H. B. 4095
(By Delegates Thompson, Kominar, Seacrist,
Jenkins, H. White, Hutchins and L. White)
[Introduced January 26, 1998; referred to the
Committee on Banking and Insurance then Government
A BILL to amend chapter thirty-two-a of the code of West
Virginia, one thousand nine hundred thirty-one, as amended
by adding thereto two new articles, designated articles
three and four, all relating to licensing and regulating the
businesses of the issuance and sale of checks and money
orders, money transmitting, currency exchange, currency
transportation and check cashing.
Be it enacted by the Legislature of West Virginia:
That chapter thirty-two-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto two new articles, designated articles three and
four, all to read as follows:
CHAPTER 32A. LAND SALES; FALSE ADVERTISING; ISSUANCE
AND SALE OF CHECKS, DRAFTS, MONEY ORDERS, ETC.
ARTICLE 3. CHECKS AND MONEY ORDER SALES, MONEY TRANSMISSION SERVICES, TRANSPORTATION AND CURRENCY EXCHANGE.
(1) "Commissioner" means the commissioner of banking of this
(2) "Check" means any check, traveler's check, draft, money
order, personal money order or other instrument for the
transmission or payment of money.
(3) "Currency" means a medium of exchange authorized or
adopted by a domestic or foreign government.
(4) "Currency exchange" means the conversion of the currency
of one government into the currency of another government, but
does not include the issuance and sale of traveler's checks
denominated in a foreign currency.
(5) "Currency exchange, transportation, transmission
business" means a person who is engaging in currency exchange,
currency transportation, or currency transmission as a service or
(6) "Currency transmission" or "money transmission" means
engaging in the business of receiving currency for the purpose of
transmitting the currency or its equivalent by wire, computer
modem, facsimile, or other electronic means, or through the use
of a financial institution, financial intermediary, the federal
reserve system, or other funds transfer network. It includes check cashing as set forth in article three of this chapter and
the transmission of funds through the issuance and sale of stored
value cards which are intended for general acceptance and use in
commercial or consumer transactions.
(7) "Licensee" means a person licensed by the commissioner
under this article.
(8) "Person" means any individual, partnership, association,
joint stock association, trust or corporation, but does not
include the United States of America, any department, agency,
commission or officer thereof, the state of West Virginia, any
department, agency, commission or officer thereof, or any
political subdivision of or any municipality in this state.
(9) "Personal money order" means any instrument for the
transmission or payment of money in relation to which the
purchaser or remitter appoints or purports to appoint the seller
thereof as his agent for the receipt, transmission or handling of
money, whether such instrument be signed by the seller or by the
purchaser or remitter or some other person.
(10) "Principal" means an owner, officer, director, partner,
trustee, agent, or other person participating in the conduct of
the affairs of a licensee or exercising supervisory duties.
(11) "Securities" means all bonds, debentures or other
evidences of indebtedness (a) issued by the United States of America or any agency thereof, or guaranteed by the United States
of America, or for which the credit of the United States of
America or any agency thereof is pledged for the payment of the
principal and interest thereof; and/or (b) which are direct
general obligations of this state, or any other state if
unconditionally guaranteed as to the principal and interest by
such other state and if such other state has the power to levy
taxes for the payment of the principal and interest thereof and
is not in default in the payment of any part of the principal or
interest owing by it upon any part of its funded indebtedness;
and/or (c) which are general obligations of any county, school
district or municipality in this state issued pursuant to law and
payable from ad valorem taxes levied on all of the taxable
property located therein, if such county, school district or
municipality is not in default in the payment of any part of the
principal or interest on any debt evidenced by its bonds,
debentures or other evidences of indebtedness.
§32A-3-2. License required.
(a) Except as provided by section three of this article, a
person may not engage in the business of issuing and selling
checks or money orders, or the business of currency exchange,
transportation or transmission in this state without a license
issued under this article.
(b) Any person who was previously licensed as a check seller
under this chapter and holds a valid license on the effective
date of this article, shall be issued a provisional license under
this article without the need of an additional application and
fee. This provisional license shall expire upon six months of
its issuance, during which time said licensee may continue to
conduct its check selling business, provided that it maintains
the net worth and security required under its previous license.
The commissioner may require the licensee to obtain expanded bond
coverage consistent with this article for the protection of
purchasers of money transmission services and currency exchange
services, as well as for covered currency transportation
services, where the licensee conducts such business(es). At the
expiration of a provisional license granted by this section, said
person must apply for a license and meet the criteria under the
provisions of this article, if they wish to continue to engage in
any business regulated hereunder. A provisional license granted
by this section may upon hearing be suspended or revoked by the
commissioner for good cause shown.
