Senate Bill No. 101
(By Senators White, Prezioso, Hunter and Wells)
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[Introduced January 17, 2007; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact §5-1-26 of the Code of West Virginia,
1931, as amended, relating to giving the Office of the
Attorney General the power to investigate and charge, at any
time, home heating oil, gasoline or other motor fuel price
gouging.
Be it enacted by the Legislature of West Virginia:
That §5-1-26 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 1. THE GOVERNOR.
§5-1-26. Fuel emergency; power of the Governor to declare an
emergency; duties of the Governor with respect to
such emergency; assistance of other state agencies
and local law-enforcement agencies; injunctive
relief; penalties; jurisdiction.
(a) The Legislature hereby finds and declares that the
purposes of this section are to protect and promote the public
peace, safety, economy, revenue, health and welfare and interest of the people of this state. and, To do so, it is necessary to
ensure free and competitive access to gasoline and special fuel for
and to the users of gasoline or special fuel in this state
consumers during the time of any a fuel emergency as declared by
the Governor pursuant to the power and authority herein granted.
(b) As used herein or as used in any proclamation, order, rule
or regulation issued by the Governor pursuant to this section,
unless the context requires a different meaning, the terms or
phrases "actual metered gallons," "distributor," "producer,"
"gallon," "gasoline," "importer," "person," "petroleum carrier,"
"purchase," "receive," "retail dealer," "sale," "special fuel,"
"supply tank," "tank wagon" and "user" shall have the same meanings
ascribed to those terms or phrases in section two, article
fourteen, chapter eleven of this code.
(c) When the public peace, safety, economy, revenue, health,
welfare or interest of the people of this state is impaired or
imperiled because of a shortage of gasoline or special fuel, and
the Governor so finds, the Governor is hereby empowered and
authorized and it shall be his or her duty to issue a proclamation
declaring the existence of a fuel emergency in this state or any
part thereof. Upon the issuance of such proclamation by the
Governor, the Governor is hereby granted plenary power and
authority to issue, amend, suspend or revoke orders, rules and
regulations to:
(1) Allocate or distribute gasoline or special fuel to the
extent permitted by any federal law relating to the allocation or distribution of gasoline or special fuel and rules and regulations
promulgated thereunder or to the extent permitted by the
appropriate federal agency.
(2) Control, restrict and regulate the sale by distributors,
producers, importers and retail dealers of gasoline and special
fuel to users by any appropriate means including, but not limited
to, the establishment of quotas, rationing, specifications that
certain users may purchase gasoline or special fuel only on certain
days, and other conditions upon the purchase of gasoline or special
fuel to the extent permitted by any federal law relating to the
allocation or distribution of gasoline or special fuel and rules
and regulations promulgated thereunder or to the extent permitted
by the appropriate federal agency.
Any such order, rule or regulation shall will have such
statewide, regional, county or other an area of application as the
governor shall specify therein specified by the Governor. Whenever
the nature and severity of a fuel emergency varies from area to
area in the state, the Governor shall will have plenary power and
authority, within the limitations of subdivisions (1) and (2)
above, to establish different allocation or distribution formulae,
controls, restrictions and regulations for different areas of the
state at different times.
(d) Any orders, rules or regulations issued pursuant to this
section shall be valid only during the period of any such a fuel
emergency and may be issued or promulgated without complying with
the provisions of chapter twenty-nine-a of this code. Provided, That A copy of every such order, rule or regulation shall be filed
in the Office of the Secretary of State before the same it is
effective and the Secretary of State shall, within five days
thereafter, forward a certified copy thereof to the clerk of the
county court commission of each county and every such clerk shall
forthwith admit such the order, rule or regulation to record in the
miscellaneous records of the county court commission kept in the
office of each such clerk, but such filing in the Office of the
Secretary of State shall will alone constitute constructive notice
to any person affected by such the order, rule or regulation.
Provided, however, That The county court commission of each county
shall, when the first such order, rule or regulation is admitted to
record, forthwith cause to be published publish a notice to the
effect that such the order, rule or regulation is, and that all
further orders, rules and regulations or record copies thereof
shall be, available for inspection in the office of the county
clerk of such the county. This notice shall be published as a
Class I legal advertisement in compliance with the provisions of
article three, chapter fifty-nine of this code, and the publication
area for such publication shall be such the county. A copy of any
such the order, rule or regulation certified by the Secretary of
State shall be is admissible in any court in this state as proof of
the contents thereof.
