As Passed by the Senate

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 

A BILL
To amend sections 2913.05 and 4719.17 and to enact 1
section 109.88 of the Revised Code to allow the 2
Attorney General to investigate the offenses of 3
unauthorized use of property and 4
telecommunications fraud, to modify the penalties 5
for telecommunications fraud, and to create the 6
offense of telecommunications fraud perpetrated 7
against an elderly person or disabled adult.8


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 shall be subject to the limitations set forth in the 32
"Electronic Communications Privacy Act of 1986," 18 U.S.C. 2703.33

       (C) Any information gathered by the attorney general during 34
the course of the investigation that is in the possession of the 35
attorney general, a prosecuting attorney, a law enforcement 36
agency, or a special prosecutor is a confidential law enforcement 37
investigatory record for purposes of section 149.43 of the Revised 38
Code. No provision contained in this section affects or limits any 39
right of discovery granted to any person under the Revised Code, 40
the Rules of Criminal Procedure, or the Rules of Juvenile 41
Procedure.42

       Sec. 2913.05.  (A) No person, having devised a scheme to 43
defraud, shall knowingly disseminate, transmit, or cause to be 44
disseminated or transmitted by means of a wire, radio, satellite, 45
telecommunication, telecommunications device, or 46
telecommunications service any writing, data, sign, signal, 47
picture, sound, or image with purpose to execute or otherwise 48
further the scheme to defraud.49

       (B) If an offender commits a violation of division (A) of 50
this section and the violation occurs as part of a course of 51
conduct involving other violations of division (A) of this section 52
or violations of, attempts to violate, conspiracies to violate, or 53
complicity in violations of section 2913.02, 2913.04, 2913.11, 54
2913.21, 2913.31, 2913.42, 2913.43, or 2921.13 of the Revised 55
Code, the court, in determining the degree of the offense pursuant 56
to division (C) or (D) of this section, may aggregate the value of 57
the benefit obtained by the offender or of the detriment to the 58
victim of the fraud in the violations involved in that course of 59
conduct. The course of conduct may involve one victim or more than 60
one victim.61

        (C) Whoever violates this section, subject to division (B) of 62
this section, is guilty of telecommunications fraud if the victim 63
is not an elderly person or disabled adult. Except as otherwise 64
provided in this division, telecommunications fraud is a felony of 65
the fifth degree. If the value of the benefit obtained by the 66
offender or of the detriment to the victim of the fraud is five67
one thousand dollars or more but less than one hundredseven68
thousand five hundred dollars, telecommunications fraud is a 69
felony of the fourth degree. If the value of the benefit obtained 70
by the offender or of the detriment to the victim of the fraud is 71
one hundredseven thousand five hundred dollars or more but less 72
than one hundred fifty thousand dollars, telecommunications fraud 73
is a felony of the third degree. If the value of the benefit 74
obtained by the offender or of the detriment to the victims of the 75
fraud is one hundred fifty thousand dollars or more but less than 76
one million dollars, telecommunications fraud is a felony of the 77
second degree. If the value of the benefit obtained by the 78
offender or of the detriment to the victims of the fraud is one 79
million dollars or more, telecommunications fraud is a felony of 80
the first degree.81

       (D) If the victim of the offense is an elderly person or 82
disabled adult and the offender knows or has reasonable cause to 83
know that the victim of the offense is an elderly person or 84
disabled adult, a violation of this section is telecommunications 85
fraud perpetrated against an elderly person or disabled adult, and 86
division (D) of this section applies. Except as otherwise provided 87
in this division, telecommunications fraud perpetrated against an 88
elderly person or disabled adult is a felony of the fourth degree. 89
If the value of the benefit obtained by the offender or of the 90
detriment to the victims of the fraud is one thousand dollars or 91
more but less than seven thousand five hundred dollars, 92
telecommunications fraud perpetrated against an elderly person or 93
disabled adult is a felony of the third degree. If the value of 94
the benefit obtained by the offender or of the detriment to the 95
victims of the fraud is seven thousand five hundred dollars or 96
more but less than one hundred fifty thousand dollars, 97
telecommunications fraud perpetrated against an elderly person or 98
disabled adult is a felony of the second degree. If the value of 99
the benefit obtained by the offender or of the detriment to the 100
victims of the fraud is one hundred fifty thousand dollars or 101
more, telecommunications fraud perpetrated against an elderly 102
person or disabled adult is a felony of the first degree.103

       Sec. 4719.17.  There is hereby created in the state treasury 104
the telemarketing fraud enforcement fund. The treasurer of state 105
shall deposit into the fund registration fees paid pursuant to 106
divisions (A) and (D) of section 4719.02 of the Revised Code. The 107
consumer protection section of the office of the attorney general 108
shall use the moneys in the fund for the administration and 109
enforcement of the program of registration established in sections 110
4719.01 to 4719.18 of the Revised Code and alsoto pay for any 111
expenses reasonably related to the administration of Chapter 4719. 112
of the Revised Code, the investigation or prosecution of any 113
crimes investigated by the consumer protection section, or for 114
educational activities that advance the purposes of sections 115
4719.01 to 4719.18Chapter 4719. of the Revised Code as set forth 116
in section 4719.18 of the Revised Code.117

       Section 2.  That existing sections 2913.05 and 4719.17 of the 118
Revised Code are hereby repealed.119