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Sub. S. B. No. 223 As Reported by the Senate Insurance, Commerce and Labor CommitteeAs Reported by the Senate Insurance, Commerce and Labor Committee
126th General Assembly | Regular Session | 2005-2006 |
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Senators Niehaus, Schuring, Spada, Mumper, Jacobson, Clancy
A BILL
To amend sections 121.04, 121.08, 169.01, 169.13, and
169.99 and to enact sections 169.14, 169.16, and
169.17 of the Revised Code to statutorily recognize
the Division of Unclaimed Funds and the Office of
Superintendent of Unclaimed Funds in the Department
of Commerce and to require the registration of
persons who, for compensation, agree to locate or
recover the unclaimed funds of another.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 121.04, 121.08, 169.01, 169.13, and
169.99 be amended and sections 169.14, 169.16, and 169.17 of the
Revised Code be enacted to read as follows:
Sec. 121.04. Offices are created within the several
departments as follows: In the department of commerce:
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Commissioner of securities; |
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Superintendent of real estate and professional licensing; |
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Superintendent of financial institutions; |
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Fire marshal; |
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Superintendent of labor and worker safety; |
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Beginning on July 1, 1997, |
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Superintendent of liquor control; |
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Superintendent of industrial compliance; |
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Superintendent of unclaimed funds. |
In the department of administrative services:
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State architect and engineer; |
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Equal employment opportunity coordinator. |
In the department of agriculture: Chiefs of divisions as follows:
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Administration; |
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Animal industry; |
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Dairy; |
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Food safety; |
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Plant industry; |
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Markets; |
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Meat inspection; |
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Consumer analytical laboratory; |
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Amusement ride safety; |
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Enforcement; |
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Weights and measures. |
In the department of natural resources: Chiefs of divisions as follows:
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Water; |
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Mineral resources management; |
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Forestry; |
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Natural areas and preserves; |
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Wildlife; |
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Geological survey; |
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Parks and recreation; |
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Watercraft; |
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Recycling and litter prevention; |
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Soil and water conservation; |
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Real estate and land management; |
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Engineering. |
In the department of insurance:
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Deputy superintendent of insurance; |
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Assistant superintendent of insurance, technical; |
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Assistant superintendent of insurance,
administrative; |
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Assistant superintendent of insurance, research. |
Sec. 121.08. (A) There is hereby created in the
department
of commerce the position of deputy director of
administration.
This officer shall be appointed by the director of commerce,
serve
under the director's direction,
supervision, and control, perform
the duties the director
prescribes, and hold office during the
director's pleasure.
The director of commerce may designate an
assistant director of
commerce to serve as the deputy director of
administration. The deputy director of administration shall
perform the
duties prescribed by the director of commerce
in supervising the
activities of the division of administration of
the department of
commerce. (B) Except as provided in section 121.07 of the Revised
Code,
the department of commerce shall have all powers and perform
all
duties vested in the deputy director of administration, the
state fire
marshal,
the superintendent of financial institutions,
the superintendent of real
estate and professional licensing, the
superintendent of liquor control, the superintendent of the
division of
industrial compliance, the superintendent of labor and
worker
safety, the superintendent of unclaimed funds, and the commissioner of
securities, and shall have
all powers and perform all duties
vested by law in all officers,
deputies, and employees of those
offices. Except as provided in
section 121.07 of the Revised
Code, wherever powers are conferred
or duties imposed upon any of
those officers, the powers and
duties shall be construed as
vested in the department of commerce. (C)(1) There is hereby created in the department of commerce
a
division of financial institutions, which shall have all powers
and perform all
duties vested by law in the superintendent of
financial institutions.
