BILL REQ. #: H-1635.2
State of Washington | 63rd Legislature | 2013 Regular Session |
READ FIRST TIME 02/22/13.
AN ACT Relating to the reduction of metal theft; amending RCW 9A.48.100, 9A.56.030, 9A.56.040, 19.290.010, 19.290.020, 19.290.040, 19.290.070, 18.235.020, and 43.24.150; reenacting and amending RCW 9.94A.515; adding new sections to chapter 19.290 RCW; adding new sections to chapter 43.43 RCW; creating new sections; 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 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 any diminution
in the value of any property as the consequence of an act and the cost
to repair any physical damage;
(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) Commercial metal ((wire, taken from a public service company,
as defined in RCW 80.04.010, or a consumer-owned utility, as defined in
RCW 19.280.020,)) property, nonferrous metal property, or private metal
property, as those terms are defined in RCW 19.290.010, and the costs
of the damage to the ((public service company's or consumer-owned
utility's)) owner'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) Commercial metal ((wire, taken from a public service company,
as defined in RCW 80.04.010, or a consumer-owned utility, as defined in
RCW 19.280.020,)) property, nonferrous metal property, or private metal
property, as those terms are defined in RCW 19.290.010, and the costs
of the damage to the ((public service company's or consumer-owned
utility's)) owner'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 19.290.010 and 2008 c 233 s 1 are each amended to read
as follows:
The definitions in this section apply throughout this chapter
unless the context clearly requires otherwise.
(1) "Commercial account" means a relationship between a scrap metal
business and a commercial enterprise that is ongoing and properly
documented under RCW 19.290.030.
(2) "Commercial enterprise" means a corporation, partnership,
limited liability company, association, state agency, political
subdivision of the state, public corporation, or any other legal or
commercial entity.
(3) "Commercial metal property" means: Utility access covers;
street light poles and fixtures; road and bridge guardrails; highway or
street signs; water meter covers; traffic directional and control
signs; traffic light signals; any metal property marked with the name
of a commercial enterprise, including but not limited to a telephone,
commercial mobile radio services, cable, electric, water, natural gas,
or other utility, or railroad; unused or undamaged building
construction materials consisting of copper pipe, tubing, or wiring, or
aluminum wire, siding, downspouts, or gutters; aluminum or stainless
steel fence panels made from one inch tubing, forty-two inches high
with four-inch gaps; aluminum decking, bleachers, or risers; historical
markers; statue plaques; grave markers and funeral vases; or
agricultural irrigation wheels, sprinkler heads, and pipes.
(4) "Nonferrous metal property" means metal property for which the
value of the metal property is derived from the property's content of
copper, brass, aluminum, bronze, lead, zinc, nickel, and their alloys.
"Nonferrous metal property" does not include precious metals.
(5) "Precious metals" means gold, silver, and platinum.
(6) "Private metal property" means catalytic converters, either
singly or in bundles, bales, or bulk, that have been removed from
vehicles for sale as a specific commodity.
(7) "Record" means a paper, electronic, or other method of storing
information.
(8) "Scrap metal business" means a scrap metal supplier, scrap
metal ((recycling center)) recycler, and scrap metal processor.
(9) "Scrap metal processor" means a person with a current business
license that conducts business from a permanent location, that is
engaged in the business of purchasing or receiving private metal
property, nonferrous metal property, and commercial metal property for
the purpose of altering the metal in preparation for its use as
feedstock in the manufacture of new products, and that maintains a
hydraulic bailer, shearing device, or shredding device for recycling.
(10) "Scrap metal ((recycling center)) recycler" means a person
with a current business license that is engaged in the business of
purchasing or receiving private metal property, nonferrous metal
property, and commercial metal property for the purpose of aggregation
and sale to another scrap metal business and that maintains a fixed
place of business within the state.
(11) "Scrap metal supplier" means a person with a current business
license that is engaged in the business of purchasing or receiving
private metal property or nonferrous metal property for the purpose of
aggregation and sale to a scrap metal ((recycling center)) recycler or
scrap metal processor and that does not maintain a fixed business
location in the state.
(12) "Transaction" means a pledge, or the purchase of, or the trade
of any item of private metal property or nonferrous metal property by
a scrap metal business from a member of the general public.
"Transaction" does not include donations or the purchase or receipt of
private metal property or nonferrous metal property by a scrap metal
business from a commercial enterprise, from another scrap metal
business, or from a duly authorized employee or agent of the commercial
enterprise or scrap metal business.
(13) "Engage in business" means conducting more than five
transactions in a twelve-month period.
