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Sub. H. B. No. 179As Reported by the Senate Judiciary--Criminal Justice CommitteeAs Reported by the Senate Judiciary--Criminal Justice Committee
125th General Assembly | Regular Session | 2003-2004 |
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REPRESENTATIVES Wolpert, McGregor, DeWine, C. Evans, Carano, Schmidt, Flowers, Aslanides, D. Evans, Gibbs, Allen, Seitz, Beatty, Harwood, Book, Schlichter, Willamowski, Grendell, Latta, Barrett, Boccieri, Buehrer, Carmichael, Cates, Chandler, Cirelli, Clancy, Collier, Daniels, DeBose, Domenick, Gilb, Hagan, Hoops, Hughes, Jerse, Jolivette, Kearns, Key, Koziura, Niehaus, Olman, Price, Reidelbach, Schaffer, Schneider, Seaver, G. Smith, S. Smith, D. Stewart, J. Stewart, Taylor, Ujvagi, Wagner, Walcher, Widener, Williams, Wilson, Woodard, Young
SENATOR Austria
A BILL
To amend sections 2913.02, 2935.041, 3745.71, and 3745.72 and to enact section 2913.07 of the Revised Code to
permit a suspension of the driver's
licenses of offenders convicted of theft by reason of causing a motor vehicle to
leave the
premises of a retail gasoline
establishment
without full payment for gasoline
dispensed into
the motor vehicle's fuel tank or another
container; to declare that those sections in the Revised Code that regulate theft of gasoline in certain circumstances are general laws; to prohibit motion picture piracy; to authorize the detention of individuals suspected of motion picture piracy; and to extend from January 1, 2004, to January 1, 2009, the time by which environmental audits must be completed in order to be within the scope of certain privileges and immunities that apply to such audits.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2913.02, 2935.041, 3745.71, and 3745.72 be amended and section 2913.07 of the Revised Code be
enacted to read as follows:
Sec. 2913.02. (A) No person, with purpose to deprive the
owner of property or services, shall knowingly obtain or exert
control over either the property or services in any of the
following ways: (1) Without the consent of the owner or person authorized
to
give consent; (2) Beyond the scope of the express or implied consent of
the owner or person authorized to give consent; (B)(1) Whoever violates this section is guilty of theft. (2) Except as otherwise
provided in this division or
division (B)(3), (4), (5), or (6) of
this section, a violation of
this section is petty theft, a
misdemeanor of the first degree.
If the value of the property or
services stolen is five hundred
dollars or more and is less than
five thousand dollars or if the
property stolen is any of the
property listed in section 2913.71
of the Revised Code, a
violation of this section is theft, a
felony of the fifth
degree. If the value of the property or
services stolen is five
thousand dollars or more and is less than
one hundred thousand
dollars, a violation of this
section is grand
theft, a felony of the fourth degree. If the value of the
property or
services stolen is one hundred thousand dollars or
more and is less than five hundred thousand dollars, a
violation of this section is aggravated theft, a felony of
the
third degree.
