2014 Indiana Code TITLE 9. MOTOR VEHICLES ARTICLE 32. DEALER SERVICES CHAPTER 16. ADMINISTRATION AND LEGAL PROCEEDINGS
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IC 9-32-16
Chapter 16. Administration and Legal Proceedings
IC 9-32-16-1 Version a
Administration of dealer services by secretary of state
Note: This version of section effective until 7-1-2014. See also
following version of this section, effective 7-1-2014 until 1-1-2015,
and following version of this section effective 1-1-2015.
Sec. 1. (a) This chapter shall be administered by the secretary.
(b) The secretary:
(1) shall employ employees, including a director, investigators,
or attorneys, necessary for the administration of this article; and
(2) shall fix the compensation of the employees with the
approval of the budget agency.
(c) It is unlawful for the director or an officer, employee, or
designee of the secretary to use for personal benefit or the benefit of
others records or other information obtained by or filed with the
dealer services division under this article that are confidential. This
article does not authorize the director or an officer, employee, or
designee of the secretary to disclose the record or information, except
in accordance with this chapter.
(d) This article does not create or diminish a privilege or
exemption that exists at common law, by statute or rule, or otherwise.
(e) The secretary may develop and implement dealer's and vehicle
purchaser's education initiatives to inform dealers and the public
about the offer or sale of vehicles, with particular emphasis on the
prevention and detection of fraud involving vehicle sales. In
developing and implementing these initiatives, the secretary may
collaborate with public and nonprofit organizations with an interest
in consumer education. The secretary may accept a grant or donation
from a person that is not affiliated with the dealer industry or from a
nonprofit organization, regardless of whether the organization is
affiliated with the dealer industry, to develop and implement
consumer education initiatives. This subsection does not authorize
the secretary to require participation or monetary contributions of a
registrant in an education program.
(f) Fees and funds accruing from the administration of this article:
(1) described in IC 9-32-7-1(d) shall be accounted for by the
secretary and shall be deposited with the treasurer of state to be
deposited in the dealer compliance account established by
IC 9-32-7-1(a);
(2) described in IC 9-32-7-2(b) shall be accounted for by the
secretary and shall be deposited with the treasurer of state to be
deposited in the dealer enforcement account established by
IC 9-32-7-2(a);
(3) described in IC 9-29-17-14(b)(2), IC 9-29-17-14(c)(3),
IC 9-29-17-15, and IC 9-32-7-3(2) shall be accounted for by the
secretary and shall be deposited with the treasurer of state to be
deposited in the motor vehicle highway account under
IC 8-14-1;
(4) described in IC 9-32-7-3(3) shall be accounted for by the
secretary and shall be deposited with the treasurer of state to be
deposited with the state police department, and these fees and
funds are continuously appropriated to the department for its use
in enforcing odometer laws;
(5) described in IC 9-32-7-3(4) shall be accounted for by the
secretary and shall be deposited with the treasurer of state to be
deposited with the attorney general, and these fees and funds are
continuously appropriated to the attorney general for use in
enforcing odometer laws; and
(6) described in IC 9-29-1-4(a) shall be accounted for by the
secretary and shall be deposited with the treasurer of state to be
deposited in the state police building account.
Expenses incurred in the administration of this article shall be paid
from the state general fund upon appropriation being made for the
expenses in the manner provided by law for the making of those
appropriations. However, grants and donations under subsection (e),
costs of investigations, and civil penalties recovered under this
chapter shall be deposited by the treasurer of state in the dealer
enforcement account established by IC 9-32-7-2. The funds in the
dealer compliance account established by IC 9-32-7-1 must be
available, with the approval of the budget agency, to augment and
supplement the funds appropriated for the administration of this
article.
(g) In connection with the administration and enforcement of this
article, the attorney general shall render all necessary assistance to the
director upon the request of the director. To that end, the attorney
general shall employ legal and other professional services as are
necessary to adequately and fully perform the service under the
direction of the director as the demands of the division require.
Expenses incurred by the attorney general for the purposes stated
under this subsection are chargeable against and shall be paid out of
funds appropriated to the attorney general for the administration of
the attorney general's office. The attorney general may authorize the
director and the director's designee to represent the director and the
division in any proceeding involving enforcement or defense of this
article.
(h) The secretary, director, and employees of the division are not
liable in an individual capacity, except to the state, for an act done or
omitted in connection with the performance of their duties under this
article.
