W. Va. Code R. § 91-6-11

Current through Register Vol. XLI, No. 24, June 14, 2024

Section 91-6-11 - Unlicensed Dealers

11.1. Any person who engages, represents or advertises that he or she is engaged in or intends to engage in the business of new motor vehicle dealer, used motor vehicle dealer, house trailer dealer, trailer dealer, recreational vehicle dealer, motorcycle dealer, or wrecker/dismantler/rebuilder dealer in this State, without first obtaining a license certificate is in violation of W. Va. Code § 17A-6-3, and is, in addition to any other penalty, subject to civil penalties pursuant to the provisions of W. Va. Code § 17A-6-3(c).

11.2. Any titles presented to the division for processing by a person who has been identified by the division as an unlicensed dealer will not be processed.

11.3. The civil penalties provided by W. Va. Code § 17A-6-3(c) shall be levied by the Commissioner upon receipt of information which gives the Commissioner reason to believe that a violation of W. Va. Code § 17A-6-3 has occurred. A rebuttable presumption exists that a person is engaged in the business of a dealer if he or she sells ten or more used motor vehicles or five or more of any other type of vehicle requiring a license to engage in the business of selling the vehicle in a twelve (12) month period. The Commissioner may request any additional information or investigation he or she considers necessary before levying any civil penalty.

11.4. The civil penalty assessed shall not take effect until the Commissioner sends by certified mail return receipt requested to the person in violation of W. Va. Code § 17A-6-3, a notice of violation finding that the person has committed an offense. The notice shall contain:

11.4.1. A statement of the offense the person committed;

11.4.2. A summary of the facts on which the finding of a violation was made;

11.4.3. The amount of the civil penalty which is being levied; and

11.4.4. An order that the person:

11.4.4.a. Cease and desist from all future violations and pay the civil penalty; or

11.4.4.b. Protest in writing the findings of the Commissioner and or the amount of the assessed penalty and request a hearing in accordance with the provisions of this subsection and of section 8 of this rule.

11.5. Any request for a hearing must be received by the Commissioner within thirty 30) days after the mailing date of the Notice of Violation.

11.6. The Notice of Violation may be sent to any address which the person has used on any title or license application, or other record which the Commissioner believes is current.

11.7. Failure of any person to receive a Notice of Violation shall not preclude the civil penalty from taking effect. However, the Commissioner shall accept as timely a request for hearing from any person who, within one (1) year of the date the Notice of Violation was sent, provides satisfactory proof that he or she did not receive the Notice of Violation and that good cause exists to excuse his or her failure to receive the Notice of Violation and that he or she wishes in good faith to assert a protest to the Notice of Violation. The pendency of the one-year period shall not keep any penalty from taking effect pursuant to subsection 9 of this section. The Commissioner shall stay enforcement of the civil penalty upon his or her acceptance of any notice filed after the thirty (30) day period pending the outcome of the appeal.

11.8. Upon receipt of a timely request the Commissioner shall afford the person a hearing in accordance with section 8 of this rule. For purposes of section 8 of this rule, the Notice of Violation shall be considered an order of the Commissioner. The Commissioner, in addition to considering the evidence relied upon to prove or defend against a finding of a violation, shall also evaluate the appropriateness of the amount of the civil penalty. In making the evaluation, the Commissioner shall consider:

11.8.1. The severity of the violation and or its impact on the public;

11.8.2. The number of similar or related violations;

11.8.3. Whether or not the violations were willful or intentional; and

11.8.4. Any other facts considered appropriate.

11.9. In addition to any other findings of fact or conclusions of law, the Commissioner may reduce the civil penalty to a stated amount. The appellant may, at any time during the pendency of the appeal, enter into a settlement agreement with the Commissioner. The settlement agreement may provide for a reduction in the penalty and it may provide for assurances that future violations will not occur without an admission of guilt by the appellant. The payment of any civil penalty pursuant to a settlement agreement which clearly states that no finding of violation is made shall not amount to an admission of guilt for purposes of any criminal prosecution. But the settlement agreement shall operate as a violation for any additional penalty for a second or subsequent violations of the provisions of W. Va. Code §17A- 6-3.

11.10. Upon the expiration of all periods for protest or appeal, of any Notice of Violation, or other order of the Commissioner issued pursuant to § 17A-6-3(a), the Notice of Violation or order shall have the same force and effect as a judgment entered by any court of law of this State.

11.11. Any officer of a corporation that is found to have committed a violation of W. Va. Code § 17A-6-3 and is shown to have been substantially involved with the violation may be individually found to be a co-violator and assessed a civil penalty as provided by this rule.

W. Va. Code R. § 91-6-11