GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2007
SESSION LAW 2007-301
HOUSE BILL 367
AN ACT to strengthen the law regulating the sale of certain metals by secondary metals recyclers, to add wireless and cable telecommunications EQUIPMENT to the statute providing penalties for the injury or destruction of wires, phone, telegraph, and electrical fixtures, to increase the criminal penalties for violations of those regulations of the injury or destruction of wires, phone, telegraph, and electrical fixtures, and to PROVIDE FOR FORFEITURE OF VEHICLES USED IN FELONIOUS THEFT OF METALS.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 66-11 reads as rewritten:
"§
66-11. Dealing in regulated metals property; violations of section
Class 1 misdemeanor.penalties.
(a) Definitions. - As used in this section:
(1) "Law enforcement officer" means any duly constituted law enforcement officer of the State or of any municipality or county.
(2) "Regulated metals property" means all ferrous and nonferrous metals.
(3) "Secondary metals recycler" means any person, firm, or corporation in the State:
a. That, from
a fixed location or otherwise, is predominately engaged in the business
of gathering or obtaining ferrous or nonferrous metals that have served their
original economic purpose or is in the business of performing the manufacturing
process by which ferrous metals or nonferrous metals are converted into raw
material products consisting of prepared grades and having an existing or
potential economic value; or
b. That has facilities for performing the manufacturing process by which ferrous metals or nonferrous metals are converted into raw material products consisting of prepared grades and having an existing or potential economic value, by methods including, but not limited to, the processing, sorting, cutting, classifying, cleaning, baling, wrapping, shredding, shearing, or changing the physical form or chemical content of the metals, but not including the exclusive use of hand tools.
(4) "Fixed location" means any site occupied by a secondary metals recycler as the owner of the site or as a lessee of the site under a lease or other rental agreement providing for occupation of the site by the secondary metals recycler for a total duration of not less than 364 days.
(b) Records Required. -
(1) A secondary metals recycler shall maintain a record of all purchase transactions in which the secondary metals recycler purchases regulated metals property.
(2) The following information shall be maintained for transactions in which a secondary metals recycler purchases regulated metals property:
a. The name and address of the secondary metals recycler.
b. The name, initials, or other identification of the individual entering the information.
c. The date of the transaction.
d. The weight of the regulated metals property purchased.
e. The
description made in accordance with the custom of the trade of the type of
regulated metals property purchased.purchased and the physical
address where the regulated metals were obtained by the seller, and a statement
signed by the seller or the seller's agent certifying that the seller or the
seller's agent has the lawful right to sell and dispose of the property.
f. The amount of consideration given for the regulated metals property.
g. The name
and address of the vendor of the regulated metals property.property
and the license plate number of the vehicle used to deliver the regulated
metals.
h. The A
photocopy or electronic scan of the drivers license number or state
or federally issued photo identification card number issued by the
Division of Motor Vehicles of the person delivering the regulated metals
property to the secondary metals recycler, or, if recycler. If the
secondary metals recycler has a copy of the valid photo identification of the
person delivering the regulated metals property on file, the secondary metals
recycler must examine the photo identification, but may reference the photo
identification that is on file without making a separate photocopy or
electronic scan for each subsequent transaction. If the person delivering
the regulated metals property does not have a drivers license or an a
state or federally issued photo identification card, card issued
by the Division of Motor Vehicles, a signed written statement that the delivery
person does not have a drivers license or an identification card issued by the
Division of Motor Vehicles. the secondary metals recycler shall not
complete the transaction.
(3) A secondary metals recycler shall keep and maintain the information required under this subsection for not less than two years from the date of the purchase of the regulated metals property.
(c) Inspection of Regulated Metals Property and Records. - During the usual and customary business hours of a secondary metals recycler, a law enforcement officer shall have the right to inspect either of the following:
(1) Any and all purchased regulated metals property in the possession of the secondary metals recycler.
(2) Any and all records required to be maintained under subsection (b) of this section.
A secondary metals recycler shall make receipts for the purchase of regulated metals property available for pickup each regular workday if requested by the sheriff or chief of police of the county or the chief of police of the municipality in which the secondary metals recycler is located.
(d) Cash Transactions.Purchase
Limitations. - No secondary metals recycler shall purchase do any
of the following:
(1) Purchase regulated metals property for cash consideration from other than a fixed location.
(2) Purchase or receive regulated metals property from minors from other than a fixed location, provided that this provision does not apply to the purchase of aluminum in the form of beverage or food cans.
(d1) Retain Metals for Seven Days Before Selling or Altering. - Any secondary metals recycler owner convicted of a felonious violation of this Chapter, G.S. 14-71, 14-71.1, or 14-72 shall hold and retain any regulated metals product, except for iron and steel products, for seven days from the date of purchase before selling, dismantling, defacing, or in any manner altering or disposing of the regulated metals property.
(e) Right to Restitution. - The court may order a defendant to make restitution to the secondary metals recycler for any damage or loss caused by the defendant arising out of an offense committed by the defendant.
