As Amended by House Commettee

          Session of 1998
By Committee on Judiciary
          10             AN ACT concerning civil procedure; relating to civil penalties against
11             shoplifters; amending K.S.A. 60-3331 and repealing the existing
12             section.
14       Be it enacted by the Legislature of the State of Kansas:
15           Section 1. K.S.A. 60-3331 is hereby amended to read as follows:
16       60-3331. (a) Except as otherwise provided, a merchant may file a civil
17       action to receive a civil penalty against any adult or emancipated minor
18       who shoplifts from that merchant. If the merchant does not recover the
19       merchandise in merchantable condition, the merchant shall be entitled
20       to a civil penalty for an amount equal to twice the retail cost of the mer-
21       chandise, or $50, whichever is greater, but in no case shall such civil
22       penalty be more than $500. If the merchant recovers the merchandise in
23       merchantable condition, the merchant shall be entitled to a civil penalty
24       of $50 or 50% of the retail cost of the merchandise, whichever is greater,
25       but in no case shall such civil penalty be more than $350.
26           (b) If Except as provided further, if an unemancipated minor
27       shoplifts, the parent or guardian of such minor shall be civilly liable in
28       an amount of the civil penalty as prescribed in subsection (a), except that
29       the provisions of this subsection shall not apply in cases where the guard-
30       ian is a state agency. If an unemancipated minor is paying restitution
31       as a juvenile offender pursuant to the Kansas juvenile justice code,
32       the parents shall not be civilly liable pursuant to this subsection.
33           (c) A merchant may assign a claim arising under subsection (a) or
34       (b).
35           (d) Unless the action is brought pursuant to the Kansas small claims
36       act and a final judgment is rendered in small claims court, the prevailing
37       party in such action brought pursuant to this section shall be entitled to
38       reasonable attorney fees and costs. If the action is brought in small claims
39       court and the judgment is appealed to district court pursuant to chapter
40       60 of the Kansas Statutes Annotated or K.S.A. 61-2709 and amendments
41       thereto, the prevailing party on appeal shall be entitled to reasonable
42       attorney fees and costs.
43           (c) (e) A conviction or a plea of guilty to the offense of theft of the

HB 2625--Am.


  1       merchandise is not a prerequisite to the filing of a civil action under this
  2       section.
  3           (d) (f) Prior to filing a civil action under this section, a merchant
  4       damaged by shoplifting may demand that an individual alleged to be civilly
  5       liable under this act reimburse such merchant in an amount of the civil
  6       penalty as prescribed in subsection (a). Such demand, if made, shall be
  7       in writing and may be offered in consideration for the merchant's agree-
  8       ment not to commence a civil action under this section. Such demand
  9       shall not contain a threat of criminal prosecution against such individual.
10       Any merchant who makes a demand with a threat of criminal prosecution
11       against such individual shall be precluded from filing a civil action under
12       this section and pursuing any other remedy at law or equity. A demand
13       pursuant to this subsection is not a prerequisite to filing a civil action
14       under this section, but no demand may be made which does not comply
15       with this subsection.
16           (e) (g) Nothing contained in this act shall be construed to preclude a
17       merchant from pursuing any other remedy at law or equity prior to filing
18       an action under this act.
19           (f) (h) For purposes of this act, ``shoplift'' means any one or more of
20       the following acts committed by a person without the consent of the
21       merchant and with the intent of appropriating merchandise to that per-
22       son's or another's own use without payment, obtaining merchandise at
23       less than its stated sales price or otherwise depriving a merchant of all or
24       any part of the value or use of merchandise:
25           (1) Removing any merchandise from the premises of the merchant's
26       establishment;
27           (2) concealing any merchandise with intent to leave the premises with
28       the merchandise;
29           (3) substituting, altering, removing or disfiguring any label or price
30       tag;
31           (4) transferring any merchandise from a container in which that mer-
32       chandise is displayed or packaged to any other container; or
33           (5) disarming any alarm tag attached to any merchandise.
34        (i) A claim or judgment under the provisions of this section
35       shall not constitute an obligation or liability against any insurer or
36       third-party payor.
37           Sec. 2. K.S.A. 60-3331 is hereby repealed.
38           Sec. 3. This act shall take effect and be in force from and after its
39       publication in the statute book.