HF 2333

1st Unofficial Engrossment - 87th Legislature (2011 - 2012) Posted on 04/03/2012 09:06am

1.1A bill for an act

1.2relating to public safety; specifically including theft of motor fuel in the theft
1.3crime; creating a permissive inference regarding theft of motor fuel; modifying
1.4the drive-off gas civil liability law;amending Minnesota Statutes 2010, sections
1.5171.175; 332.32; 604.15, subdivision 3, by adding a subdivision; 609.52,
1.6subdivisions 1, 2.
1.7BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

1.8    Section 1. Minnesota Statutes 2010, section 171.175, is amended to read:
1.9171.175 SUSPENSION; THEFT OF GASOLINE MOTOR FUEL OFFENSE.
1.10    Subdivision 1. Theft of gasoline motor fuel. The commissioner of public safety
1.11shall suspend for 30 days the license of any person convicted or juvenile adjudicated
1.12delinquent for theft of gasoline motor fuel under section 609.52, subdivision 2, clause
1.13(1) or (18).
1.14    Subd. 2. Definition. For the purposes of this section, "gasoline" "motor fuel" has
1.15the meaning given it in section 296A.01 604.15, subdivision 23 1.

1.16    Sec. 2. Minnesota Statutes 2010, section 332.32, is amended to read:
1.17332.32 EXCLUSIONS.
1.18(a) The term "collection agency" shall not include persons whose collection
1.19activities are confined to and are directly related to the operation of a business other than
1.20that of a collection agency such as, but not limited to banks when collecting accounts
1.21owed to the banks and when the bank will sustain any loss arising from uncollectible
1.22accounts, abstract companies doing an escrow business, real estate brokers, public officers,
1.23persons acting under order of a court, lawyers, trust companies, insurance companies,
1.24credit unions, savings associations, loan or finance companies unless they are engaged in
2.1asserting, enforcing or prosecuting unsecured claims which have been purchased from
2.2any person, firm, or association when there is recourse to the seller for all or part of the
2.3claim if the claim is not collected.
2.4(b) The term "collection agency" shall not include a trade association performing
2.5services authorized by section 604.15, subdivision 4a, but the trade association in
2.6performing the services may not engage in any conduct that would be prohibited for a
2.7collection agency under section 332.37.

2.8    Sec. 3. Minnesota Statutes 2010, section 604.15, subdivision 3, is amended to read:
2.9    Subd. 3. Notice of nonpayment. Notice of nonpayment that includes a citation to
2.10this section and a description of the penalties contained in it shall be sent by the retailer to
2.11the owner by regular mail, supported by an affidavit of service by mailing, to the address
2.12indicated by records on the vehicle under section 86B.401 or 168.346. The notice must
2.13include a signed statement by the employee who reported the act describing what the
2.14employee observed and the license number of the motor vehicle, if known. Failure of the
2.15owner to receive a notice is not a defense to liability under this section.
2.16An affidavit of service by mailing must be retained by the retailer.

2.17    Sec. 4. Minnesota Statutes 2010, section 604.15, is amended by adding a subdivision
2.18to read:
2.19    Subd. 4a. Trade association services. A trade association recognized by the
2.20Internal Revenue Service as an exempt organization under section 501(c)(6) of the Internal
2.21Revenue Code may, on behalf of a member retailer, give and receive notices authorized by
2.22this section and collect payments for motor fuel and the service charge specified under
2.23subdivision 2.

