HF 2333

2nd Engrossment - 87th Legislature (2011 - 2012) Posted on 05/22/2012 03:22pm

A bill for an act
relating to public safety; specifically including theft of motor fuel in the theft
crime; creating a permissive inference regarding theft of motor fuel; modifying
the drive-off gas civil liability law; amending Minnesota Statutes 2010, sections
171.175; 332.32; 604.15, subdivision 3, by adding a subdivision; 609.52,
subdivisions 1, 2.

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

Section 1.

Minnesota Statutes 2010, section 171.175, is amended to read:

171.175 SUSPENSION; THEFT OF deleted text begin GASOLINE deleted text end new text begin MOTOR FUEL new text end OFFENSE.

Subdivision 1.

Theft of deleted text begin gasoline deleted text end new text begin motor fuel new text end .

The commissioner of public safety
shall suspend for 30 days the license of any person convicted or juvenile adjudicated
delinquent for theft of deleted text begin gasoline deleted text end new text begin motor fuel new text end under section 609.52, subdivision 2, clause
(1) new text begin or (18) new text end .

Subd. 2.

Definition.

For the purposes of this section, deleted text begin "gasoline" deleted text end new text begin "motor fuel" new text end has
the meaning given it in section deleted text begin 296A.01 deleted text end new text begin 604.15 new text end , subdivision deleted text begin 23 deleted text end new text begin 1 new text end .

Sec. 2.

Minnesota Statutes 2010, section 332.32, is amended to read:

332.32 EXCLUSIONS.

new text begin (a) new text end The term "collection agency" shall not include persons whose collection
activities are confined to and are directly related to the operation of a business other than
that of a collection agency such as, but not limited to banks when collecting accounts
owed to the banks and when the bank will sustain any loss arising from uncollectible
accounts, abstract companies doing an escrow business, real estate brokers, public officers,
persons acting under order of a court, lawyers, trust companies, insurance companies,
credit unions, savings associations, loan or finance companies unless they are engaged in
asserting, enforcing or prosecuting unsecured claims which have been purchased from
any person, firm, or association when there is recourse to the seller for all or part of the
claim if the claim is not collected.

new text begin (b) The term "collection agency" shall not include a trade association performing
services authorized by section 604.15, subdivision 4a, but the trade association in
performing the services may not engage in any conduct that would be prohibited for a
collection agency under section 332.37.
new text end

Sec. 3.

Minnesota Statutes 2010, section 604.15, subdivision 3, is amended to read:

Subd. 3.

Notice of nonpayment.

Notice of nonpayment that includes a citation to
this section and a description of the penalties contained in it shall be sent by the retailer to
the owner by regular mail, supported by an affidavit of service by mailing, to the address
indicated by records on the vehicle under section 86B.401 or 168.346. The notice must
include a signed statement by the employee who reported the act describing what the
employee observed and the license number of the motor vehicle deleted text begin , if known deleted text end . Failure of the
owner to receive a notice is not a defense to liability under this section.

An affidavit of service by mailing must be retained by the retailer.

Sec. 4.

Minnesota Statutes 2010, section 604.15, is amended by adding a subdivision
to read:

new text begin Subd. 4a. new text end

new text begin Trade association services. new text end

new text begin A trade association recognized by the
Internal Revenue Service as an exempt organization under section 501(c)(6) of the Internal
Revenue Code may, on behalf of a member retailer, give and receive notices authorized by
this section and collect payments for motor fuel and the service charge specified under
subdivision 2.
new text end

Sec. 5.

Minnesota Statutes 2010, section 609.52, subdivision 1, is amended to read:

Subdivision 1.

Definitions.

In this section:

(1) "Property" means all forms of tangible property, whether real or personal,
without limitation including documents of value, electricity, gas, water, corpses, domestic
animals, dogs, pets, fowl, and heat supplied by pipe or conduit by municipalities or public
utility companies and articles, as defined in clause (4), representing trade secrets, which
articles shall be deemed for the purposes of Extra Session Laws 1967, chapter 15 to
include any trade secret represented by the article.

(2) "Movable property" is property whose physical location can be changed,
including without limitation things growing on, affixed to, or found in land.

(3) "Value" means the retail market value at the time of the theft, or if the retail
market value cannot be ascertained, the cost of replacement of the property within a
reasonable time after the theft, or in the case of a theft or the making of a copy of an article
representing a trade secret, where the retail market value or replacement cost cannot be
ascertained, any reasonable value representing the damage to the owner which the owner
has suffered by reason of losing an advantage over those who do not know of or use the
trade secret. For a check, draft, or other order for the payment of money, "value" means
the amount of money promised or ordered to be paid under the terms of the check, draft, or
other order. For a theft committed within the meaning of subdivision 2, clause (5), items
(i) and (ii), if the property has been restored to the owner, "value" means the value of the
use of the property or the damage which it sustained, whichever is greater, while the owner
was deprived of its possession, but not exceeding the value otherwise provided herein. For
a theft committed within the meaning of subdivision 2, clause (9), if the property has been
restored to the owner, "value" means the rental value of the property, determined at the
rental rate contracted by the defendant or, if no rental rate was contracted, the rental rate
customarily charged by the owner for use of the property, plus any damage that occurred
to the property while the owner was deprived of its possession, but not exceeding the total
retail value of the property at the time of rental.

