AB 844 Assembly Bill2 - Bill Analysis

9/27/2014 AB 844 Assembly Bill - Bill Analysis
http://www.leginfo.ca.gov/pub/07-08/bill/asm/ab_0801-0850/ab_844_cfa_20080926_141721_sen_comm.html 1/19
BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair A
2007-2008 Regular Session B
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4
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AB 844 (Berryhill)
As Amended June 25, 2008
Hearing date: August 5, 2008
Business and Professions Code (URGENCY)
SM:br
JUNK DEALERS AND RECYCLERS

HISTORY
Source: California Farm Bureau Federation
Prior Legislation: AB 2724 (Benoit) - 2008, failed passage in
Assembly Public Safety
AB 2289 (Ruskin) - Ch. 461, Stats. 2006
AB 2009 (Nakano) - Ch. 334, Stats. 2002
Support: Peace Officers Research Association of California;
California Police Chief's Association; California
Professional Firefighters; California State
Firefighters' Association; California State Sheriffs'
Association; Daniels Logue - Yuba County Supervisor;
Iberdrola Renewables; Association of California
Insurance Companies; California Agricultural
Commissioners and Sealers Association; California
Citrus Mutual; California Building Industry
Association; League of California Cities; Orange County
Division, League of California Cities; California Cable
and Telecommunications Association; AT&T California (if
amended); Pacific Gas and Electric Company (PG&E);
Riverside County Farm Bureau; Southern California
Edison; Sempra Energy; California Wind Energy
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Association; Liberty Mutual Group; Sunseri
Construction; Inland Action, Inc.; Costa Farms; Kautz
Farms; Mesa Consolidated Water District; Agricultural
Council of California; California Association of Pest
Control Advisers; California Association of Winegrape
Growers; Imperial Irrigation District; Kern County
Water Agency; Modesto Irrigation District; Riverside
County District Attorney; Riverside County Sheriff;
City of Anaheim Police Department; Pittsburg Police
Department; Santa Clara Police Department; Tulare
County Sheriff-Coroner; Fresno County Farm Bureau; Los
Angeles County Sheriff's Department; Los Angeles City
Attorney; Counties of Fresno, Monterey, San Bernardino,
San Diego, Greater Riverside Chambers of Commerce;
Cities of Albany, Artesia, Azusa, Beaumont, Bellflower,
Burbank, Cerritos, Concord, Costa Mesa, Diamond Bar,
Fairfield, Fountain Valley, Fullerton, Glendale, La
Habra, La Mirada, Los Angeles, Manteca, Napa, National
City, Novato, Oakdale, Pittsburg, Redlands, Sacramento,
San Leandro, San Pablo, Santa Clara, Santa Fe Springs,
Santa Rosa, Selma, Union City, Visalia, Vista, Walnut
Creek; Institute of Scrap Recycling Industries (ISRI);
California Chamber of Commerce; California Grocers
Association; The Construction Industry's Crime
Prevention Program of Southern California; Building
Owners and Managers Association of California;
California Business Properties Association; National
Association of Industrial and Office Properties -
California State Council; Nisei Farmers League;
California Alliance for Consumer Protection; Monday
Morning Group of Western Riverside County; Southern
California Public Power Authority;
California Association of Joint Powers Authorities
Opposition:American Civil Liberties Union (unless amended)
Assembly Floor Vote: Ayes 79 - Noes 0
KEY ISSUES
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SHOULD JUNK DEALERS AND RECYCLERS BE REQUIRED TO REPORT TO THE
CHIEF OF POLICE OR SHERIFF, UPON REQUEST OF THE CHIEF OF POLICE
OR SHERIFF AND ON A MONTHLY BASIS, PERSONAL IDENTIFYING
INFORMATION REGARDING ANY SELLER OF SPECIFIED METALS?
SHOULD THE CHIEF OF POLICE OR SHERIFF BE AUTHORIZED TO REQUIRE A
JUNK DEALER OR RECYCLER REPORT THE SELLER'S IDENTIFICATION
INFORMATION ON A WEEKLY BASIS IF THERE IS AN ONGOING
INVESTIGATION OF THE JUNK DEALER OR RECYCLER CONCERNING POSSIBLE
CRIMINAL ACTIVITY, AS SPECIFIED?
SHOULD THE FINES WHICH MAY BE IMPOSED IN ADDITION TO JAIL
SENTENCES BE DOUBLED FOR A JUNK DEALER OR RECYCLER WHO FAILS TO
PROPERLY COLLECT AND MAINTAIN THE REQUIRED WRITTEN RECORDS, OR
REFUSES TO EXHIBIT THE WRITTEN RECORDS AS REQUIRED, AND SHOULD
COURTS BE REQUIRED TO ORDER THE DEFENDANT TO STOP ENGAGING IN
BUSINESS AS A JUNK DEALER OR RECYCLER FOR NOT LESS THAN ONE
YEAR?
SHOULD IT BE REQUIRED THAT PAYMENT FOR SPECIFIED METALS BE MADE
BY CHECK MAILED TO THE SELLER'S DOCUMENTED ADDRESS OR BY CASH OR
CHECK ON THE THIRD BUSINESS DAY AFTER THE DATE OF SALE?
(CONTINUED)
SHOULD JUNK DEALERS AND RECYCLERS BE REQUIRED TO OBTAIN A COPY
OF A GOVERNMENT-ISSUED ID CONTAINING A PHOTOGRAPH AND ADDRESS OF
THE SELLER OF SPECIFIED METALS?
