Bill Text: MS HB161 | 2018 | Regular Session | Introduced
Bill Title: All-terrain vehicles; require owners to obtain a certificate of number.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2018-01-30 - Died In Committee [HB161 Detail]
Download: Mississippi-2018-HB161-Introduced.html
MISSISSIPPI LEGISLATURE
2018 Regular Session
To: Wildlife, Fisheries and Parks
By: Representative Clark
House Bill 161
AN ACT TO REQUIRE ALL-TERRAIN VEHICLES TO OBTAIN A CERTIFICATE OF NUMBER; TO AUTHORIZE THE DEPARTMENT OF WILDLIFE, FISHERIES AND PARKS TO ISSUE THE CERTIFICATES; TO PROVIDE THAT THE CERTIFICATE OF NUMBER SHALL BE PLACED ON THE ALL-TERRAIN VEHICLES; TO PROVIDE A PENALTY FOR VIOLATIONS; TO AMEND SECTIONS 49-5-21, 49-7-251, 49-7-253 AND 49-7-257, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Sections 1 through 13 of this act shall be known, and may be cited as the "Mississippi All-Terrain/Off-Road Vehicle Numbering Act."
SECTION 2. As used in Sections 1 through 13 of this act, unless the context clearly indicates otherwise:
(a) "ATV/ORV" means any all-terrain or off-road vehicle of a kind and type used for hunting, off-road recreation, or other vehicular travel over unimproved lands or trails as well as semi-improved roads. The term includes, but is not limited to, four-wheelers designed to be operated by one (1) rider astride the vehicle using handlebar steering and any additional conventional conveyances featuring a standard steering column and seating for one or more persons sitting in tandem, including, but not limited to, golf carts modified for off-road use. The commission shall have the authority to expand the scope of this definition by rule or regulation to include any additional conveyance that it deems to be an ATV/ORV and properly subject to the provisions of Sections 1 through 13 of this act.
(b) "Certificate of number" means the number issued by the Department of Wildlife, Fisheries and Parks, after proper application, certifying the ownership of the ATV/ORV to be true and proper.
(c) "Commission" means the Mississippi Commission on Wildlife, Fisheries and Parks.
(d) "Department" means the Mississippi Department of Wildlife, Fisheries and Parks.
(e) "Operate" means to drive, steer or otherwise use an ATV/ORV.
(f) "Operator" means the person who drives, steers or who has charge of the operation or use of an ATV/ORV.
(g) "Owner" means the person who claims lawful possession of an ATV/ORV by virtue of legal title or equitable interest therein which entitles him to such possession.
(h) "Person" means an individual, partnership, firm, corporation, association, or other entity.
(i) "Numbered ATV/ORV" means any ATV/ORV that has been issued a valid certificate of number by the Department of Wildlife, Fisheries and Parks.
(j) "Un-numbered ATV/ORV" means any ATV/ORV which has not been issued a valid certificate of number by the Mississippi Department of Wildlife, Fisheries and Parks, or in the case of an ATV/ORV coming from outside of the State of Mississippi, has not been issued a similar certification of ownership by the jurisdiction from which the ATV/ORV came.
SECTION 3. (1) The Legislature finds that, as a matter of public policy, it is necessary that a system of numbering and certifying the ownership of certain all-terrain and off-road vehicles be developed and implemented. To that end, the Mississippi Commission on Wildlife, Fisheries and Parks shall develop and implement a system of certified numbering of all-terrain and off-road vehicles.
(2) The commission is authorized to promulgate rules and regulations for the numbering of all-terrain and off-road vehicles.
(3) The commission is authorized to set and collect fees for issuing certificates of number for all-terrain and off-road vehicles, not to exceed Ten Dollars ($10.00) per certificate.
