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(127th General Assembly)
(Amended Substitute Senate Bill Number 171)
AN ACT
To amend sections 1333.99, 4737.01,
4737.04, and
4737.99 and to enact sections 1333.71, 4737.041,
4737.042, 4737.043, and
4737.044 of the Revised
Code to make certain
changes to the laws
regulating
secondhand
dealers and
scrap metal
dealers.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That sections 1333.99, 4737.01,
4737.04, and
4737.99 be amended and sections 1333.71, 4737.041,
4737.042,
4737.043, and 4737.044
of the Revised Code be enacted to
read as
follows:
Sec. 1333.71. No person shall sell or purchase a plastic
crate or tray that is used for the carrying of retail containers
of milk or baked goods
and that has embossed upon it a company
logo.
Sec. 1333.99. (A) Whoever violates sections 1333.01 to
1333.04 of the Revised Code is guilty of a minor misdemeanor.
(B) Whoever violates section 1333.12 or 1333.71 of the
Revised Code
is guilty of a misdemeanor of the fourth degree.
(C) Whoever violates section 1333.36 of the Revised Code
is
guilty of a misdemeanor of the third degree.
(D) A prosecuting attorney may file an action to restrain
any
person found in violation of section 1333.36 of the Revised
Code.
Upon the filing of such an action, the common pleas court
may
receive evidence of such violation and forthwith grant a
temporary
restraining order as may be prayed for, pending a
hearing on the
merits of said cause.
(E) Whoever violates division (A)(1) of section 1333.52 or
section 1333.81 of the Revised Code is guilty of a misdemeanor of
the first degree.
(F) Whoever violates division (A)(2) or (B) of section
1333.52 of the Revised
Code is guilty of a misdemeanor of the
second degree.
(G) Except as otherwise provided in this
division, whoever
violates section 1333.92 of the Revised Code
is guilty of a
misdemeanor of the first degree. If the value of the
compensation
is five hundred dollars or more and less than five thousand
dollars, whoever violates section 1333.92 of the Revised Code is
guilty of a
felony of
the fifth degree. If the value of the
compensation is five thousand
dollars or more and less
than one
hundred thousand dollars, whoever violates section 1333.92 of the
Revised Code is
guilty of a felony of the fourth degree. If the
value of the compensation is
one hundred thousand dollars or more,
whoever violates section 1333.92 of the
Revised Code is
guilty of
a felony of the third degree.
Sec. 4737.01. (A) "Personal identification card" means a
current and valid
driver's license, military identification card,
state
identification card issued under sections 4507.50 to
4507.52 of
the Revised Code, or a state identification card
issued by another
state on the condition that that card contains
information
substantially similar to the information contained on
a state
identification card issued under sections 4507.50 to
4507.52 of
the Revised Code and also contains a photograph of the
person to
whom the card is issued.
(B) A person other than a scrap metal dealer, as defined in
section 4737.04 of the Revised Code, purchasing, selling,
exchanging,
or receiving secondhand articles of any kind other
than special purchase articles as defined in section 4737.04 of
the Revised Code, scrap
iron, old and scrap
metal, canvas, rope,
branded bottles, junk or lead
pipe, except
plow irons, old
stoves, and furniture, shall post in
a conspicuous
place in or
upon his the person's shop, store,
wagon, boat, or
other place of
business, a sign having his the person's name and
occupation
legibly inscribed thereon, and shall keep a separate record book,
open to
inspection by any law enforcement officer, or electronic
file in which shall
be
written, in the English language, at the
time of the purchase
or
exchange of such articles, a description
thereof, the name,
description, and residence of the person from
whom purchased and
received, and the day and hour time when such
purchase or exchange was made, and shall make and keep a copy of
the person's personal identification card. Every entry shall be
numbered
consecutively,
commencing
with number one.
(B) Any person, prior to purchasing any secondhand article
of
furniture or secondhand electrical or gas appliance or
equipment
for the purpose of resale to the general public, shall
demand to
examine the seller's driver's or commercial driver's
license or
identification card issued under sections 4507.50 to
4507.52 of
the Revised Code and one additional type of card
typically used
for identification purposes.
