BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 2312 (Nestande) 2
As Amended April 10, 2014
Hearing date: June 24, 2014
Business and Professions; Penal Codes
JM:mc
METAL THEFT ALERT SYSTEM
HISTORY
Source: Institute of Scrap Recycling Industry
Prior Legislation: SB 485 (Calderon) - Chapter 518, Statues of
2013
AB 841 (Torres) - vetoed by the Governor, 2013
AB 909 (Gray) - vetoed by the Governor, 2013
AB 316 (Carter) - Chapter 317, Statutes of 2011
AB 2372 (Ammiano) - Chapter 693, Statutes of 2010
AB 237 (Carter) - failed passage in Senate Public
Safety, 2009
SB 447 (Maldonado) - Chapter 732, Statutes of 2008
SB 691 (Calderon) - Chapter 720, Statutes of 2008
AB 844 (Berryhill) - Chapter 731, Statutes of 2008
AB 1778 (Ma) - Chapter 733, Statutes of 2008
AB 1859 (Adams) - Chapter 659, Statutes of 2008
AB 2724 (Benoit) - failed passage in Senate Public
Safety, 2008
Support: Allied Riverside County Chiefs of Police and Sheriff;
Association of California Recycling Industries;
Association of California Water Agencies; Blythe Police
Department; California Farm Bureau Federation;
California Municipal Utilities Association; California
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Police Chiefs Association; California State Sheriffs'
Association; California Women for Agriculture;
Californians Against Waste; City of Beaumont; City of
Indio Police Department; City of Rancho Mirage; City of
Salinas; Coachella Valley Association of Governments;
Coachella Valley Economic Partnership; Coachella Valley
Water District; Desert Fresh, Inc.; Desert Sands
Unified School District; Desert Valley Builders
Association; Eastern Municipal Water District; Fresno
Metropolitan Flood Control District; General Patton
Memorial Museum; Indio Chamber of Commerce; Mayor of
San Jacinto; Metropolitan Water District of Southern
California; Patton Memorial Museum Board of Directors;
Riverside County Board of Supervisors; Riverside County
Chiefs of Police and Sheriffs; Schintzer Steel
Industries; Western Electrical Contractors Association;
Plumbing-Heating-Cooling Contractors Association of
California; Associated Builders and Contractors-San
Diego Chapter; Air Conditioning Trade Association
Opposition:None known
Assembly Floor Vote: Ayes 73 - Noes 0
KEY ISSUES
SHOULD A JUNK DEALER OR RECYCLER BE REQUIRED TO 1) REQUEST METAL
THEFT ALERT NOTIFICATIONS FROM A WEB-BASED THEFT ALERT SYSTEM AND 2)
PROVIDE PROOF OF THE REQUEST TO THE CALIFORNIA DEPARTMENT OF FOOD
AND AGRICULTURE WHEN APPLYING FOR A WEIGHMASTER LICENSE?
SHOULD LOCAL LAW ENFORCEMENT BE ENCOURAGED TO REPORT METAL THEFTS
THROUGH A WEB-BASED THEFT ALERT SYSTEM?
PURPOSE
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The purpose of this bill is to assist in coordinating local
responses to metal thefts by 1) requiring junk dealers and
recyclers to request metal theft alert notifications from an
industry-run web-based theft alert system; 2) requiring junk
dealers and recyclers to provide proof of the request for metal
theft notifications to the California Department of Food and
Agriculture when applying for a weighmaster license; and 3)
encouraging local law enforcement to report metal thefts through
the web-based theft alert system.
Existing law provides that theft in any of the following cases
is grand theft:
When the money, labor, or real or personal property
taken is of a value exceeding nine hundred fifty dollars
($950);
When domestic fowls, avocados, olives, specified fruits,
vegetables, nuts, artichokes, or other farm crops are taken
of a value exceeding two hundred fifty dollars ($250);
When specified fish or aquacultural products are taken
from a commercial or research operation which is producing
that product, of a value exceeding two hundred fifty
dollars ($250);
Where the labor or property is taken by an agent or
employee from his or her principal or employer and
aggregates nine hundred fifty dollars ($950) or more in any
12 consecutive month period;
When the property is taken from the person of another;
When the property taken is an automobile, horse, mare,
gelding, or specified livestock; or
Theft of a firearm. (Penal Code � 487.)
Existing law provides that grand theft is punishable as follows:
When the grand theft involves the theft of a firearm, by
a prison term of16 months, 2, or 3 years. In all other
cases, by imprisonment in a county jail not exceeding one
year or as a jail felony for 16 months, 2, or 3 years
pursuant to Penal Code Section 1170 (h). (Penal Code �
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489.)