(14) "Person" means an individual, domestic or foreign corporation,
limited liability corporation, partnership, trust, unincorporated
association, or other entity; an affiliate or associate of any such
person; or any two or more persons acting as a partnership, syndicate,
or other group for the purpose of acquiring, holding, or dispersing of
securities of a domestic or foreign corporation.
Sec. 5 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))
utilizing the institute of scrap recycling industries' ((scrap
specifications circular, 2006)) generally accepted terminology, and
including weight, quantity, or volume.
(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)) five years following the date of the transaction.
Sec. 6 RCW 19.290.040 and 2008 c 233 s 4 are each amended to read
as follows:
(1) Every scrap metal business must create and maintain a permanent
record with a commercial enterprise, including another scrap metal
business, in order to establish a commercial account. That record, at
a minimum, must include the following information:
(a) The full name of the commercial enterprise or commercial
account;
(b) The business address and telephone number of the commercial
enterprise or commercial account; and
(c) The full name of the person employed by the commercial
enterprise who is authorized to deliver private metal property,
nonferrous metal property, and commercial metal property to the scrap
metal business.
(2) The record maintained by a scrap metal business for a
commercial account must document every purchase or receipt of private
metal property, nonferrous metal property, and commercial metal
property from the commercial enterprise. The record must be maintained
for five years following the date of the purchase or receipt. The
documentation must include, at a minimum, the following information:
(a) The time, date, and value of the property being purchased or
received;
(b) A description of the predominant types of property being
purchased or received; and
(c) The signature of the person delivering the property to the
scrap metal business.
Sec. 7 RCW 19.290.070 and 2008 c 233 s 7 are each amended to read
as follows:
It is a gross misdemeanor under chapter 9A.20 RCW for:
(1) 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) 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) 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) 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) 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)) four
years whether the person is acting in his or her own behalf or as the
agent of another;
(6) 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) 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) 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); or
(9) Any person to knowingly make a false or fictitious oral or
written statement to furnish or exhibit any false, fictitious, or
misrepresented identification, intended or likely to deceive the
purchaser of any scrap metal as to the actual seller of the scrap
metal.
NEW SECTION. Sec. 8 A new section is added to chapter 19.290 RCW
to read as follows:
(1) It is unlawful for a person to engage in the business of a
scrap metal processor, scrap metal recycler, or scrap metal supplier
without having first applied for and received a scrap metal license.
(2)(a) Except as provided in (b) of this subsection, a person or
firm engaged in the unlawful activity described in this section is
guilty of a gross misdemeanor.
(b) A second or subsequent offense is a class C felony.
NEW SECTION. Sec. 9 A new section is added to chapter 19.290 RCW
to read as follows:
Application for a scrap metal license or renewal of a scrap metal
license shall be made on a form for this purpose, furnished by the
department of licensing, and shall be signed by the license holder or
his or her authorized agent and shall include the following
information:
(1) Name and address of the person, firm, partnership, association,
limited liability company, or corporation under which name the business
is to be conducted;
(2) Names and residence address of all persons having an interest
in the business or, if the owner is a corporation, the names and
addresses of the officers thereof;
(3) Certificate of approval of the chief executive officer or chief
of police, or a designee, if the application is for a license within an
incorporated city or town or, in any unincorporated area, the county
legislative authority, the sheriff, or a designee, certifying that:
(a) The applicant has an established place of business at the
address shown on the application;
(b) There are no known environmental, building code, zoning, or
other land use regulation violations associated with the business being
located at the address; and
(c) In the case of a renewal of a scrap metal license, the
applicant is in compliance with this chapter: PROVIDED, That an
authorized representative of the department of licensing may make the
certification described in this section in any instance;
(4) Any other information that the department of licensing may
require.
NEW SECTION. Sec. 10 A new section is added to chapter 19.290
RCW to read as follows:
The application, together with the required fee, shall be forwarded
to the department of licensing. Upon receipt of the application the
department shall, if the application is in order, issue a scrap metal
license authorizing the processor, recycler, or supplier to do business
as such and forward the fee to the state treasurer. Upon receiving the
certificate, the owner shall cause it to be prominently displayed in
the place of business, where it may be inspected by an investigating
officer at any time. Every license must be issued in the name of the
applicant and the holder thereof may not allow any other person to use
the license.
