04 April 2011

Metal, Metal Everywhere and Villiany Defined

One charge we often prosecute is the theft of copper wire, and any other metal items which aren't nailed down and guarded 24 hours, from mine sites. However, the theft of metal isn't limited to just mines. You just can't leave a house alone anymore because there's a fair chance you will come back with all your wires stripped out. So, I've been trying to put together a brief summary on the laws related to this for those of us in the Commonwealth Attorney's office to use. And here it is . . .

Scrap Metal Processors

To begin with, all "scrap metal processors" can buy ferrous scrap from anyone (per 59.1-136.2), but they can't buy any metal from any individual under the age of 18 (§ 59.1-136.4). Ferrous metals are iron and steel, but not stainless steel (59.1-136.1) and scrap metal processors (SMP) are businesses with equipment "for processing and manufacturing scrap metal into prepared grades for sale as raw material (Id.).

When law enforcement requests, SMP's are required to report all nonferrous metal they buy within a day of the purchase. This report has to include information about the seller including his name, birth date, ID number, address, height, weight, and the license plate number of the vehicle in which he drove into the scrap yard (§ 59.1-136.5). Another section requires the SMP to keep a ledger with the seller's identification information, the license of the car the seller came in, and a description of the items sold. The seller is also required to produce a government ID under this section (§ 59.1-136.3).

If all this is complied with the SMP can buy "proprietary articles" from anyone over 18 selling them as long as (a) the seller has papers proving he has the legal right to sell the proprietary articles, or (b) the SMP documents a diligent attempt to find out if the seller has a right to sell the items, reports the sale to the police within 24 hours, and holds the item for 15 days (§ 59.1-136.3(B)(2)). Proprietary articles include copper wire 3/8" and aluminum wire 3/4" (§ 59.1-136.1).

All the above statutes above are in the Trade and Commerce part of the Virginia Code (§ 59.1). All violations of this section are class 1 misdemeanors (up to 12 months; up to $2,500 fine) and, perhaps more devastating, the local town/city/county attorney can assess a $7,500 fine for each violation and that fine goes directly to the locality instead of Virginia (§ 59.1-136.6). A fine which goes directly to the locality is like throwing chum in the water to draw sharks.

General Prohibitions

There are several statutes which place general prohibitions against purchases on everyone who wants to buy metal. Remember, unless the scrap metal dealer has the ability to change the incoming items into prepared grades to be sold as raw material he does not qualify as an SMP. I suspect that most purchasers we deal with do not have the capability of rendering the incoming product into straight raw material. They probably have equipment to crush it and then ship it elsewhere, but it's unlikely they have the ability to separate all the impurities (paint, other metals, glass, etc.). Thus, the first thing to do is figure out whether the scrap dealer is an SMP or someone subject to these laws.

Going back to the Trade and Commerce section, it is illegal for anyone to buy "bare or insulated heavy stranded copper or aluminum feeder wire, high voltage copper or aluminum transmission wire, or bare or insulated mining machine copper cables" unless the seller is the manufacturer, the industrial user, the government, an electrical contractor or a licensed scrap dealer (or an agent of one of them) (§ 59.1-128). Of course, this carries the same penalty as described above for all violations of § 59.1 - class 1 misdemeanor or $7,500 civil penalty to the locality for each violation.

Now we move on to the Criminal Section (§ 18.2). There are two statutes here §§ 18.2-237 and 238. § 18.2-238 makes it a crime to buy any metal which came from a mine or railroad (among other places) if it is bought with the intent to defraud. If the metal was bought from someone who is not the manufacturer, the manufacturer's agent, or a licensed dealer it is prima facie evidence of the intent to defraud. This is a class 6 felony (up to 5 years).

18.2-237 applies to "secondhand grate baskets, keys, bells and bell fixtures, gas fixtures, water fixtures, water pipes, gas pipes, or any part of such fixtures or pipes." This section also requires a purchase with an intent to defraud and has the same prima facie assumption, however, it is only a class 2 misdemeanor (up to 6 months).

So, your jurisdiction has a shady scrap metal dealer. First, you determine whether the business is an SMP. If it is, you are probably stuck in the SMP section with a bunch of misdemeanors because that section was written to apply directly to them. However, if the business does not have the equipment to fit under the definition, then you can hit it with the more serious criminal charges. Of course, the question in each of these cases is, who do you charge? If there are employees who haven't been trained to do all the necessary things, do you charge the employee or do you charge the owner who wasn't even there. Whichever one is charged will point his finger at the other as the actual culprit.

Probably the best way to handle this sort of thing is to get with the locality's attorney and start civilly citing the business for every single teeny-tiny violation. Your locality's attorney will probably be quite happy to get money which goes directly to the locality. The level of proof is mere preponderance. The business can be cited because this is a civil failure to maintain proper business practices. Eventually, Smith's Scrap Metal will decide it's not worth a $7,500 fine to look the other way and pay $100 for metal it can sell for $500 if it's getting fined every time (either that or it will go out of business).

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