In effort to fight burglaries, County reviewing new regulation scheme for businesses that sell used merchandise
Local law enforcement is backing a new proposed county law to more tightly regulate pawnbrokers but the draft legislation may have a spill-over impact on other local businesses.
At least one county legislator, Andrew Young, is opposed to passing the new law.
A public hearing on the proposed law has been set for 5:30 p.m. on Dec. 12 in the Old County Courthouse. (Download PDF of proposed local law).
The purpose of the law is to help local law enforcement find stolen property, recover stolen property, and apprehend the criminals who pilfer other people's property.
“Basically, our interest in doing this is an interest in not only being able to prosecute people who steal this property and take it to pawn shops to be sold, but also making it possible to make things right for victims of these burglaries," said District Attorney Lawrence Friedman, who drafted the proposed law at the request of Sheriff's Office.
Friedman, as well as Undersheriff Gregory Walker and Chief Deputy Jerome Brewster, were clear however, there's really only one business in Genesee County that is the target of the law and that is Pawn King, 4140 Veterans Memorial Drive.
"I worked with Jerry from the start five years ago," Friedman said. "The request came from local law enforcement because of a problem primarily with residential burglaries and that proceeds from these burglaries were primarily going to pawn shops and primarily one local pawn shop," Friedman told members of the Public Service Committee at a meeting Monday.
The Legislature considered a similar law five years ago but after opposition from scrap metal dealers at a public hearing, where they raised concerns about the logistical difficulty in tracking where scrap metal came from, the proposed law lost support among legislators.
County Attorney Kevin Earl has modified the bill to remove regulation of scrap metal dealers.
During his presentation in support of the proposed law, Friedman recalled two recent incidents he said illustrates the need for the law.
If you read the local news, Friedman told legislators, you know about a recent incident where a suspect pulled into the driveway of County Manager Jay Gsell and allegedly threw a stolen gun from the car. That case is linked, Friedman said, to a recent string of burglaries in the area and one of the suspects allegedly used a fake ID to pawn stolen items at Pawn King.
"That's a big problem," Friedman said. "That's one example of something that goes on here on a regular basis."
Friedman also said the assistant district attorney for the Town of Batavia Court recently took an affidavit from a witness who said he saw a person wheel an entire shopping cart full of merchandise from Walmart to Pawn King across the street and pawn all of the items.
"That's the kind of thing we're dealing with," Friedman said.
Brewster said the proposed law would make his job, and the job of all local criminal investigators, easier.
"It will make it harder to get away with illegal activity and make it easier to prosecute those who are breaking the law," Brewster said.
Friedman said when he wrote the law five years ago, he patterned it after a law already passed in Monroe County as well as ones in other jurisdictions.
There are similar other laws in other jurisdictions, including other states, and some of them have run into legal challenges over the implication in the laws of warrantless searches, which violate the Fourth Amendment.
Under the terms of these laws, including the law proposed in Genesee County, police officers can enter the place of business of a secondhand dealer without notice and inspect the property and demand to inspect the mandated records kept by the business.
In California, GameStop is suing over a pawn shop law.
In this law journal article, the author says that in New York, courts have found, specifically in People v. Keta, that the state has a greater interest in stopping chop shops from trafficking in stolen parts than chop shop owners have a right to privacy. The Supreme Court has ruled that records inspections of closely regulated businesses, which includes pawn shops, are permissible.
However, Onondaga County paid a $15,000 settlement in 2015 after a court ruled his business was the victim of a warrantless search under that county's pawn shop law. Also in New York, a New York City law that required law enforcement inspections of pawn shop records was struck down by a judge there.
Last night, The Batavian emailed Friedman and Earl and asked them how these New York cases, which are more relevant than cases in other states, differ from the proposed local law and we haven't received a response.
Young said Cattaraugus County passed a similar law and later repealed it. We couldn't find any news coverage of such a repeal, but we did find a story about the City of Salamanca deciding to repeal its pawn shop law after local antique dealers objected to the law.
