(a) This section shall be known and may be cited as the “Organized Retail Crime Prevention Act.”

Attorney's Note

Under the Tennessee Code, punishments for crimes depend on the classification. In the case of this section:
ClassPrisonFine
class A misdemeanorup to 11 monthsup to $2,500
For details, see Tenn. Code § 40-35-111
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Terms Used In Tennessee Code 39-14-113

  • Code: includes the Tennessee Code and all amendments and revisions to the code and all additions and supplements to the code. See Tennessee Code 1-3-105
  • Debit card: means any real or forged instrument, writing or other evidence known by any name issued with or without a fee by an issuer for the use of a depositor in obtaining money, goods, services or anything else of value, payment of which is made against funds previously deposited in an account with the issuer. See Tennessee Code 39-14-102
  • Gift: A voluntary transfer or conveyance of property without consideration, or for less than full and adequate consideration based on fair market value.
  • Government: means the state or any political subdivision of the state, and includes any branch or agency of the state, a county, municipality or other political subdivision. See Tennessee Code 39-11-106
  • Issuer: means the business organization or financial institution or its duly authorized agent which issues a credit or debit card. See Tennessee Code 39-14-102
  • Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
  • Obtain: includes , but is not limited to, the taking, carrying away or the sale, conveyance or transfer of title to or interest in or possession of property, and includes, but is not limited to, conduct known as larceny, larceny by trick, larceny by conversion, embezzlement, extortion or obtaining property by false pretenses. See Tennessee Code 39-11-106
  • Owner: means a person, other than the defendant, who has possession of or any interest other than a mortgage, deed of trust or security interest in property, even though that possession or interest is unlawful and without whose consent the defendant has no authority to exert control over the property. See Tennessee Code 39-11-106
  • Person: includes the singular and the plural and means and includes any individual, firm, partnership, copartnership, association, corporation, governmental subdivision or agency, or other organization or other legal entity, or any agent or servant thereof. See Tennessee Code 39-11-106
  • Property: means anything of value, including, but not limited to, money, real estate, tangible or intangible personal property, including anything severed from land, library material, contract rights, choses-in-action, interests in or claims to wealth, credit, admission or transportation tickets, captured or domestic animals, food and drink, electric or other power. See Tennessee Code 39-11-106
  • Record: means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in a perceivable form. See Tennessee Code 1-3-105
  • Services: includes labor, skill, professional service, transportation, telephone, mail, gas, electricity, steam, water, cable television, entertainment subscription service or other public services, accommodations in hotels, restaurants or elsewhere, admissions to exhibitions, use of vehicles or other movable property, and any other activity or product considered in the ordinary course of business to be a service, regardless of whether it is listed in this subdivision (a)(38) or a specific statute exists covering the same or similar conduct. See Tennessee Code 39-11-106
  • signed: includes a mark, the name being written near the mark and witnessed, or any other symbol or methodology executed or adopted by a party with intention to authenticate a writing or record, regardless of being witnessed. See Tennessee Code 1-3-105
  • State: when applied to the different parts of the United States, includes the District of Columbia and the several territories of the United States. See Tennessee Code 1-3-105
  • Writing: includes printing or any other method of recording information, money, coins, tokens, stamps, seals, credit cards, badges, trademarks, and symbols of value, right, privilege or identification. See Tennessee Code 39-14-114
(b) For purposes of this section, “stored value card” means any card, gift card, instrument, or device issued with or without fee for the use of the cardholder to obtain money, goods, services, or anything else of value. Stored value cards include, but are not limited to, debit cards issued for use as a stored value card or gift card, and an account identification number or symbol used to identify a stored value card. “Stored value card” does not include a prepaid card usable at multiple, unaffiliated merchants or at automated teller machines, or both.
(c) A person commits the offense of organized retail crime when the person:

(1) Acts in concert with one (1) or more individuals to commit theft of any merchandise with a value greater than one thousand dollars ($1,000) aggregated over a ninety-day period with the intent to:

(A) Sell, barter, or trade the merchandise for monetary or other gain; or
(B) Fraudulently return the merchandise to a retail merchant; or
(2) Receives, possesses, sells, or purchases, by physical or electronic means, any merchandise or stored value cards obtained from a fraudulent return with the knowledge that the property was obtained in violation of § 39-14-103 or § 39-14-146.
(d)

