H. B. 4374
(By Delegates Kuhn, Butcher and Martin)
[Introduced
February 9, 2004
; referred to the
Committee on Government Organization then the Judiciary.]
A BILL to amend and reenact §21-9-4, §21-9-11 and §21-9-12 of the
code of West Virginia, 1931, as amended, all relating to
manufacture housing construction and safety standards;
removing out-dated language; providing for inspections and the
payment of the costs of inspection; and authorizing the
issuance of cease and desist orders and establishing penalties
for violations of the article.
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 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) Promulgate reasonable rules to implement any provision of
this article or of the federal standards, such including 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
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 the 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 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 regulations 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 such
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) (8) Delegate to and authorize the commissioner to exercise
such the powers and duties of the board as that 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.
§21-9-11. 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 such 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 such a the primary inspection agency including
application for approval to act as the exclusive production inspection primary inspection agency in this state. The board
shall promulgate such may propose rules and regulations as are 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 such a 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, however, That the board may charge the
licensee an inspection fee for any follow-up inspections which are
necessitated by the licensee's failure to comply with an order of
the board. The inspection fee may not exceed seventy-five dollars
per hour including travel time.
§21-9-12. Violation of article; injunction; civil penalties;
criminal penalties.
(a) Upon a determination that a person is engaging in business
without a valid license as required by 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.
(b) Any person continuing to engage in business in this state
without a valid license after the issuance of a cease and desist
order 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 country or regional jail for not less than
thirty days nor more than one year.
(c)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.
(a) (d) 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) (e) Subdivision (1), subsection (a) (d) of this section
does not apply to: (i) (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; (ii) (2) any person who establishes
that he 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) (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 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) (f) Any manufacturer, dealer, distributor or contractor
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) (g) 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)
(d) 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 applies to any bank or
financial institution engaged in the disposal of foreclosed or
repossessed manufactured home(s) homes.
Note: The purpose of this bill is to update the provisions of
this article, to authorize inspections and the payment of
inspection costs, to allow for the issuance of cease and desist
orders and to provide penalties for violations of this article.
Strike-troughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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