§ 43.11. Sanctions for violations by issuing agents.

 (a)  Schedule. After providing an opportunity for a hearing, the Department may impose suspensions or sanctions on an issuing agent according to the following schedule of violations by the agent, when the Department finds upon sufficient evidence that:

 (b)  Second and subsequent violations. Second and subsequent violations will be determined on the basis of previous violations of the same nature committed within a 3 year period. If a third or subsequent violation occurs within 3 years of the last previous violation, it will be deemed a third or subsequent violation regardless of when other previous violations occurred.

 (c)  Multiple violations. In the case of multiple violations considered at one time, the Department may impose separate sanctions for each violation under the schedule in subsection (a). The Department may direct that a suspension or revocation imposed be served concurrently or consecutively.

 (d)  Suspension authority reserved. The description of grounds for suspension will not be deemed to limit the authority of the Department to control the issuance of temporary registration cards and plates as granted by 75 Pa.C.S. § §  1310 and 1331 (relating to temporary registration cards; and issuance of registration plates). The Department may suspend an issuing agent for offenses not described in subsection (a), such as any use of temporary registration plates or official documents, or conduct on the part of the issuing agent, that does not conform to the law of the Commonwealth. Sanctions imposed under this subsection shall be consistent with the sanctions imposed under subsection (a) according to the seriousness of the violation as evidenced by factors such as the number of persons or documents involved, the amount of money involved, and the like.

 (e)  Effective date. Suspensions shall take effect on the date ordered by the Department, but no credit may be earned toward expiration of the suspension until temporary registration cards and plates in the possession of the issuing agent are surrendered to an authorized representative of the Department.

 (f)  Conviction. An issuing agent convicted of a crime under 18 Pa.C.S. or the penal law of the United States which involves moral turpitude or which reflects adversely on the issuing agent’s business integrity or responsibility, shall be subject to revocation of issuing agent privileges.

 (g)  Revocation. Upon revocation of a manufacturer’s, dealer’s or full agent’s certificate of authorization, the manufacturer, dealer or full agent shall be debarred from re-applying for a new certificate of authorization for 3 years. The manufacturer, dealer or full agent shall make arrangements with the Department to surrender the certificate of authorization and the registration cards and plates in his possession to an authorized representative of the Department.

 (h)  Relevant mitigating events. For a violation of subsection (a) Category II (5), second, third or subsequent offense, the Department will consider the following relevant mitigating events that serve to exonerate the agent of the offense or to reduce the monetary penalty that may be imposed. The agent has the burden of establishing the relevant mitigating event and that the relevant mitigating event was the cause of the violation.

   (1)  Exoneration. In determining whether the relevant mitigating events serve to exonerate the agent of the offense, the Department will consider evidence offered by the agent pertaining to the following:

     (i)   Whether the failure to timely submit, as prescribed by §  43.5(f)(1), the applications, taxes or fees was the result of an Act of God, such as fire, flood or other natural disaster.

     (ii)   Whether the failure to timely submit, as prescribed by §  43.5(f)(1), the applications, taxes or fees, was the result of criminal or fraudulent action by an employe or licensed messenger of which the agent was not aware and could not have prevented and that the agent had in place customary business practices to effectuate the timely submission of taxes, fees and title applications to the Department.

     (iii)   Whether the failure to timely submit, as prescribed by §  43.5(f)(1), the applications, taxes or fees, was the result of a lienholder’s failure to immediately forward the titles to the owner, as prescribed by 75 Pa.C.S. §  1135(a)(1) (relating to satisfaction of security interest) and, in this case, whether the lienholder received prompt repayment of the debt from the vehicle owner or licensed dealer and immediately released its liens within 3-business days.

     (iv)   Whether the agent would have been exonerated of prior sanctions that were issued against the agent within the 3 years prior to November 28, 1998, had the Departmental regulations that were effective, November 28, 1998, been in effect.

     (v)   Whether the failure to timely submit the applications, as prescribed by §  43.5(f)(1), was the result of criminal, fraudulent or negligent action by an authorized messenger of the Department. This subparagraph does not apply when the same person controls the agent and the messenger. The agent has the burden of proving that it submitted the documents, taxes and fees to the authorized messenger within 15 days of the date of purchase of the vehicle, transfer of a registration or issuance of a temporary registration plate or card, whichever occurred first.

   (2)  Reduction in monetary penalty. In determining whether the events serve to reduce the monetary penalty that the Department may impose, but which will not exonerate the agent of the offense, the Department will consider evidence offered by the agent pertaining to the following:

     (i)   Whether subsequent to the applicable notice of hearing issued by the Department, the Department’s records reflect that the agent has remedied the event which was the cause of the untimely submissions and that no additional late submissions have occurred.