While the proposed law does target pawn shops, the definition of secondhand dealers includes any business, with a couple of exceptions, that acquires previously used items for the purpose of resale to the public.
This would seem to include antique dealers, junk dealers, non-charitable thrift stores and secondhand shops, and used record stores.
Exceptions are written into the law for clothing and books but no other items.
Jewelry stores and coin dealers with sales of less than 15 percent of sales from used items are also exempt from the law. Also exempt, antique dealers who sell exclusively at trade shows and licensed auctioneers.
The law also covers the resale of gift cards. This seems to apply to the resale of gift cards from other businesses, which is common in local businesses, such as Tops Market, Walmart, and Target, as well as The Batavian.
Earl told legislators those type of gift cards, even though they are acquired from the issuer for resale to a third party, are not covered by the law.
He quoted from Section 2, paragraph F:
"Secondhand Article" means any article or object, with the exception of clothing and books, that has previously been bought or sold at retail and/or which has been previously used and/or is not in a new condition. This shall include any “gift card” ....
Earl argued that the law only covers gift cards that are considered "used" even though once a gift card is used, it loses its value.
The purpose of including gift cards is to deal with criminals who shoplift from stores such as Walmart and then return the items. Since they don't have a receipt, they are given a gift card. Brewster said, for example, they might get a $100 gift card and then walk over to Pawn King and sell it for $50.
When questioned after the meeting about clarity on the gift card provision, Friedman reiterated it was not the intention of the law to cover gift cards sold by The Batavian or retail outlets such as Tops. He said it would be up to the Legislature to refine the law if they thought such clarity was necessary.
"I guess what I'm going to say is we drafted it as we thought was appropriate," Freidman said. "This is not the end. You know there's going to be a public hearing and everyone is going to have an opportunity to be heard about that. And presumably, there could be further refinements made to it just like we did after the last public hearing."
The law as proposed requires secondhand dealers to acquire a license. There is a $150 annual fee for the license. Licenses could be denied to anybody with a criminal conviction and potentially to businesses with employees who have criminal convictions for property crimes.
Secondhand dealers would be required to keep written records of all transactions -- both buying and selling -- in their shops as well as enter data into LeadsOnline, a private business that law enforcement can contract with to track the acquisition of used merchandise by dealers. LeadsOnline is free to participating businesses.
Dealers would be required to obtain photo identification of every person, and make a photocopy of the ID, of every seller or buyer of merchandise.
Section 12, paragraph B:
Prior to acquiring or disposing of any secondhand article covered by this local law, every Secondhand Dealer shall request Identification from the seller or purchaser and shall verify the identity of such individual by comparing the individual to the photographic image contained on said Identification. The Secondhand Dealer shall record the individual’s name, date of birth and address (or current address if different than that listed on the Identification), and the Identification number (e.g., motorist ID number) listed on the Identification. The Secondhand Dealer shall make a photocopy of the front of the Identification.
Failure to comply with the law is a Class B misdemeanor.
The law also covered dealers who transact business online, such as eBay resellers, if they're based in Genesee County.
It's not clear how online retailers would comply with the requirement to obtain a physical ID of buyers and sellers.
License dealers must also allow local law enforcement and code enforcement to inspect their place of business prior to receiving a license and at any time upon request once the license is issued.
Young made the point that many Web-based businesses operate out of the owners' homes and he asked if such owners would be expected to make their homes subject to inspection by law enforcement.
None of the advocates for the law provided an answer to the question.
Young compared the law to code enforcement and health inspection laws, which usually involve an appointment with the inspector.
"Not only is an appointment made," Young said, "the consequences are you're not serving the lunch next day. In this case, you go to jail."
Earl said, as a Class B misdemeanor, there is no jail term. It's more like a traffic ticket.
The proposed law was first discussed in the Public Service Committee. Young is not a member of the Public Service Committee but he was given an opportunity to voice his concerns.
The Public Service Committee unanimously recommended approving a public hearing on the proposed law.
The Ways and Means Committee met immediately after the first meeting. Young does serve on that committee and Ways and Means was also asked to vote on approval of a public hearing.