SHOULD JUNK DEALERS AND RECYCLERS BE REQUIRED TO OBTAIN A
PHOTOGRAPH OR VIDEO OF SPECIFIED JUNK METAL ITEMS BEING SOLD?
SHOULD JUNK DEALERS AND RECYCLERS BE REQUIRED TO OBTAIN A
THUMBPRINT OF SELLERS OF SPECIFIED METALS, AS PRESCRIBED BY THE
DEPARTMENT OF JUSTICE, RETAIN THE THUMBPRINT FOR TWO YEARS AND
PROVIDE IT TO SPECIFIED LAW ENFORCEMENT AGENTS IF THAT AGENT HAS
PROBABLE CAUSE TO BELIEVE THAT PROPERTY IN THE POSSESSION OF THE
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JUNK DEALER OR RECYCLER HAS BEEN STOLEN?
SHOULD SELLERS OF SPECIFIED METALS BE REQUIRED TO ACKNOWLEDGE
THIS FINGERPRINT DISCLOSURE REQUIREMENT IN WRITING?
SHOULD THERE BE AN EXCEPTION TO THE PAYMENT RESTRICTIONS FOR
SPECIFIED METALS IF, DURING ANY THREE-MONTH PERIOD, THE JUNK
DEALER OR RECYCLER COMPLETES FIVE OR MORE SEPARATE TRANSACTIONS
PER MONTH, ON FIVE OR MORE SEPARATE DAYS PER MONTH, WITH THE
SELLER?
SHOULD THERE BE ANOTHER EXCEPTION TO THE PREREQUISITES FOR
PAYMENT DESCRIBED ABOVE IF THE JUNK DEALER OR RECYCLER HAS ON
FILE THE SELLER'S BUSINESS ADDRESS AND BUSINESS, BUSINESS
LICENSE NUMBER OR TAX ID NUMBER, AND THE DRIVER'S LICENSE NUMBER
OF THE PERSON DELIVERING THE JUNK FOR THE BUSINESS?
SHOULD THERE BE AN EXCEPTION TO THE PREREQUISITES FOR PAYMENT
DESCRIBED ABOVE IN THE CASE OF THE REDEMPTION OF NONFERROUS
MATERIAL HAVING A VALUE OF NOT MORE THAN $20 IN A SINGLE
TRANSACTION, WHEN THE PRIMARY PURPOSE OF THE TRANSACTION IS THE
REDEMPTION OF BEVERAGE CONTAINERS, AS SPECIFIED?
SHOULD THE PREREQUISITES FOR PAYMENT DESCRIBED ABOVE NOT APPLY
TO COIN DEALERS OR TO AUTOMOBILE DISMANTLERS, AS DEFINED?
(CONTINUED)
SHOULD THE LEGISLATURE STATE THAT THE PREREQUISITES FOR PAYMENT
CONTAINED IN THIS BILL ARE INTENDED TO OCCUPY THE ENTIRE FIELD
OF LAW RELATED TO JUNK DEALER OR RECYCLER TRANSACTIONS INVOLVING
NONFERROUS MATERIAL BUT THAT A CITY OR COUNTY ORDINANCE RELATING
TO THE SUBJECT MATTER OF THIS SECTION IS NOT IN CONFLICT WITH
THIS SECTION IF THE ORDINANCE IS PASSED BY A TWO-THIRDS VOTE AND
IT CAN BE DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE THAT THE
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ORDINANCE IS BOTH NECESSARY AND ADDRESSES A UNIQUE PROBLEM
WITHIN AND SPECIFIC TO THE JURISDICTION OF THE ORDINANCE THAT
CANNOT EFFECTIVELY BE ADDRESSED UNDER THIS SECTION?
SHOULD A PERSON WHO IS CONVICTED OF THE THEFT OF PROPERTY THAT A
JUNK DEALER OR RECYCLER IS REQUIRED TO PLACE ON HOLD, AS
SPECIFIED, BE REQUIRED TO PAY THE VICTIM FOR ANY REASONABLE
COLLATERAL DAMAGE CAUSED IN THE COMMISSION OF THE THEFT?
PURPOSE
The purpose of this bill is to (1) require junk dealers and
recyclers to report to the chief of police or sheriff, upon
request of the chief of police or sheriff and on a monthly
basis, personal identifying information regarding any seller of
specified metals; (2) provide that the chief of police or
sheriff may request the junk dealer or recycler report the
seller's identification information on a weekly basis if there
is an ongoing investigation of the junk dealer or recycler
concerning possible criminal activity, as specified; (3) double
the fines which may be imposed, in addition to jail sentences,
for a junk dealer or recycler who fails to properly collect and
maintain the required written records, or refuses to exhibit the
written record as required (fines would be increased from $500
to $1000 for a first offense, from $1000 to $2000 for a second
offense and from $2000 to $4000 for a third or subsequent
offense) and require that the court order the defendant to stop
engaging in business as a junk dealer or recycler for not less
than one year; (4) require that payment for the specified metals
be made by check mailed to the seller's documented address or by
cash or check on the third business day after the date of sale;
(5) require the junk dealer or recycler to obtain a copy of a
government-issued ID containing a photograph and address of the
seller; (6) require the junk dealer or recycler to obtain a
photograph or video of the junk metal items being sold; (7)
require the junk dealer or recycler to obtain a thumbprint of
the seller, as prescribed by the Department of Justice, retain
the thumbprint for two years and provide it to specified law
enforcement agents if that agent has probable cause to believe
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that property in the possession of the junk dealer or recycler
has been stolen; (8) require that the seller shall acknowledge
this fingerprint disclosure requirement in writing; (9) provide
an exception to the payment restrictions if, during any
three-month period, the junk dealer or recycler completes five
or more separate transactions per month, on five or more
separate days per month, with the seller; (10) provide another
exception to the prerequisites for payment described above if
the junk dealer or recycler has on file the seller's business
address and business, business license number or tax ID number,
and the driver's license number of the person delivering the
junk for the business; (11) provide an exception to the
prerequisites for payment described above in the case of the
redemption of nonferrous material having a value of not more
than $20 in a single transaction, when the primary purpose of
the transaction is the redemption of beverage containers under
the California Beverage Container Recycling and Litter Reduction
Act; (12) provide that the prerequisites for payment described
above shall not apply to coin dealers or to automobile
dismantlers, as defined; (13) provide that this bill's
provisions describing the prerequisites for payment are intended
to occupy the entire field of law related to junk dealer or
recycler transactions involving nonferrous material but that a
city or county ordinance relating to the subject matter of this
section is not in conflict with this section if the ordinance is
passed by a two-thirds vote and it can be demonstrated by clear
and convincing evidence that the ordinance is both necessary and
addresses a unique problem within and specific to the
jurisdiction of the ordinance that cannot effectively be
addressed under this section; and (14) require that, when a
person is convicted of the theft of property that a junk dealer
or recycler is required to place on hold, as specified, the
defendant shall be required to pay the victim for any reasonable
collateral damage caused in the commission of the theft.
