H. B. 2888
(By Delegate Martin)
[Introduced February 24, 1999; referred to
the Committee on the Judiciary.]
A Bill to amend and reenact section one, article six, chapter
seventeen-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to changing the
definition of an established place of business with respect to
motor vehicle dealers.
Be it enacted by the Legislature of West Virginia:
That section one, article six, chapter seventeen-a of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted, to read as follows:
ARTICLE 6. LICENSING OF DEALERS AND WRECKERS OR DISMANTLERS;
SPECIAL PLATES; TEMPORARY PLATES OR MARKERS, ETC.
§17A-6-1. Definitions.
(a) Unless the context in which used clearly requires a
different meaning, as used in this article:
(1) "New motor vehicle dealer" means every person (other than agents and employees, if any, while acting within the scope of
their authority or employment), engaged in, or held out to the
public to be engaged in, the business in this state of selling five
or more new motor vehicles or new and used motor vehicles in any
fiscal year of a type required to be registered under the
provisions of this chapter, except, for the purposes of this
article only, motorcycles.
(2) "Used motor vehicle dealer" means every person (other than
agents and employees, if any, while acting within the scope of
their authority or employment), engaged in, or held out to the
public to be engaged in, the business in this state of selling five
or more used motor vehicles in any fiscal year of a type required
to be registered under the provisions of this chapter, except, for
the purposes of this article only, motorcycles.
(3) "House trailer dealer" means every person (other than
agents and employees, if any, while acting within the scope of
their authority or employment), engaged in, or held out to the
public to be engaged in, the business in this state of selling new
and/or used house trailers, or new or used or both house trailers
and trailers or new or used, or both manufactured homes and mobile
homes.
(4) "Trailer dealer" means every person (other than agents and
employees, if any, while acting within the scope of their authority
or employment), engaged in, or held out to the public to be engaged in, the business in this state of selling new or used trailers.
(5) "Motorcycle dealer" means every person (other than agents
and employees, if any, while acting within the scope of their
authority or employment), engaged in, or held out to the public to
be engaged in, the business in this state of selling new or used
motorcycles.
(6) "Used parts dealer" means every person (other than agents
and employees, if any, while acting within the scope of their
authority or employment), engaged in, or held out to the public to
be engaged in, the business in this state of selling any used
appliance, accessory, member, portion or other part of any vehicle.
(7) "Wrecker/dismantler/rebuilder" means every person (other
than agents and employees, if any, while acting within the scope of
their authority or employment), engaged in, or held out to the
public to be engaged in, the business in this state of dealing in
wrecked or damaged motor vehicles or motor vehicle parts for the
purpose of selling the parts thereof or scrap therefrom or who is
in the business of rebuilding salvage motor vehicles for the
purpose of resale to the public.
(8) "New motor vehicles" means all motor vehicles, except
motorcycles and used motor vehicles, of a type required to be
registered under the provisions of this chapter.
(9) "Used motor vehicles" means all motor vehicles, except
motorcycles, of a type required to be registered under the provisions of this chapter which have been sold and operated, or
which have been registered or titled, in this or any other state or
jurisdiction.
(10) "House trailers" means all trailers designed and used
for human occupancy on a continual nonrecreational basis, but may
not include fold down camping and travel trailers, mobile homes or
manufactured homes.
(11) "Trailers" means all types of trailers other than house
trailers, and shall include, but not be limited to, pole trailers
and semitrailers but excluding recreational vehicles.
(12) "Sales instrument" means any document resulting from the
sale of a vehicle, which shall include, but not be limited to, a
bill of sale, invoice, conditional sales contract, chattel
mortgage, chattel trust deed, security agreement or similar
document.
(13) "Sell", "sale" or "selling" shall, in addition to the
ordinary definitions of the terms, include offering for sale,
soliciting sales of, negotiating for the sale of, displaying for
sale or advertising for sale, any vehicle, whether at retail,
wholesale or at auction. "Selling" shall, in addition to the
ordinary definition of that term, also include buying and
exchanging.
