(A) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
CONCEAL. To hide, hold or carry merchandise so that, although there may be some notice of its presence, it is not visible through ordinary observation.
MERCHANT. An owner or operator of any mercantile establishment and includes the merchant's employees, servants, security agents or other agents.
MERCANTILE ESTABLISHMENT. 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.
MERCHANDISE. 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.
SHOPLIFTING. A person commits the offense of shoplifting:
(1) If, with the 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;
(b) Removes or causes the removal of merchandise from the mercantile establishment or beyond the last station for payment;
(c) Alters, transfers or removes any price marking affixed to the merchandise;
(d) Transfers the merchandise from one container to another;
(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.
(2) 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.
VALUE OF THE MERCHANDISE. 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 the definition of “shoplifting” hereof, the difference between the merchant's stated price of the merchandise and the altered price.
(B) 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 30 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.
(C) Evidence.
(1) Evidence of stated price or ownership or merchandise may include, but is not limited to:
(a) The actual merchandise alleged to have been shoplifted;
(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.
(D) Civil liability.
(1) 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;
(b) If such merchandise is not recoverable or is damaged, for actual damages, including the value of the merchandise involved in the shoplifting;
(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 $50 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 division (E) 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.
(E) 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 $500, the person is guilty of a misdemeanor and shall be fined not more than $250.
(b) When the value of the merchandise exceeds $500, the person is guilty of a misdemeanor and shall be fined not less than $100 nor more than $500, and such fine shall not be suspended, or the person shall be confined in jail not more than 60 days, or both.
(2) Second offense conviction. Upon a second shoplifting conviction:
(a) When the value of the merchandise is less than or equal to $500, the person is guilty of a misdemeanor and shall be fined not less than $100 nor more than $500, and such fine shall not be suspended, or the person shall be confined in jail not more than six months, or both.
(b) When the value of the merchandise exceeds $500, the person is guilty of a misdemeanor and shall be fined not less than $500 and shall be confined in jail for not less than six months nor more than one year.
(3) Third offense conviction. Upon a third or subsequent shoplifting conviction, regardless of the value of the merchandise, the person is guilty of a felony and shall be punished under the provisions of W. V. Code § 61-3A-3.
(4) 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 $50, 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.
(5) 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.
('71 Code, § 541.08)
Statutory reference:
For similar provisions, see W. V. Code §§ 61-3A-1, 61-3A-2, 61-3A-3, 61-3A-4, 61-3A-5 and 61-3A-6