IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2020 Term

_____________________

No. 19-0484

_____________________

EVERETT FRAZIER, COMMISSIONER OF THE 

WEST VIRGINIA DIVISION OF MOTOR VEHICLES,

Respondent Below, Petitioner

v.

TIMOTHY R. MCCABE,

Petitioner Below, Respondent

___________________________________________________________

Appeal from the Circuit Court of Ohio County

Honorable David J. Sims, Judge

Civil Action No. 18-CAP-11

REVERSED AND REMANDED

_________________________________________________________

Submitted: October 28, 2020

Filed: November 12, 2020

Patrick Morrisey, Esq.

Attorney General

Steven E. Dragisich, Esq.

Assistant Attorney General

Charleston, West Virginia

Attorneys for Petitioner

James G. Bordas, III, Esq.

Erica Cross Conti, Esq.

Bordas & Bordas, PLLC

Wheeling, West Virginia

Attorneys for Respondent

JUSTICE HUTCHISON delivered the Opinion of the Court.

FILED

November 12, 2020

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
i

SYLLABUS BY THE COURT

1. “On appeal of an administrative order from a circuit court, this Court is bound 

by the statutory standards contained in W. Va. Code § 29A-5-4(a) and reviews questions 

of law presented de novo; findings of fact by the administrative officer are accorded 

deference unless the reviewing court believes the findings to be clearly wrong.” Syl. Pt. 1, 

Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996). 

2. “In cases where the circuit court has [reversed] the result before the 

administrative agency, this Court reviews the final order of the circuit court and the 

ultimate disposition by it of an administrative law case under an abuse of discretion 

standard and reviews questions of law de novo.” Syl. Pt. 2, Muscatell v. Cline, 196 W.Va. 

588, 474 S.E.2d 518 (1996). 

3. “When the constitutionality of a statute is questioned every reasonable 

construction of the statute must be resorted to by a court in order to sustain constitutionality, 

and any doubt must be resolved in favor of the constitutionality of the legislative 

enactment.” Syl. Pt. 3, Willis v. O’Brien, 151 W.Va. 628, 153 S.E.2d 178 (1967). 

4. “‘In considering the constitutionality of a legislative enactment, courts must 

exercise due restraint, in recognition of the principle of the separation of powers in 

government among the judicial, legislative and executive branches. Every reasonable 
ii

construction must be resorted to by the courts in order to sustain constitutionality, and any 

reasonable doubt must be resolved in favor of the constitutionality of the legislative 

enactment in question. Courts are not concerned with questions relating to legislative 

policy. The general powers of the legislature, within constitutional limits, are almost 

plenary. In considering the constitutionality of an act of the legislature, the negation of 

legislative power must appear beyond reasonable doubt.’ Syllabus Point 1, State ex rel. 

Appalachian Power Company v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965).” Syl., 

Johnson v. Bd. of Stewards of Charles Town Races, 225 W.Va. 340, 693 S.E.2d 93 (2010). 

5. “Under Ex post facto principles of the United States and West Virginia 

Constitutions, a law passed after the commission of an offense which increases the 

punishment, lengthens the sentence or operates to the detriment of the accused, cannot be 

applied to him.” Syl. Pt. 1, Adkins v. Bordenkircher, 164 W.Va. 292, 262 S.E.2d 885

(1980). 

6. “The question of whether a particular statutorily defined penalty is civil or 

criminal is a matter of statutory construction, and requires the application of a two-level 

inquiry adopted by the United States Supreme Court in United States v. Ward, 448 U.S. 

242, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980). First, courts must determine whether the 

legislature indicated, either expressly or impliedly, a preference for labelling the statute 

civil or criminal. Second, if the legislature indicates an intention to establish a civil remedy, 

courts must consider whether the legislature, irrespective of its intent to create a civil 
iii

remedy, provided for sanctions so punitive as to transform the civil remedy into a criminal 

penalty. As part of the second level of the inquiry, courts should be guided by the following 

factors identified by the United States Supreme Court in Kennedy v. Mendoza–Martinez, 

372 U.S. 144, 168–69, 83 S.Ct. 554, 567–68, 9 L.Ed.2d 644, 661 (1963): ‘Whether the 

sanction involves an affirmative disability or restraint, whether it has historically been 

regarded as a punishment, whether it comes into play only on a finding of scienter, whether 

its operation will promote the traditional aims of punishment—retribution and deterrence, 

whether the behavior to which it applies is already a crime, whether an alternative purpose 

to which it may rationally be connected is assignable for it, and whether it appears 

excessive in relation to the alternative purpose assigned[.]’” Syl. Pt. 1, State ex rel. 

Palumbo v. Graley’s Body Shop, Inc., 188 W.Va. 501, 425 S.E.2d 177 (1992). 

