Title 142 W. Va. C.S.R.

Attorney General Attorney General

Series 03 Legislative Rule Pertaining To The Establishment And Qualification Of Third-Party Dispute Mechanisms

W. Va. Code R. § 142-3-1 General

1.1. Scope. -- These rules relate to W. Va. Code section '46A-6A-1 et seq. governing the "Lemon Law."

1.2. Authority. -- W. Va. Code ''46A-6-103 and 46A-6A-8.

1.3. Filing Date. -- June 5, 1985.

1.4. Effective Date. -- August 1, 1985.

W. Va. Code R. § 142-3-2 Definitions

2.1. "The Act" means the Consumer Protection-New Motor Vehicle Warranties Act, W. Va. Code '46A-6A-1 et seq.

2.2. "Motor Vehicle" means any passenger automobile sold in this State, including pickup trucks and vans subject to registration as a Class A motor vehicle under the provisions of West Virginia Code '17-10-1 et seq., and any self-propelled motor vehicle chassis of motor homes sold in this State subject to registration as a Class A or Class B motor vehicle under the provisions of W. Va. Code '17A-10-1 et seq.

2.3. "Manufacturer's Express Warranty" and "Warranty" means the written warranty of the manufacturer of a new motor vehicle of its condition and fitness for use, including any terms or conditions precedent to the enforcement of obligations under that warranty.

2.4. "Manufacturer" means a person engaged in the business of manufacturing, assembling or distributing motor vehicles, who will, under normal business conditions during the year, manufacture, assemble or distribute to dealers at least ten (10) new motor vehicles.

2.5. "Warrantor" means any manufacturer who gives or offers to give a written warranty which incorporates an informal dispute settlement mechanism.

2.6. "Consumer" means the purchaser, other than for purposes of resale, of a new motor vehicle purchased in this State used primarily for personal, family or household purposes, a person to whom the new motor vehicle is transferred for the same purposes during the duration of an express warranty applicable to the motor vehicle and any other person entitled by the term of the warranty to enforce the obligation of the warranty.

2.7. "Mechanism" means an informal dispute settlement procedure which is incorporated into the terms of a written warranty.

2.8. "Members" means the person or persons within a mechanism actually deciding disputes.

2.9. "On The Face Of The Warranty" means (1) if the warranty is a single sheet with printing on both sides of the sheet or if the warranty is comprised of more than one (1) sheet, the page on which the warrant text begins; and (2) if the warranty is included as a part of a longer document, such as a use and care manual, the page in such document on which the warranty text begins.

W. Va. Code R. § 142-3-3 Option To Establish Informal Dispute Settlement Procedure

3.1. Establishment of procedure. -- One or more warrantors may establish an informal dispute settlement procedure which meets the requirements of these rules if:

(a) A warrantor establishes such a procedure;

(b) Such procedure and its implementation meet the requirements of these rules; and (c) A warrantor incorporates in a written warranty a requirement that the consumer resort to such procedure before pursuing any legal remedy under the Act respecting such warranty.

3.2. Effect of establishing procedure. -- If the requirements of Section 3.1 of these rules are met, then:

(a) A consumer may not commence a civil action (other than a class action commenced pursuant to Section 3.4 of these rules) unless he initially resorts to such procedure;

(b) A class of consumers may not proceed in a class action under Section 3.4 of these rules except to the extent a court determines necessary to establish the representative capacity of the named plaintiffs, unless the named plaintiffs (upon notifying the defendant that they are named plaintiffs in a class action with respect to warranty obligation) initially resort to such procedure.

3.3. Authority to take remedial action. -- The Consumer Protection Division of the Attorney General's Office on its own initiative or upon written complaint filed by any interested person shall review the bona fide operation of any dispute settlement procedure resort to which is stated in a written warranty to be a prerequisite to pursuing a legal remedy under the Act. If the Consumer Protection Division of the Attorney General's Office finds that such procedure or its implementation fails to comply with the requirements of these rules, the Consumer Protection Division of the Attorney General's Office may take appropriate remedial action under any authority it may have under any provision of law.

3.4. Class actions. -- A consumer who is damaged by the failure of a manufacturer to comply with any obligation under the Act, or under a written warranty, implied warranty or service contract, may join in a class action suit for damages and other legal and equitable relief in a court of competent jurisdiction without resort to any dispute settlement procedure.

3.5. Admissibility of a mechanism decision. -- Any decision rendered by a mechanism pursuant to these rules is admissible into evidence in any cause of action authorized by the Act.

W. Va. Code R. § 142-3-4 Duties Of Warrantor

4.1. Incorporation of insufficient mechanism. -- The warrantor shall not incorporate into the terms of a written warranty a mechanism that fails to comply with the requirements contained in Sections 5.1 and 5.6 of these rules. This paragraph shall not prohibit a warrantor from incorporating into the terms of a written warranty the step-by-step procedure which the consumer should take in order to obtain performance under the warranty.

4.2. Disclosure of information. -- The warrantor shall disclose clearly and conspicuously at least the following information on the face of the written warranty:

(a) A statement of the availability of the informal dispute settlement mechanism;

(b) The name and address of the mechanism or the name and a telephone number of the mechanism which consumers may use without charge;

(c) A statement of any requirement that a consumer resort to the mechanism before exercising right or seeking remedies created by the Act together with a disclosure that if a consumer chooses to seek redress by pursuing rights and remedies not created by the Act, resort to the mechanism would not be required by any provision of the Act; and (d) A statement, if applicable, indicating where further information on the mechanism can be found in materials accompanying the motor vehicle, as provided in Section 4.3 of these rules.

4.3. Information on mechanisms. -- The warrantor shall include in the written warranty or in a separate section of materials accompanying the motor vehicle the following information:

(a) Either (1) a form addressed to the mechanism containing spaces requesting the information which the mechanism may require for prompt resolution of warranty disputes; or (2) a telephone number of the mechanisms which consumers may use without charge;

(b) The name and address of the mechanism;

(c) A brief description of mechanism's procedures;

(d) The time limits adhered to by the mechanism; and (e) The types of information which the mechanism may require for prompt resolution of warranty disputes.

4.4. Warrantor's option to encourage redress directly from warrantor. -- The warrantor shall take steps reasonably calculated to make consumers aware of the existence of the mechanism at the time consumers experience warranty disputes. Nothing contained in Sections 4.2, 4.3 or 4.4 of these rules shall limit the warrantor's option to encourage consumers to seek redress directly from the warrantor as long as the warrantor does not expressly require consumers to seek redress directly from the warrantor. The warrantor shall proceed fairly and expeditiously to attempt to resolve all disputes submitted directly to the warrantor.

4.5. Disputes submitted to warrantor. -- Whenever a dispute is submitted directly to a warrantor, the warrantor shall, within a reasonable time, decide whether, and to what extent, it will satisfy the consumer and inform the consumer of its decision. In its notification to the consumer of its decision, the warrantor shall include the information required in Sections 4.2 and 4.3 of these rules.

4.6. Responses to requests for information by mechanism. -- The warrantor shall:

(a) Respond fully and promptly to reasonable requests by the mechanism for information relating to disputes;

(b) Upon notification of any decision of the mechanism that would require action on the part of the warrantor, immediately inform the mechanism whether and to what extent the warrantor will abide by the decision; and (c) Perform any obligations it has agreed to.

4.7. Good faith of warrantor. -- The warrantor shall act in good faith in determining whether and to what extent it will abide by a mechanism decision.

4.8. Compliance with reasonable requirements. -- The warrantor shall comply with any reasonable requirements imposed by the mechanism to fairly and expeditiously resolve warranty disputes.

W. Va. Code R. § 142-3-5 Minimum Requirement Of The Mechanism

5.1. Mechanism organization.

5.1.1. The mechanism shall be funded and competently staffed at a level sufficient to ensure fair and expeditious resolution of all disputes and shall not charge consumers any fee for use of the mechanism.

5.1.2. The warrantor and the sponsor of the mechanism (if other than the warrantor) shall take all steps necessary to ensure that the mechanism and its members and staff are sufficiently insulated from the warrantor and the sponsor, so that the decisions of the members and the performance of the staff are not influenced by either the warrantor or the sponsor. Necessary steps shall include, at minimum, committing funds in advance, basing personnel decisions solely on merit and not assigning conflicting warrantor or sponsor duties to mechanism staff persons.

5.1.3. The mechanism shall impose any other reasonable requirements necessary to ensure that the members and staff act fairly and expeditiously in each dispute.

5.2. Qualification of members.

5.2.1. No member deciding a dispute shall be (a) a party to the dispute or an employee or agent of a party other than for purposes of deciding disputes; or (b) a person who is or may become a party in any legal action, including, but not limited to, class actions, relating to the product or complaint in dispute or an employee or agent of such person other than for purposes of deciding disputes. For purposes of this paragraph, a person shall not be considered a "Party" solely because he or she acquires or owns an interest in a party solely for investment and the acquisition or ownership of an interest which is offered to the general public shall be prima facie evidence of its acquisition or ownership solely for investment.

5.2.2. When one (1) or two (2) members are deciding a dispute, all shall be persons having no direct involvement in the manufacture, distribution, sale or service of any motor vehicle. When three (3) or more members are deciding a dispute, at least two-thirds (2/3) shall be persons having no direct involvement in the manufacture, distribution, sale or service of any motor vehicle. "Direct Involvement" shall not include acquiring or owing an interest solely for investment and the acquisition or ownership of an interest which is offered to the general public shall be prima facie evidence of its acquisition or ownership solely for investment. Nothing contained in this section shall prevent the members from consulting with any persons knowledgeable in the technical, commercial or other area relating to motor vehicles which is the subject of the dispute.

5.2.3. Members shall be persons interested in the fair and expeditious settlement of consumer disputes.

5.3. Operation of the mechanism.

5.3.1. The mechanism shall establish written operating procedures which shall include at least those items specified in Sections 5.3.2 through 5.3.10 of these rules. Copies of the written procedures shall be made available to any person upon request.

5.3.2. Upon notification of a dispute, the mechanism shall immediately inform both the warrantor and the consumer of receipt of the dispute.

5.3.3. The mechanism shall investigate, gather and organize all information necessary for a fair and expeditious decision in each dispute. When any evidence gathered by or submitted to the mechanism raises issues relating to the number of repair attempts, the length of repair periods, the possibility of unreasonable use of the product or any other issues relevant in light of the Act (or rules thereunder), including issues relating to consequential damages or any other remedy under the Act (or rules thereunder), the mechanism shall investigate these issues. When information which will or may be used in the decision submitted by one (1) party or a consultant under Section 5.2.2 of these rules or any other source tends to contradict facts submitted by the other party, the mechanism shall clearly, accurately and completely disclose to both parties the contradictory information (and its source) and shall provide both parties an opportunity to explain or rebut the information and to submit additional materials. The mechanism shall not require any information not reasonably necessary to decide the dispute.

5.3.4. If the dispute has not been settled, the mechanism shall, as expeditiously as possible but at least within forty (40) days of notification of the dispute, except as provided in Section 5.3.5 of these rules:

(a) Render a fair decision based on the information gathered as described in Section 5.3.3 of these rules, and on any information submitted at an oral presentation which conforms to the requirements of Section 5.3.6 of these rules (a decision shall include any remedies appropriate under the circumstances, including repair, replacement, refund, reimbursement for expenses, compensation for damages and any other remedies available under the written warranty or the Act (or rules thereunder); and a decision shall state a specified reasonable time for performance);

(b) Disclose to the warrantor its decision and the reasons therefor;

(c) If the decision would require action on the part of the warrantor, determine whether and to what extent warrantor will abide by its decision; and (d) Disclose to the consumer its decision, the reasons therefor, warrantor's intended actions (if the decision would require action on the part of the warrantor) and the information described in Section 5.3.7 of these rules. For purposes of this subparagraph (d), a dispute shall be deemed settled when the mechanism has ascertained from the consumer that (1) the dispute has been settled to the consumer's satisfaction; and (2) the settlement contains a specified reasonable time for performance.

The mechanism may delay the performance of its duties under Section 5.3.4 of these rules, beyond the forty (40) day time limit:

(a) Where the period of delay is due solely to failure of a consumer to provide promptly his or her name and address, make, model and vehicle identification number of the motor vehicle involved and a statement as to the nature of the defect or other complaint; or (b) For a seven (7) day period in those cases where the consumer has made no attempt to seek redress directly from the warrantor.

5.3.6. The mechanism may allow an oral presentation by a party to a dispute (or a party's representative) only if:

(a) Both warrantor and consumer expressly agree to the presentation;

(b) Prior to agreement, the mechanism fully discloses to the consumer the following information: (1) That the presentation by either party will take place only if both parties so agree, but that if they agree, and one (1) party fails to appear at the agreed upon time and place, the presentation by the other party may still be allowed; (2) that the members will decide the dispute whether or not an oral presentation is made; (3) the proposed date, time and place for the presentation; and (4) a brief description of what will occur at the presentation, including, if applicable, parties' rights to bring witnessess and/or counsel; and (c) Each party has the right to be present during the other party's oral presentation. Nothing contained in Section 5.3.6 of these rules, shall preclude the mechanism from allowing an oral presentation by one (1) party, if the other party fails to appear at the agreed upon time and place, as long as all of the requirements of this paragraph have been satisfied.

5.3.7. The mechanism shall inform the consumer at the time of disclosure required in Section 5.3.4 of these rules that:

(a) If he or she is dissatisfied with its decision or warrantor's intended actions, eventual performance, or legal remedies, including use of small claims court, may be pursued;

(b) The mechanism's decision is admissible in evidence as provided in Section 3.5 of these rules; and (c) The consumer may obtain, at reasonable cost, copies of all mechanism records relating to the consumer's dispute.

5.3.8. If the warrantor has agreed to perform any obligations either as part of a settlement agreed to after notification to the mechanism of the dispute or as a result of a decision under Section 5.3.4 of these rules, the mechanism shall ascertain from the consumer within ten (10) working days of the date for performance whether performance has occurred.

5.3.9. A requirement that a consumer resort to the mechanism prior to commencement of an action under the Act shall be satisfied forty (40) days after notification to the mechanism of the dispute or when the mechanism completes all of its duties under Section 5.3.4 of these rules, whichever occurs sooner. Except that, if the mechanism delays performance of its Section 5.3.4 of these rules, duties as allowed by Section 5.3.5 of these rules, the requirement that the consumer initially resort to the mechanism shall not be satisfied until the period of delay allowed by Section 5.3.5 of these rules has ended.

5.3.10. Decisions of the mechanism shall not be legally binding on any person. However, the warrantor shall act in good faith, as provided in Section 4.7 of these rules. In any civil action arising out of a warranty obligation and relating to a matter considered by the mechanism, any decision of the mechanism shall be admissible in evidence, as provided in Section 3.5 of these rules.

5.4. Record keeping.

5.4.1. The mechanism shall maintain records on each dispute referred to it which shall include:

(a) Name, address and telephone number of the consumer;

(b) Name, address, telephone number and contact person of the warrantor;

(c) Make, model and vehicle identification numbers of the motor vehicles;

(d) The date of receipt of the dispute and the date of disclosure to the consumer of the decision;

(e) All letters or other written documents submitted by either party;

(f) All other evidence collected by the mechanism relating to the dispute, including summaries of relevant and material portions of telephone calls and meetings between the mechanism and any other person, (including consultants described in Section 5.2.2 of these rules);

(g) A summary of any relevant and material information presented by either party at an oral presentation;

(h) The decision of the members including information as to date, time and place of meeting and the identity of members voting; or information on any other resolution;

(i) A copy of the disclosure to the parties of the decision;

(j) A statement of the warrantor's intended action(s);

(k) Copies of follow-up letters (or summaries of relevant and material portions of follow-up telephone calls) to the consumer and responses thereto; and (l) Any other documents and communications (or summaries of relevant and material portions of oral communications) relating to the dispute.

