Title 49--PROFESSIONAL AND VOCATIONAL STANDARDS STATE BOARD OF VEHICLE MANUFACTURERS, DEALERS AND SALESPERSONS [49 PA. CODE CH. 19] Established Place of Business for Dealers [34 Pa.B. 6407] The State Board of Vehicle Manufacturers, Dealers and Salespersons (Board) amends § 19.18 (relating to established place of business for dealers) to read as set forth in Annex A.
Description and Need for this Final-Form Rulemaking
This final-form rulemaking amends § 19.18(a)(3)(ii) to permit a licensed vehicle dealer to display up to five vehicles in a nonconforming area that is not open to the public.
Under the current provisions, a dealer may display vehicles only in areas that are properly graded and surfaced. The purpose of this restriction is to protect potential customers who might slip or otherwise be injured while looking at a vehicle in an area that is not properly graded or surfaced. A consequence of this restriction is that a dealer may not showcase a vehicle, such as on grass, boulders or a raised display, to advertise it to the public. This final-form rulemaking permits a dealer that has an adequate conforming display area at its facility to display up to five vehicles in a nonconformingarea, ''so long as customers are not permitted to be present in the nonconforming area.''
Summary of Comments and Responses to Proposed Rulemaking
The Board published notice of proposed rulemaking at 32 Pa.B. 5417 (November 2, 2002) with a 30-day public comment period. The Board did not receive comments from any members of the public. The Board received comments from the Independent Regulatory Review Commission (IRRC) and the House Professional Licensure Committee (HPLC) as part of their review of proposed rulemaking under the Regulatory Review Act (71 P. S. §§ 745.1--745.12). The Board did not receive comments from the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC) as part of its review of proposed rulemaking under the Regulatory Review Act.
Both IRRC and the HPLC questioned how the public is to be kept out of nonconforming display areas, especially outside of business hours. IRRC also questioned whether a dealer would be held responsible for keeping the public out of nonconforming areas. The HPLC also questioned whether the lowering of public safety measures is justified by economic reasons.
Restricting the display of vehicles for sale to a properly graded and surfaced area is a preventive measure. A customer, possibly distracted by the vehicle for sale from adequately observing footing, is more protected from slipping or otherwise being injured by the display area if that display area is properly graded and surfaced. When customers are kept out of a nonconforming area, there is no lowering of public safety measures.
In response to these comments from IRRC and the HPLC, the Board revised the proposed rulemaking to suggest measures that a dealer might take to make clear that customers are not permitted to be present in the nonconforming area, such as by posted nontrespassing sign, barrier or other reasonable precaution. The Board does not intend, by this rulemaking, to alter in any way the obligation that a dealer, as the possessor of real estate, owes to those who enter upon the land.
Additionally, in § 19.18(8) the Board referenced the act of April 27, 1927 (P. L. 465, No. 299) (35 P. S. §§ 1221--1235), know as the Fire and Panic Act. Because the pertinent sections of the Fire and Panic Act were repealed by enactment of the Pennsylvania Construction Code Act (35 P. S. § 7210.101--7210.1103), the Board has revised this paragraph to refer only to the Pennsylvania Construction Code Act.
Fiscal Impact and Paperwork Requirements
The final-form rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions and will impose no additional paperwork requirements upon the Commonwealth, political subdivisions or the private sector.
Effective Date
The final-form rulemaking will become effective upon publication in the Pennsylvania Bulletin.
Statutory Authority
This final-form rulemaking is promulgated under sections 2 and 4(9) of the Board of Vehicles Act (act) (63 P. S. §§ 818.2 and 818.4(9)).
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on November 2, 2002, the Board submitted a copy of the notice of proposed rulemaking, published at 32 Pa.B. 5417, to IRRC and the Chairpersons of the HPLC and the SCP/PLC for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC, the HPLC and the SCP/PLC were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing this final-form rulemaking, the Board has considered all comments from IRRC, the HPLC, the SCP/PLC and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on October 19, 2004, the final-form rulemaking was approved by the HPLC. On November 3, 2004, the final-form rulemaking was deemed approved by the SCP/PLC. Under section 5.1(e) of the Regulatory Review Act, IRRC met on November 4, 2004, and approved the final-form rulemaking.
Additional Information
Persons who require additional information about the final-form rulemaking should submit inquiries to Teresa Woodall, Board Administrator, State Board of Vehicle Manufacturers, Dealers and Salespersons, P. O. Box 2649, Harrisburg, PA 17105-2649, (717) 783-1697 or st-vehicle@state.pa.us.
Findings
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law, and all comments were considered.
(3) The amendments to this final-form rulemaking do not enlarge the scope of proposed rulemaking published at 32 Pa.B. 5417.