(i) The director and each attorney or investigator designated by the
secretary:
(1) are police officers of the state;
(2) have all the powers and duties of police officers in
conducting investigations for violations of this article, or in
serving any process, notice, or order issued by an officer,
authority, or court in connection with the enforcement of this
article; and
(3) comprise the enforcement department of the division.
The division is a criminal justice agency for purposes of
IC 5-2-4-1(3) and IC 10-13-3-6.
(j) The provisions of this article delegating and granting power to
the secretary, division, and director shall be liberally construed to the
end that:
(1) the practice or commission of fraud may be prohibited and
prevented; and
(2) disclosure of sufficient and reliable information in order to
afford reasonable opportunity for the exercise of independent
judgment of the persons involved may be assured.
(k) Copies of any statements and documents filed in the office of
the secretary and of any records of the secretary certified by the
director are admissible in any prosecution, action, suit, or proceeding
based on, arising out of, or under this article to the same effect as the
original of the statement, document, or record would be if actually
produced.
As added by P.L.92-2013, SEC.78. Amended by P.L.2-2014, SEC.49.
IC 9-32-16-1 Version b
Administration of dealer services by secretary of state
Note: This version of section effective 7-1-2014 until 1-1-2015.
See also preceding version of this section, effective until 7-1-2014,
and following version of this section, effective 1-1-2015.
Sec. 1. (a) This chapter shall be administered by the secretary.
(b) The secretary:
(1) shall employ employees, including a director, investigators,
or attorneys, necessary for the administration of this article; and
(2) shall fix the compensation of the employees with the
approval of the budget agency.
(c) It is unlawful for the director or an officer, employee, or
designee of the secretary to use for personal benefit or the benefit of
others records or other information obtained by or filed with the
dealer services division under this article that are confidential. This
article does not authorize the director or an officer, employee, or
designee of the secretary to disclose the record or information, except
in accordance with this chapter.
(d) This article does not create or diminish a privilege or
exemption that exists at common law, by statute or rule, or otherwise.
(e) The secretary may develop and implement dealer's and vehicle
purchaser's education initiatives to inform dealers and the public
about the offer or sale of vehicles, with particular emphasis on the
prevention and detection of fraud involving vehicle sales. In
developing and implementing these initiatives, the secretary may
collaborate with public and nonprofit organizations with an interest
in consumer education. The secretary may accept a grant or donation
from a person that is not affiliated with the dealer industry or from a
nonprofit organization, regardless of whether the organization is
affiliated with the dealer industry, to develop and implement
consumer education initiatives. This subsection does not authorize
the secretary to require participation or monetary contributions of a
registrant in an education program.
(f) Fees and funds accruing from the administration of this article:
(1) described in IC 9-32-7-1(d) shall be accounted for by the
secretary and shall be deposited with the treasurer of state to be
deposited in the dealer compliance account established by
IC 9-32-7-1(a);
(2) described in IC 9-32-7-2(b) shall be accounted for by the
secretary and shall be deposited with the treasurer of state to be
deposited in the dealer enforcement account established by
IC 9-32-7-2(a);
(3) described in IC 9-29-17-14(b)(2), IC 9-29-17-14(c)(3), and
IC 9-32-7-3(2) shall be accounted for by the secretary and shall
be deposited with the treasurer of state to be deposited in the
motor vehicle highway account under IC 8-14-1;
(4) described in IC 9-32-7-3(3) shall be accounted for by the
secretary and shall be deposited with the treasurer of state to be
deposited with the state police department, and these fees and
funds are continuously appropriated to the department for its use
in enforcing odometer laws;
(5) described in IC 9-32-7-3(4) shall be accounted for by the
secretary and shall be deposited with the treasurer of state to be
deposited with the attorney general, and these fees and funds are
continuously appropriated to the attorney general for use in
enforcing odometer laws; and
(6) described in IC 9-29-1-4(a) shall be accounted for by the
secretary and shall be deposited with the treasurer of state to be
deposited in the state police building account.
Expenses incurred in the administration of this article shall be paid
from the state general fund upon appropriation being made for the
expenses in the manner provided by law for the making of those
appropriations. However, grants and donations under subsection (e),
costs of investigations, and civil penalties recovered under this
chapter shall be deposited by the treasurer of state in the dealer
enforcement account established by IC 9-32-7-2. The funds in the
dealer compliance account established by IC 9-32-7-1 must be
available, with the approval of the budget agency, to augment and
supplement the funds appropriated for the administration of this
article.
(g) In connection with the administration and enforcement of this
article, the attorney general shall render all necessary assistance to the
director upon the request of the director. To that end, the attorney
general shall employ legal and other professional services as are
necessary to adequately and fully perform the service under the
direction of the director as the demands of the division require.
