H. B. 2484
(By Delegates DeLong, Mahan, Morgan,
Azinger and Hamilton)
[Introduced January 9, 2008; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §21-9-4 and §21-9-12 of the Code of
West Virginia, 1931, as amended; and to amend and reenact
§24-2-2 of said code, all relating to requiring manufactured
housing, fuel oil and propane tanks and other items to be
properly secured when in flood plain; requiring certificate or
installation approval from flood plain manager prior to
installation; providing for penalties; providing that utility
service may not be provided to a building or manufactured home
under certain conditions; and requiring building or property
owner provide utility companies with certificate or
installation approval before service to home may be provided.
Be it enacted by the Legislature of West Virginia:
That §21-9-4 and §21-9-12 of the Code of West Virginia, 1931,
as amended, be amended and reenacted; and that §24-2-2 of said code
be amended and reenacted, all to read as follows:
CHAPTER 21. LABOR.
ARTICLE 9. MANUFACTURED HOUSING CONSTRUCTION AND SAFETY STANDARDS.
§21-9-4. General powers and duties; persons adversely affected
entitled to hearing.
(a) The board shall have the power to:
(1) Regulate its own procedure and practice;
(2) Propose rules for legislative approval in accordance with
the provisions of article three, chapter twenty-nine-a of this
code, to implement the provisions of this article and the federal
standards;
(3) Advise the commissioner in all matters within his
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
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 changes in the law
determined by the board 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 the federal standards;
(7) Approve or disapprove applications for licenses to manufacturers, dealers, distributors and contractors in accordance
with section nine of this article, and revoke or suspend licenses
in accordance with that section, and set the amounts of license
fees and bonds or other forms of assurance in accordance with
sections nine and ten of this article;
(8) Delegate to and authorize the commissioner to exercise the
powers and duties of the board that the board may determine,
including without limitation, the authority to approve, disapprove,
revoke or suspend licenses in accordance with section nine of this
article;
(9) Require all new or previously owned manufactured homes,
outbuildings and propane or fuel oil tanks utilized for such homes,
installed in a flood plain area in this state after the thirtieth
day of June, two thousand eight, to be sufficiently secured to
prevent the home, outbuilding and any propane or fuel oil tank from
being separated from its foundation or location during a flood.
The board shall promulgate a rule in accordance with the provisions
of section one, article three of chapter twenty-nine-a, et seq., to
implement this requirement and may adopt the standards
set forth in
the manual, Manufactured Home Installation In Flood Hazard Areas,
published by the Federal Emergency Management Agency (FEMA) or more
stringent standards when necessary to protect the health, safety
and welfare of the citizens of this state. The rule shall require
licensed dealers and installers or the homeowner if the homeowner is installing the home, outbuilding or tank, to obtain a
certificate from the county or municipal flood plain manager that
the proposed home site is not in a flood hazard area location. If
the proposed home site is in a flood hazard area the installation
design shall be engineered for use in a flood plain location and
approved by the board and the county or municipal flood plain
manager for site specific flooding conditions. No utility may
provide service to a manufactured home sold or installed after the
effective date of the amendment and enactment of this section
during the two thousand seven legislative session until the
appropriate site certification or installation approval have been
obtained. It shall be the responsibility of the licensed dealer
for new homes and the licensed dealer or installer of used homes to
obtain the site certification or installation approval and to
provide a copy to the customer's insurance company and the board.
In those instances where the homeowner installs the home, he or she
is responsible for obtaining the site certification or installation
approval and providing a copy to his or her insurance company and
the board. In all instances, it is the responsibility of the
homeowner to provide a copy of the certificate or installation
approval to the utility company or companies.
In addition to any other penalties provided by law, any person
failing to comply with the provisions of this section is in
violation of the applicable county and municipal flood plain management plans.
(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.
§21-9-12. Violation of article; penalties; injunction.
(a) Any person who violates any of the following provisions
relating to manufactured homes or any legislative rule proposed by
the board pursuant to the provisions of this article, is liable to
the state for a penalty, as determined by the 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, 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.
(7) Violate the provisions of subdivision ten, subsection four, of this article, any person found guilty of such violation
will be subjected to double the maximum penalty provided by this
section and revocation of his or her license.
(b) Subdivision (1), subsection (a) of this section does not
apply to:
(1) 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;
(2) 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
(3) Any person who, prior to the first purchase, holds a
certificate by the manufacturer or importer of the manufactured
home to the effect that the 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 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) The board may institute proceedings in the Circuit Court
of the county in which the alleged violation occurred or are occurring to enjoin any violation of the provisions of this
article.
(e) 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.
(f) Nothing in this article applies to any bank or financial
institution engaged in the disposal of foreclosed or repossessed
manufactured homes.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.
§24-2-2. General power of commission to regulate public utilities.
(a) The commission is hereby given power to investigate all
rates, methods and practices of public utilities subject to the
provisions of this chapter; to require them to conform to the laws
of this state and to all rules, regulations and orders of the
commission not contrary to law; and to require copies of all
reports, rates, classifications, schedules and timetables in effect
and used by the public utility or other person, to be filed with
the commission, and all other information desired by the commission relating to the investigation and requirements, including
inventories of all property in such form and detail as the
commission may prescribe. The commission may compel obedience to
its lawful orders by mandamus or injunction or other proper
proceedings in the name of the state in any Circuit Court having
jurisdiction of the parties or of the subject matter, or the
Supreme Court of Appeals direct, and the proceedings shall have
priority over all pending cases. The commission may change any
intrastate rate, charge or toll which is unjust or unreasonable or
any interstate charge with respect to matters of a purely local
nature which have not been regulated by or pursuant to an Act of
Congress and may prescribe a rate, charge or toll that is just and
reasonable, and change or prohibit any practice, device or method
of service in order to prevent undue discrimination or favoritism
between persons and between localities and between commodities for
a like and contemporaneous service. But in no case shall the rate,
toll or charge be more than the service is reasonably worth,
considering the cost of the service. Every order entered by the
commission shall continue in force until the expiration of the
time, if any, named by the commission in the order, or until
revoked or modified by the commission, unless the order is
suspended, modified or revoked by order or decree of a court of
competent jurisdiction: Provided, That in the case of utilities
used by emergency shelter providers, the commission shall prescribe such rates, charges or tolls that are the lowest available.
"Emergency shelter provider" means any nonprofit entity which
provides temporary emergency housing and services to the homeless
or to victims of domestic violence or other abuse.
(b) Notwithstanding any other provision of this code to the
contrary, rates are not discriminatory if, when considering the
debt costs associated with a future water or sewer project which
would not benefit existing customers, the commission establishes
rates which ensure that the future customers to be served by the
new project are solely responsible for the debt costs associated
with the project.
(c) The commission shall, after the thirtieth day of June, two
thousand nine, prohibit any regulated utility from providing
service to any public or private building or manufactured housing,
to be used for commercial or dwelling purposes, until the building
or property owner or his or her designee provides the utility with
a certificate that the building or manufactured housing is not in
flood hazard area or if the building or manufactured housing is in
a flood hazard area that the construction, engineering and
installation design have been approved by the county or municipal
flood plain manager for site specific flooding conditions. All
propane or fuel oil tanks utilized for any building or manufactured
housing must also receive a certificate or installation approval
from the county or municipal flood plain manager prior to being filled.
NOTE: The purpose of this bill is to protect the health,
safety and welfare of the citizens of this state by reducing the
opportunity for unsecured or improperly secured buildings,
manufactured housing, propane and fuel oil tanks to impede water
flow during and after a flood.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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