H. B. 2953
(By Delegates Kuhn, Perdue, Tucker and Douglas)
[Introduced March 21, 2001; referred to the
Committee on Government Organization.]
A BILL to amend and reenact sections two, four, seven, eight, nine,
ten and twelve, article nine, chapter twenty-one of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, all relating to the powers and duties of the West
Virginia manufactured housing construction and safety
standards board; defining the term "transporter"; adding
transporters to the list of persons the board oversees;
requiring an annual license fee from transporters; requiring
transporters to carry insurance; and providing a criminal
penalty for transporters operating in the state without a
license.
Be it enacted by the Legislature of West Virginia:
That sections two, four, seven, eight, nine, ten and twelve,
article nine, chapter twenty-one of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 9. MANUFACTURED HOUSING CONSTRUCTION AND SAFETY STANDARDS.
§21-9-2. Definitions.
(a) "Board" means the West Virginia manufactured housing
construction and safety board created in this article.
(b) "Commissioner" means the commissioner of the West Virginia
state department division of labor.
(c) "Contractor" means any person who performs operations in
this state at the occupancy site which render a manufactured home
fit for habitation. This definition does not include persons who
do work on a manufactured home which is owned or leased by such
person doing the work. Such operations include, without
limitation, installation or construction of the foundation,
positioning, blocking, leveling, supporting, tying down, connecting
utility systems, making minor adjustments or assembling multiple or
expandable units. Such operations also include transporting the
unit to the occupancy site by other than a motor carrier regulated
by the West Virginia public service commission.
(d) "Dealer" means any person engaged in this state in the
sale, leasing or distribution of new or used manufactured homes,
primarily to persons who in good faith purchase or lease a
manufactured home for purposes other than resale.
(e) "Defect" includes any defect in the performance,
construction, components or material of a manufactured home that renders the home or any part thereof not fit for the ordinary use
for which it was intended.
(f) "Distributor" means any person engaged in this state in
the sale and distribution of manufactured homes for resale.
(g) "Federal standards" means the National Manufactured
Housing Construction and Safety Standards Act of 1974 (42 U.S.C.
§5401, et seq.), and federal manufactured home construction and
safety standards and regulations promulgated by the secretary of
HUD to implement such act.
(h) "HUD" means the United States department of housing and
urban development.
(i) "Manufacturer" means any person engaged in manufacturing
or assembling manufactured homes, including any person engaged in
importing manufactured homes for resale.
(j) "Manufactured home" means a structure, transportable in
one or more sections, which in the traveling mode is eight body
feet or more in width or forty body feet or more in length or, when
erected on site, is three hundred twenty or more square feet, and
which is built on a permanent chassis and designed to be used as a
dwelling with or without a permanent foundation when connected to
the required utilities, and includes the plumbing, heating,
air-conditioning and electrical systems contained therein; except
that such term shall include any structure which meets all the
requirements of this definition except the size requirements and with respect to which the manufacturer voluntarily files a
certificate which complies with the applicable federal standards.
Calculations used to determine the number of square feet in a
structure will be based on the structure's exterior dimensions
measured at the largest horizontal projections when erected on
site.
(k) "Purchaser" means the first person purchasing a
manufactured home in good faith for purposes other than resale.
(l) "Transporter" means any person, firm or corporation who,
for compensation, transports a manufactured home upon any public
road in this state to an occupancy site.
§21-9-4. General powers and duties; persons adversely affected
entitled to hearing.
(a) The board shall have has the power to:
(1) Regulate its own procedure and practice;
(2) Promulgate reasonable Propose for legislative approval
rules to implement any provision of this article or of the federal
standards such rules to be promulgated in accordance with the
provisions of article three, chapter twenty-nine-a of this code;
(3) Advise the commissioner in all matters within his or her
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
such 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 such changes in
the law as the board may determine 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 regulations and the federal standards;
(7) Approve or disapprove applications for licenses to
manufacturers, dealers, distributors; and contractors; and
transporters in accordance with section nine of this article, and
revoke or suspend such the licenses in accordance with such 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) Realizing the inability of the citizens of the state of
West Virginia to obtain fire insurance on manufactured housing, the
Legislature directs the board to conduct a study in regard to this
crisis and to report to the Legislature by the fifth day of
February, one thousand nine hundred eighty-nine. The report shall
include specific recommendations to correct this crisis and improve
the availability and reduce the cost of fire insurance;
(9) Delegate to and authorize the commissioner to exercise such the powers and duties of the board as the board may from time
to time 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.
§21-9-7. Monitoring inspection fee.
The board shall establish a monitoring inspection fee in an
amount established by HUD. Such The fee shall be paid by the
manufacturer for each manufactured home produced in this state to
the secretary of HUD, who shall distribute the fees collected from
all manufactured home manufacturers among the approved and
conditionally approved states based on the number of new
manufactured homes whose first location after leaving the
manufacturing plant is on the premises of a distributor, dealer,
transporter or purchaser in that state.
§21-9-8. Maintenance and production of records and other
information.
