Bill Text: CA SB12 | 2011-2012 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Vehicles: aerodynamic devices.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2012-09-28 - Chaptered by Secretary of State. Chapter 727, Statutes of 2012. [SB12 Detail]
Download: California-2011-SB12-Amended.html
Bill Title: Vehicles: aerodynamic devices.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2012-09-28 - Chaptered by Secretary of State. Chapter 727, Statutes of 2012. [SB12 Detail]
Download: California-2011-SB12-Amended.html
BILL NUMBER: SB 12 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 25, 2012
AMENDED IN ASSEMBLY MAY 3, 2012
AMENDED IN SENATE JANUARY 4, 2012
INTRODUCED BY Senator Corbett
DECEMBER 6, 2010
An act to amend Sections 22901, 22903, 22903.2, 22905,
22906, 22924, 24044.5, and 24045.5 of the Business and Professions
Code, to amend Section 485.010 of the Code of Civil Procedure, to
amend Section 2403 of, and to repeal and add
Division 6 (commencing with Section 6101) of , the
Commercial Code, and to amend Section 2953.1 of the
Revenue and Taxation Code, relating to bulk sales.
LEGISLATIVE COUNSEL'S DIGEST
SB 12, as amended, Corbett. Bulk sales.
(1) Existing
Existing law, the Uniform Commercial Code--Bulk Sales,
is a comprehensive body of law regulating bulk sales, which are
defined to include a sale not in the ordinary course of the seller's
business of more than 1/2 the seller's inventory and equipment, as
specified. Existing law exempts from the bulk sales law, among other
transactions, a sale of assets with a value of less than $10,000, as
specified, or a value of more than $5,000,000 on the date of the bulk
sale agreement. Existing law imposes certain notice requirements on
a buyer of assets in a bulk sale, and provides that a buyer who fails
to comply with those notice requirements with respect to a claimant
is liable to the claimant for specified damages. Existing
law contains detailed provisions with respect to bulk sales involving
transfers through escrow and those involving consideration of less
than $2,000,000 where the consideration is substantially all cash or
an obligation of the transferee to pay cash in the future, or a
combination thereof. In the case of a bulk sale where
the consideration is $2,000,000 or less and is substantially all cash
or an obligation of the transferee to pay cash, existing law
requires the buyer or escrow agent involved to apply the cash
consideration to pay the debts of the seller for which claims are due
and payable, as specified. A person holding a
claim incurred in the seller's business, other than specified claims,
is a claimant under the bulk sales law.
The Alcoholic Beverage Control Act, administered by the Department
of Alcoholic Beverage Control, regulates the sale and distribution
of alcoholic beverages and the granting of licenses for the
manufacture, distribution, and sale of alcoholic beverages within the
state. The Cigarette and Tobacco Products Licensing Act provides for
the licensure, by the State Board of Equalization, of manufacturers,
distributors, wholesalers, importers, and retailers of cigarette or
tobacco products.
This bill would repeal the Uniform Commercial Code-Bulk Sales
provisions. The bill would add provisions that apply, on and after
January 1, 2013, to a sale not in the ordinary course of a seller's
business of more than 1/2 the seller's inventory and equipment,
including the inventory or equipment purchased from a wholesaler or
distributor of alcoholic beverages or cigarette and tobacco products,
without regard to the value of the assets involved, as specified.
The bill would require the buyer to deposit the full amount of the
purchase price or consideration with an escrow agent to be
distributed to meet obligations and claims, as specified, and would
limit a claimant to specified persons, including a wholesaler or
distributor of alcoholic beverages or cigarette and tobacco products.
This bill would repeal those provisions and make conforming
changes, including deleting references that would become obsolete
upon that repeal.
(2) Existing law, the Alcoholic Beverage Control Act, administered
by the Department of Alcoholic Beverage Control, regulates the
issuance of licenses for the manufacture, distribution, and sale of
alcoholic beverages. That act provides that it shall not be a
violation or grounds for disciplinary action for a licensee selling
alcoholic beverages to extend credit to a holder of an interim
operating permit issued to an applicant for a retail license, or a
transferee of any license who is a holder of a temporary permit
issued by the department, or to receive payment from those holders in
a manner not expressly authorized, unless the seller has knowledge
that the purchaser was operating under an interim operating license
or temporary permit, as may be established by specified evidence.
That evidence may include that the holder has recorded and published
notice pursuant to existing law governing bulk sales.
This bill, as a conforming change discussed above in (1), would
delete that notice from the types of evidence that may establish
knowledge regarding an interim operating permit or temporary permit
as described above.
(3) Existing law provides that no right to attach order or writ of
attachment may be issued pursuant to a specified ex parte procedure
unless it appears from facts shown by affidavit that great or
irreparable injury would result to the plaintiff if issuance were
delayed, as specified, including, but not limited to, showing that a
bulk sales notice has been recorded and published in accordance with
the existing law governing bulk sales.
This bill would delete reference to a bulk sales notice as a
satisfactory showing that great or irreparable injury would result
under that provision.
(4) Existing law provides that property that is assessed on the
unsecured roll may be seized by the tax collector prior to
delinquency without filing a declaration with the clerk of the county
board of supervisors under specified circumstances, including, but
not limited to, when the property has been advertised for sale
pursuant to existing law governing bulk sales.
This bill, as a conforming change discussed above in (1), would
delete that circumstance from the circumstances authorizing seizure
by the tax collector under the provisions described above.
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. Division 6 (commencing with Section
6101) of the Commercial Code is repealed.
SEC. 2. Division 6 (commencing with Section 6101)
is added to the Commercial Code , to read:
DIVISION 6. BULK SALES
6101. This division shall be known and may be cited as the Bulk
Sales Law.
6102. (a) In this division, unless the context otherwise
requires:
(1) "Assets" means the inventory and equipment that is the subject
of a bulk sale and any tangible and intangible personal property
used or held for use primarily in, or arising from, the seller's
business and sold in connection with that inventory and equipment,
but the term does not include any of the following:
(A) Fixtures, as defined in paragraph (41) of subdivision (a) of
Section 9102, other than readily removable factory and office
machines.
(B) The lessee's interest in a lease of real property.
(C) Property to the extent it is generally exempt from creditor
process under nonbankruptcy law.
(2) "Bulk sale" means a sale not in the ordinary course of the
seller's business of more than one-half of the seller's inventory and
equipment, including the inventory and equipment purchased from a
licensee, as measured by value on the date of the bulk-sale
agreement.
(3) "Claim" means a right to payment from the seller, whether or
not the right is reduced to judgment, liquidated, fixed, matured,
disputed, secured, legal, or equitable. The term includes costs of
collection and attorney's fees only to the extent that the laws of
this state permit the holder of the claim to recover them in an
action against the obligor. The term does not include any of the
following:
(A) An unsecured and unmatured claim for employment compensation
and benefits, including commissions and vacation, severance, and
sick-leave pay.
(B) A claim for injury to an individual or to property, or for
breach of warranty, unless all of the following are satisfied:
(i) A right of action for the claim has accrued.
(ii) The claim has been asserted against the seller.
(iii) The seller knows the identity of the person asserting the
claim and the basis upon which the person has asserted it.
