07 LC 29
2726
Senate
Bill 203
By:
Senators Harp of the 29th, Staton of the 18th, Mullis of the 53rd, Shafer of the
48th, Hamrick of the 30th and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Article 14 of Chapter 1 of Title 10, Code Section 16-8-12, and Chapter 1
of Title 46 of the Official Code of Georgia Annotated, relating to secondary
metals recyclers, penalties for certain theft crimes, and general provisions for
public utilities and public transportation, respectively, so as to provide for
increased penalties for certain crimes involving public utility property; to
change certain provisions relating to inspection by law enforcement officers; to
change provisions relating to actions to recover property; to change provisions
relating to penalties for violating Article 14 of Chapter 1 of Title 10; to
provide for forfeiture of certain property and procedure therefor; to provide
for legislative findings and preemption; to provide for the Governor to appoint
certain special officers for purposes of investigating certain thefts of public
utility property; to provide the special officers power of arrest, compensation,
qualifications, bond, and duration of appointment and commission; to provide for
related matters; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Article
14 of Chapter 1 of Title 10 of the Official Code of Georgia Annotated, relating
to secondary metals recyclers, is amended by revising Code Section 10-1-352,
relating to inspections by law enforcement officers, as follows:
"10-1-352.
During
the usual and customary business hours of a secondary metals recycler, a law
enforcement officer
or special
officer, as such official is described in Code Section
46-1-6, shall, after properly identifying
himself or
herself as a law enforcement officer
or special
officer, have the right to
inspect:
(1)
Any and all purchased regulated metal property in the possession of the
secondary metals recycler; and
(2)
Any and all records required to be maintained under Code Section
10-1-351."
SECTION
2.
Said
article is further amended by revising Code Section 10-1-354, relating to
contesting identification or ownership of regulated metal property and action to
recover property, as follows:
"10-1-354.
(a)
If the secondary metals recycler contests the identification or ownership of the
regulated metal property, the party other than the secondary metals recycler
claiming ownership of any regulated metal property in the possession of a
secondary metals recycler may, provided that a timely report of the theft of the
regulated metal property was made to the proper authorities, bring an action in
the superior or state court of the county in which the secondary metals recycler
is located. The petition for such action
must
shall
include a description of the means of identification of the regulated metal
property utilized by the petitioner to determine ownership of the regulated
metal property in the possession of the secondary metals recycler.
(b)
When a lawful owner recovers stolen regulated metal property from a secondary
metals recycler who has complied with the provisions of this article, and the
person who sold the regulated metal property to the secondary metals recycler is
convicted of theft
by taking,
theft by conversion, a violation of this
article,
or
theft by receiving stolen property,
or criminal
damage to property in the first degree,
the court shall order the defendant to make full restitution, including, without
limitation, attorneys´ fees, court costs, and other expenses to the
secondary metals recycler
or lawful
owner, as appropriate.
(c)
When a lawful owner recovers stolen regulated metal property from a secondary
metals recycler who has knowingly and intentionally not complied with the
provisions of this article, and the secondary metals recycler is convicted of
theft by taking, theft by conversion, theft by receiving stolen property, or a
violation of this article, the court shall order the defendant to make full
restitution, including, without limitation, attorneys´ fees, court costs,
and other expenses to the lawful
owner."
SECTION
3.
Said
article is further amended by revising Code Section 10-1-357, relating to
penalties for violations of the article, as follows:
"10-1-357.
(a)
Any person selling regulated metal property to a secondary metals recycler in
violation of any provision of this article shall be guilty of a
misdemeanor
unless the transaction or transactions in violation of this article are in an
aggregate amount which exceeds $500.00, in which case such person shall be
guilty of a felony and, upon conviction,
shall be punished by a fine of not more than $5,000.00 or by imprisonment for
not less than one nor more than five years, or both.
