AB 2212
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Date of Hearing: April 10, 2012
Counsel:
Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2212 (Block) – As Introduced: February 24, 2012
SUMMARY: Clarifies that buildings or places used for human trafficking can be declared a
public nuisance, and specifies that half of any civil penalties collected therefrom shall be directed
to fund grants for human trafficking victim services and prevention programs. Specifically, this
bill:
1) Classifies a building or place used for the purpose of, or in or upon which occur acts of,
human trafficking as a public nuisance.
2) Divides civil penalties collected through the nuisance provisions, in cases of human
trafficking, between the Victim-Witness Assistance Fund, to be available upon appropriation
by the Legislature to the California Emergency Management Agency to fund grants for
human trafficking victim services and prevention programs, and the city attorney and city
prosecutor or district attorney, to be used exclusively for enforcement of nuisance abatement
laws.
EXISTING LAW:
1) States that every building or place used for the purpose of illegal gambling as defined by
state law or local ordinance, lewdness, assignation, or prostitution, and every building or
place in or upon which acts of illegal gambling as defined by state law or local ordinance,
lewdness, assignation, or prostitution, are held or occur, is a nuisance which shall be
enjoined, abated, and prevented, and for which damages may be recovered, whether it is a
public or private nuisance. Nothing in this subdivision shall be construed to apply the
definition of a nuisance to a private residence where illegal gambling is conducted on an
intermittent basis and without the purpose of producing profit for the owner or occupier of
the premises. [Penal Code Section 11225(a).]
2) Provides that every building or place used as a bathhouse which as a primary activity
encourages or permits conduct that according to the guidelines of the federal Centers for
Disease Control can transmit AIDS, including, but not limited to, anal intercourse, oral
copulation, or vaginal intercourse, is a nuisance which shall be enjoined, abated, and
prevented, and for which damages may be recovered, whether it is a public or private
nuisance. For purposes of this subdivision, a "bathhouse" means a business which, as its
primary purpose, provides facilities for a spa, whirlpool, communal bath, sauna, steam bath,
mineral bath, mud bath, or facilities for swimming. [Penal Code Section 11225(b).]
3) States that if the existence of a nuisance is established in an action as provided in this article,
an order of abatement shall be entered as a part of the judgment in the case, directing the
removal from the building or place of all fixtures, musical instruments and movable property
used in conducting, maintaining, aiding, or abetting the nuisance, and directing the sale
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thereof in the manner provided for the sale of chattels under execution, and the effectual
closing of the building or place against its use for any purpose, and that it be kept closed for a
period of one year, unless sooner released. If the court finds that any vacancy resulting from
closure of the building or place may create a nuisance or that closure is otherwise harmful to
the community, in lieu of ordering the building or place closed, the court may order the
person who is responsible for the existence of the nuisance to pay damages in an amount
equal to the fair market rental value of the building or place for one year to the city or county
in whose jurisdiction the nuisance is located. The actual amount of rent being received for the
rental of the building or place, or the existence of any vacancy therein, may be considered,
but shall not be the sole determinant of the fair market rental value. Expert testimony may be
used to determine the fair market rental value. [Penal Code Section 11230(a)(1).]
4) Specifies that while the order remains in effect as to closing, the building or place is and shall
remain in the custody of the court. [Penal Code Section 11230(a)(2).]
5) States that for removing and selling the movable property, the court is entitled to charge and
receive the same fees as he or she would for levying upon and selling like property on
execution. [Penal Code Section 11230(a)(3).]
6) States that for closing the premises and keeping them closed, a reasonable sum shall be
allowed by the court. [Penal Code Section 11230(a)(4).]
7) Provides that the court may assess a civil penalty not to exceed twenty-five thousand dollars
($25,000) against any and all of the defendants, based upon the severity of the nuisance and
its duration. [Penal Code Section 11230(b).]