     (ii)   Whether the applications, taxes or fees were submitted by more than 20 but less than 40 days after the date of purchase of the vehicle, if no consumer or vehicle purchaser was harmed by the agent’s failure to timely submit, as prescribed by §  43.5(f)(1), the applications, taxes or fees and that the agent had in place customary business practices to effectuate the timely submission of taxes, fees and title applications to the Department. Failure of the consumer or vehicle purchaser to receive the annual registration documents prior to expiration of the temporary registration constitutes harm.

   (3)  Preclusion from mitigation. If the Department discovers that the agent, or an employe of the agent, altered the date of purchase of a vehicle upon an application, the Department will be precluded from exonerating the agent of the offense or reducing the monetary penalty and will impose the sanction prescribed by subsection (a).

     (i)   Dual violations. If an agent, which is also a dealer, has been sanctioned with a monetary penalty as a dealer under 75 Pa.C.S. §  1374(d) (relating to suspension or revocation of vehicle business registration plates) for a violation that involves the same violation for which a monetary penalty may be imposed under this chapter, only the monetary penalty prescribed in 75 Pa.C.S. §  1374(d) will be imposed upon the agent, which is also a dealer, for the violations that constitute offenses of both. The offenses will be noted upon the record for both this chapter and Chapter 53 (relating to manufacturers, dealers and miscellaneous motor vehicle businesses registration plates).

 (j)  Suspension without hearing. The Department will suspend an issuing agent without a hearing when the agent refuses to allow inspection of records in accordance with §  43.7(d).

   The provisions of this §  43.11 adopted September 2, 1977, effective September 3, 1977, 7 Pa.B. 2561; amended June 2, 1978, effective June 3, 1978, 8 Pa.B. 1533; readopted January 5, 1990, effective immediately to November 17, 1989, 20 Pa.B. 21; amended July 9, 1993, effective July 10, 1993, 23 Pa.B. 3347; corrected October 21, 1994, effective January 1, 1994, 24 Pa.B. 5314; amended November 27, 1998, effective November 28, 1998, 28 Pa.B. 5872. Immediately preceding text appears at serial pages (232797) to (232802) and (240813) to (240815).

   Delivery of Documents

   Where an irreconcilable conflict existed between the prescribed number of days for delivery of documents under subsection (a)(4) and 75 Pa.C.S. §  1103.1(d), the conflict did not invalidate the suspension provisions of the statute. Department of Transportation v. Colonial Nissan, 691 A.2d 1005 (Pa. Cmwlth. 1997).

   Due Process

   It is not a violation of due process for the Department to issue a warning of a violation without the opportunity for notice or a hearing as long as a suspension or sanction is not imposed. Ernest Sunday Chrysler Plymouth, Inc. v. Department of Transportation, 558 A.2d 921 (Pa. Cmwlth. 1989).

   Hearings

   The Department may consider multiple violations of this section and may issue separate sanctions for each offense in one hearing. One is not entitled to a hearing for each offense. Abats Auto Tags v. Department of Transportation, 627 A.2d 265, 267 (Pa. Cmwlth. 1993); appeal denied 649 A.2d 676 (Pa. 1994).

   Rights at Hearings

   Sections 501—508 and 701—704 of 2 Pa.C.S. do not apply to Departmental hearings; therefore, petitioner was not entitled to be informed of his right to representation by counsel or to have a steno graphic record kept or a record of the hearing with findings of fact. Ernest Sunday Chrysler Plymouth, Inc. v. Department of Transportation, 558 A.2d 921 (Pa. Cmwlth. 1989); appeal denied 575 A.2d 118 (Pa. 1990).

   Amendments to §  43.11(a)(4), as published on January 1, 1994, were null and void, where Department of Transportation proceeded with adoption of those amendments under section 204 of the Commonwealth Documents Law, expressly stating that it was merely readopting § §  43.1—43.13 ‘‘as they presently exist in the Pennsylvania Code pages 43-1 to 43-17,’’ and these actions ‘‘do not enlarge the scope of existing regulations’’ and where the January 1, 1994, version showed textual modifications from the earlier version, and subsequent corrective amendments made it obvious that adherence to the normal notice and comment procedures was far from ‘‘unnecessary.’’ Department of Transportation v. Colonial Nissan, 691 A.2d 1005 (Pa. Cmwlth. 1997).

   Suspensions

   Subsequent suspension of a license to issue temporary plates was properly invalidated in that no subsequent citation was issued against dealership. Department of Transportation v. Magarity Chevrolet, Inc., 576 A.2d 1159 (Pa. Cmwlth. 1990).

   Waiver

   The Court’s final order reinstating a car dealer’s registration plates and authority to issue temporary registration plate suspended for bad check violations was determined to be a final nonappealable order. The failure by the car dealer to raise any issues before the Commonwealth Court will result in the waiver of such issues. Department of Transportation v. Kosak, 639 A.2d 1252 (Pa. Cmwlth. 1994).