Bill H.1474

HOUSE DOCKET, NO. 1535 FILED ON: 1/17/2013

HOUSE . . . . . . . . . . . . . . . No. 1474

By Mr. Linsky of Natick, a petition (accompanied by bill, House, No. 1474) of David Paul Linsky, Chris Walsh and James M. Murphy relative to the criminal penalties for organized retail theft. The Judiciary.

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE, NO. 3330 OF 2011-2012.]

The Commonwealth of Massachusetts

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In the Year Two Thousand Thirteen

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An Act to improve criminal laws relative to organized retail theft.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Chapter 266 of the General Laws, as so appearing in the 2010 Official Edition, is hereby amended by inserting the following new section:-

Section 30B. Unlawful Use of Theft Detection Shielding or Deactivation Devices

A person is guilty of unlawful distribution of a theft detection shielding device when he knowingly manufactures, sells, offers for sale or distributes in any way laminated or a coated bag or other devise intended to shield merchandise from detection by an electronic or magnetic theft detector.

A person is guilty of unlawful possession of a theft detection shielding device when he knowingly possesses any laminated or coated bags or devices intended to shield merchandise from detection by an electronic or magnetic theft detector, with the intent to commit (or aid or abet) theft.

A person is guilty of unlawful possession of a theft detection device deactivator or remover when he knowingly possesses any tool or device designed or adapted to allow, or is capable of allowing, the deactivation, or removal from any merchandise, of any theft detection device, with the intent to use such tool or device to deactivate any theft detection device on, or to remove any theft detection device from, any merchandise without the permission of the merchant or person owning or lawfully holding said merchandise.

A person is guilty of unlawful distribution of a theft detection device deactivator or remover when he knowingly manufacturers, sells, offers for sale or distributes in any way tool or device designed or adapted to allow, or capable of allowing, the deactivation, or removal from any merchandise, of any theft detection device without the permission of the merchant or person owning or lawfully holding said merchandise.

A person is guilty of unlawful deactivation or removal of a theft detection device when he intentionally deactivates with intent to steal in a retail establishment a theft detection device on, or removes a theft detection device from, merchandise prior to purchase.

A violation of this Act shall be punished for a first offense by imprisonment in the house of correction for not more than two and one half years or by a fine of not more than one thousand dollars or by both such fine and imprisonment, and for a second or subsequent offense by imprisonment in the state prison for not more than five years, or by a fine of not more than twenty-five thousand dollars or by both such fine and imprisonment.

The activation of an anti-shoplifting or inventory control device as a result of a person exiting the establishment or a protected security device within the area within the establishment shall constitute reasonable cause for the detention of the person so exiting by the owner or operator of the establishment or by an agent or employee of the owner or operator, provided notice has been posted to advise the patrons that the establishment utilizes anti-shoplifting or inventory control devices. Each such detention shall be made only in a reasonable manner and only for a reasonable period of time sufficient for any inquiry into the circumstances surrounding the activation of the device and/or for the recovery of goods. Such taking into custody and detention by a law enforcement officer, security officer, merchant, merchant's employee or agent, if done in compliance with all the requirements of the foregoing subsection, shall not render such law enforcement officer, security officer, merchant, merchant's employee or agent, criminally or civilly liable, including any liability for false arrest, false imprisonment, unlawful detention, malicious prosecution, intentional infliction of emotional distress or defamation.

SECTION 2. Said Chapter 266 of the General Laws, as so appearing is hereby amended by inserting the following new section:-

Section 30C. Theft Using Emergency Exit to Avoid Apprehension or Detection

A person commits theft by emergency exit if that person intentionally takes possession of, carries away, transfer or causes to be transferred, any merchandise displayed, held, stored or offered by sale by any store or other retail mercantile establishment with the intent of depriving the merchant of the possession, use of benefit of such merchandise or converting the same to the use of such person without paying to the merchant the value thereof and the person leaves a store by use of a designated emergency exit.