Wherever
powers are conferred or duties
imposed upon the superintendent of
financial institutions, those
powers and duties shall be construed
as vested in the
division of
financial institutions. The division of
financial institutions
shall be administered
by a the superintendent of financial
institutions. (2) All provisions of law governing the superintendent of
financial institutions
shall apply to and govern the
superintendent of financial institutions
provided
for in this
section; all authority vested by law in the
superintendent of
financial institutions with respect to the
management of the
division of financial institutions shall be construed as vested in
the
superintendent of financial institutions created by this
section
with respect to
the division of financial institutions
provided for in this
section; and all
rights, privileges, and
emoluments conferred by law upon the
superintendent of financial
institutions shall be construed as
conferred upon the
superintendent of financial institutions as head of the division
of financial institutions. The
director of commerce shall not
transfer from the division of financial
institutions any of the
functions specified in division
(C)(2) of this
section. (D) There is hereby created in
the department of commerce a division of liquor control, which
shall have all
powers and perform all duties vested by law in the
superintendent of liquor
control. Wherever powers are conferred
or duties are imposed upon the
superintendent of liquor
control,
those powers and duties shall be construed as vested in the
division
of liquor control. The division of liquor control shall
be administered by a the
superintendent of liquor control. (E) The director of commerce shall not be interested,
directly or indirectly,
in any firm or corporation which is a
dealer in
securities as defined in sections 1707.01 and 1707.14 of
the
Revised Code, or in any firm or corporation licensed under
sections 1321.01 to 1321.19 of the Revised Code. (F) The director of commerce shall not have any official
connection
with a savings and
loan association, a savings bank, a
bank, a bank holding company, a savings
and loan association
holding company, a consumer finance company, or a credit
union
that is under the supervision of the division of financial
institutions, or a subsidiary of any
of the preceding entities, or
be interested in the business thereof. (G) There is hereby created in the state treasury the
division
of administration fund. The fund shall receive
assessments on
the operating funds of the department of commerce
in accordance
with procedures prescribed by the director of
commerce and
approved by the director of budget and management.
All operating
expenses of the division of administration shall be
paid from the
division of administration fund. (H) There is hereby created in the department of commerce a
division of real
estate and professional licensing, which shall be
under the control and
supervision of the director of commerce.
The division of real estate and
professional licensing shall be
administered by a the superintendent of real
estate and professional
licensing. The superintendent of real estate and
professional
licensing shall exercise the powers and perform the functions and
duties delegated to the superintendent under Chapters
4735.,
4763., and 4767. of the Revised Code. (I) There is hereby created in the department of commerce a
division
of labor and worker safety, which shall have all powers
and perform all
duties vested by law in the superintendent of
labor and worker safety.
Wherever powers are conferred or duties
imposed upon the superintendent
of labor and worker safety, those
powers and duties shall be
construed as vested in the division of
labor and worker safety.
The division of labor and worker safety
shall be under the control
and supervision of the director of commerce
and be administered by a the
superintendent of labor and worker safety.
The superintendent of
labor and worker safety shall exercise the
powers and perform the
duties delegated to the superintendent by
the director under
Chapters
4109.,
4111., and
4115. of the
Revised Code.
(J) There is hereby created in the department of commerce a
division of unclaimed funds, which shall have all powers and
perform all duties delegated to or vested by law in the
superintendent of unclaimed funds. Wherever powers are conferred
or duties imposed upon the superintendent of unclaimed funds,
those powers and duties shall be construed as vested in the
division of unclaimed funds. The division of unclaimed funds
shall be under the control and supervision of the director of
commerce and shall be administered by the superintendent of
unclaimed funds. The superintendent of unclaimed funds shall
exercise the powers and perform the functions and duties delegated
to the superintendent by the director of commerce under section
121.07 and Chapter 169. of the Revised Code, and as may otherwise
be provided by law. (K) The department of commerce or a division of the department created by the Revised Code that is acting with authorization on the department's behalf may request from the bureau of criminal identification and
investigation pursuant to section 109.572 of the Revised Code, or
coordinate with appropriate federal, state, and local government
agencies to accomplish, criminal records checks for the persons
whose identities are required to be disclosed by an applicant for
the issuance or transfer of a permit, license, certificate of registration, or certification issued or transferred by the department or division. At or before
the time of making a request for a criminal
records check, the
department or division may require any person whose identity is required to be
disclosed by an applicant for the issuance or transfer of
such a license, permit, certificate of registration, or certification to submit to
the department or division valid fingerprint
impressions in a format and by any
media or means acceptable to
the bureau of criminal identification
and investigation and, when
applicable, the federal bureau of
investigation. The department or division may
cause the bureau of criminal identification and investigation to
conduct a criminal records check through the federal bureau of
investigation only if the person for whom the criminal records
check would be conducted resides or works outside of this state or
has resided or worked outside of this state during the preceding
five years, or if a criminal records check conducted by the bureau
of criminal identification and investigation within this state
indicates that the person may have a criminal record outside of
this state.