(b)
Any secondary metals recycler knowingly and intentionally engaging in any
practice which constitutes a violation of this article shall be guilty of a
misdemeanor,
provided that if a secondary metals recycler knowingly and intentionally engages
in a pattern of practices which constitute violations of this article and the
transactions included in this pattern are in an aggregate amount which exceeds
$500.00, such secondary metals recycler shall be guilty of
a felony and, upon conviction, shall be
punished by a fine of not more than $5,000.00 or by imprisonment for not less
than one nor more than five years, or both."
SECTION
4.
Said
article is further amended by adding two new Code sections to read as
follows:
"10-1-358.
(a)
As used in this Code section, the term 'crime' means the offenses of theft by
taking as defined in Code Section 16-8-2; theft by conversion as defined in Code
Section 16-8-4; theft by receiving stolen property as defined in Code Section
16-8-7 if the subject of the theft was ferrous metals or regulated metal
property, as such terms are defined in Code Section 10-1-350; criminal damage to
property in the first degree as defined in paragraph (2) of subsection (a) of
Code Section 16-7-22; or a criminal violation of Article 14 of Chapter 1 of
Title 10.
(b)
All motor vehicles, tools, and weapons which are used or intended for use in any
manner in the commission of or to facilitate the commission of a crime are
subject to forfeiture under this Code section, but:
(1)
No motor vehicle used by any person as a common carrier in the transaction of
business as a common carrier is subject to forfeiture under this Code section
unless it appears that the owner or other person in charge of the motor vehicle
is a consenting party or privy to the commission of a crime;
(2)
No motor vehicle is subject to forfeiture under this Code section by reason of
any act or omission established by the owner thereof to have been committed or
omitted without his or her knowledge or consent, and any co-owner of a motor
vehicle without knowledge of or consent to the act or omission is protected to
the extent of the interest of such co-owner; and
(3)
A forfeiture of a motor vehicle encumbered by a bona fide security interest is
subject to the interest of the secured party if he or she neither had knowledge
of nor consented to the act or omission.
(c)
Property subject to forfeiture under this Code section may be seized by any law
enforcement officer of this state or any political subdivision thereof who has
the power to make arrests upon process issued by any court having jurisdiction
over the property. Seizure without process or warrant may be made
if:
(1)
The seizure is incident to an arrest or a search under a search
warrant;
(2)
The property subject to seizure has been the subject of a prior judgment in
favor of this state in a criminal injunction or forfeiture proceeding based upon
this Code section; or
(3)
If probable cause exists that the vehicle, tool, or weapon is subject to
seizure.
(d)
Property taken or detained under this Code section shall not be subject to
replevin but is deemed to be in the custody of the superior court wherein the
seizure was made or in custody of the superior court where it can be proven that
the crime was committed, subject only to the orders and decrees of the court
having jurisdiction over the forfeiture proceedings. When property is seized
under this Code section, law enforcement officers seizing such property
shall:
(1)
Place the property under seal;
(2)
Remove the property to a place designated by the judge of the superior court
having jurisdiction over the forfeiture as set out in this subsection;
or
(3)
Deliver such property to the sheriff or police chief of the county in which the
seizure occurred, and the sheriff or police chief shall take custody of the
property and remove it to an appropriate location for disposition in accordance
with law.