(a) The following are exempt from the provisions of this
(1) Banks, trust companies, foreign bank agencies, credit unions, savings banks and savings and loan associations
authorized to do business in the state, or which qualify as
federally insured depository institutions, whether organized
under the laws of this state, any other state, or the United
(2) The United States and any department or agency thereof;
(3) This state and any political subdivision thereof;
(4) Persons engaged in the business of currency
transportation who transport money only on behalf of above-listed
exempt financial institutions or governmental entities, or solely
for delivery to or from said financial institutions or
governmental entities in the regular course of business:
Provided, That such exemption does not authorize said persons to
engage in the business of currency exchange or transmission or
the business of issuing and selling checks without a license
issued under this article. Persons seeking to claim this
exemption must notify the commissioner of their intent to do so
and demonstrate that they qualify for its use; and
(5) Persons who receive money for transmission as an
incident to the conduct of another lawful business, provided that
such exemption does not authorize said persons to engage in the
business of currency exchange or transportation, or the business
of issuing and selling checks without a license issued under this article.
(b) Any person who holds and maintains a valid license under
this article may engage in the business of issuing and selling
checks, or the business of money transmission at one or more
locations in this state through or by means of an agent or agents
as set forth in section twenty-seven of this article as said
licensee may designate and appoint from time to time, and no such
authorized agent shall be required to obtain a separate license
under this article, provided that such locations limit their
transactions to accepting United States currency and do not
engage in foreign currency exchange.
(c) The issuance and sale of stored value cards which are
intended to purchase items from a specific seller, provider or
business is exempt from the provisions of this article.
§32A-3-4. License application, issuance and renewal.
(a) An applicant for a license must submit an application to
the commissioner on a form prescribed by the commissioner.
(b) Each application must be accompanied by a nonrefundable
application fee and a license fee. If the application is
approved, the application fee is the license fee for the first
year of licensure.
(c) The commissioner shall issue a license if the
commissioner finds that the applicant meets the requirements of this article and the rules adopted under this article. A license
is valid for one year from the date the license is issued by the
(d) A separate license is required for each location at
which currency is exchanged. A person who desires to operate
more than one location for currency exchange must submit a
separate application for each location. The licensee shall
prominently display the license at the place of business for
which the license was issued.
(e) As a condition for renewal of a license, the licensee
must submit to the commissioner an application for renewal on a
form prescribed by the commissioner and an annual license renewal
(f) A license issued under this article may not be
transferred or assigned.
(g) An applicant for a license who is not located in this
state must file an irrevocable consent, duly acknowledged, that
suits and actions may be commenced against the applicant in the
courts of this state by service of process upon a person located
within the state designated to accept service, or by service upon
the secretary of state, as well as by service as set forth in
(a) The commissioner shall charge and collect the license
application fees, license fees, license renewal fees and
examination fees in amounts reasonable and necessary to defray
the cost of administering this article as set forth below.
(1) For applying for a license, an application and licensing
fee of five hundred dollars, plus ten dollars for each location
within the state at which the applicant and its authorized agents
are conducting business or propose to conduct business excepting
the applicant's principal place of business.
(2) For renewal of a license, a fee of two hundred fifty
dollars, plus ten dollars for each location within the state at
which the licensee and its authorized agents are conducting
business or propose to conduct business excepting the applicant's
principal place of business.
(3) For an application to add an authorized agent location,
ten dollars for each location.
(4) For a change in address by the licensee, a fee of one
(5) For failure to timely submit an application of renewal
or file financial statements required for renewal as set forth in
this article, a penalty fee of ten dollars per day for each day
late, unless an extension of time has been granted or the fee
waived by the commissioner.
(b) Beginning one year after the effective date of this
article, the commissioner may, by rule, amend the fees set forth
in this section and in subsection (b), section eleven of this
(c) Fees and moneys received and collected under this
article shall be paid into the special revenue account in the
state treasury for the division of banking established in section
eight, article two, chapter thirty-one-a of this code.
§32A-3-6. Denial of license or renewal of license.
(a) The commissioner may deny the granting of a license or
renewal of a license for a failure to comply or otherwise meet
the requirements and qualifications of this article or a rule
adopted under this article, including failure to submit a
(b) The denial of a license or denial of renewal by the
commissioner and the appeal from that action are governed by the
procedures for a contested case hearing under the provisions of
article five, chapter twenty-nine-a of this code and shall
conform to that provided for financial institutions pursuant to
sections one and two, article eight, chapter thirty-one-a of this
code and the rules thereto.
(c) Whenever the commissioner shall refuse to issue a
license, or shall refuse to renew a license, 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, or in any other manner in which process in a civil
action in this state may be served, on the applicant or licensee,
as the case may be.
§32A-3-7. Adoption of rules.
The commissioner may promulgate rules as he or she deems
appropriate to implement, interpret or effectuate this article,
including rules regarding the record-keeping and reporting
requirements of a licensee.
§32A-3-8. Qualifications for license or renewal of license.
(a) Before the commissioner issues a license to an
applicant, the commissioner must determine that the financial
condition, business experience and character and general fitness
of an applicant are such that the issuance of a license to the
applicant under this article is in the public interest.
(b) An applicant for a license must agree in writing to
comply with the currency reporting and record-keeping
requirements of 31 U.S.C. §5313, 31 C.F.R. Part 103, and other
relevant federal law.