2.24    Sec. 5. Minnesota Statutes 2010, section 609.52, subdivision 1, is amended to read:
2.25    Subdivision 1. Definitions. In this section:
2.26(1) "Property" means all forms of tangible property, whether real or personal,
2.27without limitation including documents of value, electricity, gas, water, corpses, domestic
2.28animals, dogs, pets, fowl, and heat supplied by pipe or conduit by municipalities or public
2.29utility companies and articles, as defined in clause (4), representing trade secrets, which
2.30articles shall be deemed for the purposes of Extra Session Laws 1967, chapter 15 to
2.31include any trade secret represented by the article.
2.32(2) "Movable property" is property whose physical location can be changed,
2.33including without limitation things growing on, affixed to, or found in land.
3.1(3) "Value" means the retail market value at the time of the theft, or if the retail
3.2market value cannot be ascertained, the cost of replacement of the property within a
3.3reasonable time after the theft, or in the case of a theft or the making of a copy of an article
3.4representing a trade secret, where the retail market value or replacement cost cannot be
3.5ascertained, any reasonable value representing the damage to the owner which the owner
3.6has suffered by reason of losing an advantage over those who do not know of or use the
3.7trade secret. For a check, draft, or other order for the payment of money, "value" means
3.8the amount of money promised or ordered to be paid under the terms of the check, draft, or
3.9other order. For a theft committed within the meaning of subdivision 2, clause (5), items
3.10(i) and (ii), if the property has been restored to the owner, "value" means the value of the
3.11use of the property or the damage which it sustained, whichever is greater, while the owner
3.12was deprived of its possession, but not exceeding the value otherwise provided herein. For
3.13a theft committed within the meaning of subdivision 2, clause (9), if the property has been
3.14restored to the owner, "value" means the rental value of the property, determined at the
3.15rental rate contracted by the defendant or, if no rental rate was contracted, the rental rate
3.16customarily charged by the owner for use of the property, plus any damage that occurred
3.17to the property while the owner was deprived of its possession, but not exceeding the total
3.18retail value of the property at the time of rental.
3.19(4) "Article" means any object, material, device or substance, including any
3.20writing, record, recording, drawing, sample specimen, prototype, model, photograph,
3.21microorganism, blueprint or map, or any copy of any of the foregoing.
3.22(5) "Representing" means describing, depicting, containing, constituting, reflecting
3.23or recording.
3.24(6) "Trade secret" means information, including a formula, pattern, compilation,
3.25program, device, method, technique, or process, that:
3.26(i) derives independent economic value, actual or potential, from not being generally
3.27known to, and not being readily ascertainable by proper means by, other persons who can
3.28obtain economic value from its disclosure or use, and
3.29(ii) is the subject of efforts that are reasonable under the circumstances to maintain
3.30its secrecy.
3.31(7) "Copy" means any facsimile, replica, photograph or other reproduction of an
3.32article, and any note, drawing, or sketch made of or from an article while in the presence
3.33of the article.
3.34(8) "Property of another" includes property in which the actor is co-owner or has
3.35a lien, pledge, bailment, or lease or other subordinate interest, property transferred by
3.36the actor in circumstances which are known to the actor and which make the transfer
4.1fraudulent as defined in section 513.44, property possessed pursuant to a short-term rental
4.2contract, and property of a partnership of which the actor is a member, unless the actor and
4.3the victim are husband and wife. It does not include property in which the actor asserts in
4.4good faith a claim as a collection fee or commission out of property or funds recovered, or
4.5by virtue of a lien, setoff, or counterclaim.
4.6(9) "Services" include but are not limited to labor, professional services,
4.7transportation services, electronic computer services, the supplying of hotel
4.8accommodations, restaurant services, entertainment services, advertising services,
4.9telecommunication services, and the supplying of equipment for use including rental of
4.10personal property or equipment.
4.11(10) "Motor vehicle" means a self-propelled device for moving persons or property
4.12or pulling implements from one place to another, whether the device is operated on land,
4.13rails, water, or in the air.
4.14(11) "Motor fuel" has the meaning given in section 604.15, subdivision 1.
4.15(12) "Retailer" has the meaning given in section 604.15, subdivision 1.
4.16EFFECTIVE DATE.This section is effective August 1, 2012, and applies to crimes
4.17committed on or after that date.