7. “The question whether an Act is civil or punitive in nature is initially one of 

statutory construction. A court will reject the Legislature’s manifest intent only when a 

party challenging the Act provides the clearest proof that the statutory scheme is so punitive 

in either purpose or effect as to negate the Legislature’s intention.” Syl. Pt. 4, Hensler v. 

Cross, 210 W.Va. 530, 558 S.E.2d 330 (2001). 

8. West Virginia Code § 17A-6E-4(c)(5) (2006) is a regulatory statute which 

does not violate the prohibition against ex post facto laws. 

9. “Due process of law, within the meaning of the State and Federal 

constitutional provisions, extends to actions of administrative officers and tribunals, as well 
iv

as to the judicial branches of the governments.” Syl. Pt. 2, State ex rel. Ellis v. Kelly, 145 

W.Va. 70, 112 S.E.2d 641 (1960).

10. West Virginia Code § 17A-6E-4(c)(5) (2006) is rationally related to the 

State’s legitimate interest in preventing fraudulent activity in the motor vehicle industry 

and is not arbitrary or discriminatory. 
1

HUTCHISON, Justice:

The petitioner, Everett Frazier in his official capacity as Commissioner of 

the West Virginia Division of Motor Vehicles (“Commissioner” or “DMV”),1 appeals the 

April 30, 2019, final order of the Circuit Court of Ohio County that ordered the DMV to 

grant the application for a motor vehicle salesperson license submitted by the respondent, 

Timothy R. McCabe. In this appeal, the Commissioner contends that the circuit court erred 

by finding that West Virginia Code § 17A-6E-4(c)(5) (2006),

2 which prohibits the issuance 

of a motor vehicle salesperson license to an applicant previously convicted of a felony 

involving financial matters or the motor vehicle industry, could not be applied to the 

1 When the events giving rise to this appeal occurred, Pat S. Reed was the 

Commissioner of the DMV. Upon her retirement on March 31, 2019, Adam Holley was 

named Acting Commissioner. While this case has been pending before this Court, Everett 

Frazier was named Commissioner. Pursuant to Rule 41(c) of the West Virginia Rules of 

Appellate Procedure, the current Commissioner was automatically substituted as the 

named petitioner. 

2 When the respondent applied for a motor vehicle salesperson license, West 

Virginia Code § 17A-6E-4(c)(5) (2006) provided that the DMV shall refuse to issue a 

motor vehicle salesperson license if the applicant “[h]as been convicted of a felony: 

Provided, That upon the applicant’s appeal the commissioner may grant an exemption to 

this restriction if the felony did not involve financial matters or the motor vehicle 

industry[.]” While this case was pending below, the statute was amended, and effective 

March 7, 2019, West Virginia Code § 17A-6E-4(c)(5) now provides for refusal of the 

license if the applicant “[h]as been convicted of a felony: Provided, That upon the 

applicant’s appeal the commissioner may grant an exemption to this restriction if the felony 

did not involve a financial transaction involving the sale or purchase of a motor vehicle or 

the motor vehicle industry[.]” Our analysis in this case is based upon the 2006 version of 

the statute as it was in effect at the time the respondent submitted his application for a 

motor vehicle salesperson license. 
2

respondent. Upon consideration of the parties’ briefs and oral arguments, the appendix 

record, and pertinent authorities, we reverse the circuit court’s order and remand this case 

for entry of an order reinstating the Commissioner’s decision denying the respondent’s 

application for a motor vehicle salesperson license. 

I. Facts and Procedural Background

On April 5, 2018, the respondent submitted an application for a motor vehicle 

salesperson license to the DMV after obtaining employment at Matt Jones Preowned Auto, 

LLC, in Wheeling, West Virginia.

3

 The respondent was granted a temporary license but 

was subsequently informed on April 30, 2018, that he was being denied a permanent motor 

vehicle salesperson license pursuant to West Virginia Code § 17A-6E-4(c)(5)4 because of 

his previous felony conviction that involved a financial matter and the motor vehicle 

3 The licensing requirement is set forth in West Virginia Code § 17A-6E-3(a) (2006)

as follows: 

Except as provided in section six [§ 17A-6E-6] of this 

article, no person may engage in business in this state as a 

motor vehicle salesperson on and after the first day of January, 

two thousand eight, without holding a license issued under the 

provisions of this article.

West Virginia Code § 17A-6E-6 (2006) provides a ten-day time period for a licensed 

salesperson to transfer his/her license upon a change of employer. 

