BILL REQ. #:  S-0774.1 

Read first time 01/29/13.   Referred to Committee on Law & Justice.

     AN ACT Relating to metal theft; amending RCW 9A.48.100, 9A.56.030, 9A.56.040, 19.290.020, and 19.290.070; adding new sections to chapter 19.290 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 9A.48.100 and 1984 c 273 s 4 are each amended to read as follows:
     For the purposes of RCW 9A.48.070 through 9A.48.090 inclusive:
     (1) "Physical damage", in addition to its ordinary meaning, shall include:
     (a) The total or partial alteration, damage, obliteration, or erasure of records, information, data, computer programs, or their computer representations, which are recorded for use in computers or the impairment, interruption, or interference with the use of such records, information, data, or computer programs, or the impairment, interruption, or interference with the use of any computer or services provided by computers((. "Physical damage" also includes));
     (b) Any diminution in the value of any property as the consequence of an act; and
     (c) The cost to repair.
     (2) If more than one item of property is physically damaged as a result of a common scheme or plan by a person and the physical damage to the property would, when considered separately, constitute mischief in the third degree because of value, then the value of the damages may be aggregated in one count. If the sum of the value of all the physical damages exceeds two hundred fifty dollars, the defendant may be charged with and convicted of malicious mischief in the second degree.

Sec. 2   RCW 9A.56.030 and 2012 c 233 s 2 are each amended to read as follows:
     (1) A person is guilty of theft in the first degree if he or she commits theft of:
     (a) Property or services which exceed(s) five thousand dollars in value other than a firearm as defined in RCW 9.41.010;
     (b) Property of any value, other than a firearm as defined in RCW 9.41.010 or a motor vehicle, taken from the person of another;
     (c) A search and rescue dog, as defined in RCW 9.91.175, while the search and rescue dog is on duty; or
     (d) Metal wire, taken from a city, public service company, as defined in RCW 80.04.010, or a consumer-owned utility, as defined in RCW 19.280.020, and the costs of the damage to the city's, public service company's, or consumer-owned utility's property exceed five thousand dollars in value.
     (2) Theft in the first degree is a class B felony.

Sec. 3   RCW 9A.56.040 and 2012 c 233 s 3 are each amended to read as follows:
     (1) A person is guilty of theft in the second degree if he or she commits theft of:
     (a) Property or services which exceed(s) seven hundred fifty dollars in value but does not exceed five thousand dollars in value, other than a firearm as defined in RCW 9.41.010 or a motor vehicle;
     (b) A public record, writing, or instrument kept, filed, or deposited according to law with or in the keeping of any public office or public servant;
     (c) Metal wire, taken from a city, public service company, as defined in RCW 80.04.010, or a consumer-owned utility, as defined in RCW 19.280.020, and the costs of the damage to the city's public service company's, or consumer-owned utility's property exceed seven hundred fifty dollars but does not exceed five thousand dollars in value; or
     (d) An access device.
     (2) Theft in the second degree is a class C felony.

Sec. 4   RCW 19.290.020 and 2008 c 233 s 2 are each amended to read as follows:
     (1) At the time of a transaction, every scrap metal business doing business in this state shall produce wherever that business is conducted an accurate and legible record of each transaction involving private metal property or nonferrous metal property. This record must be written in the English language, documented on a standardized form or in electronic form, and contain the following information:
     (a) The signature of the person with whom the transaction is made;
     (b) The time, date, location, and value of the transaction;
     (c) The name of the employee representing the scrap metal business in the transaction;
     (d) The name, street address, and telephone number of the person with whom the transaction is made;
     (e) The license plate number and state of issuance of the license plate on the motor vehicle used to deliver the private metal property or nonferrous metal property subject to the transaction;
     (f) A description of the motor vehicle used to deliver the private metal property or nonferrous metal property subject to the transaction;
     (g) The current driver's license number or other government-issued picture identification card number of the seller or a copy of the seller's government-issued picture identification card; ((and))
     (h) A description of the predominant types of private metal property or nonferrous metal property subject to the transaction, including the property's classification code as provided in the institute of scrap recycling industries scrap specifications circular, 2006, and weight, quantity, or volume; and
     (i) For nonferrous metal, a copy of the seller's valid nonferrous metal permit.
     (2) For every transaction that involves private metal property or nonferrous metal property, every scrap metal business doing business in the state shall require the person with whom a transaction is being made to sign a declaration. The declaration may be included as part of the transactional record required under subsection (1) of this section, or on a receipt for the transaction. The declaration must state substantially the following:
     "I, the undersigned, affirm under penalty of law that the property that is subject to this transaction is not to the best of my knowledge stolen property."
     The declaration must be signed and dated by the person with whom the transaction is being made. An employee of the scrap metal business must witness the signing and dating of the declaration and sign the declaration accordingly before any transaction may be consummated.
     (3) The record and declaration required under this section must be open to the inspection of any commissioned law enforcement officer of the state or any of its political subdivisions at all times during the ordinary hours of business, or at reasonable times if ordinary hours of business are not kept, and must be maintained wherever that business is conducted for one year following the date of the transaction.

