ENGROSSED

Senate Bill No. 737

(By Senators Bailey and Sharpe)

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[Introduced February 23, 1998; referred to the

Committee on Energy, Industry and Mining.]

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A BILL to amend and reenact sections two and twelve, article nine, chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to the regulation of manufactured housing construction and safety standards; adding definition for installation; changing the civil penalty authority from the courts to the board; and increasing the maximum criminal penalty from fifty dollars to two hundred fifty dollars.

Be it enacted by the Legislature of West Virginia:
That sections two and twelve, article nine, chapter twenty- one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 9. MANUFACTURED HOUSING CONSTRUCTION AND SAFETY STANDARDS.
§21-9-2. Definitions.
(a) "Board" means the West Virginia manufactured housing construction and safety board created in this article.
(b) "Commissioner" means the commissioner of the West Virginia state department division of labor.
(c) "Contractor" means any person who performs operations in this state at the occupancy site which render a manufactured home fit for habitation. This definition does not include persons who do work on a manufactured home which is owned or leased by such person doing the work. Such operations include, without limitation, installation or construction of the foundation, positioning, blocking, leveling, supporting, tying down, connecting utility systems, making minor adjustments or assembling multiple or expandable units. Such operations also include transporting the unit to the occupancy site by other than a motor carrier regulated by the West Virginia public service commission.
(d) "Dealer" means any person engaged in this state in the sale, leasing or distribution of new or used manufactured homes, primarily to persons who in good faith purchase or lease a manufactured home for purposes other than resale.
(e) "Defect" includes any defect in the performance, construction, components or material of a manufactured home that renders the home or any part thereof not fit for the ordinary use for which it was intended.
(f) "Distributor" means any person engaged in this state in the sale and distribution of manufactured homes for resale.
(g) "Federal standards" means the National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U.S.C. §5401, et seq.), and federal manufactured home construction and safety standards and regulations promulgated by the secretary of HUD to implement such act.
(h) "HUD" means the United States department of housing and urban development.
(i) "Installation" means and includes: Home placement evaluation; site preparation; installing footings; level and trim the manufactured home; utility connections; installation of optional accessory items; and final grade and water control. For the purposes of this subsection: "Home placement evaluation" includes conducting a soil evaluation, designing footings and physically inspecting the site for ability to comply; "site preparation" includes clearing, providing access to and rough grading the site; "installing footings" includes digging footings and pouring concrete; "level and trim the manufactured home" includes positioning and leveling the manufactured home on its support system, anchoring the home, close-in, trim and adjustment, and cross-over connects (non-electrical); "utility connections" includes the connecting of utility services, including electric, gas, water, sewer, cable TV connects, satellite dishes, DSS systems, telephone connects, and well and septic systems; "installation of optional accessory items" includes installing facia and ventilation, HVAC, decks, porches and awnings, carports, garages, pools, and outbuildings; "final grade and water control" includes footing backfill, installation of a vapor barrier, final grading of the lot, landscaping, driveways and sidewalks.
(i)(j) "Manufacturer" means any person engaged in manufacturing or assembling manufactured homes, including any person engaged in importing manufactured homes for resale.
(j) (k) "Manufactured home" means a structure, transportable in one or more sections, which in the traveling mode is eight body feet or more in width or forty body feet or more in length or, when erected on site, is three hundred twenty or more square feet, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air-conditioning and electrical systems contained therein; except that such term shall include any structure which meets all the requirements of this definition except the size requirements and with respect to which the manufacturer voluntarily files a certificate which complies with the applicable federal standards. Calculations used to determine the number of square feet in a structure will be based on the structure's exterior dimensions measured at the largest horizontal projections when erected on site.
(k) (l) "Purchaser" means the first person purchasing a manufactured home in good faith for purposes other than resale.
§21-9-12. Civil penalties; criminal penalties.
(a) Any person who violates any of the following provisions relating to manufactured homes or any rule promulgated by the board pursuant to the provisions of this article is liable to the state for a penalty, as determined by the court board, not to exceed one thousand dollars for each violation. Each violation constitutes a separate violation with respect to each manufactured home, except that the maximum penalty may not exceed one million dollars for any related series of violations occurring within one year from the date of the first violation. No person may:
(1) Manufacture for sale, lease, sell, offer for sale or lease, install, or introduce or deliver, or import into this state any manufactured home which is manufactured on or after the effective date of any applicable standard established by a rule promulgated by the board pursuant to the provisions of this article, or any applicable federal standard, which does not comply with that standard.
(2) Fail or refuse to permit access to or copying of records, or fail to make reports or provide information or fail or refuse to permit entry or inspection as required by the provisions of this article.
(3) Fail to furnish notification of any defect as required by the provisions of 42 U.S.C. §5414.
(4) Fail to issue a certification required by the provisions of 42 U.S.C. §5415 or issue a certification to the effect that a manufactured home conforms to all applicable federal standards, when the person knows or in the exercise of due care would have reason to know that the certification is false or misleading in a material respect.
(5) Fail to establish and maintain records, make reports, and provide information as the board may reasonably require to enable the board to determine whether there is compliance with the federal standards; or fail to permit, upon request of a person duly authorized by the board, the inspection of appropriate books, papers, records and documents relative to determining whether a manufacturer, dealer, distributor or contractor has acted or is acting in compliance with the provisions of this article or applicable federal standards.
(6) Issue a certification pursuant to the provisions of 42 U.S.C. §5403(a), when the person knows or in the exercise of due care would have reason to know that the certification is false or misleading in a material respect.
(b) Subdivision (1), subsection (a) of this section does not apply to: (i) The sale or the offer for sale of any manufactured home after the first purchase of it in good faith for purposes other than resale; (ii) any person who establishes that he or she did not have reason to know in the exercise of due care that such manufactured home is not in conformity with applicable federal standards; or (iii) any person who, prior to the first purchase, holds a certificate by the manufacturer or importer of the manufactured home to the effect that such manufactured home conforms to all applicable federal standards, unless that person knows that the manufactured home does not conform to those standards.
(c) Any manufacturer, dealer, distributor or contractor who engages in business in this state without a current license as required by the provisions of this article or without furnishing a bond or other form of assurance as required by the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than fifty two hundred fifty dollars for each day the violation continues.
(d) Any person or officer, director, partner or agent of a corporation, partnership or other entity who willfully or knowingly violates any of the provisions listed in subsection (a) of this section, in any manner which threatens the health or safety of any purchaser, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars or confined in the county or regional jail for a period of not more than one year, or both fined and imprisoned: Provided, That nothing in this article may apply to any bank or financial institution engaged in the disposal of foreclosed or repossessed manufactured home(s).