MISSISSIPPI LEGISLATURE

2000 Regular Session

To: Judiciary B

By: Representative Guice

AN ACT TO AMEND SECTIONS 75-67-303, 75-67-321, 75-67-323, 75-67-325, 75-67-327 AND 75-67-333, MISSISSIPPI CODE OF 1972, TO TRANSFER THE AUTHORITY FOR REGULATION OF PAWNSHOPS UNDER THE PAWNSHOP ACT FROM THE COMMISSIONER OF BANKING AND CONSUMER FINANCE TO THE SHERIFFS AND POLICE CHIEFS OF THE COUNTIES AND MUNICIPALITIES IN WHICH THE PAWNBROKERS MAINTAIN THEIR OFFICES; TO AMEND SECTION 75-67-305, MISSISSIPPI CODE OF 1972, TO REVISE THE INFORMATION REQUIRED TO BE RECORDED ON PAWN TICKETS; TO AMEND SECTION 75-67-309, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE USE OF ELECTRONIC TRANSMISSION FOR PAWNSHOP RECORDS; TO AMEND SECTION 75-67-315, MISSISSIPPI CODE OF 1972, TO REVISE THE LIST OF PROHIBITED ACTS OF PAWNBROKERS; TO AMEND SECTION 75-67-329, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE CONFISCATION OF PLEDGED OR PURCHASED GOODS WITHOUT AN ARREST WARRANT; TO AMEND SECTION 75-67-335, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR RESTITUTION TO PAWNBROKERS; TO REPEAL SECTION 75-67-341, MISSISSIPPI CODE OF 1972, WHICH DIRECTS THE COMMISSIONER OF BANKING TO DEVELOP AND PROVIDE ANY NECESSARY FORMS TO CARRY OUT THE PROVISIONS OF PAWNBROKER ACT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 75-67-303, Mississippi Code of 1972, is amended as follows:

75-67-303. The following words and phrases used in this article shall have the following meanings unless the context clearly indicates otherwise:

(a) "Pawnbroker" means any person engaged in whole or in part in the business of lending money on the security of pledged goods left in pawn, or in the business of purchasing tangible personal property to be left in pawn on the condition that it may be redeemed or repurchased by the seller for a fixed price within a fixed period of time; * * * however, * * * the following are exempt from the definition of "pawnbroker" and from the provisions of this article: any bank which is regulated by the State Department of Banking and Consumer Finance, the Comptroller of the Currency of the United States, the Federal Deposit Insurance Corporation, the Board of Governors of the Federal Reserve System or any other federal or state authority and all affiliates of such bank, and additionally any bank or savings and loan association whose deposits or accounts are eligible for insurance by the Bank Insurance Fund or the Savings Association Insurance Fund or other fund administered by Federal Deposit Insurance Corporation or any successor thereto, and all affiliates of such banks and savings and loan associations, any state or federally chartered credit union and any finance company subject to licensing and regulation by the State Department of Banking and Consumer Finance.

(b) "Pawnshop" means the location at which or premises in which a pawnbroker regularly conducts business.

(c) "Pawn transaction" means any loan on the security of pledged goods or any purchase of pledged goods on the condition that the pledged goods are left with the pawnbroker and may be redeemed or repurchased by the seller for a fixed price within a fixed period of time. A "pawn transaction" does not include the pledge to or the purchase by a pawnbroker of real or personal property from a customer followed by the sale of the leasing of that same property back to the customer in the same or a related transaction and such is not permitted by this article.

(d) "Person" means an individual, partnership, corporation, joint venture, trust, association, or any legal entity however organized.

(e) "Pledged goods" means tangible personal property other than choses in action, securities, or printed evidence of indebtedness, which property is purchased by, deposited with, or otherwise actually delivered into the possession of a pawnbroker in connection with a pawn transaction.

(f) "Appropriate law enforcement agency" means the sheriff of each county in which the pawnbroker maintains an office, or the police chief of the municipality or law enforcement officers of the Department of Public Safety in which the pawnbroker maintains an office.