(c) A person is not eligible for a license or must surrender
an existing license if, during the previous ten years:
(1) The person or a principal of the person, if a business:
(A) Has been convicted of a felony or a crime involving
fraud, deceit, or moral turpitude under the laws of this state,
any other state, or the United States;
(B) Has been convicted of a crime under the laws of another
country that involves fraud, deceit or moral turpitude or would
be a felony if committed in the United States; or
(C) Has been convicted under a state or federal law relating
to currency exchange or transmission or any state or federal
monetary instrument reporting requirement; or
(2) The person, a principal of the person, or the spouse of
the person has been convicted of an offense under a state or
federal law relating to drug trafficking, money laundering, or a
reporting requirement of the Bank Secrecy Act (Pub. L. 91-508).
(d) An applicant for a license must demonstrate that the
(1) Has not recklessly failed to file or evaded the
obligation to file a currency transaction report as required by
31 U.S.C. Section 5313 during the previous three years;
(2) Has not recklessly accepted currency for exchange,
transport or transmission during the previous three years in
which a portion of the currency was derived from an illegal
transaction or activity;
(3) Will conduct its authorized business within the bounds of state and federal law;
(4) Warrants the trust of the community;
(5) Has and will maintain a minimum net worth of fifty
thousand dollars, computed according to generally accepted
accounting principles as shown by financial statements filed with
and satisfactory to the commissioner, and in addition has and
will maintain a minimum net worth of twenty-five thousand
dollars, computed according to generally accepted accounting
principles for each office or agent location in the state other
than its principal office at which its licensed business is
transacted, except that an applicant for a license or renewal of
a license may not be required to maintain a net worth of more
than one million dollars, computed according to generally
accepted accounting principles; and
(6) Does not owe delinquent taxes, fines or fees to any
local, state or federal taxing authority or governmental agency,
department or other political subdivision.
(e) A person is not eligible for a license, and a person who
holds a license shall surrender the license to the commissioner,
if the person or a principal of the person has at any time been
(1) A felony involving the laundering of money that is the
product of or proceeds from criminal activity under chapter sixty-one of this code, or a similar provision of the laws of
another state or the United States; or
(2) A felony violation of 31 U.S.C. Section 5313 or 5324 or
a rule adopted under those sections.
(f) Before approving an application for a license, the
commissioner may, in his or her discretion, conduct an on-site
investigation of an applicant at the sole expense of the
applicant and may require the applicant to pay a nonrefundable
payment of the anticipated expenses for conducting the
investigation. Failure to make the payment or cooperate with the
investigation is grounds for denying the application.
§32A-3-9. Access to criminal history information.
The commissioner may refuse to grant a license or may suspend
or revoke a license if the applicant, licensee, principal of the
applicant or licensee, or spouse of such persons fails to provide
upon request a complete set of fingerprints, recent photograph,
or other information sought by the commissioner relevant to
conducting an adequate criminal background check.
(a) A person who is licensed under this article shall post
a bond with a qualified surety company doing business in this
state that is acceptable to the commissioner. The bond shall be
in an amount determined by the commissioner. The commissioner shall determine the amount of the bond based on the dollar
volumes of the licensee's currency exchange, transportation or
transmission business as well as the dollar volume of checks and
money orders sold and outstanding, but the bond must be at least
twenty-five thousand dollars for a person conducting a currency
exchange business; at least three hundred thousand dollars for a
person conducting a currency transmission or currency
transportation business; and the bond for issuing and sale of
checks and money orders shall be at least one hundred thousand
(b) Instead of the bond(s) required under subsection (a) of
this section, a licensee, with the prior written permission of
the commissioner, may deposit with the commissioner or a
federally-insured depository institution in this state designated
by the licensee and approved for such purpose by the
commissioner, United States currency or cash equivalent
instruments or securities acceptable to the commissioner. The
amount of currency or the fair market value of the instruments or
securities must be an amount equal to or exceeding the amount
required for the bond(s) under subsection (a) of this section.
When securities are deposited as aforesaid, the value of such
securities must at all times be equal to the amount of bond(s)
otherwise required, computed on the basis of the principal amount or the market value thereof, whichever is lower.
(c) A bond posted by a licensee must be conditioned so that
as long as the person holds the license the person will not
violate this article or a rule adopted under this article. The
deposit or bond, as the case may be, shall be made to the state
of West Virginia for the benefit and protection of any claimant
against the applicant or licensee with respect to the receipt,
handling, transmission and payment of money by the licensee or
authorized agent in connection with the licensed operations in
this state. A claimant damaged by a breach of the conditions of
the bond or deposit shall upon the assent of the commissioner
have a right of action against the bond or deposit for damages
suffered thereby and may bring suit directly thereon, or the
commissioner may bring suit on behalf of the claimant. The
aggregate liability of the surety in no event shall exceed the
principal sum of the bond. So long as the person making a
deposit under this section is not in violation of any of the
provisions of this article, such person shall be permitted to
receive all interest and dividends on said deposit, and shall
have the right, with the approval of the commissioner, to
substitute other securities. If the deposit is made at a bank,
any custodial fees therefor shall be paid by the person making
(d) A penalty fee under subdivision five, subsection (a),
section five of this article, expenses under section eleven of
this article, or a civil penalty under section nineteen of this
article may be paid out of and collected from the proceeds of a
bond or deposit under this section.
