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HOUSE DOCKET, NO. 1300        FILED ON: 1/20/2011

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 3330

By Mr. Linsky of Natick, a petition (accompanied by bill, House, No. 3330) of David Paul Linsky and others relative to the criminal penalties for organized retail theft.  The Judiciary. 

 

The Commonwealth of Massachusetts

 

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In the Year Two Thousand Eleven

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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. Section 1 of chapter 101 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by inserting the following words after the definition of ?Deputy director?:- ?Second hand dealer?, any person, either principal or agent who engages in the business in the commonwealth of selling used goods, used wares or used merchandise.

              SECTION 2.  Said section 1 of chapter 101 of the General Laws, as so appearing, is hereby amended by inserting after the word "place," in line 8, the following words: - , including selling goods, wares or merchandise at an unused property market or flea market so-called.

              SECTION 3. Said section 1 of chapter 101, as so appearing,  is hereby further amended by inserting after the word "months," in line 12, the following words: - Provided, however, that a flea market, so called, whether held inside such tent, booth, building or other structure or in the open shall be considered a temporary or transient business.

              SECTION 4.  Said section 1 of chapter 101, as so appearing, is herby further amended by inserting after the last line the following words: -

              ?Unused Property Market? any event at which two (2) or more persons offer personal property for sale or exchange, at which a fee is charged for sale or exchange of personal property, or at which a fee is charged to prospective buyers for admission to the area at which personal property is offered or displayed for sale or exchange; or regardless of the number of persons offering or displaying personal property or the absence of fees at which personal property is offered or displayed for sale or exchange if the event is held more than six (6) times in any twelve (12) month period.

              The term Unused Property Market is interchangeable with and applicable to ?Swap Meet?, ?Indoor Swap Meet?, ?Flea Market?, or other similar terms regardless of whether these events are held inside a building or outside in the open.  The primary characteristic is that these activities involve a series of sales sufficient in number, scope, and character to constitute a regular course of business.

              The term Unused Property Market shall not mean and shall not apply to an event which is organized for the exclusive benefit of any community chest, fund, foundation, association, or corporation organized and operated for religious, educational, or charitable purposes, provided that no part of any admission fee or parking fee charged vendors or prospective purchasers or the gross receipts or net earnings from the sale or exchange of personal property, whether in the form of a percentage of the receipts or earnings, as salary, or otherwise, inures to the benefit of any private shareholder or person participating in the organization or conduct of the event; or any event at which all of the personal property offered for sale or displayed is new, and all persons selling, exchanging or offering or displaying personal property for sale or exchange, are manufacturers or authorized representatives of manufacturers or distributors.

              ?Unused Property Merchant? any person, other than a vendor or merchant with an established retail store in the county, who transports an inventory of goods to a building, vacant lot or other Unused Property Market location and who, at that location, displays the goods for sale and sells the goods at retail or offers the goods for sale at retail, except a person who offers five or less items of the same new and unused merchandise for sale or exchange at an Unused Property Market.

              ?New and Unused Property? tangible personal property that was acquired by the Unused Property Merchant directly from the producer, manufacturer, wholesaler or retailer in the ordinary course of business which has never been used since its production or manufacturing or which is in its original and unopened package or container, if such personal property was so packaged when originally produced or manufactured.  New and Unused Property does not include property the sale of which is already considered "used" under existing federal or state law or regulation.

              ?Baby Food? or ?Infant Formula? any food manufactured, packaged and labeled specifically for sale for consumption by a child under the age of 2. 

              ?Nonprescription Drug? (may also be referred to as ?Over the Counter Drug") any non-narcotic medicine or drug that may be sold without a prescription and is prepackaged for use by the consumer, prepared by the manufacturer or producer for use by the consumer, and should be properly labeled and unadulterated in accordance with the requirements of the state food and drug laws and the federal ?Food, Drug and Cosmetic Act".  The term ?Nonprescription Drug? shall not include herbal products, dietary supplements, botanical extracts or vitamins.

              ?Medical Device? any instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, tool, or other similar or related article, including any component part or accessory, required under federal law to bear the label ?Caution:  Federal law requires dispensing by or on the order of a physician?; or which is defined by federal law as a medical device and which is intended for use in the diagnosis of disease or other conditions or in the cure, mitigation, treatment or prevention of disease in man or animals or is intended to affect the structure or any function of the body of man or animals, which does not achieve any of its principal intended purposes through chemical action within or on the body of man or animals and which is not dependent upon being metabolized for achievement of any of its principal intended purposes.