The purchaser shall keep a written record of the number of
the license or identification card and the type and number of the
other identification card accepted together with the date of
purchase, the name and address of the seller, and a description
of
the article purchased. The purchaser shall retain the written
record book or electronic file and copies of personal
identification cards for at least one year after the purchase or
exchange date and shall make the record or file and copies
available
for inspection by any law enforcement officer at all
reasonable
times. For the purposes of this division, the purchaser
may
utilize the written record he is required to keep
where
applicable under division (A) of this section and add to it
the
information required by this division.
Sec. 4737.04. (A) As used in this section and sections
4737.041, 4737.042, and 4737.043 of the Revised Code:
(1) "Scrap metal dealer" means the owner or operator of a
business that purchases or
receives scrap metal.
(2) "Special purchase article" means all of the following:
(a) Beer kegs;
(b) Cable, wire, electrical components, and other equipment
used in providing cable service or any utility service, including,
but not limited to, copper or aluminum coverings, housings, or
enclosures related thereto;
(c) Grave markers, sculptures, plaques, and vases made out of
metal, the
appearance of which suggest that the articles have
been obtained
from a cemetery;
(d) Guard rails for bridges, highways, and roads; highway and
street signs; street light poles and fixtures; manhole covers,
water meter covers, and other similar types of utility access
covers; traffic directional and control signs and light signals,
metal marked with the name of a political subdivision of the
state, and other metal articles that are purchased and installed
for use
upon authorization of the state or any political
subdivision of
the state;
(e) Historical, commemorative, and memorial markers and
plaques made out of metal;
(f) Four-wheel metal carts, commonly referred to as "grocery
carts," that are generally used by individuals to collect and
transport consumer goods while shopping;
(g) Four-wheel metal carts, commonly referred to as "metal
bossies," that are used to
transport or merchandise food products
that are stored in crates,
shells, or trays.
(3) "Common recycled matter" means bottles and other
containers made out of steel, tin, or aluminum and other
consumer
goods that are metal that
are
recycled by individual
consumers
and not in the bulk or
quantity
that could be supplied
or
recycled by
large business
establishments. "Common recycled
matter" does not
include a metal tray used by
a product
producer, distributor,
retailer, or agent of a product
producer,
distributor, or retailer
as a means for the bulk
transportation,
storage, or carrying of
retail containers of
milk, baked goods,
eggs, or bottled beverage
products.
(4) "Consumer goods" has the same meaning as in section
1309.102 of the Revised Code.
(5) "Recyclable materials" means the metal materials
described in division (B)(5) of this section, on the condition
that those metal materials are not special purchase articles.
(6) "Motor vehicle" has the same meaning as in section
4501.01 of the Revised Code.
(B) Every scrap metal dealer in scrap iron, metal, and waste
materials shall
maintain a record book of records or electronic
file, in which he the dealer shall keep an
accurate and complete
record of all articles purchased or received by him the dealer
in
the course of his the dealer's daily
business. On and after the
effective date of this amendment, every entry in the record book
or electronic file shall be numbered consecutively. Every dealer
shall maintain the record for each
article purchased or received
for a minimum period of one year
after the date the dealer
purchased or received the article. Said
records shall contain all
of the name, description, following:
(1) Name and residence of
the person from whom said articles
were purchased or received and the
a copy of that person's
personal identification card;
(2) The date and
hour when such purchases or exchange
were
made time the scrap metal dealer purchased or received the
articles;
(3) If the seller or provider of the articles arrives at the
dealer's place of business in a motor vehicle, the license plate
number of that motor vehicle along with the state that issued the
license plate;
(4) For metal articles that are not recyclable materials, a
full
and accurate description of each article purchased
or
received by
the dealer that includes identifying letters or
marks written,
inscribed, or otherwise included on the article
and
the name and
maker of the article if known;
(5) For recyclable materials that
are not special purchase
articles, a scrap metal dealer shall use the following category
codes to identify the recyclable materials that the dealer
receives:
(a) "Number one copper," which includes clean copper
pipe,
clean copper wire, or other number one copper that does not
have
solder, paint, or coating;
(b) "Number two copper," which includes unclean
copper pipe,
unclean copper wire, or other number two copper;
(c) "Sheet copper," which includes copper
roofing, copper
