ENROLLED
H. B. 202
(By Mr. Speaker, Mr. Thompson, and Delegate Armstead)
[By Request of the Executive]
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[Passed August 21, 2007; in effect ninety days from passage.]
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AN ACT to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §11-12-5a; and to
amend and reenact §61-3-49 of said code, all relating to the
receipt and transfer of any form of copper, aluminum, brass,
lead or other nonferrous metal, stainless steel kegs or steel
railroad track and track material; providing definitions;
providing restrictions on applying for and grounds for
cancelling business registration certificates; imposing
additional reporting and record retention requirements for
certain purchasers of such metals; requiring the State Police
to develop a standard form for reporting purchase information;
providing for the inspection of records by law enforcement and
investigators employed by public utilities and railroads;
permitting investigators employed by public utilities and
railroads to assist law enforcement investigations; providing
for the return of such metals under certain conditions; and
increasing criminal penalties for violations.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §11-12-5a; and that
§61-3-49 of said code be amended and reenacted, all to read as
follows:
CHAPTER 11. TAXATION.
ARTICLE 12. BUSINESS REGISTRATION TAX.
§11-12-5a. Prohibition on certificate being obtained by person
connected to illegal activities involving scrap
metal.
(a) For the purposes of this section, the term "scrap metal"
shall have the same meaning ascribed to it in section forty-nine,
article three, chapter sixty-one of this code.
(b)No person that has had a previous business registration
certificate cancelled pursuant to subsection (j), section forty-
nine, article three, chapter sixty-one of this code may apply for
a subsequent business registration certificate that would permit
them to own, conduct, or operate any business involving the
purchase of scrap metal or the operation or any salvage yard or
recycling facility
.
(c)No person may apply for a business registration
certificate that would permit them to own, conduct, or operate any
business involving the purchase of scrap metal or the operation or
any salvage yard or recycling facility in which a person convicted
in the previous two years of a third or subsequent offense under
section forty-nine, article three, chapter sixty-one of this code will hold a financial interest, be employed, or otherwise be
involved in the day-to-day operations of said business.
(d) Upon applying for a business registration certificate,
pursuant to section four of this article, that would permit the
applicant to own, conduct, or operate any business involving the
purchase of scrap metal or the operation of any salvage yard or
recycling facility, the tax commissioner shall require as part of
the application a statement by the applicant that to the best of
his or her knowledge and belief no person that has been convicted
in the previous two years of a third or subsequent offense under
section forty-nine, article three, chapter sixty-one of this code
will hold a financial interest, be employed, or otherwise be
involved in the day-to-day operations of said business.
CHAPTER 61. CRIMES AND PUNISHMENT.
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-49. Purchase of scrap metal by scrap metal purchasing
businesses, salvage yards, or recycling facilities;
certificates, records and reports of such purchases;
criminal penalties.
(a) For the purposes of this section, the following terms have
the following meanings.
(1)"Business registration certificate" has the same meaning
ascribed to it in section two, article twelve, chapter eleven of
this code.
(2) "Purchaser" means any person in the business of purchasing
scrap metal, any salvage yard owner or operator, or any public or commercial recycling facility owner or operator, or any agent or
employee thereof, who purchases any form of scrap metal.
(3) "Scrap metal" means any form of copper, aluminum, brass,
lead or other nonferrous metal of any kind, stainless steel kegs or
steel railroad track and track material.
(b) Any purchaser of scrap metal shall make a record of such
purchase that shall contain the following information for each
transaction:
(1) The full name, permanent home and business addresses, and
telephone number, if available, of the seller;
(2) A description and the motor vehicle license number of any
vehicle used to transport the purchased scrap metal to the place of
purchase;
(3) The time and date of the transaction;
(4) A complete description of the kind, character and weight
of the scrap metal
purchased; and
(5) A statement of whether the scrap metal was purchased,
taken as collateral for a loan, or taken on consignment.
