COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 651
(By Senators Wooton, Ball, Dawson, Hunter, Kessler, McCabe,
Mitchell, Oliverio, Redd, Ross, Snyder and Deem)
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[Originating in the Committee on Finance;
reported March 2, 2000.]
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A BILL to amend and reenact section four, article three, chapter
seventeen-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact section
twenty-five-a, article six of said chapter; and to further
amend said chapter by adding thereto a new article, designated
article six-d, all relating to tax on motor vehicle rentals;
authorizing commissioner of motor vehicles to establish by
rule a rate for motor vehicle daily rental tax; authorizing
emergency rule; providing for civil penalties; requiring
license certificate for businesses engaged in daily passenger
car rental; providing for collection of daily passenger car
rental tax; requiring filing of certain forms; authorizing
denial, suspension or revocation of license for failure to pay tax; establishing liability of officers of corporation;
requiring annual returns; requiring applicants to be bonded;
establishing fee for licensure; authorizing investigation of
applicants; providing for confidentiality of applicant
information; establishing criteria for refusal to issue
license; requiring licenses to be renewed annually; requiring
license to be displayed; authorizing duplicate license;
requiring licensee to notify commissioner of certain changes
in the business; providing for issuance of new license upon
certain changes in business; authorizing investigation of
licensees; providing grounds for denial, suspension or
revocation of license; relinquishing license; providing for
appeals of commissioner's decision; providing for inspection
by commissioner and agents; establishing misdemeanor
violations and penalties for violations; providing for
injunctive relief; and authorizing promulgation of rules.
Be it enacted by the Legislature of West Virginia:
That section four, article three, chapter seventeen-a of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that section twenty-five-a,
article six of said chapter be amended and reenacted; and that said
chapter be further amended by adding thereto a new article, designated article six-d, all to read as follows:
ARTICLE 3. ORIGINAL AND RENEWAL OF REGISTRATION; ISSUANCE OF
CERTIFICATES OF TITLE.
§17A-3-4. Application for certificate of title; tax for privilege
of certification of title; exceptions; fee on payments for
leased vehicles; penalty for false swearing.
(a) Certificates of registration of any vehicle or
registration plates for the vehicle, whether original issues or
duplicates, may not be issued or furnished by the division of motor
vehicles or any other officer or agent charged with the duty,
unless the applicant therefor already has received, or at the same
time makes application for and is granted, an official certificate
of title of the vehicle in either an electronic or paper format.
The application shall be upon a blank form to be furnished by the
division of motor vehicles and shall contain a full description of
the vehicle, which description shall contain a manufacturer's
serial or identification number or other number as determined by
the commissioner and any distinguishing marks, together with a
statement of the applicant's title and of any liens or encumbrances
upon the vehicle, the names and addresses of the holders of the
liens and any other information as the division of motor vehicles
may require. The application shall be signed and sworn to by the applicant. A duly certified copy of the division's electronic
record of a certificate of title shall be admissible in any civil,
criminal or administrative proceeding in this state as evidence of
ownership.
(b) A tax is imposed upon the privilege of effecting the
certification of title of each vehicle in the amount equal to five
percent of the value of the motor vehicle at the time of the
certification, to be assessed as follows:
(1) If the vehicle is new, the actual purchase price or
consideration to the purchaser of the vehicle is the value of the
vehicle. If the vehicle is a used or secondhand vehicle, the
present market value at time of transfer or purchase is the value
of the vehicle for the purposes of this section:
Provided, That so
much of the purchase price or consideration as is represented by
the exchange of other vehicles on which the tax imposed by this
section has been paid by the purchaser shall be deducted from the
total actual price or consideration paid for the vehicle, whether
the vehicle be new or secondhand. If the vehicle is acquired
through gift, or by any manner whatsoever, unless specifically
exempted in this section, the present market value of the vehicle
at the time of the gift or transfer is the value of the vehicle for
the purposes of this section.
(2) No certificate of title for any vehicle may be issued to
any applicant unless the applicant has paid to the division of
motor vehicles the tax imposed by this section which is five
percent of the true and actual value of the vehicle whether the
vehicle is acquired through purchase, by gift or by any other
manner whatsoever, except gifts between husband and wife or between
parents and children:
Provided, That the husband or wife, or the
parents or children, previously have paid the tax on the vehicles
transferred to the state of West Virginia.
