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November 07, 2008
New Laws Governing Sale Of Nonferrous Metal

NEW LAWS GOVERNING SALE OF NONFERROUS METAL
November 7, 2008

As the price for certain metals has risen to all-time highs, California cities and counties have been plagued with the theft of nonferrous metals such as copper and aluminum, which is then sold for substantial sums on the junk and recycling market.  Buildings under construction have been stripped of copper plumbing, and one city even reported that underground wiring for pathways in a city park was stolen before installation could be completed.

On September 30, 2008, the Governor signed into law A.B. 844 (Berryhill) and S.B. 447 (Maldonado) amending and adding to the Business & Professions Code (“B&P”) to further regulate the sale and purchase of, principally, nonferrous metals.  The provisions of A.B. 844 are, as urgency legislation, effective December 1, 2008, while the record keeping and reporting requirements of S.B. 447 will become effective the first of the New Year.

Under A.B. 844, B&P §21606, which regulates “junk” sales, is amended to require that junk dealers maintain records of:

  1. The place and date of each sale or purchase of junk made in the conduct of his or her business as a junk dealer or recycler.
  2. The name, valid driver's license number and state of issue or California-issued identification card number, and vehicle license number including the state of issue of any motor vehicle used in transporting the junk to the junk dealer's or recycler's place of business.
  3. The name and address of each person to whom junk is sold or disposed of, and the license number of any motor vehicle used in transporting the junk from the junk dealer's or recycler's place of business.
  4. A description of the item or items of junk purchased or sold, including the item type and quantity, and identification number, if visible.
  5. A statement indicating either that the seller of the junk is the owner of it, or the name of the person he or she obtained it from, as shown on a signed transfer document.

This statute also now requires the reporting of this sales information to the local sheriff or chief of police.  In addition, B & P §21606.5 is amended to allow periodic inspections of dealer premises by an officer holding a warrant authorizing him or her to search for personal property; a person appointed by the sheriff of a county or appointed by the head of the police department of a city; or an officer holding a court order directing him or her to examine the records or property.
B&P § 21608.5 is added, and provides that a junk dealer or recycler in this state shall not provide payment for nonferrous material unless 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 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.
  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 paragraph 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.

There are exceptions to these record keeping requirements for repeated sales at specified intervals so long as verifiable records are maintained for the seller’s legitimacy and business location.
B&P § 21609 is amended to provide for the placement by the police of a hold on property in the possession of a dealer when there is probable cause to believe the property may be stolen.

The legislation specifies that, while  the state intends to occupy this field of regulation, a city or county may pass an ordinance relating to regulation of junk and metal sales provided that 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 [the state statute].  §21608.5(g).

 

HOW THIS AFFECTS YOUR AGENCY

These amendments and additions to the Business & Professions Code should provide effective new tools to aid local agencies in the identification and recovery of stolen metals, as well as the arrest and prosecution of offenders.

As these Acts become effective, agencies are encouraged to expedite in-house training of officers in the use of these new tools in their investigations and arrests.  It is further recommended that outreach be made to junk and metal dealers in your jurisdiction to make certain that these businesses are aware of their responsibilities under these laws, and are prepared to do their part in combating thefts of nonferrous metals. 

If you believe that your jurisdiction has special needs that warrants enactment of a local ordinance, you should begin to gather and analyze data in support of such an ordinance as addressed in B&P §21608.5(g).

As always, we urge that you confer with your agency’s attorney for legal advice and guidance on this matter.  Should you wish to discuss it in greater detail, please feel free to contact me at (714) 446-1400 or via e-mail at prc@jones-mayer.com.

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