NEW SECTION. Sec. 11 A new section is added to chapter 19.290
RCW to read as follows:
Before issuing a scrap metal license to a scrap metal processor or
scrap metal recycler, the department of licensing shall require the
applicant to file with the department a surety bond in the amount of
ten thousand dollars, running to the state of Washington, and executed
by a surety company authorized to do business in the state of
Washington. The bond shall be approved as to form by the attorney
general and conditioned upon the licensee conducting the business in
conformity with the provisions of this chapter. Any person who has
suffered any loss or damage by reason of fraud, carelessness, neglect,
violation of the terms of this chapter, or misrepresentation on the
part of the scrap metal processor or recycler, may institute an action
for recovery against the licensee and surety upon the bond. However,
the aggregate liability of the surety to all persons shall in no event
exceed the amount of the bond.
NEW SECTION. Sec. 12 A new section is added to chapter 19.290
RCW to read as follows:
A license issued on the scrap metal license application remains in
force until suspended or revoked and may be renewed annually upon
reapplication and upon payment of the required fee. A licensee who
fails or neglects to renew the license before the assigned expiration
date shall pay the fee for an original scrap metal license as provided
in this chapter.
Whenever a scrap metal processor, recycler, or supplier ceases to
do business as such or the license has been suspended or revoked, the
licensee shall immediately surrender the license to the department of
licensing.
NEW SECTION. Sec. 13 A new section is added to chapter 19.290
RCW to read as follows:
The licensee shall obtain a special set of license plates in
addition to the regular licenses and plates required for the operation
of such vehicles. The special plates must be displayed on vehicles
owned and/or operated by the licensee and used in the conduct of the
business. The fee for these plates shall be five dollars for the
original plates and two dollars for each additional set of plates
bearing the same license number. A licensee with more than one
licensed location in the state may use special plates bearing the same
license number for vehicles operated out of any of the licensed
locations.
NEW SECTION. Sec. 14 A new section is added to chapter 19.290
RCW to read as follows:
The uniform regulation of business and professions act, chapter
18.235 RCW, governs unlicensed practice, the issuance and denial of
licenses, and the discipline of licensees under this chapter.
NEW SECTION. Sec. 15 A new section is added to chapter 19.290
RCW to read as follows:
If a person whose scrap metal license has previously been canceled
for cause by the department of licensing files an application for a
license to conduct business as a scrap metal processor, recycler, or
supplier, or if the department is of the opinion that the application
is not filed in good faith or that the application is filed by some
person as a subterfuge for the real person in interest whose license
has previously been canceled for cause, the department may refuse to
issue the person a license to conduct business as a scrap metal
processor, recycler, or supplier.
NEW SECTION. Sec. 16 A new section is added to chapter 19.290
RCW to read as follows:
(1) The director of licensing is hereby authorized to adopt
reasonable rules and regulations not in conflict with provisions hereof
for the proper operation and enforcement of this chapter.
(2) The director shall set all license and renewal fees in
accordance with RCW 43.24.086.
NEW SECTION. Sec. 17 A new section is added to chapter 19.290
RCW to read as follows:
The chiefs of police, the county sheriffs, and the Washington state
patrol may make periodic inspection of the licensee's licensed premises
and records provided for in this chapter during normal business hours,
and furnish a certificate of inspection to the department of licensing
in such manner as may be determined by the department. In any
instance, an authorized representative of the department may make the
inspection. Licensees are subject to unannounced periodic inspections,
as described in this section.
NEW SECTION. Sec. 18 A new section is added to chapter 19.290
RCW to read as follows:
The state of Washington hereby fully occupies and preempts the
entire field of regulation of scrap metal processors, recyclers, or
suppliers within the boundaries of the state. Any political
subdivision in this state may enact or enforce only those laws and
ordinances relating to the regulation of scrap metal processors,
recyclers, or suppliers that are specifically authorized by state law
and are consistent with this chapter. Nothing in this chapter is
intended to limit the authority of any political subdivision to impose
generally applicable zoning, land use, permitting, general business
licensing, environmental, and health and safety requirements or
authorized business taxes upon scrap metal processors, recyclers, or
suppliers within their jurisdictions. Local ordinances pertaining
specifically to scrap metal processors, recyclers, or suppliers shall
have the same or lesser penalty as provided for by state law. Local
scrap metal laws and ordinances that are inconsistent with, more
restrictive than, or exceed the requirements of state law shall not be
enacted and are hereby preempted and repealed, regardless of the code,
charter, or home rule status of such political subdivision.
NEW SECTION. Sec. 19 A new section is added to chapter 19.290
RCW to read as follows:
(1) In addition to the powers granted in chapter 18.235 RCW, the
department of licensing or its authorized agent may examine or subpoena
any persons, books, papers, records, data, vehicles, or metal property
bearing upon the investigation or proceeding under this chapter.