(g) "Attorney General" means the Attorney General of the State of Mississippi.

SECTION 2. Section 75-67-305, Mississippi Code of 1972, is amended as follows:

75-67-305. At the time of making the pawn or purchase transaction, the pawnbroker shall enter upon the pawn ticket a record of the following information which shall be recorded on the receipt:

(a) A clear and accurate description of the property, including the following:

(i) Brand name;

(ii) Model number;

(iii) Serial number;

(iv) Size;

(v) Color, as apparent to the untrained eye;

(vi) Precious metal type, weight and content, if known;

(vii) Gemstone description, including the number of stones;

(viii) In the case of firearms, the type of action, caliber or gauge, number of barrels, barrel length and finish; and

(ix) Any other unique identifying marks, numbers, names or letters;

(b) The name, residence address and date of birth of pledgor or seller;

(c) Date of pawn or purchase transaction;

(d) Driver's license number or social security number or Mississippi identification card number, as defined in Section 45-35-1, * * * of the pledgor or seller or identification information verified by at least two (2) forms of identification, one (1) of which shall be a photographic identification;

(e) Description of the pledgor including approximate height, sex and race, and a right or left inked thumbprint recorded on the original receipt;

(f) Amount of cash advanced;

(g) The maturity date of the pawn transaction and the amount due; and

(h) The monthly rate and pawn charge.

SECTION 3. Section 75-67-309, Mississippi Code of 1972, is amended as follows:

75-67-309. (1) The pledgor or seller shall sign a statement verifying that the pledgor or seller is the rightful owner of the goods or is entitled to sell or pledge the goods and shall receive an exact copy of the pawn ticket which shall be signed or initialed by the pawnbroker or any employee of the pawnbroker.

(2) The pawnbroker shall maintain a record of all transactions of pledged or purchased goods on the premises. A pawnbroker shall upon request provide to the appropriate law enforcement agency a complete record of all transactions. These records shall be a correct copy of the entries made of the pawn or purchase transaction, except as to the amount of cash advanced or paid for the goods and monthly pawnshop charge. If the appropriate law enforcement agency supplies the appropriate software, all transactions shall be delivered by means of electronic transmission through a modem or similar device or by delivery of a computer disk to the appropriate law enforcement agency within seventy-two (72) hours of the transaction.

(3) All goods purchased across the counter by the pawnbroker shall be maintained on the premises by the pawnbroker for at least thirty (30) calendar days before such goods can be offered for resale.

SECTION 4. Section 75-67-315, Mississippi Code of 1972, is amended as follows:

75-67-315. A pawnbroker and any clerk, agent or employee of such pawnbroker shall not:

(a) Fail to make an entry of any material matter in his record book;

(b) Make any false entry therein;

(c) Falsify, obliterate, destroy or remove from his place of business such records, books or accounts relating to the licensee's pawn transaction;

(d) Refuse to allow * * * the appropriate law enforcement agency, the Attorney General or any other duly authorized state or federal law enforcement officer to inspect his pawn records or any pawn goods in his possession during the ordinary hours of business or other acceptable time to both parties;

(e) Fail to maintain a record of each pawn transaction for four (4) years;

(f) Accept a pledge or purchase property from a person under the age of eighteen (18) years;

(g) Make any agreement requiring the personal liability of a pledgor or seller, or waiving any of the provisions of this act or providing for a maturity date less than thirty (30) days after the date of the pawn transaction;

(h) Fail to return or replace pledged goods to a pledgor or seller upon payment of the full amount due the pawnbroker unless the pledged goods have been taken into custody by a court or a law enforcement officer or agency;

(i) Sell or lease, or agree to sell or lease, pledged or purchased goods back to the pledgor or back to the seller in the same or related transaction;

(j) Sell or otherwise charge for insurance in connection with a pawn transaction;

(k) Remove pledged goods from the premises within thirty (30) days following the originally fixed maturity date;

(l) Accept pledged or purchased property from a person obviously under the influence of intoxicants at the time;

(m) Accept a pledge or purchase property when such property has manufacturer's serial numbers which have been removed and or obliterated;

(n) All merchandise which has been pledged or purchased by the pawnbroker shall be recorded on a receipt at the time of resale which lists the purchaser. The purchaser shall be identified on receipt by the means set forth in Section 75-67-305, as well as an accurate description of the property as set forth in Section 75-67-305, as well as the resale amount paid by the purchaser.