5.4.2. The mechanism shall maintain an index of each warrantor's dispute grouped under make and subgrouped under model.

5.4.3. The mechanism shall maintain an index for each warrantor as will show:

(a) All disputes in which the warrantor has promised some performance (either by settlement or in response to a mechanism decision) and has failed to comply; and (b) All disputes in which the warrantor has refused to abide by a mechanism decision.

5.4.4. The mechanism shall maintain an index that will show all disputes delayed beyond forty (40) days.

5.4.5. The mechanism shall compile semiannually and maintain statistics which show the number and percent of disputes in each of the following categories:

(a) Resolved by staff of the mechanism and warrantor has complied;

(b) Resolved by staff of the mechanism, time for compliance has occurred and warrantor has not complied;

(c) Resolved by staff of the mechanism and time for compliance has not yet occurred;

(d) Decided by members and warrantor has complied;

(e) Decided by members, time for compliance has occurred and warrantor has not complied;

(f) Decided by members and time for compliance has not yet occurred;

(g) Decided by members adverse to the consumer;

(h) No jurisdiction;

(i) Decision delayed beyond forty (40) days under Subsection (a), Section 5.3.5 of these rules;

(j) Decision delayed beyond forty (40) days under Subsection (b), Section 5.3.5 of these rules;

(k) Decision delayed beyond forty (40) days for any other reason; and (l) Pending decision.

5.4.6. The mechanism shall retain all records specified in Sections 5.4.1 through 5.4.6 of these rules for at least four (4) years after final disposition of the dispute.

5.5. Audits.

5.5.1. The mechanism shall have an audit conducted at least annually, to determine whether the mechanism and its implementation are in compliance with this part. All records of the mechanism required to be kept under Section 5.4 of these rules shall be available for audit.

5.5.2. Each audit provided for in Section 5.5.1 of these rules shall include at a minimum the following:

(a) Evaluation of warrantors' efforts to make consumers aware of the mechanism's existence as required in Section 4 of these rules;

(b) Review of the indices maintained pursuant to Sections 5.4.2, 5.4.3 and 5.4.4 of these rules; and (c) Analysis of a random sample of disputes handled by the mechanism to determine the following: (1) Adequacy of the mechanism's complaint and other forms, investigation, mediation and follow-up efforts and other aspects of complaint handling; and (2) accuracy of the mechanism's statistical compilations under Section 5.4.5 of these rules. (For purposes of this subsection "Analysis" shall include oral or written contact with the consumers involved in each of the disputes in the random sample.)

5.5.3. A report of each audit under this section shall be submitted to the Consumer Protection Division of the Attorney General's Office and shall be made available to any person at reasonable cost. The mechanism may direct its auditor to delete names of parties to disputes and identity of motor vehicles involved from the audit report.

5.5.4. Auditors shall be selected by the mechanism. No auditor may be involved with the mechanism as a warrantor, sponsor or member, or employee or agent thereof, other than for purposes of the audit.

5.6. Openness of records and proceedings.

5.6.1. The statistical summaries specified in Section 5.4.5 of these rules shall be available to any person for inspection and copying.

5.6.2. Except as provided under Sections 5.6.1, 5.6.5 and Section 5.5.3 of these rules, all records of the mechanism may be kept confidential or made available only on such terms and conditions, or in such form, as the mechanism shall permit.

5.6.3. The policy of the mechanism with respect to records made available at the mechanism's option shall be set out in the procedures under Section 5.3.1 of these rules; the policy shall be applied uniformly to all requests for access to or copies of such records.

5.6.4. Meetings of the members to hear and decide disputes shall be open to observers on reasonable and nondiscriminatory terms. The identity of the parties and motor vehicles involved in disputes need not be disclosed at meetings.

5.6.5. Upon request, the mechanism shall provide to either party to a dispute: (a) Access to all records relating to the dispute; and (b) copies of any records relating to the dispute at reasonable cost.

5.6.6. The mechanism shall make available to any person upon request information relating to the qualifications of mechanism staff and members.

142CSR3

Series 04 Fair Treatment Of Crime Victims And Witnesses

W. Va. Code R. § 142-4-1 General

1.1. Scope. -- These legislative rules apply to all law-enforcement agencies and prosecuting attorneys' offices within the State of West Virginia and establish procedures for the fair treatment of crime victims and witnesses in the criminal justice system.

1.2. Authority. -- W. Va. Code '61-11A-6.

1.3. Filing Date. -- June 29, 1984.

1.4. Effective Date. -- July 1, 1984.

W. Va. Code R. § 142-4-2 Application And Enforcement

These legislative rules apply to all law-enforcement agencies and prosecuting attorneys' offices in the State of West Virginia. Enforcement of these rules shall be vested in the Office of the Attorney General.

W. Va. Code R. § 142-4-3 Definitions

3.1. Law-enforcement agency. -- The term "Law-Enforcement Agency" shall include the police forces of all incorporated municipalities, sheriffs, departments and the Department of Public Safety. The term "Law-Enforcement Agency" shall not include conservation officers, correctional officers or security guards at state institutions.

3.2. Arresting law-enforcement agency. -- The term "Arresting Law-Enforcement Agency" shall mean that law-enforcement agency which has made either an actual arrest or, in those cases where a crime has occurred but no arrest has yet been made, assumed primary responsibility for the investigation of the crime.

3.3. Victim. -- The term "Victim" shall mean a person who is a victim of a felony, the fiduciary of a deceased victim's estate, a member of a deceased victim's immediate family or, in the case of a minor child who is the victim of a felony, a member of the child's immediate family or legal guardian.

3.4. Serious crime. -- The term "Serious Crime" shall mean a crime committed by an adult which is a felony under the laws of the State of West Virginia.

W. Va. Code R. § 142-4-4 Services To Victims Of Crime

4.1. Duties of arresting law-enforcement agency. -- The arresting law-enforcement agency shall ensure the victims routinely receive emergency social and medical services as soon as possible. The arresting law-enforcement agency shall provide to victims information on the following:

(a) The availability of crime victim compensation through the West Virginia Crime Reparation Act of 1981;

(b) Community-based victim treatment programs;

(c) The role of the victim in the criminal justice process; and (d) Stages in the criminal justice process of significance to the crime victim and the manner in which information about such stages can be obtained.

4.2. Development of uniform victim information. -- It shall be the responsibility of the prosecuting attorney of each county to coordinate the development that uniform information material relating the services available to victims of crime in the county be distributed to victims. The various law-enforcement agencies of each county shall assist the prosecuting attorney in developing informational material describing the responsibilities and rights contained in Section 4.1 above.

4.3. Notification of availability of protection. -- The prosecuting attorney or his assistant should ensure that victims and witnesses receive information on steps that law-enforcement officers and prosecuting attorneys can take to protect victims and witnesses from intimidation.

4.4. Scheduling changes. -- All victims and witnesses who have been scheduled to attend criminal justice proceedings should be notified by the prosecuting attorneys' offices as soon as possible of any scheduling changes which will affect their appearances.

4.5. Prompt notification to victims of major serious crimes. -- Victims, witnesses and one (1) member of the immediate family of those victims and witnesses should, if such persons provide the appropriate official with a current address and telephone number, receive prompt advance notification, if possible, of judicial proceedings relating to their case, from the prosecuting attorney's office, including:

(a) The arrest of an accused;

(b) The initial appearance of an accused before a judicial officer;

(c) The release of the accused pending judicial proceedings; and (d) Proceedings in the prosecution of the accused, including the entry of a plea of guilty, trial, sentencing, and, where a term of imprisonment is imposed, the release of the accused from such imprisonment.

4.6. Duty to obtain information. -- All law-enforcement officers and prosecuting attorneys, in the course of developing cases, shall accurately obtain all information available, at the time of their investigation of offenses, regarding victims, their losses or injuries, any reimbursements for losses or recovery of property and/or any treatment for injuries or funeral/cremation costs involved, which should be made available to the investigating probation officer, if a presentence report and/or Victim Impact statement is ordered by the court.

4.7. Consultation with victim. -- The victim of a serious crime, or in the case of a minor child or a homicide, the family of the victim, shall be consulted by the prosecuting attorney in order to obtain the views of the victim or family about the disposition of any criminal case brought as a result of such crime, including the views of the victim or family about:

(a) Dismissal;

(b) Release of the accused pending judicial proceedings;

(c) Plea negotiations; and (d) Pretrial diversion program.

4.8. Separate waiting area. -- Victims and other prosecution witnesses should, if practical, be provided prior to court appearance, a waiting area that is separate from all other witnesses.

4.9. Property return. -- Law-enforcement agencies should promptly return victim's property held for evidentiary purposes unless there is a compelling law-enforcement reason for retaining it.

4.10. Notification to employer. -- A victim or witness who so requests should be assisted by law-enforcement agencies and prosecuting attorneys in informing employers that the need for victim and witness cooperation in the prosecution of the case may necessitate absence of that victim or witness from work. A victim or witness who, as a direct result of a crime or of cooperation with law-enforcement agencies or attorneys for the government, is subjected to serious financial strain, should be assisted by the appropriate state agencies in dealing with creditors.

4.11. Notification of the right of victim to testify at sentencing hearing. -- The prosecuting attorney or assistant prosecutor shall in all felony cases notify the victim of their right under West Virginia Code section two, article eleven-a, chapter sixty-one to submit a statement to the sentencing court. Such notification shall:

(a) Be in writing;

(b) Be within a reasonable time prior to the sentencing hearing;

(c) State the date, time and place of the sentencing hearing; and (d) Notify the victim of their right to submit a written or oral statement to the sentencing court as provided in West Virginia Code section two, article eleven-a, chapter sixty-one.

4.12. Duty of prosecuting attorney to consider preparation of a victim impact statement. -- In all cases where the court does not order a presentence investigation and report, the prosecuting attorney may nevertheless request that a victim impact statement be prepared. In making such a determination for a request, the prosecuting attorney should consider the fact that such a report may significantly assist victims in the determination of any compensation they may be eligible for under the West Virginia Crime Reparation Act of 1981.

W. Va. Code R. § 142-4-5 Compliance Within Limits Of Available Resources And Constitutional Requirements

These regulations shall be complied with by all law-enforcement agencies and prosecuting attorneys to the extent that it is possible with the limits of available resources to assist victims and witnesses of crime without infringing on the constitutional rights of the defendant.

W. Va. Code R. § 142-4-6 No Cause Of Action Created

Nothing in West Virginia Code section one, article eleven-a, chapter sixty-one et seq. or these regulations shall be construed as creating a cause of action against the State of West Virginia or any of its political subdivisions.

142CSR4

Series 05 Prevention Of Unfair Or Deceptive Acts Or Practices In Home Improvement Transactions

W. Va. Code R. § 142-5-1 General

1.1. Rule Designation. -- This rule is legislative.

1.2. Scope. -- This legislative rule covers certain unfair or deceptive acts or practices covering home improvement transactions in West Virginia, its counties, and all political subdivisions but shall not cover new construction of single-family dwellings or rebuilding all or substantially all of an existing or preexisting single-family dwelling.

1.3. Authority. -- W. Va. Code ''46A-6-103 and 46A-7-102(e)

1.4. Filing Date. -- June 15, 1987.

1.5. Effective Date. -- June 15, 1987.

1.6. Repeal of Former Rule. -- Not applicable

1.7. Penalties. -- Except as otherwise indicated, a violation of this rule constitutes a violation of the West Virginia Consumer Credit and Protection Act, W. Va. Code '46A-1 et seq.

1.8. Construction. -- This rule shall be liberally construed to effectuate the purposes of the West Virginia Consumer Credit and Protection Act, W. Va. Code '46A-1 et seq.

1.9. Severability. -- If, for any reason, any section, subsection, sentence, clause, phrase, or provision of this rule or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect other sections, subsections, sentences, clauses, phrases, or provisions or its application to any other person or circumstance, and to this end each and every section, subsection, sentence, clause, phrase, or provision of this rule is hereby declared severable.

W. Va. Code R. § 142-5-2 Definitions

2.1. "Advertisement" (including the terms advertise and advertisement) means any oral, written or graphic statement made by the seller in any manner in connection with the solicitation of business, and including, but not limited to, statements or representations made in a newspaper, magazine or other publication, or on radio or television, or contained in any notice, handbill, billboard, poster, display, bill, circular, brochure, pamphlet, sign, catalog, or letter, or printed on or contained in any tag or label attached to or accompanying any goods or services offered for sale. Advertisement includes any statement or representation disseminated within West Virginia, even if such statement or representation was first disseminated outside West Virginia.

2.2. "Clear and Conspicuous" means that the statement, representation or term being disclosed is of such size, and/or color contrast and is so presented as to be readily noticeable and understandable to the person to whom it is being disclosed. A statement, representation or term contained in a written contract is not clear and conspicuous unless: (a) it appears in printed or typed face larger than the largest type used in the written contract, apart from the typeface used for other terms required to be clearly and conspicuously set forth by these rules, and (b) it appears in close proximity to the information which it modifies or to which the seller intended it to refer.

2.3. "Consumer Goods or Services" means goods or services purchased, leased or rented primarily for personal, family or household purposes.

2.4. "Home Construction" means, for the purpose of this Rule, the repair, remodeling or the building of additions to existing single-family dwelling units, including single-family homes, condominium units or any other dwelling unit to be used by any persons primarily for personal or family use, but shall not include new single-family home construction or the rebuilding of all or substantially all of an existing or preexisting single-family dwelling.

2.5. "Home Construction Contractor" means all persons, firms and corporations, their officers, representatives, agents, and employees engaged in the trade or commerce of home construction.

2.6. "Home Improvement" means installing roofing, siding, paving, replacement windows, doors, awnings, heating and air-conditioning equipment, water softeners and purifiers, swimming pools, fire protection devices, or fixtures of any kind, performing substantial landscaping work involving earth-moving, large scale replanting or reseeding or engaging in the substantial remodeling or repair of any portion of an existing home or noncommercial structure or building.

2.7. "Home Improvement Contractor" means all persons, firms and corporations, their officers, representatives, agents and employees engaged in the trade or commerce of home improvements.