gutters, copper downspouts, and other sheet
copper;
(d) "Insulated copper wire";
(e) "Aluminum or copper radiators," which
includes aluminum
radiators, aluminum copper radiators, and copper
radiators;
(f) "Red brass," which includes red brass values
and other
red brass;
(g) "Yellow brass," which includes yellow brass
fixtures,
yellow brass valve and fitting, ornamental brass, and
other
yellow brass;
(h) "Aluminum sheet";
(i) "Aluminum extrusions," which includes
aluminum
bleachers, aluminum benches, aluminum frames, aluminum
pipe, and
other aluminum extrusions;
(j) "Cast aluminum," which includes aluminum
grills,
lawnmower decks made of aluminum, aluminum motor vehicle
parts and
rims, and
other cast
aluminum;
(k) "Clean aluminum wire";
(l) "Unclean aluminum wire";
(m) "Aluminum exteriors," which includes
aluminum siding,
aluminum gutters and downspouts, aluminum
shutters, aluminum
trim, and other aluminum exterior items;
(n) "Contaminated aluminum";
(o) "Stainless steel," which includes, sinks,
appliance
housing, dishes, pots, pans, pipe, and
other items made
out of
stainless steel;
(p) "Large appliances," which includes consumer
and other
appliances;
(q) "Miscellaneous steel," which includes steel
grates,
steel farm machinery, steel industrial machinery, steel
motor
vehicle frames, and other items made out of steel;
(r) "Sheet irons," which includes bicycles,
motor
vehicle
body parts made of iron, and other items made using
sheet iron;
(s) "Motor vehicle nonbody parts," which
includes motor
vehicle batteries, radiators, and other nonbody
motor vehicle
parts;
(t) "Catalytic converters";
(u) "Lead";
(v) "Electric motors."
(C) All journal brasses, and other railroad metals, other
than purchases and sales
under sections 4973.13 to 4973.16,
inclusive, of the Revised Code, shall be
held by the dealer for a
period of thirty days after being purchased or
acquired.
Such (D) The records required under division (B) of this
section shall be open for inspection by the representative of any
law
enforcement agency at and the director of public safety or the
director's designated representative during all business hours. A
scrap metal dealer shall provide a copy of those records to any
law enforcement agency that requests the records or to the
director
or director's representative, upon request. Records
submitted to
any law enforcement agency pursuant to this section
are not
public records for purposes of section 149.43 of the
Revised
Code. A person who claims to own a stolen article that
may be identified in those
records, or an agent of that person,
who provides proof of having filed a stolen property report with
the appropriate law enforcement agency, may request those
records. The law enforcement agency shall provide those records
upon a request made by such a person or that person's agent, but
the law enforcement
agency shall redact information that reveals
the name of the
seller of any article and the price the dealer
paid for any
article the dealer purchased or the estimated value
of any
article the dealer received. The law enforcement agency
shall determine which records to provide, based upon the time
period that the alleged theft is reported to have taken place. A
law enforcement agency may
charge or collect a fee for providing
records as required by this section.
(E)(1) No scrap metal dealer shall purchase or receive any
metal
articles from a person who refuses to show the dealer the
person's
personal identification card.
(2) The law enforcement agency that serves the jurisdiction
in
which a scrap metal dealer is located shall provide a list, as
that
agency determines appropriate, of the names and descriptions
of
persons known to be or who are suspected to be thieves or
receivers of stolen property. No scrap metal dealer shall purchase
or receive articles from any person identified on the list the
dealer receives from the law enforcement agency.
(3) No scrap metal dealer shall purchase or receive any
special
purchase articles from any person who is under eighteen
years of
age.
(4) No scrap metal dealer shall purchase or receive any
special
purchase article without complying with division (B) of
this
section and division (B), (C), or (D) of section 4737.041 of
the
Revised Code.
(5) No scrap metal dealer shall purchase or receive more than
one
catalytic converter per day from the same person except from
a
motor
vehicle dealer as defined in section 4517.01 of the
Revised
Code.
(6) No scrap metal dealer shall treat a transaction as exempt
from section 4737.04 or 4737.041 of the Revised Code unless the
seller provides evidence of satisfying division (D)(3) of section
4737.043 of the Revised Code.
(F) Every scrap metal dealer shall post a notice in a
conspicuous place on the dealer's premises notifying persons who
may wish to transact business with the dealer of the penalties
applicable to any person who does any
of the following:
(1) Provides a false personal identification card to
the
dealer;
(2) With purpose to defraud, provides any other false
information to the dealer in
connection with the dealer's duty to
maintain the records required
under division (B) of this section;
(3) Violates section 2913.02 of the
Revised Code.