Young again raised objections to the proposed law, which prompted another discussion.
There isn't a need for the law, Young suggested, because Pawn King is already entering its transactions in LeadsOnline. Young said he spoke with the manager of the local Pawn King.
"It’s not true," Walker said. "He may say that but he’s not doing it."
During Public Service, Friedman hinted but didn't outright say, that Pawn King conducts some transactions after regular business hours.
Young voted no to send the proposed law to a public hearing. He thinks the bill should go back to the lawyers to clarify key points.
"There are too many unanswered questions," he said.
Chairwoman Marianne Clattenburg suggested that the bill could go to public hearing and the Legislature could then better determine how to amend the law after hearing from the public.
Ways and Means approved sending the proposed law to a public hearing on a 4-1 vote.
Much of Young's objection to the proposed law is that it creates a new regulatory scheme for businesses, which he thinks runs counter to the county's effort to try and attract new business.
"This is an unprecedented law in this county," Young said. "In this county, we don't have too many local laws and they've usually been reserved for things that are really important. Monroe County has a different governing body and they think differently than ours, but we're taking one of their laws and making it even more restrictive."
Young argued that the problem in Genesee County doesn't rise to the level of passing new laws.
Friedman said there is a pressing need for the law.
“I have to disagree with the statement that there is no problem here," Friedman said. "There is absolutely a problem here.”
Photo: Public Service Committee meeting.
WOW! This looks to punish 99% of the business community because there is a problem with 1. When and where do I (we) sign up to speak?
This is bad. Not only creating more regulations and burdens for business, but making violations of them crimes.
they are trying to run this pawn shop out of business, dictating to a business how they will do their job with mandates and then prosecuting them if they fail to comply is outrageous...... border line harassment ....... and the part about making work easier for the police and prosecutors while placing restrictions on a private business is outrageous.
Wow... Adolph Cuomo's tyranny has come to Genesee County... ?!!
Too many government attorneys with too much time on their hands.
look at them... at least a dozen, probably collecting overtime, in a think tank pondering how to gain more control over the people who pay them.... If you can't fight crime with all the laws and tools you now have, then give up and the people who live here will find someone who can....
There isn't a single person in that room on county payroll who is eligible for overtime pay and several of them are elected officials who don't even earn minimum wage for the amount of time they put into their jobs. And they all live here.
When's the last time you ran for County Legislature or otherwise tried to make a contribution to local government?
oh Howard that's an easy one, every time I pay property tax, school tax and every time I spend a dime in Genesee county I contribute to local government.
So does every other person in that room so you're answer is really just a dodge.
Howard, if I was in that room and told those people what I think of their idea, I'd be run off elected official or not. Just wait and see this will become a law and when it does the pawn shop owner will be doing all the work so it'll " be easier " for the lawman... Howard if you say they are all volunteers, hard for me to believe, I stand corrected.
David, you will get a chance to speak at the Public Hearing on this. Will you do so?
The idea of having a public hearing on a law that has flaws, then saying the legislators, who have no legal training, can fix it is stupid. And if any changes are made after the public hearing, you need another public hearing. This is just a money grab ($150 fee) and harassment of businesses.
I'm wondering if anyone approached this business in any form of a business manor. The business is in business to make money and if an agreeable compensation could be reached...voila!!! If most or all of the investigation could be done online the business has the added value of not having police cars lingering around his business. And it would save the different law agencies in a myriad of ways.
Asking for a license fee at $150 really seems excessive. I have a little antique store- Gallery in the country. I neither buy from people off the street or from people I don't know. Am I going to have to pay this fee too? I don't like this at all.
I've been trying to seek more clarity on the scope of the law, who it would apply to and what I'm coming up with so far is, "it's unclear."
Howard, that's a big problem. They want a public hearing on a law that is not clear as to who is covered and who is not. How about getting this all cleared up before the hearing so the public will know what is being considered. And all this intrusion into businesses and extra fees because some want to go after Pawn King