H 4072 Session 110 (1993-1994)
H 4072 General Bill, By S.E. Gonzales, J.J. Bailey, C.D. Chamblee, Davenport,
Fair, T.L. Farr, H.M. Hallman, Harrison, Haskins, H.G. Hutson, Inabinett,
M.F. Jaskwhich, Kelley, Klauber, Koon, Littlejohn, McCraw, Meacham, Quinn,
Robinson, Scott, R. Smith and Young-Brickell
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
16-15-105 so as to provide for the forfeiture of a vehicle, vessel, or
aircraft occupied by a person at the time of and used in the violation of the
provisions of Sections 16-15-90 or 16-15-100 which pertain to prostitution and
the unlawful acts associated therewith, and to provide the procedures and
procedural requirements for such forfeiture and for exceptions.
04/14/93 House Introduced and read first time HJ-54
04/14/93 House Referred to Committee on Judiciary HJ-54
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976,
BY ADDING SECTION 16-15-105 SO AS TO PROVIDE FOR THE
FORFEITURE OF A VEHICLE, VESSEL, OR AIRCRAFT
OCCUPIED BY A PERSON AT THE TIME OF AND USED IN THE
VIOLATION OF THE PROVISIONS OF SECTIONS 16-15-90 OR
16-15-100 WHICH PERTAIN TO PROSTITUTION AND THE
UNLAWFUL ACTS ASSOCIATED THEREWITH, AND TO
PROVIDE THE PROCEDURES AND PROCEDURAL
REQUIREMENTS FOR SUCH FORFEITURE AND FOR
EXCEPTIONS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The 1976 Code is amended by adding:
"Section 16-15-105. (A) A vehicle, vessel, or aircraft,
excluding common carriers, shall be subject to forfeiture and may be
seized without process if the seizure is incident to arrest for violation of
Sections 16-15-90 or 16-15-100 and:
(1) the person arrested had invited or permitted another person to
enter or remain in the vehicle, vessel, or aircraft for the purpose of
engaging or offering to engage in sexual activity in exchange for
payment or receipt of anything of value; or
(2) the person arrested was inside or upon the vehicle, vessel, or
aircraft when he engaged or accepted an offer to engage in sexual
activity in exchange for payment or receipt of anything of value.
(B) If the requirements of subsection (A) of this section are satisfied,
the vehicle, vessel, or aircraft is subject to forfeiture without regard to
whether the person solicited for sexual activity was at any time inside or
upon the vehicle, vessel, or aircraft.
(C) Any vehicle, vessel, or aircraft taken or detained under this
section is not subject to replevin and is considered to be in the custody
of the law enforcement agency making the seizure. Property is forfeited
and transferred to the seizing agency at the moment of its seizure as
incident to arrest. The forfeiture order of a court having jurisdiction
over the forfeiture proceedings confirms the transfer. Whenever the
seizure of any property subject to seizure 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.
(D) The law enforcement agency which makes a seizure pursuant to
this section must, within ten days or a reasonable period of time after the
seizure, submit a report to the Attorney General or his designee or to the
circuit solicitor or his designee for the jurisdiction where the property
was seized. This report shall provide the following information:
(1) the name of the seizing agency;
(2) a description of the circumstances of seizure;
(3) the name of the present custodian and current location of the
property;
(4) a general description and the make, model, serial number, and
year of the property;
(5) the name of the person in whose name the property is
registered in this or another state;
(6) the name of any lienholder known to the seizing agency; and
(7) the name of the person arrested at the time of seizure.
The law enforcement agency which makes a seizure pursuant to this
section is responsible for the property and the contents of the property
seized and shall take reasonable steps to maintain the property and its
contents including, but not necessarily limited to, removing the property
to an appropriate place for storage. Officers or other employees of the
seizing law enforcement agency must not use the property for personal
purposes, and the seizing agency must return the contents of the property
to the property's registered owner.
(E) The forfeiture of property provided for in this section 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 property was seized, and proceedings regarding
forfeiture and disposition must be instituted within a reasonable time.
The petition for a forfeiture order 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 include:
(1) a description of the property;
(2) the names of all owners and lienholders of record in this State
or in the state in which the property is registered and the names of other
persons known to the petitioner to have an interest in the property;
(3) the make, model, and year of the property; and
(4) the person in whose name the property is registered and the
name of the person who holds the title to the property.
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, lienholders of
record, and all other persons listed in the petition as having an interest
in the property must be served by certified mail, return receipt requested,
to the last known address as it appears in the records of the
governmental agency which records the title, lien, or other interest.
Prior to entering a forfeiture order or in response to a separate petition
made by an owner or any manager or owner of a licensed rental agency
to redeem the property, the court must conduct a hearing to determine
ownership and the rights of innocent third parties with respect to the
property. Notice of the hearing, served by certified mail, return receipt
requested, to the last known address as it appears in the records of the
governmental agency which records the title, lien, or other interest, must
be directed to all persons listed in the petition as having an interest in the
property and to law enforcement agencies which have notified the
petitioner of their involvement in effecting the seizure. The judge may,
in his discretion, determine that the hearing to determine ownership and
the rights of innocent third parties with respect to the property shall be
delayed until there is a resolution of the charges against the person
arrested for violating Sections 16-15-90 or 16-15-100.