If the value of the property or services is five hundred thousand dollars or more and is less than one million dollars, a violation of this section is aggravated theft, a felony of the second degree. If the value of the property or services
stolen is one million dollars or more, a violation of this section
is aggravated theft of one million dollars or more, a felony of
the first degree. (3) Except as otherwise provided in division (B)(4),
(5), or
(6)
of this section, if the victim of the offense is an elderly
person or
disabled adult, a violation
of this section is theft
from an elderly person or disabled adult, and
division (B)(3) of
this section applies. Except as
otherwise provided in this
division, theft from an elderly person or disabled
adult is a
felony of the fifth degree. If the value of the property or
services stolen is five hundred dollars or more and is less than
five thousand dollars, theft from an elderly person or disabled
adult is a felony of the fourth degree. If the value of the
property or services stolen is five thousand dollars or more and
is less than twenty-five thousand dollars, theft from an elderly
person or disabled adult is a felony of the third degree. If the
value of the property or services stolen is twenty-five thousand
dollars or more and is less than one hundred thousand dollars,
theft from an elderly person or disabled adult is
a felony of the
second degree. If the value of the property or services stolen is one hundred thousand dollars or more, theft from an elderly person or disabled adult is a felony of the first degree. (4) If the property stolen is a firearm or dangerous
ordnance,
a violation of
this section is grand theft, a felony of
the fourth degree. (5) If the property stolen is a motor vehicle,
a violation
of this section
is grand theft of a motor vehicle, a felony of the
fourth degree. (6) If the property stolen is any dangerous drug, a
violation of
this section is theft of drugs, a felony of the
fourth degree,
or, if the offender previously has been convicted
of a felony
drug abuse offense, a felony of the third degree. (7) In addition to the penalties described in division
(B)(2) of this section, if the offender committed the violation by
causing a motor vehicle to leave the premises of an establishment
at which gasoline is offered for retail sale without the offender
making full payment for gasoline that was dispensed into the fuel
tank of the motor vehicle or into another container, the court
may do one of the following:
(a) Unless division (B)(7)(b) of this section applies,
suspend for not more than six months the offender's driver's license,
probationary driver's license, commercial driver's license,
temporary instruction permit, or nonresident operating privilege;
(b) If the offender's driver's license, probationary
driver's license, commercial driver's license, temporary
instruction permit, or nonresident operating privilege has
previously been suspended pursuant to division (B)(7)(a) of this
section, impose a class seven suspension of the offender's license, permit, or privilege from the range specified in division (A)(7) of section 4510.02 of the Revised Code, provided that the suspension shall be for at least six months.
(C) The sentencing court that suspends an offender's license,
permit, or nonresident operating privilege under division (B)(7)
of this section may grant the offender limited driving privileges during
the period of the suspension in accordance with Chapter 4510. of the Revised Code.
Sec. 2913.07. (A) As used in this section: (1) "Audiovisual recording function" means the capability of a device to record or transmit a motion picture or any part of a motion picture by means of any technology existing on, or developed after, the effective date of this section. (2) "Facility" includes all retail establishments and movie theaters. (B) No person, without the written consent of the owner or lessee of the facility and of the licensor of the motion picture, shall knowingly operate an audiovisual recording function of a device in a facility in which a motion picture is being shown.
(C) Whoever violates division (B) of this section is guilty of motion picture piracy, a misdemeanor of the first degree on the first offense and a felony of the fifth degree on each subsequent offense.
(D) This section does not prohibit or restrict a lawfully authorized investigative, law enforcement, protective, or intelligence gathering employee or agent of the government of this state or a political subdivision of this state, or of the federal government, when acting in an official capacity, from operating an audiovisual recording function of a device in any facility in which a motion picture is being shown. (E) Division (B) of this section does not limit or affect the application of any other prohibition in the Revised Code. Any act that is a violation of both division (B) of this section and another provision of the Revised Code may be prosecuted under this section, under the other provision of the Revised Code, or under both this section and the other provision of the Revised Code.