(2) The persons subpoenaed may be required to testify and produce
any books, papers, records, data, vehicles, or metal property that the
director of licensing deems relevant or material to the inquiry.
(3) The director of the department of licensing or an authorized
agent may administer an oath to the person required to testify, and a
person giving false testimony after the administration of the oath is
guilty of perjury in the first degree under RCW 9A.72.020.
(4)(a) Any authorized representative of the director of the
department of licensing may apply for and obtain a superior court order
approving and authorizing a subpoena in advance of its issuance. The
application may be made in the county where the subpoenaed person
resides or is found, or the county where the subpoenaed records or
documents are located, or in Thurston county. The application must:
(i) State that an order is sought pursuant to this subsection;
(ii) Adequately specify the records, documents, or testimony; and
(iii) Declare under oath that an investigation is being conducted
for a lawfully authorized purpose related to an investigation within
the department's authority and that the subpoenaed documents or
testimony are reasonably related to an investigation within the
department's authority.
(b) Where the application under this subsection is made to the
satisfaction of the court, the court must issue an order approving the
subpoena. An order under this subsection constitutes authority of law
for the agency to subpoena the records or testimony.
(c) Any authorized representative of the director of the department
of licensing may seek approval and a court may issue an order under
this subsection without prior notice to any person, including the
person to whom the subpoena is directed and the person who is the
subject of an investigation.
(5) Any records created or produced under this section are exempt
from disclosure under chapter 42.56 RCW.
NEW SECTION. Sec. 20 A new section is added to chapter 19.290
RCW to read as follows:
(1) The Washington metal theft prevention authority is established.
(a) The authority shall consist of the following members, appointed
by the governor:
(i) The executive director of the Washington association of
sheriffs and police chiefs, or the executive director's designee;
(ii) The chief of the Washington state patrol, or the chief's
designee;
(iii) Two police chiefs;
(iv) Two sheriffs;
(v) One prosecuting attorney;
(vi) A representative from the insurance industry who is
responsible for writing property and casualty liability insurance in
the state of Washington;
(vii) A representative from the metal recycling industry; and
(viii) A representative of a public utility.
(b) In addition, the authority may, where feasible, consult with
other governmental entities or individuals from the public and private
sector in carrying out its duties under this section.
(2) The Washington metal theft prevention authority shall initially
convene at the call of the executive director of the Washington
association of sheriffs and police chiefs, or the executive director's
designee, no later than the third Monday in January 2014. Subsequent
meetings of the authority shall be at the call of the chair or seven
members.
(a) The authority shall annually elect a chair and other such
officers as it deems appropriate from its membership.
(b) Members of the authority shall serve terms of four years each
on a staggered schedule to be established by the first authority. For
purposes of initiating a staggered schedule of terms, some members of
the first authority may initially serve two years and some members may
initially serve four years.
(3) The Washington metal theft prevention authority may obtain or
contract for staff services, including an executive director, and any
facilities and equipment as the authority requires to carry out its
duties.
(a) The director may enter into contracts with any public or
private organization to carry out the purposes of this section.
(b) The authority shall review and make recommendations to the
legislature and the governor regarding metal theft in Washington state.
In preparing the recommendations, the authority shall, at a minimum,
review the following issues:
(i) Determine the scope of the problem of metal theft, including
particular areas of the state where the problem is the greatest; annual
data reported by local law enforcement regarding the number of reported
thefts, investigations, recovered property, arrests, and convictions;
and an assessment of estimated funds needed to hire sufficient
investigators to respond to all reported thefts.
(ii) Analyze the various methods of combating the problem of metal
theft;
(iii) Develop and implement a plan of operation; and
(iv) Develop and implement a financial plan.
(c) The authority is not a law enforcement agency and may not
gather, collect, or disseminate intelligence information for the
purpose of investigating specific crimes or pursuing or capturing
specific perpetrators. Members of the authority may not exercise
general authority peace officer powers while acting in their capacity
as members of the authority, unless the exercise of peace officer
powers is necessary to prevent an imminent threat to persons or
property.
(d) The authority shall annually report its activities, findings,
and recommendations during the preceding year to the legislature by
December 31st.
(4) The governor may remove any member of the Washington metal
theft prevention authority for cause including, but not limited to,
neglect of duty, misconduct, malfeasance or misfeasance in office, or
upon written request of two-thirds of the members of the authority
under this chapter. Upon the death, resignation, or removal of a
member, the governor shall appoint a replacement to fill the remainder
of the unexpired term.
