BILL ANALYSIS �
SB 1045
Page 1
Date of Hearing: June 19, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 1045 (Emmerson) - As Amended: May 8, 2012
PROPOSED CONSENT
SENATE VOTE : 37-0
SUBJECT : METAL THEFT: DAMAGES
KEY ISSUE : IN ORDER TO COMBAT INCREASED THEFT OF FIRE HYDRANTS,
MANHOLE COVERS, AND OTHER ITEMS OF PUBLIC INFRASTRUCTURE, SHOULD
JUNK DEALERS AND RECYCLERS BE SUBJECT TO CIVIL LIABILITY FOR
WRONGFUL POSSESSION OF THESE ITEMS, PARTICULARLY WHEN THEIR
THEFT COMPROMISES PUBLIC SAFETY?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
According to the author, California is experiencing an epidemic
of metal theft that, among other things, has harmed critical
public infrastructure and compromised public safety. This bill
seeks to establish specified civil liability for junk dealers or
recyclers for wrongful possession of a fire hydrant, fire
department connection, manhole cover, or backflow device-all of
which are metal fixtures typically owned by public utilities or
agencies that potentially pose public health or safety concerns
if stolen or improperly removed. Under this bill, a junk dealer
or recycler who possesses one of these specified metal items is
liable for wrongful possession only if written certification, as
prescribed by this bill, was not obtained from the agency or
utility that owns or previously owned the material. The bill
provides that civil liability to the agency or utility shall
include actual damages and possible exemplary damages in the
amount of three times the actual damages, unless the court finds
extenuating circumstances to withhold the exemplary damages.
This bill is supported by a number of public utilities, water
districts, and cities, and has no known opposition. This bill
previously passed the Senate without a single "No" vote.
SUMMARY : Establishes civil liability upon junk dealers and
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recyclers for the possession of specified metal fixtures owned
by a public agency. Specifically, this bill :
1)Provides that any junk dealer or recycler who possesses a fire
hydrant, fire department connection (including brass fittings
and parts), manhole cover or lid, or backflow device or
connection to that device, without a written certification
from the agency or utility owning or previously owning the
material, shall be liable to the agency or utility for the
wrongful possession of that material.
2)Provides that a written certification shall be on the agency's
or utility's letterhead and shall certify both that the agency
or utility has sold the material described or is offering the
material for sale, salvage, or recycling, and that the person
possessing the certification or identified in the
certification is authorized to negotiate the sale of that
material.
3)Provides that the liability of the junk dealer or recycler for
wrongful possession is for the actual damages incurred by the
agency or utility, including the value of the material, the
cost of replacing the material, labor costs, and the costs of
repairing any damage caused by the removal of the material.
4)Requires that the court award exemplary damages of three times
the actual damages incurred by the agency or utility, unless
the court decides the extenuating circumstances do not justify
such an award.
5)Make specified legislative findings, including, among other
things, that theft of fire hydrants, manhole covers, and
backflow devices has significantly increased in recent years
and represents very substantial health and safety issues.
EXISTING LAW :
1)Defines "junk" as any and all secondhand and used machinery
and all ferrous and nonferrous scrap metals and alloys,
including any and all secondhand and used furniture, pallets,
or other personal property, other than livestock, or parts or
portions thereof. (Business & Professions Code Section 21600.
All further references are to this code unless otherwise
stated.)
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2)Defines "junk dealer" as any person engaged in the business of
buying, selling and dealing in junk, any person purchasing,
gathering, collecting, soliciting or traveling about from
place to place procuring junk, and any person operating,
carrying on, conducting or maintaining a junk yard or place
where junk is gathered together and stored or kept for
shipment, sale or transfer. (Section 21601.)
3)Requires junk dealers and recyclers to keep a written record
of all sales and purchases made in the course of his or her
business (Section 21605), and preserve such records for at
least two years after making the final entry of purchase or
sale of junk (Section 21607), with failure to comply
punishable as a misdemeanor (Section 21608).
4)Requires junk dealers and recyclers to specify certain
information in the written record, including:
a) A description of the item or items of junk purchased or
sold, including the item type and quantity, and
identification number, if visible.
b) A statement indicating either that the seller of the
junk is the owner of it, or the name of the person he or
she obtained the junk from, as shown on a signed transfer
document. (Section 21606(a).)
