Bill Text: CA AB704 | 2011-2012 | Regular Session | Amended


Bill Title: Secondhand goods.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2012-02-01 - Died pursuant to Art. IV, Sec. 10(c) of the Constitution. From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB704 Detail]

Download: California-2011-AB704-Amended.html
BILL NUMBER: AB 704	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  JANUARY 4, 2012
	AMENDED IN ASSEMBLY  MARCH 31, 2011

INTRODUCED BY   Assembly Member Ma

                        FEBRUARY 17, 2011

   An act to  amend Section 21646 of, and to  add Section
21645.1 to  ,  the Business and Professions Code, relating
to secondhand goods.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 704, as amended, Ma. Secondhand goods.
   Existing law provides for the regulation of secondhand dealers, as
defined, and makes it unlawful for a person to engage in the
business of a secondhand dealer without a license issued by the chief
of police, the sheriff, or, where appropriate, the police
commission. Existing law makes it a crime, punishable by specified
fines or imprisonment, or both, if a person knowingly violates the
provisions regulating secondhand dealers. Existing law authorizes the
district attorney or the Attorney General to bring an action to
enjoin a violation or threatened violation of the provisions
regulating secondhand dealers. 
   This bill would require a person conducting business as a
secondhand dealer to provide a valid secondhand dealer's license to
any peace officer upon demand.  
   This bill would require a person conducting business as a
secondhand dealer to provide a valid secondhand dealer's license to
any peace officer upon demand and would authorize a peace officer to
impound all tangible personal property found in the possession or
control of the person if a secondhand dealer's license is not
provided to the peace officer and the peace officer has probable
cause to believe the property was acquired while the person was
operating as a secondhand dealer without being licensed, except as
specified. The bill would authorize the imposition of storage charges
for personal property impounded pursuant to these provisions, would
authorize the property to be stored up to 90 days, and would set
forth requirements for the redemption, or the forfeiture and sale, of
the impounded property. The bill would require an impounding agency
to satisfy specified requirements regarding impounded property that
has not been redeemed and would require the district attorney or city
attorney to follow specified procedures relative to forfeiture and
claims to the property. The bill would establish a $100 fee for
asserting a claim to impounded property that is subject to
forfeiture, would require the fee to be reimbursed to a prevailing
claimant, and would, if a claimant does not prevail, require the fee
to be distributed equally between the district attorney or city
attorney and the Trial Court Trust Fund.  
   The bill would also authorize a nonprofit association composed of
50 or more licensed secondhand dealers to bring an action to enjoin a
person from conducting business as a secondhand dealer without being
licensed and would authorize an association that prevails in such an
action to be awarded reasonable attorneys' fees and costs of suit,
as specified. 
   Because a knowing violation of the bill's provisions by a person
engaging in the business of a secondhand dealer would be a crime, the
bill would impose a state-mandated local program.
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.
   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.    Section 21645.1 is added to the
Business and Professions Code, to read:
   21645.1.  A person conducting business as a secondhand dealer, as
defined in Section 21626, shall provide a valid license issued under
this article to any peace officer upon demand.
   SECTION 1.    Section 21645.1 is added to the 
 Business and Professions Code   , to read:  
   21645.1.  (a) The Legislature hereby finds and declares that an
effective means of punishing and deterring the unlicensed practice of
dealing in secondhand tangible personal property, and to further
effectuate the legislative intent of Section 21625, is through the
forfeiture of property acquired and accumulated by a person who is
required to be licensed pursuant to this article but is found to be
in violation of Section 21640. The provisions of this section are
intended to be in addition to the penalty provisions of Section
21645.
   (b) A person conducting business as a secondhand dealer, as
defined in Section 21626, shall provide a valid license issued under
this article to any peace officer upon demand.
   (c) (1) If a person conducting business as a secondhand dealer is
unable to provide a valid secondhand dealer's license issued under
this article on the demand of a peace officer as required by
subdivision (b), the peace officer may impound all tangible personal
property, as defined in Section 21627, found in the possession or
under the control of the person if, upon examination, the peace
officer has probable cause to believe the property was acquired while
the person was operating as a secondhand dealer without being
licensed, unless the peace officer is reasonably able, by other
means, to verify that the person was properly licensed at the time
the person acquired the property.
   (2) A peace officer shall not impound tangible personal property
pursuant to this subdivision if the person conducting business as a
secondhand dealer provides documentation indicating that he or she
held a valid secondhand dealers's license for that location at any
time within the preceding 90 days, unless the license was terminated
by the issuing agency and the person was provided notice thereof.
   (3) A peace officer may exercise discretion with respect to
impoundment under this subdivision if the person can establish that
he or she is an employee of a person required to be licensed under
this article, the employer is not present, and the person conducting
business as a secondhand dealer does not have management or control
of, or a financial interest in, the business for which a secondhand
dealer license is required under this article.
   (4) A peace officer shall serve the person from whom tangible
personal property is taken pursuant to this subdivision with a notice
specifying the requirements set forth in subdivision (d), the right
of the impounding agency to sell the tangible personal property if
the requirements of subdivision (d) are not met within the statutory
time, and the right of the person from whom the tangible personal
property is taken to challenge any sale following service of the
notice of forfeiture required under subdivision (g). Within five days
after the impoundment, the peace officer shall also serve on the
person from whom the tangible personal property is taken, and any
secured creditor, a notice advising those parties that they are
entitled to a postimpoundment hearing before the impounding agency
within 30 days after the service of the postimpoundment hearing
notice. A person from whom tangible personal property is taken may
challenge the results of the postimpoundment hearing in the
appropriate court.
   (d) Tangible personal property impounded pursuant to subdivision
