Sub. S. B. No. 223 As Passed by the House (Corrected Version)

As Passed by the House (Corrected Version)

129th General Assembly

Regular Session

2011-2012

Sub. S. B. No. 223

Senator Bacon

Cosponsors: Senators Wagoner, Faber, Turner, Kearney, Obhof, Balderson, Beagle, Burke, Cafaro, Coley, Daniels, Eklund, Hite, Hughes, Jones, Lehner, Manning, Niehaus, Oelslager, Sawyer, Schaffer, Schiavoni, Seitz, Smith, Tavares, Widener
Representatives Winburn, Pillich, Williams, Slaby, Hayes, Bubp, Sprague, Uecker, Young, Conditt, Blessing, Anielski, Antonio, Boose, Boyd, Buchy, Combs, DeVitis, Dovilla, Grossman, Hackett, Hall, Hill, Johnson, McGregor, Newbold, O'Brien, Patmon, Roegner, Thompson Speaker Batchelder

A BILL

To amend sections 2913.05 and 4719.17 and to enact

section 109.88 of the Revised Code to allow the

Attorney General to investigate the offenses of

unauthorized use of property and

telecommunications fraud, to modify the penalties

for telecommunications fraud, and to create the

offense of telecommunications fraud perpetrated

against an elderly person or disabled adult.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 2913.05 and 4719.17 be amended and	9
section 109.88 of the Revised Code be enacted to read as follows:	10

Sec. 109.88. (A) If the attorney general has reasonable	11
cause to believe that a person or enterprise has engaged in, is	12
engaging in, or is preparing to engage in a violation of any	13
provision of section 2913.04 or 2913.05 of the Revised Code, the	14
attorney general may investigate the alleged violation.	15

(B) For purposes of an investigation under division (A) of	16
this section, the attorney general may issue subpoenas and	17
subpoenas duces tecum. The attorney general may compel the	18
attendance of witnesses and the production of records and papers	19
of all kinds and descriptions that are relevant to the	20
investigation, including, but not limited to, any books, accounts,	21
documents, and memoranda pertaining to the subject of the	22
investigation. Upon the failure of any person to comply with any	23
subpoena or subpoena duces tecum issued by the attorney general	24
under this section, the attorney general may apply to the court of	25
common pleas in Franklin county or in any county in which an	26
element of the crime occurred for a contempt order as in the case	27
of disobedience of the requirements of a subpoena issued from the	28
court of common pleas or a refusal to testify on a subpoena. A	29
subpoena or subpoena duces tecum issued by the attorney general	30
under this section to a provider of electronic communication	31
services or remote computing services shall be subject to the	32
limitations set forth in the "Electronic Communications Privacy	33
Act of 1986," 18 U.S.C. 2703.	34

(C) Any information gathered by the attorney general during	35
the course of the investigation that is in the possession of the	36
attorney general, a prosecuting attorney, a law enforcement	37
agency, or a special prosecutor is a confidential law enforcement	38
investigatory record for purposes of section 149.43 of the Revised	39
Code. No provision contained in this section affects or limits any	40
right of discovery granted to any person under the Revised Code,	41
the Rules of Criminal Procedure, or the Rules of Juvenile	42
Procedure.	43

Sec. 2913.05. (A) No person, having devised a scheme to	44
defraud, shall knowingly disseminate, transmit, or cause to be	45
disseminated or transmitted by means of a wire, radio, satellite,	46
telecommunication, telecommunications device, or	47
telecommunications service any writing, data, sign, signal,	48
picture, sound, or image with purpose to execute or otherwise	49
further the scheme to defraud.	50

(B) ~~Whoever~~If an offender commits a violation of division	51
(A) of this section and the violation occurs as part of a course	52
of conduct involving other violations of division (A) of this	53
section or violations of, attempts to violate, conspiracies to	54
violate, or complicity in violations of section 2913.02, 2913.04,	55
2913.11, 2913.21, 2913.31, 2913.42, 2913.43, or 2921.13 of the	56
Revised Code, the court, in determining the degree of the offense	57
pursuant to division (C) or (D) of this section, may aggregate the	58
value of the benefit obtained by the offender or of the detriment	59
to the victim of the fraud in the violations involved in that	60
course of conduct. The course of conduct may involve one victim or	61
more than one victim.	62

(C) Except as otherwise provided in division (D) of this	63
section, whoever violates this section is guilty of	64
telecommunications fraud. Except as otherwise provided in this	65
division, telecommunications fraud is a felony of the fifth	66
degree. If the value of the benefit obtained by the offender or of	67
the detriment to the victim of the fraud is ~~five~~one thousand	68
dollars or more but less than ~~one hundred~~seven thousand five	69
hundred dollars, telecommunications fraud is a felony of the	70
fourth degree. If the value of the benefit obtained by the	71
offender or of the detriment to the victim of the fraud is ~~one~~	72
~~hundred~~seven thousand five hundred dollars or more but less than	73
one hundred fifty thousand dollars, telecommunications fraud is a	74
felony of the third degree. If the value of the benefit obtained	75
by the offender or of the detriment to the victims of the fraud is	76
one hundred fifty thousand dollars or more but less than one	77
million dollars, telecommunications fraud is a felony of the	78
second degree. If the value of the benefit obtained by the	79
offender or of the detriment to the victims of the fraud is one	80
million dollars or more, telecommunications fraud is a felony of	81
the first degree.	82

(D) If the victim of the offense is an elderly person or	83
disabled adult, a violation of this section is telecommunications	84
fraud perpetrated against an elderly person or disabled adult, and	85
division (D) of this section applies. Except as otherwise provided	86
in this division, telecommunications fraud perpetrated against an	87
elderly person or disabled adult is a felony of the fourth degree.	88
If the value of the benefit obtained by the offender or of the	89
detriment to the victims of the fraud is one thousand dollars or	90
more but less than seven thousand five hundred dollars,	91
telecommunications fraud perpetrated against an elderly person or	92
disabled adult is a felony of the third degree. If the value of	93
the benefit obtained by the offender or of the detriment to the	94
victims of the fraud is seven thousand five hundred dollars or	95
more but less than one hundred fifty thousand dollars,	96
telecommunications fraud perpetrated against an elderly person or	97
disabled adult is a felony of the second degree. If the value of	98
the benefit obtained by the offender or of the detriment to the	99
victims of the fraud is one hundred fifty thousand dollars or	100
more, telecommunications fraud perpetrated against an elderly	101
person or disabled adult is a felony of the first degree.	102

Sec. 4719.17. There is hereby created in the state treasury	103
the telemarketing fraud enforcement fund. The treasurer of state	104
shall deposit into the fund registration fees paid pursuant to	105
divisions (A) and (D) of section 4719.02 of the Revised Code. The	106
consumer protection section of the office of the attorney general	107
shall use the moneys in the fund ~~for the administration and~~	108
~~enforcement of the program of registration established in sections~~	109
~~4719.01 to 4719.18 of the Revised Code and also~~to pay for any	110
expenses reasonably related to the administration of Chapter 4719.	111
of the Revised Code, the investigation or prosecution of any	112
crimes investigated by the consumer protection section, or for	113
educational activities that advance the purposes of ~~sections~~	114
~~4719.01 to 4719.18~~Chapter 4719. of the Revised Code as set forth	115
in section 4719.18 of the Revised Code.	116

Section 2. That existing sections 2913.05 and 4719.17 of the	117
Revised Code are hereby repealed.	118