4.18    Sec. 6. Minnesota Statutes 2010, section 609.52, subdivision 2, is amended to read:
4.19    Subd. 2. Acts constituting theft. Whoever does any of the following commits theft
4.20and may be sentenced as provided in subdivision 3:
4.21(1) intentionally and without claim of right takes, uses, transfers, conceals or retains
4.22possession of movable property of another without the other's consent and with intent to
4.23deprive the owner permanently of possession of the property; or
4.24(2) with or without having a legal interest in movable property, intentionally and
4.25without consent, takes the property out of the possession of a pledgee or other person
4.26having a superior right of possession, with intent thereby to deprive the pledgee or other
4.27person permanently of the possession of the property; or
4.28(3) obtains for the actor or another the possession, custody, or title to property of
4.29or performance of services by a third person by intentionally deceiving the third person
4.30with a false representation which is known to be false, made with intent to defraud, and
4.31which does defraud the person to whom it is made. "False representation" includes
4.32without limitation:
4.33(i) the issuance of a check, draft, or order for the payment of money, except a forged
4.34check as defined in section 609.631, or the delivery of property knowing that the actor is
4.35not entitled to draw upon the drawee therefor or to order the payment or delivery thereof; or
5.1(ii) a promise made with intent not to perform. Failure to perform is not evidence of
5.2intent not to perform unless corroborated by other substantial evidence; or
5.3(iii) the preparation or filing of a claim for reimbursement, a rate application, or a
5.4cost report used to establish a rate or claim for payment for medical care provided to a
5.5recipient of medical assistance under chapter 256B, which intentionally and falsely states
5.6the costs of or actual services provided by a vendor of medical care; or
5.7(iv) the preparation or filing of a claim for reimbursement for providing treatment
5.8or supplies required to be furnished to an employee under section 176.135 which
5.9intentionally and falsely states the costs of or actual treatment or supplies provided; or
5.10(v) the preparation or filing of a claim for reimbursement for providing treatment or
5.11supplies required to be furnished to an employee under section 176.135 for treatment or
5.12supplies that the provider knew were medically unnecessary, inappropriate, or excessive;
5.13or
5.14(4) by swindling, whether by artifice, trick, device, or any other means, obtains
5.15property or services from another person; or
5.16(5) intentionally commits any of the acts listed in this subdivision but with intent
5.17to exercise temporary control only and:
5.18(i) the control exercised manifests an indifference to the rights of the owner or the
5.19restoration of the property to the owner; or
5.20(ii) the actor pledges or otherwise attempts to subject the property to an adverse
5.21claim; or
5.22(iii) the actor intends to restore the property only on condition that the owner pay a
5.23reward or buy back or make other compensation; or
5.24(6) finds lost property and, knowing or having reasonable means of ascertaining the
5.25true owner, appropriates it to the finder's own use or to that of another not entitled thereto
5.26without first having made reasonable effort to find the owner and offer and surrender the
5.27property to the owner; or
5.28(7) intentionally obtains property or services, offered upon the deposit of a sum of
5.29money or tokens in a coin or token operated machine or other receptacle, without making
5.30the required deposit or otherwise obtaining the consent of the owner; or
5.31(8) intentionally and without claim of right converts any article representing a trade
5.32secret, knowing it to be such, to the actor's own use or that of another person or makes a
5.33copy of an article representing a trade secret, knowing it to be such, and intentionally and
5.34without claim of right converts the same to the actor's own use or that of another person.
5.35It shall be a complete defense to any prosecution under this clause for the defendant to
6.1show that information comprising the trade secret was rightfully known or available to the
6.2defendant from a source other than the owner of the trade secret; or
6.3(9) leases or rents personal property under a written instrument and who:
6.4(i) with intent to place the property beyond the control of the lessor conceals or aids
6.5or abets the concealment of the property or any part thereof; or
6.6(ii) sells, conveys, or encumbers the property or any part thereof without the written
6.7consent of the lessor, without informing the person to whom the lessee sells, conveys, or
6.8encumbers that the same is subject to such lease or rental contract with intent to deprive
6.9the lessor of possession thereof; or
6.10(iii) does not return the property to the lessor at the end of the lease or rental term,
6.11plus agreed-upon extensions, with intent to wrongfully deprive the lessor of possession
6.12of the property; or
6.13(iv) returns the property to the lessor at the end of the lease or rental term, plus
6.14agreed-upon extensions, but does not pay the lease or rental charges agreed upon in the
6.15written instrument, with intent to wrongfully deprive the lessor of the agreed-upon charges.