(4) "Article" means any object, material, device or substance, including any
writing, record, recording, drawing, sample specimen, prototype, model, photograph,
microorganism, blueprint or map, or any copy of any of the foregoing.

(5) "Representing" means describing, depicting, containing, constituting, reflecting
or recording.

(6) "Trade secret" means information, including a formula, pattern, compilation,
program, device, method, technique, or process, that:

(i) derives independent economic value, actual or potential, from not being generally
known to, and not being readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use, and

(ii) is the subject of efforts that are reasonable under the circumstances to maintain
its secrecy.

(7) "Copy" means any facsimile, replica, photograph or other reproduction of an
article, and any note, drawing, or sketch made of or from an article while in the presence
of the article.

(8) "Property of another" includes property in which the actor is co-owner or has
a lien, pledge, bailment, or lease or other subordinate interest, property transferred by
the actor in circumstances which are known to the actor and which make the transfer
fraudulent as defined in section 513.44, property possessed pursuant to a short-term rental
contract, and property of a partnership of which the actor is a member, unless the actor and
the victim are husband and wife. It does not include property in which the actor asserts in
good faith a claim as a collection fee or commission out of property or funds recovered, or
by virtue of a lien, setoff, or counterclaim.

(9) "Services" include but are not limited to labor, professional services,
transportation services, electronic computer services, the supplying of hotel
accommodations, restaurant services, entertainment services, advertising services,
telecommunication services, and the supplying of equipment for use including rental of
personal property or equipment.

(10) "Motor vehicle" means a self-propelled device for moving persons or property
or pulling implements from one place to another, whether the device is operated on land,
rails, water, or in the air.

new text begin (11) "Motor fuel" has the meaning given in section 604.15, subdivision 1.
new text end

new text begin (12) "Retailer" has the meaning given in section 604.15, subdivision 1.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2012, and applies to crimes
committed on or after that date.
new text end

Sec. 6.

Minnesota Statutes 2010, section 609.52, subdivision 2, is amended to read:

Subd. 2.

Acts constituting theft.

Whoever does any of the following commits theft
and may be sentenced as provided in subdivision 3:

(1) intentionally and without claim of right takes, uses, transfers, conceals or retains
possession of movable property of another without the other's consent and with intent to
deprive the owner permanently of possession of the property; or

(2) with or without having a legal interest in movable property, intentionally and
without consent, takes the property out of the possession of a pledgee or other person
having a superior right of possession, with intent thereby to deprive the pledgee or other
person permanently of the possession of the property; or

(3) obtains for the actor or another the possession, custody, or title to property of
or performance of services by a third person by intentionally deceiving the third person
with a false representation which is known to be false, made with intent to defraud, and
which does defraud the person to whom it is made. "False representation" includes
without limitation:

(i) the issuance of a check, draft, or order for the payment of money, except a forged
check as defined in section 609.631, or the delivery of property knowing that the actor is
not entitled to draw upon the drawee therefor or to order the payment or delivery thereof; or

(ii) a promise made with intent not to perform. Failure to perform is not evidence of
intent not to perform unless corroborated by other substantial evidence; or

(iii) the preparation or filing of a claim for reimbursement, a rate application, or a
cost report used to establish a rate or claim for payment for medical care provided to a
recipient of medical assistance under chapter 256B, which intentionally and falsely states
the costs of or actual services provided by a vendor of medical care; or

(iv) the preparation or filing of a claim for reimbursement for providing treatment
or supplies required to be furnished to an employee under section 176.135 which
intentionally and falsely states the costs of or actual treatment or supplies provided; or

(v) the preparation or filing of a claim for reimbursement for providing treatment or
supplies required to be furnished to an employee under section 176.135 for treatment or
supplies that the provider knew were medically unnecessary, inappropriate, or excessive;
or

(4) by swindling, whether by artifice, trick, device, or any other means, obtains
property or services from another person; or

(5) intentionally commits any of the acts listed in this subdivision but with intent
to exercise temporary control only and:

(i) the control exercised manifests an indifference to the rights of the owner or the
restoration of the property to the owner; or

(ii) the actor pledges or otherwise attempts to subject the property to an adverse
claim; or

(iii) the actor intends to restore the property only on condition that the owner pay a
reward or buy back or make other compensation; or

(6) finds lost property and, knowing or having reasonable means of ascertaining the
true owner, appropriates it to the finder's own use or to that of another not entitled thereto
without first having made reasonable effort to find the owner and offer and surrender the
property to the owner; or

(7) intentionally obtains property or services, offered upon the deposit of a sum of
money or tokens in a coin or token operated machine or other receptacle, without making
the required deposit or otherwise obtaining the consent of the owner; or

