CHAPTER 449

FORMERLY

HOUSE BILL NO. 615

AS AMENDED BY HOUSE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 63, TITLE 21 OF THE DELAWARE CODE RELATING TO THE SALE OF MOTOR VEHICLES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 63, Title 21, Delaware Code, by striking said chapter in its entirety and by substituting in lieu thereof the following:

"Chapter 63. Sale of Motor Vehicles.

§ 6301. Definitions.

As used in this Chapter:

(1) 'Vehicle' means motor vehicles, trailers, mobile homes, and any other device in, upon or by which any person or property is or may be transported or drawn upon a public highway, excepting devices moved by animal power, human power, off-highway vehicles, special mobile equipment, and farm equipment.

(2) 'Wholesale Dealer' means a dealer who may sell vehicles only to another dealer or licensed auto auction.

(3) 'Consignment' is when a vehicle owner enters into an agreement with a dealer for the sale of a vehicle without a transfer of ownership to the dealer.

(4) 'Dealer' or 'Motor Vehicle Dealer' includes:

(a) A person, corporation, partnership, proprietorship or any other legal entity who is in the business of buying, selling, or exchanging during any 12-month period five or more vehicles; and/or

(b) Any person, corporation, partnership, proprietorship or any other legal entity who offers to sell, sells, displays or permits the display for sale, of five or more vehicles within a twelve month period.

(5) Dealer' or 'Motor Vehicle Dealer' shall not include:

(a) A receiver, trustee, personal representative, or other person appointed by or acting under the authority of any court of competent jurisdiction;

(b) A public official who sells or disposes of vehicles in the performance of his/her official duties;

() Any financial institution chartered or authorized to do business in Delaware, including its subsidiaries or affiliates, which receives title to to a motor vehicle in the normal course of its business by reason of a lease, foreclosure, repossession, judicial sale, or voluntary conveyance or reconveyance of the motor vehicle as a result of any lease of the motor vehicle or any extension of credit secured by the motor vehicle or the enforcement of any lien on the motor vehicle;

(d) A licensed auctioneer acting on behalf of a seller, secured party or owner and when title does not pass to the auctioneer and the auction is not for the purpose of avoiding the provisions of this Chapter;

(e) An insurance company authorized to do business in Delaware that sells or disposes vehicles under a contract with its insured in the regular course of business;

(f) Either a manufacturer or distributor who sells or distributes vehicles to licensed dealers or a person employed by a manufacturer or distributor to promote the sale of the vehicles of the manufacturer or distributor, if that manufacturer, distributor, or person does not sell vehicles to retail buyers.

(6) 'Franchised Motor Vehicle Dealer' means a dealer in new vehicles that has a franchise agreement with a manufacturer or distributor of vehicles.

(7) 'Department' shall mean the Department of Public Safety, Division of Motor Vehicles.

(8) 'Division' shall mean the Division of Motor Vehicles.

(9) 'Director' shall mean the Director of the Division of Motor Vehicles or his/her authorized or delegated representative.

§ 6302. License Requirements.

(a) Department Approval: No person, corporation, partnership, proprietorship or any other legal entity shall carry on or conduct the business of buying, selling, or dealing in new or used vehicles unless issued a dealers license by the Department.

() Application: Application for a dealers license shall be made upon the form prescribed by the Department and shall contain the name and address of the applicant. When the applicant is a partnership the name and address of each partner shall appear on the application. When the application is a corporation, the names of the principal officers of the corporation, the state in which incorporated, the place or places where the business is to be conducted and such other information as may be required by the Department shall appear on the application. Every such application shall contain a certification by the applicant that the information provided is true and accurate to the best of the applicant's knowledge.

(a) Resident Requirements: The owner of a dealership must have been issued a Delaware drivers license and established residency in Delaware at least 90 days prior to the time of application. Franchised and new vehicle dealers are exempted from this requirement.

(b) Fee: No fee for a license is charged by the Department. However, all dealerships must obtain a yearly dealer business license from the Department of Finance, Division of Revenue. Wholesale dealers shall also obtain an additional wholesale license pursuant to § 6307 of this chapter. The business license(s) must be kept at the business location and be available for inspection by the Department.

§ 6303. Location Requirements; and Records.

