CHAPTER 162
(HB 1060)
Motor vehicle dealers subject to increased regulatory authority of the
Department of Revenue and Regulation.
ENTITLED, An Act to
authorize the secretary of Revenue and Regulation to issue a cease and
desist order to vehicle, snowmobile, manufactured home, and boat dealers for certain
violations, to authorize imposition of monetary penalties for failure to comply with a cease and
desist order, and to modify the reasons for suspending or revoking a dealer's license.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section
1.
That chapter
32-6B
be amended by adding thereto a NEW SECTION to read as
follows:
In addition to any other remedy provided by law, the secretary of revenue and regulation may
issue an order directing a vehicle dealer to cease and desist from engaging in any act or practice
enumerated in
§
32-6B-41. A cease and desist order issued pursuant to this section shall be
effective for a period of five years.
Section
2.
That chapter
32-6B
be amended by adding thereto a NEW SECTION to read as
follows:
Within twenty days after service of the order to cease and desist, the vehicle dealer may request
a hearing in writing on the question of whether acts or practices in violation of this title have
occurred. Any hearing shall be conducted pursuant to, and judicial review shall be available as
provided by, chapter 1-26.
Section
3.
That chapter
32-6B
be amended by adding thereto a NEW SECTION to read as
follows:
A cease and desist order pursuant to section 1 of this Act becomes final upon expiration of the
time allowed for appeals from the secretary's order if no appeal is taken, or, if an appeal is taken,
upon final decision of the court if the court affirms the secretary's order or dismisses the appeal.
Section
4.
That chapter
32-6B
be amended by adding thereto a NEW SECTION to read as
follows:
If a dealer fails to comply with a cease and desist order issued pursuant to section 1 of this Act,
the secretary may issue an order which:
(1) Imposes a monetary penalty on the dealer of five hundred dollars for each violation of
the cease and desist order;
(2) Suspends dealer's license for not more than thirty days; or
(3) Revokes the dealer's license.
All monetary penalties collected pursuant to this section shall be deposited into the state motor
vehicle fund.
Section
5.
That chapter
32-6B
be amended by adding thereto a NEW SECTION to read as
follows:
A dealer may request a hearing to contest an order issued pursuant to section 4 of this Act. The
request shall be submitted to the secretary in writing within twenty days after service of the order.
Any hearing shall be conducted pursuant to, and judicial review shall be available as provided by,
chapter 1-26.
Section
6.
That chapter
32-6B
be amended by adding thereto a NEW SECTION to read as
follows:
An order issued pursuant to section 4 of this Act becomes final upon expiration of the time
allowed for appeals from the secretary's order, if no appeal is taken, or, if an appeal is taken, upon
final decision of the court if the court affirms the secretary's order or dismisses the appeal.
Section
7.
That
§
32-6B-41
be amended to read as follows:
32-6B-41.
The department may deny any application
, or suspend or revoke
or apply the
provisions of sections 1 to 6, inclusive, of this Act on
any license issued under the provisions of
this chapter, for
the violation of
any of the following:
(1)
Commission of fraud or willful misrepresentation in the application for or in obtaining
a license;
(2)
Conviction of a felony involving vehicle theft or odometer fraud in the last five years;
(3)
Second or subsequent
A
violation of any law of this state which relates to dealing in
vehicles;
(4)
Repeated failure
Failure
to comply with any administrative rule promulgated by the
department;
(5)
Perpetration of a fraud upon any person as a result of dealing in vehicles;
(6)
Repeated failure
Failure
to apply for transfers of title as required in chapter 32-3;
(7)
Willful failure
Failure
to allow department inspections, including initial and annual
inspections, complaint investigations, and necessary follow-up inspections;
(8)
Willful misrepresentation
Misrepresentation
through false, deceptive, or misleading
statements with regard to the sale or financing of vehicles which a dealer has, or causes
to have, advertised, printed, displayed, published, distributed, broadcast, televised, or
made in any manner with regard to the sale or financing of vehicles;
(9)
Refusal to comply with a licensee's responsibility under the terms of the new vehicle
warranty issued by its respective manufacturer, unless such refusal is at the direction of
the manufacturer;
(10)
Repeated failure to provide customers or purchasers with an odometer disclosure
statement;
(11)
Willful failure
Failure
to comply with the terms of any bona fide written, executed
agreement pursuant to the sale of a vehicle;
(12)
(11)
Inability to obtain or renew surety bond or to participate in a dealer asset pool;
(13)
(12)
Failure to maintain and continuously occupy a principal place of business; or
(14)
(13)
Failure to obtain or renew a public liability insurance policy of not less than three
hundred thousand dollars, if the dealer has been given thirty days written notice
to comply.
