Untitled California Attorney General Opinion ( 1996 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 95-814
of :
: June 20, 1996
DANIEL E. LUNGREN :
Attorney General :
:
GREGORY L. GONOT :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE CATHIE WRIGHT, MEMBER OF THE CALIFORNIA STATE
ASSEMBLY, has requested an opinion on the following question:
Do baseball trading cards purchased by a card shop constitute tangible personal
property for purposes of regulation under the Secondhand Goods Law (Bus. & Prof. Code, ''
21500-21672)?
CONCLUSION
Baseball trading cards purchased by a card shop do not constitute tangible personal
property for purposes of regulation under the Secondhand Goods Law (Bus. & Prof. Code, ''
21500-21672).
ANALYSIS
The regulation of the sale or other disposition of secondhand goods is set forth in a
statutory scheme known as the Secondhand Goods Law (Bus. & Prof. Code, '' 21500-21672; "Act").1
Watches ('' 21500-21509), builders' tools ('' 21550-21556), junk ('' 21600-21609), and tangible
personal property ('' 21625-21647) are among the items that are specifically regulated. The question
1
All section references hereinafter are to the Business and Professions Code.
1. 95-814
presented for resolution is whether baseball trading cards purchased by a card shop 2 constitute
"tangible personal property" subject to the Act's provisions. We conclude that baseball trading cards
are not subject to the Act's requirements as tangible personal property when purchased by a card shop,
but they would be subject to the Act's requirements as "sports trading cards."
The Legislature has expressly declared the Act's purposes in regulating tangible
personal property. Section 21625 provides:
"It is the intent of the Legislature in enacting this article ['' 21625-21647] to
curtail the dissemination of stolen property and to facilitate the recovery of stolen
property by means of a uniform, statewide, state-administered program of regulation of
persons whose principal business is the buying, selling, trading, auctioning, or taking in
pawn of tangible personal property and to aid the State Board of Equalization to detect
possible sales tax evasion.
"Further, it is the intent of the Legislature in enacting this article to require the
uniform statewide reporting of tangible personal property acquired by persons whose
principal business is the buying, selling, trading, auctioning, or taking in pawn of
tangible personal property, unless the property or the transaction is specifically exempt
herein, for the purpose of correlating these reports with other reports of city, county,
and city and county law enforcement agencies and further utilizing the services of the
Department of Justice to aid in tracing and recovering stolen property.
"Further, it is the intent of the Legislature that this article shall not be
superseded or supplanted by the provisions of any ordinance or charter of any city,
county, or city and county."
Pursuant to section 21628, a secondhand goods dealer must report to a police chief or sheriff the
purchase of tangible personal property:
"Every secondhand dealer . . . shall report daily, or on the first working day
after receipt or purchase of such property, on forms either approved or provided at
actual cost by the Department of Justice, all tangible personal property which he or she
has purchased, taken in trade, taken in pawn, accepted for sale on consignment, or
accepted for auctioning, to the chief or police or to the sheriff . . . ."3
2
A "card shop" would be one that is in the business of buying, trading, and selling baseball trading cards.
3
A secondhand dealer is defined in section 21626 as follows:
"(a) A ``secondhand dealer,' as used in this article, means and includes any person,
copartnership, firm, or corporation whose business includes buying, selling, trading, taking in pawn,
accepting for sale on consignment, accepting for auctioning, or auctioning secondhand tangible personal
property. A ``secondhand dealer' does not include a ``coin dealer.'
"(b) As used in this section, a ``coin dealer' means any person, firm, partnership, or corporation
2. 95-814
No transactions that require reporting under section 21628 may be executed with a minor. (' 21643.)
"Tangible personal property," insofar as that term may be relevant to the question
presented, is defined in section 21627 as follows:
"(a) As used in this article, ``tangible personal property' includes, but is not
limited to, all secondhand tangible personal property which bears a serial number or
personalized initials or inscription or which, at the time it is acquired by the
secondhand dealer, bears evidence of having had a serial number or personalized
initials or inscription.
"(b) ``Tangible personal property' also includes, but is not limited to, the
following:
"(1) All tangible personal property, new or used, received in pledge as
security for a loan by a pawnbroker or a secondhand dealer acting as a pawnbroker.
