Bill Text: CA AB1219 | 2011-2012 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Credit cards: personal information.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2011-10-09 - Chaptered by Secretary of State - Chapter 690, Statutes of 2011. [AB1219 Detail]

Download: California-2011-AB1219-Amended.html

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BILL NUMBER: AB 1219	AMENDED
	BILL TEXT

	AMENDED IN SENATE  JUNE 22, 2011
	AMENDED IN ASSEMBLY  JUNE 1, 2011
	AMENDED IN ASSEMBLY  MAY 17, 2011
	AMENDED IN ASSEMBLY  MAY 4, 2011
	AMENDED IN ASSEMBLY  APRIL 25, 2011
	AMENDED IN ASSEMBLY  MARCH 29, 2011

INTRODUCED BY   Assembly Member Perea

                        FEBRUARY 18, 2011

   An act to amend  Section   Sections 1747.02
and  1747.08 of the Civil Code, relating to credit cards.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1219, as amended, Perea. Credit cards: personal information.
   Existing state and federal law regulate the provision of credit
and the use of credit cards. Existing state law prohibits a person,
firm, partnership, association, or corporation that accepts credit
cards for the transaction of business from requesting or requiring
the cardholder to provide personal identification information, which
is then recorded, as a condition to accepting the credit card as
payment in full or in part for goods or services, but provides
various exceptions to this prohibition. Existing law excepts from
this prohibition the instance when the person or entity accepting the
card is contractually obligated to provide personal identification
information in order to complete the transaction or is obligated to
collect and record the identification information by federal law.
   This bill would except from the prohibition described above the
instance when the person or entity accepting the card uses the
personal information for prevention of fraud, theft, or identity
theft in specified retail motor fuel transactions, and would specify
that state law obligations are also permissible reasons to collect
and record personal information. The bill would also make a statement
of intent with regard to certain of these provisions.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 1747.02 of the   Civil
Code   is amended to read: 
   1747.02.  As used in this title:
   (a) "Credit card" means any card, plate, coupon book, or other
single credit device existing for the purpose of being used from time
to time upon presentation to obtain money, property, labor, or
services on credit. "Credit card" does not mean any of the following:

   (1) Any single credit device used to obtain telephone property,
labor, or services in any transaction under public utility tariffs.
   (2) Any device that may be used to obtain credit pursuant to an
electronic fund transfer, but only if the credit is obtained under an
agreement between a consumer and a financial institution to extend
credit when the consumer's asset account is overdrawn or to maintain
a specified minimum balance in the consumer's asset account.
   (3) Any key or card key used at an automated dispensing outlet to
obtain or purchase petroleum products, as defined in subdivision (c)
of Section 13401 of the Business and Professions Code, that will be
used primarily for business rather than personal or family purposes.
   (b) "Accepted credit card" means any credit card that the
cardholder has requested or applied for and received or has signed,
or has used, or has authorized another person to use, for the purpose
of obtaining money, property, labor, or services on credit. Any
credit card issued in renewal of, or in substitution for, an accepted
credit card becomes an accepted credit card when received by the
cardholder, whether the credit card is issued by the same or a
successor card issuer.
   (c) "Card issuer" means any person who issues a credit card or the
agent of that person for that purpose with respect to the credit
card.
   (d) "Cardholder" means a natural person to whom a credit card is
issued for consumer credit purposes, or a natural person who has
agreed with the card issuer to pay consumer credit obligations
arising from the issuance of a credit card to another natural person.
For purposes of Sections 1747.05, 1747.10, and 1747.20, the term
includes any person to whom a credit card is issued for any purpose,
including business, commercial, or agricultural use, or a person who
has agreed with the card issuer to pay obligations arising from the
issuance of that credit card to another person.
   (e) "Retailer" means every person other than a card issuer who
furnishes money, goods, services, or anything else of value upon
presentation of a credit card by a cardholder. "Retailer" shall not
mean the state, a county, city, city and county, or any other public
agency.
   (f) "Unauthorized use" means the use of a credit card by a person,
other than the cardholder, (1) who does not have actual, implied, or
apparent authority for that use and (2) from which the cardholder
receives no benefit. "Unauthorized use" does not include the use of a
credit card by a person who has been given authority by the
cardholder to use the credit card. Any attempted termination by the
cardholder of the person's authority is ineffective as against the
card issuer until the cardholder complies with the procedures
required by the card issuer to terminate that authority.
Notwithstanding the above, following the card issuer's receipt of
oral or written notice from a cardholder indicating that it wishes to
terminate the authority of a previously authorized user of a credit
card, the card issuer shall follow its usual procedures for
precluding any further use of a credit card by an unauthorized
person.
   (g) An "inquiry" is a writing that is posted by mail to the
address of the card issuer to which payments are normally tendered,
unless another address is specifically indicated on the statement for
that purpose, then to that other address, and that is received by
the card issuer no later than 60 days after the card issuer
transmitted the first periodic statement that reflects the alleged
billing error, and that does all of the following:
   (1) Sets forth sufficient information to enable the card issuer to
identify the cardholder and the account.
   (2) Sufficiently identifies the billing error.
   (3) Sets forth information providing the basis for the cardholder'
s belief that the billing error exists.
   (h) A "response" is a writing that is responsive to an inquiry and
mailed to the cardholder's address last known to the card issuer.
   (i) A "timely response" is a response that is mailed within two
complete billing cycles, but in no event later than 90 days, after
the card issuer receives an inquiry.
   (j) A "billing error" means an error by omission or commission in
(1) posting any debit or credit, or (2) in computation or similar
error of an accounting nature contained in a statement given to the
cardholder by the card issuer. A "billing error" does not mean any
dispute with respect to value, quality, or quantity of goods,
services, or other benefit obtained through use of a credit card.
   (k) "Adequate notice" means a printed notice to a cardholder that
sets forth the pertinent facts clearly and conspicuously so that a
person against whom it is to operate could reasonably be expected to
have noticed it and understood its meaning.
   (  l  ) "Secured credit card" means any credit card
issued under an agreement or other instrument that pledges,
hypothecates, or places a lien on real property or money or other
personal property to secure the cardholder's obligations to the card
issuer.
   (m) "Student credit card" means any credit card that is provided
to a student at a public or private college or university and is
provided to that student solely based on his or her enrollment in a
public or private university, or is provided to a student who would
not otherwise qualify for that credit card on the basis of his or her
income. A "student credit card" does not include a credit card
issued to a student who has a cocardholder or cosigner who would
otherwise qualify for a credit card other than a student credit card.