(e) After receiving a license, the licensee must maintain
the required bond(s) or securities until five years after it
ceases to do business in this state unless all outstanding
payment instruments are cleared or covered by the provisions of
article eight, chapter thirty-six of this code pertaining to the
distribution of unclaimed property which have become operative
and are adhered to by the licensee. Notwithstanding this
provision, however, the commissioner may permit the security to
be reduced following cessation of business in the state to the
extent the amount of such licensee's payment instruments
outstanding in this state are reduced.
(f) If the commissioner at any time reasonably determines
that the required bond or deposit is insecure, deficient in
amount, or exhausted in whole or in part, he may in writing
require the filing of a new or supplemental bond or other
security in order to secure compliance with this article and may
demand compliance with the requirement within thirty days
following service on the licensee.
§32A-3-11. Examination and fraudulently structured transactions.
(a) Each licensee is subject to a periodic examination of
the licensee's business records by the commissioner at the
expense of the licensee. For the purpose of carrying out this
article, the commissioner may examine all books, records, papers
or other objects that the commissioner determines are necessary
for conducting a complete examination and may also examine under
oath any principal associated with the license holder, including
an officer, director or employee of the licensee. If a person
required by the commissioner to submit to an examination refuses
to permit the examination or to answer any question authorized by
this article, the commissioner may suspend the person's license
until the examination is completed.
(b) The licensee shall bear the cost of any on-site
examination made pursuant to this section which cost shall be at
a rate of fifty dollars per each examiner hour expended, together
with all reasonable and necessary travel expenses incurred in
connection with the examination.
(c) A person, for the purpose of evading a reporting or
record-keeping requirement of 31 U.S.C. Section 5313, 31 C.F.R.
Part 103, this article, or a rule adopted under this article, may
not with respect to a transaction with a licensee:
(1) Cause or attempt to cause the licensee to:
(A) Not maintain a record or file a report required by a law
listed by this subsection; or
(B) Maintain a record or file a report required by a law
listed by this subsection that contains a material omission or
misstatement of fact; or
(2) Fraudulently structure the transaction.
(d) For the purposes of this article, a person fraudulently
structures a transaction if the person conducts or attempts to
conduct a transaction in any amount of currency with a licensee
in a manner having the purpose of evading a record-keeping or
reporting requirement of this article, or of a law listed by
subsection (c) of this section, including the division of a
single amount of currency into smaller amounts or the conduct of
a transaction or series of transactions in amounts equal to or
less than the reporting or record-keeping threshold of a law
listed by subsection (c) of this section.
(e) A transaction is not required to exceed a record-keeping
or reporting threshold of a single licensee on a single day to be
a fraudulently structured transaction.
§32A-3-12. Investigations and subpoenas.
(a) In addition to the examinations required by section
eleven of this article, the commissioner is authorized to
inspect, examine and audit the books, records, accounts and papers of all licensees at such times as circumstances in his or
her opinion may warrant. The commissioner may call for and
require all such data, reports and information from licensees
under his or her jurisdiction, at such times and in such form,
content and detail, deemed necessary by the commissioner in the
faithful discharge of his or her duties and responsibilities in
the supervision of the licensees.
(b) In connection with the investigations undertaken
pursuant to this article, the commissioner shall have the
authority to issue subpoenas and subpoenas duces tecum,
administer oaths, examine persons under oath, and hold and
conduct hearings, with any such subpoenas or subpoenas duces
tecum to be issued, served and enforced in the manner provided in
section one, article five, chapter twenty-nine-a of this code.
Any person appearing and testifying at such a hearing may be
accompanied by an attorney.
§32A-3-13. Notification requirements.
(a) A licensee must notify the commissioner of any change in
its principal place of business, or its headquarters office if
different from its principal place of business within fifteen
days after the date of the change.
(b) A licensee must notify the commissioner of any of the
following significant developments within fifteen days after gaining actual notice of its occurrence:
(1) The filing of bankruptcy or for reorganization under the
(2) The institution of license revocation or suspension
procedures against the licensee in any other state;
(3) A felony indictment related to money transmission,
currency exchange, fraud, failure to fulfill a fiduciary duty,
or other activities of the type regulated under this article of
the licensee or its authorized agents in this state, or of the
licensee's or authorized agent's officers, directors, controlling
persons or principals; and
(4) A felony conviction or plea related to the money
transmission, currency exchange, fraud, failure to fulfill a
fiduciary duty, or other activities of the type regulated under
this article of the licensee or its authorized agents in this
state, or of the licensee's or authorized agent's officers,
directors, controlling persons or principals.