(a) No dealers license shall be issued to any vehicle dealer unless the dealership has an established place of business, owned, rented or leased by the dealership and which:

(1) Satisfies all local zoning requirements. Zoning approval shall be submitted to the Division when the application is submitted;

(2) Has sales and office space devoted to the dealership and has adequate display space for 5 or more vehicles;

(3) Has a telephone installed in the office and listed in the business name;

(4) Has adequate liability insurance as required by 21 Del.C., Chapter 21, Section 2118;

(5) Has a sign on the premises measuring at least 24 x 36 inches which lists the dealership's approved name.

(b) The dealership office shall maintain and have adequate file cabinets to maintain records required by the Department. All dealer records regarding purchases, sales, transfers of ownership, collection of vehicle document fees, titling, registration fees, odometer disclosure statements, temporary license plates, and records of dealer registration plates assigned to the dealer shall be maintained on the premises of the licensed location. All records shall be maintained for a minimum of five years. The Director may, on written request by a dealer, permit records to be maintained at a location other than the premises of the licensed location for good cause shown.

(c) Every dealer shall have in its possession a certificate of title assigned to the dealership or other documentary evidence of the dealer's right to the possession of, and for, every motor vehicle in the dealership's possession or on the dealership premises.

(d) During business hours, the records of the dealership shall be open to inspection by Department officials, any police officer or any duly authorized investigator at the Department of Justice while discharging their official duties.

§ 6304. Expiration and Renewal of License.

Each license issued under this title shall expire at midnight on December 31st of the period for which it was issued and may be renewed upon application to the Department prior to its expiration. Dealers who have not sold a minimum of five vehicles between January 1st and December 31st of each year shall be denied license renewal. The Director of the Division of Motor Vehicles may, on written request by a dealer, permit renewal of a dealers license for dealers selling less than five vehicles for good cause shown in writing to the Department.

§ 6305. Bill of Sale.

Every motor vehicle dealer shall complete, in duplicate, a bill of sale for each sale or exchange of a motor vehicle,. The original shall be retained for a period of five years. A duplicate copy shall be delivered to the purchaser at the time of sale or exchange. The bill of sale shall be signed by both buyer and seller. A bill of sale shall include the following:

(1) The name and address of the person to whom the vehicle was sold or traded;

(2) The date of the sale or trade;

(3) The name and address of the motor vehicle dealer selling or trading the vehicle;

(4) The make, model, year, vehicle identification number and body style of the vehicle;

(5) The sale price of the vehicle;

(6) The amount of any deposit made by the buyer;

(7) A description of any Delaware titled vehicle used as a trade-in and the amount credited the buyer for the trade-in;

(8) The amount of the document fee, title fee, registration fee, or any other fee for which the buyer is responsible and the dealer has collected; each fee shall be individually listed and identified;

(9) and the amount of any balance due at settlement.

§ 6306. Consignment Vehicles-Contract.

Any motor vehicle dealer offering a vehicle for sale on consignment shall have in their possession a consignment contract for the vehicle, executed and signed by the dealer and the consignor. The consignment contract shall include the following:

(1) The complete name and address of the owner(s);

(2) The name, address, and dealer identification number of the selling dealer;

(0) A complete description of the vehicle on consignment, including the make, model, year, vehicle identification number and body style;

(1) The beginning and termination dates of the contract;

(2) The percentage or the net amount the owner is to receive, if the vehicle is sold;

(3) A disclosure of all unsatisfied liens on the vehicle and the location of the certificate of title to the vehicle.

Any dealer offering a vehicle for sale on consignment shall inform any prospective customer that the vehicle is on consignment. Dealer license plates shall not be used to demonstrate a vehicle on consignment. The owners license plate may be used if liability insurance coverage is in effect in the amount prescribed by Delaware law.

§ 6307. Wholesale Dealers.

(a) A wholesale dealer who is licensed by the Division is authorized to do the following:

(1) Buy a vehicle from another dealer, a licensed auto auction or retail seller;

(2) Sell a vehicle to, or exchange vehicles only with another dealer or through a licensed auto auction;

(3) A wholesale dealer may operate from a private residence and is not required to comply with sections 6303(a)(2), (5) of this title.

(b) A wholesale dealer may not:

(1) Sell or exchange vehicles with a retail buyer; and

(2) Buy, sell or exchange new vehicles; and

(3) Sell vehicles on consignment.

§ 6308. Auctions.