W. Va. Code R. § 142-5-3 Home Improvement Transactions

3.1. In connection with any home improvement transaction, and without limitation by enumeration, it is an unfair or deceptive act or practice for any seller to:

3.1.1. Fail to provide the buyer a written contract, describing in an meaningful way, and in "plain language" as required by W. Va. Code '46A-6-109, the goods or services purchased, the contract price together with all required financing information or credit terms and any other material terms as required by these rules or agreed to by the parties: Provided, however, That where the contract price is to be calculated on a "cost plus" basis, this fact shall be clearly and conspicuously set forth along with the method of calculating additions to cost and a good faith estimate of the eventual contract price;

3.1.2. Fail to provide an approximate completion date for all construction or improvements in the written contract unless the contract clearly and conspicuously discloses that no completion date is provided;

3.1.3. Fail to fill in all the relevant blank spaces in the written contract before it is signed by the buyer;

3.1.4. Fail to include the home improvement contractor's name, address, and telephone number on the contract;

3.1.5. Fail to include in the contract proper notification of the buyer's right to rescind if required pursuant to fifteen (15) U.S.C. '1635 and twelve (12) C.F.R. '226.15;

3.1.6. Fail to include in the contract all affirmations of fact, promises or description which constitute express warranties under the terms of W. Va. Code '46-2-313, or would so constitute express warranties if the sale of goods only were involved;

3.1.7. Disclaim, exclude, modify or otherwise attempt to limit any warranty, including the warranties of merchantability and fitness for a particular purpose, or to exclude, modify or attempt to limit any remedy provided by law, including the measure of damages available, for a breach of warranty, express or implied;

3.1.8. Fail to substantially perform the home improvement contract, absent material breach by the buyer, or to deviate from or disregard plans or specifications in any material respect without the written consent of the buyer;

3.1.9. Make any misrepresentation in the promotion, advertisement or sale of a home improvement contract or make any false promise of a character likely to influence, persuade or induce;

3.1.10. Represent to a prospective buyer that his dwelling or building is to serve as a lure for prospective buyers, "model home," "advertising job" or other similar inducement, and that a reduced price is offered for that reason, if such is not the case;

3.1.11. Violate the prohibition on referral sales in W. Va. Code '46A-2-110;

3.1.12. Fail to complete the home improvement by the completion date as stated in the home improvement contract unless such home improvement is delayed by events beyond the home improvement contractor's control or the buyer has agreed in writing to a later date;

3.1.13. Attempt to induce a buyer to sign any certificate or completion form before such home improvement or home construction is actually completed;

3.1.14. Fail to disclose that any goods being offered need additional attachments or fixtures in order to perform the functions claimed for them by the seller;

3.1.15. Unfairly or deceptively induce or persuade a buyer or prospective buyer to sign any writing when the seller knows or has reason to know that the buyer or prospective buyer is unable to read or write, or does not understand the terms of the instrument;

3.1.16. Represent that the buyer or prospective buyer has been specially selected to receive a bargain, discount or other advantage which will reduce the cost of the improvements or goods, when such is not the case;

3.1.17. Fail to disclose to a buyer or prospective buyer orally prior to the time of sale, and clearly and conspicuously in the written contract required in '3.1.1. of this Rule, that any promissory note or other instrument of indebtedness which must be executed by the buyer or prospective buyer, may be discounted, negotiated, or assigned to a finance company or other third party, and to clearly and conspicuously label any such instrument of indebtedness as a "Consumer Note";

3.1.18. Represent that the goods being offered are current models, when in fact, they are not current models, or are discontinued models;

3.1.19. Misrepresent the quality, capacity, character, nature, manufacturer, or composition of any goods;

3.1.20. Misrepresent or falsely state that the buyer's present equipment, materials, goods or fixtures are dangerous, defective or in need of repair or replacement;

3.1.21. Fail to clearly and conspicuously disclose that an advertised price or offer does not include delivery or installation;

3.1.22. Mislead the prospective buyer into believing that the down payment or some other figure constitutes the full amount the buyer will be obligated to pay, or to omit or exclude any other obligations, fees, charges or costs to the buyer;

3.1.23. Gain entry or access to the prospective buyer's home or property under the false guise of performing a governmental, public utility or other official inspection, or to represent that the seller is acting on behalf of or as an employee of any such entity, when such is not the case;

3.1.24. Represent that the seller is an employee, officer or representative of a manufacturer, importer or any other person, firm or organization, or that such person, firm or organization will assume some obligation in fulfilling the terms of the contract, when such is not the case;

3.1.25. Represent to a prospective buyer that the buyer is being given an introductory, confidential, close out, going out of business, factory or wholesale price discount, that a price discount is being made due to "materials leftover from a nearby job," a test of the local market or a market survey or to otherwise falsely claim that the prices offered are discounted, when such is not the case;

3.1.26. Utilize preprinted or form contract documents in a transaction solicited by the seller which are structured in such a way as to characterize or constitute the buyer as the offeror, thereby requiring the buyer to sign or signify assent to a proposal before it is binding on the seller;

3.1.27. Include in any contract or written document evidencing such a transaction a clause stating or suggesting that the seller's oral representations, promises, assurances, or the like, are not binding;

3.1.28. Include in any home improvement contract or written document evidencing such a transaction a clause requiring liquidated damages or the forfeiture of any deposit or any other amount already paid upon cancellation of the home improvement contract.

3.1.29. Fail to file a certificate in the office of the Clerk of the County Commission in the county in which the principal place of business of the seller is located, setting forth the assumed name in or by which the business is being conducted in conformity with the provisions of Chapter 47, Article 8, Section 2 of the code of West Virginia, 1931, as amended.

3.2. In connection with any home solicitation sale of home improvement(s) and without in any way limiting the application of section 3.1. to such transactions, it is an unfair or deceptive act or practice to fail to provide the buyer a three-day right to cancel in all contracts where such notice is required by W. Va. Code '46A-2-132 through 135, and 16 C.F.R. '429, and as provided herein:

3.2.1. A buyer shall have the right to cancel a home solicitation sale until midnight of the third business day after the day on which he has signed an agreement. Cancellation shall become effective when the buyer gives written notice of his intention to cancel to the seller at the address stated in the agreement. Notice of such cancellation, if given by mail, is given when it is deposited in a mailbox properly addressed and postage prepaid. Such notice of cancellation given by the buyer need not take any particular form and shall be sufficient if it indicates by any form of written expression the intention of the buyer not to be bound by the home solicitation sale. Notwithstanding any above mentioned provision, a buyer may not cancel a home solicitation sale where he has required and the seller has provided goods or services without delay because of a bona fide emergency and either the seller has in good faith made a substantial beginning of performance of the agreement before the buyer has give notice of cancellation, or in the case of goods, such goods cannot be returned to the seller in substantially as good condition as when they were received by the buyer.

3.2.2. No written agreement shall be effective until after it has been signed by the buyer and he has written the date of such signature in his own handwriting. The statement must appear under the conspicuous caption: "BUYER'S RIGHT TO CANCEL" and read as follows: "If this agreement was solicited at a place other than the seller's business establishment at a fixed location and you decide you do not want these goods or services, you may cancel this agreement by mailing a notice to the seller. The notice must be mailed to: (Name and mailing address of seller). Until the seller has fully complied with this section, the buyer may cancel the home solicitation sale. Any written agreement which contains the form and content of notice of cancellation required by the federal trade commission and which provides information substantially similar to that required by this Rule shall be deemed to comply fully with this Rule.

3.2.3. Within ten (10) days after a home solicitation sale has been cancelled, the seller shall tender to the buyer any payment made by the buyer to him and any note or other evidence of indebtedness taken in the transaction. A provision permitting the seller to keep all or part of any payment, note or other evidence of indebtedness is in violation of this section and unenforceable. If any down payment included goods traded in, the seller shall return the goods in substantially as good a condition as when he received them. If a seller has failed to tender goods as required by this section, the buyer may elect to recover an amount equal to the trade-in allowance on such goods as stated in the agreement. Until a seller has complied with all the obligations imposed by this section, a buyer may keep any goods delivered to him by the seller and he is hereby given a lien on such goods or the purpose of making any recovery to which he is entitled by this section.

3.2.4. Within a reasonable time after a home solicitation sale has been cancelled, the seller may demand and receive any goods delivered by him to the buyer as a result of the home solicitation sale. The buyer shall not be obligated to tender such goods to the seller at any place other than the buyer's residence. If the seller fails to demand possession of goods within such reasonable time, such goods shall become the buyer's property without any obligation to pay for them. For the purposes of this section, twenty days shall be presumed to be a reasonable time. The buyer shall take reasonable care of such goods in his possession before cancellation or revocation and for a reasonable time thereafter, during which time the goods are otherwise at the seller's risk. Where the seller has performed any service pursuant to a home solicitation sale prior to its cancellation or prior to giving the statement required in section 3.2.2. of this Rule, he shall not be entitled to any compensation for such performance.

3.3. Provided, however, That, if no written agreement is in fact executed by the parties, the requirements of section '3.1.1. through 3.1.6. of this Rule, and any other provision that implicitly requires a written contract, shall be inapplicable to home improvement transactions with a contract price under two hundred-fifty dollars ($250.00) or which are necessitated by a bona fide emergency.

W. Va. Code R. § 142-5-4 Remedies

4.1. In the event of a violation of this Rule by a merchant or other person subject to its provisions, the Attorney General may bring a civil action to restrain any such violation, including an application for temporary relief pending final determination of the proceedings, and for other appropriate relief, including restitution for affected consumers and the costs and expenses incurred in the investigation and prosecution of such action to the extent permitted by statute.

4.2. In addition to an application for injunctive remedies and other appropriate relief, as aforesaid, the Attorney General may also bring a civil action to recover a civil penalty for the willful violation of this Rule and if the court finds that a person has engaged in a course of willful and repeated violations of this Rule or any other applicable provision of W. Va. Code '46A-1-1, it may assess a civil penalty of no more than five thousand ($5,000) dollars for each such violation to the extent permitted by statute.

142CSR5

Series 06 Leg Rule Pertaining To The Prevention Of Unfair Or Deceptive Acts Or Practices In Sale Of Damaged Goods Or Damaged Products

W. Va. Code R. § 142-6-1 General

1.1. Rule Designation. -- This rule is legislative.

1.2. Scope. -- This proposed legislative rule covers certain unfair or deceptive acts or practices regarding the sale of damaged goods or damaged products in West Virginia, its counties and all political subdivisions.

1.3. Authority. -- W. Va. Code ''46A-6-103 and 46A-7-102(e)

1.4. Filing Date. -- June 15, 1987.

1.5. Effective Date. -- June 15, 1987.

1.6. Repeal of Former Rule. -- Not applicable

1.7. Penalties. -- Except as otherwise indicated, a violation of this rule constitutes a violation of the West Virginia Consumer Credit and Protection Act, W. Va. Code '46A-1 et seq.

1.8. Construction. -- This rule shall be liberally construed to effectuate the purposes of the West Virginia Consumer Credit and Protection Act, W. Va. Code '46A-1 et seq.

1.9. Severability. -- If, for any reason, any section, subsection, sentence, clause, phrase, or provision of this rule or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect other sections, subsections, sentences, clauses, phrases, or provisions or its application to any other person or circumstances, and to this end each and every section, subsection, sentence, clause, phrase, or provision of this rule is hereby declared severable.

W. Va. Code R. § 142-6-2 Definitions

2.1. "Clear and Conspicuous" means that the statement, representation or term being disclosed is readily noticeable and understandable to the person to whom it is being disclosed. A statement, representation or term contained in a printed advertisement is not clear and conspicuous unless:

(a) it appears in clearly legible type used in the advertisement, except for the typeface size of the seller's name, and (b) it appears in close proximity to the information which it modifies or to which the seller intended it to refer.

2.2. "Damaged Goods or Damaged Products" means goods or products, whether otherwise represented as new or used, whose market value or usefulness has been diminished by virtue of damage, occasioned by fire, smoke, water or other natural event, to all or a part or portion of the goods or products.

W. Va. Code R. § 142-6-3 Sale Of Damaged Goods Or Damaged Products

In connection with the sale of damaged goods or damaged products, and without limitation by enumeration, it is unfair or deceptive practice to:

3.1. Represent, directly or indirectly, that such a good or product is new or undamaged, or misrepresent the nature and extent of damage to the whole or any part of the good or product.

3.2. Advertise or otherwise emphasize the undamaged aspects or portions of any such good or product so as to deceive or attempt to deceive the public with respect to the damaged aspects or portions, or so as to create a likelihood of confusion or misunderstanding.

3.3. Offer for sale or sell any good or product which is damaged, contains damaged parts, is rebuilt, remanufactured, reconditioned, or contains rebuilt, remanufactured, or reconditioned parts due to damage, or has the appearance of being new when it is damaged, unless there is given to the buyer or prospective buyer clear and conspicuous prior notice that such a good or product has been damaged, rebuilt, remanufactured or reconditioned due to damage, or that it contains used, rebuilt, remanufactured or reconditioned parts due to damage.

3.4. Represent, directly or indirectly, that goods or products are damaged and that a price concession has been made for that reason when the goods have not in fact been damaged or the price has not been reduced accordingly.

W. Va. Code R. § 142-6-4 Remedies

4.1. In the event of a violation of this Rule by a merchant or other person subject to its provisions, the Attorney General may bring a civil action to restrain any such violation, including an application for temporary relief pending final determination of the proceedings, and for other appropriate relief, including restitution for affected consumers and the costs and expenses incurred in the investigation and prosecution of such action.

4.2. In addition to an application for injunctive remedies and other appropriate relief, as aforesaid, the Attorney General may also bring a civil action to recover a civil penalty for the willful violation of this Rule, and if the court finds that a person has engaged in a course of willful and repeated violations of this Rule or any other applicable provisions of West Virginia Code Chapter 46A, it may assess a civil penalty of no more than five thousand dollars for each such violation.

142CSR6

Series 07 Procedural Rule Pertaining To The Qualification And Approval Of Motor Vehicle Manufacturers' Informal Dispute Settlement Mechanisms

W. Va. Code R. § 142-7-1 General

1.1. Scope and Purpose. -- This procedural rule specified the process and requirements for the issuance of a declaratory ruling on the qualification of motor vehicle manufacturer's informal dispute settlement mechanisms and is intended to supplement and be read together with the Legislative Rule pertaining to the establishment and qualification of third-party dispute mechanisms for the resolution of new motor vehicle warranty disputes between the consumer and the manufacturer, its agents, or its authorized dealer, Title 142, Rules of the Attorney General, Chapter 46A-6A, Series 3 (hereinafter the Legislative Rule, Series 3.)

1.2. Authority. -- W. Va. Code ''46A-6-103 and 46A-6A-8

1.3. Filing Date. -- May 1, 1987.

1.4. Effective Date. -- June 1, 1987.

1.5. Construction. -- This rule shall be liberally construed to effectuate the purposes of the West Virginia New Motor Vehicle Warranties Act, W. Va. Code '46A-6A-1 et seq.

1.6. Severability. -- If, for any reason, any section, subsection, sentence, clause, phrase, or provision of this Rule or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect other sections, subsections, sentences, clauses, phrases, or provisions or its application to any other person or circumstance, and to this end each and every section, subsection, sentence, clause, phrase, or provision of this rule is hereby declared severable.

W. Va. Code R. § 142-7-2 Definitions

2.1. "The Act" means the Consumer Protection - New Motor Vehicle Warranties Act, W. Va. Code '46A-6A-1 et seq.

2.2. "Manufacturer" means a person engaged in the business of manufacturing, assembling, or distributing motor vehicles, who will, under normal business conditions during the year, manufacture, assemble or distribute to dealers at least ten (10) new motor vehicles.

2.3. "Warrantor" means any manufacturer who gives or offers to give a written warranty which incorporates an informal dispute settlement mechanism.

2.4. "Consumer" means the purchaser, other than for purpose of resale, of a new motor vehicle purchased in this State used primarily for personal, family or household purposes, a person to whom the new motor vehicle is transferred for the same purposes during the duration of an express warranty applicable to the motor vehicle and any other person entitled by the term of the warranty to enforce the obligation of the warranty.

