COMMITTEE SUBSTITUTE
FOR
H. B. 2570
(By Delegates Faircloth, Given,
Manuel and Mezzatesta)
(Originating in the Committee on Finance)
[April 1, 1997]
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; to further amend
said chapter by adding thereto a new article, designated
article six-d; and to amend and reenact section three, article
ten of said chapter, all relating to removing the privilege
tax on vehicles sold to automobile rental businesses and
imposing instead a daily tax of one dollar and fifty cents to
be paid by the rental business; requiring a license
certificate; imposing a daily passenger rental car tax;
specifying liability of officers of corporation; requiring tax
returns; authorizing promulgation of legislative rules;
requiring an annual return; requiring an applicant be bonded
and specifying amount of bond; specifying fee for license
certificate; providing for investigation prior to issuance of license certificate; specifying grounds for refusal of license
certificate; setting forth when license application to be
made, expiration of license certificate; renewal; form and
display of license certificate; certified copies of license;
changes in business; action required; investigation; grounds
for suspending or revoking a license certificate; notice;
relinquishing license certificate; inspections; violations;
penalties; injunctive relief; promulgation of rules;
severability; fees for registration; classification of
vehicles for purpose of registration.
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;
that said
chapter be further amended by adding thereto a new article,
designated article six-d;
and
that section three, article ten of
said chapter be amended and reenacted, 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; exempting from
privilege tax on payments for leased vehicles;
exempting
passenger vehicles from tax for privilege of registration where the passenger vehicle is used for rent in the normal
course of business by a daily passenger car business; revenue
allocations; transfers; penalty for false swearing.
(a) Certificates of registration of any vehicle or
registration plates therefor, whether original issues or
duplicates, shall not be issued or furnished by the division of
motor vehicles or any other officer 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. 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.
(b) A tax is hereby 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 thereof 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 thereof 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 same 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 thereof for the purposes of this section.
(2) No certificate of title for any vehicle shall 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, Class K or Class E
vehicles registered at a gross weight of fifty-five thousand pounds
or more, or to the titling of Class C or Class L 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 must
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, Class K or Class E
vehicles in excess of fifty-five thousand pounds and Class C or
Class L semitrailers, full trailers, pole trailers and converter
gear shall 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 hereby
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 thereof, 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 same 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 such person to
another person and transferred back to such person.
(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 the 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.
(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, house trailers and similar nonmotive propelled vehicles,
except recreational vehicles, 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, is on the first offense guilty of a
misdemeanor, and upon conviction thereof, shall be fined not more
than five hundred dollars or be imprisoned in the county jail for a period not to exceed six months, or, in the discretion of the
court, both fined and imprisoned. 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 that person returns to this state or the date
his or her dependent returns to this state, whichever is later.
(f) After the first day of July, one thousand nine hundred
ninety-seven, 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 imprisoned in the county or
regional jail for not more than one year or, both fined and
imprisoned. For each subsequent offense, the fine may be increased to not more than two thousand dollars, with imprisonment in the
county or regional jail not more than one year or, both fined and
imprisoned.
(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.
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 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 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 such information the commissioner requires.
Such application shall be verified by an oath or affirmation of the
applicant, if an individual, or if the applicant is a copartnership
or corporation, by a partner or officer thereof.
§17A-6D-2. Daily passenger car rental tax imposed.
The purpose of this article is to impose the daily passenger
rental car rental tax.
A tax of one dollar and fifty cents is
hereby imposed for each day or part thereof of the period of
rental, and is in addition to the taxes imposed by articles fifteen
and fifteen-a, chapter eleven of this code. 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.
The daily passenger car business shall complete
such returns as required by the commissioner of motor vehicles,
with such returns required monthly with the remittance, and an
annual return which summarizes the monthly returns. 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 a legislative rule pursuant to the
provisions of chapter twenty-nine-a of this code setting forth
pertinent information regarding the collection of the tax herein
imposed, 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 or suspend
the license certificate set forth in this article.
§17A-6D-3. Liability of officers of corporation, etc.
If the taxpayer is an association or corporation, the officers
thereof shall be personally liable, jointly and severally, for any
default on the part of the association or corporation, and payment
of the tax and any additions to tax, penalties and interest thereon
imposed by this article may be enforced against them as against the
association or corporation which they represent.
Any failure to
collect the tax imposed in this article and any failure to timely
remit to the commissioner of motor vehicles the tax imposed by this
article or any failure to do either and 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 tax commissioner 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 tax commissioner 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 shall cause 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 such bond may cancel such bond upon giving
thirty days notice to the commissioner and thereafter 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 renewal fee for such 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 such
investigation as necessary to determine the accuracy of any
statements contained in the application and the existence of any
other facts relevant on considering such application. To
facilitate such 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 therewith shall be
confidential forth use of the division. No person may divulge any
information contained in any application or any information
submitted therewith, 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) So far as can be ascertained, 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; or
(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 in then issued and outstanding.
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, which denial is final and conclusive unless an appeal is taken. Otherwise, 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 ampliation 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, one thousand nine
hundred ninety-eight. This license shall be valid for one year.
(b) Any initial application made after the first day of
January, one thousand nine hundred ninety-eight, 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 after 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 thereon 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 such 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, upon application therefor,
obtain from the commissioner, for each such place of business, one
certified copy of the license certificate. A fee of one dollar
shall be paid for each such certified copy thereof conspicuously
posted at each place of business.
(c) In the event of the loss or destruction of a license
certificate or a certified copy thereof, the licensee shall
immediately make application for a certified copy of the license
certificate. A fee of one dollar shall be required for any such
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
thereof;
(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 subdivision (3) change is involved, 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 such 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 shall be required for the issuance of any new
license certificate issued as a result of any change specified in
this section.
