Senate Bill No. 390
(By Senator Oliverio and McKenzie)
[Introduced February 3, 2000; referred to the Committee
on Transportation; and then to the Committee on Finance.]
A BILL to amend and reenact sections two, four, seven, eight,
nine, ten 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 powers and
duties of the West Virginia manufactured housing
construction and safety standards board and its authority to
levy civil penalties; defining the term "transporter";
adding transporters to the list of persons the board
oversees; requiring an annual license fee of two hundred
dollars from transporters; and providing a criminal penalty
for transporters operating in the state without a license.
Be it enacted by the Legislature of West Virginia:
That sections two, four, seven, eight, nine, ten 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
(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 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 These 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 These operations also include transporting the unit to the occupancy site by other
than a motor carrier regulated by the West Virginia public
(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 that act.
(h) "HUD" means the United States department of housing and
(i) "Manufacturer" means any person engaged in manufacturing
or assembling manufactured homes, including any person engaged in
importing manufactured homes for resale.
(j) "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 this term shall include includes 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) "Purchaser" means the first person purchasing a manufactured home in good faith for purposes other than resale.
(l) "Transporter" means any person, firm or corporation who,
for compensation, transports a manufactured home upon any public
road in this state to an occupancy site.
§21-9-4. General powers and duties; persons adversely affected
entitled to hearing.
(a) The board
shall have has the power to:
(1) Regulate its own procedure and practice;
Promulgate reasonable Propose for legislative approval
rules to implement any provision of this article or of the
federal standards , such rules to be promulgated in accordance
with the provisions of article three, chapter twenty-nine-a of
(3) Advise the commissioner in all matters within his or her
jurisdiction under this article;
(4) Prepare and submit to HUD a state plan application
seeking the designation of the board as a state administrative
agency for the purpose of administering and enforcing the federal
standards and take all other action necessary to enable the board
to serve as
such a state administrative agency;
(5) Study and report to the governor and the Legislature on matters pertinent to the manufacture, distribution and sale of
manufactured housing in this state and recommend such changes in
the law as the board may determine to be necessary to promote
consumer safety and protect purchasers of manufactured housing;
(6) Conduct hearings and presentations of views consistent
with its rules
and regulations and the federal standards;
(7) Approve or disapprove applications for licenses to
manufacturers, dealers, distributors,
and contractors, and
transporters in accordance with section nine of this article, and
revoke or suspend such licenses in accordance with such that
section, and set the amounts of license fees and bonds or other
forms of assurance in accordance with sections nine and ten of
(8) Realizing the inability of the citizens of the state of
West Virginia to obtain fire insurance on manufactured housing,
the Legislature directs the board to conduct a study in regard to
this crisis and to report to the Legislature by the fifth day of
February, one thousand nine hundred eighty-nine. The report
shall include specific recommendations to correct this crisis and
improve the availability and reduce the cost of fire insurance;
(9) Delegate to and authorize the commissioner to exercise
such powers and duties of the board as the board may from time to
time determine, including, without limitation, the authority to
approve, disapprove, revoke or suspend licenses in accordance
with section nine of this article.
(b) Any person adversely affected by a decision of the board
or the commissioner shall be afforded an opportunity for hearing
before the board in accordance with section one, article five,
chapter twenty-nine-a of this code.
§21-9-7. Monitoring inspection fee.
The board shall establish a monitoring inspection fee in an
amount established by HUD.
Such The fee shall be paid by the
manufacturer for each manufactured home produced in this state to
the secretary of HUD, who shall distribute the fees collected
from all manufactured home manufacturers among the approved and
conditionally approved states based on the number of new
manufactured homes whose first location after leaving the
manufacturing plant is on the premises of a distributor, dealer,
transporter or purchaser in that state.
§21-9-8. Maintenance and production of records and other
Each manufacturer, dealer, distributor,
and contractor and
transporter shall establish and maintain such records, make such
reports and provide such information as the board or the
secretary of HUD may reasonably require in order to be able to
determine whether such the manufacturer, dealer, distributor, or
contractor, or transporter has acted or is acting in compliance
with this article, the rules and regulations promulgated by the
board pursuant to this article or the federal standards and
shall, upon request of a person duly designated by the board or
the secretary of HUD, permit such that person to inspect
appropriate books, papers, records and documents relevant to
determining whether such the manufacturer, dealer, distributor,
or contractor or transporter has acted or is acting in compliance
with this article and the federal standards.