Sec. 5   RCW 19.290.070 and 2008 c 233 s 7 are each amended to read as follows:
     (1) It is a gross misdemeanor under chapter 9A.20 RCW for:
     (((1))) (a) Any person to deliberately remove, alter, or obliterate any manufacturer's make, model, or serial number, personal identification number, or identifying marks engraved or etched upon an item of private metal property, nonferrous metal property, or commercial metal property in order to deceive a scrap metal business;
     (((2))) (b) Any scrap metal business to enter into a transaction to purchase or receive any private metal property, nonferrous metal property, or commercial metal property where the manufacturer's make, model, or serial number, personal identification number, or identifying marks engraved or etched upon the property have been deliberately and conspicuously removed, altered, or obliterated;
     (((3))) (c) Any person to knowingly make, cause, or allow to be made any false entry or misstatement of any material matter in any book, record, or writing required to be kept under this chapter;
     (((4))) (d) Any scrap metal business to enter into a transaction to purchase or receive private metal property, nonferrous metal property, or commercial metal property from any person under the age of eighteen years or any person who is discernibly under the influence of intoxicating liquor or drugs;
     (((5))) (e) Any scrap metal business to enter into a transaction to purchase or receive private metal property, nonferrous metal property, or commercial metal property with anyone whom the scrap metal business has been informed by a law enforcement agency to have been convicted of a crime involving drugs, burglary, robbery, theft, or possession of or receiving stolen property, manufacturing, delivering, or possessing with intent to deliver methamphetamine, or possession of ephedrine or any of its salts or isomers or salts of isomers, pseudoephedrine or any of its salts or isomers or salts of isomers, or anhydrous ammonia with intent to manufacture methamphetamine within the past ten years whether the person is acting in his or her own behalf or as the agent of another;
     (((6))) (f) Any person to sign the declaration required under RCW 19.290.020 knowing that the private metal property or nonferrous metal property subject to the transaction is stolen. The signature of a person on the declaration required under RCW 19.290.020 constitutes evidence of intent to defraud a scrap metal business if that person is found to have known that the private metal property or nonferrous metal property subject to the transaction was stolen;
     (((7))) (g) Any scrap metal business to possess private metal property or commercial metal property that was not lawfully purchased or received under the requirements of this chapter; or
     (((8))) (h) Any scrap metal business to engage in a series of transactions valued at less than thirty dollars with the same seller for the purposes of avoiding the requirements of RCW 19.290.030(4).
     (2) It is a class C felony under chapter 9A.20 RCW for:
     (a) Any person who does not have a valid nonferrous metal permit to enter into a nonferrous metal material transaction with a scrap metal business.
     (b) Any person who is not acting on behalf of a commercial enterprise to sell or trade nonferrous metal material.
     (c) Any person representing a scrap metal business to enter into a transaction for nonferrous metal material with a person who does not have a valid nonferrous metal permit.

