H. B. 202
(By Mr. Speaker, Mr. Thompson, and Delegate Armstead)
[By Request of the Executive]
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[Introduced August 19, 2007; referred to the Committee on the
Judiciary.]
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A BILL 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.
(3) "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
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 copper, aluminum, brass, lead or
other nonferrous metal of any kind, or steel railroad track and
track material purchaser of scrap metal shall make a record of such
purchase
that shall contain the following information for each
transaction: Such record shall accurately list the name, permanent
and business addresses and telephone number of the seller, the
motor vehicle license number of any vehicle used to transport the
nonferrous metal or steel to the place of purchase, the time and
date of the transaction and a complete description of the kind and
character of the nonferrous metal or steel railroad track and track
material purchased. The person purchasing the nonferrous metal or
steel railroad track and track material shall also require from the
seller, and retain in the record, a signed certificate of ownership
of the nonferrous metal or steel railroad track and track material
being sold or authorization from the owner to sell.
(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 of the aforementioned persons
purchaser to purchase any nonferrous metal or steel railroad track
and track material scrap metal without obtaining the certificate of
ownership, or authorization from the owner to sell, on the part of
the seller 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 further, 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.
Such record and certificate shall be
available for inspection by any law-enforcement officer and must be
maintained by the purchaser for not less than one year after the
date of the purchase.
(b) Should the transaction involve one hundred or more pounds
of copper, steel railroad track, track material or aluminum in any
form, the purchaser of the copper, steel railroad track, track
material or aluminum, or his or her agent, shall report in writing
to the chief of police of the municipality or the sheriff of the
county wherein he or she is transacting business and to the local
detachment of the Division of Public Safety all the information
obtained. The report must be filed within seventy-two hours after
the transaction. The provisions of this subsection do not apply to
purchases made at wholesale under contract or as a result of a
bidding process.
(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, a
purchaser of scrap metal shall file the records required pursuant
to subsections (b) and (c) of this section with the chief of police
of the municipality or the sheriff of the county wherein he or she
is transacting business and with the local detachment of the State
Police within seventy-two hours after the transaction: Provided,
That, in lieu of filing with law enforcement, a purchaser may
retain such records at his or her place of business
, using the
State Police form or his or her own form, for not less than three
years after the date of the purchase: Provided further, That, upon
completion of a transaction, records retained at a purchaser's
place of business pursuant to the preceding proviso 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.
(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.
(c)(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.
(d)(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
five hundred one thousand dollars nor more than two 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 circuit
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 circuit 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.
NOTE: The purpose of this bill is to enhance the record-keeping and
reporting requirements for persons involved in 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 and enhancing criminal and administrative penalties
for violations of said requirements.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added. §61-3-49 §11-12-5a is new, therefore, strike-throughs
and underscoring have been omitted.
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