(C) A claim for taxes owing to a governmental unit, if both of the
following are satisfied:
(i) A statute governing the enforcement of the claim permits or
requires notice of the bulk sale to be given to the governmental unit
in a manner other than by compliance with the requirements of this
division.
(ii) Notice is given in accordance with the statute.
(4) "Claimant" means any person holding a claim described in
paragraphs (1) to (5), inclusive, of subdivision (b) of Section
6106.4 incurred in the seller's business, or a licensee holding a
claim incurred in the seller's business.
(5) (A) "Date of the bulk sale" means the later of the date on
which either of the following occurs:
(i) More than 10 percent of the net contract price is paid to or
for the benefit of the seller.
(ii) More than 10 percent of the assets, as measured by value, are
transferred to the buyer.
(B) For purposes of this paragraph the following shall apply:
(i) Delivery of a negotiable instrument, as defined in subdivision
(a) of Section 3104, to or for the benefit of the seller in exchange
for assets constitutes payment of the contract price pro tanto.
(ii) The contract price is paid to or for the benefit of the
seller when the seller acquires the unconditional right to receive
the deposit or when the deposit is delivered to the seller or for the
benefit of the seller, whichever is earlier.
(iii) An asset is transferred when a person holding an unsecured
claim can no longer obtain through judicial proceedings rights to the
asset that are superior to those of the buyer arising as a result of
the bulk sale. A person holding an unsecured claim can obtain those
superior rights to a tangible asset at least until the buyer has an
unconditional right, under the bulk-sale agreement, to possess the
asset, and a person holding an unsecured claim can obtain those
superior rights to an intangible asset at least until the buyer has
an unconditional right, under the bulk-sale agreement, to use the
asset.
(6) "Date of the bulk-sale agreement" means the date on which a
bulk-sale agreement becomes enforceable between the buyer and the
seller.
(7) "Debt" means liability on a claim.
(8) "Licensee" means a person licensed as a distributor under the
Alcoholic Beverage Control Act (Division 9 (commencing with Section
23000) of the Business and Professions Code), a wholesaler, as
defined in Section 23021 of the Business and Professions Code,
licensed under the Alcoholic Beverage Control Act (Division 9
(commencing with Section 23000) of the Business and Professions
Code), or a person licensed as a wholesaler or distributor of
cigarettes and tobacco products pursuant to Chapter 3 (commencing
with Section 22975) of Division 8.6 of the Business and Professions
Code.
(9) "Net contract price" means the new consideration the buyer is
obligated to pay for the assets less each of the following:
(A) The amount of any proceeds of the sale of an asset, to the
extent the proceeds are applied in partial or total satisfaction of a
debt secured by the asset.
(B) The amount of any debt to the extent it is secured by a
security interest or lien that is enforceable against the asset
before and after it has been sold to a buyer. If a debt is secured by
an asset and other property of the seller, the amount of the debt
secured by a security interest or lien that is enforceable against
the asset is determined by multiplying the debt by a fraction, the
numerator of which is the value of the new consideration for the
asset on the date of the bulk sale and the denominator of which is
the value of all property securing the debt on the date of the bulk
sale.
(10) A sale is "in the ordinary course of the seller's business"
if the sale comports with usual or customary practices in the kind of
business in which the seller is engaged or with the seller's own
usual or customary practices.
(11) "United States" includes its territories and possessions and
the Commonwealth of Puerto Rico.
(12) "Value" means fair market value.
(b) The following definitions in other divisions apply to this
division:
(1) "Buyer." Paragraph (a) of subdivision (1) of Section 2103.
(2) "Equipment." Paragraph (33) of subdivision (a) of Section
9102.
(3) "Inventory." Paragraph (48) of subdivision (a) of Section
9102.
(4) "Sale." Subdivision (1) of Section 2106.
(5) "Seller." Paragraph (d) of subdivision (1) of Section 2103.
(c) In addition, Division 1 (commencing with Section 1101)
contains general definitions and principles of construction and
interpretation applicable throughout this division.
6103. (a) Except as otherwise provided in subdivision (c), this
division applies to a bulk sale if both of the following are
satisfied:
(1) The seller's principal business is the sale of inventory from
stock, including those who manufacture what they sell, or that of a
restaurant owner.
(2) On the date of the bulk-sale agreement the seller is located
in this state or, if the seller is located in a jurisdiction that is
not a part of the United States, the seller's major executive office
in the United States is in this state.
(b) A seller is deemed to be located at its place of business. If
a seller has more than one place of business, the seller is deemed
located at its chief executive office.
(c) This division does not apply to any of the following:
(1) A transfer made to secure payment or performance of an
obligation.
(2) A transfer of collateral to a secured party pursuant to
Section 9609.
(3) A disposition of collateral pursuant to Section 9610.
(4) Retention of collateral pursuant to Section 9620.
(5) A sale of an asset encumbered by a security interest or lien
if (A) all the proceeds of the sale are applied in partial or total
satisfaction of the debt secured by the security interest or lien or
(B) the security interest or lien is enforceable against the asset
after it has been sold to the buyer and the net contract price is
zero.
(6) A general assignment for the benefit of creditors or to a
subsequent transfer by the assignee.
(7) A sale by an executor, administrator, receiver, trustee in
bankruptcy, debtor in possession, or any public officer under
judicial process.
(8) A sale made in the course of judicial or administrative
proceedings for the dissolution or reorganization of an organization.
(9) A sale to a buyer whose principal place of business is in the
United States and who satisfies each of the following:
(A) Assumes in full the debts that were incurred in the seller's
business before the date of the bulk sale.
(B) Is not insolvent after the assumption.
(C) Records and publishes notice of the assumption not later than
30 days after the date of the bulk sale in the manner provided by
Section 6105.
(10) A sale required by, and made pursuant to, statute.
(11) A transfer of personal property, if the personal property is
leased back to the transferor immediately following the transfer and
either there has been compliance with subdivision (h) of Section
3440.1 of the Civil Code or the transfer is exempt under subdivision
(k) of Section 3440.1 of the Civil Code.
(12) A transfer which is subject to and complies with Article 5
(commencing with Section 24070) of Chapter 6 of Division 9 of the
Business and Professions Code, if the transferee records and
publishes notice of the transfer at least 12 business days before the
transfer is to be consummated in the manner provided in Section 6105
and the notice contains the information set forth in paragraphs (1)
to (4), inclusive, of subdivision (a) of Section 6105.
(13) A transfer of goods in a warehouse where a warehouse receipt
has been issued therefor by a warehouseman (Section 7102) and a copy
of the receipt is kept at the principal place of business of the
warehouseman and at the warehouse in which the goods are stored.
(d) The notice under subparagraph (C) of paragraph (9) of
subdivision (c) shall state each of the following:
(1) That a sale that may constitute a bulk sale has been or will
be made.
(2) The date or prospective date of the bulk sale.
(3) The individual, partnership, or corporate names and the
addresses of the seller and buyer.
(4) The address to which inquiries about the sale may be made, if
different from the seller's address.
(5) That the buyer has assumed or will assume the debts that were
incurred in the seller's business before the date of the bulk sale.
6105. (a) In a bulk sale, as defined in paragraph (2) of
subdivision (a) of Section 6102, the buyer shall give notice in
accordance with this section.
(b) The notice shall comply with each of the following:
(1) State that a bulk sale is about to be made.
