Bill Text: MI HB4699 | 2013-2014 | 97th Legislature | Introduced

---

Bill Title: Crimes; stolen property; public registry for individuals convicted of scrap metal theft violations; create, prescribe the payment of certain regulatory and registration fees, and prescribe penalties. Amends title & secs. 1, 3, 5, 7, 9, 11, 13, 15 & 17 of 2008 PA 429 (MCL 445.421 et seq.).

Spectrum: Slight Partisan Bill (Democrat 2-1)

Status: (Introduced - Dead) 2013-05-08 - Printed Bill Filed 05/08/2013 [HB4699 Detail]

Download: Michigan-2013-HB4699-Introduced.html

---

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

HOUSE BILL No. 4699

 

May 7, 2013, Introduced by Reps. Kowall, Cavanagh and Tlaib and referred to the Committee on Regulatory Reform.

 

     A bill to amend 2008 PA 429, entitled

 

"Nonferrous metal regulatory act,"

 

by amending the title and sections 1, 3, 5, 7, 9, 11, 13, 15, and

 

17 (MCL 445.421, 445.423, 445.425, 445.427, 445.429, 445.431,

 

445.433, 445.435, and 445.437).

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

TITLE

 

     An act to regulate the purchase and sale of certain nonferrous

 

metals; to provide for disclosures by certain persons regarding

 

certain transactions; to require the creation and maintenance of

 

records for certain purposes and for the use of certain databases

 

by certain persons; the scrap metal offenders registry and the

 

creation of the scrap metal offenders registration fund; to require

 

the registration of certain individuals; to prescribe the powers

 

and duties of certain public officials; to prescribe the payment

 

and collection of certain fees; and to provide for penalties and

 

remedies.

 

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

 

"ferrous metal and nonferrous metal regulatory regulation and scrap

 

metal offenders registration act".

 

     Sec. 3. As used in this act:

 

     (a) "Dealer" means any person that is not a first purchaser

 

who purchases ferrous metal, nonferrous metals metal, or both, from

 

any seller. Dealer includes, but is not limited to, a person,

 

whether or not licensed under state law or local ordinance, that

 

operates a business as a scrap metal recycler, scrap processor,

 

secondhand and junk dealer, or other person who purchases any

 

amount of ferrous metal or nonferrous metal on a regular, sporadic,

 

or 1-time basis. Dealer does not include includes an automotive

 

recycler regulated by and complying with section 217 any of the

 

following:

 

     (i) Section 217c of the Michigan vehicle code, 1949 PA 300, MCL

 

257.217; section MCL 257.217c.

 

     (ii) Section 18 of the motor vehicle service and repair act,

 

1974 PA 300, MCL 257.1318. ; or section

 

     (iii) Section 2 of 1986 PA 119, MCL 257.1352, when engaging in

 

activities that meet listed in the definition of automotive

 

recycler as defined in under section 2a of the Michigan vehicle

 

code, 1949 PA 300, MCL 257.2a.

 

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

 

     (c) (b) "Documentation" means a signed statement that

 

indicates where the person obtained the article, that the person is

 

authorized to sell the article, or other evidence that reasonably

 

demonstrates ownership of the article and the source of the

 

article.

 

     (d) (c) "Ferrous metal" means a metal that contains

 

significant quantities of iron or steel.

 

     (e) (d) "First purchaser" means the first buyer of a

 

manufactured product containing ferrous metal or nonferrous metal

 

in a retail or business-to-business transaction. Persons purchasing

 

ferrous metal or nonferrous metal in violation of this act,

 

automotive recyclers, pawnshops, scrap metal recyclers, and scrap

 

processors are not considered first purchasers.

 

     (f) (e) "Industrial or commercial account" means any a person,

 

operating from a fixed location, that is a seller of ferrous metal

 

or nonferrous metal to a scrap metal recycler pursuant to under a

 

written agreement.

 

     (g) (f) "Nonferrous metal" means a metal that does not contain

 

significant quantities of ferrous metal but contains copper, brass,

 

platinum-based metals, aluminum, bronze, lead, zinc, nickel, or

 

alloys of those metals.

 

     (h) (g) "Person" means an individual, partnership,

 

corporation, limited liability company, joint venture, trust,

 

association, or other legal entity.

