South Carolina General Assembly
115th Session, 2003-2004

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Bill 555

Indicates Matter Stricken
Indicates New Matter


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

Indicates Matter Stricken

Indicates New Matter

HOUSE AMENDMENTS AMENDED

May 20, 2003

S. 555

Introduced by Senators Martin, Anderson, McConnell, Waldrep, Alexander, Leventis, Ravenel and Thomas

S. Printed 5/20/03--H.

Read the first time April 16, 2003.

            

A BILL

TO AMEND SECTION 14-7-1630, AS AMENDED, RELATING TO JURISDICTION OF THE GRAND JURY, SO AS TO ADD CRIMES INVOLVING ANY VIOLATION OF CHAPTER 1, TITLE 35 OF THE UNIFORM SECURITIES ACT, OR ANY CRIME RELATED TO SECURITIES FRAUD OR A VIOLATION OF THE SECURITIES LAWS, AND TO AMEND SECTION 35-1-1500, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PERSONS JOINTLY AND SEVERALLY LIABLE WITH SELLER AND THEIR CONTRIBUTION, SO AS TO PROVIDE THAT EVERY PERSON WHO KNOWINGLY AND SUBSTANTIALLY ASSISTS A SELLER OR OTHER PERSON WHO ENGAGES IN FRAUDULENT ACTS IN VIOLATION OF THE SOUTH CAROLINA SECURITIES ACT WILL BE JOINTLY AND SEVERALLY LIABLE TO THE SAME EXTENT AS THE ASSISTED PERSON WHO ENGAGED IN THE FRAUDULENT ACTIVITY; AND TO AMEND SECTION 35-1-1530, AS AMENDED, RELATING TO LIMITATIONS OF ACTIONS AND THE EFFECT OF OFFER TO REFUND CONSIDERATION WITH INTEREST, SO AS TO REQUIRE THAT IN CASES INVOLVING DECEPTION TO INVESTORS THE LIMITATIONS PERIOD IS EXTENDED TO THREE YEARS AFTER DISCOVERY OF THE UNTRUE STATEMENT OR OMISSION, OR AFTER THE DISCOVERY SHOULD HAVE BEEN MADE BY REASONABLE DILIGENCE.

Amend Title To Conform

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Section 14-7-1630 of the 1976 Code, as amended by Act 339 of 2002, is further amended to read:

"Section 14-7-1630.    (A)    The jurisdiction of a state grand jury impaneled under this article extends throughout the State. The subject matter jurisdiction of a state grand jury in all cases is limited to the following offenses:

(1) crimes involving narcotics, dangerous drugs, or controlled substances, or any crime arising out of or in connection with a crime involving narcotics, dangerous drugs, or controlled substances including, but not limited to, money laundering as specified in Section 44-53-475, obstruction of justice, perjury or subornation of perjury, and crimes involving obscenity or any attempt, aiding, abetting, solicitation, or conspiracy to commit any of the aforementioned crimes if the crimes are of a multi-county nature or have transpired or are transpiring or have significance in more than one county of this State;

(2) any crime, statutory, common law or other, involving public corruption as defined in Section 14-7-1615, any crime, statutory, common law or other, arising out of or in connection with a crime involving public corruption as defined in Section 14-7-1615, and any attempt, aiding, abetting, solicitation, or conspiracy to commit any crime, statutory, common law or other, involving public corruption as defined in Section 14-7-1615;

(3) crimes involving the election laws including, but not limited to, those named offenses as specified in Title 7, or any common law crimes involving the election laws where not superseded, or any crime arising out of or in connection with the election laws, or any attempt, aiding, abetting, solicitation, or conspiracy to commit a crime involving the election laws;

(4) crimes involving computer crimes, pursuant to Chapter 16, Title 16, or any conspiracy or solicitation to commit these crimes; and

(5) crimes involving terrorism, or any conspiracy or solicitation to commit these crimes. Terrorism includes activities that:

(a) involve acts dangerous to human life that are a violation of the criminal laws of this State;

(b) appear to be intended to:

(i) intimidate or coerce a civilian population;

(ii) influence the policy of a government by intimidation or coercion; or

(iii) affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(c) occur primarily within the territorial jurisdiction of this State.; and

(6) crimes involving any violation of Chapter 1, Title 35 of The Uniform Securities Act, or any crime related to securities fraud or a violation of the securities laws.

(B) Whenever the Attorney General and the Chief of the South Carolina Law Enforcement Division consider it necessary and normal investigative or prosecutorial procedures are not adequate, the Attorney General may petition in writing to the Chief Administrative Judge of the judicial circuit in which he seeks to impanel a state grand jury for an order impaneling a state grand jury. This judge is referred to in this article as the impaneling judge. The petition must allege the type of offenses to be inquired into and, in the case of those offenses contained in subsection (A)(1), must allege that these offenses may be of a multi-county nature or have transpired or are transpiring or have significance in more than one county of the State. The petition in all instances must specify that the public interest is served by the impanelment.

