H. B. 4288
(By Delegate Mahan)
[Introduced January 25, 2012; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §61-3-49 of the Code of West Virginia, 1931, as amended, relating to the receipt and transfer of scrap metal; imposing of additional reporting requirements for certain purchases; permitting law-enforcement officers to confiscate such metals upon reasonable belief that a crime has been committed; and increasing criminal penalties for violations.
Be it enacted by the Legislature of West Virginia:
That §61-3-49 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-49. Purchase of scrap metal by scrap metal purchasing businesses, salvage yards, or recycling facilities; certificates, records and reports of such purchases; criminal penalties.
(a) For the purposes of this section, the following terms have the following meanings.
(1) “Business registration certificate” has the same meaning ascribed to it in section two, article twelve, chapter eleven of this code.
(2) “Purchaser” means any person in the business of purchasing scrap metal or used auto parts, any salvage yard owner or operator, or any public or commercial recycling facility owner or operator, or any agent or employee thereof, who purchases any form of scrap metal or used auto parts.
(3) “Scrap metal” means any form of copper, aluminum, brass, lead or other nonferrous metal of any kind, a catalytic converter or any materials derived from a catalytic converter, or steel railroad track and track material.
(b) Any purchaser of scrap metal shall make and maintain a record of such purchase that shall contain the following information for each transaction:
(1) The full name, permanent home and business addresses, and telephone number, if available, of the seller;
(2) A description and the motor vehicle license number of any vehicle used to transport the purchased scrap metal to the place of purchase, including the make, model, color and year;
(3) The time and date of the transaction;
(4) A complete description of the kind, character and weight of the scrap metal purchased; and
(5) A statement of whether the scrap metal was purchased, taken as collateral for a loan, or taken on consignment.
(c) A purchaser also shall require and retain from the seller of the scrap metal the following:
(1) A signed certificate of ownership of the scrap metal being sold or a signed authorization from the owner of the scrap metal to sell said scrap metal; and
(2) A photocopy of a valid driver’s license or identification card issued by the West Virginia Division of Motor Vehicles of the person delivering the scrap metal, or in lieu thereof, any other valid photo identification of the seller issued by any other state or the federal government: Provided, That, if the purchaser has a copy of the seller’s valid photo identification on file, the purchaser may reference the identification that is on file, without making a separate photocopy for each transaction.
(d) It is unlawful for any purchaser to purchase any scrap metal without obtaining and recording the information required under subsections (b) and (c) of this section. The provisions of this subsection do not apply to purchases made at wholesale under contract or as a result of a bidding process: Provided, That the purchaser retains and makes available for review consistent with subsection (f) of this section the contract, bill of sale, or similar documentation of the purchase made at wholesale under contract or as a result of a bidding process: Provided, however, That the purchaser may redact any pricing or other commercially sensitive information from said contract, bill of sale, or similar documentation before making it available for inspection.
(e) No purchaser of scrap metal may knowingly purchase or possess a stainless steel or aluminum beer keg, whether damaged or undamaged, or any reasonably recognizable part thereof, for the intended purpose of reselling as scrap metal unless the purchaser receives the keg or keg parts from the beer manufacturer or its authorized representative.
(f) Within thirty days of the effective date of the amendment and reenactment of this section during the second extraordinary session of the Legislature in two thousand seven, the West Virginia State Police shall make available a standard form purchasers of scrap metal may use to record all the information required under subsections (b) and (c) of this section.
(g) Using the form authorized under subsection (f) above, or his or her own form, a purchaser of scrap metal shall retain the records required by this section at his or her place of business for not less than three years after the date of the purchase. Upon completion of a purchase, the records required to be retained at a purchaser’s place of business shall be available for inspection by any law-enforcement officer or, upon written request and during the purchaser’s regular business hours, by any investigator employed by a public utility or railroad to investigate the theft of public utility or railroad property: Provided, That in lieu of the purchaser keeping the records at their place of business, the purchaser if the transaction involves twenty-five or more pounds of copper, steel railroad track, track material or aluminum in any form, the purchaser, or his or her agent, shall file the records with report in writing all information obtained pursuant to the provisions of this section to the local detachment of the State Police and with the chief of police of the municipality or the sheriff of the county wherein he or she is transacting business within seventy-two hours of completion of the purchase. The records shall be retained by the State Police and the chief of police of the municipality or the sheriff for a period of not less than three years.
(h) A law-enforcement officer may at any time during an investigation require a purchaser to present such items for inspection, upon demand, and if the officer has reasonable belief that said items had been misappropriated, stolen or taken under false pretenses may confiscate the items, but must also show within thirty days to a court of competent jurisdiction that there exists a reasonable nexus to the item as evidence of a crime even though the perpetrator may not be ascertained.
(I) To the extent otherwise permitted by law, any investigator employed by a public utility or railroad to investigate the theft of public utility or railroad property may accompany a law-enforcement officer upon the premises of a purchaser in the execution of a valid warrant or assist law enforcement in the review of records required to be retained pursuant to this section.
(I) (j) Upon the entry of a final determination and order by a court of competent jurisdiction, scrap metal found to have been misappropriated, stolen or taken under false pretenses may be returned to the proper owner of such material.
(j) (k) Nothing in this section applies to scrap purchases by manufacturing facilities that melt, or otherwise alter the form of scrap metal and transform it into a new product or to the purchase or transportation of food and beverage containers or other nonindustrial materials having a marginal value per individual unit.
(k) (l) Nothing in this section applies to a purchaser of a vehicle on which a catalytic converter is installed, a purchaser of a catalytic converter intended for installation on a vehicle owned or leased by the purchaser, or any person who purchases, other than for purposes of resale, a catalytic converter or a motor vehicle on which a catalytic converter is installed, for personal, family, household, or business use.
(l) (m) (1) Any person who knowingly or with fraudulent intent violates any provision of this section, including the knowing failure to make a report or the knowing falsification of any required information, is guilty of a misdemeanor and, upon conviction of a first offense thereof, shall be fined not less than $1,000 nor more than $3,000 $5,000; and
(2) upon conviction Any person convicted of a second offense thereof, shall be fined not less than $2,000 $5,000 and not more than $4,000 $8,000 and, notwithstanding the provisions of section five, article twelve, chapter eleven of this code, the court in which the conviction occurred shall issue an order directing the Tax Commissioner to suspend for a period of six months any business registration certificate held by that person; and
(3) upon conviction Any person convicted of a third or subsequent offense thereof shall be fined not less than $3,000 $8,000 and not more than $5,000 $15,000 and, notwithstanding the provisions of section five, article twelve, chapter eleven of this code, the court in which the conviction occurred shall issue an order directing the Tax Commissioner to cancel any business registration certificate held by that person and state the date said cancellation shall take effect.
NOTE: The purpose of this bill is to require purchasers of scrap metal to collect and provide information relating to the sale of certain metals to law enforcement within seventy-two hours. This bill also increases the penalties for violations.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.