2.5. "Mechanism" means the organization, persons, or entity which conducts the decision-making processes under an informal dispute settlement procedure which is incorporated into the terms of a written warranty.

2.6. "Members" mean the person or persons within a Mechanism actually deciding disputes.

2.7. "Qualified Mechanism" means a third-party dispute settlement Mechanism which has been reviewed by the Director of the Consumer Protection Division, Office of the Attorney General, and certified and approved as meeting the requirements specified in the Act, W. Va. Code '46A-6A-8, and the requirements of the Legislative Rule, Series 3.

2.8. "Provisionally Qualified Mechanism" means a third-party dispute settlement Mechanism which is not able to submit a complete application under the requirements of this Rule and is granted a one (1) year approval under the terms of Section 5 of this Rule.

W. Va. Code R. § 142-7-3 Application For Qualification

3.1. Application by a Mechanism for certification as a Qualified Mechanism shall be made to the Director of the Consumer Protection Division, Office of the Attorney General, and shall include the following information unless specific exceptions are provided in this Rule:

3.1.1. Name, address, and telephone number of the Mechanism. In the event that the applicant does not maintain one (1) or more West Virginia addresses and telephone numbers at the time of application, the application shall set forth the specific plans for making the Mechanism accessible to West Virginia consumers.

3.1.2. The Manufacturers, vehicle makes and vehicle models for which the Mechanism is authorized to hear disputes.

3.1.3. Copies of all warranty documents and disclosure information used to alert consumers to the Mechanism and the warranty proffered by the Manufacturer for each vehicle make and model, together with any other informational material, advertising copy or other notices used to inform consumers concerning warranties, the availability and operation of the Mechanism and any other Manufacturer dispute resolution procedures.

3.1.4. Copies of all written operating standards and procedures promulgated by the Mechanism, as required by Legislative Rule, Series 3, Section 5.3.1, or which are distributed to consumers.

3.1.5. The names, addresses and qualifications of all Members of the Mechanism, together with a list of all other persons employed by the Mechanism and a description of the duties of each such person and Member.

3.1.6. Copies of the operating budget of the Mechanism during the two (2) preceding fiscal years and the anticipated budget if approval is granted. Provided, That, to the extent the mechanism does not have actual or anticipated budgets broken down so as to reflect expenditures occasioned by arbitration involving West Virginia consumers, the budgets must be supplemented by appropriate explanatory statements describing the extent of budgetary commitment to such local arbitration.

3.1.7. A description of all training programs conducted for Mechanism Members, and the plans for any such programs should approval be granted.

3.1.8. Copies of the Indexes required by the Legislative Rule, Series 3, Sections 5.4.2, 5.4.3, and 5.4.4 for the record year preceding the application.

3.1.9. Copies of the semiannual statistical compilations, required by the Legislative Rule, Series 3, Section 5.4.5, for the preceding year.

3.1.10. Copies of all annual audits previously compiled pursuant to the Legislative Rule, Series 3, Section 5.5.

3.1.11. Copies of ten percent (10%), but not in any event less than twenty-five (25), of the written decision documents issued by the Mechanism to West Virginia consumers during the preceding year, representing a randomly selected cross-section of such decisions. The Director of the Consumer Protection Division may, upon notice, have these opinions selected by personnel from his office or under his direction. These written decisions will be reviewed in order to ascertain the extent to which the substantive and remedial requirements of the Act were applied in such decisions.

3.1.12. Statistics for the previous record year showing the number of oral presentations under the Legislative Rule, Series 3, Section 5.3.6, conducted for each Warrantor served by the Mechanism, the number of times such a presentation was requested by a consumer and rejected by the Warrantor and the number of times such a presentation was requested by the Warrantor and rejected by the consumer.

3.1.13. Such other or additional information as the Director of the Consumer Protection Division might request after initial review of the application.

W. Va. Code R. § 142-7-4 Review Of Application

4.1. Upon receipt of a completed application, the Director of the Consumer Protection Division shall direct his staff to prepare a report, reviewing the operation of the Mechanism in view of the requirements of the Act and the Legislative Rule, Series 3, and to recommend an appropriate ruling on the application.

4.2. After receipt of the staff report and independent review of the application, the Director shall announce his declaratory ruling, certifying the applicant as a Qualified Mechanism, granting Provisional Qualification for such time and upon such conditions as may be specified or rejecting the application.

4.3. A final report will be prepared to accompany the Director's ruling, setting forth the basis therefor.

W. Va. Code R. § 142-7-5 Provisionally Qualified Mechanisms

5.1. Provisional Qualification shall be available only for those Mechanisms which have not conducted sufficient operations in West Virginia under the terms of the Act and the Legislative Rule, Series 3, prior to submitting an application, so as to permit the submission of a complete application.

5.2. Applicants for Provisional Qualification shall complete so much of the application submission as possible, supplementing West Virginia information and records with comparable documents and statistics from one (1) or more other states, if available. All applicants for Provisional Qualification shall clearly so state on the face of the application.

5.3. In the event Provisional Qualification is granted, it shall continue for a period of one (1) year. Following nine (9) months of operation as a Provisionally Qualified Mechanism, such Mechanism shall update its original application with the statistics and materials required in an application under this Rule, reflecting the nine (9) month operating period, and reapply for approval as a Qualified Mechanism.

5.4. After review of the application as provided in Section 4, the Director may approve or reject the application or grant one (1) additional year of Provisional Qualification. This ruling will be reflected in a report, as provided in Section 4.3.

W. Va. Code R. § 142-7-6 Continuing Obligations Of Qualified Mechanisms

6.1. A Qualified Mechanism shall promptly inform the Consumer Protection Division of any changes in the information submitted in its application pursuant to Sections 3.1.1, 3.1.3, 3.1.4, and 3.1.5, and supply copies of such changes or requisite information.

6.2. A Qualified Mechanism shall submit to the Consumer Protection Division, annually, copies of its budget, the annual audit required by the Legislative Rule, Series 3, Section 5.5, and an annual cross-section of opinions as required by Section 3.1.11 of this Rule.

6.3. A Qualified Mechanism shall supply for review, upon request of the Director, any additional statistics, records or documents which must be compiled or prepared pursuant to the Legislative Rule, Series 3.

W. Va. Code R. § 142-7-7 Revocation Of Qualification

7.1. In the event that the Director has probable cause to believe that a Qualified or a Provisionally Qualified Mechanism is operating in contravention of the requirements of the Act, the Legislative Rule, Series 3, or this Rule, written notification shall be sent to the Mechanism, outlining the perceived deficiencies, fixing a time within which to respond and identifying any additional information which may be required.

7.2. Upon receipt of the Qualified or Provisionally Qualified Mechanism's reply, the Director shall determine whether the approval granted should be revoked, continued as before or continued for a period contingent upon compliance with such conditions as may be set forth in the declaratory ruling. This ruling will be reflected in a report, as provided in Section 4.3. Failure of the Mechanism to comply with conditions so stated shall result in the automatic revocation of approval, as of the date provided in the declaratory ruling.

7.3. After revocation of approval, a Mechanism may reapply, pursuant to the application procedures in Section 3 of this Rule, following one (1) year after the date of such revocation.

W. Va. Code R. § 142-7-8 Unqualified Mechanisms

8.1. There is no obligation on the part of a consumer with a warranty dispute governed by the Act to refer such dispute to a Mechanism under West Virginia Code '46A-6A-8(b) if the Mechanism has not obtained Qualified or Provisionally Qualified status, or has had such status revoked.

142CSR7

Series 08 Administration Of Preneed Burial Contracts

W. Va. Code R. § 142-8-1 General

1.1. Scope. -- This rule sets forth certain requirements for sellers of preneed burial contracts, the contract contents, and other matters pursuant to the Preneed Burial Contracts Act, W. Va. Code '47-14-1 et seq.

1.2. Authority. -- W. Va. Code ''47-14-9, 46A-6-103, and 46A-7-102(1)(e)

1.3. Filing Date. -- May 27, 1988.

1.4. Effective Date. -- August 25, 1988.

1.5. Repeal of former rule. -- Not applicable.

1.6. Penalties. -- Except as indicated, a violation of the provisions of this rule shall constitute a violation of the provisions of the Preneed Burial Contracts Act, W. Va. Code '47-14-1 et seq., and shall constitute an "unfair or deceptive act" as prohibited by W. Va. Code '46A-6-104, thereby triggering appropriate remedies provided for violations of that section.

1.7. Construction. -- These rules are to be liberally construed to effectuate the provisions of the Preneed Burial Contracts Act, W. Va. Code '47-14-1 et seq., and the West Virginia Consumer Credit and Protection Act, W. Va. Code '46A-1-101 et seq.

1.8. Severability. -- If, for any reason, any section, subsection, sentence, phrase, clause, or provision of this rule or the application thereof is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect other sections, subsections, sentences, phrases, clauses, or provisions or its application to any other person or circumstance, and, to this end, each and every section, subsection, sentence, clause, phrase, or provision of this rule is hereby declared severable.

W. Va. Code R. § 142-8-2 Definitions

2.1. "Annual report" means the report required to be filed with the Department under the provisions of W. Va. Code '47-14-3 and section 3 of this rule.

2.2. "Burial goods" means all goods supplied in regard to burial, entombment in a mausoleum, or inurnment in a columbarium, but does not include those services performed by a cemetery when acting only as a cemetery, or the sale by any person of cemetery lots, land, or interests therein, services incidental thereto, or the sale by any person of markers, memorials, monuments, equipment, crypts, urns, burial vaults, or vaults constructed or to be constructed in a mausoleum or columbarium. As used herein, "equipment" shall include only devices used to move, store or construct those other items specifically excluded from this definition. However, when any person, by the same contract, sells burial goods and other items or services excluded from this definition, such a contract shall be considered a "preneed funeral contract" within the meaning of this rule and W. Va. Code '47-14-1 et seq.

2.3. "Funeral goods" means those items of merchandise sold or offered for sale directly to the public by any person which will be used in connection with a funeral or alternative for disposition of human remains, but does not include those services actually performed by a cemetery acting only as such, or in the sale by the cemetery of cemetery lots, land, or interest therein, services incidental thereto, or the sale by any person of markers, memorials, monuments, equipment, crypts, urns, burial vaults or vaults constructed or to be constructed in a mausoleum or columbarium. As used herein, "equipment" shall include only devices used to move, store or construct those other items specifically excluded from this definition. However, when any person, by the same contract, sells funeral goods and other items or services excluded from this definition, such a contract shall be considered a "preneed funeral contract" within the meaning of this rule and W. Va. Code '47-14-1 et seq.

2.4. "Funeral services" means those services usually performed by a funeral service licensee, including, but not limited to, care and preparation of human remains and coordinating rites, ceremonies, and processions in connection with the disposition of human remains carried out at the request of any individual responsible for funeral and disposition arrangements. However, when any person, by the same contract, sells funeral services and other items or services excluded from this definition, such a contract shall be considered a "preneed funeral contract" within the meaning of this rule and chapter W. Va. Code '47-14-1 et seq.

2.5. "Preneed funeral contract" means any contract, agreement, mutual understanding, series, or combination of contracts, agreements and mutual understandings, other than a contract of insurance, under which, for a specified consideration paid in advance of death in a lump sum or by installments, a person promises to furnish or make available or provide funeral services, funeral goods or burial goods for use at a time determinable by the death of the "contract beneficiary" who is either named or implied. The payment of money to a person who provides funeral goods or services or burial goods or who sells or makes available preneed funeral contracts, which payment is to be applied toward the eventual funeral or burial expenses of a "contract beneficiary," creates a preneed funeral contract even though no particular goods or services are selected or promised.

2.6. "Reporting year" means, for the 1987 reporting year, the period commencing on June 14, 1987, and ending at midnight on December 31, 1987; for the 1988 reporting year, the period commencing on January 1, 1988, and ending at midnight of August 31, 1988; for all subsequent years, the twelve (12) month period commencing on September 1 and ending at midnight of August 31 in the following calendar year.

2.7. All other terms used in this rule shall be defined as those terms are defined in W. Va. Code '47-14-2.

W. Va. Code R. § 142-8-3 Annual Report

3.1. Each and every person who applies for renewal of a certificate of authority pursuant to the provisions of W. Va. Code '47-14-3 shall be required to make an annual report for each reporting year or portion thereof as set forth in section 2.6 of this rule. Such report shall be filed at the time the application for renewal is filed.

3.2. Each annual report shall contain the following information:

3.2.1. An identification of all outstanding preneed funeral contracts, the dates upon which such contracts were entered, the names of all parties involved in such contracts or having any rights under such contracts, the amounts paid on such contracts, and the amounts owing on any contracts upon which payments are incomplete, or, with respect to contracts which will be funded by the proceeds of a life insurance or annuity contract for the contract beneficiary, the amount of such insurance or annuity, the insurance agent and insurer, the current beneficiary and the method of payment for such insurance or annuity contract;

3.2.2. The name of the seller and the name of the provider of services and goods and a statement that the provider has the capacity to perform all of its obligations under its contracts;

3.2.3. A statement that the seller and the person receiving funds paid thereunder have complied with applicable trust requirements of the Preneed Burial Contracts Act and this rule, identifying the present depository or holder of all trust funds with amounts thereof itemized as to each contract. This statement shall also include an accounting for each trust fund, describing all payments to and disbursements from the fund;

3.2.4. Any changes or amendments in any contracts or obligations of the contract seller or provider that have occurred during the reporting year which were not previously reported to the Department pursuant to W. Va. Code '47-14-8(f) and section 9.6 of this rule; and

3.2.5. The current price list of the provider for funeral goods and services and any other price list employed since the previous annual report.

3.3. No extensions shall be granted for any reporting year unless the holder of a certificate of authority is unable to gather the requisite information to complete the annual report and establishes such inability to the satisfaction of the Department. Any such extension shall be for a period and upon such terms as the Department, in its discretion, deems appropriate.

W. Va. Code R. § 142-8-4 Application For Certificate Of Authority Or License; Contents Of Application

4.1. No person shall sell, offer for sale, make available or be a provider of a preneed funeral contract until such time as he has received a certificate of authority from the Department. Employees or agents of persons holding a certificate of authority and who are involved in actually selling preneed funeral contracts must have a license issued by the Department. No person shall be eligible to obtain a license to sell preneed funeral contracts unless he or she also holds a certificate of authority or is employed by the holder of a certificate of authority.

4.2. No person, other than a bank, trust company, savings and loan association or other financial institution as provided in W. Va. Code '47-14-3(a), may act as a trustee with respect to funds paid on preneed funeral contracts unless he has procured a certificate of authority.

4.3. The Department shall prescribe the necessary forms for applying for a certificate of authority or license. These forms shall be used by all applicants.

4.4. Application for the renewal of a certificate of authority or license for the year commencing January 1, 1988, shall be submitted by March 1, 1988. Applicants holding certificates or licenses for 1987 who submit timely renewal applications may continue to do business under the previous certificate or license until the renewal is granted or refused by the Department. In all subsequent years, commencing with November 1, 1988, all such renewal applications shall be due by November 1. Commencing with December 31, 1988, all such certificates of authority and licenses will expire on December 31 of each year.

W. Va. Code R. § 142-8-5 Initial Examinations

5.1. Examination of the records of a holder of a certificate of authority by the Department, or at its direction, may occur with or without advance notice of such examination.

5.2. Holders of certificates of authority shall make all books, records, and other information relating to preneed funeral contracts available during regular business hours.