(3) The division of motor vehicles may issue a certificate of
registration and title to an applicant if the applicant provides
sufficient proof to the division of motor vehicles that the
applicant has paid the taxes and fees required by this section to
a motor vehicle dealership that has gone out of business or has
filed bankruptcy proceedings in the United States bankruptcy court
and the taxes and fees so required to be paid by the applicant have
not been sent to the division by the motor vehicle dealership or
have been impounded due to the bankruptcy proceedings:
Provided,
That the applicant makes an affidavit of the same and assigns all
rights to claims for money the applicant may have against the motor
vehicle dealership to the division of motor vehicles.
(4) The division of motor vehicles shall issue a certificate
of registration and title to an applicant without payment of the
tax imposed by this section if the applicant is a corporation,
partnership or limited liability company transferring the vehicle
to another corporation, partnership or limited liability company
when the entities involved in the transfer are members of the same
controlled group and the transferring entity has previously paid
the tax on the vehicle transferred. For the purposes of this
section, control means ownership, directly or indirectly, of stock
or equity interests possessing fifty percent or more of the total
combined voting power of all classes of the stock of a corporation
or equity interests of a partnership or limited liability company
entitled to vote or ownership, directly or indirectly, of stock or
equity interests possessing fifty percent or more of the value of
the corporation, partnership or limited liability company.
(5) The tax imposed by this section does not apply to vehicles
to be registered as Class H vehicles or Class M vehicles, as
defined in section one, article ten of this chapter, which are used
or to be used in interstate commerce. Nor does the tax imposed by
this section apply to the titling of Class B vehicles registered at
a gross weight of fifty-five thousand pounds or more, or to the
titling of Class C semitrailers, full trailers, pole trailers and converter gear:
Provided, That if an owner of a vehicle has
previously titled the vehicle at a declared gross weight of
fifty-five thousand pounds or more and the title was issued without
the payment of the tax imposed by this section, then before the
owner may obtain registration for the vehicle at a gross weight
less than fifty-five thousand pounds, the owner shall surrender to
the commissioner the exempted registration, the exempted
certificate of title, and pay the tax imposed by this section based
upon the current market value of the vehicle:
Provided, however,
That notwithstanding the provisions of section nine, article
fifteen, chapter eleven of this code, the exemption from tax under
this section for Class B vehicles in excess of fifty-five thousand
pounds and Class C semitrailers, full trailers, pole trailers and
converter gear does not subject the sale or purchase of the
vehicles to the consumers sales tax.
(6) The tax imposed by this section does not apply to titling
of vehicles leased by residents of West Virginia. A tax is imposed
upon the monthly payments for the lease of any motor vehicle leased
by a resident of West Virginia, which tax is equal to five percent
of the amount of the monthly payment, applied to each payment, and
continuing for the entire term of the initial lease period. The tax shall be remitted to the division of motor vehicles on a
monthly basis by the lessor of the vehicle.
(7) The tax imposed by this section does not apply to titling
of vehicles by a registered dealer of this state for resale only,
nor does the tax imposed by this section apply to titling of
vehicles by this state or any political subdivision thereof, or by
any volunteer fire department or duly chartered rescue or ambulance
squad organized and incorporated under the laws of the state of
West Virginia as a nonprofit corporation for protection of life or
property. The total amount of revenue collected by reason of this
tax shall be paid into the state road fund and expended by the
commissioner of highways for matching federal funds allocated for
West Virginia. In addition to the tax, there is a charge of five
dollars for each original certificate of title or duplicate
certificate of title so issued:
Provided, That this state or any
political subdivision of this state, or any volunteer fire
department or duly chartered rescue squad is exempt from payment of
the charge.
(8) The certificate is good for the life of the vehicle, so
long as the vehicle is owned or held by the original holder of the
certificate, and need not be renewed annually, or any other time,
except as provided in this section.
(9) If, by will or direct inheritance, a person becomes the
owner of a motor vehicle and the tax imposed by this section
previously has been paid, to the division of motor vehicles, on
that vehicle, he or she is not required to pay the tax.
(10) A person who has paid the tax imposed by this section is
not required to pay the tax a second time for the same motor
vehicle, but is required to pay a charge of five dollars for the
certificate of retitle of that motor vehicle, except that the tax
shall be paid by the person when the title to the vehicle has been
transferred either in this or another state from the person to
another person and transferred back to the person.
(11) The tax imposed by this section does not apply to titling
of vehicles rented daily or monthly by West Virginia businesses.
