ENROLLED
COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 380
(Senator Miller, original sponsor)
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[Passed March 9, 1996; in effect ninety days from passage.]
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AN ACT to amend and reenact section eighteen, article six,
chapter seventeen-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to further
amend said article by adding thereto two new sections,
designated sections eighteen-a and twenty-five-a, all
relating to motor vehicle dealers, license services and
automobile auctions; investigation of licensees; disclosure
of information to the motor vehicle dealers advisory board;
revocation and suspension of licenses and plates; adding new
offense to the grounds for suspending or revoking a license
certificate; creating a motor vehicle dealers advisory board; composition of board; terms of board members;
requiring commissioner to consult with the board; adding
provisions for civil penalties for violations by vehicle
dealers, license services and automobile auctions; providing
for coviolator penalties; providing for hearings on civil
penalties; and providing for judicial review.
Be it enacted by the Legislature of West Virginia:
That section eighteen, article six, chapter seventeen-a of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted; and that said article be
further amended by adding thereto two new sections, designated
sections eighteen-a and twenty-five-a, all to read as follows:
ARTICLE 6. LICENSING OF DEALERS AND WRECKERS, ETC.
§17A-6-18. Investigation; matters confidential; grounds for
suspending or revoking license or imposing fine; suspension
and revocation generally.
(a) The commissioner may conduct an investigation to
determine whether any provisions of this chapter have been or are
about to be violated by a licensee. Any investigation shall be
kept in strictest confidence by the commissioner, the division,
the licensee, any complainant and all other persons, unless and
until the commissioner suspends or revokes the license
certificate of the licensee involved or fines the licensee:
Provided, That the commissioner may advise the motor vehicle
dealers advisory board of pending actions and may disclose to the
motor vehicle dealers advisory board such information as may
enable it to perform its advisory function in imposing penalties.
The commissioner may suspend or revoke a license certificate,
suspend a special dealer plate or plates, impose a fine or take
any combination of these actions, if the commissioner finds that
the licensee:
(1) Has failed or refused to comply with the laws of this
state relating to the registration and titling of vehicles and
the giving of notices of transfers, the provisions and
requirements of this article, or any reasonable rules authorized
in section nine, article two of this chapter and promulgated to
implement the provisions of this article by the commissioner in
accordance with the provisions of article three, chapter twenty-
nine-a of this code;
(2) Has given any check in the payment of any fee required
under the provisions of this chapter which is dishonored;
(3) In the case of a dealer, has knowingly made or permitted
any unlawful use of any dealer special plate or plates issued to
him or her;
(4) In the case of a dealer, has a dealer special plate or plates to which he or she is not lawfully entitled;
(5) Has knowingly made false statement of a material fact in
his or her application for the license certificate then issued
and outstanding;
(6) Has habitually defaulted on financial obligations;
(7) Does not have and maintain at each place of business
(subject to the qualification contained in subdivision (17),
subsection (a), section one of this article with respect to a new
motor vehicle dealer) an established place of business as defined
for the business in question in section one of this article;
(8) Has been guilty of any fraudulent act in connection with
the business of new motor vehicle dealer, used motor vehicle
dealer, house trailer dealer, trailer dealer, motorcycle dealer,
used parts dealer, or wrecker or dismantler;
(9) Has defrauded or is attempting to defraud any buyer or
any other person, to the damage of the buyer or such other
person, in the conduct of the licensee's business;
(10) Has defrauded or is attempting to defraud the state or
any political subdivision of the state of any taxes or fees in
connection with the sale or transfer of any vehicle;
(11) Has committed fraud in the registration of a vehicle;
(12) Has knowingly purchased, sold or otherwise dealt in a stolen vehicle or vehicles;
(13) Has advertised by any means, with intent to defraud,
any material representation or statement of fact which is untrue,
misleading or deceptive in any particular relating to the conduct
of the licensed business;
(14) Has willfully failed or refused to perform any legally
binding written agreement with any buyer;
(15) Has made a fraudulent sale or purchase;
(16) Has failed or refused to assign, reassign or transfer
a proper certificate of title;
(17) Has a license certificate to which he or she is not
lawfully entitled; or
(18) Has misrepresented a customer's credit or financial
status to obtain financing.
The commissioner shall also suspend or revoke the license
certificate of a licensee if he or she finds the existence of any
ground upon which the license certificate could have been
refused, or any ground which would be cause for refusing a
license certificate to the licensee were he or she then applying
for the license certificate.
(b) Whenever a licensee fails or refuses to keep the bond or
liability insurance required by section four of this article in full force and effect, the commissioner shall automatically
suspend the license certificate of the licensee unless and until
a bond or certificate of insurance as required by section four of
this article is furnished to the commissioner. When the licensee
furnishes the bond or certificate of insurance to the
commissioner, the commissioner shall vacate the suspension.
(c) Suspensions under this section shall continue until the
cause for the suspension has been eliminated or corrected.
Revocation of a license certificate shall not preclude
application for a new license certificate. The commissioner
shall process the application for a new license certificate in
the same manner and issue or refuse to issue the license
certificate on the same grounds as any other application for a
license certificate is processed, considered and passed upon,
except that the commissioner may give any previous suspension and
the revocation such weight in deciding whether to issue or refuse
the license certificate as is correct and proper under all of the
circumstances.
§17A-6-18a. Motor vehicle dealers advisory board.
(a) There is created a motor vehicle dealers advisory board
to assist and to advise the commissioner on the administration of
laws regulating the motor vehicle industry; to work with the
commissioner in developing new laws, rules or policies regarding the motor vehicle industry; and to give the commissioner such
further advice and assistance as he or she may from time to time
require.
