Revision: July 1, 2009, midnight
HB 471-FN – VERSION ADOPTED BY BOTH BODIES
24Mar2009… 0800h
05/13/09 1630s
24Jun2009… 2100eba
2009 SESSION
04/05
HOUSE BILL 471-FN
AN ACT relative to willful concealment and fraudulent retail transactions.
SPONSORS: Rep. Pantelakos, Rock 16
COMMITTEE: Criminal Justice and Public Safety
This bill:
I. Makes changes to the theft statute including moving the offense of willful concealment into RSA 637, and deleting references to “shoplifting.”
II. Imposes criminal penalties for fraudulent retail transactions.
III. Imposes an enhanced penalty for persons knowingly activating an audible alarm system to avoid detection or apprehension, or cause a distraction during the commission of the offense.
IV. Imposes criminal penalties for dealing in counterfeit goods.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
24Mar2009… 0800h
05/13/09 1630s
24Jun2009… 2100eba
09-0281
04/05
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nine
AN ACT relative to willful concealment and fraudulent retail transactions.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Section; Theft; Willful Concealment. Amend RSA 637 by inserting after section 3 the following new section:
637:3-a Willful Concealment.
I. A person is guilty of willful concealment if, without authority, he or she willfully conceals the goods or merchandise of any store while still upon the premises of such store. Goods or merchandise found concealed upon the person shall be prima facie evidence of willful concealment. Notwithstanding RSA 637:11, willful concealment shall be a misdemeanor.
II. A person commits theft if, with the purpose to deprive a merchant of goods or merchandise, he or she knowingly:
(a) Removes goods or merchandise from the premises of a merchant; or
(b) Alters, transfers, or removes any price marking affixed to goods or merchandise; or
(c) Causes the cash register or other sales recording device to reflect less than the merchant’s stated or advertised price for the goods or merchandise; or
(d) Transfers goods or merchandise from the container in which such goods or merchandise were intended to be sold to another container.
2 Theft; Definitions. Amend RSA 637:2, III to read as follows:
III. “Purpose to deprive” means to have the conscious object:
(a) To withhold property permanently or for so extended a period or to use under such circumstances that a substantial portion of its economic value, or of the use and benefit thereof, would be lost; or
(b) To restore the property only upon payment of a reward or other compensation; or
(c) To dispose of the property under circumstances that make it unlikely that the owner will recover it; or
(d) To appropriate the goods or merchandise of a merchant without paying the merchant’s stated or advertised price.
3 New Paragraph; Theft; Definitions. Amend RSA 637:2 by inserting after paragraph V the following new paragraph:
VI. “Merchant” means the owner or operator of any place of business where merchandise is displayed, held, or stored, for sale to the public, or any agent or employee of such owner or operator.
4 New Section; Theft; Fraudulent Retail Transactions. Amend RSA 637 by inserting after section 10-a the following new section:
637:10-b Fraudulent Retail Transactions.
I. A person shall be guilty of a misdemeanor if such person possesses, uses, transfers, manufactures, alters, counterfeits, or reproduces a retail sales receipt or universal product code label with the purpose to deprive a merchant of goods or merchandise.
II. A person shall be guilty of a class B felony if such person possesses, uses, transfers, manufactures, alters, counterfeits, or reproduces 5 or more retail sales receipts or universal product code labels, or any combination of 5 or more sales receipts or universal product code labels, or possesses a device designed or adapted to manufacture counterfeit retail sales receipts or universal product code labels with the purpose to deprive a merchant of goods or merchandise.
5 Willful Concealment; Use of Emergency Exit. Amend RSA 651:6, I(p)-(q) to read as follows:
(p) Has committed murder as defined in RSA 630:1-b against a person under 13 years of age; [or]
(q) Has knowingly committed any of the following offenses as a criminal street gang member, or for the benefit of, at the direction of, or in association with any criminal street gang, with the purpose to promote, further, or assist in any such criminal conduct by criminal street gang members:
(1) Violent crime as defined in RSA 651:5, XIII.
(2) A crime involving the distribution, sale, or manufacture of a controlled drug under RSA 318-B:2.
(3) Class A felony theft where the property stolen was a firearm.
(4) Unlawful sale of a pistol or a revolver.
(5) Witness tampering.
(6) Criminal street gang solicitation as defined in RSA 644:20; or
(r) Has committed an offense under RSA 637 where such person knowingly activated an audible alarm system to avoid detection or apprehension, or cause a distraction during the commission of the offense.
6 Civil Action for Theft. Amend RSA 507:8-f to read as follows:
507:8-f Civil Actions for Theft. When the conduct of a person would constitute willful concealment [or shoplifting] as provided in RSA [644:17] 637:3-a, the person shall be liable to the merchant for damages as provided in RSA 544-C:1. An action for recovery of damages, pursuant to this section, may be brought in small claims court if the total damages do not exceed the jurisdictional limit of such court, or in any other appropriate court. The provisions of this section are in addition to other civil remedies and shall not limit the rights of merchants or other persons to elect to pursue other civil remedies.
7 Civil Damages for Shoplifting. Amend the chapter heading of RSA 544-C, RSA 544-C:1, I-III, and the introductory paragraph of RSA 544-C:1, IV to read as follows:
CHAPTER 544-C
CIVIL DAMAGES FOR [SHOPLIFTING] WILLFUL CONCEALMENT
544-C:1 Recovery of Civil Damages for [Shoplifting] Willful Concealment.
I. For purposes of this chapter, [“shoplifting” shall mean shoplifting or] “willful concealment” shall mean willful concealment as defined in RSA [644:17] 637:3-a.