(c) A licensee must notify the commissioner of any merger or
acquisition which may result in a change of control or a change
in principals of a licensee within fifteen days of announcement
or publication of such proposal. Upon notice of such
circumstances by a corporate licensee, the commissioner may
require all information necessary to determine whether it results in a transfer or assignment and thus if a new application is
required in order for the company to continue doing business
under this article. A licensee that is an entity other than a
corporation shall in such circumstances submit a new application
for licensure at the time of notice.
§32A-3-14. Records maintenance.
(a) A licensee shall keep and use in its business books,
accounts, and records in accordance with generally accepted
accounting principals. A licensee shall retain all of its
records of final entry for the period of time as required in
section thirty-five, article four, chapter thirty-one-a of this
code for banking institutions. The licensee shall also preserve
its general ledger, settlement sheets from its authorized agents,
bank statements and bank reconciliation records for this said
same established period of time.
(b) Unless the documents or data therefrom has been
transmitted to the licensee for recordation, the licensee shall
require its authorized agents to preserve records relating to its
licensed activities for the period set forth in subsection (a) of
(c) Records may be kept using retention technologies,
including nonerasable optical disk, as is provided for banking
institutions and with the same effect as set forth in section thirty-five, article four, chapter thirty-one-a of this code.
(d) A licensee shall maintain records relating to its
business under this article at its principal place of business,
or with notice to the commissioner, at another location
designated by the licensee. If the records are located outside
the state, the licensee at its option shall make them available
to the commissioner at a convenient location within this state,
or pay the reasonable and necessary expenses for the commissioner
or his or her representatives to examine them at the place where
they are maintained.
§32A-3-15. Transaction records.
(a) Every check sold by the licensee or its authorized
agents shall bear the name of the licensee and a unique number
clearly stamped or imprinted thereon. When an order for the
transmission of money results in the issuance of a check, both
the order and the check may bear the same number.
(b) The licensee or its authorized agents shall record the
face amount and unique number of its checks upon their sale.
(c) The licensee or its authorized agents shall record the
date on which money was received for transmission, the amount
transmitted, the name of the customer and the intended recipient,
and the location to which the money was transmitted. Unless
otherwise directed by the customer, the transmission of money shall be made by the licensee or authorized agent within three
business days after the receipt of payment. The customer shall
be provided a written receipt sufficient to identify the
transaction, the licensee, and the amount.
(d) If the transaction involves the exchange of foreign
currency, or the sale of travelers checks denominated in a
foreign currency, the licensee or authorized agent shall record
the date of the transaction, the amount of the transaction and
the rate of exchange at the time of transaction. The customer
shall be provided a written receipt sufficient to identify the
transaction, the licensee and the amount.
(e) Records required by this section shall be maintained by
the licensee or authorized agent as set forth in section fourteen
of this article, and shall be available for examination by the
The commissioner, with the assistance of the state police,
may investigate violations of this article or rules adopted under
this article. Based on the investigation, the commissioner or
any law enforcement agency may file a criminal referral with the
prosecuting attorney of Kanawha County or with the prosecuting
attorney of the county in which a violation is alleged to have
occurred. In addition, the commissioner may bring civil actions to enforce the provisions of this article or the rules adopted
under this article.
§32A-3-17. Cooperative agreements.
(a) The commissioner shall cooperate with federal and state
agencies in discharging the commissioner's responsibilities under
this article. The commissioner may:
(1) Arrange for the exchange of information among government
officials concerning the regulation of a currency exchange,
transportation or transmission business, or the sale of checks;
(2) Cooperate in and coordinate training programs concerning
the regulation of currency exchange, transportation or
transmission businesses, or the sale of checks; and
(3) Assist state and federal agencies in their enforcement
and investigatory activities and supply those agencies with
documentation and information.
(b) The commissioner may request the assistance of the state
police in enforcing this article.
§32A-3-18. Criminal penalty.
(a) A person commits a criminal offense if the person
(1) Violates a requirement of this article;
(2) Makes a false, fictitious, or fraudulent statement,
representation, or entry in a record or report required under 31 U.S.C. Section 5313, 31 C.F.R. Part 103, this article, or a rule
adopted under this article; or
(3) Fraudulently structures or attempts to fraudulently
structure a transaction in violation of section eleven of this
(b) An offense under this section is a felony.
(c) Any officer, director, employee or agent of any licensee
or any other person guilty of any felony offense as provided in
this section shall, upon conviction thereof, be imprisoned in the
penitentiary not less than one nor more than five years and also,
in the discretion of the court, may be fined up to ten thousand
dollars for each violation. Each transaction in violation of
this article and each day that a violation continues shall be a
§32A-3-19. Civil penalty.