 

     (i) (h) "Public fixtures" means articles containing ferrous

 

metal or nonferrous metal that are used or located in areas open to

 

the public and include, but are not limited to, utility access

 

covers, ; street light poles and fixtures, ; road and bridge guard

 

rails, ; highway or street signs, ; water meter covers, ; traffic

 

directional and control signs, ; traffic light signals, ;

 

telecommunications cable, ; utility-related articles, ; and

 

historical markers.

 

     (j) (i) "Record" means a paper, electronic, or other generally

 

accepted method of storing information in a retrievable form.

 

     (k) "Scrap metal" means either or both of the following:

 

     (i) Nonferrous metal in an amount weighing not less than 5

 

pounds.

 

     (ii) Ferrous metal in an amount weighing not less than 100

 

pounds.

 

     (l) "Scrap metal offense" means any crime involving the theft

 

of scrap metal.

 

     (m) "Scrap metal offenders registry" means the public internet

 

website created and maintained under section 11.

 

     (n) (j) "Scrap metal recycler" means a person that purchases

 

ferrous metal, nonferrous metal, or both, that is intended for

 

recycling or reuse, whether regarded as a scrap processor, core

 

buyer, or other similar business operation.

 

     (o) (k) "Scrap processor" means that term as defined in

 

section 3 of 1917 PA 350, MCL 445.403.

 

     (p) (l) "Seller" means any an individual or person that either

 

regularly, sporadically, or on a 1-time basis receives

 

consideration from any other another person from the purchase by a

 

dealer of ferrous metal or nonferrous metal offered by that seller.

 

     Sec. 5. (1) A dealer shall do all of the following:

 

     (a) Produce and maintain records as required under section

 

7(2).

 

     (b) Participate in a database meeting the requirements of

 

section 11.

 

     (b) Check the scrap metal offenders registry to determine

 

whether the seller is a registered offender listed on that website.

 

     (c) Tag and hold any ferrous metal or nonferrous metal as

 

provided for prescribed in section 9.

 

     (d) Pay a seller by a method capable of being traced from the

 

dealer to the seller if the amount of the transaction is more than

 

$200.00. Payment by cash or currency of more than $50.00, $200.00,

 

barter, or trade is not considered a payment that complies with the

 

requirement of this subdivision. Payment of cash in any an amount

 

of more than $200.00 in a transaction involving predominantly

 

copper articles is considered a violation of this subdivision.

 

     (e) In the case of a transaction involving ferrous metal or

 

nonferrous metal, verify that the seller is at least 16 18 years of

 

age.

 

     (f) For each transaction regulated under this act, the

 

purchasing dealer shall collect a regulatory fee of $1.00.

 

     (2) A seller shall do all of the following:

 

     (a) Present to the dealer an operator's or chauffeur's

 

license, military identification card, Michigan identification

 

card, passport, or other government-issued identification

 

containing a photograph and allow the dealer to make a photocopy or

 

electronic copy of the identification.

 

     (b) Allow the dealer to make a thumbprint, to which shall be

 

used only for identification purposes by the dealer and for

 

investigation purposes by a law enforcement agency.

 

     (c) Execute a signed statement indicating that the seller is

 

the owner of, or is otherwise authorized to sell, the ferrous metal

 

or nonferrous metal offered for purchase to the dealer.

 

     (d) Attest to the lack of any criminal convictions or plea

 

agreements involving the theft, conversion, or sale of ferrous

 

metal or nonferrous metals.

 

     Sec. 7. (1) Except as otherwise provided in this subsection, a

 

dealer shall produce and maintain an accurate and legible record of

 

each purchase transaction. The dealer shall maintain the records

 

produced under this section for at least 1 year, shall keep the

 

records in a location that is readily accessible to a local, state,

 

or federal law enforcement agency for inspection during normal

 

business hours, and shall make the records, or copies of those

 

records, available to any local, state, or federal law enforcement

 

agency upon reasonable suspicion of violation of this act.

 

     (2) The record of a purchase transaction regarding ferrous

 

metal or nonferrous metal shall contain all of the following:

 

     (a) The name, address, and identifying number from the

 

seller's operator's or chauffeur's license, military identification

 

card, Michigan identification card, passport, or other government-

 

issued identification containing a photograph. A legible scan or

 

photocopy of the identification is considered satisfactory in

 

fulfilling the satisfies that requirement. of this subdivision. In

 

the case of a repeat seller, a copy of the information may be kept

 

on file with the dealer and be used for future transactions.

