Bill Text: CA AB1095 | 2013-2014 | Regular Session | Amended
Bill Title: Junk dealers and recyclers: nonferrous materials.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2014-02-03 - From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB1095 Detail]
Download: California-2013-AB1095-Amended.html
BILL NUMBER: AB 1095 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 14, 2013
INTRODUCED BY Assembly Member Nestande
FEBRUARY 22, 2013
An act to amend Section 3294 of the Civil Code, relating
to civil actions. An act to amend Section 21608.5 of
the Business and Professions Code, relating to business.
LEGISLATIVE COUNSEL'S DIGEST
AB 1095, as amended, Nestande. Civil actions: damages.
Junk dealers and recyclers: nonferrous materials.
Existing law requires junk dealers and recyclers, as defined, to
maintain written records of all sales and purchases made in the
course of their business, and makes a violation of the recordkeeping
requirements a misdemeanor. Existing law prohibits a junk dealer or
recycler from providing payment for nonferrous material, as defined,
unless the payment is made by cash or check, the check is mailed or
the cash or check is provided no earlier than 3 days after the date
of sale, and the dealer or recycler obtains a photograph or video of
the seller and certain other identifying information, as specified,
which information is to be retained by the dealer or recycler, as
part of the written record of purchases, for a specified period of
time. Existing law exempts from the payment by cash or check
requirement those sellers of junk or recycling materials who conduct
5 or more separate transactions per month with the junk dealer or
recycler, as specified.
This bill would require a junk dealer or recycler to provide
payment by check only, mailed or provided to the seller of the
materials no earlier than 30 days after the date of sale, and would
prohibit the junk dealer or recycler from recycling, selling, or
disposing of the materials during that time period. The bill would
delete the exemption from the check-only payment requirement of those
sellers of junk or recycling materials who conduct 5 or more
separate transactions per month with the junk dealer or recycler. The
bill would exempt from the check-only payment requirement, and
permit payment by check or cash on or after the 3rd business day from
the date of sale, the sale of nonferrous materials under specified
circumstances, including if the nonferrous materials were marked with
an indicia of ownership, as defined. Under these circumstances, the
bill would require the junk dealer or recycler to obtain specified
documentation from the seller.
The bill would also exempt from the check-only payment
requirement, and permit payment by check or cash on or after the 3rd
business day from the date of sale, the sale of nonferrous materials
that were removed from the home of the seller during construction, if
the junk dealer or recycler obtained specified documentation from
the seller, including a letter from a licensed contractor stating
that the materials were removed from the home of the seller during
construction. The bill would provide that a licensed contractor who
willfully or knowingly makes a false or fictitious statement in that
letter is guilty of a crime. The bill would also require the junk
dealer or regular to retain the documentation obtained pursuant to
these provisions as part of the written record of purchases.
Because a violation of the recordkeeping requirement would be a
crime and because this bill creates a new crime, the bill would
impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Existing law authorizes the plaintiff, in an action for the breach
of an obligation not arising from contract, where it is proven by
clear and convincing evidence that the defendant has been guilty of
oppression, fraud, or malice, to recover damages for the sake of
example and by way of punishing the defendant in addition to the
actual damages.
This bill would make technical, nonsubstantive changes to this
provision.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 21608. 5 of the
Business and Professions Code is amended to
read:
21608.5. (a) A junk dealer or recycler in this state shall not
provide payment for nonferrous material unless, in addition to
meeting the written record requirements of Sections 21605 and 21606,
all of the following requirements are met:
(1) The payment for the material is made by cash or
check. The check , which may be mailed to the
seller at the address provided pursuant to paragraph (3) or
the cash or check may be collected by the seller from the
junk dealer or recycler on or after the third business
30th day after the date of sale , during
which period the junk dealer or recycler may not discard,
disassemble, recycle, sell, dispose of, or otherwise remove the items
purchased from the junk dealer's or recycler's property .
(2) At the time of sale, the junk dealer or recycler obtains a
clear photograph or video of the seller.
(3) (A) Except as provided in subparagraph (B), 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 seller, a copy of a
state or federal government-issued identification card containing a
photograph and an address of the seller, a passport from any other
country in addition to another item of identification bearing an
address of the seller, or a Matricula Consular in addition to another
item of identification bearing an address of the seller.
(B) If the seller prefers to have the check for the material
mailed to an alternative address, other than a post office box, the
junk dealer or recycler shall obtain a copy of a driver's license or
identification card described in subparagraph (A), 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. For purposes of this paragraph, "alternative address"
means an address that is different from the address appearing on the
seller's driver's license or identification card.
(4) The junk dealer or recycler obtains a clear photograph or
video of the nonferrous material being purchased.
(5) The junk dealer or recycler shall preserve the information
obtained pursuant to this subdivision for a period of two years after
the date of sale.
(6) (A) 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 information obtained
under this subdivision and shall preserve the thumbprint in either
hardcopy or electronic format for a period of two years after the
date of sale.
(B) Inspection or seizure of the thumbprint shall only be
performed 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. Probable cause for the issuance of that warrant must be
based upon a theft specifically involving the transaction for which
the thumbprint was given.
(b) Paragraph (1) of subdivision (a) shall not apply 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 paragraph (1) of subdivision
(a) to continue to be inapplicable, the seller must continue to
complete five or more separate transactions per month with the junk
dealer or recycler.
