1. (a) The following words and terms, when used in this subchapter shall have the following meanings, unless the context clearly indicates otherwise. Consignment--The sale or offer for sale by a person other than the owner under terms of a verbal or written authorization from the owner.
2. (b) Any person or entity, including a person or entity purporting to be a broker or brokerage house, who acts as an intermediary or assists in the sale, sale on consignment, display for sale, purchase, trade, or transfer of a vessel, motorboat, or outboard motor in exchange for a fee, commission, or other consideration is considered to be engaged in the business of buying, selling, selling on consignment, displaying for sale, or exchanging a vessel for the purposes of this subchapter. Any person or entity, including a person or entity purporting to be a broker or brokerage house, engaged in any activity described above is subject to the provisions of this subchapter.

3. (c) A person shall apply for a license as a dealer by submitting a properly completed, department-approved application form, accompanied by the following:

   1. (1) the fee prescribed by law for each license requested;

   2. (2) photographs clearly showing:

      1. (A) the permanent sign at the location designated in the application as the applicant's permanent place of business, clearly indicating the name of the business;
      2. (B) the front of the business with public access; and
      3. (C) space sufficient for office, service area (not applicable to floating inventory or listings), and display of vessels, motorboats, or outboard motors (not applicable to floating inventory or listings);
   3. (3) a copy of the Tax Permit issued by the Comptroller under Chapter 151, Tax Code;
   4. (4) verification of all assumed name(s), if applicable, in the form of assumed name certificate(s) on file with the Secretary of State or county clerk;
   5. (5) a photocopy of the current driver's license or Department of Public Safety identification of the owner, president or managing partner of the business; and
   6. (6) a list of dealer agreements; and
   7. (7) if the applicant is to maintain floating inventory or listings at a location other than that designated as the applicant's permanent place of business, a record of at least five marinas where floating inventory or listings are expected to be displayed. If the applicant contemplates using less than five marinas, then the application shall include an explanatory statement. The record must identify, at a minimum, the name, physical address, and telephone for each marina.

4. (d) A person shall apply for a license as a distributor or manufacturer by submitting a properly completed, department-approved application form accompanied by the following:

   1. (1) the fee prescribed by law for each license requested;
   2. (2) verification of all assumed name(s), if applicable, in the form of assumed name certificate(s) on file with the Secretary of State or county clerk;
   3. (3) a complete list of manufacturers represented by a distributorship; and
   4. (4) a complete list of distributors, dealers, and manufacturers.

5. (e) The department may issue a license under this subchapter if:

   1. (1) the applicant submits a complete application form and required attachments; and
   2. (2) the applicant signs a department-provided license agreement stating that the applicant agrees to comply with all applicable state laws, including Occupation Code, Chapter 2352, concerning Franchise Agreements, when required.

6. (f) A license holder shall notify the department in writing within 10 days if there is any change of:

   1. (1) ownership;
   2. (2) business name;
   3. (3) physical location;
   4. (4) dealer agreement;
   5. (5) distributors, dealers, or representatives; or
   6. (6) address or phone information.
7. (g) The licenses issued under this subchapter to dealers must be publicly displayed at all times in the place of business for which the license is issued.

8. (h) A license holder must keep a complete record available for inspection in the place of business relating to all vessels, motorboats, and outboard motors purchased, sold, or displayed for sale for a minimum of 24 months. Content of records must include the:

   1. (1) date of purchase;
   2. (2) date of sale;
   3. (3) hull identification number and/or motor identification number;
   4. (4) name and address of person selling to the dealer;
   5. (5) name and address of person purchasing from the dealer;
   6. (6) name and address of selling dealer or individual if vessel and/or outboard motor is offered for sale by consignment;
   7. (7) a copy of the vessel/outboard motor title/registration receipt;
   8. (8) copies of any and all documents, forms, and agreements applicable to a particular sale, consignment, listing, transfer of ownership, titling, titling and registration, or documentation through the U.S. Coast Guard, including, but not limited to title applications, work-up sheets, Manufacturer's Certificates of Origin, titles or photocopies of the front and back of titles, factory invoices, sales contracts, retail installment agreements, buyer's orders, bills of sale, waivers, or other agreements between the seller and purchaser; and
   9. (9) copies of written consignment agreements or power of attorney for vessels, motorboats, or outboard motors.