Existing law provides that every person who buys or receives any
property that has been stolen or obtained by theft or extortion,
knowing the property to be so stolen or obtained, or who
conceals, sells, withholds, any property from the owner, knowing
the property to be so stolen or obtained, shall be punished by
imprisonment in a county jail pursuant to Penal Code Section
1170, subdivision (h), or in a county jail for not more than one
year. However, if the value of the property does not exceed
four hundred dollars ($400), the prosecutor may charge the
offense as a misdemeanor. A principal in the actual theft may
be convicted of receiving stolen property, but not convicted of
both offenses. (Pen. Code � 496, subd. (a).)
Existing law provides that any attempt to receive stolen
property is an alternate felony-misdemeanor punishable by
imprisonment as a jail felony pursuant to Section 1170,
subdivision (h), or in a county jail for not more than one year.
(Pen. Code � 496.)
Existing law states that the definition of "junk dealer"
includes 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. (Bus. & Prof. Code � 21601.)
Existing law provides that every junk dealer and every recycler,
as defined, in this state is hereby required to keep a written
record of all sales and purchases made in the course of his or
her business. (Bus. & Prof. Code � 21605.) Those records must
include:
(1) The place and date of each sale or purchase
of junk made in the conduct of his or her business as
a junk dealer or recycler.
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(2) The name, valid driver's license number and
state of issue or California-issued identification
card number, and vehicle license number including the
state of issue of any motor vehicle used in
transporting the junk to the junk dealer's or
recycler's place of business.
(3) The name and address of each person to whom
junk is sold or disposed of, and the license number of
any motor vehicle used in transporting the junk from
the junk dealer's or recycler's place of business.
(4) A description of the item or items of junk
purchased or sold, including the item type and
quantity, and identification number, if visible.
(5) 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 it from, as shown on a
signed transfer document.
(6) Any person who makes, or causes to be made,
any false or fictitious statement regarding any
information required by this section, is guilty of a
misdemeanor. (Bus. & Prof. Code � 21606.)
Existing law vests the California Department of Food and
Agriculture (DFA) with general supervision of weights and
measures and weighing and measuring devices sold or used in the
state. (Bus. & Prof. Code � 12700, et seq.)
Existing law provides for the enforcement of the weights and
measures laws and the inspection and testing of measuring
devices, in each county, by the county sealer. (Bus. & Prof.
Code �� 12100 et seq.; 12200 et seq.)
Existing law defines a "weighmaster" as any person, who, for
hire or otherwise, weighs, measures, or counts any commodity and
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issues a statement or memorandum of the weight, measure, or
count which is used as the basis for either the purchase or sale
of that commodity or charge for service. (Bus. & Prof. Code �
12700.)
Existing law requires a weighmaster to obtain a license and to
pay a license fee, as prescribed.
(Bus. & Prof. Code �� 12703; 12704.)
Existing law requires the DFA to require a recycler or junk
dealer, as defined, who applies for or renews a weighmaster
license to furnish the following information on the application:
(Bus. & Prof. Code � 12703.1)
A copy of the current business license.
A statement that the applicant has filed an application
for a storm water permit or is not required to obtain a
storm water permit.
A statement that the applicant has the equipment to meet
the photographic and thumbprinting requirements for the
purchase and sale of nonferrous materials or a statement
that the applicant will not be purchasing or selling
nonferrous materials.
The names of any deputy weighmasters.
This bill requires the DFA to require a recycler or junk dealer
who applies for or renews a weighmaster license to additionally
include a statement indicating that the applicant has requested
to receive theft alert notifications, as specified.
This bill requires a junk dealer or recycler to request to
receive theft alert notifications regarding the theft of
commodity metals, including, ferrous metal, copper, brass,
aluminum, nickel, stainless steel, and alloys, in the junk
dealer's or recycler's geographic region from the theft alert
system maintained by the Institute of Scrap Recycling Industries
(ISRI), or its successor.
This bill encourages law enforcement agencies to report thefts
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of commodity metals, including, ferrous metal, copper, brass,
aluminum, nickel, stainless steel, and alloys that have occurred
within their jurisdiction to the theft alert system maintained
by ISRI, or its successor, in order to ensure that persons using
that system receive timely and thorough information regarding
metal thefts.
This bill provides that ISRI or its successor shall not require
payment for the use of the theft alert system by law enforcement
agencies or members of the public, and shall not sell
subscribers' information to third parties.
This bill includes legislative findings and declarations, as
specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
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In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014, and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013, Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
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following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
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COMMENTS
1. Need for this Bill
According to the author:
This bill would require all scrap metal recycling
centers in California to subscribe and receive reports
of metal thefts in their region from the ISRI metal
theft alert system which is free of charge to
subscribers and law enforcement. This bill will also
encourage local law enforcement agencies to report
crimes to the ISRI database so recycling centers can
be made aware of them. The ISRI reporting system
operates by law enforcement officials submitting a
report to their online database with a description of
the stolen items and the date and location from where
they were stolen. Once that report is submitted, ISRI
sends an alert to recycling centers within a 100 mile
radius of where the theft occurred.
