HB-5843, As Passed House, November 28, 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.

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.

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.

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 law enforcement.

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.

(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 January 1, 2013.