Introduced Version
House Bill 3155 History
| 
Email
Key: Green = existing Code. Red = new code to be enacted
H. B. 3155
(By Delegates Hamilton, Burdiss, Tabb, Stemple,
Morgan and Brown)
[Introduced February 21, 2007; referred to the
Committee on Roads and Transportation then the Judiciary.]
A BILL to amend and reenact §
17A
-6A-3
of the Code of West Virginia,
1931, as amended; and to amend and reenact
§17A-6A-12
of said
code, all relating to the establishment or relocation of
additional motor vehicle dealers within a relevant market
area.
Be it enacted by the Legislature of West Virginia:
That §
17A
-6A-3
of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §
17A
-6A-12 of said code be
amended and reenacted
, all to read as follows:
ARTICLE 6A. MOTOR VEHICLE DEALERS, DISTRIBUTORS, WHOLESALERS AND
MANUFACTURERS.
§17A-6A-3. Definitions.
For the purposes of this article, the words and phrases
defined in this section have the meanings ascribed to them, except
where the context clearly indicates a different meaning.
(1) "Dealer Agreement" means the franchise, agreement or
contract in writing between a manufacturer, distributor and a new
motor vehicle dealer, which purports to establish the legal rights
and obligations of the parties to the agreement or contract with
regard to the purchase, lease or sale of new motor vehicles,
accessories, service and sale of parts for motor vehicles.
(2) "Designated family member" means the spouse, child,
grandchild, parent, brother or sister of a deceased new motor
vehicle dealer who is entitled to inherit the deceased dealer's
ownership interest in the new motor vehicle dealership under the
terms of the dealer's will, or who has otherwise been designated in
writing by a deceased dealer to succeed the deceased dealer in the
new motor vehicle dealership, or is entitled to inherit under the
laws of intestate succession of this state. With respect to an
incapacitated new motor vehicle dealer, the term means the person
appointed by a court as the legal representative of the new motor
vehicle dealer's property. The term also includes the appointed
and qualified personal representative and the testamentary trustee
of a deceased new motor vehicle dealer. However, the term means
only that designated successor nominated by the new motor vehicle
dealer in a written document filed by the dealer with the
manufacturer or distributor, if such a document is filed.
(3) "Distributor" means any person, resident or nonresident,
who, in whole or in part, offers for sale, sells or distributes any new motor vehicle to a new motor vehicle dealer or who maintains a
factor representative, resident or nonresident, or who controls any
person, resident or nonresident, who, in whole or in part, offers
for sale, sells or distributes any new motor vehicle to a new motor
vehicle dealer.
(4) "Established place of business" means a permanent,
enclosed commercial building located within this state easily
accessible and open to the public at all reasonable times and at
which the business of a new motor vehicle dealer, including the
display and repair of motor vehicles, may be lawfully carried on in
accordance with the terms of all applicable building codes, zoning
and other land-use regulatory ordinances and as licensed by the
Division of Motor Vehicles.
(5) "Factory branch" means an office maintained by a
manufacturer or distributor for the purpose of selling or offering
for sale vehicles to a distributor, wholesaler or new motor vehicle
dealer, or for directing or supervising, in whole or in part,
factory or distributor representatives. The term includes any
sales promotion organization maintained by a manufacturer or
distributor which is engaged in promoting the sale of a particular
make of new motor vehicles in this state to new motor vehicle
dealers.
(6) "Factory representative" means an agent or employee of a
manufacturer, distributor or factory branch retained or employed for the purpose of making or promoting the sale of new motor
vehicles or for supervising or contracting with new motor vehicle
dealers or proposed motor vehicle dealers.
(7) "Good faith" means honesty in fact and the observation of
reasonable commercial standards of fair dealing in the trade.
(8) "Manufacturer" means any person who manufactures or
assembles new motor vehicles; or any distributor, factory branch or
factory representative.
(9) "Motor vehicle" means that term as defined in section one,
article one of this chapter, including motorcycle and recreational
vehicle as defined in subsections (c) and (nn), respectively, of
said section, but not including a tractor or farm equipment.
(10) "New motor vehicle" means a motor vehicle which is in the
possession of the manufacturer, distributor or wholesaler, or has
been sold only to a new motor vehicle dealer and on which the
original title has not been issued from the new motor vehicle
dealer.