A tax is imposed upon the daily payments for the rental of any
motor vehicle rented in West Virginia, which tax is twenty-five
cents for each day of the period of rental of the motor vehicle.
The tax shall be remitted to the division of motor vehicles on a
monthly basis by the lessor of the vehicle.
(11)
The tax imposed by this section does not apply to any
passenger vehicle offered for rent in the normal course of business
by a daily passenger rental car business as licensed under the
provisions of article six-d of this chapter. For purposes of this section, a daily passenger car means a Class A motor vehicle having
a gross weight of eight thousand pounds or less and is registered
in this state or any other state. In lieu of the tax imposed by
this section, there is hereby imposed a tax of twenty-five cents
for each day or part of the rental period. The commission shall
propose an emergency rule in accordance with the provisions of
article three, chapter twenty-nine-a of this code to establish this
tax.
(c) Notwithstanding any provisions of this code to the
contrary, the owners of trailers, semitrailers, recreational
vehicles and other vehicles not subject to the certificate of title
tax prior to the enactment of this chapter are subject to the
privilege tax imposed by this section:
Provided, That the
certification of title of any recreational vehicle owned by the
applicant on the thirtieth day of June, one thousand nine hundred
eighty-nine, is not subject to the tax imposed by this section:
Provided, however, That mobile homes, manufactured homes, modular
homes and similar nonmotive propelled vehicles, except recreational
vehicles and house trailers, susceptible of being moved upon the
highways but primarily designed for habitation and occupancy,
rather than for transporting persons or property, or any vehicle operated on a nonprofit basis and used exclusively for the
transportation of mentally retarded or physically handicapped
children when the application for certificate of registration for
the vehicle is accompanied by an affidavit stating that the vehicle
will be operated on a nonprofit basis and used exclusively for the
transportation of mentally retarded and physically handicapped
children, are not subject to the tax imposed by this section, but
are taxable under the provisions of articles fifteen and fifteen-a,
chapter eleven of this code.
(d) Any person making any affidavit required under any
provision of this section, who knowingly swears falsely, or any
person who counsels, advises, aids or abets another in the
commission of false swearing, or any person, while acting as an
agent of the division of motor vehicles issues a vehicle
registration without first collecting the fees and taxes or fails
to perform any other duty required by this chapter to be performed
before a vehicle registration is issued is on the first offense
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than five hundred dollars or be confined in the
county or regional jail for a period not to exceed six months or,
in the discretion of the court, both fined and confined. For a
second or any subsequent conviction within five years, that person is guilty of a felony and, upon conviction thereof, shall be fined
not more than five thousand dollars or be imprisoned in the
penitentiary for not less than one year nor more than five years
or, in the discretion of the court, fined and imprisoned.
(e) Notwithstanding any other provisions of this section, any
person in the military stationed outside West Virginia, or his or
her dependents who possess a motor vehicle with valid registration,
are exempt from the provisions of this article for a period of nine
months from the date the person returns to this state or the date
his or her dependent returns to this state, whichever is later.
(f) No person may transfer, purchase or sell a factory-built
home without a certificate of title issued by the commissioner in
accordance with the provisions of this article:
(1) Any person who fails to provide a certificate of title
upon the transfer, purchase or sale of a factory-built home is
guilty of a misdemeanor and, upon conviction thereof, shall for the
first offense be fined not less than one hundred dollars nor more
than one thousand dollars, or be confined in the county or regional
jail for not more than one year or, both fined and confined. For
each subsequent offense, the fine may be increased to not more than
two thousand dollars, with confinement in the county or regional
jail not more than one year or, both fined and confined.
(2) Failure of the seller to transfer a certificate of title
upon sale or transfer of the factory-built home gives rise to a
cause of action, upon prosecution thereof, and allows for the
recovery of damages, costs and reasonable attorney fees.
(g) Notwithstanding any other provision to the contrary,
whenever reference is made to the application for or issuance of
any title or the recordation or release of any lien, it shall be
understood to include the application, transmission, recordation,
transfer of ownership and storage of information in an electronic
format.
ARTICLE 6. LICENSING OF DEALERS AND WRECKERS, ETC.
§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
or article six-d 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
or article six-d 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 violation and assessed a civil penalty as provided by
this section.
ARTICLE 6D. DAILY PASSENGER RENTAL CAR BUSINESS.
§17A-6D-1. License certificate required; application.
No person may engage in a daily passenger rental car business
in West Virginia without a license certificate.
