Download This Version in Microsoft Word format
Indicates Matter Stricken
Indicates New Matter
Indicates Matter Stricken
Indicates New Matter
COMMITTEE REPORT
April 19, 2005
H. 3344
S. Printed 4/19/05--H. [SEC 4/25/05 4:29 PM]
Read the first time January 25, 2005.
To whom was referred a Bill (H. 3344) to amend the Code of Laws of South Carolina, 1976, by adding Section 16-27-55 so as to allow the forfeiture of property, monies, negotiable instruments, etc., respectfully
That they have duly and carefully considered the same and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking SECTIONS 2 and 3 in their entirety.
Amend the bill further, as and if amended, by adding the following new SECTION to be appropriately numbered to read:
/SECTION ____. Section 16-17-650 of the 1976 Code is amended to read:
"Section 16-17-650. (A) It shall be a misdemeanor felony for any person to engage in or be present at cockfighting or game fowl fighting or testing in this State and any person found guilty shall must be fined not exceeding one hundred five thousand dollars or imprisoned for not exceeding thirty days five years.
(B) A person who violates the provisions of subsection (A) is subject to forfeiture of:
(1) property, both real and personal, which is knowingly used to engage in a violation or to further a violation of this section; and
(2) monies, negotiable instruments, securities, or other things of value furnished or intended to be furnished by a person to engage in or further a violation of this section.
(C) Property subject to forfeiture pursuant to the provisions of this section may be seized by the appropriate law enforcement agency with a warrant properly issued by a court with jurisdiction over the property. Property may be seized without a warrant if the:
(1) seizure is incident to an arrest or a search with a search warrant or an inspection under an administrative inspection warrant;
(2) property subject to seizure was the subject of a prior judgment in favor of the State in a criminal injunction or forfeiture proceeding pursuant to the provisions of this section;
(3) law enforcement agency has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
(4) law enforcement agency has probable cause to believe that the property was used or is intended to be used in violation of the provisions of this section.
(D) Forfeiture proceedings instituted pursuant to the provisions of this section are subject to the procedures and requirements for forfeiture as set out in Section 44-53-530.
(E) Property taken or detained pursuant to the provisions of this section is not subject to replevin but is considered to be in the custody of the law enforcement agency making the seizure subject only to an order of the court having jurisdiction over the forfeiture proceedings.
(F) For purposes of this section, when the seizure of property subject to forfeiture is accomplished as a result of a joint effort by more than one law enforcement agency, the law enforcement agency initiating the investigation is considered to be the agency making the seizure.
(G) A law enforcement agency seizing property pursuant to the provisions of this section shall take reasonable steps to maintain the property. Equipment and conveyances seized must be removed to an appropriate place for storage. Monies seized must be deposited in an interest bearing account pending final disposition by the court unless the seizing agency determines the monies to be of an evidential nature and provides for appropriate security in another manner.
(H) When property, monies, negotiable instruments, securities, or other things of value pursuant to the provisions of subsection (B) are seized, the law enforcement agency making the seizure, within ten days or a reasonable period of time after the seizure, shall submit a report to the appropriate prosecuting agency.
(1) The report must include the following information:
(a) a description of the property seized;
(b) the circumstances of the seizure;
(c) the present custodian and where the property is being stored or its location;
(d) the name of the owner of the property;
(e) the name of any lienholders of the property; and
(f) the seizing agency.
(2) If the property is a conveyance, the report must include the:
(a) make, model, serial number, and year of the conveyance;
(b) person in whose name the conveyance is registered; and
(c) name of any lienholders.
(3) In addition to the report provided for in items (1) and (2) of this subsection, the appropriate law enforcement agency shall prepare for dissemination to the public, upon request, a report providing the following information:
(a) a description of the quantity and nature of the property and money seized;
(b) the seizing agency;
(c) the make, model, and year of a conveyance; and
(d) the law enforcement agency responsible for the property or conveyance seized.
(I) Property or conveyances seized by a law enforcement agency may not be used by officers or employees of the agency for personal purposes.
(J)(1) An innocent owner or a manager or owner of a licensed rental agency or a common carrier or carrier of goods for hire may apply to the court of common pleas for the return of an item seized pursuant to the provisions this section. Notice of hearing or rule to show cause accompanied by copy of the application must be directed to all persons and agencies entitled to notice as provided in Section 44-53-530. If the court denies the application, the hearing may proceed as a forfeiture hearing held pursuant to the provisions of Section 44-53-530.
(2) The court may return a seized item to the owner if the owner demonstrates to the court by a preponderance of the evidence:
(a) in the case of an innocent owner, that the person or entity was not a consenting party to, or privy to, or did not have knowledge of, the use of the property which made it subject to seizure and forfeiture.
