Bill Text: CA SB1387 | 2011-2012 | Regular Session | Amended

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

---

Bill Title: Metal theft.

Spectrum: Slight Partisan Bill (Republican 2-1)

Status: (Passed) 2012-09-27 - Chaptered by Secretary of State. Chapter 656, Statutes of 2012. [SB1387 Detail]

Download: California-2011-SB1387-Amended.html

---

BILL NUMBER: SB 1387	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MARCH 27, 2012

INTRODUCED BY   Senator Emmerson

                        FEBRUARY 24, 2012

   An act to amend Sections 21604 and 21608.5 of, and to add Section
21609.1 to, the Business and Professions Code  , to add
Section 3336.1 to the Civil Code  , and to amend Sections
496a and 496e of the Penal Code, relating to metal theft.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1387, as amended, Emmerson. Metal theft.
   (1) Existing law governs the business of buying, selling, and
dealing in secondhand and used machinery and all ferrous and
nonferrous scrap metals and alloys, also known as "junk." Existing
law requires junk dealers and recyclers to keep a written record of
all sales and purchases made in the course of their business,
including the name and address of each person to whom junk is sold or
disposed of, and to preserve the written record for at least 2 years
after making the final entry of any purchase or sale of junk.
Existing law provides that the failure to keep a written record as
required is punishable as a misdemeanor.
   Existing law prohibits a junk dealer or recycler in this state
from providing payment for nonferrous metals unless, in addition to
the requirement to create and maintain a written record, specified
requirements are met, including that the payment for the material be
made by cash or check and that, at the time of sale, the junk dealer
or recycler obtains a clear photograph or video of the seller.
Existing law requires the junk dealer or recycler to preserve this
information for 2 years after the date of sale.
   This bill would prohibit any junk dealer or recycler from
possessing a  public  fire hydrant, fire department
connection, including, but not limited to, bronze or brass fittings
or parts, a  public  manhole cover or lid, or any
part of that cover or lid, or a  public  backflow
device and connections to that device without a written certification
on the letterhead of the  public  agency or utility
that owns or previously owned the material and that the entity has
sold or is offering the material for sale, and that the person
possessing the certificate and identified in the certificate is
authorized to negotiate the sale of the material. The bill would make
junk dealers and recyclers civilly liable and would also provide
that if a junk dealer or recycler lacks the certification described
above, the lack of that certification would give rise to the
presumption that the property was stolen for purposes of the
provisions proscribing receiving stolen property.
   (2) Existing law makes it a crime to receive stolen property.
Existing law specifically provides that a person who is a dealer in
or collector of junk, metals  ,  or secondhand materials, or
the agent, employee, or representative of the dealer or collector,
and who buys or receives any wire, cable, copper, lead, solder,
mercury, iron  ,  or brass that he or she knows or
reasonably should know is ordinarily used by or ordinarily belongs to
a railroad or other transportation, telephone, telegraph, gas,
water, or electric light company, or county, city, city and county,
or other political subdivision of the state engaged in furnishing
public utility service, without using due diligence to ascertain that
the person selling or delivering the  items  
property  has the legal right to do so, is guilty of criminally
receiving that property. Existing law provides that this crime is a
misdemeanor. Existing law also provides that any person who buys or
receives, for purposes of salvage, any part of a fire hydrant or fire
department connection, as specified, is subject to a criminal fine
of not more than $3,000.
    This bill would also prohibit any person, including a junk dealer
or recycler, engaged in the salvage, recycling, or purchase or sale
of scrap metal from possessing those items. The bill would expand the
prohibition described above proscribing the purchase or receipt of
items that a dealer or collector knows or reasonably should know is
ordinarily used by or ordinarily belongs to a transportation or
utility company, or a political subdivision of the state engaged in
furnishing public utility service, to also apply to recyclers, and to
apply to the fire hydrants and other items described above. The bill
would also expand the provision providing that any person who buys
or receives, for purposes of salvage, any part of a fire hydrant or
fire department connection is subject to a criminal fine of not more
than $3,000 by making that fine applicable to any person who is
engaged in the salvage, recycling, purchase, or sale of scrap metal
and who, knowing that the item has been stolen or obtained in any
manner constituting theft or extortion, possesses a fire hydrant, or
any part thereof, a fire department connection, including brass
fittings and parts, a manhole cover or lid, or any part of that cover
or lid, or a backflow device and connections to that device, or any
part of that device.
   By creating new crimes, the bill would impose a state-mandated
local program.
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