NEW SECTION.  Sec. 6   A new section is added to chapter 19.290 RCW to read as follows:
     (1) The sheriff of each county must issue a nonferrous metal permit if the applicant: (a) Has a fixed residence or business in the sheriff's county; (b) has not been convicted of a crime related to metal theft; (c) provides a description of the type of nonferrous metal he or she intends to sell and how he or she intends to acquire the nonferrous metal; and (d) provides his or her name, street address, telephone number, and current driver's license or other government-issued picture identification card.
     (2) The attorney general must prescribe, consistent with this chapter, a standard application form and a standard permit form to be used by sheriffs. The permit form must contain, at a minimum, the date of issuance and the name and address of the permit holder. The permit must be valid for one year from the date of issuance. The sheriff must not charge an application fee in excess of twenty dollars, and must retain a copy of any permit issued.

NEW SECTION.  Sec. 7   A new section is added to chapter 19.290 RCW to read as follows:
     A scrap metal business must not enter into a transaction for any nonferrous metal material with a person who does not have a nonferrous metal permit.

NEW SECTION.  Sec. 8   A new section is added to chapter 19.290 RCW to read as follows:
     (1) The following are subject to seizure and forfeiture and no property right exists in them:
     (a) All personal property including, but not limited to, any item, object, tool, substance, device, weapon, machine, vehicle of any kind, money, security, or negotiable instrument, which has been or was actually employed as an instrumentality in the commission of, or in aiding or abetting in the commission of any violation of this chapter, or which was furnished or was intended to be furnished by any person in the commission of, as a result of, or as compensation for the commission of, any violation of this chapter, or which was acquired in whole or in part with proceeds traceable to the commission of any violation of this chapter.
     (b) All real property, including any right, title, and interest in the whole of any lot or tract of land, and any appurtenances or improvements which are being used with the knowledge of the owner for the transaction of nonferrous metal materials in violation of this chapter. However:
     (i) No property may be forfeited pursuant to this subsection, to the extent of the interest of an owner, by reason of any act or omission committed or omitted without the owner's knowledge or consent; and
     (ii) A forfeiture of real property encumbered by a bona fide security interest is subject to the interest of the secured party if the secured party, at the time the security interest was created, neither had knowledge of nor consented to the act or omission.
     (2)(a) Real property subject to forfeiture under this chapter may be seized by any board inspector or law enforcement officer of this state upon process issued by any superior court having jurisdiction over the property. Seizure of real property must include the filing of a lis pendens by the seizing agency. Real property seized under this section must not be transferred or otherwise conveyed until ninety days after seizure or until a judgment of forfeiture is entered, whichever is later. However, real property seized under this section may be transferred or conveyed to any person or entity who acquires title by foreclosure or deed in lieu of foreclosure of a security interest. A forfeiture of property encumbered by a bona fide security interest is subject to the interest of the secured party if at the time the security interest was created, the secured party neither had knowledge of nor consented to the commission of a violation of this chapter.
     (b) Personal property subject to forfeiture under this chapter may be seized by any law enforcement officer of this state upon process issued by any superior court having jurisdiction over the property. Seizure of personal property without process may also be made if:
     (i) The seizure is incident to an arrest or a search under a search warrant;
     (ii) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding;
     (iii) A law enforcement officer has probable cause to believe that the property is directly dangerous to health or safety; or
     (iv) The law enforcement officer has probable cause to believe that the property was used or is intended to be used in the commission of a felony.
     (3) In the event of seizure pursuant to subsection (2) of this section, proceedings for forfeiture are deemed commenced by the seizure. The law enforcement agency under whose authority the seizure was made must cause notice to be served within fifteen days following the seizure on the owner of the property seized and the person in charge thereof and any person having any known right or interest therein, including any community property interest, of the seizure and intended forfeiture of the seized property. Service of notice of seizure of real property must be made according to the rules of civil procedure. However, the state may not obtain a default judgment with respect to real property against a party who is served by substituted service absent an affidavit stating that a good faith effort has been made to ascertain if the defaulted party is incarcerated within the state, and that there is no present basis to believe that the party is incarcerated within the state. Notice of seizure in the case of property subject to a security interest that has been perfected by filing a financing statement in accordance with chapter 62A.9A RCW, or a certificate of title, must be made by service upon the secured party or the secured party's assignee at the address shown on the financing statement or the certificate of title. The notice of seizure in other cases may be served by any method authorized by law or court rule including but not limited to service by certified mail with return receipt requested. Service by mail is deemed complete upon mailing within the fifteen-day period following the seizure.
