H. B. 4361
(By Delegate Louisos)
[Introduced February 2, 2006; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §47-11C-3 of the Code of West Virginia,
1931, as amended; and to amend and reenact §60-9-1, §60-9-2
and §60-9-4
of said code, all relating to providing that the
sales price of gasoline is required to at least be the daily
"Rack" price that exists on the date it is sold plus seven
percent and an allowance for the cost of transportation;
providing inspectors from the Division of Labor check bills of
lading and take other action considered appropriate to insure
compliance; providing a criminal penalty; prohibiting
wholesalers of cigarettes from offering discounts to retailers
or consumers; and providing a criminal penalty.
Be it enacted by the Legislature of West Virginia:
That §47-11C-3
of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §60-9-1, §60-9-2 and §60-9-4
of
said code be amended and reenacted, all to read as follows:
CHAPTER 47. REGULATION OF TRADE.
ARTICLE 11C. WEST VIRGINIA PETROLEUM PRODUCTS FRANCHISE ACT.
§47-11C-3. Franchise agreement.
Every franchise agreement between a producer and a dealer
shall be subject to the following provisions whether or not they
are expressly set forth in the agreement:
(1) The term of the initial agreement between the producer and
the dealer relating to specific premises
shall may not be less than
one year; the term of the second agreement between the producer and
the dealer, relating to the same premises, shall also be for not
less than one year; and the term of all subsequent agreements
between the producer and the dealer, relating to the same premises,
shall be of not less than two years. This subdivision
shall may
not be construed to require a term of greater duration than the
remainder of the term to which the producer is entitled under its
lease without regard to any renewal rights which the producer may
have;
(2) No producer shall require a dealer to keep his
or her
station open for business more than seventy-two hours per week;
(3) The dealer alone shall determine his
or her retail sale
price of the products listed in the franchise agreement:
Provided,
That the sale price of gasoline may not be less than the daily
"rack" price that exists on the date of sale plus seven percent and
the cost of transportation. The Division of Labor shall provide inspectors to check bills of lading and to take any additional
action considered appropriate to insure compliance with this
requirement. Any person who violates this provision is guilty of
a misdemeanor and, upon conviction thereof, shall be fined one
hundred thousand dollars;
(4) In the absence of any express agreement, the dealer shall
not be required to participate financially in the use of any
premium, coupon, giveaway or rebate in the operation of his
or her
retail outlet:
Provided, That the producer may require the dealer
to distribute to customers premiums, coupons or giveaways which are
furnished to the dealer at the expense of the producer;
(5) In the event of any termination, cancellation or failure
to renew, whether by mutual agreement or otherwise, a producer
shall, within thirty days, tender to the dealer, for the products
he
or she sold to the dealer which the dealer has been unable to
sell, except to the extent that such may be damaged or not
resalable, the full price originally paid by the dealer for the
products:
Provided, That the producer shall have the right to
apply the proceeds against any existing indebtedness owed to him
or
her by the dealer and that
such the repurchase obligation is
conditioned upon there being no other claims or liens against
such
the products by or on behalf of other creditors of the dealer.
Such The repurchase shall not constitute a waiver of the dealer's
other rights and remedies under this article. If the producer does not make such tender within thirty days, the dealer may sell the
products for a price which is not less than the full price
originally paid by the dealer for
such the products, and shall have
a cause of action against the producer for the balance;
(6) The right of either party to a trial by jury or to the
interposition of counterclaims or cross claims shall not be waived;
(7) Liability imposed on, and rights granted to, any person by
this article shall not be waived;
(8) The dealer shall not be required to forego his
or her
right of free association with other dealers for any lawful
purpose;
(9) No transfer or assignment of a franchise by a dealer to a
qualified transferee or assignee shall be unreasonably disapproved
by the producer;
(10) No producer shall require any dealer to sell exclusively
any products, other than petroleum products, that
such the producer
offers for sale.
CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.
ARTICLE 9. CIGARETTES PRODUCED FOR EXPORT; IMPORTED CIGARETTES.
§60-9-1. Definitions.
(a) As used in this article:
(1) "Package" means a pack, carton or container of any kind in
which cigarettes are offered for sale, sold or otherwise
distributed, or intended for distribution to consumers.
