ORDINANCE NO. 9256

AN ORDINANCE OF THE CITY OF LAWRENCE, KANSAS, AMENDING CHAPTER XIV, ARTICLE 3, SECTIONS 14-304, 14-305, 14-306, 14-307, AND 14-308 OF THE CODE OF THE CITY OF LAWRENCE, KANSAS, 2015 EDITION, AND AMENDMENTS THERETO, PERTAINING TO THEFT AND THEFT OF SERVICES, PRIMA FACIE EVIDENCE OF INTENT TO PERMANENTLY DEPRIVE AN OWNER OR LESSOR OF PROPERTY OF THE POSSESSION, USE, OR BENEFIT THEREOF, PROPERTY MISLAID, LOST OR DELIVERED BY MISTAKE, AND CRIMINAL DEPRIVATION OF PROPERTY AND REPEALING EXISTING SECTIONS 14-304, 14-305, 14-306, 14-307, AND 14-308.

BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF LAWRENCE, KANSAS:

SECTION 1: Chapter XIV, Article 3, Section 14-304 of the Code of the City of Lawrence, Kansas, 2015 Edition, and amendments thereto, is hereby amended to read as follows:

14-304 THEFT

(A) No person shall commit theft. Theft is any of the following acts done with the intent to deprive the owner permanently of the possession, use or benefit of the owner’s property:

(1) Obtaining or exerting unauthorized control over property;

(2) Obtaining by deception control over property;

(3) Obtaining by threat control over property; or

(4) Obtaining control over stolen property knowing the property to have been stolen by another; or

(5) Knowingly dispensing motor fuel into a storage container or the fuel tank of a motor vehicle at an establishment in which motor fuel is offered for retail sale and leaving the premises of the establishment without making payment for the motor fuel.

(B) Penalty

(1) Any person convicted of the crime of theft shall be punished by a fine not to exceed $2500, or a jail term not to exceed one year, or both such fine and jail term.

(2) Theft of property or services of a value less than ~~$1000.00~~ $1500 is a misdemeanor, and may be prosecuted in municipal court, unless it constitutes a felony as described below:

(a) The theft in question is of property valuing at least $50 but less than $1500 and is committed by a person who has been convicted of theft two or more times within the five years immediately preceding commission of the crime, excluding any period of imprisonment;

(b) The theft in question constitutes a part of thefts from three of or more separate mercantile establishments within a period of 72 hours as part of the same act or transaction or in two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct; or

~~In either such circumstance, the theft is classified as a felony under K.S.A. 21-5801.~~

SECTION 2: Chapter XIV, Article 3, Section 14-305 of the Code of the City of Lawrence, Kansas, 2015 Edition, and amendments thereto, is hereby amended to read as follows:

14-305 THEFT; INTENT TO PERMANENTLY DEPRIVE.

(A) In any prosecution under this article, the following shall be prima facie evidence of intent to permanently deprive the owner or lessor of property of the possession, use or benefit thereof:

(1) The giving of a false identification or fictitious name, address or place of employment at the time of buying, selling, leasing, trading, gathering, collecting, soliciting, procuring, receiving, dealing or otherwise obtaining or exerting control over the property; ~~obtaining control over the property;~~

(2) The failure of a person who leases or rents personal property and fails to return the same within 10 days after the date set forth in the lease or rental agreement for the return of the property, if notice is given to the person renting or leasing the property to return the property within seven days after receipt of the notice, in which case the subsequent return of the property within the seven-day period shall exempt such transaction from consideration as prima facie evidence as provided in this section;

(3) Destroying, breaking or opening a lock, chain, key switch, enclosure or other device used to secure the property in order to obtain control over the property; or

(4) Destruction of or substantially damaging or altering the property so as to make the property unstable or unrecognizable in order to obtain control over the property;.

(5) The failure of a person who leases or rents from a commercial renter a motor vehicle under a written agreement that provides for the return of the motor vehicle to a particular place at a particular time, if notice has been given to the person renting or leasing the motor vehicle to return such vehicle within three calendar days from the date of the receipt or refusal of the demand. In addition, if such vehicle has not been returned after demand, the lessor may notify the local law enforcement agency of the failure of the lessee to return such motor vehicle and the local law enforcement agency shall cause such motor vehicle to be put into any appropriate state and local computer system listing stolen motor vehicles;

(6) The failure of a person who is provided with a use of a vehicle by the owner of the vehicle to return it to the owner pursuant to a written instruction specifying:

(A) The time and place to return the vehicle; and

(B) That failure to comply may be prosecuted as theft, and such instructions are delivered to the person by the owner at the time the person is provided with possession of the vehicle.

In addition, if such vehicle has not been returned pursuant to the

specifications in such instructions, the owner may notify the local

law enforcement agency of the failure of the person to return such

motor vehicle and the local law enforcement agency shall cause

such motor vehicle to be put into any appropriate state and local

computer system listing stolen motor vehicles;

(7) Removing a theft detection device, without authority, from merchandise or disabling such device prior to purchase; or

(8) Under the provisions of Section 14-304(A)(5) of this Article, the failure to replace or reattach the nozzle and hose of the pump used for the dispensing of motor fuels or placing such nozzle and hose on the ground or pavement.

(B) In any prosecution in which the object of the alleged theft is a book or other material borrowed from a library, it shall be prima facie evidence of intent to permanently deprive the owner of the possession, use or benefit thereof if the defendant failed to return such book or material within 30 days after receiving notice from the library requesting its return, in which case the subsequent return of the book or material within the 30-day period shall exempt such transaction from consideration as prima facie evidence as provided in this section.

