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This issue comes up quite frequently. A person gets caught shoplifting from a store. He is detained by loss prevention officers. The stolen property is recovered. He is served with a trespass notice, barring him from returning to the store. In some cases, the police are not contacted. The person goes home angry with himself, but relieved that he does not have a criminal case to worry about. In other cases, the police are contacted and criminal charges are filed. The person goes to court, gets the case resolved. The person pays fines, court costs, and restitution for any items that were damaged or not recovered and thinks that the case is finally over and that he can put this incident behind him.
Then one day, he receives a certified letter. The letter from a law firm representing the store. The letter insists that the person pay a certain amount of money ($200 is typical) by a certain date or the store will take “further action”. The person gets nervous and calls me for advice.
Is a civil demand letter in this circumstance lawful?
Yes, it is. Ohio Revised Code section 2307.61 authorizes a property owner to bring a civil action against any person who damages the owner’s property or commits a theft offense involving the owner’s property.
What can happen if I do not pay the demand?
If you do not pay the amount of the demand within 30 days, a civil lawsuit can be filed against you. The store is well-aware that “further action” may scare a person into believing that criminal charges may be filed against him if he does not pay. In my experience, if the police are called to the scene after a shoplifter is apprehended, charges will be filed. If the store detains a person and then releases him without contacting the police, it is far less likely that criminal charges will be filed in the future, especially if the reason for initiating charges more than a month after the incident is due to the offender’s failure to pay according to a civil demand letter. The decision whether to file criminal charges ultimately rests with the police – not the store.
However, ORC 2307.61 is quite generous to the stores, as it is intended to compensate them for losses and expenditures incurred in dealing with shoplifting and theft. If a person fails to pay according to the terms of the demand letter or fails to abide a payment plan agreed upon after receipt of the demand letter, the store could recover the following amounts if it elects to file a civil lawsuit against the person:
- Compensatory damages:
- $50 if the value of the property was $50 or less.
- $100 if the value of the property was between $50 and $100.
- $150 if the value of the property was more than $100
- You may be thinking, “big deal, they recovered the property”. However, read on. The next section goes a step further and provides the store with more than just the value of the stolen or damaged items.
- Liquidated damages in whichever of the following amounts is greater:
- $200.
- 3 times the value of the property … irrespective of whether the property is recovered … or resalable at its full market price.
- If the value of the property is less than $5,000, the property owner may recover damages as set forth above, and additionally may recover the “reasonable administrative costs”, if any, of the property owner that were incurred in connection with actions taken, including “the cost of maintaining the civil action, and reasonable attorney’s fees”, if all of the following apply:
- A written demand for is served on the person for payment of Compensatory damages and reasonable administrative costs incurred up to that point.
- The demand is sent by certified mail, return receipt requested.
- The person does not make payment in the amount specified within 30 days after the demand has been served on the person and not payment agreements have been reached or adhered to.
If I don’t pay the amount requested in the demand letter, can the store destroy my credit, put liens on my house and car, or garnish my wages?
No. The store would have to file a civil lawsuit and obtain a judgment against you.
If I don’t pay the amount requested in the demand letter, can the store still bring a civil action, even if it recovered all of its merchandise undamaged?
Yes. Pursuant to ORC 2307.61, a civil action can be filed, even if the store recovered all of its merchandise undamaged and can resell the items at full market price.
What if I was charged criminally, and (1) there was no restitution, or (2) the judge ordered restitution and I paid the amount.
A civil action can be filed pursuant to ORC 2307.61 is a separate cause of action and is not impacted by a criminal case or any orders for restitution. In other words – yes, you can end up having to pay multiple times for the same stolen item. The statute appears to be motivated by more than just attempting to compensate stores for losses due to shoplifting – it aims to compensate them for additional expenditures for loss prevention. One may argue that the price of goods in a store factors in the impact that shoplifting has on the store’s profits. Nevertheless, large corporate retailers probably had significant impact in lobbying for the enactment of this statute.
If I do not pay according to the demand letter, how likely is it that the store will file a civil action against me?
Not very likely. I have yet to see a civil action filed against a client who was caught shoplifting. The cost (legal fees, certified letter fee, etc …) for sending the demand letter are quite minimal. The store is probably well-aware of the percentage of people who pay the amount requested. Sending the letters to everyone caught shoplifting will likely yield a certain amount of money, with very little effort and cost. On the other hand, a civil lawsuit would appear to be cost prohibitive. A filing fee would have to be paid. Attorney fees would have to be spent. It does not make sense to spend several thousand dollars to collect several hundred dollars. Even if the store ultimately obtains a civil judgment in its favor, including compensatory damages, liquidated damages, administrative costs, and attorney fees, the civil judgment is just that – a piece of paper. Once a civil judgment is obtained, recovering the amount owed is another problem. What if the person does not have a job, a home, a vehicle, or any assets. Then the store just spent thousands to get a worthless piece of paper. Of course, someone with a job, assets, and who relies on good credit may feel that paying the demand in the letter is better than taking a gamble with having that credit rating take a hit.
