Committee Substitute
House Bill 2961 History
OTHER VERSIONS -
Introduced Version
|
Enrolled Version - Final Version
|
Engrossed Committee Substitute
|
| 
Email
Key: Green = existing Code. Red = new code to be enacted
COMMITTEE SUBSTITUTE
FOR
H. B. 2961
(By Delegates Warner and Shelton)
(Originating in the Committee on the Judiciary)
[March 30, 2001]
A BILL to amend and reenact sections two, four, six, eight and
eighteen, article six, chapter seventeen-a of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended; and to further amend said article by adding thereto
a new section, designated two-a, all relating to the
establishment of a dealer recovery fund.
Be it enacted by the Legislature of West Virginia:
That sections two, four, six, eight and eighteen, article
six, chapter seventeen-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended and
reenacted; and that said article be further amended by adding a
new section, designated two-a
, all to read as follows:
ARTICLE 6. LICENSING OF DEALERS, WRECKERS OR DISMANTLERS;
SPECIAL PLATES; TEMPORARY PLATES OR MARKERS
§17A-6-2. Legislative findings, declaration of public policy and
dealer recovery fund.
(a) The Legislature hereby determines and finds that in the
past some few persons engaged in the business of selling new or
used motor vehicles, house trailers, trailers, recreational
vehicles, motorcycles, or used motor vehicle parts, and in the
business of wrecking or dismantling motor vehicles, have not had
the necessary qualifications, staff, equipment or facilities to
adequately serve the public; that some few persons engaged in
said the businesses have made false and deceptive claims and
advertisements to the public and have engaged in fraud and other
illegal conduct; that certain citizens of this state have
sustained financial losses as a result thereof; and that in some
of said the
cases there has been no adequate means to prevent
said the
conduct or protect the interests of the citizens of West
Virginia. It is, therefore, declared to be the public policy of
this state that the business of new motor vehicle dealer, used
motor vehicle dealer, house trailer dealer, trailer dealer,
recreational vehicle dealer, motorcycle dealer, used parts
dealer, or wrecker or dismantler, affects the general welfare of
this state and its citizens; that persons without the necessary
qualifications, staff, equipment or facilities to adequately
serve the public, and persons not of good character or who have or are likely to attempt to misrepresent their product or engage
in fraudulent or other illegal conduct should not engage in such
businesses; and that such evils may best be prevented and the
interests of the public best served by requiring persons in such
businesses to meet the qualifications set forth in this article
and to be licensed by the commissioner of motor vehicles as
provided in this article.
(b) The Legislature further determines and finds that there
exists a significant problem when a motor vehicle dealer goes
out of business or engages in business practices so as to cause
citizens or businesses of the affected community, as well as this
state substantial financial loss. It is, therefore determined,
that the creation of a dealer recovery fund is necessary as a
remedial measure to allow both the state and the citizens of this
state to recover any taxes which have not been properly remitted
to the state and to provide financial relief to citizens,
businesses and other motor vehicle dealers who have suffered
financial harm through the failure of a motor vehicle dealer to
properly fulfill its responsibilities such as failure to properly
release liens and deliver clear title in motor vehicle
transactions.
(c) The provisions of this article relating to recreational
vehicles and recreational vehicle dealers shall become effective on the first day of July, one thousand nine hundred eighty-nine.
§17A-6-2a. Dealer recovery fund created.
(a) There is hereby created a special fund in the state
treasury which is to be designated the "dealer recovery fund."
The fund shall consist of certain moneys received from persons
engaged in the business of selling new or used motor vehicles,
new or used motorcycles, trailers, semi-trailers or recreational
vehicles or from grants, gifts, bequests or awards arising out of
the settlement or adjudication of a claim. The fund is not to be
treated by the auditor and treasurer as part of the general
revenue of the state. The fund is to be a special revolving fund
paid out upon order of the commissioner of motor vehicles based
on the recommendation of the dealer recovery fund control board
created in this section, solely for the purposes specified in
this section. The commissioner may use funds drawn from the
dealer recovery fund for the administrative expenses of
operating the dealer recovery fund program. Payment of
administrative costs cannot exceed one percent of the available
fund.
(b) The dealer recovery fund control board shall consist of
the commissioner of motor vehicles or designee, attorney
general's designee representing the office of consumer
protection and one representative selected by the motor vehicle dealer's advisory board. The commissioner of motor vehicles or
designee shall serve as chair and the board shall meet at least
once a year during the month of July, and as required by the
commissioner. The commissioner may promulgate rules as necessary
to effectuate the provisions of this section. The commissioner
may employ the necessary staff needed to operate the program.
