Written by attorney Lee Jay Eidelberg

Maryland Shoplifting - Civil Liabilities of the Criminal Defendant

Individuals apprehended for shoplifting in Maryland are often faced not only with the uncertainty of impending criminal charges after their detention and release by security personnel, but their receipt thereafter of correspondence, in the form of an initial "demand" letter from either the merchant or the merchant's legal representative, which specifies, among other information, a civil penalty and demand for payment of that penalty by cash, money order, certfied check or cashier's check. The recipient or "responsible person" (aka the Defendant in any criminal prosecution) of such communication is often in a quandry about the legitimacy of such a communication and what, if any,action should be undertaken in response.

Preliminarily, Maryland law provides that in cases of shoplifting and employee theft, a "responsible person" (here the shoplifter) is indeed civilly liable to a merchant, defined as either the owner or operator of any place where merchandise is displayed, held, or offered for sale, either at retail or wholesale.

Civil liabilities to the merchant for shoplifting include (1) restoring the merchandise to the merchant, or, if it is lost or destroyed, an amount equal to the merchant's stated sales price; (2) paying the merchant for other actual damages sustained, including the costs of apprehension or prosecution; and (3) payment of a civil penalty equal to twice the merchant's stated sales price of the merchandise. Such a penalty cannot be less than $50.00 nor more than $1,000.00.

However, the third. "civil penalty" component of civil liability is subject to the merchant's compliance with specific procedures pursuant to applicable law. Those procedures require the delivery by hand or mail of an "initial demand letter" that identifies the act of shoplifting, specifies the amount of damages under subparagraph (2) above, the civil penalty under subparagraph (3) above (and how the amount was calculated), a request for payment, conspicuous notice that payment of the penalty does NOT preclude criminal prosecution but that payment would be inadmissible in any criminal case as an admission, and the date by which the demanded payment is to be made (at least 15 days from the postmark of the initial demand letter).

Nonetheless, if the payment demanded is not received on or before the specified due date in the initial demand letter, the merchant is required by law to send a "second demand letter" specifying the same information as previously outlined, along with notice specifying a due date no earlier than at least 10 days from the postark date of this second letter. Last, this second letter must inform the recipient that if payment is not received on or before the second due date, the responsible person is subject to the immediate filing of a civil action for the aforementioned damages, plus penalties, court costs and reasonable attorney's fees.

Oftentimes, I see that recipients of "initial demand letters" post questions on inquiring what to once such letters are received. First, there is no legal obligaton on the responsible person to acknowledge receipt of or comply with any demand for payment of the penalty. Moreover, Maryland law makes clear that a second letter must be generated in any event by the Merchant - and the specified period by which to pay the penalties demanded must expire - before the merchant may initiate a civl action. Thus, it would appear that the responsible person can withhold any decision to pay civil penalties to the Merchant until at least the Merchant's second demand letter has indeed been generated and received. Moreover, even if such a second demand letter is received, there remains some uncertainty whether a civil action will actually follow. To that end, in cases involving only "petty" theft (cases in which the merchandise has a value of a few hundred dollars or less), one must weigh the actual resolve of the Merchant either to personally expend the time to pursue a civil action, or engage the services of an attorney to do so.

If one encounters the unfortunate circumstance of having to address these types of issues, consultation with a qualified attorney is the best means to evaluate one's actual exposure to civil liability and the steps to be undertaken if a civil action actually follows.

The foregoing is for informational purposes only and is neither intended to be nor constitutes a legal opinion.

Additional resources provided by the author

Maryland Courts and Judicial Proceedings Article Sec. 3-1301, et seq. Maryland Criminal Law Article 7-104, et seq.

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