SECTION 4. (1) Every ATV/ORV owned and operated within the boundaries of the State of Mississippi shall be numbered in accordance with Sections 1 through 13 of this act, except:
(a) A foreign ATV/ORV temporarily within the State of Mississippi, as long as the ATV/ORV has supporting ownership documents, or is titled to the person in possession of the ATV/ORV if the state of origin of that ATV/ORV requires titling;
(b) A public ATV/ORV of the United States of America;
(c) A state, county or municipal ATV/ORV used solely for official business and displaying proper visual identification and/or inventory control markings on the ATV/ORV;
(d) An undocumented ATV/ORV used exclusively for racing as long as accompanied with supporting documentation of ownership or title;
(e) An undocumented ATV/ORV operating under a valid temporary certificate of number; and
(f) An ATV/ORV that has a number in full force and effect awarded according to the laws of the jurisdiction from which the ATV/ORV originated under an approved numbering system of that state, provided that the ATV/ORV shall not have been within this state for more than sixty (60) days.
(2) Nothing in this section shall prohibit the numbering of any undocumented ATV/ORV upon the request of the owner.
SECTION 5. The owner of any ATV/ORV required to be numbered under Sections 1 through 13 of this act shall apply to the commission for a certificate of number within ten (10) days from the date of acquisition of the ATV/ORV, on forms provided by the commission or the department. The application for a number shall include, but is not limited to, the following:
(a) Name and address of the owner;
(b) Date of birth of the owner;
(c) Social security number or driver's license number of the owner;
(d) Present citizenship of the owner (county, state, country);
(e) County in which the ATV/ORV will principally be used;
(f) Manufacturer of the ATV/ORV and year built, if known;
(g) Manufacturer's serial number or other identification number associated with the ATV/ORV;
(h) Type of fuel or propulsion (gas, diesel or electric) used by the ATV/ORV;
(i) Statement as to the primary use for which the ATV/ORV is intended (pleasure/outdoor recreation, hunting, farm work, commercial or other);
(j) Certification of ownership of the ATV/ORV by the applicant;
(k) Signature of the owner;
(l) Receipt, sales or otherwise, that shows whether or not a sales or use tax was paid at the time of the purchase of the ATV/ORV. If the ATV/ORV was purchased outside the State of Mississippi, and the tax for the privilege of using or consuming tangible personal property imposed by Section 27-67-5 was not paid at the time the ATV/ORV was acquired, then the owner shall be required to pay the tax as provided by the Mississippi Use Tax Law before a certificate of number can be issued; and
(m) Name of any lienholders.
SECTION 6. (1) The certificate of number shall include, at a minimum, the following information:
(a) Name and address of the owner;
(b) Date of birth of the owner;
(c) Present citizenship of the owner (county, state, country);
(d) County in which the ATV/ORV will principally be used;
(e) Manufacturer of the ATV/ORV, model number or name, and year built;
(f) Manufacturer's serial number or other identification number associated with the ATV/ORV;
(g) Type of fuel or propulsion (gas, diesel or electric) used by the ATV/ORV;
(h) Statement as to the primary use for which the ATV/ORV is intended (pleasure/outdoor recreation, hunting, farm work, commercial or other);
(i) Certification of ownership of the ATV/ORV by the applicant;
(j) Name of lienholders, if applicable;
(k) Signature of the owner;
(l) Number awarded to ATV/ORV;
(m) Expiration date of certificate; and
(n) Notice to the owner that he shall report, within fifteen (15) days, any changes of ownership or address, and destruction or abandonment of ATV/ORV.
(2) The commission shall ensure that the forms required by this section are available at various district offices, ATV/ORV companies or dealerships, with law enforcement officers, and at any other places for the purpose of making the forms accessible to ATV/ORV owners or purchasers. The commission shall award certificates of number and shall keep current a consolidated record of all certificates of numbers awarded, and renewals of numbers.
(3) Upon request, information on ownership and identity of a numbered ATV/ORV shall be made available to federal, state and local officials for any enforcement or assistance programs. The records pertaining to the numbering of any undocumented ATV/ORV under Sections 1 through 13 of this act are considered to be public records. Information not exempt from release under other authority, based on the records, may be released upon oral or written inquiry, subject only to reasonable restrictions necessary to carry on the business of the office. The commission may permit excerpts to be made or the copying or reproduction thereof by a private individual or concern. The fees and charges for copying, certifying or searching of records for information shall be assessed in accordance with usual fees allowed for those services.
