H. B. 4591
(By Delegates Thompson, Kominar, Seacrist,
Jenkins, H. White, Hutchins and L. White)
(Originating in the Committee on Government Organization)
[March 2, 1998]
A BILL to amend and reenact article two, chapter thirty-two-a of
the code of West Virginia, one thousand nine hundred thirty- one, as amended; and to further amend said chapter by adding
thereto a new article, designated article three,
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; providing procedures for license
application, issuance and renewal; setting fees; authorizing
the banking commissioner to propose legislative rules;
establishing qualifications for licenses and renewals
including bonding and net worth requirements; establishing
the right of the commissioner to examine licensee's records;
granting the commissioner subpoena powers; establishing
notification requirements; establishing an affirmative duty
of licensee to keep and maintain records; establishing
criminal and civil penalties for violations of this article;
granting the commissioner the power to revoke or suspend
licenses in certain circumstances, to enter into consent orders and issue cease and desist orders; providing for
civil liability of licensees; providing for confidentiality
of records; providing hearing procedures; permitting the
commissioner to limit certain advertising by legislative
rule; permitting licensees to conduct business through
authorized delegates; requiring a license for check cashing
services not incidental to a merchant's business; limiting
service fees for check cashing; prohibiting check cashing
loans; establishing penalties for violations; and providing
for injunctive relief.
Be it enacted by the Legislature of West Virginia:
That article two, chapter thirty-two-a of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted; and that said chapter be further amended
by adding thereto a new article, designated article three, all to
read as follows:
CHAPTER 32A. LAND SALES; FALSE ADVERTISING; CHECKS AND MONEY
ORDER SALES, MONEY TRANSMISSION SERVICES, TRANSPORTATION AND
ARTICLE 2. CHECKS AND MONEY ORDER SALES, MONEY TRANSMISSION
SERVICES, TRANSPORTATION AND CURRENCY EXCHANGE.
(1) "Commissioner" means the commissioner of banking of this
(2) "Check" or "payment instrument" means any check,
traveler's check, draft, money order, or other instrument for the transmission or payment of money whether or not the instrument is
negotiable. The term does not include a credit card voucher, a
letter of credit or any instrument that is redeemable by the
issuer in goods or services.
(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 travelers checks
denominated in a foreign currency. Transactions involving the
electronic transmission of funds by licensed money transmitters
which may permit, but do not require, the recipient to obtain the
funds in a foreign currency outside of West Virginia are not
currency exchange transactions: Provided, That they are not
reportable as currency exchange transactions under federal laws
(5) "Currency exchange, transportation, transmission business"
means a person who is engaging in currency exchange, currency
transportation, or currency transmission as a service or for
(6) "Currency transmission" or "money transmission" means
engaging in the business of selling or issuing checks or the
business of receiving currency for the purpose of transmitting
the currency or its equivalent by wire, 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 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
(7) "Currency transportation" means knowingly engaging in the
business of physically transporting currency from one location to
another in a manner other than by a licensed armored car service
exempted under section three of this article.
(8) "Licensee" means a person licensed by the commissioner
under this article.
(9) "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 the
instrument is signed by the seller, the purchaser or remitter, or
some other person.
(10) "Person" means any individual, partnership, association,
joint stock association, limited liability company, trust or
(11) "Principal" means a licensee's owner, president, senior
officer responsible for the licensee's business, chief financial
officer or any other person who performs similar functions or who
otherwise controls the conduct of the affairs of a licensee. A
person controlling ten percent or more of the voting stock of any
corporate applicant is a principal under this provision.
(12) "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
the other state and if the 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 the 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-2-2. License required.
(a) Except as provided by section three of this article, a
person may not engage in 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 who 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 the 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, when the licensee conducts one or more of these
businesses. At the expiration of a provisional license granted
by this section, any person who wishes to continue to engage in
any business regulated in this article shall apply for a license
and meet the criteria under the provisions of this article. 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) The United States Post Office;
(4) This state and any political subdivision thereof;
(5) The provision of electronic transfer of government
benefits for any federal, state or county governmental agency as
defined in Federal Reserve Board Regulation E, by a contractor
for and on behalf of the United States or any department, agency
or instrumentality of the United States, or any state or any
political subdivisions of a state; and
(6) Persons engaged in the business of currency transportation
who operate an armored car service in this state pursuant to
licensure under article eighteen, chapter thirty of this code:
Provided, That the net worth of the licensee exceeds five million
dollars. The term "armored car service" as used in this article
means a service provided by a person transporting or offering to
transport, under armed security guard, currency or other things
of value in a motor vehicle specially equipped to offer a high
degree of security. Persons seeking to claim this exemption
shall notify the commissioner of their intent to do so and
demonstrate that they qualify for its use.