5.3. The Department shall be entitled to charge fees and expenses to a holder of a certificate of authority for an initial examination within a reporting year if the examination reveals or confirms any violation of the provisions of the Preneed Burial Contracts Act or this rule. Fees and expenses for such examination shall be assessed as provided in section 6.2 of this rule.

5.4. Failure to provide necessary records or submit to any examination or pay the expenses assessed therefore shall result in suspension or revocation of the certificate of authority.

W. Va. Code R. § 142-8-6 Second Or Subsequent Examinations

6.1. When the Department has reason to believe that a holder of a certificate of authority or a licensee employed by a certificate holder is violating the provisions of the Preneed Burial Contracts Act or this rule, and an initial examination has already been conducted for such holder during the reporting year, the Department may petition the Circuit Court of Kanawha County or the circuit court of the county wherein such holder of a certificate of authority does business for permission to conduct a second or subsequent examination. Such court, if it concludes that the Department's determination is not clearly erroneous, shall order an examination of the records or compel the examination of any interested person under oath. The proceedings on such a petition shall be adversary, with notice to all interested parties.

6.2. In addition to an examination fee, up to a maximum of five hundred dollars ($500.00) as fixed by the Department pursuant to W. Va. Code '47-14-3(i)(3), and an hourly charge, based on the examiner's salary, for the time spent in conducting the examination, the following expenses shall be assessed:

6.2.1. Travel expenses assessed at the mileage permitted by the state in using personal automobiles for travel on state business or the expenses incurred by the Department in securing a vehicle from the Department of Finance and Administration Motor Pool, or other actual expenses incurred in such travel for securing transportation;

6.2.2. Hotel or lodging expenses as necessary for any examination;

6.2.3. Meals and other services as permitted by travel regulations of the Department or the state;

6.2.4. Any other reasonable and necessary expenses incurred as a result of the examination, including, but not limited to: printing, photocopying, long distance telephone tolls, access fees, equipment rental expenses or fees of a court reporter or stenographer for transcribing or reproducing statements or testimony.

6.3. The provisions of this rule are in addition to the investigative powers of the Department as provided in W. Va. Code '46A-7-111 and are not intended to diminish or qualify such powers.

W. Va. Code R. § 142-8-7 Trust Accounts

7.1. All funds paid to or collected by any person on a preneed funeral contract and not exempted by W. Va. Code '47-14-5(a)(1) shall be deposited in a trust account within thirty (30) days of receipt. The trust account shall be administered: (i) by the provider, contract seller, or person making the preneed funeral contract available, acting as trustee; (ii) under the terms of a trust instrument entered into with a national or state bank having trust powers and located in this state; or (iii) under the terms of a trust instrument entered into with a board of at least three individual trustees as provided in W. Va. Code '47-14-8(b).

7.2. All trustees shall include in their annual report a statement accounting for fees charged against the trust, which fees shall be subject to review by the Department in order to determine whether they are reasonable in amount. Any fees found to be excessive shall be repaid to the trust.

7.3. All individual members of boards of trustees, as provided for in W.Va. Code '47-14-8(b) and section 7.1(iii) of this rule, shall obtain a fidelity bond as required by W. Va. Code '47-14-8(b) and shall file this bond with the Department at the time of application for a certificate of authority. No other trustee need obtain a fidelity bond.

W. Va. Code R. § 142-8-8 Provision Of Goods And Services Under Preneed Funeral Contract At Death Of Contract Beneficiary

8.1. To the extent that a person who is a provider, contract seller or one who makes a preneed funeral contract available, based on price lists in effect at the contract beneficiary's death, would charge more than the contract price for the goods and services provided, such person may have and use so much of the principal and interest of any trust fund as may be necessary to defray the cost over the contract price. In no event, however, unless the contract has been cancelled as provided in section 10 of this rule, shall such person fail or refuse to make available goods and services of the type for which the contract provides even though the costs exceed the value of the trust fund or other proceeds available for such purpose. The goods and services shall be provided for the amount available in the trust or other proceeds in such a situation. Substitution of goods of equivalent quality and value may be made only after notice to the contract buyer or the next of kin of the beneficiary and only when it can be demonstrated that the goods described in the contract are unavailable.

8.2. On or before the first day of January and the first day of July of each year, the trustee and the provider, contract seller or person who made the preneed funeral contract available shall file a report with the Department, describing the goods and services provided after the death of any contract beneficiary during the previous six (6) month period, accounting for all expenditures and disbursements from the trust or other proceeds, justifying by reference to current price lists any increase over the original contract cost and explaining any substitution of goods or services.

8.3. In the event that the contract buyer was not the contract beneficiary, all trust monies or other proceeds not properly applied toward the costs of providing the goods and services shall be returned to the contract buyer, his estate or designee. If the contract beneficiary was also the contract buyer, any such excess shall be paid to the contract beneficiary's estate or designee.

8.4. It is a purpose of the Act and this rule to enable the buyer of a preneed funeral contract to secure a fixed price for specific funeral goods and services or burial goods, subject only to increases authorized pursuant to section 8.1 of this rule. No provider, contract seller or person who makes a preneed funeral contract available may enter a preneed funeral contract which does not establish a fixed price for specific goods and services unless the buyer has been fully informed of the rights guaranteed by such a contract and such buyer has declined to specify goods, services and prices.

W. Va. Code R. § 142-8-9 Contents And Execution Of Contracts

9.1. All preneed funeral contracts which do not follow such official forms as may be promulgated by the Department shall be in writing and contain the following:

9.1.1. The name and address of the contract buyer and the contract beneficiary, if a different person;

9.1.2. Any statement required by the provisions of the Truth in Lending Act and Regulation Z, 15 U.S.C. ''1601 et seq., and 12 C.F.R. '226;

9.1.3. Any notice of cancellation required by the provisions of the Cooling Off Period For Door-to-Door Sales Rule, 16 C.F.R. '429 or the home solicitation sales provisions of W. Va. Code ''46A-2-132 to 135;

9.1.4. Any statement required by the provisions of the Preservation of Consumers' Claims and Defenses Rule, 16 C.F.R. '433;

9.1.5. Unless the contract is made irrevocable under the provisions of section 15 of this rule, a statement that the person shall have the right to cancel the preneed funeral services contract at any time and receive a refund of all monies paid and the return of any documents or instruments of obligation in the seller's possession: Provided, That, if any goods or services are being sold under the contract which are not "burial goods," "funeral goods" or "funeral services" as defined in W. Va. Code '47-14-2 and the contract seller wishes to retain monies paid therefor or the ten percent (10%) exclusion permitted by W. Va. Code '47-14-5, such right of retention and exclusion shall be clearly and conspicuously set forth on the face of the contract in a clause which must be separately acknowledged by the contract buyer;

9.1.6. Statements particularly describing all limitations, terms , and conditions of the contract and all rights and duties of the parties under the contract, including, but not limited to:

9.1.6.a. The total cost of such contract;

9.1.6.b. The amount of each periodic payment;

9.1.6.c. The timing of each periodic payment;

9.1.6.d. The amount of any finance charge assessed and the rate of assessment of finance charges;

9.1.6.e. The total of all payments under the contract including the downpayment;

9.1.6.f. Whether the seller is taking a security interest in any property in which the contract buyer has any interest;

9.1.6.g. The name and address of the contract seller and a contract number commencing with the digits of the year such contract was sold and a readily identifiable chronological numbering method;

9.1.6.h. The existence of and method of calculation of any late charges or deferral charges;

9.1.6.i. A statement describing the method of funding of the preneed funeral contract if other than through the establishment of a trust fund;

9.1.6.j. A specific description of the funeral or burial goods and funeral services to be provided, the cost of the goods and services in conformity with the provisions of the Federal Trade Commission's Funeral Practices Rule as in existence on the effective date of this rule, and the name(s) of all provider(s) for the preneed funeral contract.

9.2. Each and every preneed funeral contract shall be signed by the seller or a representative of the seller and the buyer. Such contract shall be dated as of the time of signing and shall contain all representations made during the sales presentation.

9.3. Each and every preneed funeral contract shall be presented to the buyer prior to execution. The contract buyer shall be entitled to review it prior to execution and to remove such contract from the seller's premises to conduct a review. To that end, any offer contained within a preneed funeral contract shall be valid for five (5) business days from the date of presentation of the offer.

9.4. No preneed funeral contract shall be presented to any buyer unless all spaces have either been filled in or marked through.

9.5. Upon execution of a preneed funeral contract, the buyer shall immediately be given a copy of the contract.

9.6. After execution, copies of the preneed funeral contract shall be distributed as follows:

9.6.1. One copy to the buyer;

9.6.2. One copy to be retained by the seller;

9.6.3. One copy for the provider;

9.6.4. One copy for the contract beneficiary if other than the buyer and such distribution is desired by the buyer;

9.6.5. One copy for the trustee, if a separate party; and

9.6.6. One copy to be provided to the Department within ten (10) days of execution.

W. Va. Code R. § 142-8-10 Default By The Contract Buyer

10.1. A preneed funeral contract and any trust associated therewith may be terminated by the contract seller only upon default by the buyer. If a contract buyer is in default for more than one hundred eighty (180) days with respect to any payment or installment due on or pursuant to the contract, the seller may, on ten (10) days' prior written notice, cancel the contract. Upon cancellation, the seller must refund all funds in the trust fund, including monies paid for items which are excluded from the definitions of burial goods, funeral goods and services and which are not subject to the buyer's right of cancellation under W. Va. Code '47-14-6: Provided, That the seller may retain up to ten percent (10%) of the monies paid as liquidated damages if such a deduction was not previously made as provided in W. Va. Code '47-14-5 and section 9.1.5 of this rule.

10.2. If payment for a preneed funeral contract is not complete at the time of the contract beneficiary's death and the seller has not cancelled the contract as aforesaid, or if a life insurance or annuity contract intended to fund the preneed funeral contract has lapsed, the heirs or personal representative of the beneficiary may pay the balance remaining on the preneed funeral contract and obtain performance as provided.

W. Va. Code R. § 142-8-11 Sale Or Transfer Of Certificate Of Authority Or License Prohibited

11.1. No holder of a certificate of authority or license to sell preneed funeral contracts may sell or transfer such certificate of authority or license to any other person.

11.2. No holder of a certificate of authority or license to sell preneed funeral contracts shall transfer such certificate of authority or license to another business location without first notifying the Department.

11.3. In the event that the holder of a certificate of authority is other than a natural person, the Department shall be notified of any sale or transfer of the stock or assets of such an entity. Any substantial change in corporate ownership shall, in the Department's discretion, necessitate application for a new certificate of authority.

W. Va. Code R. § 142-8-12 Multiple Price Lists Prohibited

12.1. No seller, provider, or other person who makes preneed funeral contracts available to the public shall maintain multiple price lists for the provision of the same goods and services.

12.2. Each seller, provider, or other person who makes preneed funeral contracts available to the public shall maintain a record copy of each price list for goods and services offered under any preneed funeral contract and set forth on such price list the duration or time period to which each list is applicable.

W. Va. Code R. § 142-8-13 Disciplinary Proceedings

13.1. In addition to the provisions of W. Va. Code '47-14-11, a holder of a certificate of authority or licensee may face disciplinary action for violating the provisions of this rule or failing to submit to any examination conducted by the Department.

13.2. The penalties which may be imposed administratively by the Department for violating the provisions of this rule shall include one or more of the following:

13.2.1. Denial of any application for a certificate of authority or license;

13.2.2. Revocation or suspension of a certificate of authority or license;

13.2.3. Imposition of a fine in the amount not to exceed one thousand dollars ($1,000.00) for each county in which a violation occurred;

13.2.4. Issuance of a reprimand; or

13.2.5. Imposition of a period of probation upon the holder of a certificate of authority or license under such terms and conditions as may be deemed appropriate by the Department.

13.3. In the event that the Department has reason to believe that the holder of a certificate of authority or license has committed willful or widespread violations of this rule or the Preneed Burial Contracts Act, is or may be insolvent or otherwise poses a threat to the security of trust assets, the Department shall immediately suspend the certificate of authority or license upon notice to the holder and prior to any hearing: Provided, That the holder in such circumstances shall be entitled to an expedited hearing.

W. Va. Code R. § 142-8-14 Insolvency

14.1. If an audit reveals that a trust account or trustee appears to be insolvent, the Department shall have the authority, in the reasonable exercise of discretion, to find a substitute trustee to undertake the management of the trust funds.

14.2. For the purposes of this section, "insolvency" means the occasion or occurrence of any event or series of events whereby the current trust obligations exceed the total current assets of the trust.

W. Va. Code R. § 142-8-15 Notice Of Contract Irrevocability

15.1. No preneed funeral contract shall be made irrevocable without the express, written, informed consent of the contract buyer. Absent such consent, the preneed funeral contract shall be revocable.

15.2. Each preneed funeral contract which is irrevocable shall contain the following notice in boldface on the front of the contract:

"NOTICE OF IRREVOCABILITY

THIS PRENEED FUNERAL CONTRACT SHALL

BE IRREVOCABLE DURING THE LIFETIME OF

THE CONTRACT BENEFICIARY. NEITHER THE

BUYER NOR ANY OTHER PERSON AS

BENEFICIARY WILL BE ENTITLED TO CANCEL

THIS CONTRACT OR RECEIVE A REFUND OF

PAYMENTS MADE UNDER THIS CONTRACT. _____________________________________

(Buyer's Signature) (Date)"

15.3. Any buyer who has purchased a preneed funeral contract may elect after consummation to amend the contract to make it irrevocable by notifying the contract seller and trustee and by placing his signature on the original copy of the contract and giving the true date of the signature.

W. Va. Code R. § 142-8-16 Applicability Of Freedom Of Information Act

16.1. The contents of an application for a certificate of authority or license, and any renewal thereof or any annual report, shall be exempt from public disclosure under the provisions of the Freedom of Information Act, W. Va. Code '29B-1-1 et seq., as shall be information on individual preneed funeral contracts or trusts or any information disclosed in an audit of a certificate holder or licensee. All such information is exempt from disclosure under the provisions of this rule and W. Va. Code ''29B-1-4(1) and 29B-1-4(2).

W. Va. Code R. § 142-8-17 Violation Of Rule; Enforcement

17.1. Violation of any term or provision of this rule shall be an unfair and deceptive act or practice in violation of W. Va. Code '46A-6-104 and a violation of the provisions of W. Va. Code ''47-14-11(a)(1) and 47-14-13.

17.2. The Department may request, and the courts or administrative tribunals shall be empowered to order, any writs, orders, or other relief which may be necessary for the enforcement of the provisions of the Code and this rule, including, but not limited to, injunctive relief, restitution, and affirmative disclosure, advertising, or mailings.

142CSR8

Series 09 Legislative Rule Pertaining To Allowing Persons Who Are Indirectly Injured By Violations Of The WV Antitrust Act To recover damages

W. Va. Code R. § 142-9-1 General

1.1. Scope. -- This rule shall apply to any action brought by any person under the provisions of W. Va. Code '47-18-9, or any action brought by the Attorney General as parens patriae under the provisions of W. Va. Code '47-18-17.

Purpose. -- The purpose of this rule is to allow persons who are indirectly injured by violations of the West Virginia Antitrust Act to maintain an action for damages; to allow the Attorney General, as parens patriae, to maintain an action on behalf of such persons who have suffered indirect injury under W. Va. Code '47-18-17; and to bring the application of the West Virginia Antitrust Act into conformity with the laws of other jurisdictions.