Sec. 2935.041. (A) A merchant, or his an employee or agent of a
merchant, who has probable cause to believe that items offered for sale by
a mercantile establishment have been unlawfully taken by a person, may, for
the purposes set forth in division (C) of this section, detain the person in a
reasonable manner for a reasonable length of time within the mercantile
establishment or its immediate vicinity. (B) Any officer, employee, or agent of a library, museum, or archival
institution may, for the purposes set forth in division (C) of this section or
for the purpose of conducting a reasonable investigation of a belief that the
person has acted in a manner described in divisions (B)(1) and (2) of this
section, detain a person in a reasonable manner for a reasonable length of
time within, or in the immediate vicinity of, the library, museum, or archival
institution, if the officer, employee, or agent has probable cause to believe
that the person has either: (1) Without privilege to do so, knowingly moved, defaced, damaged, destroyed,
or otherwise improperly tempered with property owned by or in the custody of
the library, museum, or archival institution; or (2) With purpose to deprive the library, museum, or archival institution of
property owned by it or in its custody, knowingly obtained or exerted control
over the property without the consent of the owner or person authorized to
give consent, beyond the scope of the express or implied consent of the owner
or person authorized to give consent, by deception, or by threat. (C) An officer, agent, or employee of a library, museum, or archival
institution pursuant to division (B) of this section or a merchant or
his employee or agent of a merchant pursuant to division (A) of
this section may detain another person for any of the following purposes: (1) To recover the property that is the subject of the unlawful taking,
criminal mischief, or theft; (2) To cause an arrest to be made by a peace officer; (3) To obtain a warrant of arrest. (D) The owner or lessee of a facility in which a motion picture is being shown, or the owner's or lessee's employee or agent, who has probable cause to believe that a person is or has been operating an audiovisual recording function of a device in violation of section 2913.07 of the Revised Code may, for the purpose of causing an arrest to be made by a peace officer or of obtaining an arrest warrant, detain the person in a reasonable manner for a reasonable length of time within the facility or its immediate vicinity. (E) The officer, agent, or employee of the library, museum, or archival
institution, or the merchant or his employee or agent of a
merchant, or the owner, lessee, employee, or agent of the facility acting under division (A) or, (B), or (D) of this section shall not search
the person detained, search or seize any property belonging to the person detained
without the person's consent, or use undue restraint upon the person detained. (E)(F) Any peace officer may arrest without a warrant any person that he
the officer has probable cause to believe has committed any act
described in division (B)(1) or (2) of this section or, that he the
officer has probable cause to believe has committed an unlawful taking in
a mercantile establishment, or that the officer has reasonable cause to believe has committed an act prohibited by section 2913.07 of the Revised Code. An arrest under this division shall be made
within a reasonable time after the commission of the act or unlawful taking.
(F)(G) As used in this section:
(1) "Archival institution" means any public or private building, structure,
or shelter in which are stored historical documents, devices, records,
manuscripts, or items of public interest, which historical materials are
stored to preserve the materials or the information in the materials, to
disseminate the information contained in the materials, or to make the
materials available for public inspection or for inspection by certain persons
who have a particular interest in, use for, or knowledge concerning the
materials. (2) "Museum" means any public or private nonprofit institution that is
permanently organized for primarily educational or aesthetic purposes, owns or
borrows objects or items of public interest, and cares for and exhibits to
the public the objects or items. (3) "Audiovisual recording function" and "facility" have the same meaning as in section 2913.07 of the Revised Code.
Sec. 3745.71. (A) Except as otherwise provided in division
(C) of this section, the owner or operator of a facility or
property who conducts
an environmental audit of one or more activities at the facility or property
has a privilege with respect to both of the following: (1) The contents of an environmental audit report that is based on the
audit; (2) The contents of communications between the owner or operator and
employees or contractors of the owner or operator, or among employees or
contractors of the owner or operator, that are necessary to the audit and are
made in good faith as part of the audit after the employee or contractor is
notified that the communication is part of the audit. (B) Except as otherwise provided
in or ordered pursuant to this section, information that is privileged under
this section is not admissible as evidence or subject to discovery in any
civil or administrative proceeding and a person who
possesses such
information as a result of conducting or participating in an environmental
audit shall not be compelled to testify in any
civil or administrative proceeding
concerning the privileged portions of the environmental audit. (C) The privilege provided in this section does not apply to
criminal investigations or proceedings. Where an audit report
is obtained, reviewed, or used in a criminal proceeding, the
privilege provided in this section applicable to civil or
administrative proceedings is not waived or eliminated.