(C) The impaneling judge, after due consideration of the petition, may order the impanelment of a state grand jury in accordance with the petition for a term of twelve calendar months. Upon petition by the Attorney General, the then chief administrative judge of the judicial circuit in which a state grand jury was impaneled, by order, may extend the term of that state grand jury for a period of six months but the term of that state grand jury, including any extension thereof, shall not exceed two years.

(D) The chief administrative judge of the circuit wherein a state grand jury is sitting shall preside over that state grand jury during his tenure as chief administrative judge. The successor chief administrative judge shall assume all duties and responsibilities with regard to any state grand jury impaneled before his term, including, but not limited to, presiding over the state grand jury and ruling on petitions to extend its term. This judge is referred to in this article as the presiding judge.

(E) The presiding judge may discharge a state grand jury prior to the end of its original term or any extension thereof, upon a determination that its business has been completed or upon the request of the Attorney General.

(F) If, at any time within the original term of any state grand jury or any extension thereof, the presiding judge determines that the state grand jury is not conducting investigative activity within its jurisdiction or proper investigative activity, the presiding judge may limit the investigation so that the investigation conforms with the jurisdiction of the state grand jury and existing law or he may discharge the state grand jury. An order issued pursuant to this subsection or under subsection (E) shall not become effective less than ten days after the date on which it is issued and actual notice given to the Attorney General and the foreman of the state grand jury, and may be appealed by the Attorney General to the Supreme Court. If an appeal from the order is made, the state grand jury, except as is otherwise ordered by the Supreme Court, shall continue to exercise its powers pending disposition of the appeal."

SECTION    2.    Section 35-1-220 of the 1976 Code, as amended by Act 419 of 1998, is further amended to read:

"Section 35-1-220.    (A)    The Attorney General may retain the first one million five hundred thousand dollars from fee revenues collected pursuant to this chapter to be used for the operations of the Securities Division. The Attorney General is authorized to transfer to the South Carolina Law Enforcement Division two hundred thousand dollars after retaining the first one million five hundred thousand dollars collected pursuant to this chapter to be retained, expended, and carried forward for the provision of investigators for the State Grand Jury. The funds transferred to the State Law Enforcement Division must be used only for purposes of the State Grand Jury, and may not transferred to any other program or used for any other purpose.

(B)    The Attorney General may retain the first two hundred fifty thousand dollars received by the Division of Securities in a fiscal year in settlement of litigation enforcement action and reimbursements of expenses arising from violations under this chapter to offset investigative, prosecutive prosecutorial, and administrative costs of enforcing this chapter."

SECTION    3.    Section 35-1-430 of the 1976 Code, as amended by Act 134 of 1997, is further amended to read:

"Section 35-1-430.    Every broker-dealer, and broker-dealer agent investment advisor registration, and every federally-covered advisor notice filing, expires at midnight on the last day of the calendar year in which it became effective unless renewed. Every investment adviser registration and federal covered adviser notice filing expires two years from its effective date unless renewed and, unless Unless renewed prior to expiration, every broker-dealer agent and investment adviser representative registration expires at the same time the registration or notice filing of the associated broker-dealer, investment adviser, or federal covered federally-covered adviser would expire if not renewed."

SECTION    4.    Section 35-1-480 of the 1976 Code, as amended by Act 134 of 1997, is further amended to read:

"Section 35-1-480.    (A)    Every applicant for initial or renewal registration as a broker-dealer, broker-dealer agent, investment adviser, or investment adviser representative shall must pass one or more examinations, pay a registration fee, and meet other requirements as required by the securities commissioner.

(B)    Except with respect to federal covered federally-covered advisers whose only clients are those described in Section 35-1-420(1)(a), a federal covered federally-covered adviser shall must file with the commissioner, prior to acting as a federal covered federally-covered adviser in this State, such documents filed with the Securities and Exchange Commission or such other notice filing document, as the commissioner may by rule or otherwise require, together with such the notice fee and consent to service of process as the commissioner, by rule or otherwise, may require requires. The notice filing provisions under this subsection shall expire as provided in Section 35-1-430.

(C)    The following filing fees shall remain in effect for all initial, renewal, and notice filings described in subsections (A) and (B) of this section unless and until the securities commissioner promulgates a rule or order establishing different fees:

(1)    broker-dealer: three hundred ten dollars;

(2)    agent: one hundred ten dollars;

(3)    investment adviser and federal covered federally-covered adviser: four two hundred ten dollars;

(4)    investment adviser representative: one hundred fifty-five dollars.

