H.B. 119

1

RETAIL THEFT AMENDMENTS
2 2011 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Paul Ray
5 Senate Sponsor: ____________
6
7 LONG TITLE
8 General Description:
9 This bill modifies the Criminal Code creating an offense of commercial burglary and
10 penalties for a person who returns and commits retail theft again at a property where the
11 person has previously been prohibited from returning.
12 Highlighted Provisions:
13 This bill:
14 . defines commercial burglary as someone who enters a merchant's property and
15 commits retail theft after:
16 . committing retail theft on that property within the past five years; and
17 . receiving written notice from the merchant prohibiting the offender from
18 entering the property;
19 . authorizes a merchant to prohibit a person who has committed retail theft from
20 reentering the property from which the person has wrongfully taken merchandise;
21 . specifies how a merchant may give written notice prohibiting a person who has
22 previously committed retail theft from reentering the property; and
23 . provides a penalty for commercial burglary of a third degree felony, and for
24 subsequent offenses a penalty of a second degree felony.
25 Money Appropriated in this Bill:
26 None
27 Other Special Clauses:

28 None
29 Utah Code Sections Affected:
30 AMENDS:
31 78B-3-108, as enacted by Laws of Utah 2008, Chapter 3
32
33 Be it enacted by the Legislature of the state of Utah:
34 Section 1. Section 78B-3-108 is amended to read:
35 78B-3-108. Commercial burglary -- Merchant's rights -- Civil liability for retail
36 theft by adult or minor -- Criminal conviction not a prerequisite for civil liability --
37 Written notice required for penalty demand -- Penalties.
38 (1) As used in this section:
39 (a) "Commercial burglary" means entering a merchant's property and committing retail
40 theft, as defined in Section 76-6-602 , after:
41 (i) committing retail theft on that property within the past five years; and
42 (ii) receiving written notice from the merchant prohibiting the offender from entering
43 the property.
44 [(a)] (b) "Merchandise" has the same meaning as provided in Section 76-6-601 .
45 [(b)] (c) "Merchant" has the same meaning as provided in Section 76-6-601 .
46 [(c)] (d) "Minor" has the same meaning as provided in Section 76-6-601 .
47 [(d)] (e) "Premises" has the same meaning as "retail mercantile establishment" found in
48 Section 76-6-601 .
49 [(e)] (f) "Wrongful taking of merchandise" has the same meaning as "retail theft" as
50 described in Section 76-6-602 .
51 (2) A merchant may request an individual on his premises to place or keep in full view
52 any merchandise the individual may have removed, or which the merchant has reason to
53 believe the individual may have removed, from its place of display or elsewhere, whether for
54 examination, purchase, or for any other reasonable purpose. The merchant may not be
55 criminally or civilly liable for having made the request.
56 (3) A merchant who has reason to believe that merchandise has been wrongfully taken
57 by an individual and that the merchant can recover the merchandise by taking the individual
58 into custody and detaining the individual may, for the purpose of attempting to recover the

59 merchandise or for the purpose of informing a peace officer of the circumstances of the
60 detention, take the individual into custody and detain the individual in a reasonable manner and
61 for a reasonable length of time. Neither the merchant nor the merchant's employee may be
62 criminally or civilly liable for false arrest, false imprisonment, slander, or unlawful detention or
63 for any other type of claim or action unless the custody and detention are unreasonable under
64 all the circumstances.
65 (4) (a) A merchant may prohibit a person who has committed retail theft from
66 reentering the property from which the person has wrongfully taken merchandise.
67 (b) The merchant shall give written notice of this prohibition to the person who has
68 previously committed retail theft as described in Section 76-6-602 . The notice may be served
69 by:
70 (i) delivering a copy to the individual personally;
71 (ii) sending a copy through registered or certified mail addressed to the person at the
72 person's residence or usual place of business;
73 (iii) leaving a copy with a person of suitable age and discretion at either place under
74 Subsection (4)(b)(ii) and mailing a copy to the person at the person's residence or place of
75 business if the person is absent from the residence or usual place of business; or
76 (iv) affixing a copy in a conspicuous place at the person's residence or place of
77 business.
78 (c) The person serving the notice may authenticate service with the person's signature,
79 the method of service, and legibly documenting the date and time of service.
80 (5) (a) A person who commits commercial burglary is guilty of a third degree felony.
81 (b) A second or subsequent conviction of commercial burglary is a second degree
82 felony.
83 [(4)] (6) An adult who wrongfully takes merchandise is liable in a civil action, in
84 addition to actual damages, for a penalty to the merchant in the amount of the retail price of the
85 merchandise not to exceed $1,000, plus an additional penalty as determined by the court of not
86 less than $100 nor more than $500, plus court costs and reasonable attorney fees.
87 [(5)] (7) A minor who wrongfully takes merchandise and the minor's parents or legal
88 guardian are jointly and severally liable in a civil action to the merchant for:
89 (a) actual damages;

90 (b) a penalty to the merchant in the amount of the retail price of the merchandise not to
91 exceed $500 plus an additional penalty as determined by the court of not less than $50 nor
92 more than $500; and
93 (c) court costs and reasonable attorney fees.
94 [(6)] (8) A parent or guardian is not liable for damages under this section if the parent
95 or guardian made a reasonable effort to restrain the wrongful taking and reported it to the
96 merchant involved or to the law enforcement agency having primary jurisdiction once the
97 parent or guardian knew of the minor's unlawful act. A report is not required under this section
98 if the minor was arrested or apprehended by a peace officer or by anyone acting on behalf of
99 the merchant involved.
100 [(7)] (9) A conviction in a criminal action of shoplifting is not a condition precedent to
101 a civil action authorized under Subsection [(4) or (5)] (6) or (7).
102 [(8)] (10) (a) A merchant demanding payment of a penalty under Subsection [(4) or
103 (5)] (6) or (7) shall give written notice to the person or persons from whom the penalty is
104 sought. The notice shall state:
105 "IMPORTANT NOTICE: The payment of any penalty demanded of you does not
106 prevent criminal prosecution under a related criminal provision."
107 (b) This notice shall be boldly and conspicuously displayed, in at least the same size
108 type as is used in the demand, and shall be sent with the demand for payment of the penalty
109 described in Subsection [(4) or (5)] (6) or (7).
110 [(9)] (11) The provision of Section 78B-8-201 requiring that compensatory or general
111 damages be awarded in order to award punitive damages does not prohibit an award of a
112 penalty under Subsection [(4) or (5)] (6) or (7) whether or not restitution has been paid to the
113 merchant either prior to or as part of a civil action.




Legislative Review Note
as of 12-27-10 9:14 AM

Office of Legislative Research and General Counsel