1.2. Authority. -- W. Va. Code '47-18-20.

1.3. Filing Date. -- April 2, 1990.

1.4. Effective Date. -- April 2, 1990.

1.5. Repeal of Former Rule. -- Not applicable.

1.6. Construction. -- This rule shall be liberally construed to effectuate the beneficial purposes of the West Virginia Antitrust Act.

1.7. Severability. -- If, for any reason, any section, sentence, clause, phrase, or provision of this rule or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality clauses, phrases, or provisions or their application to any other person or circumstance, and to this end, each and every section, sentence, clause, phrase, or provision of this rule is hereby declared severable.

W. Va. Code R. § 142-9-2 Damages Recoverable By Persons Indirectly Injured

2.1. Any person who is injured directly or indirectly by reason of a violation of the West Virginia Antitrust Act, W. Va. Code '47-18-1, et seq., may bring an action for damages under W. Va. Code '47-18-9. The State and any of its political subdivisions shall be deemed a person within the meaning of this rule.

142CSR9

Series 13 Health Spas

W. Va. Code R. § 142-13-1 General

1.1. Scope. -- This legislative rule defines certain deceptive acts or practices and sets forth certain requirements for sellers and providers of consumer services by health spas in West Virginia, its counties, and all political subdivisions.

1.2. Authority. -- W. Va. Code ''46A-7-102(1)(e) and 46A-6-103.

1.3. Filing Date. -- May 14, 1990.

1.4. Effective Date. -- July 1, 1990.

1.5. Repeal of Former Rule. -- Not applicable.

1.6. Penalties. -- Except as otherwise indicated, a violation of this rule constitutes a violation of the West Virginia Consumer Credit and Protection Act, W.Va. Code '46A-6-104 and any person violating the provisions of this rule or the provisions of the West Virginia Consumer Credit and Protection Act shall be subject to a civil penalty in the amount of Five Thousand Dollars for each transaction or occurrence of a repeated and willful violation.

1.7. Construction. -- This rule shall be liberally construed to effectuate the purposes of the West Virginia Consumer Credit and Protection Act, W. Va. Code '46A-1-101 et seq.

1.8. Severability. -- If, for any reason, any section, subsection, sentence, clause, phrase, or provision of this rule or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect other sections, subsections, sentences, clauses, phrases, or provisions or its application to any other person or circumstance, and to this end each and every section, subsection, sentence, clause, phrase, or provision of this rule is hereby declared severable.

W. Va. Code R. § 142-13-2 Definitions

2.1. "Business day" means all days except legal federal or state holidays and Sundays.

2.2. "Contract" means an oral or written agreement by which one becomes a member of a health spa.

2.3. "Department" means the office of the attorney general of West Virginia.

2.4. "Facilities" means equipment, physical structures, improvements to leasehold premises, and other tangible property, real, personal, or mixed, used by a health spa at each location to conduct its business including, but not limited to, saunas, whirlpool baths, gymnasiums, running tracks, swimming pools, shower areas, racquetball courts, martial arts equipment, and exercise equipment.

2.5. "Health spa" means a business primarily involved in the sale of memberships that provides the members instruction in the program of physical exercise or provides the members use of the facilities of the health spa for a program of physical exercise regardless of whether or not the business has wet areas, such as a pool, whirlpool, or steam room. The term does not include an organization that is tax exempt under 26 U.S.C. '501 et seq., or a private club owned and operated by its members.

2.6. "Market location" means the area within a ten mile radius of the health spa.

2.7. "Member" means a natural person entitled to the benefits of membership in a health spa.

2.8. "Membership" means the status under a contract between an individual and a health spa that entitles the individual to the use of services of facilities of the health spa.

2.9. "Person" means an individual, corporation, association, organization, partnership, business trust, trust, estate, and any other legal entity.

2.10. "Purchaser" means a person who purchases a health spa membership.

2.11. "Seller" means a person who owns or operates a health spa or who offers for sale the right to use the facilities or the services of the health spa.

2.12. "Services" means programs, plans, guidance, or instruction that a health spa provides for its members, including diet planning, exercise instruction, exercise programs, and instructional classes.

W. Va. Code R. § 142-13-3 Surety Bond, Letter of Credit, and Alternatives

3.1. Except as hereinafter provided, each health spa registering to do business in this state shall post a surety bond or letter of credit in the amount of fifty thousand dollars, or the equivalent in cash or marketable securities, with the attorney general. The form of bond and letter of credit shall be designated by the attorney general. No surety bond shall be accepted for filing unless it is with a surety company authorized to do business in this state, and no letter of credit shall be accepted for filing unless it is from a bank insured by the Federal Deposit Insurance Corporation. The surety may cancel the bond at any time upon giving thirty days prior written notice to the attorney general. The letter of credit shall not be cancelled or terminated except with the consent of the attorney general. The bond or letter of credit shall be in favor of the State of West Virginia and shall cover only claims by consumers for prorated refunds of monies tendered in advance for membership in a health spa which subsequently closes or is otherwise unable to provide services for the full period of time paid by the consumer.

3.2. A health spa is not required to post a surety bond, letter of credit or other indicator of financial security under this section if it charges an application fee, initiation fee, or other initial charge no higher than twenty-five dollars, and either (a) limits its sale of long-term contracts to no longer than three (3) months, or (b) agrees to require advance payment of no more than one-third of the full purchase price of contracts longer than three (3) months and accepts monthly payments for the balance of the contract period spread out equally over the rest of the contract period.

3.3. A health spa is required to send the attorney general's consumer protection division a letter thirty (30) days prior to opening indicating how it plans to comply with the options offered under this section.

3.4. The provision of this section shall not apply to health spas otherwise covered by this rule that have operated in this state for a continuous period of three (3) years or longer in the same market location and with the same principals, officers, or corporate identity including subsidiary. For purposes of this section, "operated in this state" does not include periods of pre-opening sales of membership; but, rather, only periods when the health spa is open and providing services to members.

W. Va. Code R. § 142-13-4 Contract Requirements

4.1. The health spa must deliver a fully completed copy of a contract to a purchaser before the contract is signed. The contract constitutes the entire agreement between the seller and the purchaser. The contract must be in writing and must be signed by the purchaser. If the health spa is not open at the time the contract is entered, the contract must clearly state the proposed opening date of the health spa. At the time of delivery the health spa must give the purchaser a written receipt for any payment made by the purchaser under the contract.

4.2. No health spa contract can be sold for a period of time greater than two years.

4.3. A contract may not require or entail the execution of a note or series of notes by the purchaser that when separately negotiated will cut off as to third parties a claim or defense that the purchaser may have against the seller.

4.4. Each contract shall state in at least 10-point boldfaced type:

4.4.1. "NOTICE TO PURCHASER: DO NOT SIGN THIS CONTRACT UNTIL YOU READ IT OR IF IT CONTAINS BLANK SPACES."

4.4.2. IF YOU DECIDE YOU DO NOT WISH TO REMAIN A MEMBER OF THIS HEALTH SPA, YOU MAY CANCEL THIS CONTRACT BY MAILING TO THE HEALTH SPA BY MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DAY YOU SIGN THIS CONTRACT A NOTICE STATING YOUR DESIRE TO CANCEL THIS CONTRACT. THE WRITTEN NOTICE MUST BE MAILED BY CERTIFIED MAIL TO THE FOLLOWING ADDRESS:

(Address of the health spa home office.)"

4.4.3. "IF THE HEALTH SPA GOES OUT OF BUSINESS AND DOES NOT PROVIDE COMPARABLE FACILITIES WITHIN TEN MILES OF THE FACILITY IN WHICH YOU ARE ENROLLED OR IF THE HEALTH SPA MOVES MORE THAN TEN MILES FROM THE FACILITY IN WHICH YOU ARE ENROLLED, YOU MAY CANCEL THIS CONTRACT BY MAILING A NOTICE TO THE HEALTH SPA STATING YOUR DESIRE TO CANCEL THIS CONTRACT, ACCOMPANIED BY PROOF OF PAYMENT ON THE CONTRACT. THE WRITTEN NOTICE MUST BE MAILED BY CERTIFIED MAIL TO THE FOLLOWING ADDRESS:

(Address of the health spa home office.)"

4.4.4. "IF YOU DIE OR BECOME TOTALLY AND PERMANENTLY DISABLED AFTER THE DATE THIS CONTRACT TAKES EFFECT, YOU OR YOUR ESTATE MAY CANCEL THIS CONTRACT AND RECEIVE A PARTIAL REFUND OF YOUR UNUSED MEMBERSHIP FEE BY MAILING A NOTICE TO THE HEALTH SPA STATING YOUR DESIRE TO CANCEL THIS CONTRACT. THE HEALTH SPA MAY REQUIRE PROOF OF DISABILITY OR DEATH. THE WRITTEN NOTICE MUST BE MAILED BY CERTIFIED MAIL TO THE FOLLOWING ADDRESS.

(Address of the health spa home office.)"

W. Va. Code R. § 142-13-5 Cancellation of Contracts

5.1. A member may cancel a contract before the fourth business day after the date on which the contract is executed by notifying the health spa of the cancellation in writing. Written notification is considered given if the notification is mailed to the home office of the health spa and postmarked not later than midnight of the third business day after execution of the contract. The health spa shall refund all money paid to the purchaser exercising the right to cancel within seven days of the cancellation.

5.2. A member may cancel a contract on written notice by mail to the home office of the health spa if the health spa goes out of business and fails to provide comparable facilities within ten miles or moves its facilities more than ten miles from the location in which the member is enrolled. A member may cancel a contract in the same manner if the health spa fails to provide advertised services. If a contract is cancelled under this subsection, the member is liable for an amount equal to the value of services received and facilities used under the contract up to the date of the cancellation, and if the member has paid money under the contract in excess of that amount the health spa shall promptly refund to the member the excess within twenty days of the cancellation.

5.3. A purchaser of a membership or the legal representative of a purchaser may cancel a contract if the member dies or becomes totally and permanently disabled after the date on which the contract takes effect. The purchaser remains liable for an amount equal to the value of services received and facilities used by the member under the contract up to the day on which the death occurred or the disability was incurred. The health spa shall make a pro rata refund of funds paid under the contract in an amount based on the time remaining in the contract term up to a maximum of 50 percent of the total contract amount. The health spa may require a purchaser or the purchaser's estate to provide reasonable proof of total and permanent disability or death.

W. Va. Code R. § 142-13-6 Pre-Opening Sale of Contracts

6.1. Health spas who solicit and sell memberships prior to fully opening for business and providing all promised services and facilities may not use membership fees collected to build facilities or obtain equipment. Monies collected for memberships prior to opening and providing all promised services and facilities must be placed in an escrow account with an insured financial institution and may not be used by the health spa for operational expenses until it opens and provides promised services and facilities.

W. Va. Code R. § 142-13-7 Unfair or Deceptive Acts or Practices

It shall be an unfair or deceptive act or practice for a health spa to:

7.1. Offer special sales or discounts unless such special sales or discounts are made in writing and are made available to all prospective members who have not previously been members of the health spa.

7.2. Make any misrepresentation to current members, prospective members or purchasers of membership contracts regarding:

7.2.1. Qualification of staff;

7.2.2. Availability, quality, or extent of facilities or services;

7.2.3. Results obtained through exercise, dieting, or weight control programs;

7.2.4. Membership rights; or

7.2.5. The period that a special offer or discount will be available.

7.3. Advertise that it is bonded by the state or that a letter of credit is held by the state.

7.4. Fail to register to do business in this state.

7.5. Fail to either post a surety bond or letter of credit as required by section 3 of this rule or comply with the provisions of section 3 which allows a health spa an alternative to posting a bond or letter of credit.

7.6. Fail to notify the attorney general's consumer protection division of the option the health spa chooses under section 3 of this rule.

7.7. Fail to deposit funds required to be escrowed under section 6 of this rule.

7.8. Withdraw funds deposited in an escrow account pursuant to section 6 of this rule before the health spa opens for business and provides all promised services to consumers who have purchased memberships.

W. Va. Code R. § 142-13-8 Violation of the Rule; Enforcement

8.1. Any violation of the provisions of this rule is an unfair or deceptive act or practice within the meaning of W. Va. Code '46A-6-104. Any right, remedy or power set forth in W. Va. Code '46A-1-1 et seq. may be used to enforce the provisions of this rule.

8.2. The rights, obligations, and remedies provided in this rule shall be in addition to any other rights, obligations, or remedies provided for by law or in equity.

8.3. The department may request, and the courts or administrative tribunals shall be empowered to order, any writs, orders, or other relief as may be necessary for the enforcement of the provisions of this rule, including, but not limited to, injunctive relief, restitution, civil penalties, costs, fees, expenses of investigation, affirmative disclosure, advertising or mailings.

142CSR13

Series 14 Proposed Legislative Rule Pertaining To Limitation Of Action And Recovery Of Investigate Costs And A Reasonable Attorney's Fee By The Attorney General in

W. Va. Code R. § 142-14-1 General

1.1. Scope. -- This rule shall apply in any action brought by the Attorney General under the West Virginia Antitrust Act, W. Va. Code ''47-18-1, -23, or authorized by federal law.

1.2. Authority. -- W. Va. Code '47-18-20.

1.3. Filing Date. -- April 9, 1991.

1.4. Effective Date. -- April 9, 1991.

1.5. Purpose. -- The purpose of this rule is to clarify, implement, apply, and make specific the provisions of W. Va. Code '47-18-11 (1978) relating to limitation of action unde the West Virginia Antitrust Act and authorizing the courts of this state to award a reasonable attorney's fee to the Attorney General in enforcement actions.

1.6. Construction. -- This rule shall be liberally construed to effectuate the beneficial purposes of the West Virginia Antitrust Act.

1.7. Severability. -- If, for any reason, any section, sentence, clause, phrase, or provision of this rule or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect other sections, sentences, clauses, phrases, or provisions or their application to any other person or circumstance, and to this end, each and every section, sentence, clause, phrase, or provision of this rule is hereby declared severable.

W. Va. Code R. § 142-14-2 Continuing Violations

A cause of action alleging a continuing available within four years after the last date on which an antitrust injury was suffered. In such instances, money damages and penalties may be recovered for antitrust injuries which preceded the four-year limitation period set forth by W. Va. Code '47-18-11.

W. Va. Code R. § 142-14-3 Investigative Costs and Attorney's Fees

When any court issues an injunciton or penalty in any enforcement action brought pursuant to W. Va. Code '47-18-8, the court may also award the Attorney General the reasonable costs and expenses of the investigation and litigation and a reasonable attorney's fee.

142CSR14

Series 15 Proposed Legislative Rule Pertaining To Defining The Term "Federal Antitrust Laws" And Prohibiting Tying And Reciprocity

W. Va. Code R. § 142-15-1 General

1.1. Scope. -- This rule shall apply to any action brought by the Attorney General as parens patriae in federal court for violations of the federal antitrust laws under W. Va. Code '47-18-17 and to any person who engages in trade or commerce in or affecting this State.

1.2. Authority. -- W. Va. Code ' 47-18-20.

1.3. Filing Date. -- April 9, 1991.

1.4. Effective Date. -- April 9, 1991.

1.5. Purpose. -- The purpose of this rule is to define the term "federal antitrust laws" as used within W. Va. Code '47-18-17 and to prohibit tying and reciprocity in any trade or commerce in or affecting this State.

