Bill Text: CA AB228 | 2017-2018 | Regular Session | Amended

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

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Bill Title: Collectibles: sale of autographed memorabilia.

Spectrum: Bipartisan Bill

Status: (Passed) 2017-10-12 - Chaptered by Secretary of State - Chapter 696, Statutes of 2017. [AB228 Detail]

Download: California-2017-AB228-Amended.html

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Amended  IN  Assembly  May 11, 2017

Amended  IN  Assembly  May 04, 2017

Amended  IN  Assembly  April 24, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill

No. 228

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Introduced by Assembly Members Gloria and Chiu
(Coauthors: Assembly Members Acosta, Baker, Chen, Maienschein, Mathis, Voepel, and Bonta)
(Coauthor: Senator Atkins)

January 26, 2017

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An act to amend Section 1739.7 of the Civil Code, relating to collectibles.

LEGISLATIVE COUNSEL'S DIGEST

AB 228, as amended, Gloria. Collectibles: sale of autographed memorabilia.

Existing law regulates the sale or offer to sell by a dealer to a consumer of a collectible in or from this state, as specified. Existing law defines the term “collectible” to mean any autographed item, as specified, sold or offered for sale in or from this state by a dealer, to a consumer for $5 or more. Existing law defines the term “autographed” to mean bearing the actual signature of a personality signed by that individual’s own hand. Existing law defines a “dealer,” among other things, as a person who is principally in the business of selling or offering for sale collectibles in or from this state or a person who by his or her occupation holds himself or herself out as having knowledge or skill peculiar to collectibles. Existing law includes a person engaged in a cable television business for the sale of collectibles in the definition of dealer. Existing law excludes, among other persons, the personality who signs the memorabilia from the definition of dealer. Existing law also excludes from the definition of dealer a provider or operator of an online marketplace, provided that the marketplace provider or operator is not principally in the business of selling, or offering for sale, collectibles, in or from the state, exclusively or nonexclusively, or does not hold itself out as having knowledge or skill peculiar to collectibles.

This bill would narrow the definition of “collectible” instead define “autographed collectible” to mean an autographed sports or entertainment media item, as specified, sold or offered for sale in or from this state by a dealer to a consumer for $100 $50 or more. The bill would amend the definition of “authographed” to mean more, bearing the actual signature of a person signed by that individual’s own hand that increases the sale value of the item over that of a comparable item without the actual signature. The bill would amend the definition of a dealer to be, among other things, a person who is in the business of selling autographed collectibles and who also sells 3 or more autographed collectibles in a 12-month period. The bill would include a person engaged in any television business for the sale of autographed collectibles in the definition of dealer. The bill would exclude from the definition of dealer the person who autographed the collectible, instead of the personality who signs the memorabilia. The bill would amend the terms under which a provider or operator of an online marketplace is excluded from the definition of dealer to exclude a provider or operator that is not in the business of selling, or offering for sale, autographed collectibles, in or from the state, exclusively or nonexclusively, and does not sell 3 or more autographed collectibles in a 12-month period.

Existing law requires a dealer to provide a certificate of authenticity for each collectible to, among other things, indicate to a buyer whether a collectible item was purchased from a 3rd party and if so, the name and address of the 3rd party. Existing law requires a dealer displaying or offering for sale a collectible in this state to have at the location and in close proximity to the collectible merchandise a conspicuous sign that informs consumers of the written certificate of authenticity requirement, as specified. Existing law also requires a dealer engaged in a mail-order, telephone-order, or online business for the sale of collectibles in or from this state to, among other things, include in each television or online advertisement a similar disclosure in an onscreen message, as specified.

Existing law grants certain individuals the right to cancel or to rescind certain contracts within a specified number of business days. Existing law requires a retail seller that sells goods to the public in this state that has a policy as to any of those goods of not giving full refunds, or of not allowing equal exchanges, or any combination thereof, for at least 7 days following purchase of the goods, as specified, to conspicuously display that policy, as specified.

