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Introduced Version Senate Bill 150 History

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Key: Green = existing Code. Red = new code to be enacted
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.
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