§21-9-9. License required; fees; form of license; display of
license; denial, suspension or revocation.
(a) No manufacturer, dealer, distributor,
or contractor or
transporter shall may engage in business in this state without
first having applied for and received a license pursuant to this
section. The license shall authorize the holder to engage in the
business permitted by the license. All license applications shall be accompanied by the required fee and surety bond or other
form of assurance as required by subsection (c) of section ten of
this article or as required by rule or regulation promulgated by
(b) All licenses shall be granted or refused within thirty
days after proper and complete application. All licenses shall
expire on the thirtieth day of June of each year, unless sooner
revoked or suspended. Applications
shall be deemed are valid for
a period of thirty days.
(c) The annual license fees shall be in the amounts
prescribed from time to time by rules
and regulations promulgated
by the board but in no event less than the following amounts:
(1) For manufacturers, three hundred dollars;
(2) For dealers, one hundred dollars;
(3) For distributors, one hundred dollars;
(4) For contractors, fifty dollars: Provided, That if a
contractor has met the licensing requirements of this article and
the West Virginia contractor licensing act in article eleven of
this chapter, has paid the annual license fee under section
eight, article eleven of this chapter and has furnished bond or other assurance under section ten of this article, he or she
shall may not be required to pay the annual license fee set forth
in this section; and
(5) For transporters, two hundred dollars.
(d) The board shall prescribe the form of license and each
license shall have affixed thereon the seal of the state
department of labor.
(e) Each licensee shall conspicuously display the license in
its established place of business.
(f) Pursuant to such rules
and regulations as may be
promulgated by the board, the board may deny the issuance of a
license or revoke or suspend any license.
(g) The proceeds of
such these fees shall be deposited in a
special account in the state treasury to be used by the
department of labor for the administration of the provisions of
§21-9-10. Licensee to furnish bond or other form of assurance.
(a) Each manufacturer, dealer, distributor or contractor
which applies for a license under the preceding section shall, at
the time of making application therefor, furnish a surety bond or such other form of assurance of the applicant's financial
responsibility as the board may by rule
or regulation permit,
such the surety bond or other form of assurance to be in such
amount as the board may by rule or regulation prescribe. In the
event of forfeiture of any such bond or security, the proceeds
thereof shall be deposited in the special account created under
section nine of this article.
(b) The bond or other form of assurance shall cover any
misappropriation of funds of a purchaser or prospective purchaser
of a manufactured home, any deception or false or fraudulent
representations or deceitful practices in selling or representing
a product, any failure by a licensee, because of bankruptcy,
insolvency or other reason, to fulfill warranty obligations and
any failure of the licensee, its agents or employees, to comply
with the federal standards, this article or any rules
regulations promulgated by the board pursuant to this article.
(c) Each transporter shall maintain a policy of insurance
approved by the board and obtained from an insurer authorized to
conduct business in this state in an amount of not less than one
hundred thousand dollars for each manufactured home transported and one million dollars in the aggregate. The policy shall
insure the transporter against liability for damages to a
manufactured home in the transit process. The board may not
accept any policy of insurance unless it obligates the insurer to
give written notice to the board thirty days before any proposed
cancellation, suspension or nonrenewal of the policy. The board
shall make available upon request an approved endorsement form.
§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, 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, 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
(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
the 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 the manufactured
home conforms to all applicable federal standards, unless that person knows that the manufactured home does not conform to those
(c) Any manufacturer, dealer, distributor,
or contractor or
transporter 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
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).
NOTE: The purpose of this bill is to include within the
powers and duties of the West Virginia manufactured housing
construction and safety standards board authority over
"transporters." The bill also defines the term "transporter,"
adds transporters to the list of persons over who the board
oversees, requires an annual license fee of two hundred dollars
be paid by transporters, and provides a criminal penalty for
transporters operating in the state without a license.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.