(5) Members of the Washington metal theft prevention authority who
are not public employees shall be compensated in accordance with RCW
43.03.250 and shall be reimbursed for travel expenses incurred in
carrying out the duties of the authority in accordance with RCW
43.03.050 and 43.03.060.
(6) Any member serving in their official capacity on the Washington
metal theft prevention authority, or either their employer or
employers, or other entity that selected the members to serve, are
immune from a civil action based upon an act performed in good faith.
NEW SECTION. Sec. 21 A new section is added to chapter 19.290
RCW to read as follows:
(1) The Washington metal theft prevention authority account is
created in the state treasury, subject to appropriation. All receipts
from gifts, grants, bequests, devises, or other funds from public and
private sources to support the activities of the metal theft prevention
authority must be deposited into the account. Expenditures from the
account may be used only for activities relating to metal theft,
including education, prevention, law enforcement, investigation,
prosecution, and confinement.
(2) The authority shall allocate moneys appropriated from the
account to public agencies for the purpose of establishing,
maintaining, and supporting programs that are designed to prevent metal
theft, including:
(a) Financial support to prosecution agencies to increase the
effectiveness of metal theft prosecution;
(b) Financial support to a unit of local government or a team
consisting of units of local governments to increase the effectiveness
of metal theft enforcement;
(c) Financial support for the procurement of equipment and
technologies for use by law enforcement agencies for the purpose of
enforcing metal theft laws; and
(d) Financial support for programs that are designed to educate and
assist the public in the prevention of metal theft.
(3) The costs of administration shall not exceed ten percent of the
moneys in the account in any one year so that the greatest possible
portion of the moneys available to the authority is expended on
combating metal theft.
(4) Prior to awarding any moneys from the Washington metal theft
prevention authority account for metal theft enforcement, the metal
theft prevention authority must verify that the financial award
includes sufficient funding to cover proposed activities, which
include, but are not limited to:
(a) State, municipal, and county offender and juvenile confinement
costs;
(b) Administration costs;
(c) Law enforcement costs;
(d) Prosecutor costs; and
(e) Court costs, with a priority being given to ensuring that
sufficient funding is available to cover state, municipal, and county
offender and juvenile confinement costs.
(5) Moneys expended from the Washington metal theft prevention
authority account under subsection (2) of this section shall be used to
supplement, not supplant, other moneys that are available for metal
theft prevention.
(6) Grants provided under subsection (2) of this section constitute
reimbursement for purposes of RCW 43.135.060(1).
NEW SECTION. Sec. 22 A new section is added to chapter 19.290
RCW to read as follows:
Nothing in this chapter shall apply to metal and metal components
from vehicles owned by vehicle wreckers licensed pursuant to chapter
46.80 RCW.
NEW SECTION. Sec. 23 A new section is added to chapter 19.290
RCW to read as follows:
(1) Law enforcement agencies may register with the scrap theft
alert system that is maintained and provided at no charge to users by
the institute of scrap recycling industries, incorporated, or its
successor organization, to receive alerts regarding thefts of private,
nonferrous, or commercial metal property in the relevant geographic
area.
(2) Any business licensed under this chapter shall:
(a) Sign up with the scrap theft alert system that is maintained
and provided at no charge to users by the institute of scrap recycling
industries, incorporated, or its successor organization, to receive
alerts regarding thefts of private, nonferrous, or commercial metal
property in the relevant geographic area;
(b) Download the scrap metal theft alerts generated by the scrap
theft alert system on a daily basis;
(c) Use the alerts to identify potentially stolen commercial metal
property, nonferrous metal property, and private metal property; and
(d) Maintain for ninety days copies of any theft alerts received
and downloaded pursuant to this section.