1.6. Construction. -- This rule shall be liberally construed to effectuate the beneficial purposes of the West Virginia Antitrust Act.

1.7. Severability. -- If, for any reason, any section, sentence, clause, phrase, or provision of this rule or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect other sections, sentences, clauses, phrases, or provisions or their application to any other person or circumstance, and to this end, each and every section, sentence, clause, phrase, or provision of this rule is hereby declared severable.

W. Va. Code R. § 142-15-2 Definition of "Federal Antitrust Laws" as used in W. Va. Code '47-18-17

2.1. The term "federal antitrust laws" as used within W. Va. Code '47-18-17 shall include the provisions of 15 U.S.C. ''1, 2, 3, 8, 13, 14, 18, 19, and 45(a).

W. Va. Code R. § 142-15-3 Prohibited Conduct

3.1. It shall be unlawful under W. Va. Code ''47-18-3, 4 for any person or group of persons to enter into tie-in agreements. Such agreements include, but are not limited to, agreements which condition or have the effect of conditioning the sale of one product or service upon the purchase of another product or service.

3.2. It shall be unlawful under W. Va. Code ''47-18-3, 4 for any person or persons to enter into agreements resulting in reciprocity. Such agreements include, but are not limited to, agreements in which the sale of a product or service is conditioned upon the seller's purchase of products or services produced or performed by the buyer.

142CSR15

Series 16 Proposed Legislative Rule Pertaining To Authorizing The Attorney General To Require Persons Upon Whom Subpoenas Are Served To Answer Written Questions

W. Va. Code R. § 142-16-1 General

1.1. Scope. -- This rule shall apply to any investigation commenced pursuant to the provisions of W. Va. Code ''47-18-6, 7.

1.2. Authority. -- W. Va. Code '47-18-20.

1.3. Filing Date. -- April 9, 1991.

1.4. Effective Date. -- April 9, 1991.

1.5. Purpose. -- The purpose of this rule is to authorize the Attorney General to require persons upon whom subpoenas may be served to provide written answers under oath to written questions.

1.6. Construction. -- This rule shall be liberally construed to effectuate the beneficial purposes of the West Virginia Antitrust Act.

1.7. Severability. -- If, for any reason, any section, sentence, clause, phrase, or provision of this rule or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality shall not affect other sections, sentences, clauses, phrases, or provisions or their application to any other person or circumstance, and to this end, each and every section, sentence, clause, phrase, or provision of this rule is hereby declared severable.

W. Va. Code R. § 142-16-2 Written Responses to Subpoenas

The Attorney General may require any person upon whom a subpoena is served pursuant to W. Va. Code '47-18-7 to answer written questions in writing and under oath.

142CSR16

Series 18 Proposed Legislative Rule Pertaining To The Regulated Business Exemption And The WV Antitrust Act

W. Va. Code R. § 142-18-1 General

1.1. Scope. -- This rule shall apply to any action brought by the Attorney General under W. Va. Code ''47-18-1, 23.

1.2. Authority. -- W. Va. Code '47-18-20.

1.3. Filing Date. -- April 9, 1991.

1.4. Effective Date. -- April 9, 1991.

1.5. Purpose. -- The purpose of this rule is to implement, apply, interpret, and make specific the exemption contained in W. Va. Code '47-18-5 relating to regulated businesses.

1.6. Construction. -- This rule shall be interpreted in conformity with the federal decisional law relating to exemptions under the federal antitrust laws.

1.7. Severability. -- If, for any reason, any section, sentence, clause, phrase, or provision of this rule or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect other sections, sentences, clauses, phrases or provisions or their application to any other person or circumstance, and to this end, each and every section, sentence, clause, phrase, or provision of this rule is hereby declared severable.

W. Va. Code R. § 142-18-2 Exemption from the West Virginia Antitrust Act for Regulated Businesses

Conduct of a regulated business shall be exempt from the application of the West Virginia Antitrust Act upon a showing of both the following:

2.1. There must be a clearly articulated and affirmatively expressed legislative policy to displace competition; and

2.2. The state agencies charged with regulating the business must actively supervise the regulated business with respect to the conduct in question.

142CSR18

Series 19 Proposed Legislative Rule Pertaining To Obtaining Assistance Of Public Officials In Investigations And The Commencement Of Proceedings To Compel

W. Va. Code R. § 142-19-1 General

1.1. Scope. -- This rule shall apply to any investigation being conducted by the Attorney General under W. Va. Code ''47-18-6, 7.

1.2. Authority. -- W. Va. Code '47-18-20 (1978).

1.3. Filing Date. -- April 9, 1991.

1.4. Effective Date. -- April 9, 1991.

1.5. Purpose. -- The purpose of this rule is to establish the procedure which the Attorney General may use to require public officials to render assistance to the Attorney General in an antitrust investigation as required by W. Va. Code '47-18-21.

1.6. Construction. -- This rule shall be liberally construed to effectuate the beneficial purposes of the West Virginia Antitrust Act.

1.7. Severability. -- If, for any reason, any section, sentence, clause, phrase, or provision of this rule or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect other sections, sentences, clauses, phrases, or provisions or their application to any other person or circumstance, and to this end, each and every section, sentence, clause, phrase, or provision of this rule is hereby declared severable.

W. Va. Code R. § 142-19-2 Proceedings to Enforce Compliance by Public Officials and Employees in Antitrust Investigations

If any person contemplated by W. Va. Code '47-18-21 fails to render and furnish to the Attorney General, his deputy, or other designated representative, when so requested, any and all information and assistance in such person's possession or within such person's power, the Attorney General may apply to the circuit court where such person resides or is employed for an order compelling compliance.

W. Va. Code R. § 142-19-3 Priority in Actions Brought by the Attorney General to Compel Compliance with Subpoenas or Other Investigative Requests

If any person fails to comply with a subpoena or request for information made by the Attorney General, his deputy, or other designated representative, any application made by the Attorney General to the circuit court for an order requiring compliance shall be given expedited hearing by that court.

142CSR19

Series 22 Legislative Rule Pertaining To The WV Consumer Goods Rental Protection Act

W. Va. Code R. § 142-22-1 General

1.1. Scope. -- This Rule relates to the regulation of rent-to- own agreements under the West Virginia Consumer Goods Rental Protection Act, W. Va. Code '46A-1-101 et seq. and consumer credit sales under the West Virginia Consumer Credit and Protection Act, W. Va. Code '46B-1-1 et seq.

1.2. Authority. -- W. Va. Code ''46A-6-103, 46A-7-102(e), and 46B-3-10.

1.3. Filing Date. -- April 8, 1994.

1.4. Effective date. -- May 9, 1994.

1.5. Penalties. -- Except as otherwise indicated, a violation of this rule constitutes a violation of the West Virginia Consumer Goods Rental Protection Act, W. Va. Code '46B-1-1 et seq.

1.6. Construction.

1.6.1. This rule shall be liberally construed to protect consumers pursuant to the West Virginia Consumer Goods Rental Protection Act W. Va. Code '46B-1-1 et seq. and the West Virginia Consumer Credit and Protection Act, W. Va. Code '46A-1-1 et seq.

1.6.2. The definition of "rent-to-own agreement" in the West Virginia Consumer Goods Rental Protection Act [46B-1-5(17)] and the definition of "consumer credit sale" in the West Virginia Consumer Credit and Protection Act [46A-1-102(13)] shall be construed so that every transaction is either a "consumer credit sale" or a "rent-to-own agreement" if the subject matter of the transaction is personal property which is to be used for personal, family or household purposes, and if a natural person who is not in the business of selling or otherwise dealing with such goods is acquiring rights to ownership of the goods by paying over time, and if such natural persons has the right to use or possession of the property before all payments are made.

1.7. Severability. -- If, for any reason, any section, subsection, sentence, clause, phrase, or provision of this rule or the application of this rule to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect other sections, subsections, sentences, clauses, phrases, or provisions or its application to any other person or circumstance, and to this end each and every section, subsection, sentence, clauses, phrase, or provision of this rule is hereby declared severable.

W. Va. Code R. § 142-22-2 Definitions

2.1. "Consumer" -- To be a consumer for the purposes of the definition of "consumer" in the West Virginia Consumer Goods Rental Protection Act, W. Va. Code '46B-1-5(2), the consumer does not have to have entered into a rent-to-own agreement.

2.2. "Financial Organization" -- The term "financial organization" in the West Virginia Consumer Goods Rental Protection Act, W. Va. Code '46B-1-5(8), is limited to banks or savings and loan associations.

2.3. "Market area" means the geographic are around the dealer's place of business at which the dealer enters into rent-to- own agreements with consumers from which consumers usually travel for the purpose of doing business with a dealer or other retailer of consumer goods and is presumed to include the county in which the dealer is located and any contiguous counties.

2.4. "Price" -- The term "price" in the disclosure provisions of the West Virginia Consumer Goods Rental Protection Act, W. Va. Code '46B-3-7(c)(4) means the amount of the periodic payment.

2.5. "Increased Periodic Payments" -- The prohibition in the West Virginia Consumer Goods Rental Protection Act against charging a fee other than a fee specifically allowed by the code at the time ownership of the goods passes to the consumer W. Va. Code '46B-3-8(2) means that a rent-to-own transaction is prohibited from having one or more periodic payments either at the end of the transaction or at any time after the first regular periodic payment which is larger than any other periodic payment.

2.6. "Limitation on Re-Signed Agreement" -- The limitation on the total of payments in any rent-to-own transaction in the West Virginia Consumer Goods Rental Protection Act, W. Va. Code '46B-3-9(d) means that the total of payments of a rent-to-own agreement between the same consumer, or one of the same consumers, and the same dealer, or the dealer's successor, for the same goods as in a previous agreement shall not be greater than A) The unpaid total of payments for the previous transaction; plus B) Any other charges due as lawfully provided by the previous agreement and unpaid; plus C) The amount of one additional periodic payment as provided in the previous agreement.

2.7. "Retailer" -- The term "retailer" means a person or firm in the business of making substantial bona fide sales of goods to consumers for cash, check, or other legal tender, or for which the purchaser uses a credit card of a firm which is not a person related to the retailer and which is not an individual who is a person related to the retailer: Provided, That a person or firm is not a "retailer" if the person or firm is a person related to a dealer or an individual related to a person related to a dealer as the term "person related to" is defined in W. Va. Code '46B-1-5(13).

W. Va. Code R. § 142-22-3 Formula or Method for Ascertaining Retail Value

3.1. General. -- Retail value does not include any applicable sale, use, privilege, excise or documentary stamp taxes payable upon the transfer of the goods.

3.2. "Retail value" may be established by any of the following methods; provided, however, the sale, the manufacturer's charge, the publication of the catalogue, the publication of values, the advertisement or the other evidence of value relied upon must not have occurred more than one year prior to the first use of the retail value for a particular good.

3.2.1. New and Used Goods; Actual Sales -- The retail value of new and used goods may be established as the price at which goods of substantially similar quality and quantity and substantially similar features changed hands in a bona fide retail sale between one or more willing retailers and willing buyers in the normal course of business of the seller. The proof may come from only one retailer, but the goods must be sold to more than one buyer. The seller or sellers, and the buyer or buyers, must not be a person related to a dealer or to an individual who is related to a person related to a dealer. The transaction must take place in the same market area in which goods to which the retail value is assigned are marketed. The buyer must have paid with cash, check, other legal tender or a credit card of a firm which is not a person related to the retailer and which is not an individual who is a person related to the retailer: Provided, that sales made by a buyer who used a credit card of a firm that is related to the retailer may be used if the seller is one approved by the attorney general as a seller who makes substantial sales for cash, check or other legal tender or who makes substantial sales in which the purchaser uses a credit card of a firm which is not a person related to the retailer and which is not an individual who is a person related to the retailer.

a. Any dealer may apply to the attorney general for approval of the use of sales by a retailer using a credit card of a person or firm related to the retailer. The attorney general may require reasonable data from the applicant with regard to a request for approval. The attorney general must act upon the request within a reasonable time in light of the data supplied by the applicant, the availability and difficulty in obtaining data, and the requested applicability of the use of the sales. An applicant may request a hearing on the attorney general's initial denial of the application. The request for hearing shall be a contested case for the purposes of chapter 29A of the West Virginia Code.

3.2.2. New Goods; Mark Up -- The retail value of new goods may be established by multiplying the supplier's charge, including freight, to the dealer by the following percentages and adding that amount to the supplier's charge:

For kitchen and major appliances: 56% For electronics: 56% For furniture: 67% For jewelry: 82% For other household goods: 67% a. In order to use this method rebates, discounts, incentives, or other value received from the manufacturer by the dealer must be deducted from the supplier's charge.

b. The dealer's supplier's cost must be determined using the cost from the supplier of the goods which is not a person related to a dealer or an individual who is related to a person related to a dealer, as the term "person related to" is defined in the West Virginia Consumer Goods Rental Protection Act.

3.2.3. New Goods; Catalogues -- The retail value of goods may be established by the use of a catalogue of a retailer who is not a person related to a dealer or an individual who is a person related to a dealer, as the term "person related to" is defined by the West Virginia Consumer Goods Rental Protection Act, W. Va. Code '46B-1-5(13) retailer. However, the catalogue may only be used if the seller's catalogues are approved by the attorney general as a seller who makes substantial sales for case, check, or other legal tender or who makes substantial sales in which the purchaser uses a credit card of a firm which is not a person related to a dealer and which is not an individual who is a person related to a dealer.

a. Any dealer may apply to the attorney general for approval of a catalogue for use by that dealer. The attorney general may require reasonable data from the applicant with regard to a request for approval. The attorney general must act upon request within a reasonable time in light of the data supplied by the applicant, the availability and difficulty in obtaining data, and the requested applicability of use of the seller catalogue. An applicant may request a hearing on the attorney general's initial denial of the application. The request for hearing shall be a contested case for the purposes of chapter 29A of the West Virginia Code.

3.2.4. New or Used Goods; Advertised Price. The retail value of new or used goods may be established by the posted or advertised price of a retailer in the same market area for the same goods or goods of like type, features, quality and quantity.

3.2.5. Used Goods; Book Value -- The retail value of used goods may be established by the use of publications which are generally distributed and used and generally relied upon by persons and organizations other than rent-to-own dealers as stating fair market value.

3.2.6. Used Goods; Depreciation -- The retail value of used goods may be established by using straight line depreciation of the goods over eighteen months of actual rental based on a new retail value established as allowed by this rule or the West Virginia Consumer Goods Rental Protection Act, W. Va. Code '46B-1- 1 et seq.

3.3. Limitations --

3.3.1. Used goods shall not have a retail value greater than the retail value assigned to that item which the item was offered as new.

3.3.2. "List Price" or "Manufacturer's Suggested Retail" may not be used to determine retail value.

3.4. Record Retention -- A dealer shall keep sufficient records to document the retail value of any good. If the actual sales method is used, records kept shall be the records of sales gathered by the dealer and any surveys or summaries made by the dealer. If the mark up method is used, the dealer shall maintain the supplier's invoice or other supplier's records of the price to the dealer of the goods including rebates, discounts, incentives, or other value received by the supplier from the dealer. If the catalogue method is used, the catalogues shall be kept. If the book value valuation method is used, the publication used must be kept. If the depreciation valuation method is used, the valuation calculation must be kept together with the records used for the valuation of the new retail value. If the advertising method is used, then the retailer's actual advertisement must be kept. If another method is used, then the dealer must keep records made at the time the valuation was made, and if the dealer relied upon records which were not the dealer's, those records must be kept. All records shall be retained for the period of time any good is owned by the dealer whether or not the good is the subject of a rental agreement. In addition to any other powers of the attorney general and any other duties of dealers provided by law, the attorney general may make reasonable requests for retail value records of a dealer or dealers to survey or investigate retail value pricing by dealers and any dealer shall respond to such a request within thirty days.