Expenses incurred by the attorney general for the purposes stated
under this subsection are chargeable against and shall be paid out of
funds appropriated to the attorney general for the administration of
the attorney general's office. The attorney general may authorize the
director and the director's designee to represent the director and the
division in any proceeding involving enforcement or defense of this
article.
(h) The secretary, director, and employees of the division are not
liable in an individual capacity, except to the state, for an act done or
omitted in connection with the performance of their duties under this
article.
(i) The director and each attorney or investigator designated by the
secretary:
(1) are police officers of the state;
(2) have all the powers and duties of police officers in
conducting investigations for violations of this article, or in
serving any process, notice, or order issued by an officer,
authority, or court in connection with the enforcement of this
article; and
(3) comprise the enforcement department of the division.
The division is a criminal justice agency for purposes of
IC 5-2-4-1(3) and IC 10-13-3-6.
(j) The provisions of this article delegating and granting power to
the secretary, division, and director shall be liberally construed to the
end that:
(1) the practice or commission of fraud may be prohibited and
prevented; and
(2) disclosure of sufficient and reliable information in order to
afford reasonable opportunity for the exercise of independent
judgment of the persons involved may be assured.
(k) Copies of any statements and documents filed in the office of
the secretary and of any records of the secretary certified by the
director are admissible in any prosecution, action, suit, or proceeding
based on, arising out of, or under this article to the same effect as the
original of the statement, document, or record would be if actually
produced.
As added by P.L.92-2013, SEC.78. Amended by P.L.2-2014, SEC.49;
P.L.62-2014, SEC.40.
IC 9-32-16-1 Version c
Administration of dealer services by secretary of state
Note: This version of section effective 1-1-2015. See also
preceding version of this section, effective until 7-1-2014, and
preceding version of this section, effective 7-1-2014 until 1-1-2015.
Sec. 1. (a) This chapter shall be administered by the secretary.
(b) The secretary:
(1) shall employ employees, including a director, investigators,
or attorneys, necessary for the administration of this article; and
(2) shall fix the compensation of the employees with the
approval of the budget agency.
(c) It is unlawful for the director or an officer, employee, or
designee of the secretary to use for personal benefit or the benefit of
others records or other information obtained by or filed with the
dealer services division under this article that are confidential. This
article does not authorize the director or an officer, employee, or
designee of the secretary to disclose the record or information, except
in accordance with this chapter.
(d) This article does not create or diminish a privilege or
exemption that exists at common law, by statute or rule, or otherwise.
(e) The secretary may develop and implement dealer's and vehicle
purchaser's education initiatives to inform dealers and the public
about the offer or sale of vehicles, with particular emphasis on the
prevention and detection of fraud involving vehicle sales. In
developing and implementing these initiatives, the secretary may
collaborate with public and nonprofit organizations with an interest
in consumer education. The secretary may accept a grant or donation
from a person that is not affiliated with the dealer industry or from a
nonprofit organization, regardless of whether the organization is
affiliated with the dealer industry, to develop and implement
consumer education initiatives. This subsection does not authorize
the secretary to require participation or monetary contributions of a
registrant in an education program.
(f) Fees and funds accruing from the administration of this article:
(1) described in IC 9-32-7-1(d) shall be accounted for by the
secretary and shall be deposited with the treasurer of state to be
deposited in the dealer compliance account established by
IC 9-32-7-1(a);
(2) described in IC 9-32-7-2(b) shall be accounted for by the
secretary and shall be deposited with the treasurer of state to be
deposited in the dealer enforcement account established by
IC 9-32-7-2(a);
(3) described in IC 9-29-17-14(b)(2), IC 9-29-17-14(c)(3), and
IC 9-32-7-3(2) shall be accounted for by the secretary and shall
be deposited with the treasurer of state to be deposited in the
motor vehicle highway account under IC 8-14-1;
(4) described in IC 9-32-7-3(3) shall be accounted for by the
secretary and shall be deposited with the treasurer of state to be
deposited with the state police department, and these fees and
funds are continuously appropriated to the department for its use
in enforcing odometer laws;
(5) described in IC 9-32-7-3(4) shall be accounted for by the
secretary and shall be deposited with the treasurer of state to be
deposited with the attorney general, and these fees and funds are
continuously appropriated to the attorney general for use in
enforcing odometer laws; and
(6) described in IC 9-29-1-4(a) (before its amendment January
1, 2015) shall be accounted for by the secretary and shall be
deposited with the treasurer of state to be deposited in the state
police building account.
