BILL ANALYSIS                                                                                                                                                                                                    Ķ



                                                                  AB 964
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          Date of Hearing:   April 30, 2013

              ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER  
                                     PROTECTION
                              Richard S. Gordon, Chair
                     AB 964 (Bonta) - As Amended:  April 25, 2013
           
          SUBJECT  :   Vehicle dealers.

           SUMMARY  :   Prohibits a licensed car dealer from selling or  
          advertising for sale as "certified" a used vehicle if the dealer  
          knows or should have known that the vehicle is subject to a  
          safety recall, and prohibits a dealer from selling a used car  
          without providing a completed inspection report and certain  
          written disclosures in specified languages.  Specifically,  this  
          bill  :  

          1)Prohibits a vehicle from being advertised or sold as certified  
            if the dealer knows or should have known that the vehicle is  
            subject to a manufacturer's safety recall.

          2)Prohibits a car dealer from selling a used car without  
            providing the buyer a written disclosure in Spanish, Chinese,  
            Tagalog, Vietnamese, or Korean if that sale is conducted  
            primarily in that language, of the present car conditions the  
            dealer knows or should know of, including: 
           
             a)   The odometer has been rolled back or altered to show  
               fewer miles than actually driven; 

             b)   The vehicle was reacquired by the vehicle's manufacturer  
               or a dealer pursuant to state or federal warranty laws; 

             c)   The title to the vehicle has been inscribed with the  
               notation "Lemon Law Buyback," "manufacturer repurchase,"  
               "salvage," "junk," "nonrepairable," "flood," or similar  
               title designation required by this state or another state; 

             d)   The vehicle was damaged in an impact, fire, or flood,  
               that after repair and prior to sale, substantially impairs  
               the use or safety of the vehicle; 

             e)   The vehicle has sustained frame damage; 

             f)   The dealer disclaims any warranties of merchantability  








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               on the vehicle; 

             g)   The vehicle is sold "AS IS"; or, 

             h)   The vehicle is subject to a manufacturer's safety  
               recall.

          3)Prohibits the sale of a used vehicle without providing the  
            buyer with a completed inspection report indicating all the  
            components inspected prior to sale. 

          4)Provides that the rights, remedies, and procedures provided  
            for in this bill and the provisions of law relating to the  
            sale of certified and non-certified vehicles by car dealers,  
            are in addition to, and independent of, any other rights,  
            remedies, or procedures available under any other law. 

          5)Provides that nothing in this bill shall be construed to  
            alter, limit, or negate any other rights, remedies, or  
            procedures provided for by law. 

          6)Makes technical and clarifying changes. 

          7)States that no reimbursement is required by this bill pursuant  
            to Section 6 of Article XIIIB of the California Constitution  
            because the only costs that may be incurred by a local agency  
            or a school district will be incurred because this bill  
            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 XIIIB of the California Constitution.

           EXISTING LAW  :  

          1)Establishes the Car Buyer's Bill of Rights and prohibits a car  
            dealer from selling or advertising for sale a used car as  
            "certified" if the following applies: 

             a)   The dealer knows or should have known that the odometer  
               has been rolled back or altered to show fewer miles than  
               actually driven; 

             b)   The dealer knows or should have known that the vehicle  
               was reacquired by the vehicle's manufacturer or a dealer  








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               pursuant to state or federal warranty laws; 

             c)   The title to the vehicle has been inscribed with the  
               notation "Lemon Law Buyback," "manufacturer repurchase,"  
               "salvage," "junk," "nonrepairable," "flood," or similar  
               title designation required by this state or another state; 

             d)   The vehicle has sustained damage in an impact, fire, or  
               flood, that after repair and prior to sale substantially  
               impairs the use or safety of the vehicle; 

             e)   The dealer knows or should have known that the vehicle  
               has sustained frame damage; 

             f)   The dealer disclaims any warranties of merchantability  
               on the vehicle; 

             g)   The vehicle is sold "AS IS"; or, 

             h)   The term "certified" or any similar descriptive term is  
               used in any manner that is untrue or misleading or that  
               would cause any advertisement to be in violation of the  
               provisions prohibiting a car dealer from scheming not sell  
               a vehicle or service at a price other than advertised in  
               accordance with the Vehicle Code, or the unfair competition  
               laws contained in the Business and Professions Code.   
               (Civil Code Section 11713.18.)

