Current Status Introducing Body:House Bill Number:4374 Primary Sponsor:Rama Committee Number:25 Type of Legislation:GB Subject:Racketeer Influenced and Corrupt Organizations Act Residing Body:House Current Committee:Judiciary Computer Document Number:DKA/3605.AL Introduced Date:Feb 06, 1992 Last History Body:House Last History Date:Feb 06, 1992 Last History Type:Introduced, read first time, referred to Committee Scope of Legislation:Statewide All Sponsors:Rama Type of Legislation:General Bill
Bill Body Date Action Description CMN
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4374 House Feb 06, 1992 Introduced, read first time, 25
referred to Committee
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TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 20 TO TITLE 16 SO AS TO PROVIDE FOR THE RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT, PROVIDE DEFINITIONS, PENALTIES, AND SEIZURE PROCEDURES.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The 1976 Code is amended by adding:
Section 16-20-10. This chapter may be cited as the Racketeer Influenced and Corrupt Organizations Act.
Section 16-20-20. As used in this chapter:
(1) `Aggrieved person' means the State or a person who has an interest in property or in an enterprise that:
(a) is the object of corrupt business influence; or
(b) has suffered damages or harm as a result of corrupt business influence.
(2) `Documentary material' means any document, drawing, photograph, recording, or other tangible item containing compiled data from which information can be obtained or translated into a usable form.
(3) `Enterprise' means a:
(a) sole proprietorship, corporation, partnership, business trust, or governmental entity; or
(b) union, an association, or a group, whether a legal entity or merely associated in fact.
(4) `Pattern of racketeering activity' means engaging in a least two incidents of racketeering activity that have the same or similar intent, result, accomplice, victim, or method of commission, or that are otherwise interrelated by distinguishing characteristics that are not isolated incidents. However, the incidents are a pattern of racketeering activity only if at least one of the incidents occurred after July 1, 1985, and if the last of the incidents occurred within five years after a previous incident of racketeering activity.
(5) `Racketeering activity' means to commit, to attempt to commit, to conspire to commit a violation of, or aiding and abetting in a violation of any of the following:
(a) murder;
(b) assault and battery with intent to kill;
(c) kidnapping;
(d) sexual exploitation of a minor, prostitution of a minor, or sexual performances by children;
(e) robbery;
(f) arson;
(g) burglary;
(h) theft;
(i) receiving stolen property;
(j) forgery;
(k) fraud;
(l) bribery;
(m) official misconduct under Articles 3 and 4, Chapter 9, Title 16,;
(n) conflict of interest;
(o) perjury;
(p) tampering with witnesses, juries, grand juries, or evidence;
(q) intimidation;
(r) prostitution;
(s) gambling;
(t) distribution or trafficking of illegal drugs or controlled substances under Sections 44-53-370 through 44-53-390, 44-53-395, and 44-53-440.
Section 16-20-30. (A) It is unlawful for a person to:
(1) knowingly or intentionally receive proceeds directly or indirectly derived from a pattern of racketeering activity, and use or invest those proceeds or the proceeds derived from them to acquire an interest in property or to establish or to operate an enterprise;
(2) knowingly or intentionally, through a pattern of racketeering activity, acquire or maintain, either directly or indirectly, an interest in or control of property or an enterprise; or
(3) be employed by or associated with an enterprise, and knowingly or intentionally conduct or otherwise participate in the activities of that enterprise through a pattern of racketeering activity.
(B) A person who commits corrupt business influence is guilty of a felony and, upon conviction, must be imprisoned not more than ten years or fined not more than ten thousand dollars, or both.
Section 16-20-40. The prosecuting attorney in a county in which the violation occurs, may bring an action in that county to enjoin a violation of Section 16-20-30. If the court finds by a preponderance of the evidence that a violation of Section 16-20-30 has occurred, it may:
(1) order a defendant to divest himself of any interest in any enterprise or property;
(2) impose reasonable restrictions upon the future activities or investments of a defendant, including prohibiting a defendant from engaging in the same type of endeavor as the enterprise in which he was engaged in violation Section 16-20-30;
(3) order the dissolution or reorganization of any enterprise;
(4) order the suspension or revocation of a license, permit, or prior approval granted to any enterprise by any agency of the State;
(5) order the forfeiture of the charter of a corporation organized under the laws of South Carolina, or the revocation of a certificate authorizing a foreign corporation to conduct business within the State, upon finding that the board of directors or a managerial agent acting on behalf of the corporation, in conducting the affairs of the corporation, has authorized or engaged in conduct in violation of Section 16-20-30 and that, for the prevention of future criminal activity, the public interest requires the charter of the corporation forfeited and the corporation dissolved or the certificate revoked;
(6) make any order or judgment that the court considers appropriate.
In any order or judgment made by the court under this section, the judge shall make due provision for the rights of innocent persons, including a person having any rights, title, or interest of record in any of the property.
Section 16-20-50. (A) The prosecuting attorney in a county in which any of the property is located, may bring an action for the forfeiture of any property used in the course of, intended for use in the course of, derived from, or realized through, conduct in violation of Section 16-20-30. An action for forfeiture may be brought in a county in which any of the property is located. Upon a showing by a preponderance of the evidence that the property in question was used in the course of, intended for use in the course of, derived from, or realized through, conduct in violation of Section 16-20-30, the court, subject to the right, title, or interest of record of any other party in the property determined under Section 16-20-60, shall order the property forfeited to the State, and shall specify the manner of disposition of the property including the manner of disposition if the property is not transferable for value. The court shall order forfeitures and dispositions under the section with due provision for the rights of innocent persons and as provided in Section 16-20-60.