(c) shall be stored for a period not exceeding 90 days by the
impounding officer, and shall be available to be redeemed when both
of the following conditions have been satisfied:
   (1) The person from whom the property was taken has obtained or
otherwise produced a valid secondhand dealer license as required
under this article.
   (2) The reports of acquisition of tangible personal property as
required by Section 21628 have been completed for all of the property
that was impounded.
   (e) Storage charges shall be imposed for the tangible personal
property impounded under this section in accordance with the
provisions of Section 21200.6 of the Financial Code.
   (f) If after 60 days from the date of the impoundment the person
from whom the tangible personal property was taken has failed to
satisfy the requirements of subdivision (d), the impounding agency
shall do all of the following:
   (1) Prepare the report of acquisition of tangible personal
property for all impounded property as required by Section 21628 or
verify that the report was duly transmitted to the Department of
Justice.
   (2) Notify the district attorney or city attorney of the
impoundment and request a notice of forfeiture.
   (g) The district attorney or city attorney shall serve on the
person from whom the tangible personal property was taken and on any
secured creditor a notice of forfeiture for all or part of the
tangible personal property. The notice shall be issued by registered
mail on or after the 65th day following the impoundment. The notice
shall state that the person served with the notice of forfeiture has
15 calendar days from the date of the mailing of the notice to file a
claim. A secured creditor located outside the State of California
shall be allowed an additional five days to file a claim. The notice
shall identify the name and address of the district attorney or city
attorney who is authorized to prosecute the forfeiture action and to
receive objections. If no claim has been received after service of
the notice of forfeiture, the impounding agency may sell the tangible
personal property to the highest bidder at a noticed, public sale.
   (h) If the district attorney or city attorney issuing the notice
of forfeiture does not receive a claim within the time provided in
subdivision (g), the district attorney or city attorney shall sign
and record with the county recorder a notice of forfeiture. A written
declaration of forfeiture by the district attorney or city attorney
shall be deemed to provide good and sufficient title to the forfeited
property. Any property impounded but not forfeited shall be returned
to the person from whom it was taken within 90 days of the
impoundment.
   (i) (1) If the district attorney or city attorney receives a
timely claim, the district attorney or city attorney shall file a
petition for forfeiture within 10 days of receiving the claim with
the appropriate court hearing any criminal action brought under
Section 21640 or 21645. The district attorney or city attorney shall
establish an expedited hearing date in accordance with instructions
from the court and the court shall hear the matter without delay. A
fee of one hundred dollars ($100) shall be paid by any claimant but
shall be reimbursed by the impounding agency if the claimant
prevails. To the extent practicable, the civil and criminal cases, if
a criminal complaint is filed against the person who is accused of
operating as an unlicensed secondhand dealer, shall be heard at the
same time in an expedited, consolidated proceeding. A proceeding in
the civil case is a limited civil case.
   (2) The fee shall be distributed equally between the district
attorney or city attorney filing the action and the Trial Court Trust
Fund.
   (3) The burden of proof in the civil case shall be on the person
from whom the tangible personal property was taken to prove by a
preponderance of the evidence that the tangible personal property is
not stolen property acquired as a result of the operation of a
secondhand business that was required to be licensed pursuant to this
article. All questions that may arise shall be decided and all other
proceedings shall be conducted as in an ordinary civil action.
   (4) A judgment of forfeiture does not require as a condition
precedent the conviction of a defendant of an offense under this
article.
   (5) The filing of a claim within the time limit specified in
subdivision (g) is a jurisdictional prerequisite for the availing of
the action authorized by that subdivision.
   (j) All right, title, and interest in the tangible personal
property shall vest in the impounding agency upon commission of the
act giving rise to the forfeiture. However, the tangible personal
property shall not be subject to forfeiture and sale until all court
challenges are resolved.
   (k) Any tangible personal property that is not redeemed pursuant
to subdivision (d) and is subsequently forfeited pursuant to a notice
of forfeiture or a judgment of forfeiture shall be sold to the
highest bidder at a noticed, public sale. The notice shall be
published in a local paper of general jurisdiction nearest the
impounding agency within 10 days after that agency receives the
notice or judgment of forfeiture.
   (l) The proceeds of any sale provided for pursuant to subdivision
(k) shall be distributed in the following order:
   (1) First to the impounding agency to satisfy the storage charge
provided in subdivision (e).
   (2) Second, to any secured creditor to satisfy the indebtedness of
the person from whom the tangible personal property was taken.
   (3) Of the remaining proceeds, funds shall be made available to
pay any local agency and court costs that are reasonably related to
the implementation of this section and that remain unsatisfied.
   (4) Of the remaining proceeds, half shall be delivered to the
impounding agency, one-quarter to the district attorney or city
attorney prosecuting the forfeiture action, and one-quarter to the
Department of Justice and reserved for the costs incurred in
electronically reporting the acquisition of tangible personal
property as set forth in Section 21628. 
   SEC. 2.    Section 21646 of the   Business
and Professions Code   is amended to read: 
   21646.  The district attorney or the Attorney General, in the name
of the people of the State of California, may bring an action to
enjoin the violation or the threatened violation of any provision of
this article or of any regulation made pertaining to the provisions
of this article.  A nonprofit association composed of 50 or more
licensed secondhand dealers may bring an action to enjoin a person
from   conducting business as a secondhand dealer without
being licensed as provided in this article.  Any proceeding
brought hereunder shall be governed in all respects by the provisions
of Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of
the Code of Civil Procedure.  In the case of a nonprofit
association bringing an action to enjoin a person from conducting
business as a secondhand dealer without being licensed, if the
association prevails and confers a public benefit by receiving an
injunction, it shall be awarded its reasonable attorneys' fees and
costs of suit. 
   SEC. 2.   SEC. 3.   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.
   
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