(1) A violation of subsection (c) is punished as theft pursuant to § 39-14-105.
(2) A violation of subsection (c) is punished one (1) classification higher than provided in § 39-14-105 if the defendant exercised organizational, supervisory, financial, or management authority over the activity of one (1) or more other persons in furtherance of a violation of this section.
(e) Any interest in property acquired or maintained in violation of this section shall be subject to forfeiture as provided by chapter 11, part 7 of this title.
(f)

(1) Any sale or purchase of stored value cards by persons or merchants, other than the issuer or the issuer’s authorized agent, including any transaction that occurs in this state or with a person in the state who transacts online, requires that the appropriate information contained in this subsection (f) be recorded and a copy of the record shall be maintained for at least three (3) years. Regardless of the method by which the transaction is conducted, the merchant shall record the following information for each transaction:

(A) The time, date, and place of the transaction;
(B) A complete and accurate description of the stored value card sold or purchased, including, if available, the name of the original issuer, the face value of the stored value card when sold or purchased, the acquired price of the stored value card, and the stored value card serial number;
(C) Pin numbers shall be provided for specific individuals upon the request of law enforcement; and
(D) A signed statement or digital affirmation by the seller of the stored value card, if applicable, verifying that the seller is the rightful owner of the stored value card or is authorized to sell, consign, or trade the stored value card.
(2) If the transaction is completed in person or by any method other than in a kiosk or online, the record shall include:

(A) The information required in subdivision (f)(1);
(B) A copy, digital swipe, or scan of a valid government issued identification card, such as a driver license, state identification card, or military identification card, of the person who purchased the stored value card, or the person to whom stored value card was sold;
(C) A thumbprint of the person who sold the stored value card; and
(D) A description of the person who sold the stored value card including the person’s full name, current residential address, phone number, height, weight, date of birth, or other identifying marks.
(3) If the transaction is completed at a kiosk, the record shall include:

(A) The information required in subdivision (f)(1);
(B) A digital swipe or scan of a valid government issued identification card, such as a driver license, state identification card, or military identification card, of the person who purchased the stored value card, or sold the stored value card; and
(C) A thumbprint of the person who sold the stored value card.
(4) If the transaction is completed online the record shall include:

(A) The information required by subdivision (f)(1);
(B) A verified email address;
(C) The IP address or digital device identification used to access the website or app of the seller;
(D) Data collected about the person who purchased the stored value card, or sold the stored value card, including name and mailing address used to remit payment; and
(E) A token identifier for a validated credit or debit card and billing zip code.
(5) Local law enforcement agencies shall notify merchants known to sell stored value cards of the recording and reporting requirements required by subdivisions (f)(1)-(4). The notification to merchants shall be in writing and shall state the law enforcement agency’s policy regarding how the information is to be reported in the applicable jurisdiction and certify that any data collected from the merchant will be stored in a secure and confidential manner. All records shall be delivered to the appropriate law enforcement agency or its designated reporting database in an electronic or other report format approved by that same agency within twenty-four (24) hours from the date of the transaction. The information shall be stored on a law enforcement owned, operated, and housed server. Any gift card database software should be free for state law enforcement agencies; state, county, and city government agencies; and for the merchants that are reporting.
(6)

(A) A merchant commits a Class A misdemeanor who knowingly fails to follow the reporting and recording requirements pursuant to this subsection (f). However, for a merchant to be charged or convicted under this subsection (f), the law enforcement agency must have first notified the merchant in writing of the reporting obligations in that jurisdiction. If the violation is committed by the owner, stockholder, or managing partner of a business selling a stored value card, then the business license may be suspended or revoked at the discretion of the city or county clerk.
(B) Any person who knowingly provides false information in response to the reporting requirements of this section commits a Class A misdemeanor.
(C) Any fines derived from violations of this subsection (f) shall be earmarked for law enforcement purposes if the law enforcement entity shows proof of notification of reporting requirements signed by the person or agent of the entity in violation.
(7) Notwithstanding this section to the contrary, the comptroller of the treasury is authorized to request and receive from a law enforcement agency any data or information received by the law enforcement agency pursuant to this subsection (f).
(g) All information gathered pursuant to subsection (f) shall remain confidential. If a local law enforcement agency utilizes a third party, including, but not limited to, a third-party database or software company, to keep records or to analyze stored value card transactions, the third party must agree to keep all information confidential and only share the information with law enforcement agencies, the comptroller of the treasury, or the original issuer of the stored value card.
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