Opinion
FBTCV166059326S
07-10-2017
Lanese Construction, Inc. v. Natural Markets Food Group, Inc. aka Mrs. Greens Market
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE
Richard E. Arnold, Judge.
The defendant has filed a motion to strike counts three and four of the plaintiff's complaint, which is dated September 2, 2016. The complaint sounds in four counts alleging: (1) breach of contract; (2) unjust enrichment; (3) statutory theft pursuant to a violation of General Statutes § 52-564; and (4) a violation of the Connecticut Unfair Trade Practices Act (CUTPA). The defendant filed its memorandum of law dated December 5, 2016. The plaintiff has filed its objection and memorandum of law, both of which are dated January 26, 2017. The court heard oral argument on the motion to strike on March 20, 2017.
This action arises from the plaintiff's claim that it is entitled to compensation for materials furnished and services performed for the defendant in connection with certain construction projects based upon an express or implied contract between the parties. In Count One, the plaintiff alleges it entered into a contract with the defendant by which the plaintiff agreed to provide construction goods and services to the defendant as part of a store remodeling program. The plaintiff alleges it provided such services at various locations in Connecticut and New York and then alleges that the defendant has " neglected and refused" to pay the plaintiff the balance due in an amount of One Hundred Forty-Nine Thousand, Five Hundred Twelve and thirty/one hundredth ($149, 512.30) Dollars.
The Second Count no longer alleges that the parties entered into a contract. Instead, the plaintiff alleges it provided goods and services with the expectation that it would be paid by the defendant, and that the defendant has been unjustly enriched by its failure to pay the reasonable value of the goods and services provided by the plaintiff.
Count Three alleges a violation of General Statutes § 52-564. It incorporates paragraphs one through eight of Count Two, which alleges unjust enrichment. Paragraph 9 states " [t]he defendant accepted the construction goods and services from the Plaintiff with the intention of not paying the Plaintiff for those goods . . ." Paragraph ten then claims a violation of section 52-564. Count Four re-alleges all ten paragraphs in Count Three and further alleges that due to the violation of section 52-564, the defendant has violated the public policy of the State of Connecticut thus resulting in a CUTPA violation, General Statutes § 42-110a et seq.
I
Standard of Law
" The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " [T]he moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp. et al., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994). " It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 755 A.2d 505 (2001). " If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). " In ruling on a motion to strike, the court is limited to the facts alleged in the [challenged pleading]." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498. The court should " construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2005).
II
Count Three--Statutory Theft
The Third Count alleges a claim for statutory theft pursuant to General Statutes § 52-564, which states that " [a]ny person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages." A claim for statutory theft for civil damages is synonymous with larceny, as defined by General Statutes § 53a-119. Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 771, 905 A.2d 623 (2006); Stuart v. Stuart, 297 Conn. 26, 42, 996 A.2d 259 (2010). In determining whether a defendant's alleged conduct constitutes theft and falls within the purview of section 52-564, the court looks to section 53a-119 and the non-exclusive list of specific examples of larceny set forth therein. Delta Capital Group, LLC v. Smith, Superior Court, No. CV 970571407S, (Mar. 31, 1998, Hale, J.), 1998 WL 167293. Section 53a-119 defines larceny as follows:
A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner.
Section 53a-119 then gives a non-exclusive list of eighteen subsections defining various how one can commit larceny.
General Statutes § 53a-119 reads in its totality as follows
The defendant directs the court to the decision in Delta Capital Group, LLC v. Smith, supra Superior Court, No. CV 970571407S, (Mar. 31, 1998, Hale, J.), 1998 WL 167293 . The defendant argues that the court in Delta Capital, considered a motion to strike a claim for statutory theft of services based on the defendant's alleged use of the plaintiff's services with the intent not to pay for them. The Delta Capital court reviewed case law interpreting the scope and applicability of the types of " [t]heft of services" expressly set forth in General Statutes § 53a-119(7). Id. The Delta Capital court concluded that " [n]o court has expanded the definition of theft of services beyond the statutory parameters to include a situation, as is the present case where a party to a contract has failed to honor his contractual obligation to pay for services." Id. Notwithstanding the allegation that the defendant wrongfully used plaintiff's services " with the intent not to pay for them" the court struck the plaintiff's claim for statutory theft. Id. The defendant argues that Connecticut courts have widely followed Delta Capital 's holding and limitation on what constitutes an actionable claim for theft pursuant to Sections 52-564 and 53a-119.