A violation of this Act shall be punished for a first offense by a fine of not less than two hundred and fifty dollars and not more than five hundred dollars, and for a second offense by imprisonment in the house of correction for not more than two and one half years or a fine not to exceed two thousand dollars, or by both fine and imprisonment and for subsequent offenses by imprisonment in the state prison for not more than five years, or by a fine of not more than five thousand dollars or by both such fine and imprisonment.

SECTION 3. Section 60 of chapter 266 of the general laws, as so appearing, is hereby amended by striking out the entire section and inserting in place thereof the following new section: -

Section 60. Whoever buys, receives or aids in the concealment of stolen or embezzled property, knowing it to have been stolen or embezzled, or whoever with intent to defraud buys, receives or aids in the concealment of property, knowing it to have been obtained from a person by a false pretense of carrying on business in the ordinary course of trade or whoever obtains or exerts control over property in the custody of any law enforcement agency, or any individual acting on behalf of a law enforcement agency, which is explicitly represented to him by any law enforcement officer or any individual acting on behalf of a law enforcement agency as being stolen and who intends to deprive its rightful owner permanently of the use and enjoyment of said property shall, if the value of such property does not exceed two hundred and fifty dollars, be punished for a first offense by imprisonment in a jail or house of correction for not more than two and one half years, or by a fine of not more than one thousand dollars; or if for a second or subsequent offense, or if the value of such property exceeds two hundred and fifty dollars, be punished by imprisonment in a state prison for not more than five years, or by a fine of five thousand dollars, or by both a fine and imprisonment. It shall not be a defense that the property was obtained by means other than through the commission of a theft offense if the property was explicitly represented to the accused as having been obtained through the commission of a theft offense.

SECTION 4. Said Chapter 266 of the General Laws, as so appearing is hereby amended by inserting the following new section:-

Section 30D. Enhanced Theft – Receiving & Concealing

It is not a defense to a charge of receiving stolen property that the property was obtained by means other than through the commission of a theft offense if the property was explicitly represented to the accused person as being obtained through the commission of a theft offense.

SECTION 5. Said Chapter 266 of the General Laws, as so appearing is hereby amended by inserting the following new section:-

Section 30E. Fraudulent/Bogus Receipts & Universal Product Codes

A person who, with intent to cheat or defraud a retailer, possesses, uses, utters, transfers, makes, alters, counterfeits, or reproduces a retail sales or return receipt, price ticket or a Universal Product Code Label, shall be punished for a first offense by imprisonment in the house of correction for not more than two and one half years or by a fine of not more than five hundred dollars or by both such fine and imprisonment, and for a second offense shall be punished by imprisonment in a house of corrections for not more than two and one half years or by a fine of not more than two thousand dollars or by both fine and imprisonment and subsequent offenses shall be punished by imprisonment in the state prison for not more than five years, or by a fine of not more than ten thousand dollars or by both such fine and imprisonment.

A person who, with intent to cheat or defraud a retailer, possesses *fifteen (15) or more fraudulent retail sales or return receipts, price tickets, Universal Product Code Labels or possesses the device which purpose is to manufacture fraudulent retail sales receipts or Universal Product Code Labels, shall be punished by imprisonment in the state prison for not more than five years, or by a fine of not more than ten thousand dollars or by both such fine and imprisonment.

SECTION 6. Chapter 266 of the General Laws, as so appearing, is hereby amended by inserting the following new section:-

Section 60B. Pattern of Criminal Offenses

Venue for criminal actions to enforce the provisions of this Section, including criminal actions with respect to each of the alleged offenses included within a pattern of criminal offenses, as defined in this Section, that have allegedly been committed, attempted or conspired to be committed by a person or persons, shall be in any county in which at least one alleged criminal offense has occurred that constitutes part of the alleged pattern of criminal offenses, it being the intent of this section that one district court may have jurisdiction over all the conduct, persons and property which are part of, or are directly related to, each and all of the alleged criminal offenses forming part of the alleged pattern of criminal offenses. It is discretionary, not mandatory, to bring all criminal actions in one county when an alleged pattern of criminal offenses involves two or more counties.