SECTION 7. (1) An application for renewal of a certificate of number shall be made by the owner on an application which must be received by the commission within ninety (90) days before the expiration date on the certificate of number. The same number will be issued upon renewal. If a certificate of number is lost or destroyed, the owner, within fifteen (15) days, shall notify the commission's office. The notification shall be in writing, describe the circumstances of the loss or destruction and be accompanied by the fee prescribed in Section 3 of this act. The certificate of number issued as a result of the report will replace the certificate that was lost or destroyed.
(2) The commission shall mail notice of expiration of numbers, together with an application for renewal of number, to each registered ATV/ORV owner not less than sixty (60) days before the expiration date. The commission shall verify annually an updated list of all numbers in effect and those numbers not renewed.
SECTION 8. The certified statement of ownership on the application for the award of a number shall constitute prima facie evidence of proof of ownership. Liens of all kinds, including reservations or transfers of title to secure debts or claims, will be disregarded in determining ownership under Sections 1 through 13 of this act. A lienholder who acquires possession and title by virtue of default in the terms of the lien instrument, or any other person who acquires ownership through any such action of a lienholder, may apply for a number and shall attach to the application a signed statement explaining the facts in detail.
In addition to any other provision of this act, a bill of sale or receipt from any entity in the business of selling the ATV/ORV, that clearly shows the person claiming ownership to be the purchaser of that ATV/ORV, shall be further evidence of ownership of the ATV/ORV.
SECTION 9. (1) The commission is authorized to research and develop a method of affixing a number to an ATV/ORV. Any method adopted must provide for secure attachment that does not interfere with the operation of the ATV/ORV, but remains plainly visible to any person and can be readily identified and read through casual observation and without removing any part of the ATV/ORV. The number awarded shall be affixed to the ATV/ORV for which it was issued. The numbers shall read from left to right and shall be in block characters of good proportion. The numbers shall be of a color or material which will contrast with the color of the background and must be maintained as to be clearly visible and legible. No other number shall be carried on the ATV/ORV.
(2) Alteration, mutilation, removal, defacement or destruction of any number awarded and affixed to any ATV/ORV under Sections 1 through 13 of this act shall be a Class I violation as prescribed in Section 49-7-141. Any person convicted of altering, mutilating, removing, defacing or destroying a number awarded and affixed according to Sections 1 through 13 of this act shall be punished according to the provisions of Section 49-7-141.
SECTION 10. Certificates of number may be cancelled or voided under the following circumstances:
(a) Surrender of certificate for cancellation;
(b) Issuance of a new number for the same ATV/ORV;
(c) False or fraudulent certification in an application for a number; or
(d) Willful mutilation, defacing, or altering of a number.
SECTION 11. (1) The fees authorized under Section 3 of this act shall be charged when the owner of an ATV/ORV makes application for a certificate of number. The ATV/ORV owner shall request that the Department of Wildlife, Fisheries and Parks perform an inspection of an ATV/ORV for the purpose of awarding or replacing a number.
(2) All fees for numbers and renewal of numbers shall be payable to the Mississippi Department of Wildlife, Fisheries and Parks and shall be deposited in the Fisheries and Wildlife Fund created in Section 49-5-21.
SECTION 12. No person shall remove, change or in any manner mutilate or deface any number awarded an ATV/ORV, or any motor number or other stamped, cast, or forged numbers or letters or other marks upon any ATV/ORV, or assist in so doing, or, having knowledge of such change, fail to report the change to the Department of Wildlife, Fisheries and Parks. Any person or owner, being in possession of an ATV/ORV, shall examine the ATV/ORV and report such changes to the Department of Wildlife, Fisheries and Parks.
No person shall buy, sell or possess an ATV/ORV on which any awarded number or identification number has been removed, changed, mutilated or defaced. It shall be the duty of any person buying, or any lienholder financing, an ATV/ORV, to inspect the ATV/ORV prior to its purchase or creation of a lien thereon, to ensure that it is in compliance with this section.