This bill instead would require a dealer to provide an express warranty, as specified. The bill also would require a dealer, for items obtained on and after January 1, 2018, separate from the express warranty, to maintain a record stating whether the item autographed collectible was purchased by the dealer from a 3rd party and the name and address of the 3rd party. The bill would authorize this information to be disclosed by court order, permit discovery of this information in a civil dispute, as specified.

The bill would require a consumer to have the right to cancel the contract for the purchase of a an autographed collectible represented by a dealer as authentic until at least midnight of the 3rd day after the day on which the consumer purchased the autographed collectible, except when the autographed collectible is purchased at a public auction, as specified. The bill would specify procedures and conditions of the cancellation. The bill would require the 3-day right of return, except as specified, to be included in the sign and the onscreen message a dealer is required to display.

Existing law prohibits a dealer from displaying or offering for sale a collectible in this state at any trade show or similar event primarily featuring sales of collectibles or other memorabilia that offers onsite admission ticket sales, except as provided. Existing law requires a promoter who arranges or organizes a trade show featuring collectibles and autograph signings to provide a specified notification to any dealer who agrees to purchase or rent space in the trade show.

This bill would repeal those provisions.

Existing law provides that a consumer who is injured by a failure of the dealer to provide a certificate of authenticity is entitled to recover from that dealer, among other things, 10 times his or her actual damages.

This bill instead would require that a dealer be knowingly willful or negligent in failing to provide the express warranty in order for the penalties to apply. provide for specified civil penalties in a civil action against the dealer for failure to comply with the provisions regarding express warranties. The bill would also provide for civil penalties for knowingly providing a false warranty, as well as attorney’s fees and other costs to be paid to the consumer.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 Section 1739.7 of the Civil Code is amended to read:

1739.7.

 (a) As used in this section:

(1)“Autographed” means bearing the actual signature of a personality signed by that individual’s own hand that increases the sale value of the item over that of a comparable item without the actual signature.

(2)“Collectible” means an autographed item sold or offered for sale in or from this state by a dealer to a consumer for one hundred dollars ($100) or more of either of the following categories:

(1) “Autographed collectible” means an item bearing the signature of a person in that person’s own hand that is sold or offered for sale for fifty dollars ($50) or more, when the signature increases the sale price of the item over that of a comparable item without the signature.

(2) For purposes of this section, an autographed collectible shall be limited to the following items:

(A) Sports items, including, but not limited to, a photograph, book, ticket, plaque, sports program, trading card, item of sports equipment or clothing, or other sports memorabilia.

(B) Entertainment media items related to music, television, and films, including, but not limited to, a picture, photo, record, compact disc, digital video disc, ticket, program, playbill, clothing, hat, poster, toy, plaque, trading card, musical instrument, or other entertainment memorabilia.

(3) “Consumer” means any natural person who purchases a an autographed collectible from a dealer for personal, family, or household purposes. “Consumer” also includes a prospective purchaser meeting these criteria.

(4) (A) “Dealer” means a person who is in the business of selling or offering for sale autographed collectibles in or from this state, exclusively or nonexclusively, and sells three or more autographed collectibles in a period of 12 months. “Dealer” includes an auctioneer who sells autographed collectibles at a public auction, and also includes persons who are consignors or representatives or agents of auctioneers. “Dealer” includes a person engaged in a mail order, telephone order, mail-order, telephone-order, online, or television business for the sale of autographed collectibles.

(B) “Dealer” does not include any of the following:

(i) A pawnbroker licensed pursuant to Chapter 3 (commencing with Section 21300) of Division 8 of the Financial Code, if the autographed collectible was acquired through a foreclosure on a collateral loan, provided that the pawnbroker does not hold himself or herself out as having knowledge or skill peculiar to autographed collectibles.

(ii) The person who autographed the collectible.