5)Requires junk dealers and recyclers to report the information
in the written record to the chief of police or the sheriff on
a daily basis or on the first working day after receipt or
purchase of the junk, as specified. (Section 21607(c).)
COMMENTS : This bill seeks to establish specified civil
liability for junk dealers or recyclers for possession of a fire
hydrant, fire department connection, manhole cover, or backflow
device-all of which are metal fixtures typically owned by public
utilities or agencies that potentially pose public health or
safety concerns if stolen or improperly removed. According to
the author:
Metal theft has devastated both public and private
property and has harmed critical public infrastructure,
making it difficult to deliver essential utilities to
customers. Moreover, the theft of certain metal devices
can seriously threaten public health and safety. While
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several laws have been enacted to curb metal theft, it
is still prevalent throughout California. SB 1045
seeks to address the metal theft epidemic and provide
cities, counties, special districts and private utility
companies with the tools they need to recover costs and
impose stiff civil penalties on thieves and recyclers
who violate the law.
This bill focuses on deterring the theft of three particular
metal items that protect public safety: fire hydrants and
connections, manhole covers, and backflow devices. As explained
by the Irvine Ranch Water District in its letter of support:
These are large, easily identifiable items that
typically are not found in possession by a member of
the general public. Individuals have been severely
injured falling down manholes where the cover was
stolen. Automobiles have been damaged driving over
open manholes. Stolen backflow devices leave potable
water sources vulnerable to cross-contamination, and
stolen fire hydrants render properties defenseless to
fire. Additionally, the act of stealing these items
often results in significant damage to both the public
and private properties from which these articles are
stolen.
Junk dealers and recyclers are only liable if there is no
written certification from the appropriate public agency or
utility that owned the material. Under this bill, a junk dealer
or recycler who possesses one of these specified metal items is
liable for wrongful possession only if the proper written
certification from the agency or utility that owns or previously
owned the material was not obtained. The bill requires the
written certification to be on the agency's or utility's
letterhead and that it specify both that (1) the agency or
utility has sold the material described or is offering the
material for sale, salvage, or recycling, and (2) that the
person possessing the certification or identified in the
certification is authorized to negotiate the sale of that
material. This requirement relieves a junk dealer or recycler
from the responsibility of determining whether a particular item
in question is stolen or not because such items will simply not
be eligible for recycling without the required certification.
Civil liability to the agency or utility includes actual damages
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and possible exemplary damages.
Under this bill, a junk dealer or recycler in violation of these
provisions would be liable to the agency or utility owning or
previously owning the prohibited material for actual damages
incurred by the agency or utility, including the value of the
material, the cost of replacing the material, labor costs, and
the costs of repairing any damage caused by the removal of the
material. The award of actual damages is directed at making the
agency or utility whole again by compensating it for its losses.
On the other hand, the bill allows for the award of exemplary
(i.e. punitive) damages in the amount of three times the actual
damages incurred by the agency or utility, unless the court
decides that extenuating circumstances do not justify such an
award. This preserves some discretion to be exercised by the
court to withhold exemplary damages in cases where, for example,
the court finds the junk dealer or recycler took exceptional
steps to comply and should not be punished despite a violation
having occurred. The availability of exemplary damages should
provide a strong disincentive to junk dealers and recyclers to
complete a sale for the prohibited items under this bill when
there is any doubt about the legitimate right of the seller to
possess such items as evidenced by the required written
certificate.
Pending related legislation . SB 1387 is a companion bill by the
same author that is scheduled to be heard on June 19 in the
Assembly Business, Professions, and Consumer Protection
Committee. SB 1387 provides for a criminal fine of up to $3,000
for any person who is engaged in the salvage, recycling,
purchase, or sale of scrap metal and who possesses a fire
hydrant, fire department connection, manhole cover, or backflow
device that has been stolen or obtained in any manner
constituting theft or extortion, knowing the property to be so
stolen or obtained.
REGISTERED SUPPORT / OPPOSITION :
Support
Association of California Water Agencies
California Association of Sanitation Agencies
California Professional Firefighters
California Special Districts Association
California State Sheriffs' Association
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California Water Association
City of Hemet
City of Roseville
Contra Costa Water District
East Bay Municipal Utility District
Eastern Municipal Water District
El Dorado Irrigation District
Friant Water Authority
Irvine Ranch Water District
Lake Hemet Municipal Water District
Metropolitan Water District of Southern California
Walnut Valley Water District
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334