(2) State the name and business address of the seller together
with any other business name and address listed by the seller and the
name and business address of the buyer.
(3) State the location and general description of the assets.
(4) State the place and the anticipated date of the bulk sale.
(5) The name and address of the escrow agent with whom claims may
be filed and the last date for filing those claims, which shall be
the business day before the date stated under paragraph (4).
(c) At least 12 business days before the date of the bulk sale,
the notice shall be:
(1) Recorded in the office of the county recorder in the county or
counties in this state in which the tangible assets are located and,
if different, in the county in which the seller is located.
(2) Published at least once in a newspaper of general circulation
published in the judicial district in this state in which the
tangible assets are located and in the judicial district, if
different, in which the seller is located, if in either case there is
one, and if there is none, then in a newspaper of general
circulation in the county in which the judicial district is located.
If the tangible assets are located in more than one judicial district
in this state, the publication required under this paragraph shall
be in a newspaper of general circulation published in the judicial
district in this state in which a greater portion of the tangible
assets are located, on the date the notice is published, than in any
other judicial district in this state and, if different, in the
judicial district in which the seller is located. As used in this
subdivision, "business day" means any day other than a Saturday,
Sunday, or day observed as a holiday by the state government.
(3) Delivered or sent by registered or certified mail to the
county tax collector in the county or counties in this state in which
the tangible assets are located. If delivered during the period from
January 1 to May 7, inclusive, the notice shall be accompanied by a
completed business property statement with respect to property
involved in the bulk sale pursuant to Section 441 of the Revenue and
Taxation Code.
6106.2. (a) Upon every bulk sale, it is the duty of the escrow
agent to apply the consideration so far as necessary to pay those
debts of the seller for which the claims are due and payable on or
before the date of the bulk sale and are received in writing by the
escrow agent on or prior to the date specified as the last date to
file claims. This duty of the escrow agent runs to each claimant
timely filing the claim. Claims shall be deemed timely filed only if
actually received by the escrow agent before the close of business on
the day specified as the last date to file those claims.
(b) If the seller disputes whether a claim is due and payable on
the date of the bulk sale or the amount of any claim, the escrow
agent shall withhold from distribution an amount equal to (1) 125
percent of the first seven thousand five hundred dollars ($7,500) of
the claim, and (2) an amount equal to that portion of the claim in
excess of the first seven thousand five hundred dollars ($7,500), or
the pro rata amount under subdivision (b) of Section 6106.4, if
applicable, and shall send a written notice to the claimant filing
the claim on or before two business days after the distribution that
the amount will be paid to the seller, or to the other claimants in
accordance with subdivision (b) of Section 6106.4, as the case may
be, unless attached within 25 days from the mailing of the notice.
Any portion of the amount withheld which is not attached by the
claimant within that time shall be paid by the escrow agent to the
seller, or to the other claimants in accordance with subdivision (b)
of Section 6106.4 if they have not been paid in full. An attachment
of any amount so withheld shall be limited in its effect to the
amount withheld for the attaching claimant and shall give the
attaching claimant no greater priority or rights with respect to its
claim than the claimant would have had if the claim had not been
disputed. For purposes of this subdivision, a claimant may obtain the
issuance of an attachment for a claim which is less than five
hundred dollars ($500) and which otherwise meets the requirements of
Section 483.010 of the Code of Civil Procedure or which is a secured
claim or lien of the type described in Section 483.010 of the Code of
Civil Procedure. The remedy in this subdivision shall be in addition
to any other remedies the claimant may have, including any right to
attach the property intended to be transferred or any other property.
(c) The escrow agent shall, within 45 days after the buyer takes
legal title to any of the goods, either pay to the extent of the cash
consideration the claims filed and not disputed, or the applicable
portion thereof to the extent of the cash consideration under
subdivision (b) of Section 6106.4, or institute an action in
interpleader pursuant to subdivision (b) of Section 386 of the Code
of Civil Procedure and deposit the consideration with the clerk of
the court pursuant to subdivision (c) of that section. The action
shall be brought in the appropriate court in the county where the
seller had its principal place of business in this state. Sections
386.1 and 386.6 of the Code of Civil Procedure shall apply in the
action.
(d) This section shall not be construed to release any security
interest or other lien on the property which is the subject of the
bulk sale except upon a voluntary release by the secured party or
lienholder.
6106.4. The intended buyer shall deposit with the escrow agent
the full amount of the purchase price or consideration. If, at the
time the bulk sale is otherwise ready to be consummated, the amount
of cash deposited or agreed to be deposited at or prior to
consummation in the escrow is insufficient to pay in full all of the
claims filed with the escrow agent, the escrow agent shall do each of
the following:
(a) (1) Delay the distribution of the consideration and the
passing of legal title for a period of not less than 25 days nor more
than 30 days from the date the notice required in paragraph (2) is
mailed.
(2) Within five business days after the time the bulk sale would
otherwise have been consummated, send a written notice to each
claimant who has filed a claim stating the total consideration
deposited or agreed to be deposited in the escrow, the name of each
claimant who filed a claim against the escrow and the amount of each
claim, the amount proposed to be paid to each claimant, the new date
scheduled for the passing of legal title pursuant to paragraph (1)
and the date on or before which distribution will be made to
claimants which shall not be more than five days after the new date
specified for the passing of legal title.
(3) If no written objection to the distribution described in the
notice required by paragraph (2) is received by the escrow agent
prior to the new date specified in the notice for the passing of
legal title, the escrow agent shall not be liable to any person to
whom the notice required by paragraph (2) was sent for any good faith
error that may have been committed in allocating and distributing
the consideration as stated in the notice.
(b) Distribute the consideration in the following order of
priorities:
(1) All obligations owing to the United States, to the extent
given priority by federal law.
(2) Secured claims, including statutory and judicial liens, to the
extent of the consideration fairly attributable to the value of the
properties securing the claims and in accordance with the priorities
provided by law. A secured creditor shall participate in the
distribution pursuant to this subdivision only if a release of lien
is deposited by the secured creditor conditioned only upon receiving
an amount equal to the distribution.
(3) Escrow and professional charges and brokers' fees attributable
directly to the sale.
(4) Wage claims given priority by Section 1205 of the Code of
Civil Procedure.
(5) All other tax claims.
(6) All other unsecured claims pro rata, including any deficiency
claims of partially secured creditors.
(c) To the extent that an obligation of the buyer to pay cash in
the future is a part of the consideration and the cash consideration
is not sufficient to pay all claims filed in full, apply all
principal and interest received on the obligation to the payment of
claims in accordance with subdivision (b) until they are paid in full
before making any payment to the seller. In that case, the notice
sent pursuant to subdivision (a) shall state the amount, terms, and
due dates of the obligation and the portion of the claims expected to
be paid thereby.
No funds may be drawn from the escrow, prior to the actual closing
and completion of the escrow, for the payment, in whole or in part,
of any commission, fee, or other consideration as compensation for a
service that is contingent upon the performance of any act,
condition, or instruction set forth in the escrow.
6106.6. This division shall apply to a bulk sale if the date of
the bulk-sale agreement is on or after January 1, 2013.