The board shall have the authority to prorate the amount paid on
claims when the amount of valid claims submitted would exceed
thirty-three percent of the fund. However, claims presented by
the division of motor vehicles for taxes and fees will be paid in
full. The board shall have the authority to purchase insurance
at a cost not to exceed one percent of the fund
to cover
extraordinary or excess claims from the fund.
(c) Every applicant for either an original dealer license or
renewal of an existing dealer license of the type enumerated in
subsection (a) of this section shall pay, in addition to any
other license fee, an annual dealer recovery fund fee of one
hundred and fifty dollars. All dealers must continue to maintain
a surety bond as required by this article and the dealer recovery
fund payment unless exempt by one of the following requirements:
(1) Any dealer who, for the three years immediately
preceding assessment of the fees, has not had a claim paid
against their bond or against the dealer recovery fund, whose license has not been suspended or revoked and who has not been
assessed any civil penalties is not required to continue to keep
the bond required by this article. However, no dealer can submit
a claim against the fund unless it has contributed to the fund
for at least three years.
(2) If the dealer recovery fund reaches or exceeds the
amount of three million dollars as of the first day of July of
any year, a dealer who meets the requirements of subdivision (1)
of this subsection, is exempt from payment of the annual dealer
recovery fund fee. However, if the fund should, as of the first
day of April of any year, drop below three million dollars, all
dealers, regardless of any previous exemption is to be required
to pay the annual dealer recovery fee of one hundred fifty
dollars. The exemption prescribed in subdivision (1) of this
subsection shall remain in effect regardless of the status of the
fund.
(d) The dealer recovery fund control board may consider
payment only after any dealer surety bond required pursuant to
the provisions of section four of this article has been
exhausted.
(e) When the fund reaches two hundred fifty thousand
dollars, the board shall consider claims for payment.
(f) Claims against the fund are not to be made for any act or omission which occurred prior to the first day of July, two-
thousand and two (July 1, 2002).
(g) Claims for payment must be submitted within six months
of the date of sale or the date the division is made aware of the
claim.
(h) The board shall pay claims in the following order
submitted by:
(1) The division of motor vehicles for unpaid taxes and
fees;
(2) A retail purchaser of a vehicle from a dealer covered by
the fund with an undisclosed lien or a retail purchaser of a
vehicle from a dealer covered by the fund who finds that the lien
on the vehicle traded in has not been satisfied by the selling
dealer if such lien satisfaction was a condition of the purchase
agreement; or
(3) A motor vehicle dealer contributing to the fund, which
has purchased a vehicle or vehicles from another dealer covered
by the fund with an undisclosed lien.
(4) A retail purchaser of third party goods or services from
a dealer covered by the fund for the unpaid charges when the
dealer fails to pay the third party for the goods or services.
(i) The maximum claim against the fund for any unpaid lien
of a used vehicle is the unpaid balance of the lien up to the loan value of the vehicle as of the date of the sale or other
transaction as shown by a generally accepted motor vehicle value
guide. The maximum claim against the fund for any new or unused
vehicle is the amount of the invoice less any amounts rebated or
to be rebated to the dealer from the manufacturer. Payment is
only to be made to a secured party who agrees to accept payment
from the dealer recovery fund and who accepts the payment in full
settlement of any claims, and who releases the lien and the
title, if applicable, prior to receiving payment. Any dealer who
agrees to accept payment from the dealer recovery fund must
release the title prior to receiving payment.
(j) On payment by the board to a claimant from the fund, the
board shall immediately notify the licensee against whom a claim
was paid and request full reimbursement within thirty days of
notification. If a dealer fails to fully reimburse the board
within the specified period of time, the commissioner shall
immediately and without prior hearing revoke the dealer license
of dealer against whom the claim was paid. No applicant with an
unpaid claim is eligible for renewal or relicensure until the
full amount of the reimbursement plus interest as determined by
the board is paid to the fund. Nothing in this section shall
limit the authority of the commissioner to suspend, revoke or
levy civil penalties against a dealer, nor shall full repayment of the amount owed to the fund necessarily nullify or modify the
effect of any action by the commissioner.
(k) Nothing in this section shall limit the right for any
person to seek relief though civil action against any other
person.
§17A-6-4. Application for license certificate; insurance; bonds;
investigation; information confidential
.
(a) Application for any license certificate required by
section three of this article shall is to be made on a form
prescribed by the commissioner. There shall is to
be attached to
the application a certificate of insurance certifying that the
applicant has in force an insurance policy issued by an insurance
company authorized to do business in this state insuring the
applicant and any other person, as insured, using any vehicle or
vehicles owned by the applicant with the express or implied
permission of the named insured, against loss from the liability
imposed by law for damages arising out of the ownership,
operation, maintenance or use of the vehicle or vehicles, subject
to minimum limits, exclusive of interest and costs, with respect
to each vehicle, as follows: Twenty thousand dollars because of
bodily injury to or death of one person in any one accident and,
subject to the limit for one person, forty thousand dollars
because of bodily injury to or death of two or more persons in any one accident, and ten thousand dollars because of injury to
or destruction of property of others in any one accident.