In the case of a criminal records check under section
109.572 of the Revised Code, the department or division shall forward to the
bureau of criminal identification and investigation the requisite
form, fingerprint impressions, and fee described in division (C)
of that section. When requested by the department or division in accordance
with this section, the bureau of
criminal identification and
investigation shall request from the
federal bureau of
investigation any information it has with
respect to the person
who is the subject of the requested criminal
records check and
shall forward the requisite fingerprint
impressions and
information to the federal bureau of investigation
for that
criminal records check. After conducting a criminal
records check
or receiving the results of a criminal records check
from the
federal bureau of investigation, the bureau of criminal
identification and investigation shall provide the results to the
department or division.
The department or division may require any person about whom a criminal
records check is requested to pay to the department or division the amount
necessary to cover the fee charged to the department or division by the bureau
of criminal identification and investigation under division (C)(3)
of section 109.572 of the Revised Code, including, when
applicable, any fee for a
criminal records check conducted by the
federal bureau of
investigation.
Sec. 169.01. As used in this chapter, unless the context
otherwise requires: (A) "Financial organization" means any bank, trust
company,
savings bank, safe deposit company, mutual savings bank
without
mutual stock, savings and loan association, credit union,
or
investment company. (B)(1) "Unclaimed funds" means any moneys, rights to moneys,
or intangible property, described in section 169.02 of the
Revised
Code, when, as shown by the records of the holder, the
owner has
not, within the times provided in section 169.02 of the
Revised
Code, done any of the following: (a) Increased, decreased, or adjusted the amount of such
funds; (b) Assigned, paid premiums, or encumbered such funds; (c) Presented an appropriate record for the crediting of
such funds or received payment of such funds by check, draft, or
otherwise; (d) Corresponded with the holder concerning such funds; (e) Otherwise indicated an interest in or knowledge of
such
funds; (f) Transacted business with the holder. (2) "Unclaimed funds" does not include any of the
following: (a) Money received or
collected under section 9.39 of the
Revised Code; (b) Any payment or credit due to a business association from
a
business association representing sums payable to suppliers, or
payment for
services rendered, in the course of business,
including, but not limited to,
checks or memoranda, overpayments,
unidentified remittances, nonrefunded
overcharges, discounts,
refunds, and rebates; (c) Any payment or credit received by a business association
from
a business association for tangible goods sold, or services
performed, in the
course of business, including, but not limited
to, checks or memoranda,
overpayments, unidentified remittances,
nonrefunded overcharges, discounts,
refunds, and rebates; (d) Any credit due a retail customer that is represented by a
gift certificate, gift card, merchandise credit, or merchandise
credit card, redeemable only for merchandise. For purposes of divisions (B)(2)(b) and
(c) of this section,
"business association" means any
corporation, joint venture,
business trust, limited liability company,
partnership,
association, or other business entity composed of one or more
individuals, whether or not the entity is for profit. (C) "Owner" means any person, or the person's legal
representative, entitled to receive or having a legal or equitable
interest in
or claim against moneys, rights to moneys, or other
intangible
property, subject to this chapter. (D)(1) "Holder" means any person that has possession,
custody, or control of moneys, rights to moneys, or other
intangible property, or that is indebted to another, if any of the
following applies: (a) Such person resides in this state; (b) Such person is formed under the laws of this state; (c) Such person is formed under the laws of the United
States and has an office or principal place of business in
this
state; (d) The records of such person indicate that the last
known
address of the owner of such moneys, rights to moneys, or
other
intangible property is in this state; (e) The records of such person do not indicate the last
known address of the
owner of the moneys, rights to moneys, or
other intangible property and the
entity originating or issuing
the moneys, rights to moneys, or other
intangible property is this
state or any political subdivision of this state,
or is
incorporated, organized, created, or otherwise located in this
state.