II. A person who [shoplifts] willfully conceals shall be liable for civil damages to the merchant up to $400 plus the merchandise or the value of the merchandise if it has been damaged or rendered unrecoverable.
III. A merchant may recover civil damages for [shoplifting] willful concealment by bringing suit in a district court or by executing a settlement agreement in the form set out in paragraph IV of this section.
IV. A merchant and a person accused of [shoplifting] willful concealment by such merchant may agree to execute a civil settlement agreement for up to $400 in civil damages, plus the return of the merchandise or the replacement value of the merchandise within 60 days of the date the agreement is signed. The form of the settlement agreement shall be as follows:
8 Use of Force by Merchants. Amend RSA 627:8-a, I to read as follows:
I. A merchant, or his or her agent, is justified in detaining any person who he or she has reasonable grounds to believe has committed the offense of willful concealment [or shoplifting], as defined by RSA [644:17] 637:3-a, on his or her premises as long as necessary to surrender the person to a peace officer, provided such detention is conducted in a reasonable manner.
9 New Section; Forgery and Fraudulent Practices Generally; Dealing in Counterfeit Goods. Amend RSA 638 by inserting after section 6-a the following new section:
638:6-b Dealing in Counterfeit Goods.
I. As used in this section, “counterfeit mark” means any unauthorized reproduction or copy of intellectual property, or intellectual property affixed to any goods sold, offered for sale, manufactured, or distributed without the authority of the owner of the intellectual property. “Intellectual property” means any trademark, service mark, trade name, label, term, device, design, or word that is adopted or used by a person to identify such person’s goods and registered, filed, or recorded under RSA 350-A, or the laws of any other state, or registered in the principal register of the United States Patent and Trademark Office.
II. Any person who purposely or knowingly manufactures, uses, displays, advertises, distributes, offers for sale, sells or possesses with intent to sell, or distributes any goods bearing or identified by a counterfeit mark shall be guilty of a class A misdemeanor for a first offense and a class B felony for any subsequent offense. Each individual good bearing or identified by a counterfeit mark shall constitute a separate offense.
III. Any person having possession, custody, or control of more than 25 items bearing a counterfeit mark shall be presumed to possess said items with the intent to sell or distribute. Any state or federal certificate of registration of any intellectual property shall be prima facie evidence of the facts stated therein.
10 Repeal. RSA 644:17, relative to willful concealment and shoplifting, is repealed.
11 Effective Date. This act shall take effect January 1, 2010.
LBAO
09-0281
01/16/09
HB 471-FN - FISCAL NOTE
AN ACT relative to willful concealment and fraudulent retail transactions.
FISCAL IMPACT:
The Judicial Branch, the Judicial Council, the Department of Corrections, and the New Hampshire Association of Counties state this bill may increase state and county expenditures by an indeterminable amount in FY 2010 and each year thereafter. There will be no fiscal impact on local expenditures or state, county, and local revenue.
METHODOLOGY:
The Judicial Branch states this bill establishes several new provisions relating to organized retail crime in New Hampshire. Specifically, the bill establishes a class A misdemeanor, class B felony, and class A felony for various violations related to organized retail crime. The bill also makes property used in committing offenses under RSA 637:10-c subject to forfeiture. Lastly, the bill provides for an extended term of imprisonment if a person knowingly activates an audible alarm system to avoid detection or apprehension, or causes a distraction while willfully concealing and shoplifting. The Branch states the cost of a class A misdemeanor case is $51.14 in FY 2010 and each year thereafter. The Branch states the felony types proposed in this bill would be treated as routine felony cases. The Branch states the cost of a routine felony case is $335.98 in FY 2010 and each year thereafter. The Branch has no information to estimate how many charges would be brought as a result of the changes contained in the bill to determine the fiscal impact on expenditures. However, if a single case were to be appealed to the New Hampshire Supreme Court, the fiscal impact would be in excess of $10,000. The Branch has no information to determine how many forfeiture proceedings would go before the superior court to determine a fiscal impact. Lastly, extended terms of imprisonment do not add cases but can lead to more and longer trials because of the greater penalties at stake. The Branch states the cost of a jury trial day in the superior court, where most of the extended term of imprisonment charges would be heard, is $1,662 in FY 2010 and each year thereafter.
The Judicial Council states this bill may result in an indeterminable increase in general fund expenditures. The Council states if an individual is found to be indigent, the flat fee of $756.24 per felony is charged by a public defender or contract attorney. If an assigned counsel attorney is used, the fee is $60 per hour with a cap of $4,100 for a felony charge. The Council also states additional costs could be incurred if an appeal is filed. The public defender, contract attorney
and assigned counsel rates for Supreme Court appeals is $2,000 per case, with many assigned counsel attorneys seeking permission to exceed the fee cap. Requests to exceed the fee cap are seldom granted. Finally, expenditures would increase if services other than counsel are requested and approved by the court during the defense of a case or during an appeal.
The Department of Corrections states the average annual cost of incarcerating an individual in the general prison population for the fiscal year ending June 30, 2008 was $32,753. The cost to supervise an individual by the Department’s division of field services for the fiscal year ending June 30, 2008 was $779. The Department states this bill may increase expenditures by an indeterminable amount, but is unable to predict the number of individuals that might be impacted.
The New Hampshire Association of Counties states to the extent an individual is prosecuted, convicted, and sentenced to incarceration, the counties may have increased expenditures. The Association is unable to determine the number of individuals who might be detained or incarcerated as a result of this bill. The average cost to incarcerate an individual in a county facility is $30,165 a year.