(b) in the case of a manager or an owner of a licensed rental agency, a common carrier, or a carrier of goods for hire, that an agent, servant, or employee of the rental agency or of the common carrier or carrier of goods for hire was not a party to, or privy to, or did not have knowledge of, the use of the property which made it subject to seizure and forfeiture.
(3) If the licensed rental agency demonstrates to the court that it has rented the seized property in the ordinary course of its business and that the tenant or tenants were not related within the third degree of kinship to the manager or owner, or any agents, servants, or employees of the rental agency, then it is presumed that the licensed rental agency was not a party to, or privy to, or did not have knowledge of, the use of the property which made it subject to seizure and forfeiture.
(4) The lien of an innocent person or other legal entity, recorded in public records, continues in force upon transfer of title of a forfeited item, and a transfer of title is subject to the lien, if the lienholder demonstrates to the court by a preponderance of the evidence that he was not a consenting party to, or privy to, or did not have knowledge of, the involvement of the property which made it subject to seizure and forfeiture."
Amend further, as and if amended, by adding a new SECTION appropriately numbered to read:
/SECTION ____. The first paragraph of Section 44-53-530(a) of the 1976 Code is amended to read:
"Forfeiture of property defined in Section 44-53-520 must be accomplished by petition of the Attorney General or his designee or the circuit solicitor or his designee to the court of common pleas for the jurisdiction where the items were seized. The petition must be submitted to the court within a reasonable time period following seizure and shall set forth the facts upon which the seizure was made. The petition shall describe the property and include the names of all owners of record and lienholders of record. The petition shall identify any other persons known to the petitioner to have interests in the property. Petitions for the forfeiture of conveyances shall also include: the make, model, and year of the conveyance, the person in whose name the conveyance is registered, and the person who holds the title to the conveyance. The petition shall set forth the type and quantity of the controlled substance involved. A copy of the petition must be sent to each law enforcement agency which has notified the petitioner of its involvement in effecting the seizure. Notice of hearing or rule to show cause must be directed to all persons with interests in the property listed in the petition, including law enforcement agencies which have notified the petitioner of their involvement in effecting the seizure. Owners of record and lienholders of record may be served by certified mail, to the last known address as appears in the records of the governmental agency which records the title or lien. Service by publication pursuant to Section 15-9-710 may only be achieved if the petitioner has also attempted service on the attorney for the owner of record. If the owner of record is incarcerated at the time forfeiture proceedings are initiated, the owner shall receive service either in person or by mail." /
Renumber sections to conform.
Amend title to conform.
JAMES H. HARRISON for Committee.
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 16-27-55 SO AS TO ALLOW THE FORFEITURE OF PROPERTY, MONIES, NEGOTIABLE INSTRUMENTS, SECURITIES, AND OTHER THINGS OF VALUE WHEN A PERSON VIOLATES A PROVISION OF THE ANIMAL FIGHTING AND BAITING ACT, TO PROVIDE PROCEDURES FOR FORFEITURE, AND TO CREATE AN EXCEPTION FOR THE INNOCENT OWNER OF PROPERTY SUBJECT TO FORFEITURE; TO AMEND SECTION 16-27-60, RELATING TO ACTIVITIES THAT ARE NOT SUBJECT TO THE CRIMINAL PENALTIES OF THE ANIMAL FIGHTING AND BAITING ACT, SO AS TO INCLUDE GAME FOWL UNDER THE PROVISIONS OF THE ACT BY DELETING ITS EXEMPTION; AND TO REPEAL SECTION 16-17-650 RELATING TO THE MISDEMEANOR OFFENSE OF COCKFIGHTING.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 27, Title 16 of the 1976 Code is amended by adding:
"Section 16-27-55. (A) A person who violates a provision of this chapter is subject to forfeiture of:
(1) property, both real and personal, which is knowingly used to engage in a violation or to further a violation of this chapter; and
(2) monies, negotiable instruments, securities, or other things of value furnished or intended to be furnished by a person to engage in or further a violation of this chapter.
(B) Property subject to forfeiture pursuant to the provisions of this chapter may be seized by the appropriate law enforcement agency with a warrant properly issued by a court with jurisdiction over the property. Property may be seized without a warrant if the:
(1) seizure is incident to an arrest or a search with a search warrant or an inspection under an administrative inspection warrant;
(2) property subject to seizure was the subject of a prior judgment in favor of the State in a criminal injunction or forfeiture proceeding pursuant to the provisions of this chapter;
(3) law enforcement agency has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
(4) law enforcement agency has probable cause to believe that the property was used or is intended to be used in violation of the provisions of this chapter.