(e)
When property is seized under this Code section, the sheriff or law enforcement
officer seizing the same shall report the fact of seizure, within 20 days
thereof, to the district attorney of the judicial circuit having jurisdiction in
the county where the seizure was made. Within 60 days from the date he or she
receives notice of the seizure, the district attorney of the judicial circuit
shall cause to be filed in the superior court of the county in which the
property is seized or detained an in rem complaint for forfeiture of such
property as provided for in this Code section. The proceedings shall be brought
in the name of the state by the district attorney of the circuit in which the
property was seized, and the complaint shall be verified by a duly authorized
agent of this state in a manner required by the law of this state. The
complaint shall describe the property; state its location; state its present
custodian; state the name of the owner, if known to the duly authorized agent of
this state; allege the essential elements of the violation upon which the
forfeiture is based; and conclude with a prayer of due process to enforce the
forfeiture. Upon the filing of such a complaint, the court shall promptly cause
process to issue to the present custodian in possession of the property
described in the complaint, commanding him or her to seize the property
described in the complaint and to hold that property for further order of the
court. A copy of the complaint shall be served upon the owner or lessee, if
known, and upon any person having a duly recorded security interest in or lien
upon that property. If the owner or lessee is unknown, resides out of this
state, departs this state, cannot after due diligence be found within this
state, or conceals himself or herself so as to avoid service, notice of the
proceedings shall be published once a week for two weeks in the newspaper in
which the sheriff´s advertisements are published. Such publication shall
be deemed notice to any and all persons having an interest in or right affected
by such proceeding and from any sale of the property resulting therefrom but
shall not constitute notice to any person having a duly recorded security
interest in or lien upon such property and required to be served under this Code
section unless that person is unknown, resides out of this state, departs this
state, cannot after due diligence be found within this state, or conceals
himself or herself to avoid service. An owner of or interest holder in the
property may file an answer asserting a claim against the property in the action
in rem. Any such answer shall be filed within 30 days after the service of the
summons and complaint. Where service is made by publication and personal
service has not been made, an owner or interest holder shall file an answer
within 30 days of the date of final publication. An answer shall be verified by
the owner or interest holder under penalty of perjury. In addition to complying
with the general rules applicable to an answer in civil actions, the answer
shall set forth:
(1)
The caption of the proceedings as set forth in the complaint and the name of the
claimant;
(2)
The address at which the claimant will accept mail;
(3)
The nature and extent of the claimant´s interest in the
property;
(4)
The date, identity of transferor, and circumstances of the claimant´s
acquisition of the interest in the property;
(5)
The specific provision of this Code section relied on in asserting that the
property is not subject to forfeiture;
(6)
All essential facts supporting each assertion; and
(7)
The precise relief sought.
If
at the expiration of the period set forth in this subsection no answer has been
filed, the court shall order the disposition of the seized property as provided
for in this Code section. If an answer is filed, a hearing must be held within
60 days after service of the complaint unless continued for good cause and must
be held by the court without a jury. If the court determines that a claimant
defending the complaint knew or by the exercise of ordinary care should have
known that the property was to be used for an unlawful purpose subjecting it to
forfeiture under this Code section, the court shall order the disposition of the
seized property as provided in this Code section and that claimant shall have no
claim upon the property or proceeds from the sale thereof.
(f)(1)
When property is forfeited under this Code section, the judge of the superior
court in the county where the seizure was made or in the county in which it can
be proven that the crime was committed may dispose of the property by issuing an
order to:
(A)
Retain it for official use by any agency of this state or any political
subdivision thereof;
(B)
Sell that which is not required to be destroyed by law and which is not harmful
to the public. The proceeds shall be used for payment of all proper expenses of
the proceedings for forfeiture and sale, including but not limited to the
expenses of seizure, maintenance of custody, advertising, and court costs;
or
(C)
Require the sheriff or police chief of the county in which the seizure occurred
to take custody of the property and remove it for disposition in accordance with
law.