The commissioner may bring civil actions to enforce this
article in the circuit court of Kanawha County or the county in
which the violation occurred and seek civil penalties. If,
after notice and a hearing, the court finds that a person has
violated this article, a rule adopted under this article, or an
order of the commissioner issued under this article, the court
may order the person to pay to the state a civil penalty. The
amount of a civil penalty under this section may not exceed five thousand dollars for each violation or, in the case of a
continuing violation, up to five thousand dollars for each day
that the violation continues. A civil penalty assessed may be
collected from the bond or deposit required under section ten of
If it appears to the commissioner that a person has
committed or is about to commit a violation of this article, a
rule promulgated thereunder, or an order of the commissioner, the
commissioner may apply to the circuit court of Kanawha County or
the county in which the violation occurred for an order enjoining
the person from violating or continuing to violate the article,
rule or order and for injunctive or other relief that the nature
of the case may require and may, in addition, request the court
to assess civil penalties as provided under this article.
§32A-3-21. Consent orders.
(a) The commissioner may enter into consent orders at any
time with a person to resolve a matter arising under this
article. A consent order must be signed by the person to whom it
is issued and must indicate agreement to the terms contained in
it. A consent order need not constitute an admission by a person
that this article or a rule or order issued or promulgated under
this article has been violated, nor need it constitute a finding by the commissioner that the person has committed a violation.
(b) Notwithstanding the issuance of a consent order, the
commissioner may seek civil or criminal penalties or compromise
civil penalties concerning matters encompassed by the consent
order unless by its terms the consent order expressly precludes
the commissioner from doing so.
§32A-3-22. Cease and desist orders.
(a) If the commissioner, upon information, has cause to
believe that a licensee or other person is engaged in practices
contrary to this article or the rules adopted under this article,
the commissioner may issue an order directing the licensee or
person to cease and desist the violation. A cease and desist
order is appropriate where, inter alia, the information indicates
that the principal or the licensee acting through any authorized
(1) Violated or refused to comply with a provision of this
article, a rule adopted under this article, or any other law or
regulation applicable to a currency exchange, transportation or
transmission business, or to the issuance and sale of checks;
(2) Committed a fraudulent practice in the conduct of the
(3) Refused to submit to an examination;
(4) Conducted business in an unsafe or unauthorized manner; or
(5) Violated any condition of its license or of any
agreement entered into with the commissioner.
(b) The commissioner shall serve notice and a copy of the
cease and desist order on the affected party either personally or
by certified mail, return receipt requested. Service by mail
shall be deemed completed if the notice is deposited in the post
office, postage prepaid, addressed to the last known address for
a licensee or the person designated by the licensee to accept
service in this state.
(c) The order shall include a statement of the alleged
conduct of the licensee or principal which gave rise to the
order, and set forth the facts and law on which it is based.
(d) A person is entitled to a hearing on the cease and
desist order before the commissioner or a hearing examiner
appointed by him or her, if the person files with the
commissioner a written demand for such hearing within ten days
after receiving written notice of such order, or within thirty
days after the date of service whichever event shall occur first.
A person's right to a hearing as provided by this subsection
shall be disclosed in the notice of service.
(e) The hearing procedures and judicial review of any such
order will be afforded as set forth in sections one and two, article eight, chapter thirty-one-a of this code and the
procedural rules thereunder.
(f) The issuance of a cease and desist order under this
section shall not be a prerequisite to the taking of any action
by the commissioner or others under any other section of this
§32A-3-23. Liability of licensees.
A licensee is liable for the payment of any moneys covered
by payment instruments that it sells or issues in any form in
this state through its authorized agents and all moneys it
receives itself or through its authorized agents for transmission
by any means whether or not any instrument is a negotiable
instrument under the laws of this state.
§32A-3-24. Confidential information.
(a) Reports of investigation and examination together with
related documents shall be confidential and may not be disclosed
to the public by the commissioner or employees of the division of
banking, nor are they subject to the state's freedom of
information act. The commissioner may release information if:
(1) The commissioner finds that immediate and irreparable
harm is threatened to the licensee's customers or potential
customers or the general public;
(2) The licensee consents before the release;
(3) The commissioner finds that release of the information
is required in connection with a hearing under this article, in
which event information may be related to the parties of that
(4) The commissioner finds that the release is reasonably
necessary for the protection of the public and in the interest of
justice, in which event information may be distributed to
representatives of an agency, department or instrumentality of
this state, any other state, or the federal government.
(b) Nothing herein prevents release to the public of any
list of licensees or aggregated financial data for the licensees;
nor either prevents disclosure of information the presiding
officer deems relevant to the proper adjudication or
administration of justice at public administrative or judicial
hearings, or prevents disclosure of information relevant to
supporting the issuance of any administrative or judicial order.
§32A-3-25. Hearing on suspension or revocation of license.
(a) A license may not be revoked or suspended except after
notice and opportunity for hearing on that action. The
commissioner may issue to a person licensed under this article an
order to show cause why the license should not be revoked or
should not be suspended for a period not in excess of six months.
The order shall state the place for a hearing and set a time for the hearing that is no less than ten days from the date of the
order. After the hearing the commissioner shall revoke or
suspend the license if he or she finds that:
(1) The licensee has knowingly or repeatedly violated this
chapter or any rule or order lawfully made or issued pursuant to
(2) The licensee has failed to remit its required renewal
fees, or to maintain their status as a business in good standing
with the office of the secretary of state, notwithstanding
notification in writing by the commissioner sent by certified
mail to the licensee's last known address providing for thirty
days to rectify such failure;
(3) Facts or conditions exist which would clearly have
justified the commissioner in refusing to grant a license had
these facts or conditions been known to exist at the time the
application for the license was made.