Application for a daily passenger rental car license
certificate shall be made on a form prescribed by the commissioner
and shall disclose any information required by the commissioner.
The application shall be verified by an oath or affirmation of the
applicant, if an individual, or if the applicant is a corporation,
partnership or limited liability company by a partner or officer
thereof.
§17A-6D-2. Collection of daily passenger car rental tax imposed.
The tax authorized by section four, article three of this
chapter and established by rules promulgated in accordance with the
provisions of article three, chapter twenty-nine-a of this code
shall be collected by each rental car business. The daily
passenger car business shall collect the tax on each vehicle rented
regardless of where the vehicle is titled or registered and shall
remit all taxes collected to the division of motor vehicles on a
monthly basis. All taxes collected pursuant to this section shall
be deposited in the state road fund and subject to appropriation by
the legislature. The daily passenger car business shall complete
the returns required by the commissioner of motor vehicles and
submit them monthly with the remittance. In addition, an annual
return which summarizes the monthly returns is required. The
monthly returns are due no later than the fifteenth day following
the last day of the month for which the return applies, and the
annual return shall be due no later than the thirtieth day
following the close of the year to which it applies. The
commissioner of motor vehicles shall promulgate an emergency rule
pursuant to the provisions of chapter twenty-nine-a of this code
setting forth pertinent information regarding the collection of the
tax imposed under this section, the definition of a daily passenger car rental business, and specifying forms. Nonpayment of the tax
shall constitute grounds for the commissioner of motor vehicles to
deny, suspend or revoke the license certificate set forth in this
article. The emergency rule shall be filed on or before the first
day of June, two thousand.
§17A-6D-3. Liability of officers of corporation, etc.
If the taxpayer is an association, partnership or corporation,
the officers thereof shall be personally liable, jointly and
severally, for any default on the part of the association,
partnership or corporation, and payment of the tax and any
additions to the tax, penalties and interest on the tax imposed by
this article may be enforced against the officers as against the
association, partnership or corporation which they represent. Any
failure to collect the tax imposed in this article and/or any
failure to timely remit to the commissioner of motor vehicles the
tax imposed by this article constitutes a default for purposes of
this section. Any other failure to comply with the provisions of
this article constitutes a default for purposes of this section.
§17A-6D-4. Annual return; extension of time.
(a)
Date due. -- On or before thirty days after the end of the
tax year, each person liable for the payment of any tax due under
this article shall make and file an annual return in such form as may be required by the commissioner of motor vehicles, showing:
(1) Total gross proceeds of his or her daily passenger car
rental business for preceding tax year;
(2) Gross proceeds upon which the tax for that year was
computed; and
(3) Any other information necessary in the computation or
collection of the tax that the commissioner of motor vehicles may
require.
(b)
Payment. -- After deducting the amount of prior payments
during the tax year, the taxpayer shall forward the annual return
along with payment of any remaining tax, due for the preceding tax
year, to the commissioner of motor vehicles. The taxpayer or his
duly authorized agent shall verify the return under oath.
(c)
Extension of time. -- The commissioner of motor vehicles
for good cause shown, may, on written application of a taxpayer,
extend the time for making any return required by the provisions of
this article.
§17A-6D-5. Applicant must be bonded.
An application for a license certificate must be accompanied
by a bond in the penal sum of twenty-five thousand dollars and have
a corporate surety authorized to do business in this state, to
ensure that the applicant will not, in the conduct of his or her business, make any fraudulent representation which causes a
financial loss to any purchaser, seller, financial institution,
agency or the state of West Virginia. The bond shall be effective
on the date the license certificate is issued.
A licensee shall keep the bond in full force and effect at all
times. The surety on the bond may cancel the bond upon giving
thirty days notice to the commissioner and, after notice of
cancellation, the surety is relieved of liability for any breach or
condition occurring after the effective date of the cancellation.
§17A-6D-6. Fee required for license certificate.
The initial application fee for a certificate to engage in a
daily passenger rental car business is two hundred and fifty
dollars. The annual renewal fee for the certificate is one hundred
dollars.
§17A-6D-7. Investigation prior to issuance of license certificate;
information confidential.
Upon receipt of a completed application, the required bond,
and the application fee, the commissioner may conduct an
investigation if necessary to determine the accuracy of any
statements contained in the application and the existence of any
other facts relevant in considering the application. To facilitate
the investigation, the commissioner may withhold issuance or refusal of the license certificate for a period not to exceed
thirty days.