Currently, recyclers are not required to subscribe to
any alert system allowing for the potential of stolen
items to go unnoticed. Since many scrap metal
recycling centers are not aware of potential stolen
items, they unwittingly help provide a market for the
thieves to sell stolen property. Providing this market
for stolen goods provides easy cash to thieves and a
strong incentive for future thefts. These incentives
have caused metal theft to continue to grow in
California and costs families, businesses, and
government agencies up to thousands of dollars to
repair the damage caused by each theft.
2. The Ongoing Problem of Metal Theft
Metal theft continues to be a serious problem in California. In
addition to the loss of property, repairing the damage from
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metal theft can also be costly.
For example, Fresno's ABC-7 television news on November 2013,
reported a registered California historic landmark memorial was
stolen from the Pinedale Remembrance Plaza. The 20 pounds of
brass from the stolen memorial was worth approximately $50 at a
recycling facility, but it will cost an estimated $5000 to
replace. The Desert Sun reported on February 14, 2014 that less
than two months into 2014, the Coachella Valley Water District
is on its way to losing more equipment to metal thieves this
year than it did in 2013.
The National Insurance Crime Bureau (NICB) released a report in
2013 regarding metal theft which reported, "thieves have been
willing to go to almost any length to obtain the metal. They
have stripped sheets of metal from building rooftops, stolen
memorial decorations from cemeteries, ripped apart air
conditioners for the copper coils within, and stripped homes and
buildings of wiring and piping ? The thieves can endanger the
safety of themselves and those in the surrounding community, and
weaken the infrastructure vital to our everyday lives.
Unoccupied buildings have exploded due to gas lines being
stolen, stretches of highway have been left dark after thieves
stole wiring from utility poles, and tornado warning sirens have
been rendered inoperable due to wiring being stolen? Regardless
of the motive, the damage caused by such thefts is often several
times the value of the metal stolen, leaving the victims with
hefty repair costs which are then often passed on to insurance
companies." (Metal Theft Claims and Questionable Claim
Referrals from January 1, 2010 to December 31, 2012, April 19,
2013, NICB).
3. The Growing Nonferrous Metal Recycling Industry
According to the Institute of Scrap Recycling Industry (ISRI),
nonferrous (non iron-based) metals are among the few materials
that do not degrade or lose their chemical or physical
properties in the recycling process. Because of this, these
metals have the capacity to be recycled an infinite number of
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times. Nonferrous materials include copper, copper alloys,
stainless steel, or aluminum (excluding beverage containers, as
defined in the California Public Resources Code).
In the United States, the value of the nonferrous scrap industry
approached $50 billion in 2012. In terms of volume, nonferrous
scrap materials make up a small percentage of the total quantity
of material recycled in the United States, but by value they
account for more than half of the total earnings of the scrap
recycling industry. In 2012, the U.S. exported nearly $14
billion worth of nonferrous scrap to more than 90 countries.
4. Theft Alert Notifications
ScrapTheftAlert.com is a free tool for junk dealers and
recyclers, law enforcement, and other local agencies to allow an
individual to alert others in the scrap industry of significant
thefts of materials within the United States and Canada.
Alerts posted by individuals are broadcast by email to all
subscribed users within a 100 mile radius of where the incident
occurred, and depending on the incident, that radius can be
increased. Once an alert has been broadcast, it can be in the
recipient's email inbox in minutes.
ScrapTheftAlert.com currently has 524 active users in California
and has issued 246 active alerts. Nationwide, the Web site has
over 17,000 total users and has helped recover over one million
dollars of stolen material. ScrapTheftAlert.com is maintained
by ISRI and there is no separate cost for users because ISRI
members pay for the operation of the Web site.
This bill requires junk dealers and recyclers to request to
receive theft alert email notifications, and junk dealers and
recyclers seeking a weighmasters license must provide a
statement in their application that they have registered to
receive email alerts from the theft alert system as a condition
for licensure. This bill also provides that ISRI or its
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successor will not charge a fee for the use of the theft system
and is not permitted to sell subscribers' information to third
parties.
5. Related Legislation
SB 485 (Calderon, Chapter 518, Statutes of 2013) requires a junk
dealer or recycler to submit additional information regarding
its junk dealer business to DFA when applying for a
weighmaster's license or a renewal license, requires the DFA to
complete an investigation of the information on the application
or renewal within a specified period of time and revoke the
license if the information submitted in the application or
renewal is materially inaccurate, increases the fees that junk
dealers or recyclers pay for each fixed location, and sunsets
those provisions on January 1, 2019.
AB 841 (Torres, 2013) would have required junk dealers and
recyclers to provide payment to sellers of nonferrous material
by mailed check only, as specified. ( Status : AB 841 was vetoed
by the Governor.)