(b) Any person who holds and maintains a valid license under
this article may engage in the business of money transmission at
one or more locations in this state through or by means of an
authorized delegate or delegates as set forth in section twenty- seven of this article, if transactions are limited to accepting
for transmission United States currency and the authorized
delegates do not engage in foreign currency exchange.
(c) The issuance and sale of stored value cards which are
intended to purchase items only from the issuer or seller of the
stored value card is exempt from the provisions of this article.
§32A-2-4. License application, issuance, and renewal.
(a) An applicant for a license shall submit an application to
the commissioner on a form prescribed by the commissioner.
(b) Each application shall 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. The commissioner
shall approve or deny every application for an original license
within one hundred twenty days from the date a complete
application is submitted, unless the commissioner extends the
period for good cause. A license is valid for one year from the
date the license is issued by the commissioner.
(d) A separate license is required for each location at which
currency is exchanged other than at a federally-insured
depository institution or foreign bank agency. A person who
desires to operate more than one location for currency exchange
shall 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 fee.
(f) A license issued under this article may not be transferred
(g) An applicant for a license who is not located in this
state shall 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 follows:
(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
delegates 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 delegates are conducting
business or propose to conduct business excepting the applicant's
principal place of business.
(3) The total of fees required by subdivisions (1) or (2) of
this subsection may not exceed two thousand five hundred dollars
for any one application.
(4) For a change in address by the licensee of its principal
place of business, a fee of one hundred dollars.
(5) For failure to timely submit an application of renewal or
file audited 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 rules proposed for legislative
approval in accordance with the provisions of article three,
chapter twenty-nine-a of this code, 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-2-6. Denial of license or renewal of license.
(a) The commissioner may deny the grant 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 thereunder.
(c) Whenever the commissioner refuses to issue a license, or
refuses to renew a license, he or she shall make and enter an
order to that effect and shall cause a copy of the order to be
served in person or by certified mail, return receipt requested,
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
§32A-2-7. Authorization to propose rules.
The commissioner may propose rules necessary to implement this
article for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code.
§32A-2-8. Qualifications for license or renewal of license.
(a) The commissioner may issue a license to an applicant only
upon first determining that the financial condition, business
experience, and character and general fitness of an applicant are
such that the issuance of the license is in the public interest.
(b) An applicant for a license shall agree in writing to
comply with the currency reporting and record-keeping
requirements of 31 U.S.C. § 5313, as well as those set forth in 31 C.F.R. Part 103 and any other relevant federal law.
(c) A person is not eligible for a license or shall 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 or a principal 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) The commissioner will review the application to determine
whether the applicant:
(1) Has 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 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, including, but not limited to, section
forty-nine, article one, chapter thirty-one of this code;
(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 the most recent audited
financial statement 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
delegate 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 by this article 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
or state taxing authority or governmental agency, department, or
other political subdivision of this state.
(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 of an
applicant who has less than one year's experience in the proposed
business governed by this article as a regulated entity in
another state, or whose license has been suspended or revoked by
another state, 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-2-9. Access to criminal history information.
The commissioner may refuse to grant a license or may suspend
or revoke a license if the applicant or licensee fails to provide
information required by section four, article two, chapter
thirty-one-a of this code, or other information sought by the
commissioner relevant to conducting an adequate criminal
(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 the amount of one hundred thousand dollars for a licensee which
issues or sells checks or money orders, or which engages in
currency exchange; or three hundred thousand dollars for a
licensee which engages in receiving money for transmission by
wire, facsimile or electronic transfer, or which engages in
currency transportation. A licensee which engages in multiple
types of these activities shall post the higher amount. A
merchant obtaining a license solely to engage in the check
cashing business not incidental to the main business of the
merchant as required by article three of this chapter shall post
a bond of one hundred thousand dollars. The amount of the surety
bond will be increased by twenty-five thousand dollars per
licensee location or authorized delegate in the state, but in no
event to exceed one million dollars.
(b) Instead of the bond 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 that 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 shall
be an amount equal to or exceeding the amount required for the
bond under subsection (a) of this section. When securities are
deposited as aforesaid, the value of the securities shall at all
times be equal to the amount of bond 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 shall be conditioned upon
compliance with the provisions of this article and any rules
thereunder for as long as the person holds the license. 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 delegate 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, that person is permitted to receive all interest
and dividends on the 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 the deposit.
(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 shall maintain
the required bond or securities until five years after it ceases
to do business in this state unless all outstanding
checks/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 the licensee's
checks/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 or she 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. The total amount of the bonds
or security required of the licensee may not, however, exceed the
one million dollars set forth in subsection (a) of this section.