(C) Forfeiture proceedings instituted pursuant to the provisions of this section are subject to the procedures and requirements for forfeiture as set out in Section 44-53-530.
(D) Property taken or detained pursuant to the provisions of this section is not subject to replevin but is considered to be in the custody of the law enforcement agency making the seizure subject only to an order of the court having jurisdiction over the forfeiture proceedings.
(E) For purposes of this section, when the seizure of property subject to forfeiture is accomplished as a result of a joint effort by more than one law enforcement agency, the law enforcement agency initiating the investigation is considered to be the agency making the seizure.
(F) A law enforcement agency seizing property pursuant to the provisions of this section shall take reasonable steps to maintain the property. Equipment and conveyances seized must be removed to an appropriate place for storage. Monies seized must be deposited in an interest bearing account pending final disposition by the court unless the seizing agency determines the monies to be of an evidential nature and provides for appropriate security in another manner.
(G) When property, monies, negotiable instruments, securities, or other things of value pursuant to the provisions of subsection (A) are seized, the law enforcement agency making the seizure, within ten days or a reasonable period of time after the seizure, shall submit a report to the appropriate prosecuting agency.
(1) The report must include the following information:
(a) a description of the property seized;
(b) the circumstances of the seizure;
(c) the present custodian and where the property is being stored or its location;
(d) the name of the owner of the property;
(e) the name of any lienholders of the property; and
(f) the seizing agency.
(2) If the property is a conveyance, the report must include the:
(a) make, model, serial number, and year of the conveyance;
(b) person in whose name the conveyance is registered; and
(c) name of any lienholders.
(3) In addition to the report provided for in items (1) and (2) of this subsection, the appropriate law enforcement agency shall prepare for dissemination to the public, upon request, a report providing the following information:
(a) a description of the quantity and nature of the property and money seized;
(b) the seizing agency;
(c) the make, model, and year of a conveyance; and
(d) the law enforcement agency responsible for the property or conveyance seized.
(H) Property or conveyances seized by a law enforcement agency may not be used by officers or employees of the agency for personal purposes.
(I)(1) An innocent owner or a manager or owner of a licensed rental agency or a common carrier or carrier of goods for hire may apply to the court of common pleas for the return of an item seized pursuant to the provisions this chapter. Notice of hearing or rule to show cause accompanied by copy of the application must be directed to all persons and agencies entitled to notice as provided in Section 44-53-530. If the court denies the application, the hearing may proceed as a forfeiture hearing held pursuant to the provisions of Section 44-53-530.
(2) The court may return a seized item to the owner if the owner demonstrates to the court by a preponderance of the evidence:
(a) in the case of an innocent owner, that the person or entity was not a consenting party to, or privy to, or did not have knowledge of, the use of the property which made it subject to seizure and forfeiture.
(b) in the case of a manager or an owner of a licensed rental agency, a common carrier, or a carrier of goods for hire, that an agent, servant, or employee of the rental agency or of the common carrier or carrier of goods for hire was not a party to, or privy to, or did not have knowledge of, the use of the property which made it subject to seizure and forfeiture.
(3) If the licensed rental agency demonstrates to the court that it has rented the seized property in the ordinary course of its business and that the tenant or tenants were not related within the third degree of kinship to the manager or owner, or any agents, servants, or employees of the rental agency, then it is presumed that the licensed rental agency was not a party to, or privy to, or did not have knowledge of, the use of the property which made it subject to seizure and forfeiture.
(4) The lien of an innocent person or other legal entity, recorded in public records, continues in force upon transfer of title of a forfeited item, and a transfer of title is subject to the lien, if the lienholder demonstrates to the court by a preponderance of the evidence that he was not a consenting party to, or privy to, or did not have knowledge of, the involvement of the property which made it subject to seizure and forfeiture."
SECTION 2. Section 16-27-60 of the 1976 Code is amended to read:
"Section 16-27-60. (a) The provisions of Section 16-27-30 do not apply to any a person:
(1) using any an animal to pursue or take wildlife or to participate in hunting in accordance with the game and wildlife laws of this State and regulations of the South Carolina Department of Natural Resources;
(2) using any an animal to work livestock for agricultural purposes; or
(3) properly training or using dogs for law enforcement purposes or protection of persons and private property.
(b) The provisions of this chapter do not apply to game fowl."
SECTION 3. Section 16-17-650 of the 1976 Code is repealed.
SECTION 4. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release, or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 5. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 6. This act takes effect upon approval by the Governor.
This web page was last updated on Tuesday, June 23, 2009 at 2:22 P.M.