09 LC
29 3601
Senate
Bill 53
By:
Senators Harp of the 29th, Douglas of the 17th, Staton of the 18th, Murphy of
the 27th, Henson of the 41st and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Article 14 of Chapter 1 of Title 10 and Chapter 1 of Title 46 of the
Official Code of Georgia Annotated, relating to secondary metals recyclers and
general provisions for public utilities and public transportation, respectively,
so as to change certain provisions relating to inspection by law enforcement
officers; to provide for forfeiture of certain property and procedure therefor;
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 adding a new Code section to read as
follows:
"10-1-357.5.
(a)
As used in this Code section, the term 'crime' means:
(1)
Theft by taking in violation of Code Section 16-8-2, theft by conversion in
violation of Code Section 16-8-4, or theft by receiving stolen property in
violation of 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;
(2)
Criminal damage to property in the first degree in violation of paragraph (2) of
subsection (a) of Code Section 16-7-22; or
(3)
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 shall be 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 shall be 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 shall
be 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
shall be 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 shall be 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 shall be held within
60 days after service of the complaint unless continued for good cause and shall
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."
SECTION
3.
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
4.
All
laws and parts of laws in conflict with this Act are repealed.