HB-5843, As Passed House, December 13, 2012HB-5843, As Passed Senate, December 13, 2012

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

HOUSE BILL NO. 5843

 

 

 

 

 

 

 

 

 

 

 

 

 

     A bill to prohibit organized retail crime and to provide

 

penalties for that crime; to provide for forfeiture of and

 

restitution for stolen retail merchandise in certain circumstances;

 

to create the organized retail crime advisory board and to

 

prescribe its powers and duties; and to provide for the

 

administration of this act.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 1. This act shall be known and may be cited as the

 

"organized retail crime act".

 

     Sec. 2. It is the intent of the legislature to protect the

 

public health, safety, and welfare of the citizens of the state by

 

recognizing the negative impact of persons who engage in planned,

 

organized, and methodical theft of retail merchandise for resale in

 

unregulated retail commerce, including, but not limited to,


 

medications, infant formula, and pharmaceutical items; the

 

potential use of the proceeds of the sale of that merchandise to

 

support other crimes and criminal enterprises and the nature,

 

extent, and impact of those activities upon commerce and public

 

safety; and to take appropriate actions to prevent and punish those

 

who engage in those activities.

 

     Sec. 3. As used in this act:

 

     (a) "Board" means the organized retail crime advisory board

 

created under section 6.

 

     (b) "Department" means the department of state police.

 

     (c) "Organized retail crime" means the theft of retail

 

merchandise from a retail merchant with the intent or purpose of

 

reselling, distributing, or otherwise reentering the retail

 

merchandise in commerce, including the transfer of the stolen

 

retail merchandise to another retail merchant or to any other

 

person personally, through the mail, or through any electronic

 

medium, including the internet, in exchange for anything of value.

 

     (d) "Person" means an individual, sole proprietorship,

 

partnership, cooperative, association, corporation, limited

 

liability company, personal representative, receiver, trustee,

 

assignee, or other entity.

 

     (e) "Retail merchant" means any person that is in the business

 

of selling retail merchandise at retail.

 

     (f) "Retail merchandise" means any new article, product,

 

commodity, item, or component intended to be sold in retail

 

commerce.

 

     Sec. 4. (1) A person is guilty of organized retail crime when


 

that person, alone or in association with another person, does any

 

of the following:

 

     (a) Knowingly commits an organized retail crime.

 

     (b) Organizes, supervises, finances, or otherwise manages or

 

assists another person in committing an organized retail crime.

 

     (c) Removes, destroys, deactivates, or knowingly evades any

 

component of an antishoplifting or inventory control device to

 

prevent the activation of that device or to facilitate another

 

person in committing an organized retail crime.

 

     (d) Conspires with another person to commit an organized

 

retail crime.

 

     (e) Receives, purchases, or possesses retail merchandise for

 

sale or resale knowing or believing the retail merchandise to be

 

stolen from a retail merchant.

 

     (f) Uses any artifice, instrument, container, device, or other

 

article to facilitate the commission of an organized retail crime

 

act.

 

     (g) Knowingly causes a fire exit alarm to sound or otherwise

 

activate, or deactivates or prevents a fire exit alarm from

 

sounding, in the commission of an organized retail crime or to

 

facilitate the commission of an organized retail crime by another

 

person.

 

     (h) Knowingly purchases a wireless telecommunication device

 

using fraudulent credit, knowingly procures a wireless

 

telecommunications service agreement with the intent to defraud

 

another person or to breach that agreement, or uses another person

 

to obtain a wireless telecommunications service agreement with the


 

intent to defraud another person or to breach that agreement.

 

     (2) Organized retail crime is a felony punishable by

 

imprisonment for not more than 5 years or a fine of $5,000.00, or

 

both.

 

     (3) If the true owner of stolen retail merchandise cannot be

 

identified, the retail merchandise, and any proceeds from the sale

 

or resale of that merchandise, is subject to forfeiture to the

 

state for use by the board in the performance of its duties. The

 

court shall order forfeiture of the retail merchandise in the

 

manner and upon terms and conditions as determined by the court to

 

be appropriate.

 

     (4) The court shall order a person who is found guilty of

 

organized retail crime to make restitution to any retail merchant

 

victim in the manner provided in the crime victim's rights act,

 

1985 PA 87, MCL 780.751 to 780.834, and to reimburse the

 

governmental entity for its expenses incurred as a result of the

 

violation of this act in the manner provided in section 1f of

 

chapter IX of the code of criminal procedure, 1927 PA 175, MCL

 

769.1f.

 

     (5) It is not a defense to a charge under this section that

 

the property was not stolen, embezzled, or converted property at

 

the time of the violation if the property was explicitly

 

represented to the accused person as being stolen, embezzled, or

 

converted property.

 

     Sec. 5. This act does not prohibit a person from being charged

 

with, convicted of, or sentenced for any violation of law arising

 

out of the same criminal transaction that violates this act.


House Bill No. 5843 as amended December 13, 2012

 

     Sec. 6. (1) There is created within the department of state

 

police an organized retail crime advisory board. The board shall

 

consist of the following members:

 

     (a) One member who is a county prosecuting attorney or an

 

assistant county prosecuting attorney.

 

     (b) One member who is a representative of <<a city, village,

or township police department or of a county sheriff department>>.

 

     (c) The state attorney general or his or her designated

 

representative.

 

     (d) One member who is recommended by the Michigan retailers

 

association.

 

     (e) One member who is a member of the general public.

 

     (f) The director of the department of state police or his or

 

her designated representative.

 

     (2) All members of the board, other than the attorney general

 

and the director of the department of state police, shall be

 

appointed by the governor by and with the advice and consent of the

 

senate for terms of 4 years.

 

     (3) A vacancy on the board shall be filled in the same manner

 

as the original appointment for the remainder of any unexpired

 

term.

 

     (4) The duties of the board shall be to develop a database of

 

organized retail crimes, to compile annual statistics on organized

 

retail crime acts, to recommend actions to be taken by the

 

department and law enforcement to further combat organized retail

 

crime, and to submit an annual report to the director of the

 

department on the effectiveness of this act in reducing organized

 

retail crime.


House Bill No. 5843 as amended December 13, 2012

 

     (5) The director of the department of state police or his or

 

her designee shall serve as chairperson of the board. The board

 

shall meet not less often than 4 times each year. Special meetings

 

may be called by the chairperson, or upon written request of not

 

fewer than 3 board members. Meetings shall be held at a location

 

designated by the chairperson.

 

     (6) The board shall keep minutes of its proceedings. A record

 

of board action and business shall be made and maintained.

 

     (7) The board members shall not be compensated for their

 

service but may be reimbursed for their actual and reasonable

 

expenses.

 

     (8) The board shall not retain a staff.

 

     (9) The business performed by the board shall be conducted at

 

a public meeting of the board held in compliance with the open

 

meetings act, 1976 PA 267, MCL 15.261 to 15.275.

 

     (10) A writing prepared, owned, used, in the possession of, or

 

retained by the board in the performance of an official function

 

shall be made available to the public in compliance with the

 

freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.

 

     Sec. 7. This act shall be administered by the director of the

 

department.

 

     Enacting section 1. This act takes effect <<March 31>>, 2013.