SECTION 1. Section 22901 of the Business and
Professions Code is amended to read:
22901. The following definitions apply for purposes of this
chapter:
(a) "Act" means the Fair Practices of Equipment Manufacturers,
Distributors, Wholesalers, and Dealers Act.
(b) "Claim" means a dealer's claim for reimbursement from a
supplier for labor and materials expended by the dealer to meet the
requirements of the supplier's warranty agreement with a consumer of
the supplier's products if the dealer has complied with the supplier'
s then-existing written policies and procedures for warranties and
warranty claims.
(c) "Current parts price" means, with respect to current parts,
the price for repair parts listed in the supplier's price list or
catalog in effect at the time the dealer contract is canceled or
discontinued or, for purposes of Section 22905, the price list or
catalog in effect at the time the repair parts were ordered. "Current
parts price" also means, with respect to superseded repair parts,
the price listed in the supplier's price list or catalog in effect at
the time the dealer contract is canceled or discontinued for the
part that performs the same function and purpose as the superseded
part, but is simply listed under a different part number.
(d) "Current net parts cost" means the current parts price less
any trade or cash discounts typically given to the dealer with
respect to that dealer's normal, ordinary course of orders of repair
parts. "Current net parts cost" also means, with respect to a
warranty, the current parts price of the supplier for the equipment
repaired less any trade or cash discounts typically given to the
dealer with respect to that dealer's normal, ordinary course of
orders of repair parts.
(e) "Dealer" means any person primarily engaged in the retail sale
of equipment as defined in subdivision (j). For the purposes of this
act, "dealer" does not include a "franchisee" as defined in Section
331.1 of the Vehicle Code or a "new motor vehicle dealer" as defined
in Section 426 of the Vehicle Code.
(f) "Dealer contract" means either an oral or written contract,
agreement, or arrangement for a definite or indefinite period between
a dealer and a supplier that provides for the rights and obligations
of the parties with respect to the purchase or sale of equipment or
repair parts.
(g) "Dealership" means the retail sale business engaged in by a
dealer under a dealer contract.
(h) "Demonstrator" means equipment in a dealer's inventory that
has not been sold, but has had its usage demonstrated to potential
customers, either without charge or pursuant to a short-term rental
agreement, with the intent of encouraging the potential customer to
purchase the
equipment.
(i) (1) "Equipment" means all-terrain vehicles and other
machinery, equipment, implements, or attachments used for, or in
connection with, any of the following purposes:
(A) Lawn, garden, golf course, landscaping, or grounds
maintenance.
(B) Planting, cultivating, irrigating, harvesting, and producing
agricultural or forestry products.
(C) Raising, feeding, or tending to, or harvesting products from,
livestock and any other activity in connection with those activities.
(D) Industrial, construction, maintenance, mining, or utility
activities or applications, including, but not limited to, material
handling equipment.
(2) Self-propelled vehicles designed primarily for the
transportation of persons or property on a street or highway are
specifically excluded from the definition of equipment.
(j) "Family member" means a spouse, parent, sibling, child,
son-in-law, daughter-in-law, and lineal descendant, including those
by adoption.
(k) "Good cause" means failure by a dealer to comply with the
requirements imposed on the dealer by the dealer contract, if those
requirements are not different from those requirements imposed on
other similarly situated dealers in this state.
(l) "Index" means the United States Department of Labor, Bureau of
Labor Statistics purchase price index for construction machinery
series identification number pcu333120333120, or any successor index
measuring substantially similar information.
(m) "Inventory" means equipment, repair parts, data-processing
hardware or software, and specialized service or repair parts.
(n) "Major shareholder" means a shareholder with 51-percent or
greater interest in a dealership.
(o) "Manufacturer created incentive program" means a program in
which the dealer's inventory has not been sold but has been used for
specialized purposes, including, but not limited to, harvest rental
programs, dealer purchase rentals, and short-term rentals. The
warranty that is transferred to the consumer upon sale, which shall
be disclosed prior to sale, is the manufacturer-provided base
warranty, less hours and time used while in a manufacturer created
incentive program.
(p) "Net equipment cost" means the price the dealer actually paid
to the supplier for equipment, plus (1) freight, at truckload rates
in effect as of the effective date of the termination of a dealer
contract, if freight was paid by the dealer from the supplier's
location to the dealer's location and (2) reimbursement for labor
incurred in preparing the equipment for retail sale or rental, which
labor will be reimbursed at the dealer's standard labor rate charged
by the dealer to its customers for nonwarranty repair work; provided,
however, if a supplier has established a reasonable setup time, that
labor will be reimbursed at an amount equal to the reasonable setup
time in effect as of the date of delivery multiplied by the dealer's
standard labor rate.
(q) "Person" means an individual, corporation, partnership,
limited liability company, trust, or any and all other forms of
business entities, including any other entity in which a person has a
majority interest or of which a person has control, as well as the
individual officers, directors, and other persons in active control
of the activities of each entity.
(r) "Repair parts" means all parts and products related to the
service or repair of equipment, including superseded parts.
(s) "Single-line dealer" means a dealer that has (1) purchased
construction, industrial, forestry, and mining equipment from a
single supplier constituting 75 percent of the dealer's new
equipment, calculated on the basis of net cost; and (2) a total
annual average sales volume in excess of forty million dollars
($40,000,000) for the three calendar years immediately preceding the
applicable determination date; provided, however, the sales threshold
shall be increased each year by an amount equal to the current sales
threshold multiplied by the percentage increase in the index from
January 1 of the immediately preceding year to January 1 of the
current year.
(t) "Single-line supplier" means the supplier that is selling the
single-line dealer construction, industrial, forestry, and mining
equipment constituting 75 percent of the dealer's new equipment.
(u) "Supplier" means any person engaged in the business of
manufacturing, assembly, or wholesale distribution of equipment or
repair parts. "Supplier" also includes any successor in interest to a
supplier, including a purchaser of assets or stock, or a surviving
corporation resulting from a merger, liquidation, or reorganization
of a supplier.
(v) "Terminate" means to terminate, cancel, fail to renew, or
materially change the competitive circumstances of a dealer contract.
SEC. 2. Section 22903 of the Business and
Professions Code is amended to read:
22903. (a) This section shall only apply to a dealer contract
between a dealer who is not a single-line dealer and a supplier who
is not a single-line supplier.
(b) Except where there are grounds for termination of a dealer
contract pursuant to paragraph (1), (2), (3), (4), (5), (6), (7), or
(8) of subdivision (c), a supplier shall give a dealer 180 days
written notice of the supplier's intent to terminate a dealer
contract. The notice shall include all reasons constituting good
cause for the termination and shall provide the dealer with 60 days
to cure any claimed deficiency. If the deficiency is cured within 60
days to the satisfaction of the supplier, which shall be determined
in good faith, the notice of termination shall be void. Except as
provided in subdivision (d), a supplier may not terminate a dealer
contract based on paragraph (12) of subdivision (c) unless the
supplier gives the dealer notice of that action at least one year
before the effective date of that action. If the dealer achieves the
supplier's requirements for reasonable standards or performance
objectives before the expiration of the one-year notice period, the
notice shall be void and the dealer contract shall continue in full
force and effect.
