, or
prostitution, are held or occur, is a nuisance which shall be
enjoined, abated, and prevented, and for which damages may be
recovered, whether it is a public or private nuisance.
Nothing in this subdivision shall be construed to apply the
definition of a nuisance to a private residence where illegal
gambling is conducted on an intermittent basis and without the
purpose of producing profit for the owner or occupier of the
premises. �Penal Code Section 11225(a).]
2)Provides that every building or place used as a bathhouse
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which as a primary activity encourages or permits conduct that
according to the guidelines of the federal Centers for Disease
Control can transmit AIDS, including, but not limited to, anal
intercourse, oral copulation, or vaginal intercourse, is a
nuisance which shall be enjoined, abated, and prevented, and
for which damages may be recovered, whether it is a public or
private nuisance. For purposes of this subdivision, a
"bathhouse" means a business which, as its primary purpose,
provides facilities for a spa, whirlpool, communal bath,
sauna, steam bath, mineral bath, mud bath, or facilities for
swimming. �Penal Code Section 11225(b).]
3)States that if the existence of a nuisance is established in
an action as provided in this article, an order of abatement
shall be entered as a part of the judgment in the case,
directing the removal from the building or place of all
fixtures, musical instruments and movable property used in
conducting, maintaining, aiding, or abetting the nuisance, and
directing the sale thereof in the manner provided for the sale
of chattels under execution, and the effectual closing of the
building or place against its use for any purpose, and that it
be kept closed for a period of one year, unless sooner
released. If the court finds that any vacancy resulting from
closure of the building or place may create a nuisance or that
closure is otherwise harmful to the community, in lieu of
ordering the building or place closed, the court may order the
person who is responsible for the existence of the nuisance to
pay damages in an amount equal to the fair market rental value
of the building or place for one year to the city or county in
whose jurisdiction the nuisance is located. The actual amount
of rent being received for the rental of the building or
place, or the existence of any vacancy therein, may be
considered, but shall not be the sole determinant of the fair
market rental value. Expert testimony may be used to determine
the fair market rental value. �Penal Code Section
11230(a)(1).]
4)Specifies that while the order remains in effect as to
closing, the building or place is and shall remain in the
custody of the court. �Penal Code Section 11230(a)(2).]
5)States that for removing and selling the movable property, the
court is entitled to charge and receive the same fees as he or
she would for levying upon and selling like property on
execution. �Penal Code Section 11230(a)(3).]
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6)States that for closing the premises and keeping them closed,
a reasonable sum shall be allowed by the court. �Penal Code
Section 11230(a)(4).]
7)Provides that the court may assess a civil penalty not to
exceed twenty-five thousand dollars ($25,000) against any and
all of the defendants, based upon the severity of the nuisance
and its duration. �Penal Code Section 11230(b).]
8)States that one-half of the civil penalties collected pursuant
to this section shall be deposited in the Restitution Fund in
the State Treasury, the proceeds of which shall be available
for appropriation by the Legislature to indemnify specified
persons filing claims and one-half of the civil penalties
collected shall be paid to the city in which the judgment was
entered, if the action was brought by the city attorney or
city prosecutor. If the action was brought by a district
attorney, one-half of the civil penalties collected shall be
paid to the treasurer of the county in which the judgment was
entered. �Penal Code Section 11230(c).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "As many as
18,000 men, women and children are trafficked into the United
States every year and even more are trafficked within our
borders - suffering unspeakable violence at the hands of
traffickers. Human trafficking continues to be a growing
problem in the United States especially in San Diego.
California is particularly vulnerable to human trafficking
because it has international boarders, a high number of ports
and airports, and a large economy with industries that attract
forced labor.
"AB 2212 provides a new civil remedy to shut down human
trafficking operations and directs recovered penalties to
human trafficking victim service providers that provide legal
support, counseling and housing to victims."
2)Background : According to the background provided by the
author, �t]his bill seeks to remedy two problems. First,
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current law does not provide an effective civil enforcement
mechanism against traffickers, property managers and business
owners who are engaging in, and profiting from, illegal human
trafficking activities. While the current law allows city
attorneys and prosecutors to bring a nuisance claim against
the property where human trafficking occurred, this process
can only be initiated after a prosecutor has acquired a time
intensive felony conviction. Once a prosecutor acquires a
felony conviction, which can take years, there is typically no
longer any value in pursuing a nuisance claim. This bill
remedies the problem by designating human trafficking as a
"per se" nuisance. This allows city attorneys and prosecutors
the ability to initiate a nuisance abatement claim as soon as
the police discover a human trafficking operation.
The second problem has to do with funding for victims. The
California Alliance to Combat Trafficking and Slavery Task
Force found that there is insufficient funding for
organizations in California that provide services to victims
of human trafficking. This bill would help generate additional
funding by directing recovered penalties to human trafficking
victim service providers.
3)Current Law : Under current law, upon conviction of a
violation of human trafficking, if real property is used to
facilitate the commission of the offense, the procedures for
determining whether the property constitutes a nuisance and
the existing remedies outlined in Penal Code Section 11225
apply. (Penal Code Section 263.3)
4)Human Trafficking : Human trafficking involves the
recruitment, transportation or sale of people for forced
labor. Through violence, threats and coercion, victims are
forced to work in, among other things, the sex trade, domestic
labor, factories, hotels and agriculture. According to the
January 2005 United States Department of State's Human
Smuggling and Trafficking Center report, "Fact Sheet:
Distinctions Between Human Smuggling and Human Trafficking",
there is an estimated 600,000 to 800,000 men, women and
children trafficked across international borders each year.