          2)Establishes the federal Moving Ahead for Progress in the 21st  
            Century Act (MAP-21) and requires the Secretary of the United  
            States Department of Transportation (U.S. DOT)  to promulgate  
            regulations by July 6, 2013, requiring motor vehicle safety  
            recall information to be publicly available online and  
            searchable by vehicle make, model, and vehicle identification  
            number (VIN).  (Public Law 112-141, 112th Cong., Section  
            31301) 

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   
           
          1)Purpose of this bill  .  This bill would prohibit a licensed car  
            dealer from selling a used vehicle as "certified" if it is  
            subject to a manufacturer's safety recall and unresolved  
            safety issues.  This bill also requires dealers to disclose to  








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            consumers prior to sale certain facts about non-certified used  
            cars in Spanish, Chinese, Tagalog, Vietnamese, or Korean, if  
            the transaction was performed primarily in that language.   
            This bill applies to both voluntary and mandatory recalls, but  
            does not apply to used vehicles privately sold by an owner.   
            This bill is sponsored by the Latin Business Association  
            (LBA). 

           2)Author's statement  .  According to the author, "Current law  
            does not require car dealers to disclose or fix an open recall  
            on a vehicle before selling it.  In 2011, nearly 100,000 used  
            cars with open recalls were for sale online in California.   
            Open recalls can be a serious safety issue and should be fixed  
            by the manufacturer before a dealer sells it to California  
            consumers.  Car dealers do not incur the cost of having an  
            open recall fixed as it is currently the responsibility of the  
            manufacturer. 

            "Current law also provides that a car dealer cannot sell a  
            used car as 'certified' if [any of] a list of conditions,  
            including flood or fire damage, have ?occurred to the vehicle.  
             If the car does have any one of those conditions, it can  
            still be sold, just not as a certified car and is not required  
            to be disclosed to consumers.  AB 964 updates the law and  
            ensures that all consumers are informed about these conditions  
            before purchasing the car.  These disclosures will help  
            protect consumers who cannot afford to purchase a certified  
            used car." 

           3)Certification  .  Existing law does not precisely define what a  
            "certified" vehicle is or who may perform the certification,  
            but it does define what a "certified" vehicle is not.  Vehicle  
            manufacturers will use a "factory certified" designation that  
            includes a vehicle inspection and extends a vehicle's warranty  
            beyond the initial coverage.  Carmax, a company that sells  
            used cars but is unaffiliated with a vehicle manufacturer,  
            also has a vehicle certification program base on its own  
            inspection criteria.  Not all certified vehicles include  
            extended warranty coverage.

           4)The Car Buyer's Bill of Rights  .  The Car Buyer's Bill of  
            Rights, established pursuant to AB 68 (Montaņez), Chapter 128,  
            Statutes of 2005, prohibits car dealers from advertising or  
            selling a used vehicle as "certified" if certain conditions  
            are present, including odometer rollbacks, salvage titles, and  








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            damage that substantially impairs the vehicle's use or safety.  
             This bill would add another prohibited condition to that  
            particular statute:  that the dealer knows or should have  
            known that the vehicle is subject to a manufacturer's safety  
            recall.  According to a March 2013 Today News article provided  
            by the author's office, "Last year, more than 2 million used  
            cars [listed for sale] had unfixed recalls according to a new  
            survey by Carfax, including defects that could cause car fires  
            and loss of control on the road - even rollovers."

            This bill also requires car dealers to disclose certain  
            vehicle conditions to the buyer for non-certified used cars if  
            the transaction is conducted primarily in Spanish, Chinese,  
            Tagalog, Vietnamese, or Korean.  The author's intent is to  
            provide additional information to consumers outside of the  
            certified vehicle market so they can make a more informed  
            purchase.  The sponsor contends that the average car buyer  
            will not have sufficient mechanical knowledge to determine the  
            condition of a used car and whether or not it needs costly  
            repairs.  Therefore, the consumer must currently rely on the  
            car dealer to voluntarily disclose any problems with a  
            non-certified used car.  This bill would change that dynamic  
            by requiring the disclosure of relevant information to  
            consumers who negotiated in the specified languages.   
            According to the author's office, the apparent exclusion of  
            English from the eligible languages was an oversight that may  
            be fixed by a technical amendment.  

