Senate Bill No. 150
(By Senator White)
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[Introduced January 13, 2010; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §5-1-26 of the Code of West Virginia,
1931, as amended, relating to providing the Attorney General
with the authority to investigate and charge persons engaged
in 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 as in section two, article
fourteen, chapter eleven.
(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
and 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
or 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
or rule
or regulation as required by
and hereinbefore set out in
subsection (e) of this section.
And provided further, That such The order
or 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 provision of
any such an order
or 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 $100 nor more than $25,000, or
imprisoned confined in
the
county jail for not more than one year, or both fined and
imprisoned confined.
Any A retail dealer violating
any a provision
of
any such an order
or 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 $25 nor more than $100. 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
and rules
or regulations issued pursuant to
the provisions of this section.
(i) The provisions of this section shall expire on July 1, 1974.
(i) 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 may 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 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. In the event the
state substantially prevails in any action against a person,
contractor, business or other entity for violation 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 to give the Attorney General
the power to investigate and charge providers of 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.