3.5. Disapproval of Methods. The methods set out in 3.2 may be used until the attorney general, after a contested case pursuant to Chapter 29A of the West Virginia Code or other appropriate judicial determination, disapproves this method because of disparity of the results of one of the aforesaid methods for determining retail value as compared to retail value as established by the actual sales method in 3.2.1.

W. Va. Code R. § 142-22-4 Disclosures

4.1. General -- All disclosures required under the West Virginia Consumer Goods Rental Protection Act shall be clearly communicated and conspicuously placed so as to be reasonably understandable and, if in writing, legible.

4.2. Rent-to-Own Agreements.

4.2.1. Every rent to own agreement must disclose the "retail value", the "rent-to-own charge", the "rental period", the "number of payments", the "Periodic" or "Weekly" or "Monthly" payment amount, the "total of all payments", and whether the goods are "new", "used" or "previously rented".

4.2.2. The disclosures set out in the section 4.2.1 must be made on every rent-to-own agreement before it is signed by the consumer. The disclosures may be made within sentences or phrases as long as the phrases or sentences are grouped together without intervening phrases or sentences. The disclosures must be on the same page and the same side of the page that the consumer signs. The terms labeling the disclosures must be explained. The disclosures must be grouped together. The terms labeling the disclosures must immediately precede or follow the disclosures being made. If the disclosures are not made within the sentences or phrases explaining the terms labeling the disclosures, the explanations may be made elsewhere though they must be grouped together without intervening information on the same side of the page signed by the consumer.

4.2.3. A separate disclosure shall be required for each good or item which is the subject of a rent to own agreement. When multiple goods or items are the subject of one rent-to-own agreement the disclosure made in the body of this agreement may be an aggregate of the values for all goods covered, PROVIDED that the individual price tag disclosure and each individual item (or a copy) be attached to and become a part of the rent-to-own agreement.

4.2.4. The disclosure and the terms labeling in the disclosures must be in type that is bolder and larger than the surrounding type and 90% of the remainder of the printing in the contract. If the disclosures are handwritten, they must be printed and must be larger and no less dark than the terms labeling the disclosures.

4.2.5. The disclosures must be labeled with the exact terms used in subsection 4.2.1 except:

a. The term "Periodic" does not have to be used to label the disclosure of the periodic payment if the terms "WEEKLY", "BI-WEEKLY", "SEMI-MONTHLY", or "MONTHLY" are used instead of "Periodic".

b. The rental period disclosure does not have to be separately labeled if "WEEKLY", "BI-WEEKLY", "SEMI-MONTHLY", or "MONTHLY" are used to label the disclosure of the payment amount.

4.3. Display Label.

4.3.1. Every item displayed to a potential rent-to- own customer by a dealer must have a label attached to it or posted on top of the item which must disclose the "retail value", the "rent-to-own charge", the "rental period", the "number of payments", the "Periodic" or "Weekly" or "Monthly" payment amount, the "total of all payments", and whether the goods are "new", "used" or "previously rented". No disclosure or label of any disclosure may be less than 3/4 the size of any of the other disclosures. The disclosures must be grouped together. The terms labeling the disclosures must immediately precede or follow the disclosures being made.

4.3.2. The disclosures must be labeled with the exact terms used in subsection 4.2 except:

a. The term "Periodic" does not have to be used if the terms "WEEKLY", "BI-WEEKLY", "SEMI-MONTHLY", or "MONTHLY" are used instead of "Periodic" in disclosing the periodic payment amount.

b. The rental period disclosure does not have to be separately labeled if the terms "WEEKLY", "BI-WEEKLY", "SEMI-MONTHLY", or "MONTHLY" are used to label the disclosure of the payment amount.

4.4. Printed advertisements.

4.4.1. Any printed advertisement which communicates a periodic payment amount must also disclose the "retail value", the "rent-to-own charge", the "rental period", the "number of payments", the "total of all payments", and whether the goods are "new", "used" or "previously rented". No disclosure can have type smaller than the capital letters in six point type. No disclosure can be less than one sixth the size of any of the other disclosures. The disclosures must be grouped together. The terms labelling the disclosures must immediately precede or follow the disclosure being made.

4.4.2. The disclosures must be labeled with the exact terms used in subsection 4.4.1 except:

a. The term "Periodic" does not have to be used if the terms "WEEKLY", "BI-WEEKLY", "SEMI-MONTHLY", or "MONTHLY" are used instead of "Periodic" in disclosing the periodic payment amount.

b. The rental period disclosure does not have to be separately labeled if the terms "WEEKLY", "BI-WEEKLY", "SEMI- MONTHLY", or "MONTHLY" are used to label the disclosure of the payment amount.

4.5. Radio and Television -- Radio and television advertisements which communicate a periodic payment amount shall also disclose all of the other disclosures required to be on the price tag except the rent-to-own charge. Each disclosure must be labeled or described using the terms for the disclosures which must be on the price tag. Television advertisements may contain only printed disclosures if conspicuously displayed for a reasonable period of time which would allow a person of average reading ability to read and comprehend the disclosures.

4.6. Telephone communications --

4.6.1. A dealer shall make all disclosures required by W. Va. Code '46B-3-7(b) in any "telephone communication with a potential customer."

4.6.2. For purposes of this rule, a "telephone communication with a potential customer" means a telephone conversation:

a. Initiated by the dealer for the purpose of soliciting the consumer to enter into a rent-to-own transaction with the dealer during which a periodic payment amount is communicated;

b. Initiated by the consumer for the purpose of inquiring about a rent-to-own transaction during which a periodic payment amount is communicated. A dealer's obligation to make the disclosures required under this subsection is considered satisfied, if, after the dealer offers to provide or attempts to provide the disclosures, the consumer affirmatively states that he or she does not wish to hear the disclosures; provided, however, that if the consumer subsequently requests the disclosures, the dealer shall provide them.

W. Va. Code R. § 142-22-5 Termination Notice

5.1. A dealer's notice to terminate a rent-to-own agreement shall be presumed to satisfy the requirements of the statute if it is in substantial compliance with the following format and language:

NOTICE OF TERMINATION AND

NOTICE OF RIGHT TO REINSTATE

You have failed to make your payment(s) due on ______. Your rent-to-own agreement will terminate seven days from your receipt of this notice. You have failed to make your payment(s) in the total amount of $.

A late charge of $_______ has been added to the amount you owe under your rent-to-own agreement.

You may voluntarily surrender possession of the goods rented under your rent-to-own agreement by making them available to the dealer at the place where the goods are located.

NOTICE OF RIGHT TO

"REINSTATEMENT" OF YOUR RIGHT

TO OBTAIN OWNERSHIP OF GOODS

You have been using item(s) which you got from a rent-to-own dealer. The rent-to-own agreement gave you the right to own the item(s) if you paid all of the periodic payments. Now you may have returned the item(s) to the dealer (or the dealer may have picked them up or repossessed them from you), or you may just be behind on the payment and the dealer is seeking payment or return of the goods.

You may have the right to "reinstate" the agreement even though the dealer has the item(s) back. This means you can pick up making the payments where you left off. The dealer will return possession of the item(s) to you. (If the dealer has already rented the item(s) you had to someone else, the dealer must give you goods that are the same or better than what you had before.) And, you will have the same right to eventually own the item(s), if you finish the terms of the agreement, that you had before.

You have sixty (60) days form the last day of the last rental period for which you made a payment (ninety (90) days if you have paid forty percent (40%) or more of the payments) to go to the dealer and "reinstate" the agreement. If the dealer has had to repossess or has tried to repossess the goods two times in the past, the dealer does not have to let you "reinstate" the agreement.

If you want to "reinstate" the agreement and obtain ownership of the goods, you only have to go to the dealer and do the following:

1. Pay the dealer any payments that have come due which you have not paid, but only if those payments are due for periods of time when you actually had the item(s) in your possession;

2. Pay the dealer any other fees provided in the written agreement which have become due, but have not been paid; and 3) Pay the dealer a reinstatement fee of not more than five dollars ($5.00) if that fee is in the written agreement and if the dealer has possession of the item(s).

5.2. A dealer's notice to terminate will be effective for purposes of the seven-day notice period upon actual receipt by the consumer. However, the seven-day notice period is to be calculated exclusive of the day of its receipt. The burden of establishing actual receipt is on the dealer, PROVIDED that notice made by regular mail properly addressed and mailed to the last known address of the consumer shall be presumed to have been received by the consumer, and to have been received on the third day following its mailing.

W. Va. Code R. § 142-22-6 Transfer of Warranties

6.1. At such time as maintenance of the goods becomes the responsibility of the consumer through a transfer of ownership or otherwise, the dealer shall advise the consumer of any manufacturer's or supplier's warranty that may apply to the goods and any details regarding the warranty and the transfer of the warranty.

6.2. A dealer may comply with subsection 6.1 of this section by:

6.2.1. establishing that the consumer has a copy of the manufacturer's warranties;

6.2.2. providing consumer with a written notice that any remaining manufacturer's warranties are transferred to the consumer, if permitted by the terms of the warranties;

6.2.3. providing the date(s) on which the warranties commenced; and

6.2.4. offering to answer any questions the consumer may have concerning the warranties.

142CSR22

Series NA Travel Rules

W. Va. Code R. § 142-NA Travel Rules

STATE OF WEST VIRGINIA

MONTAM DESPER LING

STATE OF WEST VIRGINIA

OFFICE OF THE ATTORNEY GENERAL

CHARLESTON 25305

DARRELL V. McGRAW, JR.

ATTORNEY GENERAL

October 13, 2010 (304) 558-2021 FAX: (304) 558-0140 The Honorable Glen B. Gainer III C .. SECRETARY 2010 OCT FILEL West Virginia State Auditor OF PM State Capitol, Room W-100 Charleston, WV 25305 STATE 3:52 The Honorable Natalie E. Tennant West Virginia Secretary of State State Capitol, Suite 157-K Charleston, WV 25305 Dear Auditor Gainer and Secretary Tennant:

Please accept the filing of the attached travel regulations as promulgated by the Attorney General pursuant to West Virginia Code § 12-3-11. The effective date of these modified regulations is November 1, 2010.

Very truly yours, Inversa dude FRANCES A. HUGHES CHIEF DEPUTY ATTORNEY GENERAL FAH/jy Enclosure FILES ATTORNEY GENERAL'S OFFICE TRAVEL REGULATIONS Effective November 1, 2010 2010 OCT 13 PM 3: 53

Section I - General:

SECRETARY CF STATE

Chapter 12, Article 3, Section 11, of the Code of West Virginia, as amended, provides that the State Attorney General shall promulgate rules and regulations concerning out-of-state travel for his office. In accordance with the statute, I, Darrell V. McGraw, Jr., Attorney General of West Virginia, do hereby promulgate the following rules and regulations governing travel for employees in this office. All previous travel regulations, relating to in-state and out-of-state travel by employees of this office, are hereby revoked.

Section II - In-State Travel:

In-state travel costs will be reimbursed only for travel necessary for the proper conduct of the State's business.

Section III - Filing Claims for Reimbursement after Returning from In-State Trips:

An actual itemized expense account must be completed and submitted, along with travel, hotel, telephone, parking and other necessary and reasonable expense receipts.

Only the original receipts or certified copies will be acceptable.

(b)

Daily allowances for in-state travel shall be subject to:

(1)

Meals: Reimbursement for the actual cost of meals incurred while absent from official stations is limited to the maximum of the GSA rate for Charleston, West Virginia, which includes gratuities. First and last day travel shall be at 75% of the GSA rate. Partial days travel must exceed twelve hours and will be reimbursed at 75% of the GSA rate. Reimbursement for alcoholic beverages is excluded.

(2)

Transportation: Reimbursement will be made for the actual cost of bus, rail or air travel. The mileage allowance for use of privately-owned vehicles (POV) engaged in State business will be the GSA rate for POVs plus tolls, parking and garage fees, with receipts, when applicable.

(3)

Lodging: Employees traveling on State business will be reimbursed in the amount equal to their actual hotel bills for lodging. No reimbursement will be made for hotel charges for radio, movies, television or laundry. An itemized receipt for the amount paid for the hotel room must be submitted with the expense account.

(4)

Registration Fees: Registration fees at meetings or conferences must be supported by a receipt. Registration fees may be directly billed for payment in advance.

(5)

Tips and Gratuities: Tips and gratuities are included in per diem rates for meals. A $5.00 per day incidental shall be allowed for full-day travel and first and last day of travel.

(6)

Baggage: Necessary charges for additional baggage transportation charges shall be reimbursed, as shall actual costs incurred in the transfer and storage of luggage.

Section IV - Out-of-State Travel:

Out-of-state travel costs will be reimbursed only for travel necessary for the proper conduct of the State's business.

Section V - Filing Claims for Reimbursement after Returning from Out-of-State Trips:

An actual itemized expense account must be completed and submitted, along with travel, hotel, telephone, parking and other necessary and reasonable expense receipts.

Only the original receipts or certified copies will be acceptable.

(b)

Daily allowances for out-of-state travel shall be subject to:

(1)

Meals: Reimbursement for the actual cost of meals incurred while absent from official stations is limited to the per diem rate for that zip code. First and last day travel will be at 75% of the per diem rate. Reimbursement for alcoholic beverages is excluded.

(2)

Transportation: Reimbursement will be made for the actual cost of bus, rail or air travel. The mileage allowance for use of privately-owned vehicles (POVs) engaged in State business is set at the GSA rate for POVs, plus tolls, parking and garage fees, when applicable.

(3)

Lodging: Employees traveling on State business will be reimbursed in the amount equal to their actual hotel bills for lodging. No reimbursement will be made for hotel charges for radio, movies, television or laundry. An itemized receipt for the amount paid for the hotel room must be submitted with the expense account.

(4)

Registration Fees: Registration fees at meetings or conferences must be supported by a receipt. Registration fees may be directly billed for payment in advance.

(5)

Tips and Gratuities: Tips and gratuities are included in per diem rates for meals. A $5.00 per day incidental shall be allowed for full-day travel and first and last day of travel.

(6)

Baggage: Necessary charges for additional baggage transportation charges shall be reimbursed, as shall actual costs incurred in the transfer and storage of luggage.

Section VI - Miscellaneous:

Expenses for personal service such as laundry, valet service, insurance, etc., are not allowable.

Section VII - Companions Accompanying Employees on Official In-state or Out-of-state Business:

When companions accompany employees on in-state or out-of-state official business which involves overnight stays, the employee shall be subject to the following regulations and limitations:

(1)

The Office of the Attorney General will reimburse the employee only for the cost of the employee's lodging expense.

(2)

The employee is responsible for meals, travel and other miscellaneous expenses of the companion.

(3)

When companions accompany employees on such trips, it is the responsibility of the employee to provide accident insurance coverage; the Office of the Attorney General shall in no way be liable.

The Attorney General reserves the right to revoke, suspend, rescind or amend any rules or regulations herein set forth.