Senate Bill No. 96
(By Senators White and Chafin)
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[Introduced February 11, 2009; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §46A-6J-3 and §46A-6J-5 of the Code of
West Virginia, 1931, as amended, all 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 §46A-6J-3 and §46A-6J-5 of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 6J. PROTECTION OF CONSUMERS FROM PRICE GOUGING AND UNFAIR
PRICING PRACTICES DURING AND SHORTLY AFTER A STATE
OF EMERGENCY.
§46A-6J-3. Prohibited unfair pricing practices.
(a) Upon the declaration of a state of emergency, and
continuing for the existence of the state of emergency or for
thirty days following the declaration, whichever period is longer, it is unlawful for any person, contractor, business or other entity
to sell or offer to sell to any person in the area subject to the
declaration any consumer food items, essential consumer items,
goods used for emergency cleanup, emergency supplies, medical
supplies, home heating oil, building materials, housing,
transportation, freight and storage services or gasoline or other
motor fuels for a price greater than ten percent above the price
charged by that person for those goods or services on the tenth day
immediately preceding the declaration of emergency, unless the
increase in price was directly attributable to additional costs
imposed on the seller by the supplier of the goods or directly
attributable to additional costs for labor or materials used to
provide the services.
Provided, That In those situations where the
increase in price is attributable to additional costs imposed by
the seller's supplier or additional costs of providing the good or
service during the state of emergency, the price is no greater than
ten percent above the total of the cost to the seller plus the
markup customarily applied by the seller for that good or service
in the usual course of business on the tenth day immediately
preceding the declaration.
(b) Upon the declaration of a state of emergency, and for a
period of one hundred eighty days following that declaration, it is
unlawful for any contractor to sell or offer to sell any repair or
reconstruction services or any services used in emergency cleanup in the area subject to the declaration for a price greater than ten
percent above the price charged by that person for those services
on the tenth day immediately preceding the declaration, unless the
increase in price was directly attributable to additional costs
imposed on it by the supplier of the goods or directly attributable
to additional costs for labor or materials used to provide the
services.
Provided, That In those situations where the increase in
price is attributable to the additional costs imposed by the
contractor's supplier or additional costs of providing the service,
the price is no greater than ten percent above the total of the
cost to the contractor plus the markup customarily applied by the
contractor for that good or service in the usual course of business
on the tenth day immediately preceding
to the declaration of the
state of emergency.
(c) Any business offering an item for sale at a reduced price
ten days immediately prior to the declaration of the state of
emergency may use the price
at which it usually sells the item to
calculate the price pursuant to subsection (a) or (b) of this
section.
(d) The price restrictions imposed by this article may be
limited or terminated by proclamation of the Governor.
§46A-6J-5. Penalties, remedies and enforcement.
(a) A violation of this article is an unfair or deceptive act
or practice within the meaning of section one hundred two, article six of this chapter and is subject to the enforcement provisions
and remedies provided by this chapter.
(b) Any person violating the provisions of this article is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than $1,000, or confined
the county or regional in
jail not more than one year, or both.
(c) The remedies and penalties provided by this article are
cumulative, and do not prohibit any other remedy or punishment
available under the laws of this state.
(d) Notwithstanding any contrary provisions in this article,
the Office of the Attorney General of this state shall 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 prevailing market price. A person,
contractor, business or other entity in violation of this
subsection (d) is subject to the penalties and remedies of this
section. The Office of 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 to 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.