(c) No supplier, directly or through an officer, agent, or
employee, may terminate, cancel, fail to renew, or materially change
the competitive circumstances of a dealer contract without good
cause. In addition to the definition in subdivision (k) of Section
22901, good cause exists whenever the dealer has taken any of the
following actions:
(1) Transferred a controlling ownership interest in the dealership
without the consent of the supplier, who shall not withhold consent
unreasonably.
(2) Made a material misrepresentation or falsification of any
record.
(3) Filed a voluntary petition in bankruptcy or has had an
involuntary petition in bankruptcy filed against the dealer that has
not been dismissed within 60 days after the filing or is insolvent or
in receivership.
(4) Pleaded guilty to or has been convicted of a felony involving
an act of moral turpitude.
(5) Failed to operate in the normal course of business for seven
consecutive business days, without the consent of the supplier, or
has terminated the business.
(6) Relocated or established a new or additional dealer's place of
business without the supplier's consent.
(7) Materially defaulted under any chattel mortgage or other
security agreement between the dealer and the supplier, or there has
been a revocation of any guarantee of the dealer's present or future
obligations to the supplier. However, good cause does not exist if a
person revokes any guarantee in connection with or following the
transfer of that person's entire ownership interest in the dealer
unless the supplier requires that person to execute a new guarantee
of the dealer's present or future obligations in connection with that
transfer of ownership interest.
(8) Failed to satisfy any payment obligation as it became due and
payable to the supplier, failed to promptly account to the supplier
for any proceeds from the sale of equipment, or failed to hold those
proceeds in trust for the benefit of the supplier.
(9) Engaged in conduct that is injurious or detrimental to any of
the following:
(A) The dealer's customers. This includes, but is not limited to,
the following conduct: excessive pricing, misleading advertising,
failure to provide service and replacement parts, and failure to
perform warranty obligations.
(B) The public welfare.
(C) The representation or reputation of the supplier's product.
(10) Consistently failed to meet building and housekeeping
requirements, or failed to provide adequate sales, service, or parts
personnel commensurate with the dealer contract.
(11) Consistently failed to comply with the applicable licensing
laws pertaining to the products and services being represented for
and on the supplier's behalf.
(12) Consistently failed to meet and maintain the supplier's
requirements for reasonable standards and performance objectives, if
the supplier has given the dealer reasonable standards and
performance objectives that are based on the manufacturer's
experience in other comparable market areas.
(d) Notwithstanding subdivision (c), if the sales, service,
rental, and repair of a supplier's product represents the lesser of
10 percent or three hundred fifty thousand dollars ($350,000) of the
dealer's total gross annual revenue that includes, but is not limited
to, the sales, service, rental, or repair, for each dealer location,
the supplier may terminate a dealer contract based on paragraph (12)
of subdivision (c) upon providing the dealer with notice of that
action at least 180 days before the effective date of that action. If
the dealer achieves the supplier's requirements for reasonable
standards or performance objectives within 60 days of receipt of the
termination notice, the notice shall be void and the dealer contract
shall continue in full force and effect.
(e) Notwithstanding a dealer contract that provides for
exclusivity during the term of the contract, a supplier may begin
contract negotiations with a potential replacement dealer 60 days
prior to the expiration of the notice period that has been provided
pursuant to subdivisions (b) or (d) if the dealer failed to achieve
the supplier's requirements for reasonable standards or performance
objectives within 60 days of receipt of the termination notice.
Nothing in this subdivision shall authorize a replacement dealer to
conduct operations with a supplier during the term of a dealer
contract.
SEC. 3. Section 22903.2 of the Business and
Professions Code is amended to read:
22903.2. (a) This section shall only apply to dealer contracts
between a single-line dealer and its single-line supplier.
(b) No supplier may terminate a dealer contract without good
cause. In addition to the definition in subdivision (k) of Section
22901, good cause exists whenever any one of the following is
applicable:
(1) There has been a closeout or sale of 65 percent or more of the
dealer's assets related to the equipment business or there has been
a commencement of a dissolution or liquidation of the dealer.
(2) The dealer has changed its principal place of business or
added additional locations without prior approval of the supplier,
which shall not be unreasonably withheld.
(3) The dealer has materially defaulted under a chattel mortgage
or other security agreement between the dealer and the supplier, or
there has been a revocation or discontinuance of a guarantee of a
present or future obligation of the dealer to the supplier.
(4) The dealer has failed to operate in the normal course of
business for seven consecutive days, without the consent of the
supplier, or has otherwise abandoned the business.
(5) The dealer has pleaded guilty to or has been convicted of a
felony involving an act of moral turpitude.
(6) The dealer has transferred an interest in the dealership, or a
person with a substantial interest in the ownership or control of
the dealership, including an individual, proprietor, partner or major
shareholder, has withdrawn from the dealership or died, or a
substantial reduction has occurred in the interest of a partner or
major shareholder in the dealership. However, good cause does not
exist if the supplier has consented to an action described in this
paragraph.
(c) Except as otherwise provided in this subdivision, a supplier
shall provide a dealer with at least 90 days written notice of
termination. The notice shall state all reasons constituting good
cause for termination and shall state that the dealer has 60 days in
which to cure any claimed deficiency. If the deficiency is cured
within 60 days, the notice shall be void. Notwithstanding the
foregoing, if the good cause for termination is due to the dealer's
failure to meet or maintain the supplier's requirements for market
penetration, a reasonable period of time shall have existed where the
supplier has worked with the dealer to gain the desired market
share. The notice and right to cure provisions under this subdivision
shall not apply if the reason for termination is for any reason set
forth in subdivision (b).
(d) If a dealer dies, a supplier shall have 90 days in which to
consider and make a determination on a request by a family member to
enter into a new dealer contract to operate the dealership. If the
supplier determines that the requesting family member is not
acceptable, the supplier shall provide the family member with a
written notice of its determination with the stated reasons for
rejection. This section does not entitle an heir, personal
representative, or family member to operate a dealership without
specific written consent of the supplier.
(e) Notwithstanding subdivision (d), if a supplier and dealer have
previously executed an agreement concerning succession rights prior
to the dealer's death, and if that agreement is still in effect, the
agreement shall be observed even if it designated someone other than
the surviving spouse or heirs of the decedent as the successor.
(f) For purposes of this section, dealer assets shall not include
land or buildings.
SEC. 4. Section 22905 of the Business and
Professions Code is amended to read:
22905. Except as provided in subdivision (p), whenever a dealer
contract is terminated by cancellation or nonrenewal, the supplier
shall repurchase the inventory as provided in this section.
(a) The supplier shall repurchase at its fair market value or
assume the lease responsibilities of any specific data-processing
hardware that the supplier required the dealer to purchase to satisfy
the minimum requirements of the dealer contract, including computer
systems equipment required and approved by the supplier to
communicate with the supplier. The fair market value of property
subject to repurchase shall be deemed to be equal to the acquisition
cost, including any shipping, handling and set-up fees, less straight
line depreciation of that acquisition cost over three years. If the
dealer purchased data-processing hardware or software that exceeded
the supplier's minimum requirements, the acquisition cost of that
data-processing hardware or software shall be deemed to be the
acquisition cost of hardware or software of similar quality that did
not exceed the minimum requirements of the supplier.
(b) The supplier shall pay a sum equal to 100 percent of the net
equipment cost of all new, unsold, undamaged, and complete equipment.