9. (i) The department may suspend or revoke a license under this subchapter if:

   1. (1) the licensee has been finally convicted or received deferred adjudication for a violation of Parks and Wildlife Code, Chapter 31, or a rule adopted under that chapter;
   2. (2) the licensee has violated Parks and Wildlife Code, Chapter 31, or a rule adopted under that chapter;
   3. (3) the licensee made a false or misleading statement in connection with the original or renewal application for the license, either in the formal application itself or in any other written instrument relating to the application submitted to the commission or its officers or employees;
   4. (4) the licensee is indebted to the state for taxes, fees, or payment of penalties imposed by Parks and Wildlife Code, Chapter 31, or a rule adopted under that chapter;
   5. (5) the applicant or licensee was previously the holder of a license issued under this subchapter that was revoked for cause and never reissued by the department, or that was suspended for cause and the terms of the suspension have not been fulfilled;
   6. (6) the applicant or licensee was previously a partner, stockholder, director, or officer controlling or managing a partnership, corporation, or store location whose license issued under this subsection was revoked for cause and never reissued, or was suspended for cause and the terms of the suspension have not been fulfilled;
   7. (7) the business does not intend to be open to all members of the public nor during normal business hours;
   8. (8) the licensee or an employee of the licensee has obtained, or attempted to obtain, any money, commission, fee, barter, exchange or other compensation by fraud, deception or misrepresentation; or
   9. (9) the licensee or an employee of the licensee is finally convicted or receives deferred adjudication for a violation of any federal or state law relating to the sale, distribution, financing, registration, taxing, or insuring of a vessel.

10. (j) Provisions governing the revocation or suspension of a license are as follows.

    1. (1) Before suspending or revoking a license under this subchapter, the staff of the executive director of the department (executive director) shall provide notice by certified mail to the licensee's last known address of the department's intent to revoke or suspend the license. Within 30 days of the date of the letter, the licensee may request an administrative hearing. The hearing request must be in writing and addressed to: Manager of Boat Titling, Registration, and Marine Licensing, Texas Parks and Wildlife Department, 4200 Smith School Rd., Austin, TX 78744. For a hearing request to be valid, the department must receive the hearing request within 30 days of the date of the letter notifying the licensee of the department's intent to revoke or suspend the license. If no hearing request is received within this time frame, the executive director shall make a final decision whether to revoke or suspend the license.
    2. (2) Timely hearing requests shall be referred by the department to the State Office of Administrative Hearings (SOAH) for adjudication.
    3. (3) The department shall provide notice of the hearing date to the licensee by certified mail at the licensee's last known address at least ten days prior to the hearing date.
    4. (4) The licensee shall be responsible for all hearing costs to SOAH, including but not limited to transcript and court reporting costs incurred by the department. Prior to the beginning of the hearing, at the request of department, the SOAH judge shall require the licensee to post a bond in an amount set by the SOAH judge, payable to the department and conditioned on prompt payment of hearing costs. Failure to post the requested bond prior to the start of the hearing shall result in default by the licensee.
    5. (5) The failure of the licensee to appear at the hearing shall entitle the department's staff to request issuance of a default proposal for decision or order by the judge.
    6. (6) At the conclusion of the hearing, SOAH shall prepare a proposal for decision in accordance with SOAH rules. The proposal for decision shall be submitted to the department's deputy executive director for administration, who will make the final decision on whether to revoke or suspend the license.

Source Note:The provisions of this §53.110 adopted to be effective July 7, 2004, 29 TexReg 6309; amended to be effective February 19, 2006, 31 TexReg 851.