Expenses incurred in the administration of this article shall be paid
from the state general fund upon appropriation being made for the
expenses in the manner provided by law for the making of those
appropriations. However, grants and donations under subsection (e),
costs of investigations, and civil penalties recovered under this
chapter shall be deposited by the treasurer of state in the dealer
enforcement account established by IC 9-32-7-2. The funds in the
dealer compliance account established by IC 9-32-7-1 must be
available, with the approval of the budget agency, to augment and
supplement the funds appropriated for the administration of this
article.
(g) In connection with the administration and enforcement of this
article, the attorney general shall render all necessary assistance to the
director upon the request of the director. To that end, the attorney
general shall employ legal and other professional services as are
necessary to adequately and fully perform the service under the
direction of the director as the demands of the division require.
Expenses incurred by the attorney general for the purposes stated
under this subsection are chargeable against and shall be paid out of
funds appropriated to the attorney general for the administration of
the attorney general's office. The attorney general may authorize the
director and the director's designee to represent the director and the
division in any proceeding involving enforcement or defense of this
article.
(h) The secretary, director, and employees of the division are not
liable in an individual capacity, except to the state, for an act done or
omitted in connection with the performance of their duties under this
article.
(i) The director and each attorney or investigator designated by the
secretary:
(1) are police officers of the state;
(2) have all the powers and duties of police officers in
conducting investigations for violations of this article, or in
serving any process, notice, or order issued by an officer,
authority, or court in connection with the enforcement of this
article; and
(3) comprise the enforcement department of the division.
The division is a criminal justice agency for purposes of
IC 5-2-4-1(3) and IC 10-13-3-6.
(j) The provisions of this article delegating and granting power to
the secretary, division, and director shall be liberally construed to the
end that:
(1) the practice or commission of fraud may be prohibited and
prevented; and
(2) disclosure of sufficient and reliable information in order to
afford reasonable opportunity for the exercise of independent
judgment of the persons involved may be assured.
(k) Copies of any statements and documents filed in the office of
the secretary and of any records of the secretary certified by the
director are admissible in any prosecution, action, suit, or proceeding
based on, arising out of, or under this article to the same effect as the
original of the statement, document, or record would be if actually
produced.
As added by P.L.92-2013, SEC.78. Amended by P.L.2-2014, SEC.49;
P.L.62-2014, SEC.40; P.L.216-2014, SEC.159.
IC 9-32-16-2
Orders concerning applications and licenses; discipline; revocation
and suspension of license; persons not issued a license
Sec. 2. (a) An order issued under this article may deny a dealer
license application for registration if the secretary finds that the order
is in the public interest and subsection (c) authorizes the action. An
order may condition or limit the license of an applicant to be a dealer
and, if the applicant for a dealer license is a partner, officer, director,
or person having similar status or performing similar functions, or a
person directly or indirectly in control of the dealership, the order
may condition or limit the license.
(b) If the secretary finds that an order is in the public interest and
subsection (c) authorizes the action, an order issued under this article
may deny, revoke, suspend, condition, limit, or permanently bar the
granting of a license to or an application for a license from a dealer,
or a partner, an officer, a director, or a person having a similar status
or performing similar functions as a dealer, or a person directly or
indirectly in control of the dealer. However, the secretary may not:
(1) institute a revocation or suspension proceeding under this
subsection based on an order issued under the law of another
state that is reported to the secretary or a designee of the
secretary more than one (1) year after the date of the order on
which it is based; or
(2) issue an order on the basis of an order issued under the
dealer services laws of another state unless the other order was
based on conduct for which subsection (c) would authorize the
action had the conduct occurred in Indiana.