8) States that one-half of the civil penalties collected pursuant to this section shall be deposited
in the Restitution Fund in the State Treasury, the proceeds of which shall be available for
appropriation by the Legislature to indemnify specified persons filing claims and one-half of
the civil penalties collected shall be paid to the city in which the judgment was entered, if the
action was brought by the city attorney or city prosecutor. If the action was brought by a
district attorney, one-half of the civil penalties collected shall be paid to the treasurer of the
county in which the judgment was entered. [Penal Code Section 11230(c).]
FISCAL EFFECT: Unknown
COMMENTS:
1) Author's Statement: According to the author, "As many as 18,000 men, women and children
are trafficked into the United States every year and even more are trafficked within our
borders – suffering unspeakable violence at the hands of traffickers. Human trafficking
continues to be a growing problem in the United States especially in San Diego. California is
particularly vulnerable to human trafficking because it has international boarders, a high
number of ports and airports, and a large economy with industries that attract forced labor.
"AB 2212 provides a new civil remedy to shut down human trafficking operations and
directs recovered penalties to human trafficking victim service providers that provide legal
support, counseling and housing to victims."
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2) Background: According to the background provided by the author, [t]his bill seeks to
remedy two problems. First, current law does not provide an effective civil enforcement
mechanism against traffickers, property managers and business owners who are engaging in,
and profiting from, illegal human trafficking activities. While the current law allows city
attorneys and prosecutors to bring a nuisance claim against the property where human
trafficking occurred, this process can only be initiated after a prosecutor has acquired a time
intensive felony conviction. Once a prosecutor acquires a felony conviction, which can take
years, there is typically no longer any value in pursuing a nuisance claim. This bill remedies
the problem by designating human trafficking as a “per se” nuisance. This allows city
attorneys and prosecutors the ability to initiate a nuisance abatement claim as soon as the
police discover a human trafficking operation.
The second problem has to do with funding for victims. The California Alliance to Combat
Trafficking and Slavery Task Force found that there is insufficient funding for organizations
in California that provide services to victims of human trafficking. This bill would help
generate additional funding by directing recovered penalties to human trafficking victim
service providers.
3) Current Law: Under current law, upon conviction of a violation of human trafficking, if real
property is used to facilitate the commission of the offense, the procedures for determining
whether the property constitutes a nuisance and the existing remedies outlined in Penal Code
Section 11225 apply. (Penal Code Section 263.3)
4) Human Trafficking: Human trafficking involves the recruitment, transportation or sale of
people for forced labor. Through violence, threats and coercion, victims are forced to work
in, among other things, the sex trade, domestic labor, factories, hotels and agriculture.
According to the January 2005 United States Department of State's Human Smuggling and
Trafficking Center report, "Fact Sheet: Distinctions Between Human Smuggling and Human
Trafficking", there is an estimated 600,000 to 800,000 men, women and children trafficked
across international borders each year. Of these, approximately 80% are women and girls
and up to 50% are minors. A recent report by the Human Rights Center at the University of
California, Berkeley cited 57 cases of forced labor in California between 1998 and 2003,
with over 500 victims. The report, "Freedom Denied", notes most of the victims in
California were from Thailand, Mexico, and Russia and had been forced to work as
prostitutes, domestic slaves, farm laborers or sweatshop employees. [University of
California, Berkeley Human Rights Center, "Freedom Denied: Forced Labor in California"
(February, 2005).] According to the author:
"While the clandestine nature of human trafficking makes it enormously difficult to
accurately track how many people are affected, the United States government estimates that
about 17,000 to 20,000 women, men and children are trafficked into the United States each
year, meaning there may be as many as 100,000 to 200,000 people in the United States
working as modern slaves in homes, sweatshops, brothels, agricultural fields, construction
projects and restaurants."
5) Trafficking Victims Protection Act of 2000 (22 USC Sections 7101 et seq.): In October
2000, the Trafficking Victims Protection Act of 2000 (TVPA) was enacted and is
comprehensive, addressing the various ways of combating trafficking, including prevention,
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protection and prosecution. The prevention measures include the authorization of
educational and public awareness programs. Protection and assistance for victims of
trafficking include making housing, educational, health-care, job training and other federally
funded social service programs available to assist victims in rebuilding their lives. Finally,
the TVPA provides law enforcement with tools to strengthen the prosecution and punishment
of traffickers, making human trafficking a federal crime.