Division (D)(1)(e) of this section applies to all moneys,
rights to moneys, or
other intangible property that is in the
possession, custody, or control of
such person on or after July
22, 1994, whether the
moneys, rights to moneys, or other
intangible property becomes unclaimed funds
prior to or on or
after
that date. (2) "Holder" does not mean any hospital granted tax-exempt
status under section 501(c)(3) of the Internal Revenue Code or
any
hospital owned or operated by the state or by any political
subdivision. Any entity in order to be exempt from the
definition
of "holder" pursuant to this division shall make a
reasonable,
good-faith effort to contact the owner of the
unclaimed funds. (E) "Person" includes a natural person; corporation,
whether
for profit or not for profit; copartnership;
unincorporated
association or organization; public authority;
estate; trust; two
or more persons having a joint or common
interest; eleemosynary
organization; fraternal or cooperative
association; other legal or
community entity; the United States
government, including any
district, territory, possession,
officer, agency, department,
authority, instrumentality, board,
bureau, or court; or any state
or political subdivision thereof,
including any officer, agency,
board, bureau, commission,
division, department, authority, court,
or instrumentality. (F) "Mortgage funds" means the mortgage insurance fund
created by section 122.561 of the Revised Code, and the housing
guarantee fund created by division (D) of section 128.11 of the
Revised Code. (G) "Lawful claims" means any vested right a holder of
unclaimed funds has against the owner of such unclaimed funds. (H) "Public utility" means any entity defined as such by
division (A) of section 745.01 or by section 4905.02 of the
Revised Code. (I) "Deposit" means to place money in the custody of a
financial organization for the purpose of establishing an
income-bearing account by purchase or otherwise. (J) "Income-bearing account" means a time or savings
account, whether or not evidenced by a certificate of deposit, or
an investment account through which investments are made solely
in
obligations of the United States or its agencies or
instrumentalities or guaranteed as to principal and interest by
the United States or its agencies or instrumentalities, debt
securities rated as investment grade by at least two nationally
recognized rating services, debt securities which the director of
commerce has determined to have been issued for the safety and
welfare of the residents of this state, and equity interests in
mutual funds that invest solely in some or all of the
above-listed
securities and involve no general liability, without
regard to
whether income earned on such accounts, securities, or
interests
is paid periodically or at the end of a term.
(K) "Director of commerce" may be read as the "division of
unclaimed funds" or the "superintendent of unclaimed funds."
Sec. 169.13. (A)(1) All agreements to pay a fee,
compensation,
commission, or other remuneration to locate,
deliver, recover, or
assist in the recovery of unclaimed funds
reported under section
169.03 of the Revised Code, entered into
within two years
immediately after the date a report is filed
under division (C) of
section 169.03 of the Revised Code, are
invalid.