(C) The word notice as used herein shall be construed to mean notice in writing and such notice in writing will be presumed to have been given three days following deposit of the notice as registered or certified matter in the United States mail, addressed to such person who has leased or rented the personal property or borrowed the library materials at the address as it appears in the information supplied by such person at the time of such leasing, renting or borrowing, or to such person's last known address. (K.S.A. 21-5804)

SECTION 3: Chapter XIV, Article 3, Section 14-306 of the Code of the City of Lawrence, Kansas, 2015 Edition, and amendments thereto, is hereby amended to read as follows:

14-306 THEFT; PROPERTY LOST, MISLAID OR DELIVERED BY MISTAKE. ~~PROPERTY~~.

(A) Theft of property lost, mislaid, or delivered by mistake, the value of which is less than $1000, is obtaining control of property of another by a person who:

(1) Knows or learns the identity of the owner thereof;

(2) Fails to take reasonable measures to restore to the owner lost

property, mislaid property or property delivered by a mistake; and

(3) Intends to permanently deprive the owner of the possession, use or

benefit of the property.

(B) As used herein, "property delivered by mistake" includes, but is not limited to, a mistake as to the:

(1) Nature or amount of the property; or

(2) Identity of the recipient of the property.

~~lost or mislaid property is failure to take reasonable measures to restore lost or~~

~~mislaid property to the lawful owner by a person who has obtained control of~~

~~such property, who knows or learns the identity of the owner thereof, and who~~

~~intends to deprive the owner permanently of the possession, use or benefit of the~~

~~property.~~

(C) Any person who is convicted of a violation of this section shall be punished by a fine not to exceed $2500 or a jail term not to exceed one year, or both such fine and jail term.

SECTION 4: Chapter XIV, Article 3, Section 14-307 of the Code of the City of Lawrence, Kansas, 2015 Edition, and amendments thereto, is hereby amended to read as follows:

14-307 THEFT; THEFT OF SERVICES.

(A) No person shall commit theft of services. Theft of services is obtaining services from another by deception, threat, coercion, stealth, tampering or use of false token or device.

(B) "Services" within the meaning of this Section, includes, but is not limited to, labor, professional service, cable television service, public or municipal utility or transportation service, telephone service, lodging, entertainment and the supplying of equipment for use.

(1) Making a connection of any wire, conduit or device, to any service or transmission line owned by a public or municipal utility, or by a cable television service provider;

(2) defacing, puncturing, removing, reversing or altering any meter or any connections, for the purpose of securing unauthorized or unmeasured electricity, natural gas, water, telephone service or cable television service;

(3) preventing any such meters from properly measuring or registering;

(4) knowingly taking, receiving, using or converting to such person's own use, or the use of another, any electricity, water, or natural gas which has not been measured; or any telephone or cable television service which has not been authorized; or

(5) causing, procuring, permitting, aiding or abetting any person to do any of the preceding acts.

(D) In any prosecution under this section, the existence of any of the connections of meters, alterations or use of unauthorized or unmeasured electricity, water, natural gas, telephone service or cable television service, specified in subsection (B), shall be prima facie evidence of intent to violate the provisions of this section by the person or persons using or receiving the direct benefits from the use of the electricity, water, natural gas, telephone service or cable television service passing through such connections or meters, or using the electricity, natural gas, telephone service or cable television service which has not been authorized or measured.

(E) Any person who is convicted of a violation of this section alleging a theft of services less than ~~$1000~~ $1500 in value shall be punished by a fine not to exceed $2500 or a jail term not to exceed one year, or both such fine and jail term.

SECTION 5: Chapter XIV, Article 3, Section 14-308 of the Code of the City of Lawrence, Kansas, 2015 Edition, and amendments thereto, is hereby amended to read as follows:

14-308 CRIMINAL DEPRIVATION OF PROPERTY.

(A) No person shall criminally deprive a person of property. Criminal deprivation of property is obtaining or exerting unauthorized control over property, with intent to deprive the owner of temporary use thereof, without the owner's consent but not with the intent of depriving the owner permanently of the possession, use or benefit of such owner's property.

(B) Criminal deprivation of property ~~other than a motor vehicle~~ is a misdemeanor, unless the property is a motor vehicle and the defendant has three or more previous convictions for criminal deprivation of property, or if the property is a firearm. Upon conviction of a violation of this section, an offender shall be punished by a fine in an amount not to exceed $2500 or a jail term not to exceed one year, or both such fine and jail term. Upon a second or subsequent conviction of this subsection, a person shall be sentenced to not less than 30 days imprisonment and fined not less than $100.00, except that the provisions of this subsection relating to a second or subsequent conviction shall not apply to any person where such application would result in a manifest injustice.

SECTION 6. Existing Sections 14-304, 14-305, 14-306, 14-307, and 14-308 of the Code of the City of Lawrence, Kansas, 2015 Edition, and amendments thereto, are hereby repealed, it being the intent of the Governing Body that Sections 1 through 5 of this ordinance supersede it.

SECTION 7. If any section, sentence, clause, or phrase of this ordinance is found to be unconstitutional or is otherwise held invalid by any court of competent jurisdiction, it shall not affect the validity of any remaining part of this ordinance.

SECTION 8. This ordinance shall be in full force and effect from and after its passage and publication as provided by law.

PASSED by the Governing Body of the City of Lawrence, Kansas, this ____ day of June 2016.

APPROVED:

________________________________

Mike Amyx

Mayor

ATTEST:

__________________________________

Sherri Riedemann

City Clerk

APPROVED AS TO FORM:

__________________________________

Toni R. Wheeler

City Attorney

*****

NOTICE TO PUBLISHER

Publish once and return one Proof of Publication to the City Clerk and one to the City Attorney.