(14) "Applicant" means any person making application for an
original or renewal license certificate under the provisions of this article.
(15) "Licensee" means any person holding any license
certificate issued under the provisions of this article.
(16) "Predecessor" means the former owner or owners or
operator or operators of any new motor vehicle dealer business or
used motor vehicle dealer business.
(17) "Established place of business" means, in the case of a
new motor vehicle dealer, a permanent location, not a temporary
stand or other temporary quarters, owned or leased by the licensee
or applicant and actually occupied or to be occupied by him or her,
as the case may be, which is or is to be used exclusively for the
purpose of selling new motor vehicles or new and used motor
vehicles, which shall have space under roof for the display of at
least one new motor vehicle and facilities and space therewith for
the servicing and repair of at least one motor vehicle, which
servicing and repair facilities and space shall be adequate and
suitable to carry out servicing and to make repairs necessary to
keep and carry out all representations, warranties and agreements
made or to be made by the dealer with respect to motor vehicles
sold by him or her, which shall be easily accessible to the public,
which shall conform to all applicable laws of this state and the
ordinances of the municipality in which it is located, if any,
which shall display thereon at least one permanent sign, clearly
visible from the principal public street or highway nearest the location and clearly stating the business which is or shall be
conducted thereat, and which shall have adequate facilities to
keep, maintain and preserve records, papers and documents necessary
to carry on the business and to make the business available to
inspection by the commissioner at all reasonable times: Provided,
That each established place of business shall have a display area
which may be outside or inside or a combination thereof of at least
twelve hundred square feet which is to be used exclusively for the
display of vehicles which are offered for sale by the dealer,
office space of at least one hundred forty-four square feet and a
telephone listed in the name of the dealership. Each established
place of business shall be open to the public a minimum of twenty
hours per week at least forty weeks per calendar year with at least
ten of those hours being between the hours of nine-thirty a.m.
and eight-thirty p.m., Monday through Saturday: Provided, however,
That the requirement of exclusive use shall be met even though:
(A) Some new and any used motor vehicles sold or to be sold by the
dealer or sold or are to be sold at a different location or
locations not meeting the definition of an established place of
business of a new motor vehicle dealer, if each location is or is
to be served by other facilities and space of the dealer for the
servicing and repair of at least one motor vehicle, adequate and
suitable as aforesaid, and each location used for the sale of some
new and any used motor vehicles otherwise meets the definition of an established place of business of a used motor vehicle dealer;
(B) house trailers, trailers or motorcycles are sold or are to be
sold thereat, if, subject to the provisions of section five of this
article, a separate license certificate is obtained for each type
of vehicle business, which license certificate remains unexpired,
unsuspended and unrevoked; (C) farm machinery is sold thereat; and
(D) accessory, gasoline and oil, or storage departments are
maintained thereat, if the departments are operated for the purpose
of furthering and assisting in the licensed business or
businesses.; and (E) the established place of business has an
attached single residential rental unit where the established place
of business has space under roof for the display of at least three
new motor vehicles and facilities and space therewith for the
concurrent servicing and repair of at least two motor vehicles and
otherwise meets the requirements set forth herein.
(18) "Farm machinery" means all machines and tools used in the
production, harvesting or care of farm products.