(c) A person may be disciplined under this section if the person:
(1) has filed an application for a dealer license in Indiana under
this article, or its predecessor, within the previous ten (10)
years, which, as of the effective date of license or registration or
as of any date after filing in the case of an order denying
effectiveness, was incomplete as to a material fact or contained
a statement that, in light of the circumstances under which it
was made, was false or misleading with respect to a material
fact;
(2) knowingly violated or knowingly failed to comply with this
article, or its predecessor, within the previous ten (10) years;
(3) has been convicted of a:
(A) felony within the previous ten (10) years;
(B) felony or misdemeanor involving theft or fraud; or
(C) felony or misdemeanor concerning an aspect of business
involving the offer, sale, financing, repair, modification, or
manufacture of a vehicle;
(4) is enjoined or restrained by a court with jurisdiction in an
action instituted by a state or the United States from engaging
in or continuing an act, practice, or course of business involving
an aspect of a business involving the offer, barter, sale,
purchase, transfer, financing, repair, or manufacture of a
vehicle;
(5) refuses to allow or otherwise impedes the secretary from
conducting an audit or inspection;
(6) has engaged in dishonest or unethical practices in a business
involving the offer, barter, sale, purchase, transfer, financing,
repair, or manufacture of a vehicle within the previous ten (10)
years;
(7) is engaging in unfair practices as set forth in this article;
(8) is on the most recent tax warrant list supplied to the
secretary by the department of state revenue;
(9) violates IC 23-2-2.7;
(10) violates IC 9-19-9;
(11) willfully violates federal or state law relating to the sale,
distribution, financing, or insuring of motor vehicles; or
(12) is not compliant with local, state, or federal laws and
regulations regarding a dealer license or dealer business.
(d) The secretary may suspend or deny an application, impose
fines and costs, restrict, condition, limit, bar, suspend, or rescind a
dealer license, or order restitution, or do any combination of these
actions before final determination of an administrative proceeding.
Upon the issuance of an order, the secretary shall promptly notify
each person subject to the order:
(1) that the order has been issued;
(2) the reasons for the action; and
(3) that within fifteen (15) days after the receipt of a request in
a record from the person the matter will be scheduled for a
hearing.
If a hearing is not requested and no hearing is ordered by the
secretary within thirty (30) days after the date of service of the order,
the order becomes final by operation of law. If a hearing is requested
or ordered, the secretary, after notice of and opportunity for hearing
to each person subject to the order, may modify or vacate the order
or extend the order until final determination.
(e) After a hearing, the secretary may suspend or deny an
application, impose fines and costs, restrict, condition, limit, bar,
suspend, or rescind a dealer license, or order restitution, or do any
combination of these actions.
(f) Revocation or suspension of a license of a manufacturer, a
distributor, a dealer, or an automobile auctioneer may be limited to
one (1) or more locations, to one (1) or more defined areas, or only
to certain aspects of the business.
(g) Except as provided in subsection (d), an order may not be
issued under this section without:
(1) appropriate notice to the applicant or registrant;
(2) an opportunity for a hearing; and
(3) reasons for the action.
(h) A person that controls, directly or indirectly, a person not in
compliance with this section may be disciplined by order of the
secretary under subsections (a) and (b) to the same extent as the
noncomplying person, unless the controlling person did not know,
and in the exercise of reasonable care could not have known, of the
existence of conduct that is a ground for discipline under this section.
(i) A person subject to this chapter that has not been issued a
license is subject to the same disciplinary fines, costs, and penalties
as if a license had been issued.
As added by P.L.92-2013, SEC.78. Amended by P.L.62-2014,
SEC.41.
IC 9-32-16-3
Information or documents considered law enforcement records
Sec. 3. Information or documents obtained by the division in the
course of an investigation, including an audit conducted under section
6(c) of this chapter, are law enforcement records for the purposes of
IC 5-14-3-4(b)(1).
As added by P.L.92-2013, SEC.78. Amended by P.L.2-2014, SEC.50.
IC 9-32-16-4
Compliance with request, order, or subpoena for production of
documentary evidence
Sec. 4. A person complying with any request, order, or subpoena
issued by the division for the production of documentary evidence
shall retain the originals and shall provide the division with clearly
legible, true, and complete copies of the documents requested, along
with a signed cover letter, which must identify those documents with
a reasonable degree of specificity.
As added by P.L.92-2013, SEC.78.
IC 9-32-16-5
Dealers to provide staff of division access to dealer's premises
Sec. 5. All dealers licensed with the division shall, upon request,
provide members of the staff of the division prompt access, during
reasonable business hours, to that part of the premises at the dealer's
place of business where:
(1) documents are stored; or
(2) vehicle sales are offered, made, or processed.
As added by P.L.92-2013, SEC.78.
IC 9-32-16-6
Dealer required to make and maintain records; data storage;
records subject to inspection; retention of records
Sec. 6. (a) A dealer licensed or required to be licensed under this
article shall make and maintain the records, accounts,
correspondence, memoranda, papers, books, and other records
required under this article.
(b) Dealer records required to be maintained under IC 9-32-6-14
and other records required under this article may be maintained in
any form of data storage acceptable to the secretary if the records are
readily accessible and available to copy by an investigating or
auditing employee of the secretary upon demand at the place of
business of the dealer.