(c) The supplier shall pay a sum equal to 100 percent of the net
equipment cost of all unsold, undamaged demonstrators, less
depreciation due to usage of those demonstrators. The depreciation
adjustment shall be based on published industry rental rates to the
extent those rates are available. For purposes of this subdivision,
demonstrators, with hour meters that have less than 50 hours of use
shall be considered new, unsold equipment subject to repurchase under
this section.
(d) The supplier shall pay a sum equal to 100 percent of the net
equipment cost of all unsold and undamaged equipment used in a
manufacturer created incentive program, as defined in subdivision (o)
of Section 22901, less depreciation due to usage and bonus or volume
incentive received by the dealer for the equipment. The depreciation
adjustment shall be based on published industry rental rates to the
extent these rates are available. For purposes of this subdivision,
equipment with hour meters used in a manufacturer created incentive
program with less than 50 hours of use will be considered new, unsold
equipment subject to repurchase under this section.
(e) The supplier shall pay a sum equal to 95 percent of the
current net parts costs on new, unsold, undamaged repair parts that
had previously been purchased from the supplier and held by the
dealer on the date that the dealer contract terminates or expires.
(f) The supplier shall also pay the dealer 5 percent of the
current net parts cost on all new, unused, and undamaged repair parts
returned, to cover the cost of handling, packing, and loading of
those parts for return to the supplier. The dealer may allow the
supplier to perform the handling, packing, and loading of parts
instead of receiving the 5 percent payment for these services. When
the supplier is chosen to perform these services, the dealer shall
make available to the supplier, at the dealer's address or at the
places at which it is located, all equipment previously purchased by
the dealer.
(g) The supplier shall pay a sum equal to 75 percent of the net
equipment cost, including shipping, handling and set-up fees, of all
specialized equipment or repair tools previously purchased pursuant
to requirements of the supplier prior to the date of the applicable
notification of termination or nonrenewal of the dealer contract. The
specialized equipment or repair tools must be unique to the supplier'
s product line and must be complete and in operating condition.
(h) Upon the payment or allowance of credit to the dealer's
account of the sums required by this section, the title to all
inventory purchased shall pass to the supplier making payment, and
the supplier shall be entitled to the possession of the inventory.
All payments or allowances of credit due to dealers shall be paid or
credited within 90 days after receipt by the supplier of property
required to be repurchased. Any payments or allowances of credit due
to dealers that are not paid within the 90-day period will accrue
interest at the statutory rate. The supplier may withhold payments
due under this section during the period of time in which the dealer
fails to comply with its contractual obligations to remove any
signage indicating that the dealer is an authorized dealer of the
supplier.
(i) The supplier and dealer shall each pay 50 percent of the costs
of freight to ship equipment to the nearest retail outlet or to ship
repair parts to the nearest supplier distribution center.
(j) The provisions of this section shall not require the
repurchase from the dealer of any of the following:
(1) Any repair part that is in a broken or damaged package.
However, the supplier shall be required to repurchase a repair part
in a broken or damaged package, for a repurchase price that is equal
to 85 percent of the current net parts cost for the repair part, if
the aggregate current price for the entire package of repair parts is
seventy-five dollars ($75) or higher.
(2) Any repair part that, because of its condition, is not
resalable as a new part without reconditioning.
(3) Any inventory for which the dealer is unable to furnish
evidence, satisfactory to the supplier, of clear title, free and
clear of all claims, liens, and encumbrances.
(4) Any inventory that the dealer desires to keep if the dealer
has a contractual right to do so.
(5) Any equipment or repair parts that are not in new, unsold,
undamaged, complete condition; subject to the provisions of this act
relating to demonstrators.
(6) Any equipment or repair parts acquired by the dealer from any
source other than the supplier unless that equipment or those repair
parts were ordered from, or invoiced to, the dealer by the supplier.
(7) Any equipment or repair parts that are not returned to the
supplier within 90 days after the latter of (A) the effective date of
termination of a dealer contract or (B) the date the dealer receives
from the supplier all information, documents, or supporting
materials required by the supplier to comply with the supplier's
return policy. However, this paragraph shall not be applicable to a
dealer if the supplier did not give the dealer notice of the 90-day
deadline at the time the applicable notice of termination was sent to
the dealer.
(k) If any supplier fails or refuses to repurchase any inventory
covered under this section within 90 days after termination of a
dealer contract, the supplier shall be liable for the total amount of
110 percent of the current net equipment cost of the inventory, plus
any freight charges paid by the dealer, interest accrued at the
statutory rate from the date of shipment to the supplier until the
date of payment, 5 percent for handling, packing, and loading, and
actual costs for any court or arbitration proceedings, including
costs for attorney's fees and arbitrators.
(l) Notwithstanding any provision to the contrary in the
Commercial Code, the dealer shall retain a first and prior lien
against all inventory returned by the dealer to the supplier under
this act until the dealer has paid all amounts owed by the supplier
for the repurchase of inventory required under this act.
(m) This section shall not be construed to affect any security
interest that the supplier may have in the inventory of the dealer,
and any repurchase shall not be subject to the claims of any secured
or unsecured creditors of the supplier or any assignee of the
supplier until such time as the dealer has received full payment or
credit.
(n) The dealer may not cancel a dealer contract to avoid a payment
obligation to the supplier for equipment or parts.
(o) If a dealer has more than one business location covered by the
same dealer contract, the repurchase requirements of this section
shall apply only to the repurchase of a dealer's inventory obtained
from the supplier or the supplier's distributor by the particular
business location or locations involved in the dealer contract
termination and shall not apply to any other business locations
covered by the same contract.
(p) If a supplier's product represents the lesser of 10 percent or
three hundred fifty thousand dollars ($350,000) of the dealer's
total gross annual revenue that includes, but is not limited to, the
sales, service, rental, or repair for each dealer location, then the
supplier shall repurchase the inventory only if a dealer contract is
canceled or not renewed by the dealer for any of the following
reasons:
(1) The supplier consistently failed to provide adequate product
support for the type and use of the product, which includes, but is
not limited to, technical assistance, operators and repair manuals,
and parts lists and
diagrams.
(2) The supplier consistently failed to provide adequate training,
required by the supplier, for maintenance, repair, or usage of the
supplier's product.
(3) The supplier consistently failed to provide marketing and
marketing support for the supplier's product if marketing is a
requirement of the dealer contract.
(4) The supplier's product is defective and breaches the implied
warranty of merchantability as defined in Section 1791.1 of the Civil
Code.
(5) The supplier consistently failed to meet its warranty
obligations to the dealer.
(6) The supplier abandons the market thereby failing to provide
parts and services necessary for a dealer to perform warranty
obligations.
(7) The supplier engaged in conduct that is injurious or
detrimental to the dealer's customers, the public welfare, or the
reputation of the dealer.
(8) The supplier made a material misrepresentation or
falsification of any record.
(9) The supplier violated any provision of this chapter.
(q) Notwithstanding subdivision (p), nothing in this section shall
be construed to limit the supplier's responsibility to repurchase a
dealer's inventory as provided in this section when the supplier
cancels or fails to renew a dealer contract.