(4) The licensee does not have available the net assets
required by the provisions of section eight of this article;
(5) The licensee has failed or refused to keep the bond or
other security required by section ten of this article in full
force and effect; or
(6) In the case of a foreign corporation, the licensee does
not remain qualified to do business in this state.
(b) No revocation or suspension of a license under this
article is lawful unless prior to institution of proceedings by
the commissioner notice is given to the licensee of the facts or
conduct which warrant the intended action, and the licensee is
given an opportunity to show compliance with all lawful
requirements for retention of the license.
(c) If the commissioner finds that probable cause for
revocation of a license exists and that enforcement of this
article to prevent imminent harm to public welfare requires
immediate suspension of the license pending investigation, the
commissioner may, after a hearing upon five days' written notice,
enter an order suspending the license for not more than thirty
(d) Nothing in this section limits the authority of the
commissioner to take action against a licensee or person under
other sections of this article.
(e) Whenever the commissioner revokes or suspends a license,
an order to that effect shall be entered and the commissioner
shall forthwith notify the licensee of the revocation or
suspension. Within five days after the entry of the order the
commissioner shall mail by registered or certified mail or shall
cause personal deliver to the licensee a copy of the order and
the findings supporting the order.
(f) Any person holding a license under this article may
relinquish the license by notifying the commissioner in writing
of its relinquishment, but this relinquishment shall not affect
his or her liability for acts previously committed.
(g) No revocation, suspension or relinquishment of a license
shall impair or affect the obligation of any preexisting lawful
contract between the licensee and any person.
(h) The commissioner may reinstate a license, terminate a
suspension or grant a new license to a person whose license has
been revoked or suspended if no fact or condition then exists
which clearly would have justified the commissioner in refusing
to grant a license.
§32A-3-26. Deceptive name or advertising.
(a) A licensee who advertises the prices to be charged by
the currency exchange or currency transmission business for
services that are governed by this article must specifically
state in the advertisement all fees or commissions to be charged
to the consumer.
(b) The commissioner by rule may establish requirements for
the size and type of lettering a licensee must use in an
advertisement for prices or rates.
(c) A person who violates this section or a rule adopted
under this section commits an unfair and deceptive act or practice within the meaning of section one hundred four, article
six, chapter forty-six-a of this code.
(d) A corporate licensee may not use the same name as, or a
name deceptively similar to, the name of any domestic corporation
existing under the laws of this state, or the name of any foreign
corporation authorized to transact business in this state, except
as otherwise provided by the commissioner or secretary of state
pursuant to law.
§32A-3-27. Authorized agents.
(a) A licensee may conduct the business of issuing and
selling checks and money orders, as well as the business of money
transmission (other than check cashing services) regulated by
this article at one or more locations in this state through
authorized agents designated by the licensee.
(b) A licensee shall not allow a person to act as its
authorized agent until all applicable requirements of this
article have been complied with and the name and address of the
person, on a form prescribed by the commissioner, along with all
applicable fees have been submitted by the licensee. A licensee
shall not knowingly authorize a person to act as its agent, which
person has in the prior ten year a disqualifying criminal
conviction of the type set forth in subdivision two, subsection
(c), section eight of this article.
(c) A licensee shall enter into a contract with its
authorized agent detailing the nature and scope of the
relationship between the licensee and the authorized agent. The
contract must require that the authorized agent operate in full
compliance with the laws of this state and of the United States.
The licensee shall, upon request, provide the commissioner with
the sample written contract.
(d) The financial responsibility of a licensee for the
actions of its authorized seller shall not exceed the amount of
funds received by the authorized agent on behalf of its licensee
for the business regulated under this article.
(e) An authorized agent has an affirmative duty not to (i)
commit fraud or misrepresentation; and (ii) submit fraudulent
statements to the licensee. A licensee shall promptly report to
the commissioner and to any other appropriate state or federal
official when it has probable cause to believe an authorized
agent has violated the affirmative duty set forth in this
(f) The licensee shall require the authorized agent to hold
in trust for the licensee from the moment of receipt of the
proceeds of any business transacted under this article in an
amount equal to the amount of proceeds due the licensee less the
amount due the authorized agent. The funds shall remain the property of the licensee whether or not commingled by the
authorized agent with its own funds. In the event that the
license is revoked by the commissioner, all proceeds held in
trust by the authorized agent of that licensee shall be deemed to
have been assigned to the commissioner. If an authorized agent
fails to remit funds to the licensee in accordance with the time
specified in the contract with the licensee, the licensee may
bring a civil action against the authorized agent for three times
the actual damages. The commissioner may by rule set a maximum
remittance time for authorized agents.