No new license certificate shall be required for any trustee
in bankruptcy, trustee under an assignment for by 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 such business or protecting the interests of the
creditors of such 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 and temporary plates or markers.
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 tilting 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 such 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 such 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 refused 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 such
order to be served in person or by certified mail, return receipt
requested, on the applicant or licensee, as the case may be.
(e)Suspensions hereunder shall continue until the cause
therefore 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
the division his or her license certificate and any other herein
specified, 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 license certificate, which application shall 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
such license certificate.
§17A-6D-13. Inspections; violations and penalties.
(a)The commissioner and all law-enforcement officers of the
state, 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 any such inspection, the
commissioner and such law-enforcement officers are authorized, at
reasonable times, to enter in and upon such place of business.
(b)Any person who shall violate any provision of this
article or any final order of the commissioner or board hereunder
shall be guilty of a misdemeanor, and the provisions of article
eleven of this chapter governing violations of this chapter shall
be fully applicable thereto.
§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 such
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, be 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
chapter twenty-nine-a of this code in order to effect the
provisions of this article.
§17A-6D-16. Severability.
If any of the provisions of this article are held invalid,
such invalidation shall not affect other provisions which can be
given effect without the invalid provisions and to this end the
provisions of this article are declared to be severable.
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 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 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 10. FEES FOR REGISTRATION, LICENSING, ETC.
§17A-10-3. Registration fees for vehicles equipped with pneumatic tires.
The following registration fees for the classes indicated
shall be paid to the division for the registration of vehicles
subject to registration under this chapter when equipped with pneumatic tires:
(a) Registration fees for the following classes shall be paid
to the division annually:
(1) Class A. -- The registration fee for all motor vehicles of
this class is twenty-eight dollars and fifty cents: Provided, That
the registration fees and any other fees required by this chapter
for Class A vehicles under the optional biennial staggered
registration system shall be multiplied by two and paid biennially
to the division.
No license fee shall be charged for vehicles owned by
churches, or by trustees for churches, which are regularly used for
transporting parishioners to and from church services.
Notwithstanding the exemption, the certificate of registration and
license plates shall be obtained the same as other cards and plates
under this article.
(2) Class B, Class E and Class K. -- The registration fee for
all motor vehicles of these three classes is as follows:
(A) For declared gross weights of eight thousand one pounds to
sixteen thousand pounds -- twenty-eight dollars plus five dollars
for each one thousand pounds or fraction thereof that the gross
weight of the vehicle or combination of vehicles exceeds eight
thousand pounds.
(B) For declared gross weights greater than sixteen thousand
pounds, but less than fifty-five thousand pounds -- seventy-eight
dollars and fifty cents plus ten dollars for each one thousand
pounds or fraction thereof that the gross weight of the vehicle or
combination of vehicles exceeds sixteen thousand pounds.
(C) For declared gross weights of fifty-five thousand pounds
or more -- seven hundred thirty-seven dollars and fifty cents plus
fifteen dollars and seventy-five cents for each one thousand pounds
or fraction thereof that the gross weight of the vehicle or
combination of vehicles exceeds fifty-five thousand pounds.
(3) Class C and Class L. -- The registration fee for all
vehicles of these two classes is seventeen dollars and fifty cents
except that semitrailers, full trailers, pole trailers and
converter gear registered as Class C and Class L may be registered for a period of ten years at a fee of one hundred dollars.
(4) Class G. -- The registration fee for each motorcycle is
eight dollars.
(5) Class H. -- The registration fee for all vehicles for this
class operating entirely within the state is five dollars; and for
vehicles engaged in interstate transportation of persons, the
registration fee is the amount of the fees provided by this section
for Class B, Class E and Class K reduced by the amount that the
mileage of the vehicles operated in states other than West Virginia
bears to the total mileage operated by the vehicles in all states
under a formula to be established by the division of motor
vehicles.
(6) Class J. -- The registration fee for all motor vehicles of
this class is eighty-five dollars. Ambulances and hearses used
exclusively as such are exempt from the special fees set forth in
this section.
(7) Class S. -- The registration fee for all vehicles of this
class is seventeen dollars and fifty cents.
(8) Class U. -- The registration fee for all vehicles of this
class is fifty-seven dollars and fifty cents.
(9) (8) Class Farm Truck. -- The registration fee for all
motor vehicles of this class is as follows:
(A) For farm trucks of declared gross weights of eight
thousand one pounds to sixteen thousand pounds -- thirty dollars.
(B) For farm trucks of declared gross weights of sixteen
thousand one pounds to twenty-two thousand pounds -- sixty dollars.
(C) For farm trucks of declared gross weights of twenty-two
thousand one pounds to twenty-eight thousand pounds -- ninety
dollars.
(D) For farm trucks of declared gross weights of twenty-eight
thousand one pounds to thirty-four thousand pounds -- one hundred
fifteen dollars.
(E) For farm trucks of declared gross weights of thirty-four
thousand one pounds to forty-four thousand pounds -- one hundred
sixty dollars.
(F) For farm trucks of declared gross weights of forty-four
thousand one pounds to fifty-four thousand pounds -- two hundred
five dollars.
(G) For farm trucks of declared gross weights of fifty-four
thousand one pounds to sixty-four thousand pounds -- two hundred
fifty dollars.
(b) Registration fees for the following classes shall be paid
to the division for a maximum period of three years, or portion
thereof based on the number of years remaining in the three-year period designated by the commissioner:
(1) Class R. -- The annual registration fee for all vehicles
of this class is twelve dollars.
(2) Class T. -- The annual registration fee for all vehicles
of this class is eight dollars.
(c) The fees paid to the division for a multi-year
registration provided for by this chapter shall be the same as the
annual registration fee established by this section and any other
fee required by this chapter multiplied by the number of years for
which the registration is issued.