           5)FTC's consumer guidance for buying a used car  .  The Federal  
            Trade Commission (FTC) recommends that a consumer do thorough  
            research before purchasing a used vehicle, and provides  
            helpful consumer information on its Web site.  For example,  
            the FTC recommends consumers use an inspection checklist, test  
            drive the vehicle, request maintenance records, determine the  
            value of a vehicle, and hire a mechanic to inspect a car, so  
            the consumer has a better sense of the true costs of acquiring  
            a used vehicle.  The consumer can then use that information to  
            negotiate more equitable price with a car dealer or private  
            owner.  

            In addition, the FTC Web site also points out that there are  
            several databases a consumer can use to gather information  
            about a vehicle's history.  It states, "The Department of  
            Justice's National Motor Vehicle Title Information System  
            (NMVTIS) offers information about a vehicle's title, odometer  








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            data, and certain damage history?  The National Insurance  
            Crime Bureau maintains a free database that includes flood  
            damage and other information so you can investigate a car's  
            history by its VIN.  You can also search online for companies  
            that sell vehicle history reports."   

           6)Federal law on vehicle safety recall information  .  In 2012,  
            Congress enacted the MAP-21 Act, which required motor vehicle  
            safety recall information to be posted online and searchable  
            by vehicle make, model, and VIN.  This includes information  
            about each recall that has not been completed for each  
            vehicle.  U.S. DOT is required to promulgate regulations by  
            July 6, 2013 requiring each vehicle manufacturer to provide  
            specified vehicle recall information on a public Web site and  
            to car dealers.  Those regulations have not yet been  
            promulgated, but the requirement may be helpful for the  
            implementation of this bill if car dealers and consumers can  
            easily access voluntary and mandatory vehicle recall  
            information via a Web site instead of contacting vehicle  
            manufacturers directly.
           
           7)Mandatory vs. voluntary recalls  .  Recalls are issued for car  
            parts only; a whole vehicle is never recalled.  This bill  
            applies to all vehicle manufacturer safety recalls, both  
            voluntary and mandatory.
             
             The National Highway Traffic Safety Administration (NHSTA)  
            collects national safety recall information from vehicle  
            manufacturers subject to mandatory recalls because of problems  
            found to be serious and potentially fatal.  This information  
            is posted on NHSTA's affiliate Web site, and is searchable by  
            vehicle make and model.  Currently, the Web site's database is  
            not searchable by VIN.  However, once the federal regulations  
            are promulgated and vehicle manufacturers can share VIN  
            information, a safety vehicle recall will be searchable by VIN  
            online.  This bill allows a car dealer or consumer to identify  
            whether an individual vehicle has been subject to a safety  
            recall and whether that repair was made. 

            There is a significant difference in the level of safety  
            concerns involved between a voluntary recall and a mandatory  
            one.  A vehicle manufacturer may issue a voluntary safety  
            recall to address a defect in the performance, construction,  
            or component of a vehicle.  In such a case, the manufacturer  
            will contact vehicle owners and cover the costs to correct the  








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            defect without involving the NHTSA.  These voluntary recalls  
            are not posted online on NHTSA's affiliate Web site, but may  
            be posted on a vehicle manufacturer's Web site.  

            Conversely, a mandatory recall is one in which NHTSA has  
            received enough complaints and information about the operation  
            of a vehicle that it finds there is a significant threat to  
            public safety.  NHTSA will perform an investigation with a  
            review by engineers and experts and work with the vehicle  
            manufacturer to recall vehicles.  NHTSA may issue several  
            mandatory recalls each month.  

            Alerting consumers of safety recalls for used vehicles become  
            more challenging as the vehicles may change hands several  
            times.  Currently, a car dealer must contact a manufacturer  
            directly to find out if a vehicle has been subject to a  
            manufacturer's voluntary safety recall.  This bill would  
            require a car dealer to contact a manufacturer to determine  
            whether there are any voluntary safety recalls for each used  
            vehicle make and model it sells, and then identify whether an  
            individual vehicle has been repaired or not based on the car's  
            VIN. 
            