Existing law provides that every person who buys or receives any
property that has been stolen or that has been obtained in any
manner constituting theft or extortion, knowing the property to
be so stolen or obtained, or who conceals, sells, withholds, or
aids in concealing, selling, or withholding any property from
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the owner, knowing the property to be so stolen or obtained,
shall be punished by imprisonment in a state prison, or in a
county jail for not more than one year. However, if the
district attorney or the grand jury determines that this action
would be in the interests of justice, the district attorney or
the grand jury, as the case may be, may, if the value of the
property does not exceed $400, specify in the accusatory
pleading that the offense shall be a misdemeanor, punishable
only by imprisonment in a county jail not exceeding one year.
A principal in the actual theft of the property may be convicted
pursuant to this section. However, no person may be convicted
both pursuant to this section and of the theft of the same
property. (Penal Code 496 (a).)
Existing law provides that any attempt to commit any act
prohibited by this section, except an offense specified in the
accusatory pleading as a misdemeanor, is punishable by
imprisonment in the state prison, or in a county jail for not
more than one year. (Penal 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 states that the Business and Professions Code
sections regulating junk dealers (Division 8, Chapter 9, Article
3) do not apply to the following:
(a) Secondhand furniture merchants.
(b) Pawnbrokers.
(c) Secondhand car dealers or merchants in
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connection with automobile and motor vehicle sales
agencies but not carried on and conducted in
conjunction with a junk yard.
(d) Persons engaged in the business of selling new
automobile tires or batteries or other equipment
taking in part payment used articles of the same kind
and thereafter selling or disposing of the same.
(e) Secondhand oil well supply and equipment
dealers not conducting or carrying on their business
in connection with a junk yard.
(f) Secondhand clothing merchants and ragpickers.
(Bus. & Prof. Code 21603.)
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.
(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
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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.
Existing law provides that any junk dealer or recycler who fails
to keep the required written records, or who refuses, upon
demand, as specified, to exhibit the required written record, or
who destroys that record within two years after making the final
entry of any purchase or sale of junk therein is guilty of a
misdemeanor. (Bus. & Prof.Code 21608 (a).) Violations are
punishable as follows:
(1) For a first offense, by a fine of not less
than $500, or by imprisonment in the county jail for
not less than 30 days, or both.
(2) For a second offense, by a fine of not less
than $1000, or by imprisonment in the county jail
for not less than 30 days, or both. In addition to
any other sentence imposed pursuant to this
paragraph, the court may order the defendant to stop
engaging in business as a junk dealer or recycler
for a period not to exceed 30 days.
(3) For a third or any subsequent offense, by a
fine of not less than $2000, or by imprisonment in
the county jail for not less than six months, or
both. In addition to any other sentence imposed
pursuant to this paragraph, the court shall order
the defendant to stop engaging in business as a junk
dealer or recycler for a period of 30 days.
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(Bus. & Prof. Code 21608 (b).)
Existing law defines a "secondhand dealer" as any person or
entity taking in pawn, accepting for sale of consignment,
trading, etc., any tangible personal property. (Bus. & Prof.
Code 21625.)
Existing law defines a pawnbroker as a "person engaged in the
business of receiving goods in pledge for security for a loan."
(Fin. Code 21000.)
Existing law (subdivisions of Bus. & Prof. Code 21628)
provides that pawnbrokers and secondhand dealers shall report
daily on forms approved or provided by the Department of
Justice, all personal property purchased, taken in trade, taken
in pawn, etc., to local law enforcement. The report shall
include the following information:
The name and current address and identification
of the intended seller or pledgor of the property
(subds. (a)-(b));
A complete and reasonably accurate description of
serialized or nonserialized property (subds.
(c)-(d));
A certification by the intended seller or pledgor
that he or she is the owner of the property, or has
the authority of the owner to sell or pledge the
property and that any information provided is true
and complete (subds. (e)-(f)); and
A legible fingerprint taken from the intended
seller or pledgor (subd. (g)).
