(a) General Definitions.
(1) “Card-not-present credit or debit transaction” means a credit or debit sale of merchandise by telephone, mail order, internet or other means that does not require the cardholder’s signature or physical presentation of the credit or debit card to the merchant.
(2) "Conceal" means to hide, hold or carry merchandise so that, although there may be some notice of its presence, it is not visible through ordinary observation.
(3) "Merchant" means an owner or operator of any mercantile establishment, and includes the merchant's employees, servants, security agents or other agents.
(4) "Mercantile establishment" means any place where merchandise is displayed, held or offered for sale, either at retail or wholesale. "Mercantile establishment" does not include adjoining parking lots or adjoining areas of common use with other establishments.
(5) "Merchandise" means any goods, foodstuffs, wares or personal property or any part or portion thereof of any type or description displayed, held or offered for sale, or a shopping cart.
(6) "Value of the merchandise" means the merchant's stated price of the merchandise, or in the event of altering, transferring or removing a price marking or causing a cash register or other sales device to reflect less than the retail value of the merchandise, as defined in subsection (b) hereof, the difference between the merchant's stated price of the merchandise and the altered price.
(WVaC 61-3A-6)
(b) Shoplifting Defined.
(1) A person commits the offense of shoplifting if, with intent to appropriate merchandise without paying the merchant's stated price for the merchandise, such person, alone or in concert with another person, knowingly:
A. Conceals the merchandise upon his or her person or in another manner; or
B. Removes or causes the removal of merchandise from the mercantile establishment or beyond the last station for payment; or
C. Alters, transfers or removes any price marking affixed to the merchandise; or
D. Transfers the merchandise from one container to another; or
E. Causes cash register or other sales recording device to reflect less than the merchant's stated price for the merchandise; or
F. Removes a shopping cart from the premises of the mercantile establishment.
G. Repudiates a card-not-present credit or debit transaction after having taken delivery of merchandise ordered from the merchant and does not return the merchandise or attempt to make other arrangements with the vendor.
(2) A person also commits the offense of shoplifting if such person, alone or in concert with another person, knowingly and with intent obtains an exchange or refund or attempts to obtain an exchange or refund for merchandise which has not been purchased from the mercantile establishment.
(WVaC 61-3A-1)
(c) Breach of Peace; Detention. An act of shoplifting as defined herein, is hereby declared to constitute a breach of peace and any owner of merchandise, his agent or employee, or any law enforcement officer who has reasonable ground to believe that a person has committed shoplifting, may detain such person in a reasonable manner and for a reasonable length of time not to exceed thirty minutes, for the purpose of investigating whether or not such person has committed or attempted to commit shoplifting. Such reasonable detention shall not constitute an arrest nor shall it render the owner of merchandise, his agent or employee, liable to the person detained.
(WVaC 61-3A-4)
(d) Evidence.
(1) Evidence of stated price or ownership of merchandise may include, but is not limited to:
A. The actual merchandise alleged to have been shoplifted; or
B. The unaltered content of the price tag or marking from such merchandise; or
C. Properly identified photographs of such merchandise.
(2) Any merchant may testify at a trial as to the stated price or ownership of merchandise, as well as to other matters pertaining to the case.
(WvaC 61-3A-2)
(e) Civil Liability.
(1) General rule. Any person who commits any of the acts described in this section shall be civilly liable:
A. To restore the merchandise to the mercantile establishment; and
B. If such merchandise is not recoverable or is damaged, for actual damages, including the value of the merchandise involved in the shoplifting; and
C. For other actual damages arising from the incident, not including the loss of time or loss of wages incurred by the mercantile establishment or any merchant in connection with the apprehension and processing of the suspect; and
D. In all cases, for a penalty to be paid to the mercantile establishment in the amount of fifty dollars ($50.00) or double the value of the merchandise, whichever is higher.
(2) Costs and attorneys' fees. A merchant who is a prevailing party under this section is entitled to costs.
(3) Effect of conviction. A conviction for the offense of theft by shoplifting is not a prerequisite to the maintenance of a civil action authorized by this section. However, a merchant who has recovered the penalty prescribed by subsection (f) hereof is not entitled to recover the penalty imposed by this section.
(4) Right to demand payment. The fact that a mercantile establishment may bring an action against an individual as provided in this section does not limit the right of such establishment to demand, orally or in writing, that a person who is liable for damages or a penalty under this section remit such damages or penalty prior to the commencement of any legal action. (WVaC 61-3A-5)
(f) Penalty. A person convicted of shoplifting shall be punished as follows:
(1) First offense conviction. Upon a first shoplifting conviction:
A. When the value of the merchandise is less than or equal to five hundred dollars ($500.00) the defendant shall be fined not more than two hundred fifty dollars ($250.00).
B. When the value of the merchandise exceeds five hundred dollars ($500.00), the defendant shall be fined not less than one hundred dollars ($100.00) nor more than five hundred dollars ($500.00) and such fine shall not be suspended.
(2) Second offense conviction. Upon a second shoplifting conviction:
A. When the value of the merchandise is less than or equal to five hundred dollars ($500.00), the defendant shall be fined not less than one hundred dollars ($100.00), nor more than five hundred dollars ($500.00) and such fine shall not be suspended.
B. When the value of the merchandise exceeds five hundred dollars ($500.00), the defendant shall be fined not less than five hundred dollars ($500.00).
(3) Mandatory penalty. In addition to the fines and imprisonment imposed by this section, in all cases of conviction for the offense of shoplifting, the court shall order the defendant to pay a penalty to the mercantile establishment involved in the amount of fifty dollars ($50.00), or double the value of the merchandise involved, whichever is higher. The mercantile establishment shall be entitled to collect such mandatory penalty as in the case of a civil judgment. This penalty shall be in addition to the mercantile establishment's rights to recover the stolen merchandise.
(4) Prior convictions. In determining the number of prior shoplifting convictions for purposes of imposing punishment under this section, the court shall disregard all such convictions occurring more than seven years prior to the shoplifting offense in question.
(WVaC 61-3A-3)
(5) Deferral of further proceedings for certain first offenses.
A. Whenever any person who has not previously been convicted of any offense under this article or under any statute of the United States or of any state relating to the offense of shoplifting the Court, without entering a judgment of guilty and with the consent of the accused may defer further proceedings and may require the accused to participate in a program through the Morgantown Area Youth Services Project and comply with all terms and conditions imposed by the Morgantown Area Youth Services Project. Should the accused fail to complete the requirements as imposed by the Morgantown Area Youth Services Project, the accused waives the appropriate statute of limitations and the accused’s right to a speedy trial under any applicable federal or state constitutional provisions, statutes or rules of Court during the period of enrollment in the program through the Morgantown Area Youth Services Project and the Court may order that the deferral be terminated and thereupon proceed as if the deferral had not been permitted.
B. When the accused shall have completed satisfactorily all of the terms and conditions imposed by the Morgantown Area Youth Services Project the accused may move the Court for an order dismissing the charges and the Court shall dismiss the charges.
C. In determining whether an accused has not been previously convicted of the offense of shoplifting for the purposes of a deferral of proceedings, the provisions of Section 533.01
(f)(4) shall not apply. (Passed 1-24-12.)