(19) "Established place of business" shall, in the case of a
used motor vehicle dealer, mean a permanent location, not a
temporary stand or other temporary quarters, owned or leased by the
licensee or applicant and actually occupied or to be occupied by
him or her, as the case may be, which is or is to be used
exclusively for the purpose of selling used motor vehicles, which
shall have facilities and space therewith for the servicing and repair of at least one motor vehicle, which servicing and repair
facilities and space shall be adequate and suitable to carry out
servicing and to make repairs necessary to keep and carry out all
representations, warranties and agreements made or to be made by
the dealer with respect to used motor vehicles sold by him or her,
which shall be easily accessible to the public, shall conform to
all applicable laws of this state, and the ordinances of the
municipality in which it is located, if any, which shall display
thereon at least one permanent sign, clearly visible from the
principal public street or highway nearest the location and clearly
stating the business which is or shall be conducted thereat, and
which shall have adequate facilities to keep, maintain and preserve
records, papers and documents necessary to carry on the business
and to make the business available to inspection by the
commissioner at all reasonable times: Provided, That each
established place of business shall have a display area which may
be outside or inside or a combination thereof of at least twelve
hundred square feet which is to be used exclusively for the display
of vehicles which are offered for sale by the dealer, office space
of at least one hundred forty-four square feet and a telephone
listed in the name of the dealership. Each established place of
business shall be open to the public a minimum of twenty hours per
week at least forty weeks per calendar year with at least ten of
those hours being between the hours of nine-thirty a.m. and eight-thirty p.m., Monday through Saturday: Provided, however,
That if a used motor vehicle dealer has entered into a written
agreement or agreements with a person or persons owning or
operating a servicing and repair facility or facilities adequate
and suitable as aforesaid, the effect of which agreement or
agreements is to provide the servicing and repair services and
space in like manner as if the servicing and repair facilities and
space were located in or on the dealer's place of business, then,
so long as the agreement or agreements are in effect, it shall not
be necessary for the dealer to maintain the servicing and repair
facilities and space at the place of business in order for the
place of business to be an established place of business as herein
defined: Provided further, That the requirement of exclusive use
shall be met even though: (A) House trailers, trailers or
motorcycles are sold or are to be sold thereat, if, subject to the
provisions of section five of this article, a separate license
certificate is obtained for each type of vehicle business, which
license certificate remains unexpired, unsuspended and unrevoked;
(B) farm machinery is sold thereat; and (C) accessory, gasoline and
oil, or storage departments are maintained thereat, if the
departments are operated for the purpose of furthering and
assisting in the licensed business or businesses.; and (D) the
established place of business has an attached single residential
rental unit where the established place of business has space under roof for the display of at least three motor vehicles and
facilities and space therewith for the concurrent servicing and
repair of at least two motor vehicles and otherwise meets the
requirements set forth herein.
(20) "Established place of business" shall, in the case of a
house trailer dealer, trailer dealer, recreational vehicle dealer,
motorcycle dealer, used parts dealer and wrecker or dismantler,
mean a permanent location, not a temporary stand or other temporary
quarters, owned or leased by the licensee or applicant and actually
occupied or to be occupied by the licensee, as the case may be,
which shall be easily accessible to the public, which shall conform
to all applicable laws of this state and the ordinances of the
municipality in which it is located, if any, which shall display
thereon at least one permanent sign, clearly visible from the
principal public street or highway nearest the location and clearly
stating the business which is or shall be conducted thereat, and
which shall have adequate facilities to keep, maintain and preserve
records, papers and documents necessary to carry on the business
and to make the business available to inspection by the
commissioner at all reasonable times.
(21) "Manufacturer" means every person engaged in the business
of reconstructing, assembling or reassembling vehicles with a
special type body required by the purchaser if the vehicle is
subject to the title and registration provisions of this code.
(22) "Transporter" means every person engaged in the business
of transporting vehicles to or from a manufacturing, assembling or
distributing plant to dealers or sales agents of a manufacturer, or
purchasers.
(23) "Recreational vehicle dealer" means every person (other
than agents and employees, if any, while acting within the scope of
their authority or employment), engaged in, or held out to the
public to be engaged in, the business in this state of selling new
or used recreational vehicles, or both.
(24) "Motorboat" means any vessel propelled by an electrical,
steam, gas, diesel or other fuel propelled or driven motor, whether
or not the motor is the principal source of propulsion, but may not
include a vessel which has a valid marine document issued by the
bureau of customs of the United States government or any federal
agency successor thereto.
(25) "Motorboat trailer" means every vehicle designed for or
ordinarily used for the transportation of a motorboat.