 

     (b) The license plate number of the vehicle delivering the

 

ferrous metal or nonferrous metal, or both.

 

     (c) The date and time of the transaction.

 

     (d) A description of the predominant types of metal purchases,

 

made in accordance with the custom of the trade.

 

     (e) The weight, quantity, or volume of metal, made in

 

accordance with the custom of the trade.

 

     (f) The consideration paid and the method of payment.

 

     (g) A signed statement from the seller that the seller is the

 

owner of the metal or is otherwise authorized to sell the metal

 

subject to the transaction.

 

     (h) A thumbprint of the seller.

 

     (3) In the case of a seller that is an industrial or

 

commercial account where in which payment is made by a method

 

capable of being traced from the dealer to the seller and payment

 

is made directly to the business, the dealer is not required to

 

produce the record described in subsection (2) so long as if the

 

personal and business identifying information of the industrial or

 

commercial account seller is on file with the dealer and conforms

 

to a written description of the type of ferrous or nonferrous metal

 

or articles customarily purchased by the dealer from that seller,

 

and the information is periodically reviewed at least every 2 years

 

and validated as current or updated by the dealer.

 

     Sec. 9. (1) A dealer shall tag and hold, for 7 calendar days,

 

any article containing ferrous metal or nonferrous metal, or both,

 

purchased from a seller and that is offered for purchase under any

 

of the following circumstances:

 

     (a) The article has altered or obliterated serial numbers, and

 

the person delivering the article does not have a written receipt

 

or documentation.

 

     (b) Where, If, due to the readily observable identification on

 

the article or due to the type of article, including, but not

 

limited to, public fixtures, the dealer would reasonably be

 

considered to have knowledge that the article is, or was, the

 

property of a governmental entity, and the person delivering the

 

article does not have a written receipt or documentation.

 

     (c) Where, If, due to the identification on the article, the

 

dealer would reasonably be considered to have knowledge that the

 

article is, or was, the property of a business, and the person

 

delivering the article does not have a written receipt or

 

documentation.

 

     (d) The article is patently a commemorative, decorative, or

 

other cemetery-related or apparently ceremonial article, and the

 

person delivering the article does not have a written receipt or

 

documentation.

 

     (e) The article is subject to a notification or bulletin from

 

any law enforcement agency that is received by the dealer and the

 

dealer's representative who is transacting the purchase of the

 

article have received, prior to the purchase of the article.

 

     (f) Where the The article is patently copper utility wiring,

 

whether burned or with sheathing, and the person delivering the

 

article does not have a written receipt or documentation.

 

     (2) The tag and hold requirements of this section require the

 

dealer to also create and maintain the records required under

 

section 7 regarding those articles.

 

     (3) The tag and hold requirements of subsection (1) do not

 

apply to any of the following:

 

     (a) Any An article containing ferrous metal or nonferrous

 

metal, or both, that does not conform to the circumstances

 

described in subsection (1).

 

     (b) Any An article that has been the subject of tag and hold

 

by 1 dealer in compliance with this section if that article is

 

resold directly to another dealer. In addition, any article that

 

was not initially subject to the tag and hold provisions of this

 

section is not thereafter subject to the tag and hold provisions if

 

that article is resold to another dealer.

 

     (4) Except in the case where the seller has specific written

 

documentation that the seller is the owner, agent, or person with

 

authority to possess and sell certain articles, a seller shall not

 

sell or offer for sale, and a dealer shall not purchase, any an

 

article containing ferrous metal, nonferrous metal, or both, that

 

is marked with any a readily observable form of the name, initials,

 

markings, or logo of a governmental entity, utility, cemetery, or

 

railroad; any beer kegs; or any public fixtures. Any sale The sale

 

of any article described in this subsection is subject to the

 

provisions of this act.

 

     (5) Beginning June 30, 2014, no later than the tenth day

 

following the last day of the previous month, a dealer shall remit

 

the fees collected under section 5(1)(f) during the previous month,

 

along with a list of transactions for which the fees were

 

collected, to the department for use and distribution as follows:

 

     (a) Fifty percent shall be retained by the department and

 

shall be expended solely for the administration of the scrap metal

 

offenders registry and website established under section 11 and to

 

ensure dealers' compliance with their duties under section 5.