Any application for a license certificate under the provisions
of this article and any information submitted regarding the
application shall be confidential for use of the division. No
person may divulge any information contained in any application or
any information submitted regarding the application, except in
response to a valid subpoena or subpoena duces tecum issued
pursuant to law.
§17A-6D-8. Refusal of license certificate.
If the commissioner finds that the applicant:
(1) Has failed to furnish the required bond;
(2) Has knowingly made a false statement of a material fact in
the application;
(3) Has habitually defaulted on financial obligations;
(4) Has been convicted of a felony within five years
immediately preceding receipt of the application by the
commissioner;
(5) Has not complied with the registration and title laws of
this state;
(6) Has been guilty of any fraudulent act in connection with
the business of a daily passenger rental car business;
(7) Has done any act or has failed or refused to perform any
duty for which the license certificate sought could be suspended or
revoked were it then issued and outstanding;
(8) Has not attained the age of eighteen years;
(9) Has been delinquent in the payment of any taxes owed to a
political subdivision of or to the state of West Virginia;
(10) Has been denied a license in another state or has been
the subject of license revocation or suspension in another state;
(11) Has committed any action in another state which, if it
had been committed in this state, would be grounds for denial and
refusal of the application for a license certificate.
Then, upon the basis of the application, such finding and all
other information, the commissioner shall make and enter an order
denying the application for a license certificate. The denial is
final and conclusive subject to appeal. If there is no basis to
deny the application, the commissioner shall issue to the applicant
the license certificate which shall entitle the licensee to engage
in a daily passenger rental car business.
§17A-6D-9. When application to be made; expiration of license
certificate; renewal.
(a) The initial application for a license certificate to
engage in a daily passenger rental car business shall be made at least thirty days prior to the first day of January, two thousand
and one. This license shall be valid for one year.
(b) Any initial application made after the first day of
January, two thousand and one, and any year thereafter, shall
expire on the thirty-first day of December, of that year.
(c) A license certificate may be renewed by paying the renewal
fee and review by the commissioner. Any application for renewal
must be received by the commissioner at least thirty days prior to
its expiration.
(d) A license certificate issued in accordance with the
provisions of this article shall not be transferable.
§17A-6D-10. Form and display of license certificate; certified
copies of license.
(a) The commissioner shall prescribe the form of the license
certificate for a daily passenger rental car business. Each
license certificate shall have printed on the certificate the seal
of the division, the location of each place of business of the
licensee, the year for which the license is issued, the license
certificate number and any other information the commissioner may
prescribe. The license certificate shall be delivered or mailed to
the licensee.
(b) When a licensee conducts his or her licensed business at more than one location, he or she shall apply to the commission for
a certified copy of the license certificate for each place of
business. A fee of one dollar shall be paid for each certified
copy of the license certificate. The license certificate is to be
conspicuously posted at each place of business.
(c) In the event of the loss or destruction of a license
certificate or a certified copy of the license certificate, the
licensee shall immediately make application for a certified copy of
the license certificate. A fee of one dollar shall be required for
a certified copy.
§17A-6D-11. Changes in business; action required.
Every daily passenger rental car business shall notify the
commissioner within sixty days from the date on which any of the
following changes in the business occur.
(1) A change of the location of any place of business;
(2) A change of the name or trade name under which the
licensee engages or will engage in the business;
(3) The death of the licensee or any partner or partners of
the licensee;
(4) A change in any partners, officers or directors;
(5) A change in ownership of the business;
(6) A change in the type of legal entity by and through which the licensee engages or will engage in the business; or
(7) The appointment of any trustee in bankruptcy, trustee
under an assignment for the benefit of creditors, master or
receiver.
When any change specified in subdivision (1), (2), (3), (4),
(5) or (6) occurs, an application for a new license certificate
shall immediately be filed with the commissioner.
Provided, That
when a change is made involving subdivision (3) of this section, an
application for a new license certificate need not be filed during
the balance of the license year if a member of the family of the
deceased person succeeds to the interest in the business. Upon
receipt and review of the application, a new license certificate
shall be issued incorporating the changes. No additional fee for
the balance of the license year is required for the issuance of any
new license certificate issued as a result of any change specified
in this section.
No new license certificate is required for any trustee in
bankruptcy, trustee under an assignment for the benefit of
creditors, receiver or master, appointed pursuant to law, who shall
take charge of or operate such business for the purpose of winding
up the affairs of the business or protecting the interests of the
creditors of the business.