6) Human Trafficking Studies: The Family Violence Prevention Fund study, in the Executive
Summary of "Turning Pain into Power: Trafficking Survivors' Perspectives on Early
Intervention Strategies", states the following:
"This study was undertaken to examine the hypothesis that the health care system might be
an ideal place to focus education and intervention efforts on victims of slavery. Human
trafficking is without question a health care issue: victims of trafficking suffer a host of
health-related problems and are at high risk of injury, illness and even death from the
circumstances of their forced employment. . . . Is health care a missed opportunity to
intervene on behalf of trafficked women and children? . . . If health care providers do
interact with this population unknowingly, what steps could be taken to enable practitioners
to recognize trafficking victims and understand their special needs?"
A February 2005 report by the Human Rights Center at the University of California,
Berkeley discussed the legislative response to the human trafficking problem. This report
found that the California State Legislature must address several critical areas including
criminal prosecution and civil remedies; training for law enforcement to better help them
recognize forced labor cases and process LEAs; the provisions of social services, including
medical care, shelter, witness protection and other benefits; and the creation of a task force to
examine, propose and coordinate ongoing efforts to combat trafficking and forced labor.
7) California Attorney General Statement: The issue of human trafficking has been addressed
by the California Attorney General through the Crime and Violence Prevention Center's
project "SafeState". On November 2004, former Attorney General Bill Lockyer stated the
following:
"Human trafficking is nothing less than modern-day slavery . . . forced labor operations have
surfaced in 13 California cities, concentrated largely around San Francisco, Los Angeles and
Fresno, according to a recent report, "Hidden Slaves", from the Human Rights Center at the
University of California, Berkeley. Yet, this devastating human rights abuse is relatively
unknown to the general public.
"Forced labor in the United States is not only unconscionable, it is also illegal. . . . The 2000
Trafficking Act, enacted by Congress, is a good start in prosecuting these criminals.
However, the Act has limitations. We need to do more."
The Attorney General suggested the following in combating labor and human trafficking:
a) Bringing local, state and federal law enforcement and victim assistance groups together
to develop strategies.
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b) Training local and state law enforcement agencies to identify victims and force labor
operations when they come in contact with secondary crimes of human trafficking, such
as fraud, money laundering, and prostitution.
c) Educating law enforcement agencies and prosecutors so they consider the possibility that
trafficking might be involved.
d) Educating the public, especially health care workers, religious institutions and
community organizations, to solicit their cooperation.
e) Collecting and analyzing information to identify human trafficking groups.
8) Argument in Support: According to the City Attorney of Los Angeles, "Existing law lacks
an effective enforcement mechanism against traffickers who engage in and profit from this
abhorrent act. Under California's current nuisance law, illegal gambling faces greater
enforcement penalties than human trafficking. This discrepancy is unacceptable and must be
remedied.
"AB 2212 provides prosecutors with a new tool in seeking an immediate end to human
trafficking operations. AB 2212 authorizes closure of the nuisance property for up to one
year, and provides a maximum civil fine of $25,000. The bill directly assists human
trafficking victims by providing critical funding for victim services and prevention
programs."
9) Prior Legislation: AB 1002 (Fong), of the 2009-2010 Legislative session, would have
created the Human Trafficking Trust Fund, and provided that forfeiture proceeds from
human trafficking be deposited in that fund for use, upon appropriation by the Legislature,
for the purpose of funding services for the victims of human trafficking and for providing
training to law enforcement and prosecutorial personnel to help combat human trafficking.
The bill failed passage in Assembly Appropriations Committee
REGISTERED SUPPORT / OPPOSITION:
Support
American Federation of State, County and Municipal Employees (AFSME)
California Catholic Conference
Coalition to Abolish Slavery and Trafficking
Junior Leagues of California
Los Angeles City Attorney
Peace Officers Research Association of California (PORAC)
San Diego City Attorney
Opposition
None
AB 2212
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Analysis Prepared by:
Gabriel Caswell / PUB. S. / (916) 319-3744