Each manufacturer, dealer, distributor, and contractor and
transporter shall establish and maintain such records, make such
reports and provide such information as the board or the secretary
of HUD may reasonably require in order to be able to determine whether such the manufacturer, dealer, distributor, or contractor
and transporter has have acted or is are acting in compliance with
this article, the rules and regulations promulgated by the board
pursuant to this article or the federal standards and shall, upon
request of a person duly designated by the board or the secretary
of HUD, permit such the person to inspect appropriate books,
papers, records and documents relevant to determining whether such
the
manufacturer, dealer, distributor, or contractor or transporter
has acted or is acting in compliance with this article and the
federal standards.
§21-9-9. License required; fees; form of license; display of
license; denial, suspension or revocation.
(a) No manufacturer, dealer, distributor, or contractor or
transporter shall may engage in business in this state without
first having applied for and received a license pursuant to this
section. The license shall authorize authorizes the holder to
engage in the business permitted by the license. All license
applications shall be accompanied by the required fee and surety
bond or other form of assurance as required by section ten of this
article or as required by rule or regulation promulgated by the
board.
(b) All licenses shall be granted or refused within thirty
days after proper and complete application. All licenses shall
expire on the thirtieth day of June of each year, unless sooner revoked or suspended. Applications shall be deemed are valid for
a period of thirty days.
(c) The annual license fees shall be in the amounts prescribed
from time to time by rules and regulations promulgated by the board
but in no event less than the following amounts:
(1) For manufacturers, three hundred dollars;
(2) For dealers, one hundred dollars;
(3) For distributors, one hundred dollars; and
(4) For contractors, fifty dollars: Provided, That if a
contractor has met the licensing requirements of this article and
the West Virginia contractor licensing act in article eleven of
this chapter, has paid the annual license fee under section eight,
article eleven of this chapter and has furnished bond or other
assurance under section ten of this article, he or she shall not be
required to pay the annual license fee set forth in this section;
and
(5) For transporters, fifty dollars.
(d) The board shall prescribe the form of license and each
license shall have affixed thereon the seal of the state department
of labor.
(e) Each licensee shall conspicuously display the license in
its established place of business.
(f) Pursuant to such rules and regulations as may be
promulgated by the board, the board may deny the issuance of a license or revoke or suspend any license.
(g) The proceeds of such the fees shall be deposited in a
special account in the state treasury to be used by the department
of labor for the administration of the provisions of this article.
§21-9-10. Licensee to furnish bond or other form of assurance.
(a) Each manufacturer, dealer, distributor or contractor which
applies for a license under the preceding section shall, at the
time of making application therefor, furnish a surety bond or such
other form of assurance of the applicant's financial responsibility
as the board may by rule or regulation permit, such the surety bond
or other form of assurance to be in such an amount as the board may
by rule or regulation prescribe. In the event of forfeiture of any
such bond or security, the proceeds thereof shall be deposited in
the special account created under section nine of this article.
(b) The bond or other form of assurance shall cover any
misappropriation of funds of a purchaser or prospective purchaser
of a manufactured home, any deception or false or fraudulent
representations or deceitful practices in selling or representing
a product, any failure by a licensee, because of bankruptcy,
insolvency or other reason, to fulfill warranty obligations and any
failure of the licensee, its agents or employees, to comply with
the federal standards, this article or any rules or regulations
promulgated by the board pursuant to this article.
(c) Each transporter shall maintain a policy of insurance
approved by the board and obtained from an insurer authorized to
conduct business in this state in amount of not less than fifty
thousand dollars for each manufactured home transported and five
hundred thousand dollars in the aggregate. The policy shall insure
the transporter against liability for damages to a manufactured
home in the transit process. The policy shall identify the West
Virginia manufactured housing construction and safety standards
board as the loss-payee.
§21-9-12. Civil penalties; criminal penalties.
(a) Any person who violates any of the following provisions
relating to manufactured homes or any rule promulgated by the board
pursuant to the provisions of this article is liable to the state
for a penalty, as determined by the court 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: (i) 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; (ii) any person who establishes that he or she
did not have reason to know in the exercise of due care that
such
the
manufactured home is not in conformity with applicable federal
standards; or (iii) any person who, prior to the first purchase,
holds a certificate by the manufacturer or importer of the
manufactured home to the effect that
such 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 or
transporter who engages in business in this state without a current
license as required by the provisions of this article or 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) 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: Provided, That nothing in this
article may apply to any bank or financial institution engaged in
the disposal of foreclosed or repossessed manufactured home(s).
NOTE: The purpose of this bill is to clarify within the
powers and duties of the West Virginia Manufactured Housing
Construction and Safety Standards Board the authority to oversee
and license "transporters" of manufactured homes. The bill defines
the term "transporter," requires an annual license fee be paid by
transporters, requires transporters to maintain approved insurance
coverage, and provides a criminal penalty for transporters
operating in the state without a license.
Originally, transporters were considered to be contractors and
were exempt from coverage if they were regulated by the Public
Service Commission. As motor carriers, all mobile home
transporters were regulated by the PSC until July 1, 1997. On that
date, regulation by the PSC was terminated.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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