(f) Violations. - Unless
the conduct is covered by some other provision of law providing greater
punishment, any Any person knowingly and willfully violating
any of the provisions of this section shall be guilty of a Class 1 misdemeanor.misdemeanor
for a first offense. A second or subsequent violation of this section is a
Class I felony.
(g) Exemptions. - This section shall not apply to purchases of regulated metals property from a manufacturing, industrial, or other commercial vendor that generates or sells regulated metals property in the ordinary course of its business.
(h) Preemption. - A county or municipality shall not enact any local law, ordinance, or regulation regulating secondary metals recyclers or regulated metals property that conflicts with this section, and this law preempts all existing laws, ordinances, or regulations."
SECTION 2. G.S. 14-154 reads as rewritten:
"§ 14-154. Injuring wires and other fixtures of telephone, telegraph, and electric-power companies.
If any person shall willfully injure, destroy or pull down
any telegraph, telephone, cable telecommunications, or electric-power-transmission
pedestal or pole, wire, insulator or any other fixture or apparatus
attached to a telegraph, telephone or electric-power-transmission line
or any telegraph, telephone, cable telecommunications, or electric power line,
wire or fiber insulator, power supply, transformer, transmission or other
apparatus, equipment or fixture used in the transmission of telegraph,
telephone, cable telecommunications, or electrical power service or any
equipment related to wireless communications regulated by the Federal
Communications Commission, hethat person shall be guilty of a
Class I Felony.Class 1 misdemeanor."
SECTION 3. Article 1 of Chapter 66 of the General Statutes is amended by adding the following new section to read:
"§ 66-11.2. Forfeiture of vehicles used to transport unlawfully obtained regulated metals property.
(a) Vehicles which are used or intended for use to convey or transport, or in any manner to facilitate the conveyance or transportation of unlawfully obtained regulated metals property, as defined by this Article, are subject to forfeiture, except that:
(1) No conveyance shall be forfeited under the provisions of this section by reason of any act or omission, committed or omitted while such conveyance was unlawfully in the possession of a person other than the owner in violation of the criminal laws of the United States, or of any state;
(2) No conveyance shall be forfeited unless the violation involved is a felony;
(3) A forfeiture of a vehicle encumbered by a bona fide security interest is subject to the interest of the secured party who had no knowledge of or consented to the act or omission;
(4) No conveyance shall be forfeited under the provisions of this section unless the owner knew or had reason to believe the vehicle was being used in the commission of any violation that may subject the conveyance to forfeiture under this section.
(b) Any vehicle subject to forfeiture under this section may be seized by any law enforcement officer upon process issued by any district or superior court having jurisdiction over the vehicle except that seizure without such process may be made when:
(1) The seizure is incident to an arrest or a search under a search warrant;
(2) The vehicle subject to seizure has been the subject of a prior judgment in favor of the State in a criminal injunction or forfeiture proceeding under this section.
(c) Vehicles taken or detained under this section shall not be repleviable, but shall be deemed to be in custody of the law enforcement agency seizing it, which may:
(1) Place the vehicle under seal; or
(2) Remove the vehicle to a place designated by it; or
(3) Request that the North Carolina Department of Justice take custody of the vehicle and remove it to an appropriate location for disposition in accordance with law.
Any vehicle seized by a State, local, or county law enforcement officer shall be held in safekeeping as provided in this subsection until an order of disposition is properly entered by the judge.
(d) Whenever a vehicle is forfeited under this section, the law enforcement agency having custody of it may:
(1) Retain the vehicle for official use; or
(2) Sell any forfeited vehicle, provided that the proceeds be disposed of for payment of all proper expenses of the proceedings for forfeiture and sale, including expense of seizure, maintenance of custody, advertising, and court costs; or
(3) Transfer any vehicles which are forfeited under the provisions of this section to the North Carolina Department of Justice when, in the discretion of the presiding judge and upon application of the North Carolina Department of Justice, said vehicle may be of official use to the North Carolina Department of Justice;
(4) Upon determination by the director of any law enforcement agency that a vehicle transferred pursuant to the provisions of this section is of no further use to said agency for use in official investigations, such vehicle may be sold as surplus property in the same manner as other vehicles owned by the law enforcement agency, and the proceeds from such sale after deducting the cost of sale shall be paid to the treasurer or proper officer authorized to receive fines and forfeitures to be used for the school fund of the county in the county in which said vehicle was seized; provided, that any vehicle transferred to any law enforcement agency under the provisions of this section which has been modified to increase speed shall be used in the performance of official duties only and not for resale, transfer, or disposition other than as junk."
SECTION 4. This act becomes effective December 1, 2007, and applies to offenses committed on or after that date.
In the General Assembly read three times and ratified this the 18th day of July, 2007.
s/ Marc Basnight
President Pro Tempore of the Senate
s/ Joe Hackney
Speaker of the House of Representatives
s/ Michael F. Easley
Governor
Approved 11:52 a.m. this 28th day of July, 2007