   (n) "Retail motor fuel dispenser" means a device that dispenses
fuel that is used to power internal combustion engines, including
motor vehicle engines, that processes the sale of fuel through a
remote electronic payment system, and that is in a location where an
employee or other agent of the seller is not present.  
   (o) "Retail motor fuel payment island automated cashier" means a
remote electronic payment processing station that processes the
retail sale of fuel that is used to power internal combustion
engines, including motor vehicle engines, that is in a location where
an employee or other agent of the seller is not present, and that is
located in close proximity to a retail motor fuel dispenser. 
   SECTION 1.   SEC. 2.   Section 1747.08
of the Civil Code is amended to read:
   1747.08.  (a) Except as provided in subdivision (c), no person,
firm, partnership, association, or corporation that accepts credit
cards for the transaction of business shall do any of the following:
   (1) Request, or require as a condition to accepting the credit
card as payment in full or in part for goods or services, the
cardholder to write any personal identification information upon the
credit card transaction form or otherwise.
   (2) Request, or require as a condition to accepting the credit
card as payment in full or in part for goods or services, the
cardholder to provide personal identification information, which the
person, firm, partnership, association, or corporation accepting the
credit card writes, causes to be written, or otherwise records upon
the credit card transaction form or otherwise.
   (3) Utilize, in any credit card transaction, a credit card form
which contains preprinted spaces specifically designated for filling
in any personal identification information of the cardholder.
   (b) For purposes of this section "personal identification
information," means information concerning the cardholder, other than
information set forth on the credit card, and including, but not
limited to, the cardholder's address and telephone number.
   (c) Subdivision (a) does not apply in the following instances:
   (1) If the credit card is being used as a deposit to secure
payment in the event of default, loss, damage, or other similar
occurrence.
   (2) Cash advance transactions.
   (3) If any of the following applies:
   (A) The person, firm, partnership, association, or corporation
accepting the credit card is contractually obligated to provide
personal identification information in order to complete the credit
card transaction.
   (B) The person, firm, partnership, association, or corporation
accepting the credit card in a sales transaction at a retail motor
fuel dispenser or retail motor fuel payment island automated cashier
uses the personal identification information solely for prevention of
fraud, theft, or identity theft or uses the personal information for
any of these purposes concurrently with a purpose permitted under
paragraph (4).
   (C) The person, firm, partnership, association, or corporation
accepting the credit card is obligated to collect and record the
personal identification information by federal or state law or
regulation.
   (4) If personal identification information is required for a
special purpose incidental but related to the individual credit card
transaction, including, but not limited to, information relating to
shipping, delivery, servicing, or installation of the purchased
merchandise, or for special orders.
   (d) This section does not prohibit any person, firm, partnership,
association, or corporation from requiring the cardholder, as a
condition to accepting the credit card as payment in full or in part
for goods or services, to provide reasonable forms of positive
identification, which may include a driver's license or a California
state identification card, or where one of these is not available,
another form of photo identification, provided that none of the
information contained thereon is written or recorded on the credit
card transaction form or otherwise. If the cardholder pays for the
transaction with a credit card number and does not make the credit
card available upon request to verify the number, the cardholder's
driver's license number or identification card number may be recorded
on the credit card transaction form or otherwise.
   (e) Any person who violates this section shall be subject to a
civil penalty not to exceed two hundred fifty dollars ($250) for the
first violation and one thousand dollars ($1,000) for each subsequent
violation, to be assessed and collected in a civil action brought by
the person paying with a credit card, by the Attorney General, or by
the district attorney or city attorney of the county or city in
which the violation occurred. However, no civil penalty shall be
assessed for a violation of this section if the defendant shows by a
preponderance of the evidence that the violation was not intentional
and resulted from a bona fide error made notwithstanding the
defendant's maintenance of procedures reasonably adopted to avoid
that error. When collected, the civil penalty shall be payable, as
appropriate, to the person paying with a credit card who brought the
action, or to the general fund of whichever governmental entity
brought the action to assess the civil penalty.
   (f) The Attorney General, or any district attorney or city
attorney within his or her respective jurisdiction, may bring an
action in the superior court in the name of the people of the State
of California to enjoin violation of subdivision (a) and, upon notice
to the defendant of not less than five days, to temporarily restrain
and enjoin the violation. If it appears to the satisfaction of the
court that the defendant has, in fact, violated subdivision (a), the
court may issue an injunction restraining further violations, without
requiring proof that any person has been damaged by the violation.
In these proceedings, if the court finds that the defendant has
violated subdivision (a), the court may direct the defendant to pay
any or all costs incurred by the Attorney General, district attorney,
or city attorney in seeking or obtaining injunctive relief pursuant
to this subdivision.
   (g) Actions for collection of civil penalties under subdivision
(e) and for injunctive relief under subdivision (f) may be
consolidated.
   (h) The changes made to this section by Chapter 458 of the
Statutes of 1995 apply only to credit card transactions entered into
on and after January 1, 1996. Nothing in those changes shall be
construed to affect any civil action which was filed before January
1, 1996.
   (i) It is the intent of the amendments made by the act adding this
subdivision to clarify existing law. These clarifying amendments
continue to protect personal identification information while
allowing and recognizing the legitimate business need for a person,
firm, partnership, association, or corporation that accepts credit
cards for the transaction of business at a retail motor fuel
dispenser or retail motor fuel automated payment island cashier to
use personal identification information for the purposes authorized
by this section.