(G)(1) Except as otherwise provided in the second paragraph
of division (E) of this section, a chief of police, marshal, or
other chief law enforcement officer, a sheriff, constable, or
chief of police of a township police department or police district
police force, and a deputy, officer, or employee of the law
enforcement agency served by the marshal or the municipal or
township chief, the office of the sheriff, or the constable is
immune from liability in a civil action, including an action for
defamation, libel, or slander, to recover damages for
injury,
death, or loss to persons or property or reputation allegedly
caused by
an act or omission in connection with compiling and
providing the
list required by division (E) of this section.
(2) The immunity described in division (G)(1) of this section
does not apply to a person described in that division if, in
relation to the act or omission in question, any of the following
applies:
(a) The act or omission was manifestly outside the scope of
the person's employment or official responsibilities.
(b) The act or omission was with malicious purpose, in bad
faith, or in a wanton or reckless manner.
(c) Liability for the act or omission is expressly imposed by
a section of the Revised Code.
Sec. 4737.041. A scrap metal dealer shall do all of the
following with
respect to each special purchase article the scrap
metal dealer purchases or receives:
(A) Comply with the requirements of this section in addition
to complying with the requirements of section 4737.04 of the
Revised Code;
(B) Take a photograph of each special purchase article;
(C) Obtain from the seller or provider of the special
purchase article proof that the seller or provider owns the
special purchase article;
(D) If payment is rendered for the special purchase
articles, issue a check for the purchase of the special purchase
articles;
(E) Withhold payment for the purchase of the special
purchase articles for a period of two days after the day the
special purchase articles are purchased;
(F) If an asserted owner of stolen special purchase articles
or that owner's agent provides proof of having
filed a stolen
property report with the appropriate law
enforcement agency, make
records describing special purchase
articles
the scrap metal
dealer purchased or received after the alleged date of theft
available for inspection to the
asserted owner or owner's agent
for a period of six months after the alleged date of
theft of the
articles, except that the scrap metal dealer shall withhold the
name of the
person from
whom the special purchase articles were
purchased or
received and
the amount paid for the special
purchase articles.
Sec. 4737.042. A scrap metal dealer and a person who
purchases, sells, exchanges, or receives secondhand articles may
use an electronic device that decodes and records information
contained in the metallic strip on a personal identification card
to record a person's name, address, and photograph in lieu of
making a copy of a person's personal identification card to comply
with the requirements of sections 4737.01, 4737.04, and 4737.041
of the Revised Code, on the condition that the dealer or person
retains that recorded information and makes it available in
accordance with the requirements to make copies available under
those sections.
Sec. 4737.043. Sections 4737.04 and 4737.041 of the Revised
Code do not apply with respect to any of the following:
(A) The donation of articles to nonprofit organizations or to
any other person, on the condition that the person donating the
articles receives no payment or any other valuable consideration
in exchange for or due to donating the articles;
(B) The sale or donation of common recycled matter;
(C) Sales transacted between a scrap
metal dealer and an
organization that is exempt from federal
taxation under section
501(c)(3) of the "Internal Revenue Code of
1986," 100 Stat. 285,
26 U.S.C. 501(c)(3), as amended, and that
collects, for its own
fundraising purposes, scrap ferrous and nonferrous metals for
recycling rather than disposal;
(D) Sales transacted between a scrap
metal dealer and a
government unit or
another business, including a demolition
company,
public utility
company, or another scrap metal
dealer,
on the condition that the government unit or business satisfies
the following criteria:
(1) In
the course
of providing the government unit's or
business's services to others or
maintaining the
government
unit's or business's property, whether onsite or offsite, the
government unit or business
generates scrap
ferrous and
nonferrous metals for recycling
rather than disposal.
(2) If the sales transaction involves a government unit,
reference to the government unit as
a bona fide unit of
government can be readily found by the public.
(3) If the sales transaction involves a business, the
business satisfies one of the
following criteria:
(a) The business is registered with the secretary of state.
(b) The business has been issued a license under section
5739.17 of the Revised Code.
(c) The business advertises its services in a newspaper of
general circulation once a week for not less than six consecutive
months or provides a receipt showing payment for such advertising,
a telephone book, electronic media that is
available to the
public, or some other type of media that is owned
and operated by
a person other than the business and, if an individual operates
the business, the individual advertising the business has a
specific place of business that is not the individual's permanent
home residence.