(4) The final-form rulemaking adopted by this order is necessary and appropriate for the administration of the act.
Order
The Board, acting under its authorizing statue, orders that:
(a) The regulations of the Board, 49 Pa. Code Chapter 19, are amended by amending § 19.18 to read as set forth in Annex A.
(b) The Board shall submit this order and Annex A to the Office of Attorney General and the Office of General Counsel for approval as required by law.
(c) The Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) The final-form rulemaking shall take effect upon publication in the Pennsylvania Bulletin.
EDWIN K. GALBREATH, Jr.,
Chairperson(Eitor's Note: For the text of the order of the Independent Review Commission relating to this document, see 34 Pa.B. 6292 (November 20, 2004).)
Fiscal Note: Fiscal Note 16A-604 remains valid for the final adoption of the subject regulation.
Annex A TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS PART I. DEPARTMENT OF STATE Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS CHAPTER 19. STATE BOARD OF VEHICLE MANUFACTURERS, DEALERS AND SALESPERSONS DEALERSHIP LICENSE § 19.18. Established place of business for dealers.
A licensed dealer shall maintain an established place of business that meets the following criteria:
(1) Permanent enclosed building. The dealer shall own or rent a permanent enclosed building for use by the dealership. A permanent enclosed building may consist of an office trailer with skirting and a permanent foundation. The dealership must be separated from adjoining businesses and residences by partitions or walls.
(2) Private office. The dealership must have a private office, separate from display areas and repair and servicing facilities, that has space for the storage of books and records.
(3) Display area. The dealership must have a display area--whether indoors, outdoors or partly indoors and partly outdoors--where the public is permitted and invited in the regular course of business to inspect or test drive the vehicles that are being offered for sale, purchase or exchange by the dealership. The display area may not include areas of the dealership premises on which are placed vehicles that are wrecked or damaged, that are awaiting reconditioning or preparation for sale, purchase or exchange, that are being serviced or repaired, that are part of general inventory, or that are otherwise not being offered for sale, purchase or exchange to the public. The display area shall meet the following requirements:
(i) Size.
(A) The display area of a dealership that buys, sells or exchanges vehicles must be large enough for the display of at least five vehicles--with doors opened--of the kind that are bought, sold or exchanged by the dealership. The display area of a dealership that buys, sells or exchanges recreational vehicles, manufactured housing and mobile homes must have a display area of at least 5,000 square feet, unless exempted by section 5(e)(3) or (4) of the act (63 P. S. § 815.5(e)(3) and (4)).
(B) The minimum size display area requirements of this paragraph do not apply to a licensed vehicle dealer that sells only new firefighting or emergency service vehicles.
(ii) Grading and surfacing. An outdoor display area must be properly graded. The outdoor display area of a dealership that buys, sells or exchanges vehicles must be surfaced with concrete, asphalt, slag, brick, stone, aggregate, gravel, cinder or similar material. A dealership that otherwise complies with this paragraph may display up to five vehicles without regard for the grading or surfacing where those vehicles are displayed, so long as customers are not permitted to be present in the nonconforming area. A dealer may demonstrate that customers are not permitted to be present in the nonconforming area by posting a no-trespassing or similar sign, erecting a barrier or taking another reasonable precaution.
(iii) Separation from adjacent parking areas. An outdoor display area must be separated from the parking areas of adjacent businesses and residences by grass strips, ropes and pennants, painted lines or some other conspicuous means of separation.
(iv) Lighting. If a dealership with an outdoor display area intends to be open during evening hours, the display area must be lighted adequately.
(4) Repairs and ancillary services. A dealership that buys, sells or exchanges mobile homes or manufactured housing must do one of the following:
(i) Provide transportation, installation and repair services to its customers.
(ii) Make available to its customers a list of persons or companies who provide transportation, installation and repair services.
(5) Telephone. The dealership must have a single business line telephone, located within the permanent enclosed building, that is used for the dealership. The telephone number must be listed under the dealership's licensed name.
(6) Sign. The dealership must exhibit a sign, either permanently affixed to the building or erected in the outdoor display area, that shows the licensed name of the dealership and that is visible to the public.
(7) Land-use ordinances. The dealership must be in full compliance with applicable building codes, zoning ordinances and other land-use ordinances.
(8) Fire-safety requirements. A dealership must posses a certificate of occupancy issued by a building code official in accordance with the Pennsylvania Construction Code Act (35 P. S. §§ 7210.101--7210.1103).
(9) Posting of business hours. The dealership must post its regular business hours in a conspicuous place for the visiting public.
[Pa.B. Doc. No. 04-2139. Filed for public inspection December 3, 2004, 9:00 a.m.]