(e) The Governor is hereby granted plenary power and authority
to enforce any order, rule or regulation issued pursuant to this
section and, in so doing, may secure the assistance of any state agency, the Attorney General or his or her designate, the
prosecuting attorneys of the several counties and any state
or local law-enforcement agencies or officers. Such These persons
shall assist the Governor in enforcing the provisions of any such
the order, rule or regulation so issued and promulgated by the
Governor when called upon to do so by the Governor. The Governor
may petition any circuit court of this state for the issuance of a
temporary restraining order or injunction or for any other remedy,
as may be appropriate, to compel any person to comply with any such
order, rule or regulation, and it shall be the duty of the Attorney
General and the prosecuting attorneys of the various counties to
assist and cooperate with the Governor in obtaining such relief.
No injunction bond shall will be required, and in the event of an
appeal to the West Virginia Supreme Court of Appeals, the filing of
such the appeal shall not stay enforcement of the final judgment of
the circuit court enforcing any such the order, rule or regulation.
(f) Whenever it appears to the Governor that there exists a
serious, direct and immediate threat to the health and safety of
any persons in this state because of the failure or refusal of a
producer or distributor to comply, in a timely manner, with an
order, rule or regulation issued pursuant to the provisions of
subsection (c) of this section, the Governor shall have the
authority to distribute or cause to have distributed from the
supplies of gasoline or special fuel owned, retained or possessed
by such the producer or distributor a sufficient amount of gasoline
or special fuel as may be required to alleviate any such the emergency. Such The producer or distributor shall will be
compensated by the user, consumer or retail dealer receiving such
the gasoline or special fuel at the then existing average market
value, either retail value or wholesale value, as the case may be.
Provided, That There shall be deducted from such compensation the
amount necessary to pay for the cost of distribution of such the
gasoline or special fuel. Provided, however, That The Governor
shall will be required to serve written notice of his or her intent
to exercise the powers granted by this subsection to the parties
involved. Provided further, That Upon the issuance of such the
notice, the Governor shall cause to be initiated those will
initiate legal proceedings relevant to the enforcement of any
order, rule or regulation as required by and hereinbefore set out
in subsection (e) of this section. And provided further, That such
The order, rule or regulation issued by the Governor shall not
conflict with or be contrary to any federal law relating to the
allocation or distribution of gasoline or special fuel and rules
and regulations promulgated thereunder or to any power granted the
Governor by any federal agency.
(g) Any A producer or distributor violating any a provision of
any such an order, rule or regulation of the Governor issued or
promulgated pursuant to this section, shall be is guilty of a
misdemeanor and upon conviction thereof, shall be fined not less
than one hundred dollars nor more than twenty-five thousand
dollars, or imprisoned in the county jail for not more than one
year, or both fined and imprisoned. Any A retail dealer violating any a provision of any such an order, rule or regulation of the
Governor issued or promulgated pursuant to this section, shall be
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than twenty-five dollars nor more than one hundred
dollars. Each day or part thereof that any such a violation shall
take place, or continue to take place, shall be deemed to will
constitute a distinct and separate offense and shall will be
punishable accordingly.
(h) When the Governor determines that any such a fuel
emergency no longer exists, he or she shall issue a proclamation
terminating all orders, rules or regulations issued pursuant to the
provisions of this section.
(i) The provisions of this section shall expire on July one,
one thousand nine hundred seventy-four.
(j) Notwithstanding any contrary provisions in this article,
when the public peace, safety, economy, revenue, health, welfare or
interest of the people of this state is impaired or imperiled
because of a shortage of gasoline or special fuel, the Office of
the Attorney General is hereby authorized to investigate and charge
at any time any person, contractor, business, or other entity
selling or offering to sell to any person home heating oil,
gasoline or other motor fuels for a price unreasonably greater than
ten percent above the average market value, retail or wholesale.
A person, contractor, business or other entity in violation of this
subsection (d) is subject to the penalties and remedies of this
section. The Attorney General may petition any circuit court of this state for the issuance of a temporary restraining order or
injunction or for any other remedy, as may be appropriate, to
compel a
person, contractor, business, or other entity
to comply
with this subsection (d)
. In the event the state substantially
prevails in any action against a person, contractor, business, or
other entity for violation of a provision of this article, the
state shall be awarded reasonable attorneys fees and costs incurred
in such action, and the offending party shall be liable for the
attorneys fees and costs.
NOTE: The purpose of this bill is give the Office of the
Attorney General the power to investigate and charge home heating
oil, gasoline or other motor fuel price gouging, at any time
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.