            In practice, AB 964 would transfer the responsibility of  
            safety recall notification from the vehicle manufacturer to  
            the used car dealer.  This bill may inform consumers about  
            outstanding safety recall issues when buying used cars and may  
            encourage dealers to correct an issue prior to advertising the  
            used car for sale.  This bill may be helpful given that used  
            cars may change hands multiple times and this makes it more  
            difficult for a manufacturer to track down and notify the  
            current owner of safety issues.  
            
            At the same time, this bill would require car dealers to  
            disclose a new type of information to buyers to highlight a  
            safety issue that manufacturers are responsible for fixing.   
            Currently, there is no law requiring car dealers to fix safety  
            recalls.  Car dealers would have to spend time continuously  
            querying manufacturers of each make and model of a used car  
            for sale to determine if a new voluntary safety recall has  
            been issued.

           8)Vehicle history reports  .  Current law prohibits a car dealer  
            from deceptive business practices, including attempting to  
            defraud or mislead consumers.  Car dealers, to protect  








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            themselves against liability issues, will purchase vehicle  
            history reports from companies such as Carfax, which compiles  
            vehicle accident history information from various entities,  
            including the Department of Motor Vehicles, insurance  
            companies, and law enforcement.  Consumers can also purchase  
            vehicle history reports prior to buying a used car in order to  
            find out if there hidden problems that are not obvious with a  
            visual inspection of the vehicle.  The vehicle history reports  
            include data that is collected, although the reports do not  
            list vehicle history information that must be provided in  
            every report, and may or may not include the disclosure  
            provisions required of car dealers for non-certified used  
            vehicles contained within this bill.  
           
            9)Questions for the Committee  . In order to take advantage of the  
            expected regulations for a national recall database and to  
            align California and federal recall disclosure provisions, the  
            Committee may wish to consider inquire of the author as to  
            whether or not this bill would be improved by adding a delayed  
            implementation date of 180 days following the issuance of the  
            MAP-21 regulations.  This would allow car dealers and  
            consumers to easily discover online if a safety recall exists  
            for a vehicle, instead of individually contacting each  
            manufacturer directly. 

          Because the bill as written prohibits the sale of cars as  
            "certified" if those cars are subject to a manufacturer's  
            safety recall, but a car can be made safe if the problem is  
            corrected, the author may wish to consider a clarifying  
            amendment that states that a vehicle may be sold as certified  
            if the problem raised by the recall has been properly  
            repaired. 

           10)Suggested Committee Amendments  .   According to the Assembly  
            Judiciary Committee, the 4/25 amendments mistakenly omitted to  
            delete an obsolete subsection.  The Committee recommends  
            rectifying that error with a technical amendment to delete  
            that section. 

              On page 4, strike lines 10-13

            The bill in its current form provides consumers with important  
            written disclosures about non-certified vehicles, but only if  
            the transaction was conducted in Spanish, Chinese, Tagalog,  
            Vietnamese or Korean.  According to the author's office, the  








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            apparent exclusion of English from the list of eligible  
            languages was a drafting error requiring a technical  
            amendment.  

               On page 3, strike lines 25-26 and insert "providing the  
               buyer written disclosure, in English or in one of the  
               languages specified in subdivision (b) of Section 1632 of  
               the Civil Code depending on the language primarily used to  
               negotiate the transaction, identifying"
                 
           11)Arguments in support  .  According to the sponsor, the LBA,  
            this bill "improves protections for consumers who cannot  
            afford to purchase a new or certified used car.  The current  
            law, the Car Buyers Bill of Rights, has protected millions of  
            car consumers.  However, there is one area that it did not  
            address - used cars that are not certified.  

            "Specifically, the current law does not allow car dealers to  
            'certify' a used vehicle if they know it has [sustained]  
            certain damage, such as previous flood and fire damage, frame  
            damage, and an odometer rollback.  However, a dealer does not  
            have any obligations to inform consumers about a vehicle's  
            history - beyond the basic information the NMVTIS provides -  
            when they sell a used call that is not certified. 