(2)(A)
Money, currency, or proceeds which are realized from the sale or disposition of
forfeited property shall after satisfaction of the interest of secured parties
and after payment of all costs vest in the local political subdivision whose law
enforcement officers seized it. If the property was seized by a municipal law
enforcement agency, then the money, currency, or proceeds realized from the sale
or disposition of the property shall vest in that municipality. If the property
was seized by a county law enforcement agency, then the money, currency, or
proceeds realized from the sale or disposition of the property shall vest in
that county. If the property was seized by joint action of a county law
enforcement agency and a municipal law enforcement agency, then the money,
currency, or proceeds realized from the sale or disposition of the property
shall vest in that county and that municipality and shall be divided equally
between the county and municipality. If the property was seized by a state law
enforcement agency, then the money, currency, or proceeds realized from the sale
or disposition of the property shall vest in the county where the condemnation
proceedings are filed. Except as otherwise provided in subparagraph (B) of
paragraph (1) of this subsection for payment of all costs, the local government
in which the money, currency, or proceeds realized from the forfeited property
vests shall expend or use such funds or proceeds received for any official law
enforcement purpose except for the payment of salaries or rewards to law
enforcement personnel, at the discretion of the chief officer of the local law
enforcement agency, or to fund victim-witness assistance programs. Such property
shall not be used to supplant any other local, state, or federal funds
appropriated for staff or operations.
(B)
Any local law enforcement agency receiving property under this subsection shall
submit an annual report to the local governing authority. The report shall be
submitted with the agency´s budget request and shall itemize the property
received during the fiscal year and the utilization made thereof.
10-1-359.
The
General Assembly finds that this article is a matter of state-wide concern.
This article supersedes and preempts all rules, regulations, codes, ordinances,
and other laws adopted by any county, municipality, consolidated government, or
other local governmental agency regarding secondary metal recyclers and the sale
or purchase of regulated metal property."
SECTION
5.
Code
Section 16-8-12 of the Official Code of Georgia Annotated, relating to penalties
for violation of Code Sections 16-8-2 through 16-8-9, is revised in subsection
(a) by striking "or" at the end of paragraph (7), by replacing the period with
"; or" at the end of paragraph (8), and by adding a new paragraph to read as
follows:
"(9)
Notwithstanding the provisions of paragraph (1) of this subsection, if the
property of the theft was ferrous metals or regulated metal property, as such
terms are defined in Code Section 10-1-350, by imprisonment for not less than
one nor more than five years, a fine of not more than $5,000.00, or
both."
SECTION
6.
Chapter
1 of Title 46 of the Official Code of Georgia Annotated, relating to general
provisions for public utilities and public transportation, is amended by adding
a new Code section to read as follows:
"46-1-6.
(a)
Upon the application of the president or resident executive officer of any
publicly, privately, or cooperatively owned utility operating and doing business
in this state as a utility, the Governor may appoint one or more persons as
special officers for the protection of the property and interest of such
corporation, with power to make arrests, provided that such special officers
shall be paid by the corporation applying for such appointment; and provided,
further, that such special officers shall not receive any compensation from this
state or any county thereof.
(b)
All special officers appointed and commissioned as provided for in this Code
section shall have throughout this state all the powers, duties, and
responsibilities of sheriffs or other law enforcement officers of this state
while engaged in the performance of their duties as such special officers,
except the serving of civil processes.
(c)
Every special officer appointed and commissioned under this Code section shall
be a resident of the United States and of good character. Every such officer
shall be required to post a good and sufficient bond payable to the State of
Georgia in the sum of $1,000.00, conditioned on the faithful performance of his
or her duties.
(d)
All appointments and commissions issued under this Code section shall continue
so long as the special officer is employed in such capacity by the publicly,
privately, or cooperatively owned utility. The authority of any person
appointed under this Code section shall immediately cease whenever such person
ceases to be an agent, servant, or employee of the utility applying for the
appointment or no longer serves as a special officer of such
utility.
(e)
Whenever any publicly, privately, or cooperatively owned utility no longer
requires the services of any special officer so appointed, it shall file written
notice to that effect in the offices of the Governor and the Secretary of
State.
(f)
The appointment and commission of a special officer may be revoked at any time
by the Governor, with or without written notice by the president or resident
executive officer of the publicly, privately, or cooperatively owned utility
applying for the appointment and commission.
(g)
All criminal processes served by a special officer shall be returned by the
officer to the county from which the same originated."
SECTION
7.
All
laws and parts of laws in conflict with this Act are repealed.