Furthermore, the
privilege provided in this section does not apply to
particular information under any of the following circumstances: (1) The privilege is not asserted with respect to that information by the
owner or operator to whom the privilege belongs. (2) The owner or operator to whom the privilege belongs voluntarily
testifies, or has provided
written authorization to an employee, contractor, or agent to testify on
behalf of the owner or
operator, as to that information. (3) A court of record in a civil proceeding or the
tribunal
or presiding officer in an administrative proceeding finds, pursuant to this
section, that the privilege does not apply to that information. (4) The information is required by law to be collected, developed,
maintained, reported, disclosed publicly, or otherwise made
available to a government agency. (5) The information is obtained from a source other than an environmental
audit report, including, without limitation, observation, sampling,
monitoring, a communication, a record, or a report that is not part of the
audit on which the
audit report is based. (6) The information is collected, developed, made, or maintained in bad
faith or for a fraudulent purpose. (7) The owner or operator to whom the privilege belongs waives the
privilege, in whole or in part, explicitly or by engaging in conduct that
manifests a clear intent that the information not be
privileged. If an owner or operator introduces part of an environmental
audit report into evidence in a civil or administrative
proceeding to prove that
the owner or operator did not violate, or is no longer violating, any
environmental laws, the privilege provided by this section is waived with
respect to all information in the audit report that is relevant to that
issue. (8)(a) The information shows evidence of noncompliance with
environmental laws and
the owner or operator fails to do any of the
following: (i) Promptly initiate
reasonable efforts to achieve compliance
upon discovery of the noncompliance through an
environmental audit; (ii) Pursue compliance with reasonable diligence; (iii) Achieve compliance within a reasonable
time. (b) "Reasonable diligence" includes,
without limitation, compliance with section 3745.72 of the Revised Code. (9) The information contains evidence that a government agency
federally authorized, approved, or delegated to enforce environmental laws
has reasonable cause to believe is necessary
to prevent imminent and substantial endangerment or harm to
human health or the environment. (10) Any circumstance in which both of the following apply: (a) The information contains evidence regarding an alleged
violation of environmental laws and a government agency charged with
enforcing any of those laws has a substantial need for the information to
protect public health or safety or to prevent substantial
harm to property or the environment; (b) The government agency is unable to obtain the substantial
equivalent of the information by other means without unreasonable delay or
expense. (11) The information consists of personal
knowledge of an individual who did not obtain that information as
part of an environmental audit. (12) The information is not clearly identified as part of an
environmental
audit report. For purposes of this section, clear identification of
information as part of an environmental audit report includes, without
limitation, either of the following: (a) The information is contained in a document and the front
cover, the first page, or a comparable part of the document is
prominently labeled
with "environmental audit report: privileged information" or substantially
comparable language; (b) The information is contained in an electronic record and the
record is programmed to display or print prominently "environmental audit
report: privileged information" or substantially comparable language before
the privileged information is displayed or printed. (13) The information
existed prior to the initiation of the environmental audit under
division (A) of section 3745.70
of the Revised
Code. (D) If the privilege provided in this section belongs to an owner
or operator who is not an individual, the privilege may be asserted or waived,
in whole or in part, on behalf of the owner or operator only by an officer,
manager, partner, or other comparable person who has a fiduciary relationship
with the owner or operator and is authorized generally to act on behalf of the
owner or operator or is a person who is authorized specifically to assert or
waive the privilege. (E) A person asserting the privilege provided in this section
has the burden of proving the applicability of the privilege by a
preponderance of the evidence. If a person seeking disclosure of information
with respect to which a privilege is asserted under this section shows
evidence of noncompliance with environmental laws pursuant to
division (C)(8) of this section, the person asserting the privilege
also has the burden of proving by a preponderance of the evidence that
reasonable efforts to achieve compliance with those laws were initiated
promptly and
that compliance was pursued with reasonable diligence and achieved
within a reasonable time. (F) When determining whether the privilege provided by this
section applies to particular information, a court of record that is not
acting pursuant to division (G) of this section, or the tribunal
or presiding officer in an administrative proceeding, shall conduct an in
camera review of the information in a manner consistent with applicable rules
of procedure. (G)(1) The prosecuting attorney of a county or the attorney
general, having
probable cause to believe, based on information obtained from a source
other than an environmental audit report, that a violation has been
committed under environmental laws for which a civil or administrative
action may be initiated, may obtain information with respect to
which a privilege is asserted under this section pursuant to a search warrant,
subpoena, or discovery under the Rules of Civil
Procedure. The prosecuting attorney or the attorney general
immediately shall place the
information under seal and shall not review or disclose its contents. (2) Not later than sixty days after receiving an
environmental audit report under division
(G)(1) of this section, the
prosecuting attorney or the attorney general may file with the
court of common pleas of a county in which
there is proper venue to bring a civil or administrative
action pertaining to the alleged violation a petition
requesting an in camera hearing to determine if the information described in
division (G)(1) of this section is subject to disclosure under this
section. Failure to file such a petition shall cause the information to be
released to the owner or operator to whom it belongs. (3) Upon the filing of a petition under division
(G)(2) of this section, the
court shall issue an order scheduling an in camera hearing, not
later than forty-five days after the filing of the petition, to
determine if any or all of the
information described in division (G)(1) of this section is subject
to disclosure under this section.