            "[The LBA] wants to ensure that when anyone buys a car -  
            whether they can afford a certified used car or not - has as  
            many facts about the car that is available."

           12)Arguments in opposition  .  According to the California New Car  
            Dealers Association, "AB 964 wrongly targets all car dealers  
            for a problem that has been brought about by the rental car  
            industry.  The rental car industry has faced scrutiny in  
            recent years for renting defective vehicles to consumer  
            despite being informed of open safety recalls?  Rather than  
            focusing on rental car companies, AB 964 targets every dealer  
            seeking to 'certify' a vehicle - regardless of how minor the  
            recall is, or whether the dealer has access to information  
            about the recall.  
             
             "Changing the focus of regulation from rental car companies  
            creates more, not less, compliance issues.  While a rental car  
            company is notified directly by the manufacturer when a  
            vehicle it owns is recalled, car dealers receive no such  
            notification (unless franchised to sell that make)?  Nor does  








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            that dealer have access to information concerning whether the  
            vehicle has been recalled, or, if so, whether the defect has  
            been repaired? 

            "Congress passed legislation last year requiring the creation  
            of a free Internet database - searchable by make, model, and  
            VIN - containing information about each recall and whether it  
            has been completed for each individual vehicle?  Until this  
            database is operational, compliance with AB 984 would be  
            impossible." 

            According to the Consumers for Auto Reliability and Safety,  
            "This is a fundamentally flawed bill that would actually  
            weaken protections for vulnerable, low-income used car buyers  
            who are already often preyed upon by unscrupulous auto  
            dealers.  It would be particularly harmful to consumers who  
            are monolingual or may have literacy issues, and who cannot  
            afford to purchase newer, more expensive vehicles, yet need a  
            car in order to get to work, transport their families, and  
            obtain the necessities of life?

            "[This bill] allows auto dealers to sell used cars with  
            serious problems that may be life-threatening, if they merely  
                                                    give "written disclosure" to the buyers.  However, those  
            disclosures are not required to be clear or conspicuous, or in  
            plain language, so they could easily be hidden in fine print  
            or incomprehensible legalese."

           13)Related legislation  .  SB 686 (Jackson) of 2013 would prohibit  
            a car dealer from selling, leasing, displaying, renting, or  
            loaning a new or used vehicle, as specified, if the car has a  
            defect that is subject to a manufacturer's safety recall,  
            unless the car has been repaired to correct the defect.  SB  
            686 is pending in the Senate Judiciary Committee. 

           14)Previous legislation  .  AB 1215 (Blumenfield), Chapter 329,  
            Statutes of 2001, requires new car dealers to participate in a  
            program to electronically title and register vehicles that  
            they sell and to post specified warning notices on some used  
            cars.  

            SB 990 (Vargas) of 2012 would have allowed a car dealer  
            selling a used car to obtain data from a commercial entity,  
            rather than the federal government, to provide required  
            information to consumers on the vehicle's title history.  AB  








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            990 was held in the Senate Transportation and Housing  
            Committee.

            AB 68 (Montaņez), Chapter 128, Statutes of 2005, enacts the  
            Car Buyer's Bill of Rights, provided that a car dealer may not  
            advertise of sell as "certified" a used or pre-owned motor  
            vehicle, as defined, unless specified conditions are  
            satisfied, and further provided that vehicles sold as  
            "certified" may not be sold "as is," or if the dealer has  
            disclaimed any warranties.

           15)Double-referred  .  This bill was heard by the Assembly  
            Judiciary Committee on April 22, 2013 and approved by a 7-3  
            vote.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Latin Business Association (sponsor)
          California Hispanic Chambers of Commerce 
          California Urban Partnership 

           Opposition 
           
          California Financial Services Association 
          California Immigrant Policy Center
          California New Car Dealers Association 
          Consumer Federation of California
          Consumer Watchdog
          Consumers for Auto Reliability and Safety
          Independent Automobile Dealers Association of California 
          The Trauma Foundation
           
          Analysis Prepared by  :    Joanna Gin / B.,P. & C.P. / (916)  
          319-3301