BILL NUMBER: SB 933	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MAY 3, 2010
	AMENDED IN SENATE  MARCH 8, 2010

INTRODUCED BY   Senator Oropeza
    (   Coauthor:   Senator   Leno
  ) 

                        FEBRUARY 2, 2010

   An act to amend Section 1748.30 of, and to add Section 1748.33 to,
the Civil Code, relating to debit cards.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 933, as amended, Oropeza. Debit cards: service fees.
   Existing law prohibits a retailer from imposing a surcharge on a
credit cardholder who elects to use a credit card instead of paying
by cash, check or similar means, as provided. Existing law also
provides that any retailer who imposes a surcharge and who fails to
pay that amount to the cardholder within 30 days of written demand is
liable for 3 times the amount at which actual damages are assessed.
The cardholder is entitled to recover reasonable attorney's fees and
costs incurred in the action. Existing law exempts from these
provisions charges for payment made to an electrical, gas, or water
corporation. Existing law also regulates the use of debit cards, as
defined.
   This bill would make these provisions applicable to a retailer in
any sales, service, or lease transaction with a consumer who elects
to use a debit card instead of paying by cash, check, or similar
means. This bill would also include a prepaid card or other means of
access to prepaid funds, as provided, in the definition of debit
card.
   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.  Section 1748.30 of the Civil Code is amended to read:
   1748.30.  For purposes of this title, the following definitions
shall apply:
   (a) "Accepted debit card" means any debit card which the debit
cardholder has requested and received or has signed, or has used, or
has authorized another person to use, for the purpose of obtaining
money, property, labor, or services. Any debit card issued in renewal
of, or in substitution for, an accepted debit card becomes an
accepted debit card when received by the debit cardholder, whether
the debit card is issued by the same or by a successor card issuer.
   (b) "Account" means a demand deposit (checking), savings, or other
consumer asset account, other than an occasional or incidental
credit balance in a credit plan, established primarily for personal,
family, or household purposes.
   (c) "Adequate notice" has the same meaning as found in subdivision
(k) of Section 1747.02.
   (d) "Debit card" means an accepted debit card or other means of
access to a debit cardholder's account that may be used to initiate
electronic funds transfers and may be used without unique identifying
information such as a personal identification number to initiate
access to the debit cardholder's account. Debit card also includes a
prepaid card or other means of access to prepaid funds that may be
used to initiate electronic funds transfers and may be used without
identifying information such as a personal identification number to
initiate access to prepaid funds.
   (e) "Debit card issuer" means any person who issues a debit card
or the agent of that person for that purpose.
   (f) "Debit cardholder" means a natural person to whom a debit card
is issued.
   (g) "Unauthorized use" means the use of a debit card by a person,
other than the debit cardholder, to initiate an electronic fund
transfer from the debit cardholder's account without actual authority
to initiate the transfer and from which the debit cardholder
receives no benefit. The term does not include an electronic fund
transfer initiated in any of the following manners:
   (1) By a person who was furnished the debit card to the debit
cardholder's account by the debit cardholder, unless the debit
cardholder has notified the debit card issuer that transfers by that
person are no longer authorized.
   (2) With fraudulent intent by the debit cardholder or any person
acting in concert with the debit cardholder.
   (3) By the debit card issuer or its employee.
  SEC. 2.  Section 1748.33 is added to the Civil Code, to read:
   1748.33.  (a) No retailer in any sales, service, or lease
transaction with a consumer may impose a surcharge on a cardholder
who elects to use a debit card in lieu of payment by cash, check, or
similar means. A retailer may, however, offer discounts for the
purpose of inducing payment by cash, check, or other means not
involving the use of a debit card, provided that the discount is
offered to all prospective buyers.
   (b) Any retailer who willfully violates this section by imposing a
surcharge on a cardholder who elects to use a debit card and who
fails to pay that amount to the cardholder within 30 days of a
written demand by the cardholder to the retailer by certified mail,
shall be liable to the cardholder for three times the amount at which
actual damages are assessed. The cardholder shall also be entitled
to recover reasonable attorney's fees and costs incurred in the
action.
   (c) A consumer shall not be deemed to have elected to use a debit
card in lieu of another means of payment for purposes of this section
in a transaction with a retailer if only debit cards are accepted by
that retailer in payment for an order made by a consumer over a
telephone, and only cash is accepted at a public store or other
facility of the same retailer.
   (d) Charges for third-party debit card guarantee services, when
added to the price charged by the retailer if cash were to be paid,
shall be deemed surcharges for purposes of this section even if they
are payable directly to the third party or are charged separately.
   (e) It is the intent of the Legislature to promote the effective
operation of the free market and protect consumers from deceptive
price increases for goods and services by prohibiting debit card
surcharges and encouraging the availability of discounts by those
retailers who wish to offer a lower price for goods and services
purchased by some form of payment other than debit card.
   (f) This section does not apply to charges for payment by credit
card or debit card that are made by an electrical, gas, or water
corporation and approved by the Public Utilities Commission pursuant
to Section 755 of the Public Utilities Code.
   SEC. 3.    It is the intent of the Legislature in
enacting this act to not remove the ability of a cardholder to bring
an action in small claims court, or in any other appropriate court,
under the provisions of this act.