(g) A licensee shall, upon discovery, promptly report to the
commissioner, and an authorized agent shall, upon discovery,
promptly report to its licensee, the theft or loss of any payment
instrument from the licensee or authorized agent, having a value
in excess of one hundred dollars or an aggregate value of one
thousand dollars in any three month period.
(h) Upon any suspension or revocation of a license, the
failure of a licensee to renew its license, or the denial of the
renewal of a license, the licensee shall notify its authorized
agents of the event and demand they immediately cease operations
as its authorized agents.
(i) A licensee shall report the removal of an authorized
agent location or the termination of operations of an authorized agent location to the commissioner on a quarterly basis.
(j) No authorized agent shall act outside its scope of
authority as defined under this article and by its contract with
the licensee with regard to any transaction regulated by this
ARTICLE 4. CHECK CASHING.
§32A-4-1. Check cashing permitted.
(a) A merchant primarily in the business of making retail
consumer sales may offer check cashing services at its stores to
accommodate its customers in the course of said business and
collect a fee thereon: Provided, That the check cashing service
and any fees charged are incidental to the main business of the
merchant. Except as set forth in subsection (b) of this section,
the term "check cashing services" does not include any
transaction where a customer presents a check for the exact
amount of any purchase. The fees charged in connection with
providing check cashing services shall not exceed the greater of
one dollar or 1 percent of the face value of the check cashed.
(b) Merchants may not in connection with providing check
cashing services agree to hold checks submitted to them for
deposit at a later date for the purpose of providing a loan of
money and deriving profit therefrom.
(c) No license shall be required as a condition for a merchant providing check cashing services in conformity with
subsections (a) and (b) of this section.
(d) Where a merchant derives more than 5 percent of his or
her gross income from cashing checks, then its check cashing
services will no longer be considered incidental to its main
business, and the merchant must obtain a license as a money
transmitter under article two of this chapter.
(e) Persons holding a money transmitters license pursuant to
article two of this chapter may, through its employees at offices
that the licensee operates in West Virginia, engage in the
business of check cashing. Fees charged for check cashing
services by a licensed money transmitter shall be posted and
conform to that permitted merchants under this section. No money
transmitter licensee may in connection with providing check
cashing services agree to hold checks submitted to it for deposit
at a later date for the purpose of providing a loan of money and
deriving profit therefrom.
(f) Federally-insured depository institutions, financial
institutions, and governmental entities exempt from licensure as
money transmitters under this chapter are exempt from the
provisions of this article. Other financial institutions
licensed by and under the jurisdiction of the commissioner of
banking may upon written approval engage in the check cashing business as permitted to merchants under this article.
(g) Except as provided or allowed by this article, no person
shall engage in the check cashing business. As used in this
article the term "check cashing business" means any person who
engages in the business of cashing checks, including drafts,
money orders, or other instruments for the transmission or
payment of money for a fee.
§32A-4-2. Obstruction of investigations.
No merchant or person subject to this article shall obstruct
or refuse to permit any lawful investigation into their check
cashing activities by the commissioner of banking, a person
acting on behalf of an agency of the state or political
subdivision thereof, or a law enforcement officer.
§32A-4-3. Violations and penalties.
(a) The charging of fees for check cashing services in
excess of that permitted under this article shall give rise to a
cause of action by the injured party to recover twice the actual
damages suffered by reason of the violation.
(b) The charging of fees for check cashing services in
violation of the provisions prohibiting lending through a check
cashing transaction set forth in subsection (b) or (e) of section
one of this article shall constitute a prohibited finance charge
and give rise to a cause of action by the party on whom the charge was imposed to recover all fees paid and all actual
damages suffered by reason of the violation, notwithstanding
conformity with the fee schedule set forth in section one of this
article. In addition, where the transaction is of an amount and
is for such purposes as would constitute a consumer loan, the
conduct of such impermissible check cashing services shall be
considered an unfair and deceptive act and may also be subject to
the provisions and penalties set forth in chapter forty-six-a of
(c) Engaging in the check cashing business without a money
transmitters license where required by this article shall give
rise to a cause of action by the injured party to recover all
fees paid and all actual damages suffered by reason of the
violation. In addition, the conduct of a check cashing business
without a required license shall constitute the conduct of an
unlicensed money transmission business and may also be subject to
the provisions and penalties set forth in article two of this
(d) Actions brought under this article by customers for
recovery of actual damages shall be brought within one year of
the occurrence of the transaction.
If any merchant or person is in violation of this article, the commissioner of banking or other appropriate law enforcement
officer may apply to the circuit court of Kanawha County or the
county in which the violation occurred for an order enjoining the
merchant or person from violating or continuing to violate the
article, rule or order and for injunctive or other relief that
the nature of the case may require. The authority to seek
injunctions under this section is cumulative with any other
enforcement right accruing under other provisions of law and this
The purpose of this bill is to modernize the
licensure and regulation of the sale and issuance of checks and
money orders by integrating these provisions with the licensure
and regulation of money transmitters, currency exchange, currency
transportation, and check cashing; set
and to establish civil and criminal penalties for violations
These articles are new; therefore, strike-throughs and
underscoring have been omitted.