(2) "Importer" means "importer" as that term is defined in 26
U.S.C. 5702(1).
(3) "Person" means and includes any individual, firm,
association, company, partnership, corporation, joint-stock
company, club, agency, syndicate, municipal corporation or other
political subdivision of this state, trust, receiver, trustee,
fiduciary or conservator, and when used in connection with any
penalties imposed by this article, means and includes officers,
directors, trustees or members of any firm, copartnership,
association, corporation, trust or any other unit acting as a
group.
(4) "Retailer" means and includes every person in this state,
other than a wholesaler or subjobber, as defined in section two,
article seventeen, chapter eleven of this code, engaged in the
selling of cigarettes at retail to a consumer or to any person for
any purpose other than resale.
(5) "Wholesaler" means a merchant middle person who sells
cigarettes chiefly to retailers or other merchants for resale to
consumers.
§60-9-2. Cigarettes produced for export -- Prohibitions.
(a) It is unlawful for any person:
(1) To sell or distribute to consumers in this state, to
acquire, hold, own, possess or transport, for sale or distribution
in this state, or to import, or cause to be imported, into this state for sale or distribution in this state:
(A) Any cigarettes the package of which:
(I) Bears any statement, label, stamp, sticker, or notice
indicating that the manufacturer did not intend the cigarettes to
be sold, distributed, or used in the United States, including, but
not limited to, labels stating "for export only," "U.S.
tax-exempt," "for use outside U.S." or similar wording; or
(ii) Does not comply with:
(I) All requirements imposed by or pursuant to federal law
regarding warnings and other information on packages of cigarettes
manufactured, packaged or imported for sale, distribution, or use
in the United States, including, but not limited to, the precise
warning labels specified in the Federal Cigarette Labeling and
Advertising Act, 15 U.S.C. 1333; and
(II) All federal trademark and copyright laws;
(B) Any cigarettes imported into the United States in
violation of 26 U.S.C. 5754 or any other federal law or the
implementing federal regulations;
(C) Who, as a wholesaler, offers discounts for the purchase of
cigarettes to a retailer or consumer, whether the offers include
discount coupons or otherwise. Any person who violates this
subdivision is guilty of a misdemeanor and, upon conviction
thereof, shall be fined one hundred thousand dollars;
(C) (D) Any cigarettes that the person otherwise knows or has reason to know the manufacturer did not intend to be sold,
distributed or used in the United States; or
(D) (E) Any cigarettes for which there has not been submitted
to the Secretary of the United States Department of Health and
Human Services, the list or lists of the ingredients added to
tobacco in the manufacture of
such the cigarettes required by the
Federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1355a;
(2) To alter the package of any cigarettes, prior to sale or
distribution to the ultimate consumer, so as to remove, conceal or
obscure:
(A) Any statement, label, stamp, sticker or notice described
in subparagraph (I), paragraph (A), subdivision (1), subsection (a)
of this section; or
(B) Any health warning that is not specified in, or does not
conform with the requirements of, the Federal Cigarette Labeling
and Advertising Act, 15 U.S.C. 1333; or
(3) To affix any stamp required pursuant to article seventeen,
chapter eleven of this code to the package of any cigarettes
described in subdivision (1), subsection (a) of this section or
altered in violation of subdivision (2), subsection (a) of this
section.
§60-9-4. Criminal penalties.
Any person that commits any of the acts prohibited by section
two of this article
in which no criminal penalty has been expressly prescribed, and either knowing or having reason to know he or she
is doing so, or that fails to comply with any of the requirements
of section three of this article, is guilty of a felony and, upon
conviction thereof, shall be fined not more than five thousand
dollars, or imprisoned in a state correctional facility not more
than five years, or both fined and imprisoned.
NOTE: The purpose of this bill is to provide that the sale
price of gasoline cannot be less than the actual cost to the dealer
plus seven percent of the daily "rack" price that exists on the
date of sale plus seven percent and an allowance for the cost of
transporting it. The bill also prohibits wholesalers of cigarettes
from offering discounts to retailers or consumers while providing
a criminal penalty for violators.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.