(a) Each person who conducts auctions of vehicles shall keep a record of each of the following:

(1) The name and address of the consignor or seller;

(2) The date on which the vehicle was consigned;

(3) The year, make, model and vehicle identification number of each vehicle consigned;

(4) The title number and State where the vehicle was last registered;

(5) The odometer mileage reading at the time of consignment;

(6) The name and address of the person to whom the vehicle was sold;

(7) The buyer's drivers license number and state which issued the license;

(8) The selling price; and

(9) The date of sale.

(b) During business hours, auction records shall be open for inspection by Division of Motor Vehicle officials, any police officer or any duly authorized investigator at the Department of Justice while discharging their official duties.

(c) Auction sales must be performed at the approved auction location.

(d) All records required by this section shall be maintained for five (5) years after the sale of the vehicle to which such records apply.

(e) Auctions are authorized to issue 10 day temporary license plates under the provision of Delaware Title 21, Section 2130 to allow vehicles to be removed from the auction lot. The temporary plates shall only be issued to individuals with a valid drivers license. The auction shall witness and record proof of any legally required liability insurance on a vehicle prior to the issuance of the temporary license plate.

§ 6309. Prohibited Acts,

(a) A dealer, its agent or an employee of a dealer may not permit any individual to road test a motor vehicle if they know the individual does not have a valid drivers license.

(b) A dealer or an agent or employee of a dealer may not commit any fraud in the execution of, or any material alteration of, a contract, power of attorney or other document incident to a sale or exchange of a vehicle.

(c) A dealer or an agent or employee of a dealer may not willfully fail to comply with the terms of a warranty or guarantee. A Federal Trade Commission Buyers Guide will be properly completed and displayed on all used vehicles. Buyer(s) will be provided a copy of the Guide prior to completion of the sale.

(d) A dealer or agent of a dealer must disclose to a buyer if the vehicle title has been branded 'reconstructed', 'flood damaged', 'salvage or was a 'Taxi'. The buyer(s) shall acknowledge the disclosure as described in this paragraph by signing a disclosure statement which has been approved by the Division of Motor Vehicles and is provided by the dealership. A copy of the disclosure statement shall be provided to the Delaware Division of Motor Vehicles with the title application. In the absence of any disclosure statement, the contract may be rescinded at any time by the buyer and the dealer shall provide a full and complete refund to the buyer of all purchase monies, including interest paid, plus all fees paid. Disclosure shall not prevent any person from otherwise bringing

any action under any law for a failure to disclose material information concerning the condition or prior use of any vehicle.

§ 6310. Acts of Officers, Directors, Partners, and Sales Persons.

If a licensee is a partnership or corporation, it shall be sufficient cause for the denial or suspension of a license if any officer, director, or trustee of the partnership or corporation, or any member in the case of a partnership, has committed any act or omitted any duty which would be cause for denial or suspending a license issued to him as an individual under this chapter. Each licensee shall be responsible for all acts of any of their salespersons while acting as their agent, if the licensee approved of those acts or had knowledge of those acts or other similar acts and after such knowledge retained the benefit, proceeds, profits or advantages accruing from those acts.

§ 6311 License Requirements.

(a) In the event any dealer intends to change a licensed location, the dealer shall provide the Division of Motor Vehicles advance written notice. A successful inspection of the new location shall be required prior to approval of a change of location by the dealer. All requirements of Section 6303 of this title shall be completed prior to final approval.

§ 6312. Issuance of Dealership License.

The Department, upon receiving an application for approval and when satisfied the applicant is of good character and so far as can be ascertained has complied with and will comply with, the laws of this and other states, shall approve the application. The approval shall entitle the dealer to carry on and conduct the business of a dealer during the calendar year in which approval is issued. Franchised new vehicle dealers must provide the Division a copy of the franchise agreement prior to being licensed as a new vehicle dealer.

§ 6313. Grounds for Denying Renewal of License or Suspension of License.

A license issued pursuant to this chapter may be denied, suspended or revoked for any one of the following reasons:

(1) Material misstatement or omission on the application for license.

(2) Failure to maintain an established place of business, business phone, or Division of Revenue Dealer Business License.

(3) Failure to comply subsequent to receipt from the Division of a cease and desist order; or a written warning or arrest; or failure to comply with the provisions of Title 21 and Title 30 of the Delaware Code.

(4) Conviction of the dealership of any fraudulent or criminal act in violation of Title 11 of the Delaware Code in connection with the business of selling vehicles.

§ 6314. Suspension and Hearing Notices.