SEC. 5. Section 22906 of the Business and
Professions Code is amended to read:
22906. (a) A dealer, as defined in subdivision (e) of Section
22901, is not entitled to establish a lien pursuant to this act,
unless that person has first sent to the lien debtor a written
notice, by certified mail, which states all of the following:
(1) The payment of the reasonable or agreed charges is more than
90 days overdue. This requirement does not apply to equipment subject
to repurchase that was returned to the supplier subsequent to return
of other equipment also subject to repurchase for which payment is
overdue.
(2) The amount of reasonable or agreed charges that are overdue.
(3) The lien debtor has the following three alternatives:
(A) Allow the lien to be filed.
(B) Enter into a consensual security interest in the proceeds,
pursuant to the Commercial Code.
(C) Pay the reasonable or agreed charges that are overdue.
(4) The lien debtor has 10 days from receipt of the notice to
select an alternative, notify the lien claimant of the alternative
selected, and satisfy all of the requirements of the selected
alternative. This part of the notice to the lien debtor shall be in
10-point type or bolder.
(5) The lien claimant may file the notice of claim of lien
pursuant to this chapter at any time thereafter if the lien debtor
does not comply with the requirements of this section.
(b) A dealer who has complied with subdivision (a), has a lien
for payment of the repurchase amount payable pursuant to subdivisions
(b), (c), (d), (e), and (f) of Section 22905 and for the costs of
enforcing the lien.
(c) The lien established pursuant to this chapter attaches to the
proceeds of any sale of the equipment returned for repurchase.
(d) The amount of charges secured by the lien shall not exceed an
amount equal to the reasonable or agreed charges for the equipment
specified in Section 22905.
SEC. 6. Section 22924 of the Business and
Professions Code is amended to read:
22924. (a) In the event of the death or incapacity of the dealer,
which in this context shall mean an owner, equal or majority
partner, or the majority stockholder of a corporation, operating as a
dealer, the supplier shall, at the option of the heirs at law, if
the dealer died intestate, or the executor under the terms of the
deceased dealer's last will and testament, if the dealer died
testate, repurchase the inventory from the estate as if the supplier
had terminated the dealer contract and the inventory repurchase
provisions of Section 22905 are applicable. The heirs or executor
shall have 180 days from the date of the death of the dealer or
majority stockholder to exercise the option under this section.
However, nothing in this section shall require the repurchase of
inventory, if the heirs or executor and the supplier enter into a new
dealer agreement, or if a successor to the dealer is established
pursuant to subdivision (b) of Section 22903.1. This section shall be
subject to that portion of the dealer contract pertaining to death
of the dealer or succession, to the extent the contract is not
inconsistent. Nothing in this section shall entitle an heir or
personal representative of a deceased dealer or majority stockholder
to operate the dealership beyond the 180 days provided for in this
subdivision without the consent of the supplier.
(b) The provisions of this section shall be supplemental to any
agreement between the dealer and the supplier covering the return of
equipment, attachments, and repair parts. Notwithstanding anything
contained in this section, the rights of a supplier to charge back to
the dealer's account amounts previously paid or credited as a
discount incident to the dealer's purchase of inventory shall not be
affected.
SEC. 7. Section 24044.5 of the Business and
Professions Code is amended to read:
24044.5. (a) The department, in its discretion, may issue an
interim operating permit to an applicant for any license to operate
the premises during the period an application for a license at the
premises is pending and when all of the following conditions exist:
(1) The application has been protested pursuant to Article 3
(commencing with Section 24011).
(2) The department has made a determination based upon its
investigation that the license should be issued.
(3) The applicant for the interim operating permit has filed with
the department an application for issuance of a license at the
premises to himself or herself.
(4) The application for the interim operating permit is
accompanied by a fee of one hundred dollars ($100).
(b) An interim operating permit issued by the department pursuant
to this section shall be for a period not to exceed 120 days. An
interim operating permit may be extended at the discretion of the
department for additional 120-day periods as necessary upon payment
of an additional fee of one hundred dollars ($100) and upon
compliance with all conditions required by this section. Any interim
operating permit issued by the department shall be automatically
canceled when a final determination made by the department regarding
the protests becomes effective or when the application for the
license is withdrawn, whichever occurs first. An interim operating
permit is a conditional permit and authorizes the holder to whom
issued to exercise the rights and privileges of the license for which
the application has been filed with the department. Any conditions
for which the applicant has petitioned pursuant to Article 1.5
(commencing with Section 23800) of Chapter 5 shall apply to any
interim operating permit issued by the department.
(c) Purchase of beer and wine by the holder of an interim
operating permit issued to an applicant for a retail license shall be
made only upon payment before or at the time of delivery in currency
or by check. Purchase of distilled spirits by the holder of an
interim operating permit issued to an applicant for a retail license
shall be made only upon payment before or at the time of delivery in
currency or by certified check. However, the holder of an interim
operating permit issued to an applicant for a retail license, who
also holds one or more retail licenses and is operating under the
retail license or licenses in addition to the interim operating
permit, and who is not delinquent under the provisions of Section
25509 as to any retail license under which he or she operates, may
purchase alcoholic beverages on credit under the interim operating
permit.
(d) All checks received by a seller for beer or wine purchased by
the holder of an interim operating permit issued to an applicant for
a retail license shall be deposited not later than the second
business day following the date the beer or wine is delivered.
A check dishonored on presentation shall not be deemed payment.
The receipt by the seller or his or her agent in good faith from a
holder of an interim operating permit of a check dishonored on
presentation shall not be cause for disciplinary action against the
seller.
(e) Issuance of the license for which the holder of an interim
operating permit issued to an applicant for a retail license has
filed an application shall not be approved by the department until
the holder of the interim operating permit has filed with the
department a statement executed under penalty of perjury that all
current obligations have been discharged, and that all outstanding
checks issued by him or her in payment for alcoholic beverages will
be honored on presentation.
(f) It shall not be a violation of this section or grounds for
disciplinary action for any licensee to extend credit to the holder
of an interim operating permit issued to an applicant for a retail
license or to receive payment from the holder of an interim operating
permit in a manner other than authorized herein unless the seller
has knowledge of the fact that the purchaser was operating under an
interim operating permit. Knowledge of the fact may be established by
evidence, including, but not limited to, evidence that, at the time
of receipt of payment or the extension of credit, the premises
operated under an interim operating permit were posted with the
notice required by Section 23985, or the holder of the interim
operating permit has recorded notice as required by Section 24073, or
the holder of the interim operating permit has published notice as
required by Section 23986.
(g) Refusal by the department to issue or extend an interim
operating permit shall not entitle the applicant to petition for the
permit pursuant to Section 24011, or to a hearing pursuant to Section
24012. Articles 2 (commencing with Section 23985) and 3 (commencing
with Section 24011) shall not apply to interim operating permits.
(h) Notwithstanding any other provision of law, the department
may, in its discretion, cancel or suspend summarily at any time an
interim operating permit if the department determines that good cause
for the cancellation or suspension exists. Chapter 8 (commencing
with Section 24300) shall not apply to interim operating permits.
(i) Application for an interim operating permit shall be on any
form the department shall prescribe. If an application for an interim
operating permit is withdrawn before issuance or is refused by the
department, the fee that accompanied the application shall be
refunded in full, and Section 23959 shall not apply. Fees received by
the department for issuance of interim operating permits shall be
deposited in the Alcohol Beverage Control Fund as provided in Section
25761.