The defendant notes that Count Three merely alleges that Natural Markets has been unjustly enriched in that it received the value of the plaintiff's construction, goods and services for which it has not paid the plaintiff, Lanese, and has " accepted the construction goods and services from [Lanese] with the intent of not paying [Lanese] for those goods and services." The defendant argues that nowhere in Count Three is there an allegation that the defendant falsely promised the plaintiff that the defendant would pay for the goods and services provided or that the defendant fraudulently induced Lanese to perform services for the defendant.
The defendant also argues that in the alternative the motion to strike Count Three should be granted because a mere obligation to pay for services rendered under an implied contract does not give rise to an action in theft. The defendant, in support cites Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 772, 905 A.2d 623 (2006). " [A]n action in tort is inappropriate where the basis of the suit is a contract, either express or implied." Id. The defendant argues that the plaintiff's theft claim plainly arises from an alleged implied contract with the defendant. Therefore, under the holding in Deming, supra, the defendant has not stated a viable claim for statutory theft and the plaintiff's exclusive basis recovery, if any, is under it alleged claims of an express or implied contract with the defendant.
" The term implied contract, . . . often leads to confusion because it can refer to an implied in fact contract or to an implied in law contract. An implied in fact contract is the same as an express contract, except that assent is not expressed in words, but is implied from the conduct of the parties. On the other hand, an implied in law contract is not a contract, but an obligation which the law creates out of the circumstances present, even though a party did not assume the obligation . . . It is based on equitable principles to operate whenever justice requires compensation to be made. An implied in law contract may arise due to one party being unjustly enriched to the detriment of the other party. Accordingly, an implied in law contract is another name for a claim for unjust enrichment." (Internal quotation marks omitted and internal citations omitted.) Vertex, Inc. v. City of Waterbury, 278 Conn. 557, 574, 898 A.2d 178 (2006).
The plaintiff, instead of relying upon General Statutes § 53a-119(7), as the defendant argues, states that it is relying upon General Statutes § 53a-117(a)(3), which states:
(3) Obtaining property by false promise. A person obtains property by false promise when, pursuant to a scheme to defraud, he obtains property of another by means of a representation, express or implied, that he or a third person will in the future engage in particular conduct, and when he does not intend to engage in such conduct or does not believe that the third person intends to engage in such conduct. In any prosecution for larceny based upon a false promise, the defendant's intention or belief that the promise would not be performed may not be established by or inferred from the fact alone that such promise was not performed.
The plaintiff argues that the defendant took the plaintiff's goods and services for which it promised to pay while the defendant had no intention of paying for the same. Therefore, the plaintiff claims it has sufficiently alleged a claim for statutory theft.
" Allegations for a cause of action in statutory theft must specifically adhere to the essential elements for the crime of larceny. Larceny is the intentional and wrongful taking, obtaining or withholding property from an owner." BKM Enterprises v. Budget Modular Workstations, Inc., Superior Court, Judicial District of Hartford, No. HHDCV054008900, (Oct. 26, 2005, Keller, J.) 40 Conn.L.Rptr. 202; General Statutes § 53a-119. " Here, however, unlike the facts in the Delta Capital, supra, . . . the plaintiff is not just alleging the wrongful withholding of monies owed to it, it is claiming that the plaintiff deceived it into installing building materials, its property, by falsely promising partial payment was imminent and actually paying nothing." Id.