The order shall allow the prosecuting attorney or the
attorney general to remove the seal from the report in order to
review it and shall place appropriate limitations on
distribution and review of the report to protect against
unnecessary disclosure. (4) The prosecuting attorney or the attorney general may
consult with government agencies regarding the contents of the
report to prepare for the in camera hearing.
Information described in division (G)(1) of this section that is used
by the prosecuting attorney or the attorney general to prepare for the in
camera hearing shall not be used by the prosecuting attorney, the attorney
general,
an employee or agent of either of them, or an agency described in division
(G)(4) of this section in any investigation or proceeding against the
respondent, and otherwise shall be kept confidential, unless the information
is subject to disclosure under this section. (5) The parties may stipulate that information contained in an
environmental audit report is or is not subject to disclosure under this
section. (6) If the court determines that
information described in division (G)(1) of this section is
subject to disclosure under this section, the court shall compel disclosure
under this section of only the information that is relevant to the proceeding
described in division (G)(1) of this section. (H) Nothing in this section
affects the nature, scope, or application of any privilege of
confidentiality or nondisclosure
recognized under another section of the Revised Code or the
common law of this state, including, without limitation, the work product
doctrine and attorney-client privilege. (I) The privilege provided by this section applies only to
information and communications that are part of environmental audits
initiated after March 13, 1997, and completed
before January 1, 2004 2009, in accordance with the time
frames specified in division (A) of section 3745.70 of the
Revised Code.
Sec. 3745.72. (A) The owner or operator of a facility or
property who conducts an environmental audit of the facility or property and
promptly and voluntarily discloses information contained in or derived from an
audit report that is based on the audit and
concerns an alleged violation of environmental laws to the director of the
state agency that has jurisdiction over the alleged violation is immune from
any administrative and
civil penalties for the specific violation
disclosed, except that where the disclosed violation has
resulted in significant economic benefit to the owner or operator of the
facility or property, there is no immunity
for the economic benefit component of the administrative and
civil penalties for that violation.