§17A-6D-12. Investigation; grounds for suspending or revoking a
license certificate; notice of refusal, suspension or
revocation of license certificate; relinquishing license
certificate.
The commissioner may conduct an investigation to determine
whether any provisions of this chapter have been 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 license involved.
(a)
The commissioner may suspend or revoke a license
certificate 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;
(2)
Has failed or refused to comply with the provisions and
requirements of this article, and the promulgated rules and
regulations authorized in section nine, article two of this chapter
which were implemented by the commissioner, in accordance with the
provisions of article three, chapter twenty-nine-a of this code, to
enforce the provisions of this article; or
(b)
The commissioner shall suspend or revoke a license certificate if the commissioner finds that the licensee:
(1)
Has knowingly made a false statement of a material fact
in his or her application for the license certificate then issued
and outstanding;
(2)
Has habitually defaulted on financial obligations;
(3)
Has been guilty of any fraudulent act in connection with
the license service business;
(4)
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;
(5)
Has committed fraud in the registration of a vehicle;
(6)
Has knowingly purchased, sold or otherwise dealt in a
stolen vehicle or vehicles;
(7)
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;
(8)
Has a license certificate to which he is not lawfully
entitled; or
(9)
The existence of any other ground upon which the license
certificate could have been refused, or any ground upon which would
be cause for refusing a license certificate to the licensee were he then applying for the same.
(c)
Whenever a licensee fails or refuses to keep the bond
required by section two of this article in full force and effect,
the license certificate of the licensee shall automatically be
suspended unless and until the required bond is furnished to the
commissioner, in which event the suspension shall be vacated.
(d)
Whenever the commissioner refuses to issue a license
certificate, or revokes a license certificate, he or she shall make
and enter an order to that effect and shall cause a copy of the
order to be served in person or by certified mail, return receipt
requested, on the applicant or licensee.
(e)
Suspensions under this section shall continue until the
cause of the suspension has been eliminated or corrected. Whenever
a license certificate is suspended or revoked, the commissioner
shall, in the order of suspension or revocation, direct the
licensee to return to the division his or her license certificate
and any other documents specified. It is the duty of the licensee
to comply with the order. Whenever a licensee fails or refuses to
comply with any order of the commissioner, the commissioner shall
proceed as provided in section seven, article nine of this chapter.
(f)
Any applicant whose request for a license certificate is
refused, and any licensee whose license is suspended or revoked may appeal that action in accordance with procedures established by the
commissioner. The revocation or suspension of a license
certificate does not preclude a person from submitting an
application for a new license certificate, to be processed in the
same manner. The license certificate shall be issued or refused on
the same grounds as any other application for a license
certificate, except that any previous suspension and revocation may
be considered in deciding whether to issue or refuse the license
certificate.
§17A-6D-13. Inspections; violations and penalties.
(a)
The commissioner and his agents, acting at the
commissioner's request, are hereby authorized to inspect the place
of business and pertinent records, documents and papers of any
person required to be licensed under the provisions of this article
to the extent deemed reasonably necessary to determine compliance
with and violations of this article. For the purpose of making an
inspection, the commissioner and his agents are authorized, at
reasonable times, to enter in and upon the place of business
suspected of being in violation of this article.
(b)
Any person who violates any provision of this article or
any final order of the commissioner or board issued pursuant to
this article, shall be guilty of a misdemeanor, and the provisions of article eleven of this chapter governing violations of this
chapter shall be fully applicable to the violation.
§17A-6D-14. Injunctive relief.
(a)
Whenever it appears to the commissioner that any person
or licensee has violated any provision of this article or any final
order of the commissioner, the commissioner may petition, in the
name of the state, the circuit court of the county in which the
violation or violations occurred, for an injunction against the
person or licensee. A violation or violations resulting in
prosecution or conviction under the provisions of article eleven of
this chapter shall not prohibit injunctive relief.
The circuit court may, by mandatory or prohibitory injunction,
compel compliance with the provisions of this article and all final
orders of the commissioner. The court may also issue temporary
injunctions.
(b)
The judgement by the circuit court shall be final unless
reversed, vacated or modified on appeal to the supreme court of
appeals. Any such appeal shall be sought in the manner and within
the time provided by law for appeals from circuit courts in other
civil cases.
§17A-6D-15. Promulgation of rules.
The commissioner may promulgate rules in accordance with article three, chapter twenty-nine-a of this code in order to
effect the provisions of this article.
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