              SECTION 5.  Said section 18A of chapter 101, as so appearing, is herby replaced by the following words: -

              No Unused Property Merchant shall offer at an Unused Property Market for sale or knowingly permit the sale of Baby Food, Infant Formula, cosmetics or personal care products, or any Nonprescription Drug or Medical Device as defined in this Chapter or in section one of Chapter ninety-four.  This section shall not apply to a person who keeps available for public inspection a written authorization identifying that person as an authorized representative of the manufacturer or distributor of such product, as long as the authorization is not false, fraudulent, or fraudulently obtained.

              Any person violating the provisions of this section shall be punished by a fine of not more than one hundred dollars for each item so offered for sale or sold.

              SECTION 6.  Said chapter 101, as so appearing, is herby amended by inserting the following words after the last line in section 34: -

              Section 35.  Every Unused Property Merchant shall maintain receipts for the purchase of New and Unused Property, as defined above.  Receipts shall contain all of the following information:

              1.              date of the transaction;

              2.              name and address of the person, corporation, or entity from whom the New and Unused Property was acquired;

              3.              an identification and description of the New and Unused Property acquired;

              4.              the price paid for such New and Unused Property;

              It is a violation of this Act for an Unused Property Merchant required to maintain receipts under the provisions contained herein to knowingly:

              1.              falsely create, alter, obliterate or destroy such receipts;

              2.              refuse or fail upon request to make such receipts available for inspection within a period of time which is reasonable under the individual circumstances surrounding such request; provided, however, nothing contained within the provisions of this section shall be construed to require the Unused Property Merchant to possess such receipt on or about his or her person without reasonable notice; or

              3.              fail to maintain the receipts required by this section for at an appropriate time.

              The provisions of this Act shall not apply to:

              1.              the sale of any item regulated by federal, state, or local law, statute, act of legislature, regulation, or ordinance, and sold in compliance with those provisions.

              2.              the sale of a motor vehicle or trailer that is required to be registered or is subject to the certificate of title laws of this state;

              3.              the sale of wood for fuel, ice, or livestock;

              4.              business conducted in any industry or association trade show;

              5.              property, although never used, whose style, packaging or material, clearly indicates that such property was not produced or manufactured within recent times;

              6.              anyone who sells by sample, catalog or brochure for future delivery.

              7.              the sale of arts or crafts or other merchandise by a person who produces such arts or crafts or merchandise or by a person or persons acting on their behalf.

              8.              persons who make sales presentations pursuant to a prior, individualized invitation issued to the consumer by the owner or legal occupant of the premises.

              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 five 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. 

              This Act shall apply to all New and Unused Property purchased or acquired on or after January 1, 2012.

              SECTION 7.  Section 3 of said chapter 101, as appearing in the 2008 Official Edition, is hereby amended in line 1 by inserting after the word ?vendor? the following:-unused property merchant or second hand dealer so called,

              SECTION 8.  Section 3 of said chapter 101, as so appearing, is hereby amended by striking the second sentence and inserting in place thereof the following:-

              Thereupon, upon the payment of a fee, as determined annually by the commissioner of administration under the provision of section three B of chapter seven, the deputy director shall issue to him a state license authorizing him to do business as a transient vendor, unused property merchant or second hand dealer, subject to such local rules and regulations as may be made in a city by the mayor and city council and in a town by the selectmen.  Such fee shall be a dedicated fee which will fund, in part, the record keeping system within the department of public safety as established by section 3A of this chapter.

              SECTION 9. Said chapter 101 is hereby amended by inserting after section 3, as so appearing, the following section: -

              Section 3A.  A transient vendor, unused property merchant or second hand dealer selling merchandise at an unused property market or a flea market, so called, shall be registered with the department of revenue and shall have a sales tax identification number issued by said department.  Such vendor shall keep a record of all purchases and sales of goods, wares and merchandise, including the source from which such merchandise was obtained and shall issue sales receipts for all such sales and such receipts shall contain the name, license number and sales tax identification number of such vendor.  The true name, address, license number and sales tax identification number shall be posted by such vendor at the place where such vendor is conducting business.  Whoever leases or rents space to transient vendors, unused property merchant or second hand dealer at an unused property market or flea market so called, shall maintain a record of the date of such lease or rental, and the name, license number and sales tax identification numbers of each such vendor. Such record shall be a public record and may be viewed or copied upon request during regular business hours.  The Department of Public Safety shall implement a record keeping system for transient vendors and second hand dealers of goods, wares, merchandise acquired and sold at the registered place of business. 

              SECTION 10.  Chapter 266 of the General Laws, as so appearing 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 11.  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 12.  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 13. 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 14.  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 15.  Chapter 266 of the General Laws, as so appearing, is hereby amended by inserting the following new section:-

              Section 60C.  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 16.  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.

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