§32A-2-11. 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 person associated with the license holder, including an
officer, director, or employee of the licensee or authorized
delegate. Unless it will interfere with the commissioner's
duties under this article, reasonable notice shall be given to
the licensee and any authorized delegate before any on-site
examination visit. 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
(b) The licensee shall bear the cost of any on-site
examination made pursuant to this section, at a rate of fifty
dollars for 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, or 31
C.F.R. Part 103, or by 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-2-12. 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 and their authorized delegates at times that the
circumstances in his or her opinion may warrant. Unless it will
interfere with the commissioner's duties under this article,
reasonable notice shall be given to an authorized delegate or
licensee before any on-site examination visit. However, an
authorized delegate is deemed to consent to the commissioner's inspection, with or without prior notice to the licensee or
authorized delegate, of the books and records of the authorized
delegate when the commissioner has a reasonable basis to believe
that the licensee or authorized delegate is in noncompliance with
this article. The commissioner may call for and require any
data, reports or information from any licensees under his or her
jurisdiction at any time, and in the form, content and detail the
commissioner determines to be necessary in the faithful discharge
of his or her duty.
(b) In connection with the investigations undertaken
pursuant to this article, the commissioner is authorized to issue
subpoenas and subpoenas duces tecum, administer oaths, examine
persons under oath, and hold and conduct hearings, with any
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 the hearing may be accompanied by an attorney.
§32A-2-13. Notification requirements.
(a) A licensee shall 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 shall 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 bankruptcy laws;
(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 delegates in this state, or of the
licensee's or authorized delegate's officers, directors, or
(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 delegates in this
state, or of the licensee's or authorized delegate's officers,
directors, or principals.
(c) A licensee shall 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 the proposal, or its occurrence, whichever is
earlier. Upon notice of these circumstances by a corporate
licensee, the commissioner may require all information necessary
to determine whether it results in a transfer or assignment of
the license 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
these circumstances submit a new application for licensure at the time of notice.
§32A-2-14. Records maintenance.
(a) A licensee shall keep 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 delegates, 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 delegates to preserve records relating to
its licensed activities for the period set forth in subsection
(a) of this section.
(c) Records may be kept using retention technologies,
including non-erasable 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 within seven days, or shall 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-2-15. Transaction records.
(a) Every check sold by the licensee or its authorized
delegates 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 delegates shall record the
face amount and unique number of its checks upon their sale.
(c) The licensee or its authorized delegates 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 if specified
by the customer. Unless otherwise directed by the customer, the
transmission of money or availability of funds shall be made by
the licensee or authorized delegate 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 delegate 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 delegate as set forth in section
fourteen of this article, and shall be available for examination
by the commissioner.
The commissioner, with the assistance of the West Virginia
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-2-17. 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;
(2) Cooperate in and coordinate training programs concerning
the regulation of currency exchange, transportation or
transmission businesses; 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 West
Virginia state police in enforcing this article.
§32A-2-18. 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 or 31 C.F.R. Part 103, or by 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 is a separate
§32A-2-19. 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-2-21. 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 shall be signed by the person to whom
it is issued and shall 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
(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-2-22. 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 in any case where the commissioner, upon
information, reasonably believes that a principal or the licensee
acting through any authorized person has:
(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 business of check cashing;
(2) Committed a fraudulent practice in the conduct of the licensee's business;
(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 hearing within ten days after receiving written notice
of the order, or within thirty days after the date of service,
whichever occurs first. A person's right to a hearing as
provided by this subsection shall be disclosed in the notice of
(e) Hearings and judicial review of any order shall be under
procedures provided in sections one and two, article eight,
chapter thirty-one-a of this code and 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-2-23. Liability of licensees.
Except in cases of gross negligence or intentional acts that
result in harm to a person, a licensee's responsibility to a
person for a money transmission conducted on that person's behalf
by the licensee or the licensee's authorized delegate is limited
to the amount of money transmitted or the face amount of the
payment instrument purchased.
§32A-2-24. Confidential information.
(a) Reports of investigation and examination, together with
related documents and financial information not normally
available to the public that is submitted in confidence by a
person regulated under this article, are confidential and may not
be disclosed to the public by the commissioner or employees of
the division of banking, and are not subject to the state's
freedom of information act. The commissioner may release
(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,
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-2-25. 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
(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 worth
required by the provisions of section eight of this article, and
after ten days' written notice from the commissioner, fails to
take steps that the commissioner determines are necessary to
remedy the deficiency; or
(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.
(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
provide for personal delivery to the licensee, of 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 any relinquishment does not affect a
person's 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-2-26. 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 shall specifically state in the
advertisement all fees or commissions to be charged to the
(b) The commissioner may propose for legislative approval
rules establishing requirements for the size and type of
lettering a licensee is permitted to 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-2-27. Authorized delegates.
(a) A licensee may conduct the business of money transmission
regulated by this article at one or more locations in this state
through authorized delegates designated by the licensee.
(b) A licensee may not knowingly authorize a person to act as
its delegate who has, within the previous ten years, 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 delegate detailing the nature and scope of the
relationship between the licensee and the authorized delegate.
