H. B. 2826
(By Mr. Speaker, Mr. Kiss)
[Introduced March 2, 2005; referred to the
Committee on Government Organization then the Judiciary.]
A BILL to amend and reenact §21-9-10, §21-9-11a and §21-9-12 of the
Code of West Virginia, 1931, as amended, all relating to
manufactured housing generally; removing certain limitations
on recovery from manufacturer, dealer, distributor or
contractor bonds; increasing fines for violations; shortening
the complaint period; and listing certain specific defects for
which fines may be levied.
Be it enacted by the Legislature of West Virginia:
That §21-9-10, §21-9-11a and §21-9-12 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 9. MANUFACTURED HOUSING CONSTRUCTION AND SAFETY
STANDARDS.
§21-9-10. Licensee to furnish bond or other form of assurance.
(a) Each manufacturer, dealer, distributor or contractor which applies applying for a license under section nine of this article
shall, at the time of making application for the license, furnish
a surety bond or any other form of assurance of the applicant's
financial responsibility permitted by the board by rule or
regulation, the surety bond or other form of assurance to be in the
amount prescribed by rule or regulation. In the event of
forfeiture of any 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
federal standards, this article or any rules or regulations
promulgated by the board pursuant to this article. : Provided,
That any payment to purchasers or prospective purchasers by the
board from licensee bonds or other forms of financial assurance
shall not include punitive or exemplary damages, any compensation
for property damage other than to the manufactured home, any
recompense for any personal injury or inconvenience, any
reimbursement for alternate housing, or any payments for attorney fees, legal expenses or court costs.
§21-9-11a. Inspection of manufactured housing; deferral period
for inspection and administrative remedies;
notification to consumers of rights.
(a) Inspection of manufactured housing. -- When a purchaser or
owner of a manufactured home files a written complaint with the
board alleging defects in the manufacture, construction or
installation of the manufactured home, and any additional
information the board considers necessary to conduct an
investigation, the board shall within sixty thirty days, to the
extent feasible, cause an inspection of the manufactured home by
one or more of its employees or person authorized and supervised by
the board. The board shall provide the consumer a written report
indicating whether the defects alleged by the complaint constitute
violations of federal or state statutory or regulatory standards or
good and customary manufacturing standards in the construction,
design, manufacture or installation of the manufactured home. If
the report indicates that the alleged defects do constitute any of
these violations, the board shall take such further administrative
action as provided for in this article including, but not limited
to, ordering the manufacturer, dealer or contractor to correct any
defects.
(b) Limited period for exclusive administrative remedy. -- The
board has a period of ninety thirty days, commencing with the date of filing of the complaint, to investigate and take administrative
action to order the correction of any defects in the manufacture or
installation of a manufactured home. Defects in the manufacture
and installation of a manufactured home include, but are not
limited to, cracks, bows in walls and misaligned corners, swags,
cracks and paint flaws in ceilings, defective or flawed painted
surfaces, bowed, cracked and uneven floors, unraveling carpet,
improperly installed carpets, doors that do not close evenly, and
any other defect that may impair the cosmetic appearance of the
manufactured home. A purchaser or owner of a manufactured home may
not file any civil action seeking monetary recovery or damages for
claims related to or arising out of the manufacture, acquisition,
sale or installation of the manufactured home, until the expiration
of ninety thirty days after the consumer or owner has filed a
written complaint with the board. This period of exclusive
administrative authority may not prohibit the purchaser or owner of
the manufactured home from seeking equitable relief in any court of
competent jurisdiction to prevent or address an immediate risk of
personal injury or property damage. The filing of a complaint
under this article shall toll any applicable statutes of limitation
during the ninety-day thirty-day period but only if the applicable
limitation period has not expired prior to the filing of the
complaint.
(c) Notice of consumer rights. -- Every dealer or contractor who moves homes from one place to another shall provide written
notification to every purchaser of a manufactured home of the
availability of administrative assistance from the board in
investigating and ordering corrections of any defect in the
manufacture or installation of a manufactured home and the period
of exclusive jurisdiction given to the board. The board may
prescribe that the notice contain any information the board
determines to be beneficial to the purchaser or owner of the
manufactured home in exercising that person's rights under this
section.
§21-9-12. Violation of article; penalties; injunction.
(a) Any person who violates any of the following provisions
relating to manufactured homes or any legislative rule proposed by
the board pursuant to the provisions of this article, is liable to
the state for a penalty, as determined by the board, not to exceed
less than 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:
(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;
(2) Any person who establishes that he or she did not have
reason to know in the exercise of due care that the manufactured
home is not in conformity with applicable federal standards; or
(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 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 who
engages in business in this state 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) 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.
(e) 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.
(f) Nothing in this article applies to any bank or financial
institution engaged in the disposal of foreclosed or repossessed
manufactured homes.
NOTE: The purpose of this bill is to remove certain
limitations on recovery from manufacturer, dealer, distributor or
contractor bonds in manufactured housing purchase. The bill
increases fines for violations and shortens the complaint period.
Certain specific defects are also spelled out in the bill for which
fines may be levied.
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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