SECTION 5. Section 75-67-321, Mississippi Code of 1972, is amended as follows:

75-67-321. (1) A person may not engage in business as a pawnbroker or otherwise portray himself as a pawnbroker unless the person has a valid license from the appropriate law enforcement agency authorizing engagement in the business. A separate license is required for each place of business under this article. The appropriate law enforcement agency may issue more than one (1) license to a person if that person complies with this article for each license. A new license or application to transfer an existing license is required upon a change, directly or beneficially, in the ownership of any licensed pawnshop and an application shall be made to the appropriate law enforcement agency in accordance with this article.

(2) When a licensee wishes to move a pawnshop to another location, the licensee shall give thirty (30) days prior written notice to the appropriate law enforcement agency who shall amend the license accordingly.

(3) Each license shall remain in full force and effect until relinquished, suspended, revoked or expired. Every licensee, on or before each December 1st, shall pay the appropriate law enforcement agency One Hundred Fifty Dollars ($150.00) for each license held by him as an annual fee for the succeeding calendar year. If the annual fee remains unpaid thirty (30) days after written notice of delinquency has been given to the licensee by the appropriate law enforcement agency, the license shall thereupon expire, but not before December 31st of any year for which the annual fee has been paid. * * *

(4) Notwithstanding other provisions of this article, the appropriate law enforcement agency may issue a temporary license authorizing the operator of a pawnshop on the receipt of an application to transfer a license from one person to another or on the receipt of an application for a license involving principals and owners that are substantially identical to those of an existing licensed pawnshop. The temporary license is effective until the permanent license is issued or denied.

(5) Notwithstanding other provisions of this article, neither a new license nor an application to transfer an existing license shall be required upon any change, directly or beneficially, in the ownership of any licensed pawnshop incorporated under the laws of this state or any other state so long as the licensee continues to operate as a corporation doing a pawnshop business under the license. The appropriate law enforcement agency may, however, require the licensee to provide such information as it deems reasonable and appropriate concerning the officer and directors of the corporation and persons owning in excess of twenty-five percent (25%) of the outstanding shares of the corporation.

SECTION 6. Section 75-67-323, Mississippi Code of 1972, is amended as follows:

75-67-323. To be eligible for a pawnbroker license, an applicant shall:

(a) Operate lawfully and fairly within the purposes of this article;

(b) Not have been convicted of a felony in the last ten (10) years or be active as a beneficial owner for someone who has been convicted of a felony in the last ten (10) years;

(c) File with the appropriate law enforcement agency of the county or * * * municipality in which the pawnshop is to be located, a bond with good security in the penal sum of Ten Thousand Dollars ($10,000), payable to the appropriate law enforcement agency of the county or municipality in which such pawnshop is to be located, * * * for the faithful performance by the licensee of the duties and obligations pertaining to the business so licensed and the prompt payment of any judgment which may be recovered against such licensee on account of damages or other claim arising directly or collaterally from any violation of the provisions of this article; such bond shall not be valid until it is approved by the appropriate law enforcement agency of the county or municipality in which the pawnshop is to be located; such applicant may file, in lieu thereof, cash, a certificate of deposit, or government bonds in the amount of Ten Thousand Dollars ($10,000); such deposit shall be filed with the appropriate law enforcement agency of the county or municipality in which the pawnshop is to be located, and is subject to the same terms and conditions as are provided for in the surety bond required herein; any interest or earnings on such deposits are payable to the depositor.