(c) The records of a dealer licensed or required to be licensed
under this article are subject to such reasonable periodic, special, or
other audits or inspections by a representative of the secretary, within
or outside Indiana, as the secretary considers necessary or appropriate
in the public interest and for the protection of investors. An audit or
inspection may be made at any time and without prior notice. The
representative of the secretary may copy, and remove for audit or
inspection copies of, the records the secretary reasonably considers
necessary or appropriate to conduct the audit or inspection.
(d) Dealer records required to be maintained under IC 9-32-6-14
and other records required under this article must be maintained at the
place of business of a dealer for a period of two (2) years. Following
the two (2) year period, records may be moved offsite but must be
maintained for a period of five (5) years.
As added by P.L.92-2013, SEC.78.
IC 9-32-16-7
Secretary of state to provide assistance to other state or foreign
jurisdiction
Sec. 7. At the request of the division or equivalent regulator of
another state or foreign jurisdiction, the secretary may provide
assistance if the requesting regulator states that the requesting
regulator is conducting an investigation to determine whether a
person has violated, is violating, or is about to violate a law or rule of
the other state or foreign jurisdiction relating to dealer matters that
the requesting regulator administers or enforces. The secretary may
provide assistance by using the authority to investigate and the
powers conferred by this article as the secretary determines are
necessary or appropriate. The assistance may be provided without
regard to whether the conduct described in the request would also
constitute a violation of this article or other law of Indiana if
occurring in Indiana. In deciding whether to provide the assistance,
the secretary may consider:
(1) whether the requesting regulator is permitted and has agreed
to provide assistance reciprocally within the state or foreign
jurisdiction of the requesting regulator to the secretary on dealer
matters when requested;
(2) whether compliance with the request would violate or
prejudice the public policy of Indiana; and
(3) the availability of resources and employees of the division
to carry out the request for assistance.
As added by P.L.92-2013, SEC.78.
IC 9-32-16-8
Person required to cooperate with division; failure to cooperate
Sec. 8. (a) A person shall cooperate in an inquiry, investigation,
or inspection conducted by, or on behalf of, the division for purposes
of determining whether or not a person has violated or is about to
violate any provision under this article. The willful failure of a person
to cooperate, absent a bona fide claim of privilege, may:
(1) be considered by the division a violation of statute; and
(2) thus subject the person to denial, suspension, or revocation
of licensing or registration or a bar from licensing or
registration.
(b) The following are examples of, but are not the only, conduct
by a person that may be considered a failure to cooperate:
(1) The failure to timely respond by way of appearance or
production of documents to a subpoena or order issued by the
division.
(2) The failure to answer any question pertinent to inquiry
unless the response to the question is subject to a bona fide
claim of privilege.
(3) The failure to grant division personnel access to:
(A) the business premises of a dealer or a person required to
be licensed as a dealer; or
(B) the records and documents that the dealer or person
required to be licensed as a dealer is required, by statute or
rule, to make available for inspection.
(4) The failure to attend a scheduled proceeding at which the
appearance of the person is required. If a person elects to retain
counsel for the purpose of representation in any such
proceeding, it is the responsibility of the person to do so in a
timely fashion. The failure of a person to retain counsel, absent
a showing of good cause, does not require an adjournment of the
proceeding.
(5) The failure to timely respond to or to provide information
requested under a demand under this chapter.
(6) Aiding or abetting the failure of another person to cooperate.
As added by P.L.92-2013, SEC.78.
IC 9-32-16-9
Copying of records
Sec. 9. (a) The division may copy records or require a dealer to
copy records and provide the copies to the division to the extent and
in the manner reasonable under the circumstances.
(b) The division may impose a reasonable fee for the expense of
making copies under subsection (a).
As added by P.L.92-2013, SEC.78.
IC 9-32-16-10
Referrals to local prosecuting attorney
Sec. 10. (a) The secretary or a designee of the secretary may refer
the facts drawn from an investigation to the prosecuting attorney of
the county in which a crime is alleged to have been committed.
(b) The secretary may assist the prosecuting attorney in
prosecuting an action brought subsequent to a referral made under
subsection (a), which may include a division attorney serving as a
special deputy prosecutor appointed by the prosecuting attorney.
As added by P.L.92-2013, SEC.78.
IC 9-32-16-11
Filings with business services division; providing governmental
identification numbers; physical Indiana address; national criminal
history background check; good standing with state offices
Sec. 11. (a) All dealers operating as a:
(1) corporation;
(2) limited liability company;
(3) limited partnership; or
(4) limited liability partnership;
shall file and maintain all filings required to remain in good standing
with the secretary of state business services division.