     (4) If a person does not notify the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of items specified in this chapter within forty-five days of the service of notice from the seizing agency in the case of personal property and ninety days in the case of real property, the item seized is deemed forfeited. The community property interest in real property of a person whose spouse or domestic partner committed a violation giving rise to seizure of the real property may not be forfeited if the person did not participate in the violation.
     (5) If a person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of the seized items within forty-five days of the service of notice from the seizing agency in the case of personal property and ninety days in the case of real property, the person or persons must be afforded a reasonable opportunity to be heard as to the claim or right. The notice of claim may be served by any method authorized by law or court rule including, but not limited to, service by first-class mail. Service by mail is deemed complete upon mailing within the forty-five day period following service of the notice of seizure in the case of personal property and within the ninety-day period following service of the notice of seizure in the case of real property. The hearing must be before the chief law enforcement officer of the seizing agency or the chief law enforcement officer's designee, except where the seizing agency is a state agency as defined in RCW 34.12.020(4), the hearing must be before the chief law enforcement officer of the seizing agency or an administrative law judge appointed under chapter 34.12 RCW, except that any person asserting a claim or right may remove the matter to a court of competent jurisdiction. Removal of any matter involving personal property may only be accomplished according to the rules of civil procedure. The person seeking removal of the matter must serve process against the state, county, political subdivision, or municipality that operates the seizing agency, and any other party of interest, in accordance with RCW 4.28.080 or 4.92.020, within forty-five days after the person seeking removal has notified the seizing law enforcement agency of the person's claim of ownership or right to possession. The court to which the matter is to be removed must be the district court when the aggregate value of personal property is within the jurisdictional limit set forth in RCW 3.66.020. A hearing before the seizing agency and any appeal therefrom must be under Title 34 RCW. In all cases, the burden of proof is upon the law enforcement agency to establish, by a preponderance of the evidence, that the property is subject to forfeiture.
     (6) When property is forfeited under this chapter the seizing law enforcement agency may:
     (a) Retain it for official use or upon application by any law enforcement agency of this state release such property to such agency for the exclusive use of enforcing the criminal law;
     (b) Sell that which is not required to be destroyed by law and which is not harmful to the public.
     (7) By January 31st of each year, remit to the state treasurer an amount equal to ten percent of the net proceeds of any property forfeited during the preceding calendar year. Money remitted must be deposited in the state general fund.
     (a) The net proceeds of forfeited property is the value of the forfeitable interest in the property after deducting the cost of satisfying any bona fide security interest to which the property is subject at the time of seizure; and in the case of sold property, after deducting the cost of sale, including reasonable fees or commissions paid to independent selling agents.
     (b) The value of sold forfeited property is the sale price. The value of retained forfeited property is the fair market value of the property at the time of seizure, determined when possible by reference to an applicable commonly used index, such as the index used by the department of licensing for valuation of motor vehicles. A seizing agency may use, but need not use, an independent qualified appraiser to determine the value of retained property. If an appraiser is used, the value of the property appraised is net of the cost of the appraisal. The value of destroyed property and retained firearms or illegal property is zero.
     (c) Retained property and net proceeds not required to be paid to the state treasurer, or otherwise required to be spent under this section, must be retained by the seizing law enforcement agency exclusively for the expansion and improvement of law enforcement activity. Money retained under this section may not be used to supplant preexisting funding sources.

NEW SECTION.  Sec. 9   A new section is added to chapter 19.290 RCW to read as follows:
     (1) The Washington wire theft task force is established.
     (2) The task force shall consist of representatives of local law enforcement and prosecution agencies representing the two most populous counties in the state.
     (3) The wire theft task force has the following duties:
     (a) Investigate and prosecute wire theft;
     (b) Compile annual data regarding the number of wire thefts and property damage throughout the state;
     (c) Estimate the funds needed to hire sufficient investigators to respond to wire thefts and prosecute;
     (d) Analyze the various methods of combating the problem of wire theft, which may include theft alert systems;
     (e) Develop and implement a plan of operation;
     (f) Propose state and regional policies regarding the regulation of wire theft; and
     (g) Report any findings to the Washington association of sheriffs and police chiefs by December 1, 2015.