The events the plaintiff alleges as constituting the basis for his claim of statutory theft may be sufficient to constitute a larceny, specifically, the obtaining of property by " false promise" as defined in § 53a-119(3). " When one obtains the possession of personal property of another by deception with the intent to convert it to one's own use and permanently deprive the owner of his property, one commits larceny." See State v. Vars, 154 Conn. 255, 260, 224 A.2d 744 (1966). " The natural import of these allegations is that the defendant obtained the plaintiff's services through a knowingly false representation; namely, that the defendant would pay for the services once they were provided." BKM Enterprises v. Budget Modular Workstations, Inc., supra . Superior Court decisions " have consistently denied motions to strike [statutory theft claims] when intent is pleaded." Today's Kids, LLC v. Bach, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 08 5009121, (October 1, 2009, Adams, J.).
Furthermore, because, as alleged, the agreement between the parties could be interpreted as a contract for the use of the defendant's labor and/or commercial equipment, the court believes § 53a-119(7)(C) also may be applicable in the present case. That provision provides that " [a] person is guilty of theft of services when . . . obtaining or having control over labor in the employ of another person, or of business, commercial or industrial equipment or facilities of another person, knowing that he is not entitled to the use thereof, and with intent to derive a commercial or other substantial benefit for himself or a third person, he uses or diverts to the use of himself or a third person such labor, equipment or facilities." " Under General Statutes § 53a-119(7)(C), the court asks: (1) whether labor in the employ of another was used or diverted to benefit oneself or a third party, or (2) whether equipment or facilities of another were used to benefit oneself or a third party." BKM Enterprises v. Budget Modular Workstations, Inc., supra, quoting Delta Capital Group, LLC v. Smith, supra, Superior Court, Docket No. CV 97 0571407S; see also Jalbert v. Mulligan, Superior Court, judicial district of Waterbury, Docket No. CV 08 6001044, (August 25, 2009, Brunetti, J.); Swift v. Ball, Superior Court, judicial district of Danbury, Docket No. CV 01 0344047, (February 22, 2005, Bellis, J.).
It is true, as the plaintiff points out in its memorandum of law, that in Delta Capital Group, LLC v. Smith, supra, Superior Court, Docket No. CV 97 0571407, the court observed that these are the lone circumstances in which Connecticut courts have found theft of services pursuant to subsection (C), and that " [n]o court has expanded the definition . . . to include a situation . . . where a party to a contract has failed to honor his contractual obligation to pay for services." " However, unlike count four in the present case, the statutory theft claim examined in Delta Capital Group did not include an allegation that the defendant procured the plaintiff's labor or commercial equipment by virtue of a false statement regarding intent to pay. Again, where intent is properly pleaded within a count for statutory theft, Superior Court decisions have found such counts legally sufficient to survive a motion to strike." BKM Enterprises v. Budget Modular Workstations, Inc., supra, quoting, Delta Capital Group, LLC v. Smith, supra; see also Today's Kids, LLC v. Bach, supra, Superior Court, Docket No. CV 08 5009121; see also DeHart v. Crossen, Superior Court, judicial district of Windham, Docket No. CV 04 4000241, (June 3, 2005, Riley, J.). " [T]he court is mindful that whether the [plaintiff] can substantiate this claim is irrelevant to the present motion. A motion to strike merely requires the court to consider the sufficiency of the allegations." DeHart v. Crossen, supra, Superior Court, Docket No. CV 04 4000241.
Thus, regardless of whether the court's attention is properly cast upon section 53a-119(7) or section 53a-119(3), Count Three adequately sets forth a claim for statutory theft. As such, the defendant's motion to strike is denied as to count three and the corresponding portion of the prayer for relief.
III
Count Four--CUTPA
The defendant moves to strike the Fourth Count alleging a violation of CUTPA arguing this count fails to allege substantial aggravating circumstances necessary to transform a breach of contract action into a CUTPA action. " [A]bsent substantial aggravating circumstances, [a] simple breach of contract is insufficient to establish [a] claim under CUTPA." Lydall, Inc. v. Ruschmeyer, 282 Conn. 209, 248, 919 A.2d 421 (2007); see also Goldberg v. Cook, Superior Court, judicial district of Litchfield. No. LLICV146010585S (Mar. 3, 2015, Pickard, J.) (" Although there is a split of authority in the Superior Courts regarding what is necessary to establish a CUTPA claim for breach of contract, the vast majority of Superior Court decisions [conclude] that, absent allegations of sufficient aggravating circumstances, [a] simple breach of contract, even if intentional, does not amount to a violation of [CUTPA]").