(c)
(b) This section shall not apply if, on the date of
sale, the junk dealer or recycler has on file or receives all of the
following information:
(1) The name, physical business address, and business telephone
number of the seller's business.
(2) The business license number or tax identification number of
the seller's business.
(3) 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.
(d)
(c) (1) This section shall not apply to the purchase of
nonferrous material having a value of not more than twenty dollars
($20) in a single transaction, when the majority of the transaction
is for the redemption of beverage containers under the California
Beverage Container Recycling and Litter Reduction Act, as set forth
in Division 12.1 (commencing with Section 14500) of the Public
Resources Code.
(2) Materials made of copper or copper alloys shall not be
purchased under this subdivision.
(e)
(d) This section shall not apply to coin dealers or to
automobile dismantlers, as defined in Section 220 of the Vehicle
Code.
(e) Paragraph (1) of subdivision (a) shall not apply, and payment
for the nonferrous materials may be made by cash, or check mailed to
the seller at the address provided pursuant to paragraph (3) of
subdivision (a), or by cash or check collected by the seller from the
junk dealer or recycler on or after the third business day after the
date of sale, if one of the following conditions are met:
(1) If the materials are marked with an indicia of ownership, the
junk dealer or recycler obtains a proof of ownership record,
including, but not limited to, a receipt from the indicated owner, or
a bill of lading, from the person selling or delivering the
materials that shows that person has lawful possession or ownership
of the materials. Copies of these documents shall be maintained by
the junk dealer or recycler as part of the written record of the
transaction.
(2) If the materials are not marked with an indicia of ownership,
the junk dealer or recycler obtains a proof of purchase record
identifying the materials brought in for sale or recycling,
including, but not limited to, a retail store receipt identifying the
materials by part number if that part number is indicated on the
materials. Copies of these documents shall be maintained by the junk
dealer or recycler as part of the written record of the transaction.
(3) If the materials are recycled after being removed from the
home of the seller, the junk dealer or recycler obtains the following
documentation, and maintains that documentation as part of the
written record of the transaction:
(A) A letter from a licensed contractor indicating the address of
the seller and stating that the materials were removed from the home
of the seller during the course of construction. A licensed
contractor who willfully or knowingly makes a false or fictitious
statement under this subparagraph is guilty of a misdemeanor
punishable pursuant to subdivision (b) of Section 21608.
(B) A copy of the contractor's license.
(C) A utility bill addressed to the seller with a payment due date
no more than two months prior to the date of sale, indicating the
seller's name and address as it appears on the letter pursuant to
subparagraph (A) and the seller's name as it appears on the
identification documentation provided pursuant to paragraph (3) of
subdivision (a).
(f) For the purposes of this section, the following terms have the
following meanings:
(1) "Indicia of ownership" means words, symbols, or registered
trademarks printed, stamped, etched, attached, or otherwise displayed
on the exterior surface of the materials that reasonably identify
the owner.
(f) For the purposes of this section, "nonferrous
(2) "Nonferrous material" means
copper, copper alloys, stainless steel, or aluminum, but does not
include beverage containers, as defined in Section 14505 of the
Public Resources Code, that are subject to a redemption payment
pursuant to Section 14560 of the Public Resources Code.
(g) This section is 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.
SEC. 2. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
SECTION 1. Section 3294 of the Civil Code is
amended to read:
3294. (a) In an action for the breach of an obligation not
arising from contract, where it is proven by clear and convincing
evidence that the defendant has been guilty of oppression, fraud, or
malice, the plaintiff, in addition to the actual damages, may recover
damages for the sake of example and by way of punishing the
defendant.
(b) An employer shall not be liable for damages pursuant to
subdivision (a), based upon acts of an employee of the employer,
unless the employer had advance knowledge of the unfitness of the
employee and employed him or her with a conscious disregard of the
rights or safety of others or authorized or ratified the wrongful
conduct for which the damages are awarded or was personally guilty of
oppression, fraud, or malice. With respect to a corporate employer,
the advance knowledge and conscious disregard, authorization,
ratification or act of oppression, fraud, or malice must be on the
part of an officer, director, or managing agent of the corporation.
(c) As used in this section, the following definitions shall
apply:
(1) "Malice" means conduct which is intended by the defendant to
cause injury to the plaintiff or despicable conduct which is carried
on by the defendant with a willful and conscious disregard of the
safety or rights of others.
(2) "Oppression" means despicable conduct that subjects a person
to cruel and unjust hardship in conscious disregard of that person's
rights.
(3) "Fraud" means an intentional misrepresentation, deceit, or
concealment of a material fact known to the defendant with the
intention on the part of the defendant of thereby depriving a person
of property or a legal right or otherwise causing injury.
(d) Damages may be recovered pursuant to this section in an action
pursuant to Chapter 4 (commencing with Section 377.10) of Title 3 of
Part 2 of the Code of Civil Procedure based upon a death which
resulted from a homicide for which the defendant has been convicted
of a felony, whether or not the decedent died instantly or survived
the fatal injury for some period of time. The procedures for joinder
and consolidation contained in Section 377.62 of the Code of Civil
Procedure shall apply to prevent multiple recoveries of punitive or
exemplary damages based upon the same wrongful act.
(e) The amendments to this section made by Chapter 1498 of the
Statutes of 1987 apply to all actions in which the initial trial has
not commenced prior to January 1, 1988.