Sec. 24 RCW 9.94A.515 and 2012 c 176 s 3 and 2012 c 162 s 1 are
each reenacted and amended to read as follows:
TABLE 2 | ||
CRIMES INCLUDED WITHIN EACH SERIOUSNESS LEVEL | ||
XVI | ||
XV | ||
XIV | ||
XIII | ||
XII | ||
XI | ||
X | ||
IX | ||
VIII | ||
VII | ||
VI | ||
V | ||
IV | ||
III | ||
Escape 2 (RCW 9A.76.120) | ||
II | ||
I | ||
NEW SECTION. Sec. 25 A new section is added to chapter 19.290
RCW to read as follows:
(1) The following personal property is subject to seizure and
forfeiture and no property right exists in them: 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 the seizing agency proves by a
preponderance of the evidence was used or intended to be used by its
owner or the person in charge to knowingly or intentionally facilitate
the commission of, or to knowingly or intentionally abet the commission
of, a crime involving theft, trafficking, or unlawful possession of
commercial metal property, or which the seizing agency proves by a
preponderance of the evidence was knowingly or intentionally 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, a crime
involving theft, trafficking, or the unlawful possession of commercial
metal property, or which the property owner acquired in whole or in
part with proceeds traceable to a knowing or intentional commission of
a crime involving the theft, trafficking, or unlawful possession of
commercial metal property provided that such activity is not less than
a class C felony; except that:
(a) No vehicle used by any person as a common carrier in the
transaction of business as a common carrier is subject to forfeiture
under this section unless the seizing agency proves by a preponderance
of the evidence that the owner or other person in charge of the vehicle
is a consenting party or is privy to any crime involving theft,
trafficking, or the unlawful possession of commercial metal property;
(b) A forfeiture of property encumbered by a bona fide security
interest is subject to the interest of the secured party if the secured
party neither had actual or constructive knowledge of nor consented to
the commission of any crime involving the theft, trafficking, or
unlawful possession of commercial metal property; and
(c) A property owner's property is not subject to seizure if an
employee or agent of that property owner uses the property owner's
property to knowingly or intentionally facilitate the commission of, or
to knowingly or intentionally aid and abet the commission of, a crime
involving theft, trafficking, or unlawful possession of commercial
metal property, in violation of that property owner's instructions or
policies against such activity, and without the property owner's
knowledge or consent.
(2) The following real property is subject to seizure and
forfeiture and no property right exists in them: All real property,
including any right, title, and interest in the whole of any lot or
tract of land, and any appurtenances or improvements, that the seizing
agency proves by a preponderance of the evidence are being used with
the knowledge of the owner for the intentional commission of any crime
involving the theft, trafficking, or unlawful possession of commercial
metal property, or which have been acquired in whole or in part with
proceeds traceable to the commission of any crime involving the
trafficking, theft, or unlawful possession of commercial metal, if such
activity is not less than a class C felony and a substantial nexus
exists between the commission of the violation or crime and the real
property. However:
(a) No property may be forfeited pursuant to this subsection (2),
to the extent of the interest of an owner, by reason of any act or
omission committed or omitted without the owner's actual or
constructive knowledge;
(b) 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, neither had actual or constructive knowledge, nor
consented to the act or omission.
(3) 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 real
property shall include the filing of a lis pendens by the seizing
agency. Real property seized under this section shall not be
transferred or otherwise conveyed until ninety days after seizure or
until a judgment of forfeiture is entered, whichever is later:
PROVIDED, That 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.
Seizure of personal property without process may be made if:
(a) The seizure is incident to an arrest or a search under a search
warrant; or
(b) 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.
(4) In the event of seizure pursuant to this section, proceedings
for forfeiture shall be deemed commenced by the seizure. The law
enforcement agency under whose authority the seizure was made shall
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
shall 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. The notice of seizure of personal property 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 shall be deemed complete upon mailing within the fifteen day
period following the seizure. 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 shall 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.
(5) If no person notifies the seizing law enforcement agency in
writing of the person's claim of ownership or right to possession of
items specified in subsection (1) of this section within forty-five
days of the seizure in the case of personal property and ninety days in
the case of real property, the item seized shall be 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.
(6) 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 property within forty-five days of the seizure in the case
of personal property and ninety days in the case of real property, the
law enforcement agency shall give the person or persons a reasonable
opportunity to be heard as to the claim or right. The hearing shall 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
shall 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 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
shall be the district court when the aggregate value of the property is
within the jurisdictional limit set forth in RCW 3.66.020. A hearing
before the seizing agency and any appeal therefrom shall be under Title
34 RCW. In a court hearing between two or more claimants to the
property involved, the prevailing party shall be entitled to a judgment
for costs and reasonable attorneys' fees. The burden of producing
evidence shall be upon the person claiming to be the lawful owner or
the person claiming to have the lawful right to possession of the
property.
(7) At the hearing, the seizing agency has the burden of proof to
establish by a preponderance of the evidence that seized property is
subject to forfeiture, and that the use or intended use of the seized
property in connection with a crime pursuant to this section occurred
with the owner's actual or constructive knowledge or consent. The
person claiming to be the lawful owner or the person claiming to have
the lawful right to possession of the property has the burden of proof
to establish by a preponderance of the evidence that the person owns or
has a right to possess the seized property. The possession of bare
legal title is not sufficient to establish ownership of seized property
if the seizing agency proves by a preponderance of the evidence that
the person claiming ownership or right to possession is a nominal owner
and did not actually own or exert a controlling interest in the
property.