"(2) All tangible personal property that bears a serial number or
personalized initials or inscription which is purchased by a secondhand dealer or a
pawnbroker or which, at the time of such purchase, bears evidence of having had a
serial number or personalized initials or inscription.
"(3) All personal property commonly sold by secondhand dealers which
statistically is found through crime reports to the Attorney General to constitute a
significant class of stolen goods. A list of such personal property shall be supplied by
the Attorney General to all local law enforcement agencies. Such list shall be
reviewed periodically by the Attorney General to insure that it addresses current
problems with stolen goods.
4
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."
Does the foregoing definition of "tangible personal property" include baseball trading cards purchased
by a card shop?5
whose principal business is the buying, selling, and trading of coins, monetized bullion, or commercial
grade ingots of gold, or silver, or other precious metals."
A secondhand dealer must be licensed pursuant to section 21641. Conditions imposed on the licensee are set forth in section
21642. (' 21643.)
4
Depending on the manner of acquisition, some items which would otherwise be considered tangible personal property
are exempt from the requirements of the Act under the terms of section 21629.
5
We are not concerned in this opinion with baseball trading cards that might be "received in pledge as security for a loan
. . . ." (' 21627, subd. (b)(1).)
3. 95-814
A baseball trading card is a collectible item which typically bears a picture of a baseball
player on one side of the card (usually about 2 1/2" by 3 1/2") and information about the player on the
reverse side. 6 The cards may range from having little or no monetary value to substantial value
depending on such factors as age, condition, the number produced, and the popularity or achievement
of the player depicted. In recent years, card shops have developed substantial businesses in
purchasing, exchanging, and selling the cards.
Baseball trading cards generally do not bear a serial number7 or the player's autograph.
Although a card signed by the player depicted may have some value, collectors normally regard an
autograph as an alteration of the card which would not enhance (and may reduce) the card's intrinsic
value. Any other extraneous markings on the card, whether initials, numbers, or an inscription, would
similarly cause the loss of the card's "mint-condition" value. Other categories of personal property, in
contrast, may be specially marked without a diminution in value in order to deter theft or assist in the
recovery of the property if stolen.
We believe that baseball trading cards purchased by a card shop do not constitute
tangible personal property for purposes of the Act, since they customarily do not bear "a serial number
or personalized initials or inscription." (' 21627, subd. (a).) This construction of the Act is consistent
with the longstanding administrative interpretation of the Department of Justice, the state agency
responsible for implementing sections 21625-21647, that baseball trading cards are not tangible
personal property under the terms of section 21627, subdivision (a). "Unless unreasonable or clearly
contrary to the statutory language or purpose, the consistent construction of a statute by an agency
charged with responsibility for its implementation is entitled to great deference." (Dix v. Superior
Court (1991) 53 Cal. 3d 442, 460.)
Moreover, as previously indicated, it was the Legislature's purpose in enacting sections
21625-21647 "to curtail the dissemination of stolen property and to facilitate the recovery of stolen
property . . . ." (' 21625.) "In construing the words of a statute, [we are] required to read the statute
in the light of the legislative objective sought to be achieved and the evil to be averted." (People v.
Fierro (1991) 1 Cal. 4th 173, 225.) In this regard, we note that baseball trading cards have not been
determined by the Department of Justice "to constitute a significant class of stolen goods." (' 21627,
subd. (b)(3).)8
6
Article 7 ('' 21670-21672) of the Act, which is concerned with the authenticity of sports trading cards and is discussed
below, defines "legitimate sports trading card" as "any card produced for use in commerce, that contains a company name or
team logo, or both, and an image, representation, or facsimile of one or more players or other team member or members in any
pose, and is produced pursuant to an appropriate licensing agreement." (' 21670, subd. (b).)
7
A particular card may sometimes contain a number indicating its production run but seldom, if ever, indicating the total
number of cards printed.
8
Currently only jewelry and silverware appear on the Attorney General's list.