SECTION 13. Any ATV/ORV that has numbers or identification numbers or marks which have been removed, changed, mutilated or defaced contrary to Sections 1 through 13 of this act is subject to forfeiture, and may be seized by any conservation officer or enforcement officer of the Department of Wildlife, Fisheries and Parks, or other officer of the law including any sheriff or deputy sheriff. Upon the seizure of the property, forfeiture proceedings shall be instituted according to Sections 49-7-251 through 49-7-257; however, any property which has previously been registered, numbered or titled within the State of Mississippi is not subject to forfeiture if the application for a certificate of number, registration or title contained no false or fraudulent information, or if the property seized has a value less than One Thousand Dollars ($1,000.00).
SECTION 14. Section 49-5-21, Mississippi Code of 1972, is amended as follows:
49-5-21. (1) The department shall transfer all funds under its control into a special fund in the State Treasury to be segregated and known as the "Fisheries and Wildlife Fund," which fund can only be expended as authorized by the Legislature for the purposes for which the department was created. All funds derived from the sale of licenses, fees, fines and other revenues received by the department as provided by law, shall be deposited in the Fisheries and Wildlife Fund. The interest obtained thereon from any investment or deposit made pursuant to Section 27-105-33, Mississippi Code of 1972, shall be credited by the State Treasurer to the Fisheries and Wildlife Fund and shall not be paid into the General Fund of Mississippi.
(2) (a) (i) The department may expend such sums as are authorized by the Legislature from the Fisheries and Wildlife Fund for paying salaries of its employees, operating and maintaining equipment and for any other purpose the department is authorized to expend funds by law, which amount shall be available for expenditure.
(ii) The money herein authorized shall be paid by the State Treasurer out of the Fisheries and Wildlife Fund on warrants issued by the Executive Director of the Department of Finance and Administration upon requisition signed by the Executive Director of the Mississippi Department of Wildlife, Fisheries and Parks.
(b) The money deposited under Section 11 of this act shall be used to defray all administrative costs of the ATV/ORV numbering division of the department and to improve the law enforcement capability of the department in the State of Mississippi and as may be budgeted by the department for the purpose of paying the costs of the administration of Sections 1 through 13 of this act. Unexpended amounts of the money deposited under Section 11 of this act remaining in the fund at the end of the fiscal year shall not lapse into the State General Fund, and any interest earned or investment earnings on amounts in the fund shall be deposited into such fund.
(3) The department shall prepare and submit annually to the Legislature a budget for its proposed operation. The budget required shall reflect all anticipated revenues from all sources, including all grants and matching funds, together with all proposed expenditures. The budget shall be prepared in the same manner as is now required of other departments of this state. The department shall be subject to budgetary control and audit in the same manner as is provided by law for other departments and agencies. Nothing in this section shall be construed as requiring legislative appropriation of such Fisheries and Wildlife Fund, but it is intended that expenditure of such funds shall be under authority of the budget approved as herein provided and as authorized by the Legislature.
SECTION 15. Section 49-7-251, Mississippi Code of 1972, is amended as follows:
49-7-251. (1) Except as otherwise provided in Section 49-7-257, when any property is seized pursuant to Section 49-7-103, 49-15-21(2) or 59-21-33, Mississippi Code of 1972, or Section 13 of this act, proceedings under this section shall be instituted promptly. Provided, however, that the seizing law enforcement agency may, in the sound exercise of discretion, decide not to bring a forfeiture action if the interests of bona fide lienholders or secured creditors equal or exceed the value of the seized property, or if other factors would produce a negative economic result. Provided further, that no property shall be subject to forfeiture which has been stolen from its owner if the owner can be identified and prosecution for the theft has been initiated.
(2) A petition for forfeiture shall be filed promptly in the name of the State of Mississippi, the county or the municipality and may be filed in the county in which the seizure is made, the county in which the criminal prosecution is brought or the county in which the owner of the seized property is found. Forfeiture proceedings may be brought in the circuit court or the county court if a county court exists in the county and the value of the seized property is within the jurisdictional limits of the county court as set forth in Section 9-9-21, Mississippi Code of 1972. A copy of such petition shall be served upon the following persons by service of process in the same manner as in civil cases:
(a) The owner of the property, if address is known;
(b) Any secured party who has registered his lien or filed a financing statement as provided by law, if the identity of such secured party can be ascertained by the Department of Wildlife Conservation or the local law enforcement agency by making a good faith effort to ascertain the identity of such secured party as described in subsections (3), (4), (5), (6) and (7) of this section;
(c) Any other bona fide lienholder or secured party or other person holding an interest in the property in the nature of a security interest of whom the Department of Wildlife Conservation or the local law enforcement agency has actual knowledge; and
(d) Any person in possession of property subject to forfeiture at the time that it was seized.