Count Four, which attempts to assert a violation of CUTPA, incorporates allegations contained in counts one, two and three and further alleges that due to the violation of section 52-564, the defendant has violated the public policy of the State of Connecticut, thus, resulting in a CUTPA violation, General Statutes § 42-110a et seq. The allegations in Count Four incorporate the allegations of the prior three counts; especially Count Three (unjust enrichment). Thus, the Fourth Count does not allege any independent grounds for asserting a CUTPA violation separate and apart from the Fourth Count's incorporation of the claims alleged in the Third Count.
General Statutes § 42-110b(a) provides in pertinent part that " [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." General Statutes § 42-110b(a). " The operative provisions of [CUTPA], § 42-110b(a), states merely that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce . . . The purpose of CUTPA is to protect the public from unfair practices in the conduct of any trade or commerce, and whether a practice is unfair depends upon the findings of a violation of an identifiable public policy . . ." (Citations omitted; internal quotation marks omitted.) Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 380, 880 A.2d 138 (2005).
" It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise-in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 154-55, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006).
Greene v. Orsini, 50 Conn.Supp. 312, 315, 926 A.2d 708 (2007), notes that while " [t]here is a split of authority in Superior Court decisions regarding what is necessary to establish a CUTPA claim for breach of contract, the majority of courts [hold] that a simple breach of contract, even if intentional, does not amount to a violation of CUTPA in the absence of substantial aggravating circumstances." (Internal quotation marks omitted.) This is because " [a] simple breach of contract does not offend traditional notions of fairness and, standing alone, does not offend public policy so as to invoke CUTPA. A CUTPA claim lies where the facts alleged support a claim for more than a mere breach of contract. Depending upon the nature of the assertions, however, the same facts that establish a breach of contract claim may be sufficient to establish a CUTPA violation. Lester v. Resort Camplands International, Inc., 27 Conn.App. 59, 71, 605 A.2d 550 (1992). " That generally is so when the aggravating factors present constitute more than a failure to deliver on a promise." Id. In support of its motion to strike count the defendant argues that the plaintiff has merely relied upon the same allegations that support its breach of contract claim, and that, without accompanying allegations of substantial aggravating circumstances, count four is legally insufficient and must be stricken.
The plaintiff agrees that in order for count four to pass muster, it must contain allegations of " substantial aggravating circumstances" beyond a mere breach of contract. It maintains, however, that count four is legally sufficient because it essentially alleges statutory theft pursuant to General Statutes § 52-564 in that the defendant failed to pay for goods and services provided by the plaintiff at six different stores of the defendant located both in Connecticut and New York. The allegations also evidence a pattern by the defendant to continually refuse to pay for the plaintiff's goods and services. See Metropolitan Trucking v. Rand-Whitney Containerboard, LP, Superior Court, judicial district of New London, No. CV095013770, (March 31, 2010, Cosgrove, J.), 49 Conn.L.Rptr. 584. A pattern of behavior such as this, if proven, may qualify as a substantial aggravating circumstance capable of supporting a CUTPA claim. Greene v. Orsini, supra, 50 Conn.Supp. at 312, 926 A.2d 708; Webster Financial Corp. v. McDonald, Superior Court, judicial district of Waterbury, Docket No. CV 08 4016026, (January 28, 2009, Brunetti, J.).
As noted earlier herein, when a court reviews a complaint for the purposes of a motion to strike, it should " construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. at 117. In doing so, the court may consider the failure to pay for goods and services at each store location a separate breach of contract, resulting in multiple breaches that in the aggregate result in a pattern of " substantial aggravating circumstances." See Metropolitan Trucking v. Rand-Whitney Containerboard, LP, supra .
Lastly, the court agrees with the plaintiff that although a violation of General Statutes 52-564 is not a per se violation of CUTPA, theft is against the public policy of the State of Connecticut. As the court has denied the motion to strike Count Three alleging statutory theft, it must be considered when determining whether the plaintiff has sufficiently alleged a CUTPA violation. Accordingly, for the reasons set forth, the court denies the motion to strike the Fourth Count alleging a violation of CUTPA, as well as, the corresponding claims for relief pursuant to CUTPA.
