                                 CODE OF VIRGINIA

HEARINGS AND OTHER REMEDIES; CIVIL PENALTIES (§ 46.2-1573)

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
Chapter 40 (&#xA7; 2.2-4000 et seq.) of Title 2.2. In every case of a hearing
before the Commissioner authorized under this article based on a request or
petition of a motor vehicle 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 or actions
for which the dealer has filed the petition for a hearing or that such actions
are reasonable if required under the relevant provision.

B. The hearing process before the Commissioner under this article shall commence
within 90 days of the request for a hearing by prehearing conference between the
hearing officer and the parties in person, by telephone, or by other electronic
means designated by the Commissioner. The hearing officer will set the hearing
on a date or dates consistent with the rights of due process of the parties. 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 of Virginia within 60
days following the request for a hearing. Reasonable efforts shall be made to
ensure that a hearing officer shall have at least five years of experience as a
hearing officer in administrative hearings in the Commonwealth, shall have
telephone and email capability, and shall be an active member of the Virginia
State Bar. 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 by the Motor
Vehicle Dealer Board or any other person indicating a possible violation of any
provision of this article. The Commissioner shall issue a response to the Motor
Vehicle Dealer Board or person reporting the alleged violation and any other
party to the investigation providing an explanation of action taken under this
section and the reason for such action.

D. For purposes of any matter brought to the Commissioner under subdivisions 3,
4, 5, 6 and 7b of § 46.2-1569 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 capitalization to the franchisor&#8217;s
   standards and the adequacy of the dealer&#8217;s 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 motor vehicle
   warranties;

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

   7. Other economic and geographical factors reasonably associated with the
   proposed action; and

   8. The recommendations, if any, from a three-member panel composed of members
   of the Board who are franchised dealers not of the same line-make involved in
   the hearing and who are appointed to the panel by the Commissioner.

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 Commonwealth Transportation Fund established
pursuant to &#xA7; 33.2-1524.

F. During the hearing process, parties may obtain documents and materials by
discovery pursuant to Rules 4:9 and 4:9A of the Supreme Court of Virginia. The
parties shall exchange reports of experts, which shall meet the standard of Rule
4:1 of the Supreme Court of Virginia, at times to be established by the hearing
officer. The parties may utilize any other form of discovery provided under the
Rules of Supreme Court of Virginia if allowed by the hearing officer based on
good cause shown. For discovery permitted under the Rules of Supreme Court of
Virginia, a party may object to the discovery sought or seek to limit the
discovery sought on any grounds permitted by the Rules or applicable law.

HISTORY: 1988, c. 865, § 46.1-550.5:32; 1989, c. 727; 1992, c. 115; 1994, c.
702; 1995, cc. 767, 816; 2000, c. 106; 2001, cc. 165, 173; 2009, cc. 173, 176;
2010, cc. 284, 318; 2011, c. 650; 2015, c. 557; 2019, c. 751; 2020, cc. 1230,
1275.