(iii) A provider or operator of an online marketplace, provided that the online marketplace provider or operator is not in the business of selling, or offering for sale, autographed collectibles, in or from the state, exclusively or nonexclusively, and does not sell three or more autographed collectibles in a period of 12 months.

(5) “Limited edition” means any autographed collectible that meets all of the following requirements:

(A) A company has produced a specific quantity of a an autographed collectible and placed it on the open market.

(B) The producer of the autographed collectible has posted a notice, at its primary place of business, that it will provide any consumer, upon request, with a copy of a notice that states the exact number of a an autographed collectible produced in that series of limited editions.

(C) The producer makes available, upon request of a consumer, evidence that the electronic encoding, films, molds, or plates used to create the autographed collectible have been destroyed after the specified number of autographed collectibles have been produced.

(D) The sequence number of the autographed collectible and the number of the total quantity produced in the limited edition are printed on the autographed collectible.

(6) “Person” means any natural person, partnership, corporation, limited liability company, company, trust, association, or other entity, however organized.

(7) “Representation” means any oral or written representation, including, but not limited to, a representation in an advertisement, brochure, catalog, flyer, invoice, sign, radio or television broadcast, online communication, Internet Web page, email, or other commercial or promotional material.

(b) A dealer who, in selling or offering to sell to a consumer a an autographed collectible in or from this state, makes a representation to a consumer that the autographed collectible is authentic shall furnish an express warranty, which may be included in the bill of sale or invoice, warranty to the consumer at the time of sale. The express warranty may be included in the bill of sale or invoice. The dealer shall retain a copy of the express warranty for not less than seven years. The express warranty shall meet all of the following criteria:

(1) Is written in at least 10-point type.

(2) Is signed by the dealer or his or her authorized agent, and contains the dealer’s true legal name, business street address, and the last four digits of the dealer’s seller’s permit account number from the State Board of Equalization.

(3) Specifies the date of sale and the purchase price.

(4) Describes the autographed collectible and specifies the name of the person who autographed it.

(5) Expressly warrants the autographed collectible as authentic, and that the warranty is conclusively presumed to be part of the bargain. The warranty shall not be negated or limited by reason of the lack of words such as “warranty” or “guarantee” or because the dealer does not have a specific intent or authorization to make the warranty or because any statement relevant to the autographed collectible is or purports to be, or is capable of being, merely the dealer’s opinion.

(6) If the autographed collectible is offered as one of a limited edition, specifies (A) how the autographed collectible and edition are numbered and (B) the size of the edition and the size of any prior or anticipated future edition, if known. If the size of the edition and the size of any prior or anticipated future edition is not known, the warranty shall contain an explicit statement to that effect.

(7) Indicates whether the dealer is surety bonded or is otherwise insured to protect the consumer against errors and omissions of the dealer and, if bonded or insured, provide provides proof thereof.

(8) Indicates if the autographed collectible has a certificate of authenticity from a third party, or if it was autographed in the presence of the dealer, and any proof thereof.

(9) Indicates an identifying serial number that corresponds to an identifying number printed on the autographed collectible item, if any.

(c) Separate from the express warranty whenever selling or offering to sell a collectible in or from the state that was obtained by the dealer on or after January 1, 2018, the dealer shall maintain In addition to retaining the express warranty described in subdivision (b), the dealer shall also retain, after January 1, 2018, a record stating whether the item autographed collectible was purchased by the dealer from a third party and the name and address of the third party. This third-party information may be disclosed in the event of a civil dispute pursuant to a court order, subject to the privacy protections under Section 1798.90. discoverable during a civil dispute. However, nothing in this subdivision prohibits a party from objecting to a discovery request on the grounds of a right to privacy.