Section
8.
That
§
32-6B-40
be repealed.
Section
9.
That
§
32-6B-43
be repealed.
Section
10.
That
§
32-6B-44
be repealed.
Section
11.
That chapter
32-6C
be amended by adding thereto a NEW SECTION to read as
follows:
In addition to any other remedy provided by law, the secretary of revenue and regulation may
issue an order directing a snowmobile dealer to cease and desist from engaging in any act or
practice enumerated in
§
32-6C-14. A cease and desist order issued pursuant to this section is
effective for a period of five years.
Section
12.
That chapter
32-6C
be amended by adding thereto a NEW SECTION to read as
follows:
Within twenty days after service of the order to cease and desist, the snowmobile dealer may
request a hearing in writing on the question of whether acts or practices in violation of this title
have occurred. Any hearing shall be conducted pursuant to, and judicial review shall be available
as provided by, chapter 1-26.
Section
13.
That chapter
32-6C
be amended by adding thereto a NEW SECTION to read as
follows:
A cease and desist order pursuant to section 11 of this Act becomes final upon expiration of
the time allowed for appeals from the secretary's order if no appeal is taken, or, if an appeal is
taken, upon final decision of the court if the court affirms the secretary's order or dismisses the
appeal.
Section
14.
That chapter
32-6C
be amended by adding thereto a NEW SECTION to read as
follows:
If a dealer fails to comply with a cease and desist order issued pursuant to section 11of this Act,
the secretary may issue an order which:
(1) Imposes a monetary penalty on the dealer of five hundred dollars for each violation of
the cease and desist order;
(2) Suspends dealer's license for not more than thirty days; or
(3) Revokes the dealer's license.
All monetary penalties collected pursuant to this section shall be deposited into the state motor
vehicle fund.
Section
15.
That chapter
32-6C
be amended by adding thereto a NEW SECTION to read as
follows:
A dealer may request a hearing to contest an order issued pursuant to section 14 of this Act.
The request shall be submitted to the secretary in writing within twenty days after service of the
order. Any hearing shall be conducted pursuant to, and judicial review shall be available as
provided by, chapter 1-26.
Section
16.
That chapter
32-6C
be amended by adding thereto a NEW SECTION to read as
follows:
An order issued pursuant to section 14 of this Act becomes final upon expiration of the time
allowed for appeals from the secretary's order, if no appeal is taken, or, if an appeal is taken, upon
final decision of the court if the court affirms the secretary's order or dismisses the appeal.
Section
17.
That
§
32-6C-14
be amended to read as follows:
32-6C-14.
The department may deny any application
, or suspend or revoke
or apply the
provisions of sections 11 to 16, inclusive, of this Act on
any license issued under the provisions
of this chapter, for
the violation of
any of the following
provisions
:
(1)
Commission of fraud or willful misrepresentation in the application for or in obtaining
a license;
(2)
Conviction of a felony involving the theft of snowmobiles or other motor vehicles in the
last five years;
(3)
Second or subsequent violations
A violation
of any law of this state which relates to
dealing in snowmobiles;
(4)
Repeated failure
Failure
to comply with any administrative rule promulgated by the
department;
(5)
Perpetration of a fraud upon any person as a result of dealing in snowmobiles;
(6)
Repeated failure
Failure
to apply for transfers of title as required in chapters 32-3 and
32-20A;
(7)
Willful failure
Failure
to allow department inspections, including initial and annual
inspections, complaint investigations, and necessary follow-up inspections;
(8)
Willful misrepresentation
Misrepresentation
through false, deceptive, or misleading
statements with regard to the sale or financing of snowmobiles which a dealer has, or
causes to have, advertised, printed, displayed, published, distributed, broadcast,
televised, or made in any manner with regard to the sale or financing of snowmobiles;
(9)
Refusal to comply with a licensee's responsibility under the terms of a snowmobile
warranty issued by its respective manufacturer, unless such refusal is at the direction of
the manufacturer;
(10)
Willful failure
Failure
to comply with the terms of any bona fide written, executed
agreement pursuant to the sale of a snowmobile;
(11)
Willful failure
Failure
to disclose damage to a new snowmobile of which the dealer had
knowledge if the dealer's actual cost to repair, exceeds five percent of the manufacturer's
suggested retail price; or
(12)
Inability to obtain or renew surety bond.
Section
18.
That
§
32-6C-13
be repealed.
Section
19.
That
§
32-6C-15
be repealed.
Section
20.
That
§
32-6C-16
be repealed.
Section
21.