4. 95-814
Although tangible personal property as defined in subdivision (a) of section 21627 "includes,
but is not limited to" the specifically enumerated items, we do not believe that any item which meets
the literal definition of tangible personal property is covered by the statute. While the quoted phrase is
one of "enlargement," it must be construed here to denote other kinds of tangible personal property
which lend themselves to identification of ownership consistent with section 21627's purposes. (See
Dyna-Med, Inc. v. Fair Employment and Housing Com. (1987) 43 Cal. 3d 1379, 1390-1391 [phrase,
"including, but not limited to," construed as permitting certain remedies, but not others].)
We note that if baseball trading cards were considered to be tangible personal property
for purposes of section 21627, subdivision (a), minors could not sell cards to, or trade cards with, card
shop owners without full parental involvement (including fingerprinting), since section 21643 provides
that no transactions requiring reporting under section 21628 may be executed with a minor.
However, we do not mean to suggest that baseball trading cards purchased by card
shops are not subject to any of the Act's requirements. Under article 7 ('' 21670-21672) of the Act,
the Legislature has addressed the dual problems of counterfeiting and fraudulent alteration of all types
of sports trading cards. The purposes of the legislation were explained by the Legislature at the time of
its enactment as follows:
"The Legislature hereby finds and declares all of the following:
"(a) A growing number of Californians are spending substantial amounts of
money on sports trading cards.
"(b) As with any commodity, there are persons in the sports trading card
market who take advantage of consumers by misrepresenting the authenticity of sports
trading cards.
"(c) The integrity of the sports trading card market must be protected by
requiring seller disclosure to buyers and traders of sports trading cards that have been
altered or refurbished and by prohibiting the making and trafficking of unlicensed and
fraudulent sports trading cards." (Stats, 1992, ch. 1120, ' 1.)
Section 21671 provides civil penalties with respect to the trading of altered cards:
"(a) Any sports trading card that is altered or refurbished shall be accompanied
by a certificate stating the exact work done to the sports trading card, the date the work
was performed, the cost of that work, and the name, phone number, and address of the
person who performed the work.
"(b) Any person or agent thereof, who knowingly sells or trades a sports card in
violation of subdivision (a), shall both:
5. 95-814
"(1) Refund to the buyer, the full amount paid for the altered or refurbished
sports trading card or the full retail value of any nonmonetary consideration received in
exchange for the altered or refurbished sports trading card, or both.
"(2) Be liable to the buyer for a civil penalty not to exceed five thousand dollars
($5,000) for each violation. Each card sold represents a separate and distinct
violation."
Section 21672 provides both civil and criminal penalties with respect to the distribution of counterfeit
cards:
"(a) Any person, or agent thereof, who knowingly manufactures, produces, or
distributes unlicensed or counterfeit sports trading cards with the intent to deceive,
injure, or defraud another, is guilty of a misdemeanor.
"Any person, or agent thereof, who violates this subdivision shall do both of the
following:
"(1) Refund to the buyer the full amount paid for the unlicensed or counterfeit
sports trading card or the full retail value of any nonmonetary consideration received in
exchange for the unlicensed or counterfeit sports trading card, or both.
"(2) Be liable to the buyer for a civil penalty not to exceed five thousand dollars
($5,000) for each violation. Each card sold represents a separate and distinct violation.
"(b) Any person who knowingly sells a cut, unlicensed sports trading card that
has been produced by cutting the card from a publication in which unlicensed sports
trading cards are bound, without disclosing the source and the means of producing the
card, with the intent to deceive, injure, or defraud another, is guilty of a misdemeanor.
"Any person who violates this subdivision shall do both of the following:
"(1) Refund to the buyer the full consideration paid or furnished for the cut,
unlicensed sports trading card.
"(2) Be liable to the buyer for a civil penalty not to exceed five thousand dollars
($5,000) for each violation. Each card sold represents a separate and distinct violation.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."
As baseball trading cards do not typically "bear a serial number or personalized initials or
inscription" (' 21627), do not readily lend themselves to the addition of ownership identification
without adversely affecting their value, and are covered in the Act as "sports trading cards" (''
21670-21672), we conclude that baseball trading cards purchased by a card shop do not constitute
tangible personal property for purposes of regulation under the Act.
6. 95-814
* * * * *
7. 95-814