(3) If the property is a motor vehicle susceptible of titling under the Mississippi Motor Vehicle Title Law and if there is any reasonable cause to believe that the vehicle has been titled, the Department of Wildlife Conservation or the local law enforcement agency shall make inquiry of the State Tax Commission as to what the records of the State Tax Commission show as to who is the record owner of the vehicle and who, if anyone, holds any lien or security interest which affects the vehicle.
(4) If the property is a motor vehicle and is not titled in the State of Mississippi, then the Department of Wildlife Conservation or the local law enforcement agency shall attempt to ascertain the name and address of the person in whose name the vehicle is licensed, and if the vehicle is licensed in a state which has in effect a certificate of title law, the Department of Wildlife Conservation or the local law enforcement agency shall make inquiry of the appropriate agency of that state as to what the records of the agency show as to who is the record owner of the vehicle and who, if anyone, holds any lien, security interest or other instrument in the nature of a security device which affects the vehicle.
(5) If the property is of a nature that a financing statement is required by the laws of this state to be filed to perfect a security interest affecting the property and if there is any reasonable cause to believe that a financing statement covering the security interest has been filed under the laws of this state, the Department of Wildlife Conservation or the local law enforcement agency shall make inquiry of the appropriate office designated in Section 75-9-501, Mississippi Code of 1972, as to what the records show as to who is the record owner of the property and who, if anyone, has filed a financing statement affecting the property.
(6) If the property is an aircraft or part thereof and if there is any reasonable cause to believe that an instrument in the nature of a security device affects the property, then the Department of Wildlife Conservation or the local law enforcement agency shall make inquiry of the Administrator of the Mississippi Aeronautics Commission as to what the records of the Federal Aviation Administration show as to who is the record owner of the property and who, if anyone, holds an instrument in the nature of a security device which affects the property.
(7) In the case of all other personal property subject to forfeiture, if there is any reasonable cause to believe that an instrument in the nature of a security device affects the property, then the Department of Wildlife Conservation or the local law enforcement agency shall make a good faith inquiry to identify the holder of any such instrument.
(8) In the event the answer to an inquiry states that the record owner of the property is any person other than the person who was in possession of it when it was seized, or states that any person holds any lien, encumbrance, security interest, other interest in the nature of a security interest, mortgage or deed of trust which affects the property, the Department of Wildlife Conservation or the local law enforcement agency shall cause any record owner and also any lienholder, secured party, other person who holds an interest in the property in the nature of a security interest which affects the property to be named in the petition of forfeiture and to be served with process in the same manner as in civil cases.
(9) If the owner of the property cannot be found and served with a copy of the petition of forfeiture, or if no person was in possession of the property subject to forfeiture at the time that it was seized and the owner of the property is unknown, the Department of Wildlife Conservation or the local law enforcement agency shall file with the clerk of the court in which the proceeding is pending an affidavit to such effect, whereupon the clerk of the court shall publish notice of the hearing addressed to "the Unknown Owner of _______________," filling in the blank space with a reasonably detailed description of the property subject to forfeiture. Service by publication shall contain the other requisites prescribed in Section 11-33-41, Mississippi Code of 1972, and shall be served as provided in Section 11-33-37, Mississippi Code of 1972, for publication of notice for attachments at law.
(10) No proceedings instituted pursuant to the provisions of this section shall proceed to hearing unless the judge conducting the hearing is satisfied that this section has been complied with. Any answer received from an inquiry required by subsections (3) through (7) of this section shall be introduced into evidence at the hearing.