6.16For the purposes of items (iii) and (iv), the value of the property must be at least $100.
6.17Evidence that a lessee used a false, fictitious, or not current name, address, or place of
6.18employment in obtaining the property or fails or refuses to return the property or pay the
6.19rental contract charges to lessor within five days after written demand for the return has
6.20been served personally in the manner provided for service of process of a civil action
6.21or sent by certified mail to the last known address of the lessee, whichever shall occur
6.22later, shall be evidence of intent to violate this clause. Service by certified mail shall be
6.23deemed to be complete upon deposit in the United States mail of such demand, postpaid
6.24and addressed to the person at the address for the person set forth in the lease or rental
6.25agreement, or, in the absence of the address, to the person's last known place of residence;
6.26or
6.27(10) alters, removes, or obliterates numbers or symbols placed on movable property
6.28for purpose of identification by the owner or person who has legal custody or right
6.29to possession thereof with the intent to prevent identification, if the person who alters,
6.30removes, or obliterates the numbers or symbols is not the owner and does not have the
6.31permission of the owner to make the alteration, removal, or obliteration; or
6.32(11) with the intent to prevent the identification of property involved, so as to
6.33deprive the rightful owner of possession thereof, alters or removes any permanent serial
6.34number, permanent distinguishing number or manufacturer's identification number on
6.35personal property or possesses, sells or buys any personal property knowing or having
7.1reason to know that the permanent serial number, permanent distinguishing number or
7.2manufacturer's identification number has been removed or altered; or
7.3(12) intentionally deprives another of a lawful charge for cable television service by:
7.4(i) making or using or attempting to make or use an unauthorized external connection
7.5outside the individual dwelling unit whether physical, electrical, acoustical, inductive, or
7.6other connection; or by
7.7(ii) attaching any unauthorized device to any cable, wire, microwave, or other
7.8component of a licensed cable communications system as defined in chapter 238. Nothing
7.9herein shall be construed to prohibit the electronic video rerecording of program material
7.10transmitted on the cable communications system by a subscriber for fair use as defined by
7.11Public Law 94-553, section 107; or
7.12(13) except as provided in clauses (12) and (14), obtains the services of another with
7.13the intention of receiving those services without making the agreed or reasonably expected
7.14payment of money or other consideration; or
7.15(14) intentionally deprives another of a lawful charge for telecommunications
7.16service by:
7.17(i) making, using, or attempting to make or use an unauthorized connection whether
7.18physical, electrical, by wire, microwave, radio, or other means to a component of a local
7.19telecommunication system as provided in chapter 237; or
7.20(ii) attaching an unauthorized device to a cable, wire, microwave, radio, or other
7.21component of a local telecommunication system as provided in chapter 237.
7.22The existence of an unauthorized connection is prima facie evidence that the
7.23occupier of the premises:
7.24(A) made or was aware of the connection; and
7.25(B) was aware that the connection was unauthorized;
7.26(15) with intent to defraud, diverts corporate property other than in accordance with
7.27general business purposes or for purposes other than those specified in the corporation's
7.28articles of incorporation; or
7.29(16) with intent to defraud, authorizes or causes a corporation to make a distribution
7.30in violation of section 302A.551, or any other state law in conformity with it; or
7.31(17) takes or drives a motor vehicle without the consent of the owner or an
7.32authorized agent of the owner, knowing or having reason to know that the owner or an
7.33authorized agent of the owner did not give consent.; or
7.34(18) intentionally, and without claim of right, takes motor fuel from a retailer without
7.35the retailer's consent and with intent to deprive the retailer permanently of possession
8.1of the fuel by driving a motor vehicle from the premises of the retailer without having
8.2paid for the fuel dispensed into the vehicle.
8.3Proof that the driver of a motor vehicle into which motor fuel was dispensed drove
8.4the vehicle from the premises of the retailer without having paid for the fuel permits the
8.5factfinder to infer that the driver acted intentionally and without claim of right, and that
8.6the driver intended to deprive the retailer permanently of possession of the fuel. This
8.7paragraph does not apply if: (1) payment has been made to the retailer within 30 days
8.8of the receipt of notice of nonpayment under section 604.15; or (2) a written notice as
8.9described in section 604.15, subdivision 4, disputing the retailer's claim, has been sent.
8.10This paragraph does not apply to the owner of a motor vehicle if the vehicle or the
8.11vehicle's license plate has been reported stolen before the theft of the fuel.
8.12EFFECTIVE DATE.This section is effective August 1, 2012, and applies to crimes
8.13committed on or after that date.