(b) In the case of an application for a license certificate
to engage in the business of new motor vehicle dealer, used motor
vehicle dealer or house trailer dealer, the application shall
disclose, but not be limited to, the following:
(1) The type of business for which a license certificate is
sought;
(2) If the applicant is an individual, the full name and
address of the applicant and any trade name under which he or she
will engage in the business;
(3) If the applicant is a copartnership, the full name and
address of each partner therein, the name of the copartnership,
its post-office address and any trade name under which it will
engage in the business;
(4) If the applicant is a corporation, its name, the state
of its incorporation, its post-office address and the full name
and address of each officer and director thereof;
(5) The location of each place in this state at which the
applicant will engage in the business and whether the business is
owned or leased by the applicant;
(6) Whether the applicant, any partner, officer or director
thereof has previously engaged in the business or any other business required to be licensed under the provisions of this
article and if so, with or for whom, at what location and for
what periods of time;
(7) Whether the applicant, any partner, officer, director
or employer thereof has previously applied for a license
certificate under the provisions of this article or a similar
license certificate in this or any other state, and if so,
whether the license certificate was issued or refused, and, if
issued, whether it was ever suspended or revoked;
(8) A statement of previous general business experience and
the past history of the applicant; and
(9) Any other information that the commissioner may
reasonably require which may include information relating to any
contracts, agreements or understandings between the applicant and
other persons respecting the transaction of the business, and any
criminal record of the applicant if an individual, or of each
partner if a copartnership, or of each officer and director, if
a corporation.
(c) In the case of an application for a license certificate
to engage in the business of new motor vehicle dealer, the
application shall, in addition to the matters outlined in
subsection (b) of this section disclose:
(1) The make or makes of new motor vehicles which the
applicant will offer for sale in this state during the ensuing
fiscal year; and
(2) The exact number of new and used motor vehicles, if any,
sold at retail and wholesale by the applicant or his or her
predecessor, if any, during the preceding fiscal year, and if no
new and used motor vehicles were sold at retail and wholesale by
the applicant or his or her predecessor, if any, during the
preceding fiscal year, the number of new and used motor vehicles
the applicant reasonably expects to sell at retail and wholesale
during the ensuing fiscal year.
(d) In the case of an application for a license certificate
to engage in the business of used motor vehicle dealer, the
application shall in addition to the matters outlined in
subsection (b) of this section, disclose the exact number of used
motor vehicles, if any, sold at retail and wholesale by the
applicant or his or her predecessor, if any, during the preceding
fiscal year, and if no used motor vehicles were sold at retail
and wholesale by the applicant or his or her predecessor, if any,
during the preceding fiscal year, the number of used motor
vehicles the applicant reasonably expects to sell at retail and
wholesale during the ensuing fiscal year.
(e) In the case of an application for a license certificate
to engage in the business of trailer dealer, recreational vehicle
dealer, motorcycle dealer, used parts dealer or wrecker/
dismantler/rebuilder, the application shall disclose any
information that the commissioner may reasonably require.
(f) The application shall is to
be verified by the oath or
affirmation of the applicant, if an individual, or if the
applicant is a copartnership or corporation, by a partner or
officer thereof, as the case may be. Except as provided in
section two-a of this article, The the application must be
accompanied by a bond of the applicant in the penal sum of ten
thousand dollars, in the form prescribed by the commissioner,
conditioned that the applicant will not in the conduct of his or
her business practice any fraud which, or make any fraudulent
representation which, shall cause a financial loss to any
purchaser, seller or financial institution or agency, or the
state of West Virginia, with a corporate surety thereon
authorized to do business in this state, which bond shall is to
be effective as of the date on which the license certificate
sought is issued.
(g) Upon receipt of any fully completed application,
together with any bond required under subsection (f) of this
section, the certificate of insurance as aforesaid and the appropriate fee provided for in section ten of this article, the
commissioner may conduct any investigation as he or she considers
necessary to determine the accuracy of any statements contained
in the application and the existence of any other facts which he
or she deems considers relevant in considering such the
application. To facilitate the investigation, the commissioner
may withhold issuance or refusal of the license certificate for
a period not to exceed twenty days.
(h) Any application for a license certificate under the
provisions of this article and any information submitted with the
application is confidential for the use of the division. No
person shall divulge any information contained in any application
or any information submitted with the application except in
response to a valid subpoena or subpoena duces tecum issued
pursuant to law.
§17A-6-6. Refusal or issuance of license certificate; license
certificate not transferable.
Webmaster | © 2024 West Virginia Legislature **