AB 909 (Gray, 2013) would have required the Board of State and
Community Corrections to establish the Metal Theft Task Force
Program to provide, evaluate and monitor grants disbursed to
enhance the capacity of local law enforcement and prosecutors to
deter, investigate, and prosecute metal theft and related metal
theft crimes. ( Status : AB 909 was vetoed by the Governor.).
AB 316 (Carter, Chapter 317, Statutes of 2011) provided that
every person who steals, takes, or carries away copper materials
which are of a value exceeding $950 is guilty of grand theft,
punishable as specified.
SB 447 (Maldonado, Chapter 732, Statutes of 2008) required scrap
metal dealers and recyclers to report what materials are being
scraped at their facilities and by whom on a daily basis.
AB 844 (Berryhill, Chapter 731, Statutes of 2008) required
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recyclers to hold payment for three days, check photo
identification and take a thumbprint of anyone selling scrap
metals. AB 844 also required any person convicted of metal
theft to pay restitution for the materials stolen and for any
collateral damage caused during the theft.
SB 691 (Calderon, Chapter 730, Statutes of 2008) required junk
dealers and recyclers to take thumbprints of individuals selling
copper, copper alloys, aluminum and stainless steel, and
required sellers to show government identification and proof of
their current address.
6. Policy Concerns in Private Entities Engaging in Reporting and
Tracking of Crimes
This bill recognizes a web based theft alert system
ScrapTheftAlert.com that is operated by ISRI a private trade
association. The bill encourages enforcement agencies to report
thefts of commodity metals to the alert system, and requires
recyclers and junk dealers to subscribe to, and receive alerts
from the alert system.
Although the bill prohibits ScrapTheftAlert.com from charging
for alerts sent to subscribing junk dealers and recyclers, the
bill is vesting what may be regarded as essentially a state
regulatory function into an industry-run web based alert system.
While the creativity of using a privately-operated alert system
is laudable in the light of the limited and diminishing fiscal
resources of state agencies, there remains a level of concern
with assigning this function to a private entity. There is
concern that the bill does not contain any practice standards
for the alert system, leaving those details solely in the hands
of ISRI. Further there is concern that a trade association
could possibly use a mandated alert system to advertise to those
mandated subscribers or to sell advertisements which are then
distributed to the subscribers through the alert system. In
addition, there is a strong likelihood mandating junk dealers
and recyclers to use ISRI's theft alert system, the bill would
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result in possibly benefiting ISRI by substantially increasing
the membership of that trade association.
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7. Sunset Amendments Agreed to in Business and Professions
Committee to be taken in Senate Public Safety
To evaluate the efficacy of mandating the use of a private
association operated theft alert system, the author agreed in
the Business and Professions Committee to establish a three year
sunset date until January 1, 2018, on this bill's provisions.
The amendments are to be taken in this Committee. The sunset
clause will allow the Legislature to revisit the issue and
respond to any unintended consequences and evaluate the adequacy
of encouraging law enforcement to report metal thefts to, and
requiring junk dealers and recyclers to subscribe to, ISRI's
metal theft alert system.
8. Arguments in Support
The Association of California Water Agencies (ACWA) writes in
support that metal theft has quickly become a severe drain on
many water district budgets. "Criminals may steal material that
only garners a small amount of money but the damage that the
theft creates costs our public agencies thousands of dollars
each year to repair and replace. We had hoped that the series
of bills signed into law over the past several years would have
curbed the rash of metal thefts, but it appears that more still
needs to be done."
Association of California Recycling Industries (ACRI) states,
"We support the creation of this notification system and believe
it is an appropriate and effective approach to reducing the
incidents of metal theft in California, while ensuring that
law-abiding businesses in California are not placed at a
competitive disadvantage in the marketplace."
The City of Beaumont states that requiring businesses to receive
updates from the ISRI-operated database will help them avoid
purchasing stolen goods and reduce demand for stolen scrap.
"This database will also provide a powerful deterrent as thieves
realize that scrap metal recycling centers are aware of their
stolen goods thus increasing their chances of being caught and
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brought to justice."
Allied Riverside County Chiefs of Police and Sheriff (ARCCOPS)
states that communities have experienced a significant increase
in commercial metal theft, costing our businesses and residents
hundreds of thousands of dollars in direct and indirect costs.
Metal theft has also created safety hazards including missing
manhole covers, exposed electrical wires and severe flooding of
streets and farms following damage to of backflow and irrigation
systems. In some communities, these cases have resulted in
serious injury to innocent citizens. ARCCOPS states, "We
believe that legislation such as this, requiring recyclers to
receive and disseminate information and updates from the
ISRI-operated database will help to identify stolen goods and
reduce demand for stolen scrap metals"
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