SECTION 16. Section 49-7-253, Mississippi Code of 1972, is amended as follows:
49-7-253. (1) Except as otherwise provided in Section 49-7-257, an owner of property that has been seized pursuant to Section 49-7-103, 49-15-21(2) or 59-21-33, Mississippi Code of 1972, or Section 13 of this act, shall file an answer within thirty (30) days after the completion of service of process. If an answer is not filed, the court shall hear evidence that the property is subject to forfeiture and forfeit the property to the Mississippi Department of Wildlife, Fisheries and Parks or the local law enforcement agency. If an answer is filed, a time for hearing on forfeiture shall be set within thirty (30) days of filing the answer or at the succeeding term of court, if court would not be in progress within thirty (30) days after filing the answer. Provided, however, that upon request by the Mississippi Department of Wildlife, Fisheries and Parks, the local law enforcement agency or the owner of the property, the court may postpone said forfeiture hearing to a date past the time any criminal action is pending against said owner.
(2) If the owner of the property has filed an answer denying that the property is subject to forfeiture, then the burden is on the petitioner to prove that the property is subject to forfeiture. However, if an answer has not been filed by the owner of the property, the petition for forfeiture may be introduced into evidence and is prima facie evidence that the property is subject to forfeiture. The standard of proof placed upon the petitioner in regard to property forfeited under the provisions of this article shall be by a preponderance of the evidence.
(3) At the hearing any claimant of any right, title or interest in the property may prove his lien, encumbrance, security interest or other interest in the nature of a security interest to be bona fide and created without knowledge or consent that the property was to be used so as to cause the property to be subject to forfeiture.
(4) If it is found that the property is subject to forfeiture, then the judge shall forfeit the property to the Mississippi Department of Wildlife, Fisheries and Parks or the local law enforcement agency. However, if proof at the hearing discloses that the interest of any bona fide lienholder, secured party, other person holding an interest in the property in the nature of a security interest is greater than or equal to the present value of the property, the court shall order the property released to him. If such interest is less than the present value of the property and if the proof shows that the property is subject to forfeiture, the court shall order the property forfeited to the Mississippi Department of Wildlife, Fisheries and Parks or the local law enforcement agency.
SECTION 17. Section 49-7-257, Mississippi Code of 1972, is amended as follows:
49-7-257. (1) When any property the value of which does not exceed Five Thousand Dollars ($5,000.00), is seized pursuant to Section 49-7-103, 49-15-21(2) or 59-21-33, Mississippi Code of 1972, or Section 13 of this act, the property may be forfeited by the administrative forfeiture procedures provided for in this section.
(2) The attorney for the seizing law enforcement agency shall provide notice of intention to forfeit the seized property administratively, by certified mail, return receipt requested, to all persons who are required to be notified pursuant to Section 49-7-251(2).
(3) In the event that notice of intention to forfeit the seized property administratively cannot be given as provided in subsection (2) of this section because of refusal, failure to claim, insufficient address or any other reason, the attorney for the seizing law enforcement agency shall provide notice by publication in a newspaper of general circulation in the county in which the seizure occurred for once a week for three (3) consecutive weeks.
(4) Notice pursuant to subsections (2) and (3) of this section shall include the following information:
(a) A description of the property;
(b) The approximate value of the property;
(c) The date and place of the seizure;
(d) The connection between the property and the violation of the Game and Fish Law, as set forth in Section 49-7-103, Mississippi Code of 1972;
(e) The instructions for filing a request for judicial review; and
(f) A statement that the property will be forfeited to the seizing law enforcement agency if a request for judicial review is not timely filed.
(5) Persons claiming an interest in the seized property may initiate judicial review of the seizure and proposed forfeiture by filing a request for judicial review with the attorney for the seizing law enforcement agency, within thirty (30) days after receipt of the certified letter or within thirty (30) days after the first publication of notice, whichever is applicable.
(6) If no request for judicial review is timely filed, the attorney for the seizing law enforcement agency shall prepare a written declaration of forfeiture of the subject property and the forfeited property shall be used, distributed or disposed of in accordance with the provisions of Section 49-7-255.
(7) Upon receipt of a timely request for judicial review, the attorney for the seizing law enforcement agency shall promptly file a petition for forfeiture and proceed as provided in Section 49-7-251.
SECTION 18. This act shall take effect and be in force from and after July 1, 2018.