(d) (1) In addition to any other right or remedy, remedy provided under existing law, including, but not limited to, any rights and remedies provided under contract law, a consumer shall have the right to cancel the contract for the purchase of a an autographed collectible represented by a dealer as authentic until midnight of the third day after the day on which the consumer purchased the autographed collectible. Notice of the cancellation may be provided in person or in a written or electronic form, and is deemed effective once communicated or sent. The autographed collectible shall be returned to the dealer within 30 days of the sale in the same condition in which it was sold, the cost of which shall be borne by the consumer. The price paid by the consumer shall be refunded within 10 days of receipt of the returned autographed collectible. Nothing in this section prevents the parties from agreeing to cancel a contract after midnight of the third day after the day on which the consumer purchases the autographed collectible.

(2) This subdivision does not apply to a an autographed collectible sold by an auctioneer at a public auction, or consignors, representatives, or agents of an auctioneer.

(e) (1) No dealer shall display or offer for sale a an autographed collectible in this state unless, at the location where the autographed collectible is offered for sale and in close proximity to the autographed collectible merchandise, there is a conspicuous sign that reads as follows:
“SALE OF AUTOGRAPHED COLLECTIBLES: AS REQUIRED BY LAW, A DEALER WHO SELLS TO A CONSUMER ANY COLLECTIBLE DESCRIBED AS BEING AUTOGRAPHED MUST PROVIDE A WRITTEN EXPRESS WARRANTY AT THE TIME OF SALE AND A THREE-DAY RIGHT OF RETURN. THIS DEALER MAY BE SURETY BONDED OR OTHERWISE INSURED TO ENSURE THE AUTHENTICITY OF ANY AUTOGRAPHED COLLECTIBLE SOLD BY THIS DEALER.”

(2) This subdivision does not apply to a collectible sold by an auctioneer at a public auction, or consignors, representatives, or agents of an auctioneer.

(f) Any dealer engaged in a mail-order, telephone-order, or online business for the sale of autographed collectibles in or from this state:

(1) Shall include the disclosure specified in subdivision (e), in type of conspicuous size, in any written advertisement relating to a an autographed collectible.

(2) Shall include in each television or online advertisement relating to a an autographed collectible the following written onscreen message, which shall be prominently displayed, easily readable, and clearly visible for no less than five seconds, and which shall be repeated for five seconds once during each four-minute segment of the advertisement following the initial four minutes:
“A written express warranty is provided with each autographed collectible, as required by law. This dealer may be surety bonded or otherwise insured to ensure the authenticity of any autographed collectible sold by this dealer.”

(3) Shall include as part of the oral message of each radio advertisement for a an autographed collectible the disclosure specified in subdivision (e).

(g)Any consumer injured by a dealer’s knowingly willful or negligent furnishing of an express warranty that is false, shall be entitled to recover, in addition to actual damages, a civil penalty in an amount equal to 10 times actual damages, plus court costs, reasonable attorney’s fees, interest, and expert witness fees, if applicable, incurred by the consumer in the action. The court, in its discretion, may award additional damages based on the egregiousness of the dealer’s conduct. The remedy specified in this section is in addition to, and not in lieu of, any other remedy that may be provided by law.

(g) (1) A dealer who fails to provide an express warranty, or provides an express warranty that does not comply with all of the requirements of subdivision (b), shall be subject to a civil penalty of up to one thousand dollars ($1,000), payable to the consumer in a civil action brought against the dealer.

(2) A dealer who knowingly provides a false warranty shall be subject to a civil penalty of up to five thousand dollars ($5,000), payable to the consumer, plus court costs, reasonable attorney’s fees, interest, and expert witness fees, if applicable, incurred by the consumer in a civil action brought against the dealer.

(3) The remedy specified in this section is in addition to, and not in lieu of, any other remedy that may be provided by law.

(h) No person shall represent himself or herself as a dealer in this state unless he or she possesses a valid seller’s permit from the State Board of Equalization.

(i) A dealer may be surety bonded or otherwise insured for purposes of indemnification against errors and omissions arising from the authentication, sale, or resale of autographed collectibles.