(11) "New motor vehicle dealer" means a person who holds a
dealer agreement granted by a manufacturer or distributor for the
sale of its motor vehicles, who is engaged in the business of
purchasing, selling, leasing, exchanging or dealing in new motor
vehicles, service of said vehicles, warranty work and sale of parts
who has an established place of business in this state and is
licensed by the Division of Motor Vehicles.
(12) "Person" means a natural person, partnership,
corporation, association, trust, estate or other legal entity.
(13) "Proposed new motor vehicle dealer" means a person who
has an application pending for a new dealer agreement with a
manufacturer or distributor. Proposed motor vehicle dealer does
not include a person whose dealer agreement is being renewed or
continued.
(14) "Relevant market area" means the area located within a
fifteen air-mile radius around an existing same line-make new motor
vehicle dealership for purposes of relocation of an existing dealer
and twenty-five air miles for purposes of establishment of
additional dealers.
§17A-6A-12. Establishment and relocation or establishment of
additional dealers.
(1) As used in this section, "relocate" and "relocation" do
not include the relocation of a new motor vehicle dealer within two
miles of its established place of business. The relocation of a
new motor vehicle dealer to a site within the area of sales
responsibility assigned to that dealer by the manufacturing branch
or distributor may not be within six air miles of another dealer of
the same line-make.
(2) (a) Before a manufacturer or distributor enters into a
dealer agreement to relocate establishing or relocating a new motor
vehicle dealer within a relevant market area of fifteen air miles where the same line-make is represented, the manufacturer or
distributor shall give written notice to each new motor vehicle
dealer of the same line-make in the relevant market area of its
intention to establish an additional dealer or to relocate an
existing dealer within that relevant market area.
(b) Before a manufacturer or distributor enters into a dealer
agreement to establish a new motor vehicle dealer within a relevant
market area of twenty-five air miles where the same line-make is
represented, the manufacturer or distributor shall give written
notice to each new motor vehicle dealer of the same-line make in
the relevant market area of twenty-five air miles of its intention
to establish an additional dealer within that relevant market area.
(3) Within sixty days after receiving the notice provided for
in subsection (2) above, or within sixty days after the end of any
appeal procedure provided by the manufacturer or distributor, a new
motor vehicle dealer of the same line-make within the affected
relative market area may bring a declaratory judgment action in the
circuit court for the county in which the new motor vehicle dealer
is located to determine whether good cause exists for the
establishing or relocating of the a proposed new motor vehicle
dealer. Once an action has been filed, the manufacturer or
distributor may not establish or relocate the proposed new motor
vehicle dealer until the circuit court has rendered a decision on
the matter. An action brought pursuant to this section shall be given precedence over all other civil matters on the court's
docket. The manufacturer has the burden of proving that good cause
exists for establishing or relocating a proposed new motor vehicle
dealer.
(4) This section does not apply to the reopening in a relevant
market area of a new motor vehicle dealer that has been closed
within the preceding two years if the established place of business
of the new motor vehicle dealer is within two miles of the
established place of business of the closed new motor vehicle
dealer.
(5) In determining whether good cause exists for establishing
or relocating an additional new motor vehicle dealer for the same
line-make, the court shall take into consideration the existing
circumstances, including, but not limited to, the following:
(a) Permanency and amount of the investment, including any
obligations incurred by the dealer in making the investment;
(b) Effect on the retail new motor vehicle business and the
consuming public in the relevant market area;
(c) Whether it is injurious or beneficial to the public
welfare;
(d) Whether the new motor vehicle dealers of the same line-
make in the relevant market area are providing adequate competition
and convenient consumer care for the motor vehicles of that line-
make in the market area, including the adequacy of motor vehicle sales and qualified service personnel;
(e) Whether the establishment or relocation of the new motor
vehicle dealer would promote competition;
(f) Growth or decline of the population and the number of new
motor vehicle registrations in the relevant market area; and
(g) The effect on the relocating dealer of a denial of its
relocation into the relevant market area.
NOTE: The purpose of this bill is to amend the provisions
governing the establishment of motor vehicle dealers within a
relevant market area.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Webmaster | © 2024 West Virginia Legislature **