Existing law provides that DOJ shall, in consultation with local
law enforcement, develop clear and comprehensive categories of
property subject to reporting requirements in Business and
Professions Code Section 21628. The categories shall be
incorporated by secondhand dealers and coin dealers (Bus. &
Prof. Code 21626) for reporting requirements. DOJ and local
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law enforcement, in consultation with secondhand dealer and coin
dealer representatives, shall develop a standard statewide
format for electronic reporting. Twelve months after the format
and the categories have been developed, each secondhand dealer
and coin dealer shall make reports electronically. Until that
time, each secondhand dealer and coin dealer may either continue
to report this information using existing forms and procedures
or may begin electronically reporting this information under the
reporting categories and using the new format when it has been
developed. (Bus. & Prof. Code 21628.)
Existing law requires a secondhand dealer to make acquired
property available for law enforcement inspection for specified
time periods. (Bus. & Prof. Code 21636.)
Existing law provides that effective January 1, 2003, the
purchaser of a firearm shall provide his or her right thumbprint
as part of the Dealers' Record of Sale (DROS form) in a manner
prescribed by the California Department of Justice. No
exception to this requirement shall be permitted except by
regulations adopted by the department. (Pen. Code 12077,
subds. (b)(2) and (c)(2).)
Existing law provides that the original register (of firearm
sales) shall be retained by the dealer in consecutive order.
Each book of 50 originals shall become the permanent register
and retained for not less than three years from the date of the
last transaction and shall be available for the inspection of
any peace officer, Department of Justice employee designated by
the Attorney General, or agent of the federal Bureau of Alcohol,
Tobacco, and Firearms upon the presentation of proper
identification, but no information shall be compiled therefrom
regarding the purchasers or other transferees of firearms that
are not pistols, revolvers, or other firearms capable of being
concealed upon the person. (Pen. Code 12076, subd. (a)(2).)
Existing law provides that specified law enforcement officers,
including a district attorney investigator, whose primary
responsibility is auto theft investigations, may inspect a
vehicle on a highway, or in any public garage, repair shop, new
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or used car lot, auto dismantler yard, etc., and may inspect
title or registration in order to establish rightful ownership.
(Veh. Code 2805.)
Existing Fourth Amendment protections appear to require that a
peace officer must have reasonable suspicion that a motorist has
committed a violation of law before the officer may detain the
motorist. Once the motorist is validly detained, the officer
apparently can conduct a limited, warrantless search for, and
inspection of, registration documents (In re Arturo D. (2002) 27
Cal.4th 60.)
Existing law provides that records of the manufacture, sale, or
disposition of dangerous drugs and devices shall be at all times
during business hours open to inspection by authorized officers
of the law, and shall be preserved for at least three years.
Existing law requires that a notary public must obtain a
thumbprint or fingerprint (unless the person is physically
unable to provide a print) from a person presenting a deed,
quitclaim deed, or deed of trust affecting real property to be
notarized. (Gov. Code 8206, subd. (a)(2)G).)
Existing law provides that a notary public shall not surrender
his or her journal (containing notary entries) to any person
except as specified in law. The notary shall surrender the
journal under the following circumstances:
To the county clerk pursuant to Government Code
Section 8209 upon the resignation, disqualification
or expiration of appointment. Upon the death of a
notary, the notary's personal representative shall
notify the Secretary of State and deliver the
journal to the county clerk
Upon request to a peace officer investigating a
criminal offense who has reasonable suspicion to
believe the journal contains evidence of a criminal
offense, as defined in Sections 830.1, 830.2 and
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830.3 of the Penal Code, acting in his or her
official capacity and within his or her authority.
If the peace officer seizes the notary journal, he
or she must have probable cause as required by the
laws of this state and the United States. (Gov.
Code 8206, subd. (d).)

This bill would require that every junk dealer and every
recycler report the seller's identification information required
to be collected under current law (see Business and Professions
Code Section 21606, above) to the chief of police if the
dealer's or recycler's business is located in a city, or to the
sheriff if the dealer's or recycler's business is located in an
unincorporated part of a county, upon request of the chief of
police or sheriff and on a monthly basis, except as specified.
This bill would provide that the chief of police or sheriff may
request the recycler report the seller's identification
information on a weekly basis if there is an ongoing
investigation of the junk dealer or recycler concerning possible
criminal activity. The chief of police or sheriff may request
weekly reports for no more than a two-month period unless the
investigation of the junk dealer or recycler continues and the
chief of police or sheriff makes a subsequent request for weekly
reports for an additional two-month period or part thereof.
This bill would increase the penalties for a junk dealer or
recycler who knowingly and willfully either fails to properly
collect and maintain the required written records, or who
refuses, upon demand, to exhibit the written record as required,
or who destroys that record within two years after making the
final entry of a purchase or sale of junk therein, to the
following:
For a first offense, by a fine of not less $1000,
or by imprisonment in the county jail for not less
than 30 days, or by both that fine and imprisonment.
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For a second offense, by a fine of not less than
$2000, or by imprisonment in the county jail for not
less than 30 days, or by both that fine and
imprisonment. In addition to any other sentence
imposed pursuant to this paragraph, the court may
order the defendant to stop engaging in business as
a junk dealer or recycler for a period not to exceed
30 days.
For a third or any subsequent offense, by a fine
of not less than $4000, or by imprisonment in the
county jail for not less than six months, or by both
that fine and imprisonment. In addition to any
other sentence imposed pursuant to this paragraph,
the court shall order the defendant to stop engaging
in business as a junk dealer or recycler for not
less than one year.
This bill defines "nonferrous material" as copper, copper
alloys, stainless steel, or aluminum, but does not include
beverage containers, as defined, that are subject to a
redemption payment, as specified.