The contract shall require that the authorized delegate 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 delegate shall not exceed the amount of
funds received by the authorized delegate on behalf of its
licensee for the business regulated under this article.
(e) An authorized delegate has an affirmative duty not to (i)
commit fraud or misrepresentation; or (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 that an authorized
delegate has violated the affirmative duty set forth in this
(f) The licensee shall require the authorized delegate 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 delegate. The funds shall remain the
property of the licensee whether or not commingled by the
authorized delegate with its own funds. In the event that the license is revoked by the commissioner, all proceeds held in
trust by the authorized delegate of that licensee are considered
to be assigned to the commissioner. If an authorized delegate
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 delegate for three
times the actual damages. The commissioner may by rule set a
maximum remittance time for authorized delegates.
(g) An authorized delegate shall report to the licensee the
theft or loss of payment instruments within twenty-four hours
from the time the authorized delegate knew or should have known
of the theft or loss.
(h) Upon any suspension or revocation of a license, the
failure of a licensee to renew a license, or the denial of the
renewal of a license, the licensee shall notify its authorized
delegates of the event and demand that they immediately cease
operations as authorized delegates.
(i) A licensee shall report the removal of an authorized
delegate location, or the termination of operations of an
authorized delegate location, to the commissioner on a quarterly
basis, and shall in the report list any new authorized delegate
locations in this state.
(j) No authorized delegate 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
§32A-2-28. Revocation or suspension of authorized delegates.
(a) The commissioner may issue an order suspending an
authorized delegate, or barring a person from becoming an
authorized delegate of any licensee, during the period for which
the order is in effect. Upon issuance of the order, the licensee
shall terminate its relationship with the authorized delegate
according to the terms of the order. Orders may be issued if,
after notice and a hearing, the commissioner finds that any
authorized delegate of a licensee or any administrator, officer,
employee or principal of the authorized delegate:
(1) Has violated a provision of this article or of any rule
or order issued under this article;
(2) Has engaged in or participated in an unsafe or unsound
act with respect to the business of selling or issuing payment
instruments of the licensee or the business of money
(3) Has made or caused to be made in any application or
report filed with the commissioner or in any proceeding before
the commissioner a statement that was, at the time and in the
circumstances under which it was made, false or misleading with
respect to any material fact, or has omitted to state in the
application or report a material fact required to be stated.
(b) An authorized delegate to whom an order is issued under
this section may apply to the commissioner to modify or rescind
the order. The commissioner may not grant the application unless
the commissioner finds that it is in the public interest to do so and that it is reasonable to believe that the person will comply
with all applicable provisions of this chapter and of any rule
and order issued under this chapter if the order is modified or
(c) The right of a person to whom an order is issued under
this section to petition for judicial review of an order is not
affected by the failure of the person to apply to the
commissioner to modify or rescind the order.
ARTICLE 3. CHECK CASHING.
§32A-3-1. 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 may
collect a fee for the service, if 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 a transaction
where a customer presents a check for the exact amount of a
purchase. Fees charged in connection with check cashing services
may not exceed the greater of one dollar, or one 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 is 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 five percent of his or
her gross revenues from cashing checks, the check cashing
services are not considered incidental to the main business of
the merchant, and the merchant is required to be licensed under
article two of this chapter.
(e) Persons holding a license pursuant to article two of this
chapter may in conjunction with their licensed business, or other
lawful business, engage in the business of check cashing in West
Virginia. Fees charged for check cashing services by a licensee
under article two of this chapter shall be posted and conform to
those permitted merchants under this section. No 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
(f) Federally-insured depository institutions, foreign bank
agencies, 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 permitted merchants under this article.
(g) Except as provided or allowed by this article, no person
may 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. However, the term "check" as used in
this article does not include a travelers check or a foreign
§32A-3-2. Obstruction of investigations.
No merchant or person subject to this article may 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-3-3. Violations and penalties.
(a) The charging of fees for check cashing services in excess
of those permitted under this article gives 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 of subsections (b) or (e), section
one of this article, prohibiting lending through a check cashing
transaction, constitutes prohibited finance charges, and gives
rise to a cause of action by the party upon whom the charge was
imposed to recover all fees paid and all actual damages suffered
by reason of the violation. Where the transaction is of an
amount and for purposes that would constitute a consumer loan,
the conduct of impermissible check cashing services is considered an unfair and deceptive act and may be subject to provisions and
penalties set forth in chapter forty-six-a of this code.
(c) Engaging in the check cashing business without the
license required by this article gives 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.
(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
NOTE: 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 definitions; exceptions;
and to establish civil and criminal penalties for violations
Article two has been completely rewritten; therefore,
strike-throughs and underscoring have been omitted.
three is new; therefore, strike-throughs and underscoring have