(d) File with the appropriate law enforcement agency of the county or * * * municipality in which the pawnshop is to be located, an application accompanied by an investigation fee of One Hundred Dollars ($100.00) to be paid to the appropriate law enforcement agency if the applicant is unlicensed at the time of applying for the pawnbroker license, or One Hundred Dollars ($100.00) if the application involves a second license to an applicant for a separate location or involves substantially identical principals and owners of a licensed pawnshop at a separate location * * *.

(e) Submit a set of fingerprints from any local law enforcement agency.

SECTION 7. Section 75-67-325, Mississippi Code of 1972, is amended as follows:

75-67-325. (1) The appropriate law enforcement agency may, after notice and hearing, suspend or revoke any license if it finds that:

(a) The licensee, either knowingly, or without the exercise of due care to prevent the same, has violated any provision of this article;

(b) Any fact or condition exists which, if it had existed or had been known to exist at the time of the original application for such license, clearly would have justified the appropriate law enforcement agency in refusing such license;

(c) The licensee has aided, abetted or conspired with an individual or person to circumvent or violate the requirement of the article;

(d) The licensee, or a legal or beneficial owner of the license, has been convicted of a crime that the appropriate law enforcement agency finds directly relates to the duties and responsibilities of the occupation of pawnbroker.

(2) The appropriate law enforcement agency may conditionally license or place on probation a person whose license has been suspended or may reprimand a licensee for a violation of this article.

(3) Any licensee may surrender any license by delivering it to the appropriate law enforcement agency with written notice of its surrender, but such surrender shall not affect the licensee's civil or criminal liability for acts committed prior thereto.

(4) No revocation, suspension or surrender of any license shall impair or affect the obligation of any pre-existing lawful contract between the licensee and any pledgor. Any pawn transaction made without benefit of license is void.

(5) The appropriate law enforcement agency may reinstate suspended licenses or issue new licenses to a person whose license or licenses have been revoked if no fact or condition then exists which clearly would have justified the appropriate law enforcement agency in refusing originally to issue a license under this article.

(6) The appropriate law enforcement agencies shall enforce the provisions of this section.

SECTION 8. Section 75-67-327, Mississippi Code of 1972, is amended as follows:

75-67-327. (1) An application for a new pawnshop license, the transfer of an existing pawnshop license or the approval of a change in the ownership of a licensed pawnshop shall be under oath and shall state the full name and place of residence of the applicant, the place where the business is to be conducted and other relevant information required by the appropriate law enforcement agency. If the applicant is a partnership, the application shall state the full name of each partner. If the applicant is a corporation, the application shall state the full name and address of each officer, shareholder and director.

(2) Notwithstanding the provision of this article, the application need not state the full name and address of each shareholder, if the applicant is owned directly or beneficially by a person which as an issuer has a class of securities registered pursuant to Section 12 of the Securities Exchange Act of 1934 or is an issuer of securities which is required to file reports with the Securities and Exchange Commission pursuant to Section 15(d) of the Securities Exchange Act, provided that such person files with the appropriate law enforcement agency such information, documents and reports as are required by the provision of the Securities Exchange Act to be filed by such issuer with the Securities and Exchange Commission.

SECTION 9. Section 75-67-329, Mississippi Code of 1972, is amended as follows:

75-67-329. (1) No pledged or purchased goods can be confiscated without specifically accomplishing the following actions:

(a) A police report being made in a timely manner;

(b) A warrant sworn out for the person who pledged or sold the goods to the pawnbroker; * * *

(c) A theft report, or a National Crime Information Center (NCIC) report, identifying the merchandise to be confiscated along with a request for restitution, pursuant to law; and

(d) Pledged or purchased goods may also be confiscated without an arrest warrant because of time limitations if listed by NCIC as stolen property. Restitution in these cases shall be paid by the pledgor to the pawnbroker.

