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House Bill 4374 History
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Key: Green = existing Code. Red = new code to be enacted
ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 4374
(By Delegates Kuhn, Butcher and Martin)
[Passed March 13, 2004; in effect ninety days from passage.]
AN ACT
to amend and reenact §21-9-4, §21-9-11 and §21-9-12 of the
code of West Virginia, 1931, as amended; and to amend said
code by adding thereto a new section, designated
§21-9-12
a,
all relating to manufactured housing construction and safety
standards; removing out-dated language; providing for
inspections and the payment of the costs of inspection;
authorizing the issuance of cease and desist orders; and
establishing civil and criminal penalties.
Be it enacted by the Legislature of West Virginia:
That §21-9-4, §21-9-11 and §21-9-12 of the code of West
Virginia, 1931, as amended, be amended and reenacted; and that said
code be amended by adding thereto a new section, designated §21-9-
12
a, all to read as follows:
ARTICLE 9. MANUFACTURED HOUSING CONSTRUCTION AND SAFETY STANDARDS.
§21-9-4. General powers and duties; persons adversely affected entitled to hearing.
(a) The board shall have the power to:
(1) Regulate its own procedure and practice;
(2) Propose
rules for legislative approval in accordance with
the provisions of article three, chapter twenty-nine-a of this
code,
to implement the provisions of this article and the federal
standards;
(3) Advise the commissioner in all matters within his
jurisdiction under this article;
(4) Prepare and submit to HUD a state plan application seeking
the designation of the board as a state administrative agency for
the purpose of administering and enforcing the federal standards
and take all other action necessary to enable the board to serve as
a state administrative agency;
(5) Study and report to the governor and the Legislature on
matters pertinent to the manufacture, distribution and sale of
manufactured housing in this state and recommend changes in the law
determined by the board to be necessary to promote consumer safety
and protect purchasers of manufactured housing;
(6) Conduct hearings and presentations of views consistent
with its rules and the federal standards;
(7) Approve or disapprove applications for licenses to
manufacturers, dealers, distributors and contractors in accordance
with section nine of this article, and revoke or suspend licenses in accordance with that section, and set the amounts of license
fees and bonds or other forms of assurance in accordance with
sections nine and ten of this article;
(8) Delegate to and authorize the commissioner to exercise the
powers and duties of the board that the board may determine,
including without limitation, the authority to approve, disapprove,
revoke or suspend licenses in accordance with section nine of this
article.
(b) Any person adversely affected by a decision of the board
or the commissioner shall be afforded an opportunity for hearing
before the board in accordance with section one, article five,
chapter twenty-nine-a of this code.
§21-9-11. State may act as primary inspection agency.
(a) This state, acting through the board, is hereby granted
all powers and authority necessary to act as a primary inspection
agency and to perform the functions of a "design approval primary
inspection agency" and a "production inspection primary inspection
agency", as the terms are defined in the federal standards. The
board may apply to the secretary of HUD on behalf of this state to
act as the primary inspection agency, including application for
approval to act as the exclusive production inspection primary
inspection agency in this state. The board may propose rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code necessary to enable the board to act on behalf of this state as the primary inspection
agency.
(b) The board may provide inspections to private home sites to
aid in the resolution of a consumer complaint filed with the board
by the home owner. The board may provide, free of charge, one
initial and one follow-up inspection related to each consumer
complaint: Provided, That the board may charge a licensee an
inspection fee for any follow-up inspections which are necessitated
by a licensee's failure to comply with an order of the board. The
inspection fee may not exceed seventy-five dollars per hour, plus
expenses.
§21-9-12. Violation of article; penalties; injunction
.
(a) Any person who violates any of the following provisions
relating to manufactured homes or any legislative rule proposed by
the board pursuant to the provisions of this article, is liable to
the state for a penalty, as determined by the board, not to exceed
one thousand dollars for each violation. Each violation
constitutes a separate violation with respect to each manufactured
home, except that the maximum penalty may not exceed one million
dollars for any related series of violations occurring within one
year from the date of the first violation. No person may:
(1) Manufacture for sale, lease, sell, offer for sale or
lease, or introduce or deliver, or import into this state any
manufactured home which is manufactured on or after the effective date of any applicable standard established by a rule promulgated
by the board pursuant to the provisions of this article, or any
applicable federal standard, which does not comply with that
standard.