The seizing law enforcement agency shall promptly return the
property to the claimant upon a determination by the administrative law
judge or court that the claimant is the present lawful owner or is
lawfully entitled to possession of the property.
(8) When property is forfeited under this chapter, after satisfying
any court-ordered victim restitution, 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;
or
(b) Sell that which is not required to be destroyed by law and
which is not harmful to the public.
(9)(a) Within one hundred twenty days after the entry of an order
of forfeiture, each seizing agency shall remit to, if known, the victim
of the crime involving the seized property, an amount equal to fifty
percent of the net proceeds of any property forfeited.
(b) Retained property and net proceeds not required to be paid to
victims shall 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.
(c) 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, and the cost of any valid
landlord's claim for damages.
(d) 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.
(10) Upon the entry of an order of forfeiture of real property, the
court shall forward a copy of the order to the assessor of the county
in which the property is located. Orders for the forfeiture of real
property shall be entered by the superior court, subject to court
rules. Such an order shall be filed by the seizing agency in the
county auditor's records in the county in which the real property is
located.
NEW SECTION. Sec. 26 A new section is added to chapter 19.290
RCW to read as follows:
The provisions of this chapter shall be liberally construed to the
end that traffic in stolen private metal property or nonferrous metal
property may be prevented, and irresponsible, unreliable, or dishonest
persons may be prevented from engaging in the business of processing,
recycling, or supplying scrap metal in this state and reliable persons
may be encouraged to engage in businesses of processing, recycling, or
supplying scrap metal in this state.
Sec. 27 RCW 18.235.020 and 2010 c 179 s 18 are each amended to
read as follows:
(1) This chapter applies only to the director and the boards and
commissions having jurisdiction in relation to the businesses and
professions licensed under the chapters specified in this section.
This chapter does not apply to any business or profession not licensed
under the chapters specified in this section.
(2)(a) The director has authority under this chapter in relation to
the following businesses and professions:
(i) Auctioneers under chapter 18.11 RCW;
(ii) Bail bond agents and bail bond recovery agents under chapter
18.185 RCW;
(iii) Camping resorts' operators and salespersons under chapter
19.105 RCW;
(iv) Commercial telephone solicitors under chapter 19.158 RCW;
(v) Cosmetologists, barbers, manicurists, and estheticians under
chapter 18.16 RCW;
(vi) Court reporters under chapter 18.145 RCW;
(vii) Driver training schools and instructors under chapter 46.82
RCW;
(viii) Employment agencies under chapter 19.31 RCW;
(ix) For hire vehicle operators under chapter 46.72 RCW;
(x) Limousines under chapter 46.72A RCW;
(xi) Notaries public under chapter 42.44 RCW;
(xii) Private investigators under chapter 18.165 RCW;
(xiii) Professional boxing, martial arts, and wrestling under
chapter 67.08 RCW;
(xiv) Real estate appraisers under chapter 18.140 RCW;
(xv) Real estate brokers and salespersons under chapters 18.85 and
18.86 RCW;
(xvi) Scrap metal processors, scrap metal recyclers, and scrap
metal suppliers under chapter 19.290 RCW;
(xvii) Security guards under chapter 18.170 RCW;
(((xvii))) (xviii) Sellers of travel under chapter 19.138 RCW;
(((xviii))) (xix) Timeshares and timeshare salespersons under
chapter 64.36 RCW;
(((xix))) (xx) Whitewater river outfitters under chapter 79A.60
RCW;
(((xx))) (xxi) Home inspectors under chapter 18.280 RCW;
(((xxi))) (xxii) Body artists, body piercers, and tattoo artists,
and body art, body piercing, and tattooing shops and businesses, under
chapter 18.300 RCW; and
(((xxii))) (xxiii) Appraisal management companies under chapter
18.310 RCW.
(b) The boards and commissions having authority under this chapter
are as follows:
(i) The state board ((of registration)) for architects established
in chapter 18.08 RCW;
(ii) The Washington state collection agency board established in
chapter 19.16 RCW;
(iii) The state board of registration for professional engineers
and land surveyors established in chapter 18.43 RCW governing licenses
issued under chapters 18.43 and 18.210 RCW;
(iv) The funeral and cemetery board established in chapter 18.39
RCW governing licenses issued under chapters 18.39 and 68.05 RCW;
(v) The state board of licensure for landscape architects
established in chapter 18.96 RCW; and
(vi) The state geologist licensing board established in chapter
18.220 RCW.
(3) In addition to the authority to discipline license holders, the
disciplinary authority may grant or deny licenses based on the
conditions and criteria established in this chapter and the chapters
specified in subsection (2) of this section. This chapter also governs
any investigation, hearing, or proceeding relating to denial of
licensure or issuance of a license conditioned on the applicant's
compliance with an order entered under RCW 18.235.110 by the
disciplinary authority.