SEC. 8. Section 24045.5 of the Business and
Professions Code is amended to read:
24045.5. The department in its discretion may issue a temporary
permit to the transferee of any license to continue the operation of
the premises during the period a transfer application for the license
from person to person at the same premises is pending and when all
the following conditions exist:
(a) The premises shall have been operated under a license within
30 days of the date of filing the application for a temporary permit.
(b) The license for the premises shall have been surrendered
pursuant to rules of the department.
(c) The applicant for the temporary permit shall have filed with
the department an application for transfer of the license at the
premises to himself or herself.
(d) The application for the temporary permit shall be accompanied
by a temporary permit fee of one hundred dollars ($100).
A temporary permit issued by the department pursuant to this
section shall be for a period not to exceed four calendar months. A
temporary permit may be extended at the discretion of the department
for an additional four calendar months upon payment of an additional
fee of one hundred dollars ($100) and upon compliance with all
conditions required herein. A temporary permit is a conditional
permit and authorizes the holder thereof to sell the alcoholic
beverages as would be permitted to be sold under the privileges of
the license for which the transfer application has been filed with
the department.
Purchase of beer, wine, and distilled spirits by the holder of a
temporary permit shall be made only upon payment before or at the
time of delivery in currency or by check. However, the holder of a
temporary retail permit who also holds one or more retail licenses
and is operating under the retail license or licenses in addition to
the temporary permit, and who is not delinquent under the provisions
of Section 25509 as to any retail license under which he or she
operates, may purchase alcoholic beverages on credit under the
temporary permit.
All checks received by a seller for alcoholic beverages purchased
by the holder of a temporary retail permit shall be deposited not
later than the second business day following the date the alcoholic
beverages are delivered.
A check dishonored on presentation shall not be deemed payment.
The receipt by the seller or his or her agent in good faith from a
holder of a temporary permit of a check dishonored on presentation
shall not be cause for disciplinary action against the seller.
Transfer of the license for which the holder of a temporary permit
has filed an application shall not be approved by the department
until the holder of the temporary permit has filed with the
department a statement executed under penalty of perjury that all
current obligations have been discharged, and that all outstanding
checks issued by him or her in payment for alcoholic beverages will
be honored on presentation.
It shall not be a violation of this section or otherwise grounds
for disciplinary action for any licensee to extend credit to the
holder of a temporary permit or to receive payment from the permittee
in a manner other than authorized herein unless the seller had
knowledge of the fact that the purchaser was operating under a
temporary permit. Knowledge of the fact may be established by
evidence, including, but not limited to, evidence that, at the time
of receipt of payment or the extension of credit, the premises
operated under a temporary permit were posted with the notice
required by Section 23985, or the holder of the temporary permit had
recorded notice as required by Section 24073, or the holder of the
temporary permit had published notice as required by Section 23986.
Refusal by the department to issue or extend a temporary permit
shall not entitle the applicant to petition for the permit pursuant
to Section 24011, or to a hearing pursuant to Section 24012. Articles
2 (commencing with Section 23985) and 3 (commencing with Section
24011) shall not apply to temporary permits.
Notwithstanding any other provision of law, a temporary permit may
be canceled or suspended summarily at anytime if the department
determines that good cause for the cancellation or suspension exists.
Chapter 8 (commencing with Section 24300) shall not apply to
temporary permits.
Application for a temporary permit shall be on any form the
department shall prescribe. If an application for a temporary permit
is withdrawn before issuance or is refused by the department, the fee
which accompanied the application shall be refunded in full, and
Section 23959 shall not apply. Fees received by the department for
issuance of temporary permits shall be deposited in the Alcohol
Beverage Control Fund as provided in Section 25761.
SEC. 9. Section 485.010 of the Code of Civil
Procedure is amended to read:
485.010. (a) Except as otherwise provided by statute, no right to
attach order or writ of attachment may be issued pursuant to this
chapter unless it appears from facts shown by affidavit that great or
irreparable injury would result to the plaintiff if issuance of the
order were delayed until the matter could be heard on notice.
(b) The requirement of subdivision (a) is satisfied if any of the
following are shown:
(1) Under the circumstances of the case, it may be inferred that
there is a danger that the property sought to be attached would be
concealed, substantially impaired in value, or otherwise made
unavailable to levy if issuance of the order were delayed until the
matter could be heard on notice.
(2) Under the circumstances of the case, it may be inferred that
the defendant has failed to pay the debt underlying the requested
attachment and the defendant is insolvent in the sense that the
defendant is generally not paying his or her debts as those debts
become due, unless the debts are subject to a bona fide dispute.
Plaintiff's affidavit filed in support of the ex parte attachment
shall state, in addition to the requirements of Section 485.530, the
known undisputed debts of the defendant, that the debts are not
subject to bona fide dispute, and the basis for plaintiff's
determination that the defendant's debts are undisputed.
(3) An escrow has been opened pursuant to the provisions of
Section 24074 of the Business and Professions Code with respect to
the sale by the defendant of a liquor license.
(4) Any other circumstance showing that great or irreparable
injury would result to the plaintiff if issuance of the order were
delayed until the matter could be heard on notice.
(c) Upon a writ being issued solely on a showing under paragraph
(2) of subdivision (b), if the defendant requests the court to review
the issuance of the writ, the court shall conduct a hearing within
five court days after the plaintiff is served with notice of the
defendant's request. A writ issued solely on a showing under
paragraph (3) of subdivision (b) shall be limited to the plaintiff's
pro rata share of the proceeds of the sale in escrow.
SEC. 10. Section 2403 of the Commercial Code is
amended to read:
2403. (1) A purchaser of goods acquires all title which his
transferor had or had power to transfer except that a purchaser of a
limited interest acquires rights only to the extent of the interest
purchased. A person with voidable title has power to transfer a good
title to a good faith purchaser for value. When goods have been
delivered under a transaction of purchase the purchaser has such
power even though
(a) The transferor was deceived as to the identity of the
purchaser, or
(b) The delivery was in exchange for a check which is later
dishonored, or
(c) It was agreed that the transaction was to be a "cash sale," or
(d) The delivery was procured through fraud punishable as
larcenous under the criminal law.
(2) Any entrusting of possession of goods to a merchant who deals
in goods of that kind gives him power to transfer all rights of the
entruster to a buyer in ordinary course of business.
(3) "Entrusting" includes any delivery and any acquiescence in
retention of possession for the purpose of sale, obtaining offers to
purchase, locating a buyer, or the like; regardless of any condition
expressed between the parties to the delivery or acquiescence and
regardless of whether the procurement of the entrusting or the
possessor's disposition of the goods have been such as to be
larcenous under the criminal law.
(4) The rights of other purchasers of goods and of lien creditors
are governed by the divisions on secured transactions (Division 9)
and documents of title (Division 7).
SEC. 11. Division 6 (commencing with Section
6101) of the Commercial Code is repealed.
SEC. 12. Section 2953.1 of the Revenue and
Taxation Code is amended to read:
2953.1. Notwithstanding the provisions of Section 2953, any
property that is assessed on the unsecured roll and either is
advertised to be sold at public auction or has been seized for prior
year's delinquent taxes, may be seized by the tax collector prior to
delinquency without filing a declaration with the clerk of the board
of supervisors.