(8) intentionally and without claim of right converts any article representing a trade
secret, knowing it to be such, to the actor's own use or that of another person or makes a
copy of an article representing a trade secret, knowing it to be such, and intentionally and
without claim of right converts the same to the actor's own use or that of another person.
It shall be a complete defense to any prosecution under this clause for the defendant to
show that information comprising the trade secret was rightfully known or available to the
defendant from a source other than the owner of the trade secret; or

(9) leases or rents personal property under a written instrument and who:

(i) with intent to place the property beyond the control of the lessor conceals or aids
or abets the concealment of the property or any part thereof; or

(ii) sells, conveys, or encumbers the property or any part thereof without the written
consent of the lessor, without informing the person to whom the lessee sells, conveys, or
encumbers that the same is subject to such lease or rental contract with intent to deprive
the lessor of possession thereof; or

(iii) does not return the property to the lessor at the end of the lease or rental term,
plus agreed-upon extensions, with intent to wrongfully deprive the lessor of possession
of the property; or

(iv) returns the property to the lessor at the end of the lease or rental term, plus
agreed-upon extensions, but does not pay the lease or rental charges agreed upon in the
written instrument, with intent to wrongfully deprive the lessor of the agreed-upon charges.

For the purposes of items (iii) and (iv), the value of the property must be at least $100.

Evidence that a lessee used a false, fictitious, or not current name, address, or place of
employment in obtaining the property or fails or refuses to return the property or pay the
rental contract charges to lessor within five days after written demand for the return has
been served personally in the manner provided for service of process of a civil action
or sent by certified mail to the last known address of the lessee, whichever shall occur
later, shall be evidence of intent to violate this clause. Service by certified mail shall be
deemed to be complete upon deposit in the United States mail of such demand, postpaid
and addressed to the person at the address for the person set forth in the lease or rental
agreement, or, in the absence of the address, to the person's last known place of residence;
or

(10) alters, removes, or obliterates numbers or symbols placed on movable property
for purpose of identification by the owner or person who has legal custody or right
to possession thereof with the intent to prevent identification, if the person who alters,
removes, or obliterates the numbers or symbols is not the owner and does not have the
permission of the owner to make the alteration, removal, or obliteration; or

(11) with the intent to prevent the identification of property involved, so as to
deprive the rightful owner of possession thereof, alters or removes any permanent serial
number, permanent distinguishing number or manufacturer's identification number on
personal property or possesses, sells or buys any personal property knowing or having
reason to know that the permanent serial number, permanent distinguishing number or
manufacturer's identification number has been removed or altered; or

(12) intentionally deprives another of a lawful charge for cable television service by:

(i) making or using or attempting to make or use an unauthorized external connection
outside the individual dwelling unit whether physical, electrical, acoustical, inductive, or
other connection; or by

(ii) attaching any unauthorized device to any cable, wire, microwave, or other
component of a licensed cable communications system as defined in chapter 238. Nothing
herein shall be construed to prohibit the electronic video rerecording of program material
transmitted on the cable communications system by a subscriber for fair use as defined by
Public Law 94-553, section 107; or

(13) except as provided in clauses (12) and (14), obtains the services of another with
the intention of receiving those services without making the agreed or reasonably expected
payment of money or other consideration; or

(14) intentionally deprives another of a lawful charge for telecommunications
service by:

(i) making, using, or attempting to make or use an unauthorized connection whether
physical, electrical, by wire, microwave, radio, or other means to a component of a local
telecommunication system as provided in chapter 237; or

(ii) attaching an unauthorized device to a cable, wire, microwave, radio, or other
component of a local telecommunication system as provided in chapter 237.

The existence of an unauthorized connection is prima facie evidence that the
occupier of the premises:

(A) made or was aware of the connection; and

(B) was aware that the connection was unauthorized;

(15) with intent to defraud, diverts corporate property other than in accordance with
general business purposes or for purposes other than those specified in the corporation's
articles of incorporation; or

(16) with intent to defraud, authorizes or causes a corporation to make a distribution
in violation of section 302A.551, or any other state law in conformity with it; or

(17) takes or drives a motor vehicle without the consent of the owner or an
authorized agent of the owner, knowing or having reason to know that the owner or an
authorized agent of the owner did not give consent deleted text begin . deleted text end new text begin ; or
new text end

new text begin (18) intentionally, and without claim of right, takes motor fuel from a retailer without
the retailer's consent and with intent to deprive the retailer permanently of possession
of the fuel by driving a motor vehicle from the premises of the retailer without having
paid for the fuel dispensed into the vehicle.
new text end

new text begin Proof that the driver of a motor vehicle into which motor fuel was dispensed drove
the vehicle from the premises of the retailer without having paid for the fuel permits the
factfinder to infer that the driver acted intentionally and without claim of right, and that
the driver intended to deprive the retailer permanently of possession of the fuel. This
paragraph does not apply if: (1) payment has been made to the retailer within 30 days
of the receipt of notice of nonpayment under section 604.15; or (2) a written notice as
described in section 604.15, subdivision 4, disputing the retailer's claim, has been sent.
This paragraph does not apply to the owner of a motor vehicle if the vehicle or the
vehicle's license plate has been reported stolen before the theft of the fuel.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2012, and applies to crimes
committed on or after that date.
new text end