Sec. 28 RCW 43.24.150 and 2011 c 298 s 25 are each amended to
read as follows:
(1) The business and professions account is created in the state
treasury. All receipts from business or professional licenses,
registrations, certifications, renewals, examinations, or civil
penalties assessed and collected by the department from the following
chapters must be deposited into the account:
(a) Chapter 18.11 RCW, auctioneers;
(b) Chapter 18.16 RCW, cosmetologists, barbers, and manicurists;
(c) Chapter 18.145 RCW, court reporters;
(d) Chapter 18.165 RCW, private investigators;
(e) Chapter 18.170 RCW, security guards;
(f) Chapter 18.185 RCW, bail bond agents;
(g) Chapter 18.280 RCW, home inspectors;
(h) Chapter 19.16 RCW, collection agencies;
(i) Chapter 19.31 RCW, employment agencies;
(j) Chapter 19.105 RCW, camping resorts;
(k) Chapter 19.138 RCW, sellers of travel;
(l) Chapter 42.44 RCW, notaries public;
(m) Chapter 64.36 RCW, timeshares;
(n) Chapter 67.08 RCW, boxing, martial arts, and wrestling;
(o) Chapter 18.300 RCW, body art, body piercing, and tattooing;
(p) Chapter 79A.60 RCW, whitewater river outfitters; ((and))
(q) Chapter 19.158 RCW, commercial telephone solicitation; and
(r) Chapter 19.290 RCW, scrap metal businesses.
Moneys in the account may be spent only after appropriation.
Expenditures from the account may be used only for expenses incurred in
carrying out these business and professions licensing activities of the
department. Any residue in the account must be accumulated and may not
revert to the general fund at the end of the biennium.
(2) The director must biennially prepare a budget request based on
the anticipated costs of administering the business and professions
licensing activities listed in subsection (1) of this section, which
must include the estimated income from these business and professions
fees.
NEW SECTION. Sec. 29 A new section is added to chapter 43.43 RCW
to read as follows:
(1) Beginning on July 1, 2014, when funded, the Washington
association of sheriffs and police chiefs shall implement and operate
an ongoing electronic statewide no-buy list database program.
(2) The database must be made available on a web site.
(3) The no-buy list database program shall allow for any scrap
metal business to enter a customer's name and date of birth into the
database. The database must determine if the customer pursuing the
transaction with the scrap metal business has been convicted in
Washington of any crime involving burglary, robbery, theft, or
possession of or receiving stolen property within the past four years.
(4) If the customer has been convicted of any crime involving
burglary, robbery, theft, or possession of or receiving stolen property
within the past four years despite whether the person was acting in his
or her own behalf or as the agent of another then, at a minimum, the
no-buy list database program must immediately send an alert to the
scrap metal business stating: (a) That the customer is listed on a
current no-buy list, (b) the four-year expiration period for the
customer's most recent crime listed, and (c) a notification that
entering into a transaction with the customer is prohibited under RCW
19.290.070.
NEW SECTION. Sec. 30 A new section is added to chapter 19.290
RCW to read as follows:
A scrap metal business shall, before completing any transaction
under this chapter, determine whether such customer is listed in the
Washington association of sheriffs and police chiefs no-buy list
database program established and made available under section 29 of
this act.
NEW SECTION. Sec. 31 A new section is added to chapter 43.43 RCW
to read as follows:
The Washington association of sheriffs and police chiefs shall not
be held liable for civil damages resulting from any act or omission in
carrying out the requirements of section 29 of this act other than an
act or omission constituting gross negligence or willful or wanton
misconduct.
NEW SECTION. Sec. 32 If specific funding for the purposes of
sections 20 and 21 of this act, referencing sections 20 and 21 of this
act by bill or chapter number and section number, is not provided by
June 30, 2013, in the omnibus appropriations act, sections 20 and 21 of
this act are null and void.
NEW SECTION. Sec. 33 If specific funding for the purposes of
sections 29 through 31 of this act, referencing sections 29 through 31
of this act by bill or chapter number and section number, is not
provided by June 30, 2013, in the omnibus appropriations act, sections
29 through 31 of this act are null and void.