That chapter
32-7A
be amended by adding thereto a NEW SECTION to read as
follows:
In addition to any other remedy provided by law, the secretary of revenue and regulation may
issue an order directing a dealer to cease and desist from engaging in any act or practice
enumerated in
§
32-7A-4.2. A cease and desist order issued pursuant to this section is effective for
a period of five years.
Section
22.
That chapter
32-7A
be amended by adding thereto a NEW SECTION to read as
follows:
Within twenty days after service of the order to cease and desist, the dealer may request a
hearing in writing on the question of whether acts or practices in violation of this title have
occurred. Any hearing shall be conducted pursuant to, and judicial review shall be available as
provided by, chapter 1-26.
Section
23.
That chapter
32-7A
be amended by adding thereto a NEW SECTION to read as
follows:
A cease and desist order pursuant to section 21 of this Act becomes final upon expiration of
the time allowed for appeals from the secretary's order if no appeal is taken, or, if an appeal is
taken, upon final decision of the court if the court affirms the secretary's order or dismisses the
appeal.
Section
24.
That chapter
32-7A
be amended by adding thereto a NEW SECTION to read as
follows:
If a dealer fails to comply with a cease and desist order issued pursuant to section 21 of this
Act, the secretary may issue an order which:
(1) Imposes a monetary penalty on the dealer of five hundred dollars for each violation of
the cease and desist order;
(2) Suspends dealer's license for not more than thirty days; or
(3) Revokes the dealer's license.
All monetary penalties collected pursuant to this section shall be deposited into the state motor
vehicle fund.
Section
25.
That chapter
32-7A
be amended by adding thereto a NEW SECTION to read as
follows:
A dealer may request a hearing to contest an order issued pursuant to section 24 of this Act.
The request shall be submitted to the secretary in writing within twenty days after service of the
order. Any hearing shall be conducted pursuant to, and judicial review shall be available as
provided by, chapter 1-26.
Section
26.
That chapter
32-7A
be amended by adding thereto a NEW SECTION to read as
follows:
An order issued pursuant to section 24 of this Act becomes final upon expiration of the time
allowed for appeals from the secretary's order, if no appeal is taken, or, if an appeal is taken, upon
final decision of the court if the court affirms the secretary's order or dismisses the appeal.
Section
27.
That
§
32-7A-4.2
be amended to read as follows:
32-7A-4.2.
The department may deny any application
, or suspend or revoke
or apply the
provisions of sections 21 to 26, inclusive, of this Act on
any license issued under the provisions
of this chapter, for
a violation of
any of the following
provisions
:
(1)
Commission of fraud or willful misrepresentation in the application for or in obtaining
a license;
(2)
A previous manufacturer or dealer license revocation in this or any other state;
(3)
Willful violation, which leads to a conviction,
A violation
of any law of this state which
relates to dealing in manufactured homes or mobile homes;
(4)
Willful failure
Failure
to comply with any administrative rule promulgated by the
department;
(5)
Perpetration of a fraud upon any person as a result of dealing in manufactured homes
or mobile homes;
(6)
Failure to allow department inspections, including initial and annual inspections,
complaint investigations and necessary follow-up inspections;
(7)
Willful misrepresentation
Misrepresentation
through false, deceptive, or misleading
statements with regard to the sale or financing of manufactured homes or mobile homes
which a dealer has, or causes to have, advertised, printed, displayed, published,
distributed, broadcast, televised, or made in any manner with regard to the sale or
financing of manufactured homes or mobile homes;
(8)
Refusal to comply with a licensee's responsibility under the terms of the new
manufactured home or mobile home warranty issued by its respective manufacturer,
unless such refusal is at the direction of the manufacturer;
(9)
Willful failure
Failure
to comply with the terms of any bona fide written, executed
agreement pursuant to the sale of a manufactured home or mobile home;
(10)
Violation by the dealer of any applicable manufactured home building or safety code;
(11)
Failure to continuously occupy a principal place of business licensed under § 32-7A-2;
(12)
Willful failure
Failure
to deliver the manufacturer's statement of origin to the county
treasurer or the certificate of title to a person entitled to it within thirty days after date
of delivery;
(13)
Conviction within the previous
ten
five
years, of a crime that related directly to the
business of the dealer or manufacturer involving fraud, misrepresentation or misuse of
funds;
(14)
Inability to obtain or renew a surety bond;
or
(15)
Misuse of the dealers' metal plates and lending for use on mobile homes or
manufactured homes not owned by the manufacturer or dealer
;
(16)
Transporting a used mobile home or manufactured home without an affidavit, four or
more times within a one-year period, from the county treasurer of the county in which
the mobile home or manufactured home is registered, stating that the current year's taxes
are paid; or
(17)
Having a used mobile home or manufactured home located on the licensed dealer's or
manufacturer's lot without an affidavit, four or more times within a one-year period,
from the county treasurer of the county in which the mobile home or manufactured
home is registered, stating that the current year's taxes were paid when the licensed
dealer acquired the home
.