(2) Pledged or purchased goods can be put on a one-time seven-day hold by the authorized law enforcement authorities.

(3) Confiscated merchandise shall be returned to the pawnbroker by the law enforcement authorities as soon as possible when determined that the merchandise has no rightful owner.

SECTION 10. Section 75-67-333, Mississippi Code of 1972, is amended as follows:

75-67-333. (1) In addition to any other penalty which may be applicable, any licensee or employee who willfully violates any provision of this article, or who willfully makes a false entry in any record specifically required by this article, shall be guilty of a misdemeanor and upon conviction thereof, shall be punishable by a fine not in excess of One Thousand Dollars ($1,000.00) per violation or false entry.

(2) (a) In addition to any other penalty which may be applicable, any licensee or employee who fails to make a record of a pawnshop transaction and subsequently sells or disposes of the pledged goods from such transaction shall be punished as follows:

(i) For a first offense, the licensee or employee shall be guilty of a misdemeanor and upon conviction thereof, shall be punishable by a fine not in excess of One Thousand Dollars ($1,000.00) or by imprisonment in the county jail for not more than one (1) year, or both fine and imprisonment;

(ii) For a second offense, the licensee or employee shall be guilty of a felony and upon conviction thereof, shall be punishable by a fine not in excess of Five Thousand Dollars ($5,000.00) or by imprisonment in the custody of the State Department of Corrections for a term not less than one (1) year nor more than five (5) years, or by both fine and imprisonment.

(b) Any licensee convicted in the manner provided in this subsection (2) shall forfeit the surety bond or deposit required in Section 75-67-323 and the amount of such bond or deposit shall be credited to the budget of the state or local agency, which directly participated in the prosecution of such licensee, for the specific purpose of increasing law enforcement resources for that specific state or local agency. Such bond or deposit shall be used to augment existing state and local law enforcement budgets and not to supplant them.

(3) Compliance with the * * * provisions of this article shall be enforced by the appropriate law enforcement agency who may exercise for such purpose any authority conferred upon such agency by law.

(4) When the appropriate law enforcement agency has reasonable cause to believe that a person is violating any provision of this article, the appropriate law enforcement agency, in addition to and without prejudice to the authority provided elsewhere in this article, may enter an order requiring the person to stop or to refrain from the violation. The appropriate law enforcement agency may sue in any circuit court of the state having jurisdiction and venue to enjoin the person from engaging in or continuing the violation or from doing any act in furtherance of the violation. In such an action, the court may enter an order or judgment awarding a preliminary or permanent injunction.

(5) The appropriate law enforcement agency may impose a civil penalty against any licensee adjudged by the appropriate law enforcement agency to be in violation of the provisions of this article. Such civil penalty shall not exceed Five Hundred Dollars ($500.00) per violation * * *.

SECTION 11. Section 75-67-335, Mississippi Code of 1972, is amended as follows:

75-67-335. If any pledged goods from a pawn transaction are found to be stolen goods and are returned to the rightful owner by law enforcement authorities and if the licensee who accepted such pledged goods has complied with all of the duties and responsibilities as specified in this article during such transaction, then the rightful owner of such pledged goods shall be liable to the licensee for the pledged amount if the rightful owner fails to prosecute or cooperate in the criminal prosecution related to such pawn transaction, provided that the rightful owner can prove that the stolen goods are his. It shall also be the responsibility of the licensee to assist or cooperate in the criminal prosecution related to such pawn transaction. Upon successful criminal prosecution, restitution shall be awarded to the pawnbroker by the criminal court at the time of the defendant's sentencing. If the identity of a person who pawned stolen goods can be determined, the district attorney may prosecute such person for any applicable criminal violations.

SECTION 12. Section 75-67-341, Mississippi Code of 1972, which directs the Commissioner of Banking to develop and provide any necessary forms to carry out the provisions of Pawnbroker Act, is repealed.

SECTION 13. This act shall take effect and be in force from and after its passage.