This bill would provide that a junk dealer or recycler shall not
provide payment for nonferrous material unless, in addition to
meeting the written record requirements of Business and
Professions Code Sections 21605 and 21606, all of the following
requirements are met:
The payment for the material is made by cash or
check. The check may be mailed to the seller at the
address provided on the seller's driver's license or
identification card, or the cash or check may be
collected by the seller from the junk dealer or
recycler on the third business day after the date of
sale.
Except as specified, the junk dealer or recycler
obtains a copy of the valid driver's license of the
seller containing a photograph and an address of the
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seller or a copy of a state or federal
government-issued identification card containing a
photograph and an address of the seller.
If the seller prefers to have the check for the
material mailed to an address different from the
address appearing on the seller's driver's license or
identification card, other than a post office box, the
junk dealer or recycler shall obtain a photograph or
video of the seller, or a copy of a driver's license
or identification card, as specified, and a gas or
electric utility bill addressed to the seller at that
alternative address with a payment due date no more
than two months prior to the date of sale.
The junk dealer or recycler obtains a photograph or
video of the nonferrous material being purchased.
The junk dealer or recycler shall preserve the
information obtained pursuant to this paragraph for a
period of two years after the date of sale.
The junk dealer or recycler obtains a thumbprint of
the seller, as prescribed by the Department of
Justice. The junk dealer or recycler shall keep this
thumbprint with the seller's identification
information and shall preserve the thumbprint in
either hard copy or electronic format for a period of
two years after the date of sale. The junk dealer or
recycler shall make the thumbprint available to:
an officer holding a warrant authorizing
him or her to search for personal property;
a person appointed by the sheriff of a
county or appointed by the head of the police
department of a city;
an officer holding a court order
directing him or her to examine the records or
property
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only if that person has probable cause to believe that
property in the possession of the junk dealer or
recycler has been stolen. The seller shall
acknowledge this disclosure requirement in writing.
This bill would provide an exception to the requirement that
payment be made by check mailed to the sellers address or in
cash three days after the sale if, during any three-month period
commencing on or after the effective date of this section, the
junk dealer or recycler completes five or more separate
transactions per month, on five or more separate days per month,
with the seller and, in order for the payment requirement to
continue to be inapplicable, the seller must continue to
complete five or more separate transactions per month with the
junk dealer or recycler.
This bill provides an exception to the prerequisites for payment
described above if, on the date of sale, the junk dealer or
recycler has on file or receives all of the following
information:
The name, physical business address, and business
telephone number of the seller's business.
The business license number or tax identification
number of the seller's business.
A copy of the valid driver's license of the
person delivering the nonferrous material on behalf
of the seller to the junk dealer or the recycler.
This bill provides an exception to the prerequisites for payment
described above in the case of the redemption of nonferrous
material having a value of not more than $20 in a single
transaction, when the primary purpose of the transaction is the
redemption of beverage containers under the California Beverage
Container Recycling and Litter Reduction Act, as specified.
This bill provides that the prerequisites for payment described
above shall not apply to coin dealers or to automobile
dismantlers, as defined.
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This bill states that provisions describing the prerequisites
for payment described above are intended to occupy the entire
field of law related to junk dealer or recycler transactions
involving nonferrous material. However, a city or county
ordinance, or a city and county ordinance, relating to the
subject matter of this section is not in conflict with this
section if the ordinance is passed by a two-thirds vote and it
can be demonstrated by clear and convincing evidence that the
ordinance is both necessary and addresses a unique problem
within and specific to the jurisdiction of the ordinance that
cannot effectively be addressed under this section.
This bill would require that, when a person is convicted of the
theft of property that a junk dealer or recycler is required to
place on hold, as specified, the defendant shall be required to
pay the victim for both the value of the property stolen and any
reasonable collateral damage caused in the commission of the
theft.
This bill is an urgency measure.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS

California continues to face an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity
remains nearly exhausted as prisons today continue to be
operated with a significant level of overcrowding.<1> A year
ago, the Legislative Analyst's office summarized the trajectory
of California's inmate population over the last two decades:
During the past 20 years, jail and prison
populations have increased significantly. County
jail populations have increased by about 66
percent over that period, an amount that has been
limited by court-ordered population caps. The
prison population has grown even more dramatically
during that period, tripling since the
--------------------
<1> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007); see
also, court orders, infra.
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AB 844 (Berryhill)
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mid-1980s.<2>
The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
As of December 31, 2006, the California Department
of Corrections and Rehabilitation (CDCR) was
estimated to have 173,100 inmates in the state
prison system, based on CDCR's fall 2006
population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates, as
well as at reception centers. As a result of the
bed deficits, CDCR houses about 10 percent of the
inmate population in temporary beds, such as in
dayrooms and gyms. In addition, many inmates are
housed in facilities designed for different
security levels. For example, there are currently
about 6,000 high security (Level IV) inmates
housed in beds designed for Level III inmates.
. . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding
and the use of temporary beds create security
concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
costs for medical treatment, workers'
compensation, and staff overtime. In addition,
overcrowding can limit the ability of prisons to
provide rehabilitative, health care, and other
--------------------
<2> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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AB 844 (Berryhill)
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types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
services is exacerbated by the use of program
space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
disrupted by the resulting lockdowns.<3>
As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
The federal court has appointed a receiver to take over the
direct management and operation of the prison medical health
care delivery system from the state. The crisis has continued
to escalate and, in July of last year, the federal court
established a three-judge panel to consider placing a cap on the
number of prisoners allowable in California prisons. It is
anticipated that the court will reach its decision this year.