(2) A person interested in entering into an agreement to locate, deliver, recover, or assist in the recovery of unclaimed funds for remuneration shall not initiate any contact with an owner during the two-year period immediately after the date a report is filed under division (C) of section 169.03 of the Revised Code. Failure to comply with this requirement is grounds for the invalidation of any such agreement between the person and the owner. (B) An agreement entered into any time after such two-year
period is valid only if both all of the following conditions are met: (1) The aggregate fee, compensation, commission, or other
remuneration agreed upon, paid directly or indirectly, is not in
excess of ten per cent of the amount recovered and paid to the
owner by the auditor of state; (2) The agreement is in writing, signed by the owner,
and notarized and
discloses all of the following items: (a) The name and address of the owner, as shown by the records of the person or entity in possession of the property; (b) The nature and value of the property; (b)(c) The amount the owner will receive after the fee or
compensation has been subtracted;
(c)(d) The name and address of the person or entity in
possession of the property;
(e) That the person agreeing to locate, deliver, recover, or
assist in the recovery of the property is not an employee or
agent of the director of commerce;
(f) That the director is not a party to the agreement;
(g) That the person agreeing to locate, deliver, recover,
or assist in the recovery of the property holds a valid
certificate of registration issued by the director under section
169.16 of the Revised Code;
(h) The number designated on that certificate of
registration and the date the certificate of registration expires. (3) If the agreement involves recovery of the contents of a safe deposit box, the agreement stipulates that the person receiving any fee, compensation, commission, or other remuneration for engaging in any activity for the purpose of locating, delivering, recovering, or assisting in the recovery of unclaimed funds or other items stored in a safe deposit box on behalf of any other person shall do all of the following:
(a) Make arrangements to have an appraiser and the director of commerce view the contents of the safe deposit box together, at a time mutually agreeable to the appraiser and director; (b) State that the value of the property in the safe deposit box is the amount established by the appraiser who viewed the safe deposit box contents;
(c) Base the fee, compensation, commission, or other remuneration for locating, delivering, recovering, or assisting in the recovery of unclaimed funds or other items stored in a safe deposit box on the appraised value established by the appraiser who viewed the safe deposit box contents. (C) No person shall receive a fee, compensation,
commission,
or other remuneration, or engage in any activity for
the purpose
of locating, delivering, recovering, or assisting in
the recovery
of unclaimed funds, under an agreement that is
invalid under this
section. (D) Whoever violates division (C) of this section is
guilty
of a misdemeanor of the first degree for a first offense and of a
felony
of
the fifth degree for each subsequent offense A person who receives any fee, compensation, commission, or other remuneration for engaging in any activity for the purpose of locating, delivering, recovering, or assisting in the recovery of unclaimed funds or other items stored in a safe deposit box on behalf of any other person cannot function as an appraiser of the contents of the safe deposit box for purposes of division (B)(3) of this section.
Sec. 169.14. (A) Each person that files a claim with the
director of commerce, pursuant to an agreement entered into under
section 169.13 of the Revised Code, shall include with that claim
the number designated on the certificate of registration that is
issued to the person under section 169.16 of the Revised Code.
(B) The division of unclaimed funds shall not process any
claim described in division (A) of this section that does not
include the required certificate of registration number.
Sec. 169.16. (A) No person, on behalf of any other person,
shall engage in any activity for the purpose of locating,
delivering, recovering, or assisting in the recovery of unclaimed
funds, and receive a fee, compensation, commission, or other
remuneration for such activity, without first having obtained a
certificate of registration from the director of commerce in
accordance with this section.
(B) An application for a certificate of registration shall
be in writing and in the form prescribed by the director. The
application shall be accompanied by a recent full-face color
photograph of the applicant and notarized character reference
letters from two reputable character witnesses. The application
shall, at a minimum, provide all of the following:
(1) The applicant's full name, home address, and work
address;
(2) The name, address, and telephone number of the two
character witnesses who have provided the character reference
letters;
(3) A statement that the applicant has not, during the
ten-year period immediately preceding the submission of the
application, violated division (A) of this section on or after the effective date of this section, or division (C)
of section 169.13 of the Revised Code, or been convicted of, or
pleaded guilty to, any felony or any offense involving moral
turpitude, including theft, attempted theft, falsification,
tampering with records, securing writings by deception, fraud,
forgery, and perjury;
(4) The notarized signature of the applicant immediately
following an acknowledgment that any false or perjured statement
subjects the applicant to criminal liability under section 2921.13
of the Revised Code.
(C) Upon the filing of the application with the division of
unclaimed funds, the division may investigate the applicant to
verify the information provided in the application and to
determine the applicant's eligibility for a certificate of
registration under this section. False information on an
application is grounds for the denial or revocation of the
applicant's certificate of registration.