Order
The motion to strike the Third and Fourth Counts of the plaintiff's complaint is hereby denied.
A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. (1) Embezzlement. A person commits embezzlement when he wrongfully appropriates to himself or to another property of another in his care or custody. (2) Obtaining property by false pretenses. A person obtains property by false pretenses when, by any false token, pretense or device, he obtains from another any property, with intent to defraud him or any other person. (3) Obtaining property by false promise. A person obtains property by false promise when, pursuant to a scheme to defraud, he obtains property of another by means of a representation, express or implied, that he or a third person will in the future engage in particular conduct, and when he does not intend to engage in such conduct or does not believe that the third person intends to engage in such conduct. In any prosecution for larceny based upon a false promise, the defendant's intention or belief that the promise would not be performed may not be established by or inferred from the fact alone that such promise was not performed. (4) Acquiring property lost, mislaid or delivered by mistake. A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of larceny if, with purpose to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person entitled to it. (5) Extortion. A person obtains property by extortion when he compels or induces another person to deliver such property to himself or a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will: (A) Cause physical injury to some person in the future; or (B) cause damage to property; or (C) engage in other conduct constituting a crime; or (D) accuse some person of a crime or cause criminal charges to be instituted against him; or (E) expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule; or (F) cause a strike, boycott or other collective labor group action injurious to some person's business; except that such a threat shall not be deemed extortion when the property is demanded or received for the benefit of the group in whose interest the actor purports to act; or (G) testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or (H) use or abuse his position as a public servant by performing some act within or related to his official duties, or by failing or refusing to perform an official duty, in such manner as to affect some person adversely; or (I) inflict any other harm which would not benefit the actor. (6) Defrauding of public community. A person is guilty of defrauding a public community who (A) authorizes, certifies, attests or files a claim for benefits or reimbursement from a local, state or federal agency which he knows is false; or (B) knowingly accepts the benefits from a claim he knows is false; or (C) as an officer or agent of any public community, with intent to prejudice it, appropriates its property to the use of any person or draws any order upon its treasury or presents or aids in procuring to be allowed any fraudulent claim against such community. For purposes of this subdivision such order or claim shall be deemed to be property. (7) Theft of services. A person is guilty of theft of services when: (A) With intent to avoid payment for restaurant services rendered, or for services rendered to him as a transient guest at a hotel, motel, inn, tourist cabin, rooming house or comparable establishment, he avoids such payment by unjustifiable failure or refusal to pay, by stealth, or by any misrepresentation of fact which he knows to be false; or (B)(i) except as provided in section 13b-38i, with intent to obtain railroad, subway, bus, air, taxi or any other public transportation service without payment of the lawful charge therefore or to avoid payment of the lawful charge for such transportation service which has been rendered to him, he obtains such service or avoids payment therefore by force, intimidation, stealth, deception or mechanical tampering, or by unjustifiable failure or refusal to pay, or (ii) with intent to obtain the use of equipment, including a motor vehicle, without payment of the lawful charge therefore, or to avoid payment of the lawful charge for such use which has been permitted him, he obtains such use or avoids such payment therefore by means of any false or fraudulent representation, fraudulent concealment, false pretense or personation, trick, artifice or device, including, but not limited to, a false representation as to his name, residence, employment, or driver's license; or (C) obtaining or having control over labor in the employ of another person, or of business, commercial or industrial equipment or facilities of another person, knowing that he is not entitled to the use thereof, and with intent to derive a commercial or other substantial benefit for himself or a third person, he uses or diverts to the use of himself or a third person such labor, equipment or facilities. (8) Receiving stolen property. A person is guilty of larceny by receiving stolen property if he receives, retains, or disposes of stolen property knowing that it has probably been stolen or believing that it has probably been stolen, unless the property is received, retained or disposed of with purpose to restore it to the owner. A person who accepts or receives the use or benefit of a public utility commodity which customarily passes through a meter, knowing such commodity (A) has been diverted therefrom, (B) has not been correctly registered, or (C) has not been