(2) Fail or refuse to permit access to or copying of records,
or fail to make reports or provide information or fail or refuse to
permit entry or inspection as required by the provisions of this
article.
(3) Fail to furnish notification of any defect as required by
the provisions of 42 U.S.C. §5414.
(4) Fail to issue a certification required by the provisions
of 42 U.S.C. §5415 or issue a certification to the effect that a
manufactured home conforms to all applicable federal standards,
when the person knows or in the exercise of due care would have
reason to know that the certification is false or misleading in a
material respect.
(5) Fail to establish and maintain records, make reports, and
provide information as the board may reasonably require to enable
the board to determine whether there is compliance with the federal
standards; or fail to permit, upon request of a person duly
authorized by the board, the inspection of appropriate books,
papers, records and documents relative to determining whether a
manufacturer, dealer, distributor or contractor has acted or is
acting in compliance with the provisions of this article or applicable federal standards.
(6) Issue a certification pursuant to the provisions of 42
U.S.C. §5403(a), when the person knows or in the exercise of due
care would have reason to know that the certification is false or
misleading in a material respect.
(b) Subdivision (1), subsection (a) of this section does not
apply to:
(1) The sale or the offer for sale of any manufactured home
after the first purchase of it in good faith for purposes other
than resale;
(2) Any person who establishes that he did not have reason to
know in the exercise of due care that the manufactured home is not
in conformity with applicable federal standards; or
(3) Any person who, prior to the first purchase, holds a
certificate by the manufacturer or importer of the manufactured
home to the effect that the manufactured home conforms to all
applicable federal standards, unless that person knows that the
manufactured home does not conform to those standards.
(c) Any manufacturer, dealer, distributor or contractor who
engages in business in this state without furnishing a bond or
other form of assurance as required by the provisions of this
article is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not more than fifty dollars for each day the
violation continues.
(d) The board may institute proceedings in the circuit court
of the county in which the alleged violation occurred or are
occurring to enjoin any violation of the provisions of this
article.
(e) Any person or officer, director, partner or agent of a
corporation, partnership or other entity who willfully or knowingly
violates any of the provisions listed in subsection (a) of this
section, in any manner which threatens the health or safety of any
purchaser, is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not more than one thousand dollars or confined in
the county or regional jail for a period of not more than one year,
or both fined and imprisoned.
(f) Nothing in this article applies to any bank or financial
institution engaged in the disposal of foreclosed or repossessed
manufactured homes.
§21-9-12a. Violation of cease and desist order; penalties.
(a) Upon a determination that a person is engaging in business
without a valid license as required under the provisions of section
nine of this article, the board or commissioner may immediately
issue a cease and desist order requiring the person to cease all
operations within this state. After a hearing, the board may
impose a penalty of not less than two hundred dollars nor more than
one thousand dollars upon any person found to have been engaging in
business in this state without a valid license as required under the provisions of section nine of this article
.
(b) The board may institute proceedings in the circuit court
of the county where the violation occurred, against any person
violating a cease and desist order issued under the provisions of
subsection (a) of this section.
(c) Any person continuing to engage in business in this state
without a valid license as required under the provisions of section
nine of this article
,
after the issuance of a cease and desist
order under the provisions of subsection (a) of this section,
is
guilty of a misdemeanor and, upon conviction thereof, is subject to
the following penalties:
(1) For a first offense, a fine of not less than two hundred
dollars nor more than one thousand dollars;
(2) For a second offense, a fine of not less than five hundred
dollars nor more than five thousand dollars, or confinement in a
county or regional jail for not less than thirty days nor more than
six months or both a fine and confinement; and
(3) For a third or subsequent offense, a fine of not less than
one thousand dollars nor more than five thousand dollars, and
confinement in the county or regional jail for not less than thirty
days nor more than one year.