(D) The director shall issue a certificate of registration
to an applicant if the director finds that the following
conditions are met:
(1) The applicant has not, during the ten-year period
immediately preceding the submission of the application, violated
division (A) of this section on or after the effective date of this section, or division (C) of section 169.13 of
the Revised Code, or been convicted of, or pleaded guilty to, any
felony or any offense involving moral turpitude, including theft,
attempted theft, falsification, tampering with records, securing
writings by deception, fraud, forgery, and perjury.
(2) The applicant's character and general fitness command
the confidence of the public and warrant the belief that the
applicant's business will be conducted honestly and fairly.
(E) The certificate of registration issued pursuant to
division (D) of this section may be renewed annually if the
director finds that the following conditions are met:
(1) The applicant submits a renewal application form
prescribed by the director.
(2) The applicant meets the conditions set forth in
division (D) of this section.
(3) The applicant's certificate of registration is not
subject to an order of revocation by the director.
Sec. 169.17. (A) After notice and an opportunity for a
hearing conducted in accordance with Chapter 119. of the Revised
Code, the director of commerce shall revoke or refuse to issue or
renew a certificate of registration if the director finds either of the following: (1) During the immediately preceding ten-year period, the person
violated division (A) of section 169.16 on or after the effective date of this section, or division (C) of section
169.13 of the Revised Code, or has been convicted of, or pleaded
guilty to, any felony or any offense involving moral turpitude,
including theft, attempted theft, falsification, tampering with
records, securing writings by deception, fraud, forgery, and
perjury. (2) The person's character and general fitness do not command the confidence of the public or warrant the belief that the person's business will be conducted honestly and fairly.
(B) The director may investigate alleged violations of
division (C) of section 169.13 or division (A) of section 169.16
of the Revised Code or complaints concerning any such violation.
The director may make application to the court of common pleas for
an order enjoining any such violation and, upon a showing by the
director that a person has committed or is about to commit such a
violation, the court shall grant an injunction, restraining order,
or other appropriate relief.
(C) In conducting any investigation pursuant to this
section, the director may compel, by subpoena, witnesses to
testify in relation to any matter over which the director has
jurisdiction and may require the production of any book, record,
or other document pertaining to that matter. If a person fails to
file any statement or report, obey any subpoena, give testimony,
produce any book, record, or other document as required by a
subpoena, or permit photocopying of any book, record, or other
document subpoenaed, the court of common pleas of any county in
this state, upon application made to it by the director, shall
compel obedience by attachment proceedings for contempt, as in the
case of disobedience of the requirements of a subpoena issued from
the court or a refusal to testify therein.
(D) If the director determines that a person is engaged in
or is believed to be engaged in activities that may constitute a
violation of division (C) of section 169.13 or division (A) of
section 169.16 of the Revised Code, the director, after notice and
a hearing conducted in accordance with Chapter 119. of the Revised
Code, may issue a cease and desist order. Such an order shall be
enforceable in the court of common pleas.
Sec. 169.99. (A) Whoever violates section 169.10 of the
Revised Code shall be
fined not more than five hundred dollars.
Each day of continuance of such
violation is a separate offense.
(B) Whoever violates division (C) of section 169.13 or
division (A) of section 169.16 of the Revised Code is guilty of a
misdemeanor of the first degree for a first offense and of a
felony of the fifth degree for any subsequent offense.
Section 2. That existing sections 121.04, 121.08, 169.01,
169.13, and 169.99 of the Revised Code are hereby repealed.
Section 3. Sections 169.13 and 169.14 of the Revised Code, as
amended or enacted by this act, shall apply only to agreements
that are entered into on or after the effective date of this act.
Section 4. All of the following provisions of this act shall take effect sixty days after the effective date of this act:
(A) Division (B)(2)(g) and (h) of section 169.13 of the Revised Code;
(B) Section 169.14 of the Revised Code;
(C) Division (A) of section 169.16 of the Revised Code;
(D) Division (B) of section 169.99 of the Revised Code.
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