 

     (b) Fifty percent shall be distributed by the department to

 

the local law enforcement agency serving the location where the

 

transaction occurred for which the regulatory fee was collected,

 

which that local law enforcement agency shall use solely for the

 

purpose of funding law enforcement activities to investigate,

 

prevent, or prosecute ferrous or nonferrous metal theft.

 

     Sec. 11. (1) A dealer shall register with or subscribe to, and

 

maintain that registration or subscription with, an internet-based

 

database available to dealers, law enforcement agencies, and the

 

general public that lists and tracks, at a minimum, thefts of

 

nonferrous metal and articles containing nonferrous metals. The

 

database may be reasonably limited in terms of time and

 

geographical area.

 

     (2) The existing database established by the institute of

 

scrap recycling industries, inc., referred to as the ISRI theft

 

alert system, is considered an appropriate internet-based database.

 

A dealer may register with or subscribe to any other database that

 

provides substantially the same services as the database described

 

in subsection (1).

 

     (1) The department shall create and maintain a public internet

 

website to implement section 5, which shall be known as the scrap

 

metal offenders registry, and make the website available to

 

dealers, law enforcement agencies, and the general public. The

 

public internet website shall contain all of the following

 

information for each individual registered under this section:

 

     (a) The individual's legal name and any aliases, nicknames,

 

ethnic or tribal names, or other names by which the individual is

 

or has been known.

 

     (b) The individual's date of birth.

 

     (c) The address where the individual resides. If the

 

individual does not have a residential address, information under

 

this subsection shall identify the village, city, or township the

 

individual uses in lieu of an address or where the individual

 

spends the majority of his or her time if he or she is homeless.

 

     (d) A brief summary of the individual's convictions for scrap

 

metal offenses regardless of when the conviction occurred.

 

     (e) A complete physical description of the individual.

 

     (f) A photograph of the individual.

 

     (g) An image of the individual's fingerprints.

 

     (h) The text of the provision of law the individual was

 

convicted of committing.

 

     (i) The value of the stolen property involved in each scrap

 

metal offense.

 

     (j) The details of any plea agreement entered into involving a

 

scrap metal offense.

 

     (2) An individual who is convicted of a scrap metal offense or

 

who enters into a plea agreement involving a scrap metal offense

 

shall register with the sheriff's department, local law enforcement

 

agency, or department post with jurisdiction in the local

 

governmental unit in which he or she resides, or not more than 30

 

days after sentencing, changing his or her residence, or being

 

released from imprisonment, whichever occurs earliest, by paying a

 

fee of $50.00 and providing all of the information listed in

 

subsection (1). The individual shall register not more than 1 year

 

after initial registration, and annually each year after that.

 

     (3) Of the money collected by a local law enforcement agency,

 

sheriff's department, or department post from each registration fee

 

prescribed under this section, $30.00 shall be forwarded to the

 

department, which shall deposit the money in the scrap metal

 

offenders registration fund created under subsection (4), and

 

$20.00 shall be retained by the local law enforcement agency,

 

sheriff's department, or department post.

 

     (4) The scrap metal offenders registration fund is created as

 

a separate fund in the department of treasury. The state treasurer

 

shall credit the money received from the payment of the

 

registration fee prescribed under this section to the scrap metal

 

offenders registration fund. Money credited to the fund shall only

 

be used by the department for training concerning, and the

 

maintenance and automation of, the law enforcement database, scrap

 

metal offenders registry, and information required under this

 

section. Money in the scrap metal offenders registration fund at

 

the close of the fiscal year shall remain in the fund and shall not

 

lapse to the general fund.

 

     (5) If an individual required to pay a registration fee under

 

this section is indigent, the registration fee shall be waived for

 

a period of 90 days. The burden is on the individual claiming

 

indigence to prove the fact of indigence to the satisfaction of the

 

local law enforcement agency, sheriff's department, or department

 

post where the individual is reporting.