registered at all by a meter, is guilty of larceny by receiving stolen property. (9) Shoplifting. A person is guilty of shoplifting who intentionally takes possession of any goods, wares or merchandise offered or exposed for sale by any store or other mercantile establishment with the intention of converting the same to his own use, without paying the purchase price thereof. A person intentionally concealing unpurchased goods or merchandise of any store or other mercantile establishment, either on the premises or outside the premises of such store, shall be prima facie presumed to have so concealed such article with the intention of converting the same to his own use without paying the purchase price thereof. (10) Conversion of a motor vehicle. A person is guilty of conversion of a motor vehicle who, after renting or leasing a motor vehicle under an agreement in writing which provides for the return of such vehicle to a particular place at a particular time, fails to return the vehicle to such place within the time specified, and who thereafter fails to return such vehicle to the agreed place or to any other place of business of the lessor within one hundred twenty hours after the lessor shall have sent a written demand to him for the return of the vehicle by registered mail addressed to him at his address as shown in the written agreement or, in the absence of such address, to his last-known address as recorded in the records of the motor vehicle department of the state in which he is licensed to operate a motor vehicle. It shall be a complete defense to any civil action arising out of or involving the arrest or detention of any person to whom such demand was sent by registered mail that he failed to return the vehicle to any place of business of the lessor within one hundred twenty hours after the mailing of such demand. (11) Obtaining property through fraudulent use of an automated teller machine. A person obtains property through fraudulent use of an automated teller machine when such person obtains property by knowingly using in a fraudulent manner an automated teller machine with intent to deprive another of property or to appropriate the same to himself or a third person. In any prosecution for larceny based upon fraudulent use of an automated teller machine, the crime shall be deemed to have been committed in the town in which the machine was located. In any prosecution for larceny based upon more than one instance of fraudulent use of an automated teller machine, (A) all such instances in any six-month period may be combined and charged as one offense, with the value of all property obtained thereby being accumulated, and (B) the crime shall be deemed to have been committed in any of the towns in which a machine which was fraudulently used was located. For the purposes of this subsection, " automated teller machine" means an unmanned device at which banking transactions including, without limitation, deposits, withdrawals, advances, payments and transfers may be conducted, and includes, without limitation, a satellite device and point of sale terminal as defined in section 36a-2. (12) Library theft. A person is guilty of library theft when (A) he conceals on his person or among his belongings a book or other archival library materials, belonging to, or deposited in, a library facility with the intention of removing the same from the library facility without authority or without authority removes a book or other archival library materials from such library facility, or (B) he mutilates a book or other archival library materials belonging to, or deposited in, a library facility, so as to render it unusable or reduce its value. The term " book or other archival library materials" includes any book, plate, picture, photograph, engraving, painting, drawing, map, manuscript, document, letter, public record, microform, sound recording, audiovisual material in any format, magnetic or other tape, electronic data-processing record, artifact or other documentary, written or printed material regardless of physical form or characteristics, or any part thereof, belonging to, on loan to, or otherwise in the custody of a library facility. The term " library facility" includes any public library, any library of an educational institution, organization or society, any museum, any repository of public records and any archives. (13) Conversion of leased property. (A) A person is guilty of conversion of leased personal property who, with the intent of converting the same to his own use or that of a third person, after renting or leasing such property under an agreement in writing which provides for the return of such property to a particular place at a particular time, sells, conveys, conceals or aids in concealing such property or any part thereof, and who thereafter fails to return such property to the agreed place or to any other place of business of the lessor within one hundred ninety-two hours after the lessor shall have sent a written demand to him for the return of the property by registered or certified mail addressed to him at his address as shown in the written agreement, unless a more recent address is known to the lessor. Acknowledgment of the receipt of such written demand by the lessee shall not be necessary to establish that one hundred ninety-two hours have passed since such written demand was sent. (B) Any person, being in possession of personal property other than wearing apparel, received upon a written lease, who, with intent to