The board shall consist of nine members and the commissioner
of motor vehicles, or his or her representative, who shall be an
ex officio member. Two members shall represent new motor vehicle
dealers, with one of these two members representing dealers that
sell less than one hundred new vehicles per year; one member
shall represent used motor vehicle dealers; one member shall
represent wrecker/dismantler/rebuilders; one member shall
represent automobile auctions; one member shall represent
recreational dealers; one member shall represent the West
Virginia attorney general's office; and two members shall
represent consumers. All of the representatives, except the
attorney general representative who shall be designated by the
attorney general, shall be appointed by the governor with the
advice and consent of the Senate, with no more than five
representatives being from the same political party. The
appointed members shall serve without compensation.
The terms of the board members shall be for three years
commencing the first day of July, one thousand nine hundred
ninety-six. Two members shall be appointed to serve one year, two members shall be appointed to serve two years and five
members shall be appointed to serve three years. Successive
appointments shall be for the full three years. The attorney
general representative shall serve continuously.
The board shall meet at least four times annually and at the
call of the commissioner.
Notwithstanding the provisions of article ten, chapter four
of this code, the motor vehicle dealers advisory board shall
continue until the first day of July, two thousand one.
(b) The commissioner shall consult with the board before he
or she takes any disciplinary action against a dealer, an
automobile auction or a license service to revoke, or suspend a
license, place the licensee on probation or levy a civil penalty,
unless the commissioner determines that the consultation would
endanger a criminal investigation.
(c) The commissioner may consult with the board by mail, by
facsimile, by telephone or at a meeting of the board, but the
commissioner is not bound by the recommendations of the board.
The commissioner shall give members seven days from the date of
a mailing or other notification to respond to proposed actions,
except in those instances when the commissioner determines that
the delay in acting creates a serious danger to the public's health or safety or would unduly compromise the effectiveness of
the action.
(d) No action taken by the commissioner shall be subject to
challenge or rendered invalid on account of his or her failure to
consult with the board.
§17A-6-25a. Civil penalties.
(a) In addition to any other remedy or penalty provided by
law, the commissioner may levy and collect a civil fine, in an
amount not to exceed one thousand dollars for each first
violation, against any person who violates the provisions of this
article, article six-b or article six-c of this chapter, any of
the rules or policies implemented to enforce those articles, or
any lawful order of the commissioner pursuant to authority set
forth in those articles. Every transaction which violates this
article, article six-b or article six-c of this chapter shall be
considered a separate violation. For a second violation, being
any violation occurring within three years following any previous
violation for which the violator has been disciplined pursuant to
section eighteen, article six of this chapter, the commissioner
may levy and collect a fine in an amount not to exceed twenty-
five hundred dollars, and for a third and subsequent violation
occurring within the three-year period following the first
violation the commissioner may levy and collect a fine in an amount not to exceed five thousand dollars.
(b) A fine assessed under this section shall not take effect
until the commissioner sends to the person against whom the
penalty is assessed by certified mail, return receipt requested,
a notice of violation finding that the person has committed an
offense. The notice shall contain:
(1) A statement of the offense the person committed;
(2) A summary of the facts on which the finding of a
violation was made;
(3) The amount of the fine which is being levied; and
(4) An order that the person:
(A) Cease and desist from all future violations and pay the
fine; or
(B) Protest in writing the findings of the commissioner or
the amount of the assessed fine and request a hearing.
Any request for a hearing must be received by the
commissioner within thirty days after the mailing date of the
notice of violation. The notice of violation may be sent to any
address which the person has used on any title or license
application, or other filing or record which the commissioner
believes is current. Failure of any person to receive a notice
of violation does not preclude the fine from taking effect. However, the commissioner shall accept as timely a request for
hearing from any person who, within one year of the date the
notice of violation was sent, provides satisfactory proof that he
or she did not receive the notice of violation and that good
cause exists to excuse his or her failure to receive the notice
of violation and that he or she wishes in good faith to assert a
protest to the notice of violation. The pendency of the one-year
period shall not keep any penalty from taking effect, but the
commissioner shall stay enforcement of the fine upon his or her
acceptance of any notice filed after the thirty-day period
pending the outcome of the appeal.
(c) Upon receipt of a timely request the commissioner shall
afford the person a hearing in accordance with the rules of the
division of motor vehicles. The commissioner, in addition to
considering the evidence relied upon to prove or defend against
a finding of a violation, shall also evaluate the appropriateness
of the amount of the civil penalty. In making such evaluation,
the commissioner shall consider:
(1) The severity of the violation and its impact on the
public;
(2) The number of similar or related violations;
(3) Whether the violations were willful or intentional; and
(4) Any other facts considered appropriate.
(d) In addition to any other findings of fact or conclusions
of law, the commissioner may reduce the civil penalty to a stated
amount. The appellant may, at any time during the pendency of
the appeal, enter into a settlement agreement with the
commissioner. The settlement agreement may provide for a
reduction in the penalty and may provide that the appellant does
not admit a violation. The entry into a settlement agreement or
the payment of any fine pursuant to a settlement agreement which
states that the appellant does not admit a violation shall not
amount to an admission of guilt for purposes of any criminal
prosecution.
(e) Upon the expiration of all periods for protest or appeal
of a notice of violation, including judicial review pursuant to
section four, article five, chapter twenty-nine-a of this code,
the notice of violation shall have the same force and effect and
be enforceable as a judgment entered by any court of law of this
state.
(f) If a corporation is found to have committed a violation
against which a penalty may be assessed under this section, any
officer of the corporation who is found to have knowingly and
intentionally committed the violation, to have knowingly and intentionally directed another to commit the violation or to have
knowingly and intentionally failed to take reasonable steps to
prevent another from committing the violation, may be
individually found to be a coviolator and assessed a civil
penalty as provided by this section.