Of these, approximately 80% are women and girls and up to 50%
are minors. A recent report by the Human Rights Center at the
University of California, Berkeley cited 57 cases of forced
labor in California between 1998 and 2003, with over 500
victims. The report, "Freedom Denied", notes most of the
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victims in California were from Thailand, Mexico, and Russia
and had been forced to work as prostitutes, domestic slaves,
farm laborers or sweatshop employees. �University of
California, Berkeley Human Rights Center, "Freedom Denied:
Forced Labor in California" (February, 2005).] According to
the author:
"While the clandestine nature of human trafficking makes it
enormously difficult to accurately track how many people are
affected, the United States government estimates that about
17,000 to 20,000 women, men and children are trafficked into
the United States each year, meaning there may be as many as
100,000 to 200,000 people in the United States working as
modern slaves in homes, sweatshops, brothels, agricultural
fields, construction projects and restaurants."
5)Trafficking Victims Protection Act of 2000 (22 USC Sections
7101 et seq.) : In October 2000, the Trafficking Victims
Protection Act of 2000 (TVPA) was enacted and is
comprehensive, addressing the various ways of combating
trafficking, including prevention, protection and prosecution.
The prevention measures include the authorization of
educational and public awareness programs. Protection and
assistance for victims of trafficking include making housing,
educational, health-care, job training and other federally
funded social service programs available to assist victims in
rebuilding their lives. Finally, the TVPA provides law
enforcement with tools to strengthen the prosecution and
punishment of traffickers, making human trafficking a federal
crime.
6)Human Trafficking Studies: The Family Violence Prevention
Fund study, in the Executive Summary of "Turning Pain into
Power: Trafficking Survivors' Perspectives on Early
Intervention Strategies", states the following:
"This study was undertaken to examine the hypothesis that the
health care system might be an ideal place to focus education
and intervention efforts on victims of slavery. Human
trafficking is without question a health care issue: victims
of trafficking suffer a host of health-related problems and
are at high risk of injury, illness and even death from the
circumstances of their forced employment. . . . Is health
care a missed opportunity to intervene on behalf of trafficked
women and children? . . . If health care providers do
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interact with this population unknowingly, what steps could be
taken to enable practitioners to recognize trafficking victims
and understand their special needs?"
A February 2005 report by the Human Rights Center at the
University of California, Berkeley discussed the legislative
response to the human trafficking problem. This report found
that the California State Legislature must address several
critical areas including criminal prosecution and civil
remedies; training for law enforcement to better help them
recognize forced labor cases and process LEAs; the provisions
of social services, including medical care, shelter, witness
protection and other benefits; and the creation of a task
force to examine, propose and coordinate ongoing efforts to
combat trafficking and forced labor.
7)California Attorney General Statement : The issue of human
trafficking has been addressed by the California Attorney
General through the Crime and Violence Prevention Center's
project "SafeState". On November 2004, former Attorney
General Bill Lockyer stated the following:
"Human trafficking is nothing less than modern-day slavery . . .
forced labor operations have surfaced in 13 California cities,
concentrated largely around San Francisco, Los Angeles and
Fresno, according to a recent report, "Hidden Slaves", from
the Human Rights Center at the University of California,
Berkeley. Yet, this devastating human rights abuse is
relatively unknown to the general public.
"Forced labor in the United States is not only unconscionable,
it is also illegal. . . . The 2000 Trafficking Act, enacted
by Congress, is a good start in prosecuting these criminals.
However, the Act has limitations. We need to do more."
The Attorney General suggested the following in combating labor
and human trafficking:
a) Bringing local, state and federal law enforcement and
victim assistance groups together to develop strategies.
b) Training local and state law enforcement agencies to
identify victims and force labor operations when they come
in contact with secondary crimes of human trafficking, such
as fraud, money laundering, and prostitution.
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c) Educating law enforcement agencies and prosecutors so
they consider the possibility that trafficking might be
involved.
d) Educating the public, especially health care workers,
religious institutions and community organizations, to
solicit their cooperation.
e) Collecting and analyzing information to identify human
trafficking groups.
8)Argument in Support : According to the City Attorney of Los
Angeles , "Existing law lacks an effective enforcement
mechanism against traffickers who engage in and profit from
this abhorrent act. Under California's current nuisance law,
illegal gambling faces greater enforcement penalties than
human trafficking. This discrepancy is unacceptable and must
be remedied.
"AB 2212 provides prosecutors with a new tool in seeking an
immediate end to human trafficking operations. AB 2212
authorizes closure of the nuisance property for up to one
year, and provides a maximum civil fine of $25,000. The bill
directly assists human trafficking victims by providing
critical funding for victim services and prevention programs."
9)Prior Legislation : AB 1002 (Fong), of the 2009-2010
Legislative session, would have created the Human Trafficking
Trust Fund, and provided that forfeiture proceeds from human
trafficking be deposited in that fund for use, upon
appropriation by the Legislature, for the purpose of funding
services for the victims of human trafficking and for
providing training to law enforcement and prosecutorial
personnel to help combat human trafficking. The bill failed
passage in Assembly Appropriations Committee
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
(AFSME)
California Catholic Conference
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Coalition to Abolish Slavery and Trafficking
Junior Leagues of California
Los Angeles City Attorney
Peace Officers Research Association of California (PORAC)
San Diego City Attorney
Opposition
None
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744