Title 49--PROFESSIONAL AND VOCATIONAL STANDARDS STATE BOARD OF VEHICLE MANUFACTURERS, DEALERS AND SALESPERSONS [49 PA. CODE CH. 19] General Revisions [32 Pa.B. 3485] The State Board of Vehicle Manufacturers, Dealers and Salespersons (Board) adopts amendments to §§ 19.2, 19.4, 19.11, 19.12, 19.15--19.18 and 19.21--19.23 to read as set forth in Annex A.
Statutory Authority
The final-form regulations are authorized under section 4 of the Board of Vehicles Act (act) (63 P. S. § 818.4).
Background and Purpose
Notice of proposed rulemaking was published at 31 Pa.B. 2691 (May 26, 2001). Publication was followed by a 30-day public comment period during which the Board received no comments from the general public. On July 16, 2001, the House Professional Licensure Committee (HPLC) and on July 26, 2001, the Independent Regulatory Review Commission (IRRC) sent comments and suggestions to the Board. The major underlying purpose of the amendments is to make the Board's regulations consistent with changes made to the act by the act of April 19, 1996 (P. L. 104, No. 27) (Act 27).
Summary of Comments and Responses to Proposed Rulemaking
The HPLC made the following comments and suggestions: (1) noted that the proposed draft for the renumbering of the paragraphs of § 19.22 (relating to investigation) resulted in having two paragraphs numbered ''1'' for the first paragraph; (2) questioned why a subsection (a) was necessary for § 19.23 (relating to vehicle shows, off-premise sales and exhibitions); (3) recommended that sections that were to be wholly deleted be marked as ''Reserved''; and (4) recommended that the Board add the phrase ''in addition to those acts enumerated in the Board of Vehicles Act'' to § 19.22 to put licensees on notice that there are prohibited acts enumerated in the act in addition to those set forth in the regulation.
The Board agrees with all the proffered suggestions and changed § 19.22 to avoid having two paragraphs numbered ''1''; omitted the subsection designation in § 19.23; marked deleted sections as reserved; and added the suggested phrase to § 19.22.
IRRC made the following comments and suggestions: (1) suggested the Board add a reference to section 2 of the act (63 P. S. § 818.2) to § 19.2 (relating to definitions); (2) suggested that the definition of the term ''Department'' should be deleted from the definitions because it is not found in the regulation; (3) suggested adding language and a reference to the regulation relating the term ''interest in vehicles'' to the statutory definition of ''dealer''; (4) suggested the Board use the term ''salesperson'' rather than ''vehicle salesperson'' and ''vehicle'' rather than ''motor vehicle'' for consistency with Act 27; (5) suggested that the phrase ''unless the Act provides otherwise'' in § 19.18(a)(3)(i) (relating to established place of business for dealers) should specifically reference the provision of the act which supercedes the regulation or the regulation should include the provision of the act; and (6) agreed with the HPLC that the Board should reference the statutory provisions in the act to give a licensee more complete notice of all prohibited actions.
In response to IRRC's suggestions, the Board added a reference to section 2 of the act in § 19.2; clarified the relationship between the definition of ''dealer'' in the act and the term ''interest in vehicles'' in the regulation; deleted the definition of ''Department'' as it is not used in the regulations; made alterations to consistently use the term ''vehicle'' rather than ''motor vehicle,'' the term ''salesperson'' rather than ''vehicle salesperson,'' as well as the term ''dealer'' rather than ''vehicle dealer'' and specified which provision of the act was referenced by § 19.18(a)(3)(i). In addition, the Board changed references to ''factory'' and ''distributor'' rather than the term ''manufacturer'' to be consistent with the statute.
Fiscal Impact and Paperwork Requirements
The final-form amendments will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The final-form amendments will impose no additional paperwork requirements upon the Commonwealth, political subdivisions or the private sector.
Compliance with Executive Order 1996-1
The Board sent the proposed amendments to dealer and vehicle auction organizations as required under Executive Order 1996-1, ''Regulatory Review and Promulgation.'' In addition, the Board considered the impact the final-form amendments would have on the regulated community and on public safety and welfare. The Board finds that final-form amendments address a compelling public interest as described in this Preamble and otherwise complies with Executive Order 1996-1.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on May 14, 2001, the Board submitted a copy of the notice of proposed rulemaking published at 31 Pa.B. 2691, to IRRC and to the Chairpersons of the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC) and the HPLC for review and comment.
Publication of the notice of proposed rulemaking was followed by a 30-day public comment period during which the Board received no written comments from the public. In preparing the final-form rulemaking, the Board has considered the comments received from IRRC and the HPLC. The SCP/PLC did not submit comments.