In his order establishing the judicial panel, Judge Thelton
Henderson stated in part:
It is clear to the Court that the crowded conditions
of California's prisons, which are now packed well
beyond their intended capacity, are having - and in
the absence of any intervening remedial action, will
continue to have - a serious impact on the Receiver's
ability to complete the job for which he was
appointed: namely, to eliminate the unconstitutional
conditions surrounding delivery of inmate medical
----------------------
<3> Analysis 2007-08 Budget Bill, supra, fn. 1.
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AB 844 (Berryhill)
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health care.
. . . (T)his case is also somewhat unique in that even
Defendants acknowledge the seriousness of the
overcrowding problem, which led the Governor to declare
a state of emergency in California's prisons in October
2006. While there remains dispute over whether crowded
conditions are the primary cause of the constitutional
problems with the medical health care system in
California prisons, or whether any relief other than a
prisoner release order will remedy the constitutional
deprivations in this case, there can be no dispute that
overcrowding is at least part of the problem. . . .
The record is equally clear that the Receiver will be
unable to eliminate the constitutional deficiencies at
issue in this case in a reasonable amount of time
unless something is done to address the crowded
conditions in California's prisons. This Court
therefore believes that a three-judge court should
consider whether a prisoner release order is warranted
. . . . (Hon. Thelton Henderson, Order dated July 23,
2007 in Plata v. Schwarzenegger (N.D. Cal) No. C01-1351
TEH (citations omitted).)
Similarly, Judge Lawrence Karlton stated:
There is no dispute that prisons in California are
seriously and dangerously overcrowded. () The
record suggests there will be no appreciable change
in the prison population in the next two years.
(Hon. Lawrence K. Karlton, Senior Judge, United
States District Court, Order dated July 23, 2007 in
Coleman v. Schwarzenegger (E.D. Cal.) No. S90-0520
LKK JFM P (citations omitted).)
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
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AB 844 (Berryhill)
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1.Stated Need for This Bill

According to the author:
There was a 100% increase in metal theft incidents in
2005 compared to 2004 and a 400% increase in 2006
compared to 2005. The value of the metals stolen in
2006 was over $6 million.
The list of victims is widespread. It includes
farmers that are having copper wires and pipes
stripped from farm equipment, utility companies that
are seeing lines cut and stripped of copper wire,
construction companies that are losing wire and pipe,
and schools, churches, and businesses that are having
the wire from air conditioning units stolen. Metal
theft causes losses not just of the actual metal but
of the cost of repairing or replacing the item from
which the metal was stripped.
There is also a serious threat to public safety when
phone lines are cut, since 911 calls cannot be made,
burglar alarms cannot function, and hospitals are
affected.
Brass couplings are being stolen from fire hydrants
rendering them useless when firefighters are unable
to connect.
Law enforcement agencies around the state have
concluded from arrests made that the common
denominator among metal thieves is that they are drug
users looking for quick, easy money to feed their
habit.
2. Problem of Metal Theft
The problem of metal theft has been well documented throughout
the state. Last year, the New York Times reported:
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"This is the No. 1 crime affecting farmers and
ranchers right now," said Bill Yoshimoto, an
assistant district attorney in the agriculturally
rich Tulare County in the Central Valley.
"Virtually every farmer in the Central Valley has
been hit," Mr. Yoshimoto said. "But some have been
hit far beyond the value of the metal. For the
farmer to replace the pump is anywhere between $3000
to $10,000, and then there is downtime, and loss to
crops."
Some sheriff's departments in agricultural counties
have rural crime units that investigate metal crimes
almost exclusively these days, setting up sting
operations in recycling shops and tagging copper
bait with electronic tracking devices.
Metal theft from California farmers rose 400
percent in 2006 over the previous year, according
to the Agricultural Crime Technology Information
and Operations Network, a regional law enforcement
group headed by Mr. Yoshimoto. The numbers this
year are equally high. Through the end of June,
there were nearly 1000 incidents of scrap metal
theft on farms, causing more than $2 billion in
losses, the group's figures show.
(Unusual Culprits Cripple Farms in California, New
York Times , July 1, 2007,
http://www.nytimes.com/2007/07/31/us/31copper.html?_r=
1&oref=slogin&fta=y&pagewanted=print)
Metal theft has not been confined to farms and rural areas. The
Monterey County Herald reports:
Demand for copper, brass, platinum, stainless steel
and other valuable metals has turned the underside
of cars, abandoned buildings, farms, freeways and
industrial yards into gold mines for thieves.
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AB 844 (Berryhill)
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"It's an easy way to make a quick buck," said
sheriff's detective Matt Davis. "Everybody is
stealing."
On Monday, deputies found three men stripping almost
900 feet of copper cable, which appeared to have
been stolen from an industrial yard. They could
have sold the copper for about $6500, Davis said.
"It's happening all over the state," he said.
* * * * * *
Robert Gomez, manager of a Salinas auto shop, said
recently he welded a catalytic converter back onto a
truck after thieves tried to remove it. Other shops
report making similar repairs for customers.
Gomez said catalytic converters are hot items for
thieves because they have valuable metals and are
easy to get to.
"They can just slide right under (a car) and get to
it," he said. "The value is the stuff inside."
A stolen converter can be sold for about $100 for
the metal it contains. But the owner of the vehicle
may have to spend up to $500 to replace it, Gomez
said.
* * * * *
In Southern California, thieves have made off with
guardrails and road signs on freeways, according to
the state Department of Transportation.