(B) When an action is filed under subsection (A), the prosecutor may move for an order to have property subject to forfeiture seized by a law enforcement agency. The judge shall issue an order upon a showing of probable cause to believe that a violation of Section 16-20-30 involving the property in question has occurred.
Section 16-20-60. (A) Property subject to forfeiture under this chapter must be seized by a law enforcement officer upon court order. Seizure may be made without court order only if:
(1) the seizure is incident to a lawful arrest or search, or to an inspection under an administration inspection warrant; or
(2) the property subject to seizure has been the subject of a prior judgment in favor of the State in a forfeiture proceeding under this chapter.
(B) When property is seized under subsection (A), pending forfeiture and final disposition, the law enforcement officer making the seizure may:
(1) place the property under seal;
(2) remove the property to a place designated by the court; or
(3) require another agency authorized by law to take custody of the property and remove it to an appropriate location.
(C) Property seized under subsection (A) is not subject to replevin, but is considered to be in the custody of the law enforcement officer making the seizure, subject only to order of the court. However, if a seizure of property is made in accordance with subsection (A), the prosecuting attorney shall promptly bring an action for forfeiture under Section 16-20-50 within:
(1) thirty days after receiving notice from a person claiming a right, title, or interest in the property; or
(2) one hundred eighty days after the property is seized; whichever occurs first.
(D) If an action under subsection (C) is not filed within thirty days after receiving notice from a person claiming a right, title, or interest in the property, the claimant is entitled to file a complaint seeking replevin, foreclosure, or other appropriate remedy, and shall obtain immediately a hearing on the complaint as provided in subsection (F). If an action is not filed within one hundred eighty days after the date of the seizure, and the property has not been previously released to an innocent person under Section 16-20-70, the law enforcement agency whose officer made the seizure must return the property to its owner.
(E) If property is seized under subsection (A) and the property is a vehicle or real property, the prosecuting attorney shall serve, within thirty days after the date the property is seized and as provided by the South Carolina Rules of Civil Procedure, notice of seizure upon each person whose right, title, or interest is of record in the South Carolina Department of Highways and Public Transportation, in the county recorder's office, or other office authorized to receive or record vehicle or real property ownership interests.
(F) The person whose right, title, or interest is of record may at any time file a complaint seeking replevin, foreclosure, or another appropriate remedy, to which the State may answer in forfeiture within the appropriate statutory period. The court shall set the matter for a hearing promptly, and in the case of replevin or foreclosure, the court shall set the hearing as provided by the applicable statutory provisions.
Section 16-20-70. (A) If a person holding a valid lien, mortgage, security interest, or interest under a conditional sales contract did not know the property was the object of corrupt business influence, the court shall determine whether the secured interest is equal to or in excess of the appraised value of the property.
(B) Appraised value is to be determined as of the date of judgment on a wholesale basis by:
(1) agreement between the secured party and the prosecuting attorney; or
(2) the tax appraiser for the county in which the action is brought.
(C) If the amount due to the secured party is equal to or greater than the appraised value of the property, the court shall order the property released to the secured party.
(D) If the amount due the secured party is less than the appraised value of the property, the holder of the interest may pay into the court an amount equal to the owner's equity, which is the difference between the appraised value and the amount of the lien, mortgage, security interest, or interest under a conditional sales contract. Upon payment, the State or applicable law enforcement agency, or both, shall relinquish all claims to the property.
Section 16-20-80. (A) An aggrieved person, in addition to a proceeding under Section 16-20-60, may bring an action for injunctive relief from corrupt business influence in the court in the county of the aggrieved person's residence, or in a county where any of the affected property or the affected enterprise is located. If the court finds, through a preponderance of the evidence, that the aggrieved is suffering from corrupt business influence, it shall make an appropriate order for injunctive relief. This order must be made in accordance with the principles that govern the granting of injunctive relief from threatened loss or damage in other civil cases, except that a showing of special or irreparable damage to the aggrieved person is not required. The court may order injunctive relief only after the execution of a bond by the aggrieved person for an injunction improvidently granted, in an amount established by the court. In addition, the court may order a temporary restraining order or a preliminary injunction, but only after a showing of immediate danger of significant loss or damage to the aggrieved person.
(B) An aggrieved person may bring an action against a person who has violated Section 16-20-30 in the court in the county of the aggrieved person's residence, or in a county where any of the affected property or the affected enterprise is located, for damages suffered as a result of corrupt business influence. Upon a showing by a preponderance of the evidence that the aggrieved person has been damaged by corrupt business influence, the court shall order the person causing the damage through a violation of Section 16-20-30 to pay the aggrieved person:
(1) an amount equal to three times his actual damages;
(2) the costs of the action;
(3) a reasonable attorney's fee; and
(4) any punitive damages awarded by the court and allowable under law.
(C) The defendant and the aggrieved person are entitled to a trial by jury in an action brought under this section.
(D) In addition to any rights provided under Section 16-20-60, an aggrieved person has a right or claim to forfeited property or to the proceeds derived from forfeited property superior to any right or claim the State has in the same property or proceeds.
(E) If the State is an aggrieved person, the Attorney General has concurrent jurisdiction with the prosecuting attorney to bring an action under this section.
Section 16-20-90. In an action brought under this chapter, the principle of collateral estoppel operates to bar relitigation of the issues previously determined in a criminal proceeding under Section 16-20-30."
SECTION 2. This act takes effect upon approval by the Governor.