Under section 5.1(d) of the Regulatory Review Act (71 P. S. § 745.5a(d)), on June 11, 2002, this final-form rulemaking was deemed approved by the HSCP/PLC and HPLC. Under section 5.1(e) of the Regulatory Review Act, IRRC met on June 13, 2002, and approved the final-form rulemaking.
Additional Information
Further information may be obtained by contacting Teresa Woodall, Administrative Assistant, State Board of Vehicle Manufacturers, Dealers and Salespersons, P. O. Box 2649, Harrisburg, PA 17105-2649 or from the Department of State website, www.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 the regulations promulgated 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 do not enlarge the purpose of proposed rulemaking published at 31 Pa.B. 2691.
(4) The amendments are necessary and appropriate for administering and enforcing the authorizing acts identified in Part B of this Preamble.
Order
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Board, 49 Pa. Code Chapter 19, are amended by amending §§ 19.2, 19.4, 19.11, 19.12, 19.17, 19.18, 19.22 and 19.23; and by deleting §§ 19.15, 19.16 and 19.21 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(b) The Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General 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) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
EDWARD J. CERNIC, Jr.,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 32 Pa.B. 3183 (June 29, 2002).)
Fiscal Note: Fiscal Note 16A-602 remains valid for the final adoption of the subject regulations.
Annex A TITLE 49. PROFESSIONAL AND
VOCATIONAL STANDARDSPART I. DEPARTMENT OF STATE Subpart A. PROFESSIONAL AND
OCCUPATIONAL AFFAIRSCHAPTER 19. STATE BOARD OF VEHICLE MANUFACTURERS, DEALERS AND SALESPERSONS GENERAL PROVISIONS § 19.2. Definitions.
In addition to the terms defined in section 2 of the act (63 P. S. § 818.2), the following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Act--The Board of Vehicles Act (63 P. S. § 818.1--818.37).
Board--The State Board of Vehicle Manufacturers, Dealers and Salespersons.
Dealer's interest in vehicles--A dealer's interest in vehicles, as the term is used in section 2 of the act, does not include the lease of a vehicle.
Engaging in the occupation of vehicle salesperson--The display, demonstration, offer for sale or retail sale of any vehicle not owned by that person.
§ 19.4. Fees.
The following is the schedule of fees charged by the Board:
Salesperson license application $25 Factory representative or distributor representative license application 25 Manufacturer license application 30 Factory or distributor branch license application 30 Distributor license application 30 Dealer license application 65 Auction license application 65 Dealer branch lot license application 65 Salesperson change of employer transfer application 25 Business name or post office address change 30 Business physical location change 60 Verification of licensure 15 Reinspection after failure 45 Certification of license history 25 Biennial renewal--salesperson license 35 Biennial renewal--vehicle representative license 35 Biennial renewal--manufacturer license 100 Biennial renewal--manufacturer branch license 70 Biennial renewal--distributor license 70 Biennial renewal--dealer license 70 Biennial renewal--auction license 70 Biennial renewal--dealer branch license 70 SALESPERSON'S LICENSE § 19.11. License.
It is unlawful for a person, except as provided in this chapter, to engage in the occupation of salesperson within this Commonwealth unless the person has secured a license as required under the act.
§ 19.12. Application for license.
(a) Application for license as a salesperson shall be made in writing to the Board, signed by the applicant, designating the business name and address of the dealer then employing the applicant or into whose employ the applicant is then about to enter. Applications shall be made upon a form of application prepared by the Board which shall include the recommendation of his employer or prospective employer certifying that the applicant is honest, trustworthy, truthful and of good repute and recommending that a license be granted. In the case of an applicant who is himself a dealer, an officer of a corporation which is a dealer or a member of a partnership which is a dealer, a representative of a bank or sales finance company which has personal knowledge concerning the reputation and fitness of the applicant, shall complete affidavit No. 4 on transfer form or No. 18 on the original application. The form of application shall contain other information, as the Board requires.
(b) A person, resident or nonresident, who, in whole or in part, sells, distributes or exchanges vehicles to dealers within this Commonwealth, is required to be licensed in this Commonwealth as a distributor or dealer.
§ 19.15. (Reserved).
§ 19.16. (Reserved).
DEALERSHIP LICENSE § 19.17. Separate business identity for dealers.
Every licensed dealership shall have a business identity separate from other businesses owned or operated by the dealer.
§ 19.18. Established place of business for dealers.
A licensed dealer shall maintain an established place of business that meets the following criteria:
* * * * * (3) Display area. The dealership shall 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. The display area of a dealership that buys, sells or exchanges vehicles shall 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 shall 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)).
