                                 CODE OF VIRGINIA

HEARINGS AND OTHER REMEDIES; CIVIL PENALTIES (§ 46.2-1573.36)

A. In every case of a hearing before the Commissioner authorized under this
article, the Commissioner shall give reasonable notice of each hearing to all
interested parties, and the Commissioner&#8217;s decision shall be binding on
the parties, subject to the rights of judicial review and appeal as provided in
the Administrative Process Act (&#xA7; 2.2-4000 et seq.). In every case of a
hearing before the Commissioner authorized under this article based on a request
or petition of a dealer, the manufacturer, factory branch, distributor, or
distributor branch shall have the burden of proving by a preponderance of the
evidence that the manufacturer, factory branch, distributor, or distributor
branch has good cause to take the action for which the dealer has filed the
petition for a hearing or that such action is reasonable if required under the
relevant provision.

B. Hearings before the Commissioner under this article shall commence within 90
days of the request for a hearing, and the Commissioner&#8217;s decision shall
be rendered within 60 days from the receipt of the hearing officer&#8217;s
recommendation. Hearings authorized under this article shall be presided over by
a hearing officer selected from a list prepared by the Executive Secretary of
the Supreme Court. On request of the Commissioner, the Executive Secretary will
name a hearing officer from the list, selected on a rotation system administered
by the Executive Secretary. The hearing officer shall provide recommendations to
the Commissioner within 90 days of the conclusion of the hearing.

C. Notwithstanding any contrary provision of this article, the Commissioner
shall initiate investigations, conduct hearings, and determine the rights of
parties under this article whenever he is provided information indicating a
possible violation of any provision of this article.

D. For purposes of any matter brought to the Commissioner under subdivisions 3,
4, 5, 6, and 9 of § 46.2-1573.28 with respect to which the Commissioner is to
determine whether there is good cause for a proposed action or whether it would
be unreasonable under the circumstances, the Commissioner shall consider:

   1. The volume of the affected dealer&#8217;s business in the relevant market
   area;

   2. The nature and extent of the dealer&#8217;s investment in its business;

   3. The adequacy of the dealer&#8217;s service facilities, equipment, parts,
   supplies, and personnel;

   4. The effect of the proposed action on the community;

   5. The extent and quality of the dealer&#8217;s service under motorcycle
   warranties;

   6. The dealer&#8217;s performance under the terms of its franchise; and

   7. Other economic and geographical factors reasonably associated with the
   proposed action.
   				With respect to subdivision 6, any performance standard or program for
   measuring dealership performance that may have a material effect on a dealer,
   and the application of any such standard or program by a manufacturer or
   distributor, shall be fair, reasonable, and equitable and, if based upon a
   survey, shall be based upon a statistically valid sample. Upon the request of
   any dealer, a manufacturer or distributor shall disclose in writing to the
   dealer a description of how a performance standard or program is designed and
   all relevant information used in the application of the performance standard
   or program to that dealer.

E. An interested party in a hearing held pursuant to subsection A shall comply
with the effective date of compliance established by the Commissioner in his
decision in such hearing, unless a stay or extension of such date is granted by
the Commissioner or the Commissioner&#8217;s decision is under judicial review
and appeal as provided in subsection A. If, after notice to such interested
party and an opportunity to comment, the Commissioner finds an interested party
has not complied with his decision by the designated date of compliance, unless
a stay or extension of such date has been granted by the Commissioner or the
Commissioner&#8217;s decision is under judicial review and appeal, the
Commissioner may assess such interested party a civil penalty not to exceed
$1,000 per day of noncompliance. Civil penalties collected under this subsection
shall be deposited into the Highway Maintenance and Operating Fund established
pursuant to &#xA7; 33.2-1530.

HISTORY: 1996, cc. 1043, 1052, § 46.2-1993.73; 2000, c. 106; 2015, c. 615;
2020, cc. 984, 1230, 1275.