(4) The government unit provides proof of compliance with
division (D)(2) of this section or the business provides proof of
compliance with
division (D)(3) of this section to the scrap
metal dealer with whom the government
unit or business transacts
business.
(E) Sales transacted between a scrap
metal dealer and a
person whose primary business is to create
products that result
in bulk quantities of ferrous and nonferrous
metal used for
recycling rather than disposal.
(F) Sales of catalytic converters transacted between a scrap
metal dealer and a motor vehicle dealer as defined in section
4517.01 of the Revised Code.
Sec. 4737.044. No municipal corporation or other political
subdivision shall enforce any regulation that is in conflict with
sections
4737.01 to 4737.043 of the Revised Code. Consistent with
the power of municipal corporations to exercise their rights under
Article XVIII, Section 3 of the Ohio Constitution and recognizing
the need for uniform commercial practices across this state, by
analogy to Am. Financial Servs. Assn et al. v. Cleveland, 112 Ohio
St. 3d 170, 2006-Ohio-6043, citing Canton v. State, 95 Ohio St. 3d
149, 2002-Ohio-2005, syllabus, no municipal corporation or other
political subdivision shall enact or enforce a regulation or
ordinance applicable to a scrap metal dealer requiring a scrap
metal dealer to individually identify and retain any scrap metal
purchased or received, a practice otherwise known as "tag and
hold."
Sec. 4737.99. (A) Except as specified in division divisions
(B) and (C) of this section, whoever violates sections 4737.01 to
4737.11
of
the Revised Code, shall be fined not less than
twenty-five nor
more than one
thousand dollars and the costs of
prosecution.
(B) Whoever violates division (F)(2) of section 4737.10 of
the Revised Code is guilty of a misdemeanor of the fourth degree.
(C) Whoever fails to comply with or violates section 4737.01
or 4737.041 or division (B), (C), (E), or (F) of section 4737.04
of the
Revised Code is guilty of a misdemeanor of the third
degree. If the offender one time previously has violated or failed
to comply with section 4737.01 or 4737.041 or division (B), (C),
(D), (E), or (F) of section 4737.04 of the Revised Code, the
violation or failure is a misdemeanor of the second degree. If the
offender two or more times previously has violated or failed to
comply with section 4737.01 or 4737.041 or division (B), (C), (D),
(E), or (F) of section 4737.04 of the Revised Code, the violation
or failure is a misdemeanor of the first degree.
SECTION 2. That existing sections 1333.99,
4737.01, 4737.04,
and 4737.99 of the Revised Code are hereby
repealed.
SECTION 3. During the first year of the 129th General
Assembly, the President of the Senate or Speaker of the House of
Representatives shall initiate creation of a joint select
committee of the Senate and House of Representatives for the
purpose of considering the effectiveness of this act in deterring
crime and the costs of complying with this act to industries
affected by this act. The President of the Senate and Speaker of
the House of Representatives shall create the joint select
committee in accordance with the Joint Rules of the Senate and
House of Representatives for the 129th General Assembly for
creation of a joint select committee.
The joint select committee shall hold public hearings at
which time representatives of the Ohio Municipal League, the Ohio
Prosecuting Attorneys Association, and the Ohio Sheriff's
Association; representatives of the scrap metal recycling
industry; and other interested parties may present testimony on
the affect of this act on metals theft rates, theft deterrence,
criminal enforcement and prosecution, and economic and
administrative burdens on industry. The joint select committee
shall provide advance notice of its hearings to, and shall solicit
comments in advance of those hearings from, the Ohio Municipal
League, Ohio Prosecuting Attorneys Association, Ohio Sheriff's
Association, representatives of the scrap metal recycling
industry, and other interested parties that the joint select
committee determines should receive notice.
The joint select committee shall issue a report summarizing
the effectiveness and impacts of this act and submit the report to
the President of the Senate and Speaker of the House of
Representatives. The Legislative Service Commission shall assist
the joint select committee in preparing and finalizing the report
required by this section.
SECTION 4. The provisions of law contained in this act, and
their applications, are severable. If any provision of law
contained in this act, or if any application of any provision of
law contained in this act, is held invalid, the invalidity does
not affect other provisions of law contained in this act and their
applications that can be given effect without the invalid
provision or application.
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