An owner or operator asserting entitlement
to such immunity has the burden of proving that entitlement by a preponderance
of the evidence. (B) For the purposes of this section, a disclosure of information
is voluntary with respect to an alleged violation of environmental laws only
if all of the following apply: (1) The disclosure is made promptly after the
information is obtained through the environmental audit by the owner or
operator who conducts the environmental audit; (2) A reasonable, good faith effort is made to
achieve compliance as quickly as practicable with environmental laws
applicable to the information disclosed; (3) Compliance with environmental laws applicable to the information
disclosed is achieved as quickly as practicable or within such period as is
reasonably ordered by the director of the state agency that has jurisdiction
over the alleged violation; (4) The owner or operator cooperates with
the director of the state agency that has jurisdiction over the alleged
violation in investigating the cause, nature, extent, and effects of the
noncompliance; (5) The disclosure is not required by law, prior litigation, or an order
by a court or a government agency; (6) The owner or operator who makes the disclosure does not know or have
reason to know that a government agency charged with enforcing environmental
laws has commenced an investigation or enforcement action that
concerns a violation of such laws involving the activity. (C) For the purposes of this section, a disclosure shall be in
writing, dated, and hand delivered or sent by certified mail to the director
of the state agency that has jurisdiction over the alleged violation, and
shall contain all of the
following in a printed letter attached to the front of the disclosure: (1) The name, address, and telephone number of the owner or
operator making the disclosure; (2) The name, title, address, and telephone number of one or
more persons associated with the owner or operator who may be contacted
regarding the disclosure; (3) A brief summary of the alleged violation of environmental
laws, including, without limitation, the nature, date, and location of
the
alleged violation to the extent that the information is known by the owner or
operator; (4) A statement that the information is part of an
environmental audit report and is being disclosed under section 3745.72 of the
Revised Code
in order to obtain the immunity provided by that section. (D) This section does not provide immunity from the payment of
damages for harm to persons, property, or the environment; the payment of
reasonable costs incurred by a government agency in responding to a
disclosure;
or responsibility for the remediation or cleanup of
environmental harm under environmental laws. (E) The immunity provided by this section
does not apply
under any of the following circumstances: (1) Within the three-year period prior to disclosure,
the owner or operator of a facility or property has committed
significant violations that constitute a pattern of continuous
or repeated violations of environmental laws, environmental related settlement
agreements, or environmental related judicial orders and that arose from
separate and
distinct events. For the purposes of division
(E)(1) of this section, a
pattern of continuous or repeated violations also may be
demonstrated by multiple settlement agreements related to
substantially the same alleged significant violations that
occurred within the three-year period immediately prior to the
voluntary disclosure. Determination of whether a person has a
pattern of continuous or repeated violations under division
(E)(1) of this section shall be
based on the compliance history of the property or specific
facility at issue. (2) With respect to a specific violation, the
violation resulted in serious harm or in imminent and
substantial endangerment to human health or the
environment. (3) With respect to a specific violation, the
violation is of a specific requirement of an administrative or
judicial order. (F) The immunity provided by this section applies only to
disclosures made
concerning environmental audits initiated after
March 13, 1997, and completed before January 1,
2004 2009, in accordance with the time
frames specified in division (A) of section 3745.70 of the Revised
Code. (G) The immunity provided by this section applies to a person
who makes a good faith disclosure to a state agency under this section even
though another state agency is determined to have jurisdiction over an alleged
violation of environmental laws indicated in the disclosure. (H) Each state agency that receives a
disclosure under this section promptly shall record receipt of the disclosure,
determine whether it has jurisdiction over the alleged violation of
environmental laws indicated in the disclosure, and, if it does not have such
jurisdiction, deliver the disclosure documents to the director of a state
agency that has jurisdiction over the alleged violation. If a disclosure
indicates alleged violations of environmental laws that are under the
jurisdiction of more than one state agency, the state agency that first
receives the disclosure and has jurisdiction over any of the alleged
violations promptly shall notify the director of each state agency that has
jurisdiction over any of such alleged violations. The director of each state
agency that receives a disclosure under this section, or is notified by
another state agency that the director's agency has jurisdiction over an
alleged violation of environmental laws indicated in the disclosure, promptly
shall deliver written
notice of that fact by certified mail to the owner or operator who made the
disclosure. The notice shall identify the state agency that sends the notice;
state the name, title, address, and telephone number of a person in the agency
whom the owner or operator may contact regarding the
disclosure; and state the
name, address, and telephone number of the director of any other state agency
notified about the disclosure because that agency has jurisdiction over an
alleged violation of environmental laws indicated in the disclosure.
Section 2. That existing sections 2913.02, 2935.041, 3745.71, and 3745.72 of the Revised Code
are hereby repealed.
Section 3. The General Assembly declares that the sections of the Revised Code that regulate persons who leave the premises of establishments at which gasoline is offered for retail sale without the person making full payment for gasoline that was dispensed at that establishment, including section 2913.02 of the Revised Code, are general laws that completely fill the field of regulation of that nature. Any municipal ordinance that prohibits establishments at which gasoline is offered for retail sale from requiring the prepayment of gasoline is in conflict with those general laws.
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