Section
28.
That
§
32-7A-20
be repealed.
Section
29.
That
§
32-7A-21
be repealed.
Section
30.
That
§
32-7A-22
be repealed.
Section
31.
That chapter
32-7B
be amended by adding thereto a NEW SECTION to read as
follows:
In addition to any other remedy provided by law, the secretary of revenue and regulation may
issue an order directing a boat dealer to cease and desist from engaging in any act or practice
enumerated in
§
32-7B-17. A cease and desist order issued pursuant to this section is effective for
a period of five years.
Section
32.
That chapter
32-7B
be amended by adding thereto a NEW SECTION to read as
follows:
Within twenty days after service of the order to cease and desist, the boat dealer may request
a hearing in writing on the question of whether acts or practices in violation of this title have
occurred. Any hearing shall be conducted pursuant to, and judicial review shall be available as
provided by, chapter 1-26.
Section
33.
That chapter
32-7B
be amended by adding thereto a NEW SECTION to read as
follows:
A cease and desist order pursuant to section 31 of this Act becomes final upon expiration of
the time allowed for appeals from the secretary's order if no appeal is taken, or, if an appeal is
taken, upon final decision of the court if the court affirms the secretary's order or dismisses the
appeal.
Section
34.
That chapter
32-7B
be amended by adding thereto a NEW SECTION to read as
follows:
If a dealer fails to comply with a cease and desist order issued pursuant to section 31 of this
Act, the secretary may issue an order which:
(1) Imposes a monetary penalty on the dealer of five hundred dollars for each violation of
the cease and desist order;
(2) Suspends dealer's license for not more than thirty days; or
(3) Revokes the dealer's license.
All monetary penalties collected pursuant to this section shall be deposited into the state motor
vehicle fund.
Section
35.
That chapter
32-7B
be amended by adding thereto a NEW SECTION to read as
follows:
A dealer may request a hearing to contest an order issued pursuant to section 34 of this Act.
The request shall be submitted to the secretary in writing within twenty days after service of the
order. Any hearing shall be conducted pursuant to, and judicial review shall be available as
provided by, chapter 1-26.
Section
36.
That chapter
32-7B
be amended by adding thereto a NEW SECTION to read as
follows:
An order issued pursuant to section 34 of this Act becomes final upon expiration of the time
allowed for appeals from the secretary's order, if no appeal is taken, or, if an appeal is taken, upon
final decision of the court if the court affirms the secretary's order or dismisses the appeal.
Section
37.
That
§
32-7B-17
be amended to read as follows:
32-7B-17.
The department may deny any application
, or suspend or revoke
or apply the
provisions of sections 31 to 36, inclusive, of this Act on
any license issued under the provisions
of this chapter, for
the violation of
any of the following
provisions
:
(1)
Commission of fraud of willful misrepresentation in the application for or in obtaining
a license;
(2)
Conviction of a felony involving the theft of boats or other motor vehicles in the last
five years;
(3)
Second or subsequent violations
A violation
of any law of this state that relates to
dealing in boats;
(4)
Repeated failure
Failure
to comply with any administrative rule promulgated by the
department;
(5)
Perpetration of a fraud upon any person as a result of dealing in boats;
(6)
Repeated failure
Failure
to apply for transfers of title as required in chapters 32-3 and
42-8;
(7)
Willful failure
Failure
to allow department inspections, including initial and annual
inspections, complaint investigations and necessary follow-up inspections;
(8)
Willful misrepresentation
Misrepresentation
through false, deceptive, or misleading
statements with regard to the sale or financing of boats which a dealer has, or causes to
have, advertised, printed, displayed, published, distributed, broadcasted, televised, or
made in any manner with regard to the sale or financing of boats;
(9)
Refusal to comply with a licensee's responsibility under the terms of a boat warranty
issued by its respective manufacturer, unless such refusal is at the direction of the
manufacturer;
(10)
Willful failure
Failure
to comply with the terms of any bona fide written, executed
agreement pursuant to the sale of a boat;
(11)
Inability to obtain or renew surety bond; or
(12)
Failure to maintain a principal place of business.
Section
38.
That
§
32-7B-16
be repealed.
Section
39.
That
§
32-7B-18
be repealed.
Section
40.
That
§
32-7B-19
be repealed.
Signed February 18, 2005