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

  SECTION 1.  The Legislature hereby finds and declares all of the
following:
   (a) Theft of fire hydrants, manhole covers, and backflow devices
has significantly increased in recent years and represents a
significant health and safety issue.
   (b) Local jurisdictions and public agencies have gone to great
lengths to preserve and protect residents and their property from the
damages that can result from such theft.
   (c) Additional laws and regulations need to be enacted that would
provide local governments with the tools to further protect both
local government property and the health and safety of the residents
they serve.
   (d) Therefore, it is the intent of the Legislature to strictly
prohibit fire hydrants, manhole covers, and backflow devices from
being accepted, in whole or in part, by a recycler or junk dealer for
the purpose of salvage, unless presented with written certification
by a representative of  a public   the 
agency  or utility owning or previously owning the material 
.
   (e) By strictly prohibiting these items from being recycled, the
burden is taken off of the recyclers as they will no longer be
saddled with the responsibility of having to decipher  if
  whether  the items were stolen or obtained
illegally.
   (f) Furthermore, the Legislature thinks it is important to enable
 a public   an  agency to recoup, repair,
and replace costs, attorney's fees, and lawsuit costs and will
establish penalties for theft of such items.
  SEC. 2.  Section 21604 of the Business and Professions Code is
amended to read:
   21604.  Except as otherwise provided in this article, this article
does not apply to:
   (a) Any person who buys or sells junk acquired in the conduct of
any business other than that of a junk dealer or recycler.
   (b) Except as provided in Section 21609.1, those purchases of
scrap metal by a junk dealer or recycler when the payment for the
scrap metal is by check issued to the company represented as being
the owner of the scrap.
   (c) Scrap metal purchased or received from another junk dealer or
recycler who has recorded, reported, and held the material as
required. The purchase or receipt shall also be exempt from further
holding or reporting provided that the selling party gives the buyer
written assurance of this fact. The seller shall be held responsible
for any failure to report or hold.
  SEC. 3.  Section 21608.5 of the Business and Professions Code is
amended to read:
   21608.5.  (a) A junk dealer or recycler in this state shall not
provide payment for nonferrous material unless, in addition to
meeting the written record requirements of Sections 21605 and 21606,
all of the following requirements are met:
   (1) The payment for the material is made by cash or check. The
check may be mailed to the seller at the address provided pursuant to
paragraph (3) or the cash or check may be collected by the seller
from the junk dealer or recycler on or after the third business day
after the date of sale.
   (2) At the time of sale, the junk dealer or recycler obtains a
clear photograph or video of the seller.
   (3) (A) Except as provided in subparagraph (B), the junk dealer or
recycler obtains a copy of the valid driver's license of the seller
containing a photograph and an address of the seller or a copy of a
state or federal government-issued identification card containing a
photograph and an address of the seller.
   (B) If the seller prefers to have the check for the material
mailed to an alternative address, other than a post office box, the
junk dealer or recycler shall obtain a copy of a driver's license or
identification card described in subparagraph (A), and a gas or
electric utility bill addressed to the seller at that alternative
address with a payment due date no more than two months prior to the
date of sale. For purposes of this paragraph, "alternative address"
means an address that is different from the address appearing on the
seller's driver's license or identification card.
   (4) The junk dealer or recycler obtains a clear photograph or
video of the nonferrous material being purchased.
   (5) The junk dealer or recycler shall preserve the information
obtained pursuant to this subdivision for a period of two years after
the date of sale.
   (6) (A) The junk dealer or recycler obtains a thumbprint of the
seller, as prescribed by the Department of Justice. The junk dealer
or recycler shall keep this thumbprint with the information obtained
under this subdivision and shall preserve the thumbprint in either
hardcopy or electronic format for a period of two years after the
date of sale.
   (B) Inspection or seizure of the thumbprint shall only be
performed by a peace officer acting within the scope of his or her
authority in response to a criminal search warrant signed by a
magistrate and served on the junk dealer or recycler by the peace
officer. Probable cause for the issuance of that warrant must be
based upon a theft specifically involving the transaction for which
the thumbprint was given.
   (b) Paragraph (1) of subdivision (a) shall not apply if, during
any three-month period commencing on or after the effective date of
this section, the junk dealer or recycler completes five or more
separate transactions per month, on five or more separate days per
month, with the seller and, in order for paragraph (1) of subdivision
(a) to continue to be inapplicable, the seller must continue to
complete five or more separate transactions per month with the junk
dealer or recycler.
   (c) This section shall not apply if, on the date of sale, the junk
dealer or recycler has on file or receives all of the following
information:
   (1) The name, physical business address, and business telephone
number of the seller's business.
   (2) The business license number or tax identification number of
the seller's business.
   (3) A copy of the valid driver's license of the person delivering
the nonferrous material on behalf of the seller to the junk dealer or
the recycler.
   (d) This section shall not apply to the redemption of nonferrous
material having a value of not more than twenty dollars ($20) in a
single transaction, when the primary purpose of the transaction is
the redemption of beverage containers under the California Beverage
Container Recycling and Litter Reduction Act, as set forth in
Division 12.1 (commencing with Section 14500) of the Public Resources
Code.
   (e) This section shall not apply to coin dealers or to automobile
dismantlers, as defined in Section 220 of the Vehicle Code.
   (f) For the purposes of this section, "nonferrous material" means