(b) The dealer shall provide the secretary:
(1) the federal tax identification number; and
(2) the registered retail merchant's certificate number issued
under IC 6-2.5-8;
issued to the dealer.
(c) The dealer must, for the entire licensing period, have an
established place of business with a physical Indiana address. The
dealer may not have a mailing address that differs from the actual
location of the business.
(d) The applicant and all corporate officers, partners, and owners
must submit to a national criminal history background check (as
defined in IC 10-13-3-12) administered by the state police at the
expense of the applicant and the corporate officers, partners, and
owners. The secretary may deny an application if the division finds
that the applicant, a corporate officer, a partner, or an owner has been
convicted of a:
(1) felony within the previous ten (10) years;
(2) felony or misdemeanor involving theft or fraud; or
(3) felony or misdemeanor concerning an aspect of business
involving the offer, sale, financing, repair, modification, or
manufacture of a vehicle.
(e) The dealer and the corporation, company, or partnership must
be in good standing with the bureau, the department of state revenue,
and the state police department.
As added by P.L.92-2013, SEC.78. Amended by P.L.62-2014,
SEC.42.
IC 9-32-16-12
False or misleading statements or omitted facts
Sec. 12. It is a violation of this article for a person to:
(1) make or cause to be made, in a record that is used in an
action or proceeding or filed under this chapter, a statement that,
at the time and in the light of the circumstances under which it
is made, is false or misleading with respect to a material fact; or
(2) in connection with a statement to the division or to a
consumer, omit to state a material fact necessary to make the
statement made, in light of the circumstances under which it was
made, not false or misleading.
As added by P.L.92-2013, SEC.78.
IC 9-32-16-13
Secretary of state to maintain injunctive action; court remedy and
relief; director not required to post bond; penalties
Sec. 13. (a) If the secretary believes that a person has engaged, is
engaging, or is about to engage in an act, practice, or course of
business:
(1) that constitutes a violation of this article or a rule adopted or
order issued under this article; or
(2) that materially aids a violation of this article or a rule
adopted or order issued under this article;
the secretary or a designee of the secretary, in addition to any
administrative remedies, may maintain an action in the circuit or
superior court in the county where the investigation or inquiry in
question is being conducted to enjoin the act, practice, or course of
business and to enforce compliance with this article or a rule adopted
or order issued under this article.
(b) In an action under this section and on a proper showing, a
court may:
(1) issue a permanent or temporary injunction, restraining order,
or declaratory judgment;
(2) order other appropriate or ancillary relief, which may
include:
(A) an asset freeze, accounting, writ of attachment, writ of
general or specific execution, and appointment of a receiver
or conservator;
(B) ordering a receiver or conservator appointed under clause
(A) to:
(i) take charge and control of the property of the
respondent, including investment accounts and accounts in
a depository institution, rents, and profits;
(ii) collect debts; and
(iii) acquire and dispose of property;
(C) imposing a civil penalty of up to ten thousand dollars
($10,000) per violation and an order of rescission, restitution,
or disgorgement directed to a person that has engaged in an
act, practice, or course of business constituting a violation of
this article or a rule adopted or order issued under this
article; and
(D) ordering the payment of prejudgment and postjudgment
interest; or
(3) order other relief that the court considers appropriate.
(c) The director may not be required to post a bond in an action or
proceeding under this article.
(d) Penalties collected under this section shall be deposited in the
dealer enforcement account established by IC 9-32-7-2.
As added by P.L.92-2013, SEC.78.
IC 9-32-16-14
Public or private investigations by secretary; enforcement of
compliance with investigation; witness fees and mileage
Sec. 14. (a) The secretary may:
(1) conduct public or private investigations within or outside
Indiana that the secretary considers necessary or appropriate to
determine whether a person has violated, is violating, or is about
to violate this article or a rule adopted or order issued under this
article, or aid in the enforcement of this article or in the
adoption of rules and forms under this article;
(2) require or permit a person to testify, file a statement, or
produce a record, under oath or otherwise as the secretary
determines, as to all the facts and circumstances concerning a
matter to be investigated or about which an action or proceeding
is to be instituted; and
(3) publish a record concerning an action, proceeding, or
investigation under, or a violation of, this article or a rule
adopted or order issued under this article if the secretary
determines it is necessary or appropriate and in the public
interest and for the protection of dealers or consumers.