 

     (6) Payment of the registration fee prescribed under this

 

section shall be made in the form and by means prescribed by the

 

department. Upon payment of the registration fee prescribed under

 

this section, the local law enforcement agency, sheriff's

 

department, or department post where payment was made shall forward

 

verification of the payment to the department in the manner the

 

department prescribes. The department shall revise the scrap metal

 

offenders registry maintained under this section as necessary and

 

shall indicate verification of payment in the law enforcement

 

database under this section.

 

     Sec. 13. (1) A Except as otherwise provided in this

 

subsection, a person who violates section 7(1) or section 9,

 

knowing or having other than section 9(5), who knows or has reason

 

to know that he or she is violating those sections that section is

 

guilty of a misdemeanor punishable by a fine of not more than

 

$500.00 or imprisonment for not more than 93 days, or both. A

 

dealer who fails to remit a regulatory fee collected under section

 

9(5) is guilty of a misdemeanor punishable as follows:

 

     (a) For a first offense, a fine of $1,000.00, and the

 

remittance to the department of the fees the dealer was required,

 

but failed, to remit to the department under section 9(5).

 

     (b) For a second offense, a fine of $3,000.00, and the

 

remittance to the department of the fees the dealer was required,

 

but failed, to remit to the department under section 9(5).

 

     (c) For a third or subsequent offense, imprisonment for not

 

more than 93 days, a fine of $5,000.00, and the remittance to the

 

department of the fees the dealer was required, but failed, to

 

remit to the department under section 9(5).

 

     (2) A person who buys or sells ferrous metal or nonferrous

 

metal articles knowing or having reason to know that they are it is

 

stolen is guilty of a felony punishable by imprisonment for not

 

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

 

for a first offense and is guilty of a felony punishable by

 

imprisonment for not more than 5 years or a fine of not more than

 

$10,000.00, or both, for a second or subsequent offense. A person

 

who buys or sells ferrous or nonferrous metal, or both, from an

 

individual who is registered on the scrap metal offender registry

 

on the date of the most recent listing then publicly available at

 

the time of the transaction is presumed to know that the metal is

 

stolen.

 

     (3) A dealer who fails to collect a regulatory fee as required

 

under section 5(1)(f) is guilty of a misdemeanor punishable by

 

imprisonment for not more than 1 year or a fine of not more than

 

$5,000.00, or both.

 

     (4) A person who is required to register as a scrap metal

 

offender under section 11 and who fails to do so, other than

 

failing to pay the fee required under section 11, is guilty of a

 

misdemeanor punishable by imprisonment for not more than 1 year or

 

a fine of not more than $2,000.00, or both.

 

     (5) An individual who willfully refuses or fails to pay the

 

registration fee prescribed in section 11 within 90 days of the

 

date the individual reports under that section is guilty of a

 

misdemeanor punishable by imprisonment for not more than 90 days.

 

     (6) The court shall revoke the probation of an individual

 

placed on probation who willfully violates section 11.

 

     (7) The court shall revoke the youthful trainee status of an

 

individual assigned to youthful trainee status who willfully

 

violates section 11.

 

     (8) The parole board shall rescind the parole of an individual

 

released on parole who willfully violates section 11.

 

     (9) An individual's failure to register as required by section

 

11 may be prosecuted in the judicial district of any of the

 

following:

 

     (a) The individual's last registered address or residence.

 

     (b) The individual's actual address or residence.

 

     (c) Where the individual was arrested for the violation.

 

     Sec. 15. A person violating who violates this act, knowing or

 

having other than a crime described in section 13, who knows or has

 

reason to know that he or she is violating this act, is responsible

 

for a state civil infraction and may be ordered to pay a civil fine

 

of not more than $5,000.00.

 

     Sec. 17. (1) A person may bring a private cause of action, in

 

a court of competent jurisdiction, for monetary damages suffered

 

from violation of this act by a seller or a dealer, or both.

 

     (2) The court shall may award treble damages for the value of

 

the ferrous metal or nonferrous metal article stolen. The court may

 

award costs regarding any aspect of an action brought under

 

subsection (1). As used in this subsection, "value of the ferrous

 

metal or nonferrous metal article stolen" means the greatest of the

 

following:

 

     (a) The replacement cost of the stolen article.

 

     (b) The cost of repairing the damage caused by the larceny of

 

that article.

 

     (c) The total of subdivisions (a) and (b).