(a) No license issued under this title shall be suspended, revoked or renewal thereof refused, until a written copy of the complaint made has been furnished to the licensee against whom the same is directed. The written notice of complaint shall be sent to the licensee by certified mail, return receipt requested, addressed to the last known address as shown on the license or dealership application or other record of information in possession of the Division. The written notice shall inform the licensee of the following:

(1) This Division's intention to suspend, revoke or deny renewal of the dealership license.

(2) The nature of the complaint and the law or regulation allegedly violated by the dealership.

(0) The notice shall cite the law or regulation giving the Division authority to act.

(1) The notice shall inform the dealer of its right to request a hearing to dispute the complaint. The hearing must be requested within 10 days from earlier of the dates that the dealer received the certified letter or the Division received the return receipt on the certified letter.

(2) The notice shall inform the dealer of its right to present evidence, to be represented by counsel and to appear personally or by other representative at the hearing.

(b) The Division shall inform a dealer requesting a hearing of the date, time and place the hearing shall be held. The notification shall be provided by certified mail, return receipt requested, and shall give at least 20 days prior notice to all parties involved, unless waived by the dealer. The notice shall inform the parties of the Division's obligation to reach its decision based upon the evidence received.

§ 6315. Hearings.

(a) If the Division refuses an application for a license, denies a renewal of a license or proposes the suspension or revocation of a dealers license, the Division shall provide a hearing when requested under Section 6314 of this chapter. At the hearing the licensee shall have the right to be heard personally, by counsel, or by its agent. The Director may initiate investigations, appoint a hearing officer, and subpoena witnesses. After the hearing, the Director, upon receiving a decision from the hearing officer upholding the Division's position, may suspend or revoke a dealers license, deny a renewal, or refuse to approve an application. The Director shall consider prior to any suspension, revocation, denial of renewal, or refusal to approve an application:

(1) The nature of the violation(s) and the dealer's willingness to make restitution to all parties harmed by dealership actions.

(2) The effect of the proposed action on the community.

The Director shall provide written notice to all parties involved of the decision by certified mail, return receipt requested. The decision is appealable to the Superior Court. Any appeal must be filed within 30 days of the earlier of the receipt of the decision by the dealer or the date of receipt of the return receipt by the Division.

(b) Should a dealer fail to maintain an established place of business, the Division may cancel the license without a hearing after notification of the intent to cancel has been sent by certified mail, to the dealer at the dealer's residence and business addresses, and the notices are returned undelivered or the dealer does not respond within twenty days from the date the notices were sent.

§ 6316. Return of License, Dealer Number Plates, Temporary License Plates, and Dealer Reassignment Forms.

If the Division suspends, revokes, or denies the renewal of the license of any dealer licensed under this chapter, the dealer immediately shall return the license, dealer number plates, temporary license plates and dealer reassignment forms belonging to the dealer. The Division may grant the licensee up to 30 days to dispose of vehicles belonging to the dealer.

§ 6317. Cease and Desist Orders and Injunctive Relief.

In addition to the legal remedies provided for in this chapter, the Division is authorized to issue cease and desist orders to any person, corporation, partnership,

proprietorship or other legal entity who violates this chapter. The Division is also authorized to ft le a complaint for injunctive relief with the Court of Chancery upon notice that a cease and desist order is violated. The Chancery Court is authorized to award attorney fees and costs to the Division if a preliminary or permanent injunction is granted by the court. Nothing herein shall prevent the Attorney General from seeking any other civil remedy or criminal sanction for any conduct constituting a violation of this chapter.

§ 6318. Penalties.

(a) Whoever violates any provision of this chapter shall be subject to a civil penalty of not less than $50.00 nor more than $575.00.

(b) Subsection (a) of this section shall not apply to violations for which penalties are prescribed elsewhere in this title."

Section 2. If any part of this Act is declared unconstitutional by a court of competent jurisdiction, it shall be severed and the remainder of the Act shall remain valid and constitutional.

Section 3. The provisions of this Act shall be liberally construed in order to effectively carry out the purposes of this Act and the interests of the public health, welfare, and safety of the citizens of Delaware.

Section 4. This Act shall become effective ninety (90) days after its enactment.

Section 5. Rules and regulations in effect on the date of enactment of this Act remain valid to the extent they are consistent with this Act.

Section 6. The Department shall promulgate all rules and regulations necessary to implement this Chapter. The Department shall be exempt from Subchapters III, IV, and V of Chapter 101 of Title 29 of the Delaware Code.

Approved July 14, 1998