In Contra Costa County, suspected metal thieves are
believed to have caused a toxic spill after they took
brass fittings from tanks at a chemical plant in
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AB 844 (Berryhill)
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Richmond.
Last week at a ballpark in Ventura, thieves stripped
wires from an electrical vault, damaging lights used
for Little League games.
Jeff Smith, a spokesman for Pacific Gas & Electric
Co., said theft of electrical wire is costly and
thieves risk electrocution, even when the power has
been shut off.
During the first six months of 2007, PG&E lost more
than $800,000 worth of copper cable to thievery at
service yards, power plants and utility connections
in Northern California, Smith said.
"Like anything else, when the market value goes up,
it becomes a target," Smith said. "It's become
increasingly more serious every year."
(Metal marauders on loose, Monterey County Herald ,
May 10, 2008,
http://www.montereyherald.com/local/ci_9217926 )
3. Fingerprint Requirement

Existing law requires junk dealers and recyclers, when buying
any junk, to record the date and place of purchase, the seller's
name, driver's license number or state ID number, the license
number of any vehicle used to transport the junk, a description
of the junk, the name and address of the person to whom the junk
is sold, the license number of any vehicle used to transport the
junk from the dealer's premises, and a signed transfer document
stating that the person selling the junk to the dealer is either
the owner of the junk or the name of the person the seller
obtained the junk from. The junk dealer or recycler is required
to maintain this information for two years and must provide it
for inspection to any person appointed by a sheriff or chief of
police or an officer with a warrant or court order directing him
to examine the records or property.
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This bill would require that the junk dealer or recycler
transmit this information to the local sheriff or chief of
police at least monthly or more frequently, if requested by the
police chief or sheriff, as specified.
Additionally, this bill would also require that any junk dealer
or recycler could not provide payment for certain types of junk,
specifically, copper, copper alloys, stainless steel, or
aluminum, other than beverage containers, unless the junk dealer
or recycler collects from the seller the information listed
above plus a photo or video of the items being sold and the
seller's thumbprint, as prescribed by the Department of Justice,
either in electronic format or hard copy. The junk dealer or
recycler would be required to provide the thumbprint to
specified officials or their appointees if that person has
probable cause to believe that property in the possession of the
junk dealer or recycler has been stolen. This bill would also
double the fines for failing to keep these written records or to
produce them as required.
Additionally, this bill would require that payment by the junk
dealer or recycler for these specified metals be made either by
check, mailed to the seller's documented address or, if the
seller prefers, by cash or check made three days after the sale.
SB 691 (Calderon) was gutted and amended in the Assembly last
year to address this issue, and now contains language which is
identical, absent the urgency clause, to this bill. SB 691
passed the Assembly Judiciary Committee on June 24, 2008, and
currently is pending before the Assembly Appropriations
Committee. The Assembly Judiciary Committee analysis stated the
following with respect to fingerprinting:
. . . the requirement does indeed create serious
privacy concerns and appears to delegate a law
enforcement function to a private business. To be
sure, private employers are sometimes permitted or
required to collect fingerprints from prospective
employees as a condition of employment, but that
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situation is not really comparable to what is proposed
in this measure. In most cases, employers collect
fingerprints to conduct background checks or to verify
a person's identification. Most often, collection of
fingerprints under these circumstances involves
employment in especially sensitive contexts or where
the employee will be working with children or some
other vulnerable population.
But this measure does not require the collection of
thumbprints for purposes of identification or
background checks. Instead, it collects the
thumbprints from all sellers for use in a possible
later criminal investigation. It permits law
enforcement to make use of private parties to collect
thumbprints from innocent sellers without probable
cause. To be sure, the bill provides that the junk
dealer shall not release the thumbprint unless an
authorized law enforcement agent has probable cause to
believe that the junk dealer is in possession of stolen
property, but it does not require probable cause for
the junk dealer to take the thumbprint in the first
place - even though the thumbprint, if used, will
likely be used in a criminal investigation.
It is important to stress that this bill also does
not require probable cause that any particular
seller has committed an unlawful act. Instead, the
bill states that the junk dealer must turn over the
thumbprints only where there is probable cause that
the junk dealer is in possession of stolen property.
In short, under this provision, if law enforcement
had probable cause to believe that any property in
the junk dealer's possession was stolen, law
enforcement could demand to see any prints still
being held, regardless of whether there is probable
cause to link a particular seller with a particular
piece of allegedly stolen property. It is true that
existing law requires pawnbrokers to collect
fingerprints, but the fact that a questionable
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AB 844 (Berryhill)
PageA
provision exists in one area of law is not a good
reason for extending it to other areas of law.
That analysis also noted that the Assembly Judiciary Committee
recently rejected another bill which, similar to this bill,
would have required private parties to collect fingerprints for
later criminal investigations:
. . . AB 278 (Bogh) of 2005 would have required
"Commercial Mail Receiving Agencies" (CMRAs) - private
entities authorized by the United States Postal Service
to receive mail for customers - to collect thumbprints
from persons applying for a CMRA box. The rationale
for the bill was the assumption that criminals often
used CMRA boxes to better avoid detection or
identification. That bill died in this Committee
because of concerns about delegating to private parties
the responsibility for collecting thumbprints,
especially when those thumbprints might be used in a
later criminal investigation.