defraud, sells, conveys, conceals or aids in concealing such property, or any part thereof, shall be prima facie presumed to have done so with the intention of converting such property to his own use. (C) A person who uses a false or fictitious name or address in obtaining such leased personal property shall be prima facie presumed to have obtained such leased personal property with the intent of converting the same to his own use or that of a third person. (D) " Leased personal property, " as used in this subdivision, means any personal property received pursuant to a written contract, by which one owning such property, the lessor, grants to another, the lessee, the right to possess, use and enjoy such personal property for a specified period of time for a specified sum, but does not include personal property that is rented or leased pursuant to chapter 743i.1 (14) Failure to pay prevailing rate of wages. A person is guilty of failing to pay the prevailing rate of wages when he (A) files a certified payroll, in accordance with section 31-53 which he knows is false, in violation of section 53a-157a, and (B) fails to pay to an employee or to an employee welfare fund the amount attested to in the certified payroll with the intent to convert such amount to his own use or to the use of a third party. (15) Theft of utility service. A person is guilty of theft of utility service when he intentionally obtains electric, gas, water, telecommunications, wireless radio communications or community antenna television service that is available only for compensation: (A) By deception or threat or by false token, slug or other means including, but not limited to, electronic or mechanical device or unauthorized use of a confidential identification or authorization code or through fraudulent statements, to avoid payment for the service by himself or another person; or (B) by tampering or making connection with or disconnecting the meter, pipe, cable, conduit, conductor, attachment or other equipment or by manufacturing, modifying, altering, programming, reprogramming or possessing any device, software or equipment or part or component thereof or by disguising the identity or identification numbers of any device or equipment utilized by a supplier of electric, gas, water, telecommunications, wireless radio communications or community antenna television service, without the consent of such supplier, in order to avoid payment for the service by himself or another person; or (C) with intent to avoid payment by himself or another person for a prospective or already rendered service the charge or compensation for which is measured by a meter or other mechanical measuring device provided by the supplier of the service, by tampering with such meter or device or by attempting in any manner to prevent such meter or device from performing its measuring function, without the consent of the supplier of the service. There shall be a rebuttable presumption that the person to whom the service is billed has the intent to obtain the service and to avoid making payment for the service if, without the consent of the supplier of the service: (i) Any meter, pipe, cable, conduit, conductor, attachment or other equipment has been tampered with or connected or disconnected, (ii) any device, software or equipment or part or component thereof has been modified, altered, programmed, reprogrammed or possessed, (iii) the identity or identification numbers of any device or equipment utilized by the supplier of the service have been disguised, or (iv) a meter or other mechanical measuring device provided by the supplier of the service has been tampered with or prevented from performing its measuring function. The presumption does not apply if the person to whose service the condition applies has received such service for less than thirty-one days or until the service supplier has made at least one meter or service reading and provided a billing statement to the person as to whose service the condition applies. The presumption does not apply with respect to wireless radio communications. (16) Air bag fraud. A person is guilty of air bag fraud when such person, with intent to defraud another person, obtains property from such other person or a third person by knowingly selling, installing or reinstalling any object, including any counterfeit air bag or nonfunctional air bag, as such terms are defined in section 14-106d, in lieu of an air bag that was designed in accordance with federal safety requirements as provided in 49 CFR 571.208, as amended, and which is proper for the make, model and year of the vehicle, as part of the vehicle inflatable restraint system. (17) Theft of motor fuel. A person is guilty of theft of motor fuel when such person (A) delivers or causes to be delivered motor fuel, as defined in section 14-327a, into the fuel tank of a vehicle or into a portable container, or into both, on the premises of a retail dealer, as defined in section 14-318, and (B) with the intent to appropriate such motor fuel to himself or a third person, leaves such premises without paying the purchase price for such motor fuel. (18) Failure to repay surplus Citizens' Election Fund grant funds. A person is guilty of failure to repay surplus Citizens' Election Fund grant funds when such person fails to return to the Citizens' Election Fund any surplus funds from a grant made pursuant to sections 9-700 to 9-716, inclusive, not later than ninety days after the primary or election for which the grant is made.