(b) For purposes of an investigation under this article, the
secretary or a designated employee of the secretary may administer
oaths and affirmations, subpoena witnesses, seek compulsion of
attendance, take attendance, take evidence, require the filing of
statements, and require the production of any records that the
secretary considers relevant or material to the investigation. Upon
order of the secretary or a hearing officer appointed by the secretary
in a hearing, depositions may be taken in the manner prescribed by
law for depositions in civil actions and made returnable to the
secretary or a hearing officer appointed by the secretary.
(c) If a person does not appear or refuses to testify, file a
statement, or produce records, or otherwise does not obey a subpoena
as required by this article, the secretary or hearing officer appointed
by the secretary may apply to the circuit or superior court in the
county where the hearing, investigation, or inquiry in question is
being conducted to enforce compliance. The court may:
(1) hold the person in contempt;
(2) order the person to appear before the secretary or hearing
officer appointed by the secretary;
(3) order the person to testify about the matter under
investigation or in question;
(4) order the production of records;
(5) grant injunctive relief, including restricting or prohibiting
the offer or sale of vehicles;
(6) impose a civil penalty of not more than twenty thousand
dollars ($20,000) for each violation; and
(7) grant any other necessary or appropriate relief.
(d) This section does not preclude a person from applying to the
circuit or superior court in the county where the hearing,
investigation, or inquiry in question is being conducted for relief
from a request to appear, testify, file a statement, produce records, or
obey a subpoena.
(e) If a witness, in any hearing, inquiry, or investigation conducted
under this article, refuses to answer any question or produce any
item, the secretary may file a written petition with the circuit or
superior court in the county where the hearing, investigation, or
inquiry in question is being conducted requesting a hearing on the
refusal. The court shall hold a hearing to determine if the witness may
refuse to answer the question or produce the item. If the court
determines that the witness, based upon the witness's privilege
against self-incrimination, may properly refuse to answer or produce
an item, the secretary may make a written request that the court grant
use immunity to the witness. Upon written request of the secretary,
the court shall grant use immunity to a witness. The court shall
instruct the witness, by written order or in open court, that:
(1) any evidence the witness gives, or evidence derived from
that evidence, may not be used in any criminal proceedings
against that witness, unless the evidence is volunteered by the
witness or is not responsive to a question; and
(2) the witness must answer the questions asked and produce the
items requested.
A grant of use immunity does not prohibit the use of evidence that
the witness gives in a hearing, investigation, or inquiry from being
used in a prosecution for perjury under IC 35-44.1-2-1. If a witness
refuses to give the evidence after the witness has been granted use
immunity, the court may find the witness in contempt.
(f) In any prosecution, action, suit, or proceeding based upon or
arising out of or under this article, a certificate signed by the
secretary showing compliance or noncompliance with this article by
a dealer constitutes prima facie evidence of compliance or
noncompliance with this article and is admissible in evidence in any
action at law or in equity to enforce this article.
(g) Each witness who appears before the secretary or a hearing
officer appointed by the secretary by order is entitled to receive for
the witness's attendance the fees and mileage provided for witnesses
in civil cases, which must be audited and paid by the state in the same
manner as other expenses of the division are audited and paid when
proper vouchers sworn to by the witnesses and approved by the
secretary are presented. However, a witness subpoenaed at the
instance of parties other than the secretary or a hearing officer
appointed by the secretary is not entitled to any fee or compensation
from the state.
As added by P.L.92-2013, SEC.78.
IC 9-32-16-15
Dealers; unfair practices; demand for mediation; mediation
Sec. 15. (a) A dealer who is injured by an unfair practice set forth
in IC 9-32-13 or IC 9-32-15 may file a complaint or petition with the
division.
(b) A dealer may not file a complaint or petition with the division
under subsection (a) based on an alleged violation of IC 9-32-13 or
IC 9-32-15 by a manufacturer or distributor unless the dealer serves
a demand for mediation upon the manufacturer or distributor:
(1) before; or
(2) at the same time as;
filing the complaint or petition. A demand for mediation must be in
writing and served upon the manufacturer or distributor by certified
mail at an address designated for the manufacturer or distributor in
the licensor's records. The demand for mediation must contain a brief
statement of the dispute and the relief sought by the dealer serving
the demand.
(c) Not later than twenty (20) days after the date the demand for
mediation is served under subsection (b), the parties shall mutually
select an independent mediator and meet with the mediator for the
purpose of attempting to resolve the dispute. The meeting place must
be within Indiana at a location selected by the mediator. The mediator
may extend the period in which the meeting must occur for good
cause shown by either party or upon stipulation of the parties.
As added by P.L.92-2013, SEC.78.
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