(D)    When an application is denied or withdrawn, the filing fee must not be refunded."

SECTION    5.    Section 35-1-1100 of the 1976 Code, as amended by Act 134 of 1997, is further amended to read:

"Section 35-1-1100.    (a)    The securities commissioner, by rule or order, may require the filing of any or all of the following documents with respect to a federal covered federally-covered security under Section 18(b)(2) of the Securities Act of 1933:

(1)    Prior to the initial offer of such federal covered the federally-covered security in this State, all documents that are part of a current federal registration statement filed with the United States Securities and Exchange Commission under the Securities Act of 1933 or a notice form adopted by the securities commissioner in lieu thereof, together with a consent to service of process signed by the issuer and a notice filing fee of five hundred forty-six dollars.

(2)    After the initial offer of such federal covered the federally-covered security in this State, all documents that are part of an amendment to a current federal registration statement filed with the United States Securities and Exchange Commission under the Securities Act of 1933, or a notice form adopted by the securities commissioner in lieu thereof which shall must be filed concurrently with the securities commissioner.

(3)    All notice filings for federal covered federally-covered securities are effective upon receipt by the commission, unless another date is requested by the issuer. These filings are effective for twelve months. If securities are to be offered beyond this twelve-month period, the issuer must file an annual notice filing consisting of any documents that the securities commissioner, by rule or otherwise, may require requires and a fee of five hundred forty-six dollars. The renewal notice filing shall be is effective upon the expiration of the prior filing period.

(4)    Amendments to a notice filing are effective upon receipt by the securities commissioner. Termination of a notice filing is effective upon receipt by the securities commissioner of notice of the termination.

(b)    With respect to any security that is a federal covered federally-covered security under Section 18(b)(4)(D) of the Securities Act of 1933, the securities commissioner, by rule or order, may require the issuer to file a notice on SEC Form D and a consent to service of process signed by the issuer no later than fifteen (15) days after the first sale of such federal covered the federally-covered security in this State, together with a fee of three hundred dollars.

(c)    The securities commissioner, by rule or order, may require the filing of any document filed with the United States Securities and Exchange Commission under the Securities Act of 1933 with respect to a federal covered federally-covered security under Section 18(b)(3) or (4) of the Securities Act of 1933, together with a filing fee of twenty-five dollars.

(d)    The securities commissioner may issue a stop order suspending the offer and sale of a federal covered federally-covered security, except a federal covered federally-covered security under Section 18(b)(1) of the Securities Act of 1933, if he finds that: (1) the order is in the public interest, and (2) there is a failure to comply with any condition established under this section.

(e)    The securities commissioner, by rule or order, may modify, change, or waive any or all of the provisions of this section."

SECTION    6.    Section 35-1-1530 of the 1976 Code, as amended by Act 134 of 1997, is further amended to read:

"Section 35-1-1530.    No person may sue under Sections Section 35-1-1490 and or 35-1-1500 more than three years after the contract of sale, except that in cases involving deception of an investor, the limitations period is extended to three years after discovery of the untrue statement or omission or after the discovery should have been made by exercise of reasonable diligence. No person may sue under either section (a) if the buyer received:

(a)    a written offer, before suit and at a time when he owned the security, to refund the consideration paid together with interest at six percent per year from the date of payment, less the amount of any income received on the security, and he failed to accept the offer within thirty days of its receipt; or

(b)    if the buyer received such an the offer before suit and at a time when he did not own the security, unless he rejected the offer in writing within thirty days of its receipt."

SECTION    7.    The Office of the Attorney General is hereby authorized to collect the following security fees which shall remain in effect for all initial, renewal, and notice filings described in subsections (A) and (B) of Section 35-1-480 unless and until the securities commissioner promulgates a rule or order establishing different fees:

(1)    Broker-dealer: three hundred ten dollars annually;

(2)    Broker-dealer agent: one hundred ten dollars annually;

(3)    Investment advisors and federal covered federally-covered advisors: two hundred ten dollars annually;

(4)    Investment advisor representatives: fifty-five dollars annually;

(5)    Federal covered Federally-covered securities (Mutual Funds): five hundred forty-six dollars annually.

The Office of the Attorney General is hereby authorized to collect, retain, expend, and carry forward one million five hundred thousand dollars from fee revenues collected pursuant to Section 35 to be used for the operations of the Securities Division. The Attorney General is authorized to transfer to the South Carolina Law Enforcement Division two hundred thousand dollars after retaining the first one million five hundred thousand dollars collected from Security Fees to be retained, expended, and carried forward for the provision of investigators for the State Grand Jury. The funds transferred to the State Law Enforcement Division must be used only for purposes of the State Grand Jury, and must not be transferred to any other program or used for any other purpose.

SECTION    8.    This act takes effect upon approval of the Governor.

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