Any person who engages in a pattern of criminal offenses in two or more counties in this state or who attempts or conspires with others to engage in a pattern of criminal offenses shall, upon conviction, be punishable by imprisonment in the house of corrections for a term not exceeding two years, or imprisonment in the house of corrections for a term not exceeding one year, or by a fine in an amount not more than twenty-five thousand dollars, or by both such fine and imprisonment. Such punishment shall be in addition to and imprisoned on and after any penalty imposed for any offense involved in the pattern of criminal offenses.

For purposes of this act, “pattern of criminal offenses” means: Two or more criminal offenses are committed that are part of the same plan, scheme, or adventure; or a sequence of two or more of the same criminal offenses are committed and are not separated by an interval of more than thirty (30) days between the first and second offense, the second and third, and so on; or two or more criminal offenses are committed, each proceeding from or having as an antecedent element a single prior incident or pattern of fraud, robbery, burglary, theft, identity theft, receipt of stolen property, false personating, false pretenses, obtaining property by trick or deception, taking a credit or debit card without consent, or the making, transferring or receiving of a false or fraudulent identification card.

Jurisdiction and venue for a pattern of criminal offenses occurring in multiple counties in this state shall be determined as provided in this Section.

SECTION 7. Chapter 266 of the General Laws, as so appearing, is hereby amended by inserting the following new section:-

Section 30F. Organized Retail Crime

Organized retail crime shall be defined as the stealing, embezzlement, or obtaining by fraud, false pretenses, or other illegal means, of retail merchandise in qualities that would not normally be purchased for personal use or consumption for the purpose of reselling or otherwise reentering such retail merchandise in commerce; or the recruitment of persons to undertake, or the coordination, organization, or facilitation of, such stealing, embezzlement, or obtaining by fraud, false pretenses, or other illegal means.

An Organized Retail Crime Ring is defined as three or more persons who associate for the purpose of engaging in the conduct of organized retail crime.

In this section, "retail merchandise" means one or more items of tangible personal property displayed, held, stored, or offered for sale in a retail establishment or merchandise explicitly represented to the person as being stolen retail merchandise.

A person who is guilty of organized retail crime shall be punished by imprisonment in a state prison for a minimum term of not less than 1 year and a maximum term of not more than

10 years, if the aggregated value of the property or services involved in all crimes commitment by the individual or co-conspirators in an organized retail crime ring within the past one hundred and eighty days is at least $2,500 but less than $10,000; or (2) by imprisonment in a state prison of not less than 2 years and a maximum term of not more than 15 years, if the aggregated value of the property or services involved in all crimes commitment by the individual or co-conspirators in an organized retail crime ring within the past one hundred and eighty days is at least $10,000 or more.

For purposes of this section, a series of thefts committed by the same person from one or more mercantile establishments over a period of one hundred eighty days may be aggregated in one count and the sum of the value of all the property shall be the value considered in determining the degree of the organized retail theft involved.

Thefts committed by the same person in different counties that have been aggregated in one county may be prosecuted in any county in which one of the thefts occurred.

Leader of Organized Retail Crime Enterprise.

A person is a leader of an organized retail theft enterprise if he conspires with others as an organizer, supervisor, financier or manager, to engage for profit in a scheme or course of conduct to effectuate the transfer or sale of shoplifted merchandise. A leader of organized retail crime may be punished by a fine of not more than $250,000 or five times the retail value of the merchandise seized at the time of the arrest, whichever is greater and/or imprisonment in state prison for not more than twenty years.

Name:	District/Address:	Date Added:
David Paul Linsky	5th Middlesex	1/17/2013
Chris Walsh	6th Middlesex
James M. Murphy	4th Norfolk