In accord with the Assembly Judiciary Committee's concerns in
2005, this Committee amended a similar requirement with respect
to auto dealers. SB 504 (Alquist) would have required auto
dealers to obtain a thumbprint from the purchaser of a vehicle
so as to deter purchases made through identity theft and fraud
and to allow law enforcement access to the print for purposes of
investigation of auto theft and identity theft. Similar privacy
concerns regarding the collection of fingerprints were raised in
the Committee analysis of that bill:
Where the officer did not have probable cause that the
person committed a crime, arguably this would
constitute an unwarranted invasion of privacy. Where
the officer obtained the print without a warrant, but
the thumbprint led to additional evidence that the
person did commit a crime, a court could well find that
the accessing of the thumbprint violated the
constitution and must be suppressed. In such a case, a
conviction could be overturned or an otherwise valid
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AB 844 (Berryhill)
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prosecution abandoned.
In response to those concerns, that bill was amended in this
Committee to require:
inspection or seizure of the thumbprint or fingerprint
only by a peace officer acting within the scope of his or
her authority in response to a criminal search warrant
signed by a magistrate and served on the dealer by the
peace officer,
probable cause for the issuance of the warrant must be
based on identity theft or vehicle theft specifically
involving the transaction for which the thumbprint or
fingerprint was given.
Members of the Committee may wish to consider whether the bill
should be amended to require:
inspection or seizure of the thumbprint or fingerprint
only by a peace officer acting within the scope of his or
her authority in response to a criminal search warrant
signed by a magistrate and served on the junk dealer or
recycler by the peace officer, and,
probable cause for the issuance of the warrant must be
based on a theft specifically involving the transaction
for which the thumbprint or fingerprint was given.
In addition, the unauthorized release by junk dealers or
recyclers of any of the personal identification they are
required to gather from sellers could pose significant privacy
concerns and the possibility of identity theft. The bill
currently does not contain any restrictions on the dissemination
of this information to private parties. Accordingly, members
may wish to consider whether the bill should be amended to
prohibit any unauthorized disclosure of personal identification
information collected from sellers by the junk dealers or
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AB 844 (Berryhill)
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recyclers, and whether any such disclosure should subject the
violator to a civil fine of up to $5000.
SHOULD THE BILL BE SO AMENDED?
In light of the privacy concerns associated with having private
parties collect fingerprints for potential future criminal
investigations, and the questions raised as to the efficacy and
necessity for this requirement, members may also wish to
consider whether this requirement should be enacted with a
two-year sunset provision, with the Attorney General directed to
file a report with the Legislature 18 months after the effective
date of the statute detailing the number and circumstances of
cases in which the fingerprint was used to identify a criminal
suspect.
(More)
SHOULD THE BILL BE SO AMENDED?
4. Preemption of Local Ordinances
"Our state Constitution allows cities and counties to enact and
enforce local ordinances so long as they are 'not in conflict'
with the state's 'general laws.' (Cal. Const., art. XI, 7.)
Any conflicting ordinance is preempted by state law and thus
void." (Tosi v. County of Fresno, 161 Cal.App.4th 799, 804
(2008), citations omitted.) In Tosi, the Court was confronted
with the question of whether the issues addressed by this bill
are preempted by state law or whether counties are free to enact
local ordinances that conflict with state law. The Court held,
"We conclude that the commercial activities - the purchase of
scrap metal by recyclers - that are the focus of Fresno County's
ordinances are matters of statewide concern that our Legislature
has comprehensively addressed through various provisions of this
state's Penal and [Business and Professions] Codes, leaving no
room for further regulation at the local level." (Tosi, supra,
161 Cal.App.4th 799, 807 (2008), citations omitted.)
This bill states that its provisions describing the prerequisites
for payment for these metals by junk dealers and recyclers are
intended to occupy the entire field of law related to junk dealer
or recycler transactions involving nonferrous material. However,
the bill would deem a city or county ordinance, relating to the
subject matter of this section as not in conflict with its
provisions if the ordinance is passed by a two-thirds vote and it
can be demonstrated by clear and convincing evidence that the
ordinance is both necessary and addresses a unique problem within
and specific to the jurisdiction of the ordinance that cannot
effectively be addressed under this section.
SHOULD LOCAL GOVERNMENTS BE GIVEN THIS AUTHORITY?
5. Related Pending Legislation
SB 447 (Maldonado) requires every junk dealer and recycler to
report specified information to a chief of police or a sheriff,
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AB 844 (Berryhill)
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in the same manner required by secondhand dealers and coin
dealers under current law. The bill is on Assembly Third
Reading.
SB 691 (Calderon) contains identical language to this bill,
absent the urgency clause. It is pending in the Assembly
Appropriations Committee.
AB 1778 (Ma) prohibits a junk dealer or recycler from providing
payment for newspaper or California Refund Value containers
unless certain requirements are met. The bill is pending in the
Senate Appropriations Committee.
6. Arguments in Support
The California State Sheriffs' Association states:
Requiring all purchases by junk dealers and
recyclers to be paid by check with a 3-day holding
period will not only create a paper trial of the
transaction, but will also make metal theft less
appealing to those looking to obtain quick cash to
purchase drugs. Additionally, the identification
requirements, which include a photo and address of
the seller, will act as a deterrent and assist law
enforcement in their investigations.
7. Arguments in Opposition
The American Civil Liberties Union states:
The ACLU has serious privacy concerns about the
government mandating that businesses gather
biometric data (i.e., fingerprints) from people
and then providing that information to law
enforcement agencies. We do not think that it is
appropriate that the government require businesses
to gather fingerprints from people. The specter
of businesses - acting as governmental agents -
gathering fingerprints from everyone who does
AB 844 (Berryhill)
PageF
business with them is Orwellian.
***************

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