(ii) Grading and surfacing. An outdoor display area shall be properly graded. The outdoor display area of a dealership that buys, sells or exchanges vehicles shall be surfaced with concrete, asphalt, slag, brick, stone, aggregate, gravel, cinder or similar material.
(iii) Separation from adjacent parking areas. An outdoor display area shall 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 shall be lighted adequately.
(4) Repairs and ancillary services. A dealership that buys, sells or exchanges mobile homes or manufactured housing shall 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 shall have a single business line telephone, located within the permanent enclosed building, that is used for the dealership. The telephone number shall be listed under the dealership's licensed name.
(6) Sign. The dealership shall 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 shall be in full compliance with applicable building codes, zoning ordinances and other land-use ordinances.
(8) Fire-safety requirements. A dealership that is located in Pittsburgh, Philadelphia or Scranton shall possess a certificate of compliance with fire-safety requirements issued by the appropriate fire-safety authority of that city. A dealership that is located somewhere other than in Pittsburgh, Philadelphia or Scranton shall possess a Certificate of Occupancy issued by the Department of Labor and Industry under the act of April 27, 1927 (P. L. 465, No. 299) (35 P. S. §§ 1221--1235), known as the Fire and Panic Act.
(9) Posting of business hours. The dealership shall post its regular business hours in a conspicuous place for the visiting public.
POWERS AND DUTIES OF THE BOARD § 19.21. (Reserved).
§ 19.22. Investigation.
The Board will investigate on its own initiative or upon the verified complaint in writing of a person, allegations of the wrongful act of a licensee of the act and will have the power to suspend or revoke licenses issued by the Board if, after notice and hearing, the person charged is found guilty of committing or attempting to commit the following acts, in addition to those acts enumerated in the act:
(1) Has required a purchaser of a new vehicle, as a condition of sale and delivery of the vehicle, to also purchase special features, appliances, accessories or equipment not desired or requested by the purchaser.
(2) Has willfully failed or refused to perform a written agreement with a retail buyer involving the sale of a vehicle.
(3) Has used the words ''lease'' or ''leasing'' in a dealer's trade name.
(4) Has with intent to sell or in any way dispose of vehicles, or with intent to increase the volume of sales of vehicles or to induce the public in any manner to enter into an obligation relating thereto, or to acquire title thereto or an interest therein, made, published, disseminated, or caused, directly or indirectly, the same to be made, published, disseminated, circulated or placed before the public, in a newspaper or other publication in the form of a book, notice, handbill, poster, sign, bill circular, pamphlet or letter, or over a radio or television station or other medium of wireless communication, or in another way, similar or dissimilar to the foregoing, an advertisement, announcement, or statement, of any sort regarding the vehicles so offered to the public or concerning the quantity, quality, value, merit, use, present or former price, cost, reason for price, motive for sale or concerning the method of pricing, or the possession of rewards, prizes or distinctions conferred, regarding the vehicles which advertisement contains an assertion, representation, or statement of fact which is untrue, deceptive or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue, deceptive or misleading.
(5) Has advertised a vehicle for sale, in a manner indicating that the sale is being made by a private party or household not engaged in the vehicle business, unless that advertisement shall affirmatively and unmistakably indicate and state that the seller is a dealer or salesperson and not a private party.
(6) Has advertised misrepresenting the true nature of the business by the use of the words ''manufacturer,'' ''importer'' or ''wholesaler'' or has represented that he is selling at wholesale in any form of sale or advertising unless the dealer is actually selling at wholesale for the purpose of resale, or unless the dealer is in fact advertising true wholesale prices.
(7) Has misrepresented the true nature of the business by the use of the words ''sale at wholesale'', ''sales at wholesale,'' ''wholesale sale,'' ''wholesale prices'' or words of similar import containing the word ''wholesale'' unless vehicles listed or sold under the claims are sales to a purchaser for the purpose of resale.
(8) Has advertised a vehicle for sale and then has refused to show, demonstrate or sell the vehicle offered in accordance with the terms of the offer, subject to prior sale.
(9) Has used the word ''new'' in the trade name, in the advertising, or on the checks or business stationery of a dealer who engages only in the sale, purchase or exchange of used vehicles.
(10) Has used the words ''broker'' or ''brokering'' in the trade name, in the advertising, or on the checks or business stationery of a dealer or auction.
§ 19.23. Vehicle shows, off-premise sales and exhibitions.
A vehicle show, off-premise sale or exhibition may not last for more than 14-consecutive days. To preclude the operation of an unlicensed branch location, a dealer may not participate in any show or combination of shows at a given location for more than 15 days in any period of 30 days, for more than 30 days in any period of 3 months or for more than 60 days in any period of 12 months.
[Pa.B. Doc. No. 02-1248. Filed for public inspection July 19, 2002, 9:00 a.m.]