(26) "All-terrain vehicle" (ATV) means any motor vehicle
designed for off-highway use and designed for operator use only
with no passengers, having a seat or saddle designed to be
straddled by the operator, and handlebars for steering control.
(27) "Travel trailer" means every vehicle, mounted on wheels,
designed to provide temporary living quarters for recreational,
camping or travel use of such size or weight as not to require special highway movement permits when towed by a motor vehicle and
of gross trailer area less than four hundred square feet.
(28) "Fold down camping trailer" means every vehicle
consisting of a portable unit mounted on wheels and constructed
with collapsible partial sidewalls which fold for towing by another
vehicle and unfold at the camp site to provide temporary living
quarters for recreational, camping or travel use.
(29) "Motor home" means every vehicle, designed to provide
temporary living quarters, built into an integral part of or
permanently attached to a self-propelled motor vehicle, chassis or
van including: (1) Type A motor home built on an incomplete truck
chassis with the truck cab constructed by the second stage
manufacturer; (2) Type B motor home consisting of a van-type
vehicle which has been altered to provide temporary living
quarters; and (3) Type C motor home built on an incomplete van or
truck chassis with a cab constructed by the chassis manufacturer.
(30) "Snowmobile" means a self-propelled vehicle intended for
travel primarily on snow and driven by a track or tracks in contact
with the snow and steered by a ski or skis in contact with the
snow.
(31) "Recreational vehicle" means a motorboat, motorboat
trailer, all-terrain vehicle, travel trailer, fold down camping
trailer, motor home or snowmobile.
(32) "Major component" means any one of the following subassemblies of a motor vehicle: (A) Front clip assembly
consisting of fenders, grille, hood, bumper and related parts; (B)
engine; (C) transmission; (D) rear clip assembly consisting of
quarter panels and floor panel assembly; or (E) two or more doors.
(33) "Factory-built home" includes mobile homes, house
trailers and manufactured homes.
(34) "Manufactured home" has the same meaning as the term is
defined in section two, article nine, chapter twenty-one of this
code which meets the National Manufactured Housing Construction and
Safety Standards Act of 1974 (42 U.S.C. §5401 et seq.), effective
on the fifteenth day of June, one thousand nine hundred
seventy-six, and the federal manufactured home construction and
safety standards and regulations promulgated by the secretary of
the United States department of housing and urban development.
(35) "Mobile home" means a transportable structure that is
wholly, or in substantial part, made, fabricated, formed or
assembled in manufacturing facilities for installation or assembly
and installation on a building site and designed for long-term
residential use and built prior to enactment of the federal
manufactured housing construction and safety standards institute
(ANSI) -- A119.1 standards for mobile homes.
(b) Under no circumstances whatever may the terms "new motor
vehicle dealer", "used motor vehicle dealer", "house trailer
dealer", "trailer dealer", "recreational vehicle dealer", "motorcycle dealer", "used parts dealer" or "wrecker/dismantler/
rebuilder" be construed or applied under this article in such a way
as to include a banking institution, insurance company, finance
company, or other lending or financial institution, or other
person, the state or any agency or political subdivision thereof,
or any municipality, who or which owns or comes in possession or
ownership of, or acquires contract rights, or security interests in
or to, any vehicle or vehicles or any part thereof and sells the
vehicle or vehicles or any part thereof for purposes other than
engaging in and holding out to the public to be engaged in the
business of selling vehicles or any part thereof.
(c) It is recognized that throughout this code the term
"trailer" or "trailers" is used to include, among other types of
trailers, house trailers. It is also recognized that throughout
this code the term "trailer" or "trailers" is seldom used to
include semitrailers or pole trailers. However, for the purposes
of this article only, the term "trailers" has the meaning ascribed
to it in subsection (a) of this section.
NOTE: The purpose of this bill is to amend the definition of
"established place of business" to allow one residential rental
unit be co-located with the motor vehicle dealership if certain
conditions are met.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.