copper, copper alloys, stainless steel, or aluminum, but does not
include beverage containers, as defined in Section 14505 of the
Public Resources Code, that are subject to a redemption payment
pursuant to Section 14560 of the Public Resources Code.
   (g) This section is intended to occupy the entire field of law
related to seller identity and reporting requirements in connection
with junk dealer or recycler transactions involving nonferrous
material. However, a city or county ordinance, or a city and county
ordinance, relating to the subject matter of this section is not in
conflict with this section if the ordinance is passed by a two-thirds
vote and it can be demonstrated by clear and convincing evidence
that the ordinance is both necessary and addresses a unique problem
within and specific to the jurisdiction of the ordinance that cannot
effectively be addressed under this section.
   (h) This section shall become operative on December 1, 2008.
  SEC. 4.  Section 21609.1 is added to the Business and Professions
Code, to read:
   21609.1.  No junk dealer or recycler shall possess any 
public  fire hydrant, or fire department connection,
including, but not limited to, brass fittings and parts, or 
public  manhole cover or lid or part of that cover or lid,
or  public  backflow device or connection to that
device or part of that device in the absence of a written
certification on the letterhead of the  public 
agency or utility owning or previously owning the material described
in the certification that the agency has either sold the material
described or is offering the material for sale, salvage  , 
or recycling, and that the person possessing the certification and
identified in the certification is authorized to negotiate the sale
of that material. The lack of a certification shall give rise to a
presumption, in the case of property that was stolen, that the junk
dealer or recycler knew or should have known that the property was
stolen for purposes of prosecution pursuant to Sections 496, 496a,
and 496e of the Penal Code. A junk dealer or recycler violating this
section shall also be liable to the owner of the prohibited material
for the value of the material and for damages  pursuant to
Section 3336.1 of the Civil Code  , including the cost of
replacement and repair of damage incurred by the  public
 agency when the materials were removed, court costs, and
reasonable attorney's fees in a civil suit by the owner. 
  SEC. 5.    Section 3336.1 is added to the Civil
Code, to read:
   3336.1.  For wrongful possession of a public fire hydrant or fire
department connection, including, but not limited to, bronze or brass
fittings and parts, a public manhole cover or lid, or any part of
that cover or lid, or a public backflow device and any connection to
that device, or any part of that device, the measure of damages is
three times the amount that would compensate the owner for the owner'
s actual damages, including the value of the material wrongfully
possessed, the cost of replacing the material, the cost of repairs of
damage incurred by the public agency when the materials were
removed, court costs, and reasonable attorney's fees. 
   SEC. 6.   SEC. 5.   Section 496a of the
Penal Code is amended to read:
   496a.  (a) Every person who, being a dealer in or collector or
recycler of junk, metals  ,  or secondhand materials, or the
agent, employee, or representative of that dealer or collector or
recycler, buys or receives any wire, cable, copper, lead, solder,
mercury, iron or brass, fire hydrants and connections to those
hydrants, including, but not limited to, bronze or brass fittings and
parts, or manhole covers or lids, or backflow devices and
connections to that device, which he or she knows or reasonably
should know is ordinarily used by or ordinarily belongs to a railroad
or other transportation, telephone, telegraph, gas, water, or
electric light company or fire department, or county, city, city and
county, or other political subdivision of this state engaged in
furnishing public utility service, including water and sanitation
services, or fire protection without using due diligence to ascertain
that the person selling or delivering the same has a legal right to
do so, is guilty of criminally receiving that property, and is
punishable, by imprisonment in a county jail for not more than one
year, or by imprisonment pursuant to subdivision (h) of Section 1170,
or by a fine of not more than two hundred fifty dollars ($250), or
by both that fine and imprisonment.
   (b) (1) Any person buying or receiving material pursuant to
subdivision (a) shall, in addition to complying with the requirements
of Sections 21607 and 21608.5 of the Business and Professions Code,
obtain evidence of the seller's identity, including, but not limited
to, that  person's   seller's  full name,
signature, address, driver's license number, vehicle license number,
and the license number of the vehicle delivering the material.
   (2) The record of the transaction shall include an appropriate
description of the material purchased and such record shall be
maintained pursuant to Section 21607 of the Business and Professions
Code.
   SEC. 7.   SEC. 6.   Section 496e of the
Penal Code is amended to read:
   496e.  (a) Any person who is engaged in the salvage, recycling,
purchase, or sale of scrap metal and who possesses any of the
following items that have been stolen or obtained in any manner
constituting theft or extortion, knowing the property to be so stolen
or obtained  ,  is guilty of a crime:
    (1) A fire hydrant or any part of that hydrant.
   (2) Any fire department connection, including, but not limited to,
bronze or brass fittings and  parts.   parts.

   (3) Manhole covers or lids, or any part of those covers and lids.
   (4) Backflow devices and connections  of   to
 that device, or any part of that device.
   (b) A person who violates subdivision (a) shall, in addition to
any other penalty provided by law, be subject to a criminal fine of
not more than three thousand dollars ($3,000).
   SEC. 8.   SEC. 7.   No reimbursement is
required by this act pursuant to Section 6 of Article XIII B of the
California Constitution because the only costs that may be incurred
by a local agency or school district will be incurred because this
act creates a new crime or infraction, eliminates a crime or
infraction, or changes the penalty for a crime or infraction, within
the meaning of Section 17556 of the Government Code, or changes the
definition of a crime within the meaning of Section 6 of Article XIII
B of the California Constitution.