South Carolina General Assembly
110th Session, 1993-1994

Bill 4072


Indicates Matter Stricken
Indicates New Matter


                    Current Status

Introducing Body:               House
Bill Number:                    4072
Primary Sponsor:                Gonzales
Committee Number:               25
Type of Legislation:            GB
Subject:                        Prostitution, property
                                forfeiture
Residing Body:                  House
Current Committee:              Judiciary
Computer Document Number:       CYY/15448SD.93
Introduced Date:                19930414
Last History Body:              House
Last History Date:              19930414
Last History Type:              Introduced, read first time,
                                referred to Committee
Scope of Legislation:           Statewide
All Sponsors:                   Gonzales
                                A. Young
                                R. Smith
                                Farr
                                Inabinett
                                Jaskwhich
                                Harrison
                                Quinn
                                Fair
                                McCraw
                                J. Bailey
                                Scott
                                Hallman
                                Kelley
                                Haskins
                                Robinson
                                Koon
                                Klauber
                                Littlejohn
                                Meacham
                                Hutson
                                Chamblee
                                Davenport
Type of Legislation:            General Bill



History


Bill  Body    Date          Action Description              CMN  Leg Involved
____  ______  ____________  ______________________________  ___  ____________

4072  House   19930414      Introduced, read first time,    25
                            referred to Committee

View additional legislative information at the LPITS web site.


(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

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.

-----XX-----