(c) A purchaser also shall require and retain from the seller
of the scrap metal the following:
(1) A signed certificate of ownership of the scrap metal being
sold or a signed authorization from the owner of the scrap metal to
sell said scrap metal; and
(2) A photocopy of a valid driver's license or identification
card issued by the West Virginia Division of Motor Vehicles of the
person delivering the scrap metal, or in lieu thereof, any other valid photo identification of the seller issued by any other state
or the federal government: Provided, That, if the purchaser has a
copy of the seller's valid photo identification on file, the
purchaser
may reference the identification that is on file, without
making a separate photocopy for each transaction.
(d) It shall be unlawful for any purchaser to purchase any
scrap metal without obtaining and recording the information
required under subsections (b) and (c) of this section. The
provisions of this subsection do not apply to purchases made at
wholesale under contract or as a result of a bidding process:
Provided, That the
purchaser retains and makes available for review
consistent with subsection (f)
of this section
the contract,
bill
of sale, or similar documentation of the purchase made at wholesale
under contract or as a result of a bidding process
: Provided,
however, That the purchaser may redact any pricing or other
commercially sensitive information from said contract, bill of
sale, or similar documentation
before making it available for
inspection.
(e) Within thirty days of the effective date of
the amendment and reenactment of this section during the second
extraordinary session of the Legislature in two thousand seven, the
West Virginia State Police shall make available a standard form
purchasers of scrap metal may use to record all the information
required under subsections (b) and (c) of this section.
(f) Using the form authorized under subsection (e) above, or
his or her own form, a purchaser of scrap metal shall retain the
records required by this section at his or her place of business for not less than three years after the date of the purchase. Upon
completion of a purchase, the records required to be retained at a
purchaser's place of business shall be available for inspection by
any law-enforcement officer or, upon written request and during the
purchaser's regular business hours, by any investigator employed by
a public utility or railroad to investigate the theft of public
utility or railroad property: Provided, That in lieu of the
purchaser keeping the records at their place of business, the
purchaser shall file the records with the local detachment of the
State Police and with the chief of police of the municipality or
the sheriff of the county wherein he or she is transacting business
within seventy-two hours of completion of the purchase. The
records shall be retained by the State Police and the chief of
police of the municipality or the sheriff for a period of not less
than three years.
(g) To the extent otherwise permitted by law, any investigator
employed by a public utility or railroad to investigate the theft
of public utility or railroad property may accompany a law
enforcement officer upon the premises of a purchaser in the
execution of valid warrant or assist law enforcement in the review
of records required to be retained pursuant to this section.
(h) Upon the entry of a final determination and order by a
court of competent jurisdiction, scrap metal found to have been
misappropriated, stolen or taken under false pretenses may be
returned to the proper owner of such material.
(i) Nothing in this section applies to scrap purchases by manufacturing facilities that melt, or otherwise alter the form of
scrap metal and transform it into a new product or to the purchase
or transportation of food and beverage containers or other
nonindustrial materials having a marginal value per individual
unit.
(j) Any person who knowingly or with fraudulent intent
violates any provision of this section, including the knowing
failure to make a report or the knowing falsification of any
required information, is guilty of a misdemeanor and, upon
conviction of a first offense thereof, shall be fined not less than
one thousand dollars nor more than three thousand dollars; upon
conviction of a second offense thereof, shall be fined not less
than two thousand dollars and not more than four thousand dollars
and, notwithstanding the provisions of section five, article
twelve, chapter eleven of this code, the court in which the
conviction occurred shall issue an order directing the tax
commissioner to suspend for a period of six months any business
registration certificate held by that person; and upon conviction
of a third or subsequent offense thereof shall be fined not less
than three thousand dollars and not more than five thousand dollars
and, notwithstanding the provisions of section five, article
twelve, chapter eleven of this code, the court in which the
conviction occurred shall issue an order directing the tax
commissioner to
cancel
any business registration certificate
held
by that person and state the date said cancellation shall take
effect.
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