In its hearing to determine ownership and the rights of innocent third
parties with respect to the property or in a separate petition made by an
owner or any manager or owner of a licensed rental agency to redeem
the property, the court may order that an innocent owner or any manager
or owner of a licensed rental agency may redeem the property by
demonstrating by a preponderance of the evidence that:
(1) in the case of an innocent owner, the seizure was not incident
to the owner's arrest for violation of Sections 16-15-90 or 16-15-100 and
that he 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;
(2) the action against the owner for violating Sections 16-15-90
or 16-15-100 has reached final conclusion and the owner has not pled
guilty, been convicted, or pled nolo contendere; or
(3) in the case of a manager or an owner of a licensed rental
agency, any agent, servant, or employee of the 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 and if the rental
agency demonstrates to the court that it rented the seized property in the
ordinary course of its business and the lessee was 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.
If the judge denies the claims made by an innocent owner or any
manager or owner of a licensed rental agency, the hearing may proceed
as a forfeiture hearing in which the judge shall determine whether the
property is subject to forfeiture and order the forfeiture confirmed.
(F) If the judge finds a forfeiture, he shall then determine the
lienholder's interest. The lien of any innocent person or other legal
entity, recorded in public records, shall continue in force upon transfer
of title of any forfeited property, and any 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. If the lienholder demonstrates to the
court that its lien was taken in the ordinary course of its business and the
person arrested for violating Sections 16-15-90 or 16-15-100 was 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 lienholder 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.
(G) If the judge finds a forfeiture, he shall also determine the
distribution of the forfeited property or its proceeds in accordance with
the following provisions:
(1) The judge shall determine what, if any, property must be
transferred to the seizing law enforcement agency or agencies. If there
is a dispute as to the division of the proceeds of forfeited property
among participating law enforcement agencies, the division must be
determined by the judge.
(2) When forfeited property is reduced to proceeds, the proceeds
must be disposed of as follows:
(a) seventy-five percent to the seizing law enforcement agency
or agencies;
(b) twenty percent to the prosecuting agency; and
(c) five percent to the State Treasurer to be deposited in the
general fund of the State.
(3) All property which will not be reduced to proceeds may be
transferred to the law enforcement agency or agencies or to the
prosecution agency or, upon motion of the seizing agency, the judge
may order the property returned to any lienholder. Upon agreement of
the law enforcement agency or agencies and the prosecution agency, the
property may be transferred to any other appropriate agency. Property
transferred must not be used to supplant operating funds within current
or future budgets.
(4) If the property is seized by a state law enforcement agency
and is not transferred by the court to the seizing agency, the judge shall
order it transferred to the Division of General Services for sale.
Proceeds may be used by the division for payment of all proper expenses
of the proceedings for the forfeiture and sale of the property, including
the expenses of seizure, maintenance, and custody and other costs
incurred by the implementation of this section. The net proceeds from
any sale must be remitted to the State Treasurer as provided in item (6)
of this subsection.
(5) If the property is seized by a local law enforcement agency,
the judge may order the property sold at public auction by the seizing
agency as provided by law. Notwithstanding any other provision of law,
proceeds from the sale may be used by the agency for payment of all
proper expenses of the proceeding for the forfeiture and sale of the
property, including the expenses of the seizure, maintenance, and
custody and other costs incurred by the implementation of this section.
(6) All proceeds from the sale of forfeited property must be
retained by the governing body of the local law enforcement agency or
prosecution agency and deposited in a separate, special account in the
name of each appropriate agency. These accounts may be drawn on and
used only by the law enforcement agency or prosecution agency for
which the account was established. These accounts must not be used to
supplant operating funds in current or future budgets. Expenditures
from these accounts for an item that would be a recurring expense must
be approved by the governing body before purchase or, in the case of a
state law enforcement agency or prosecution agency, approved as
provided by law. In the case of a state law enforcement agency or state
prosecution agency, monies and proceeds must be remitted to the State
Treasurer who shall establish separate, special accounts as provided in
this section for local agencies. All expenditures from these accounts
must be documented and the documentation made available for audit
purposes and upon request by a person under the provisions of Chapter
4 of Title 30. An expenditure from these accounts must be made in
accordance with the established procurement procedures of the
jurisdiction where the account is established.
(7) A law enforcement agency may draw from the account an
amount necessary to maintain a confidential financial account to be used
in the purchase of information or evidence relating to an investigation,
to purchase services, or to provide compensation in matters which are
confidential and in support of law enforcement activity. The
disbursement of funds from the confidential financial account must be
made in accordance with procedures approved by the South Carolina
Law Enforcement Division. All records of disbursement must be
maintained and made available for audit purposes as provided in this
section. All expenditures from these accounts must be fully documented
and audited annually with the general fund of the appropriate
jurisdiction.
(8) The use of all property forfeited and retained by a law
enforcement agency must be documented and the documentation
available upon request by a person under the provisions of Chapter 4 of
Title 30.
(H) Notwithstanding the provisions of subsection (E) of this section,
a redemption by the owner of the property or any forfeiture may be
effected by consent order approved by the court without filing or serving
pleadings or notices provided that all owners and other persons with
interests in the property entitled to notice under this section, except
lienholders and agencies, consent to the forfeiture. Disposition of the
property may be accomplished by consent of the petitioner and those
agencies involved. Persons entitled to notice under this section may
consent to some issues and have the judge determine the remaining
issues. All proceeds of property forfeited by consent order must be
disposed of as provided in subsection (G)(2) of this section."
SECTION 2. This act takes effect upon approval by the Governor.
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