4 See supra note 2.
3

industry. The respondent appealed the decision of the Commissioner as provided in West 

Virginia Code § 17A-6E-10 (2006).5

On August 21, 2018, a hearing was held before an independent hearing 

examiner appointed by the Commissioner. At the hearing, the respondent admitted that he

was convicted of a felony in 2006 for falsifying a loan application while employed at a 

different motor vehicle dealership in Wheeling. The respondent testified that the loan 

application was for a customer at the dealership; that he knew the application he completed 

was inaccurate; and that the customer eventually defaulted on the loan. Elaborating further 

on the circumstances that resulted in his felony conviction, the respondent explained that 

he began working in the automobile industry in 1998 as a finance manager, and in 2000, 

he became general manager of Marhefka Autos in Wheeling. He later “stepped down” 

from that position to become more involved in the auto sales. According to the respondent, 

the FBI began investigating the business practices of Marhefka Autos in 2005. As an 

employee of the business, the respondent says he cooperated with the investigation but was 

informed that if there was any evidence of wrongdoing, he would be criminally charged 

because he had been the general manager. The respondent said that to avoid a formal and 

5 West Virginia Code § 17A-6E-10(a) provides: “Any person may appeal an order 

of the commissioner suspending, revoking, denying or otherwise canceling his or her 

salesperson license in accordance with the prescribed procedures of the division.” While 

respondent’s appeal was pending, the denial of his license application was stayed, and he 

retained his temporary license. See W.Va. Code § 17A-6E-10(b) (“The commissioner may 

but is not required to stay the suspension or revocation of a salesperson license during the 

appeals process.”). 
4

public investigation for his family’s sake, he agreed to plead guilty to a felony charge of 

falsifying a loan application. 

On October 10, 2005, the respondent signed a plea agreement whereby he 

agreed to waive his right to an indictment and plead guilty to a felony charge of falsifying 

a loan application. The plea agreement was filed with the United States District Court for 

the Northern District of West Virginia on March 14, 2006. On June 2, 2006, the respondent 

was sentenced to two years of probation. According to the respondent, after his conviction, 

he began working in the automobile industry in Ohio and continued his employment in that 

state for more than a decade. 

In addition to providing information regarding his felony conviction at the 

August 21, 2018, hearing, the respondent also submitted character/reference letters from 

five individuals. The respondent’s current employer also testified on his behalf.6

 On 

October 19, 2018, the Commissioner’s final order was entered denying the respondent’s 

application for a motor vehicle salesperson license. The order contained the following 

findings:

8. The Applicant has not had any related issues since 2006. 

Regardless, the Statute is very clear that an exemption cannot 

be given in this situation.

. . . . 

6 The respondent’s employer was his brother-in-law.
5

10. The felony offense described in the record and testified to 

by the Applicant is of a financial matter or of the motor vehicle 

industry. 

11. The Applicant is not eligible for a grant of an exemption 

under the provision of W.Va. Code § 17A-6E-4(c), and should 

not be allowed to be licensed as a salesperson. 

The respondent appealed the decision of the Commissioner to the circuit court.7

By order entered April 30, 2019, the circuit court reversed the 

Commissioner’s decision and ordered that the respondent’s application for a motor vehicle 

salesperson license be granted. The circuit court found that West Virginia Code § 17-A6E-4(c)(5) cannot lawfully be applied to applicants seeking a license who were convicted

of felonies prior to the enactment of the statute because it violates the ex post facto clause 

of the West Virginia and United States Constitutions. The court further found that the 

respondent was denied due process as a result of the Commissioner’s denial of his license 

application and that West Virginia Code § 17A-6E-4(c)(5) contravenes both the West 

Virginia and United States Constitutions because it is both overly broad and overly narrow. 

Upon entry of the circuit court’s order, the Commissioner filed this appeal. 

7 West Virginia Code § 17A-6E-10(c) (2006) provides: “Any final order entered 

pursuant to this article is subject to judicial review as provided in article five [§§ 29A-5-1 

et seq.], chapter twenty-nine-a of this code.”
6

II. Standard of Review

This Court’s standard of review for a circuit court’s decision in an 

administrative appeal is well established. In syllabus points one and two, respectively, of 

Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996), this Court held: 

On appeal of an administrative order from a circuit 

court, this Court is bound by the statutory standards contained 

in W. Va. Code § 29A-5-4(a) and reviews questions of law 

presented de novo; findings of fact by the administrative officer 

are accorded deference unless the reviewing court believes the 

findings to be clearly wrong.

In cases where the circuit court has [reversed] the result 

before the administrative agency, this Court reviews the final 

order of the circuit court and the ultimate disposition by it of 

an administrative law case under an abuse of discretion 

standard and reviews questions of law de novo.

In this case, we are asked to examine the constitutionality of West Virginia 

Code § 17A-6E-4(c)(5). This Court has long held that “[w]hen the constitutionality of a 

statute is questioned every reasonable construction of the statute must be resorted to by a 

court in order to sustain constitutionality, and any doubt must be resolved in favor of the 

constitutionality of the legislative enactment.” Syl. Pt. 3, Willis v. O’Brien, 151 W.Va. 628, 

153 S.E.2d 178 (1967). To that end, 

“[i]n considering the constitutionality of a legislative 

enactment, courts must exercise due restraint, in recognition of 

the principle of the separation of powers in government among 

the judicial, legislative and executive branches. Every 

reasonable construction must be resorted to by the courts in 

order to sustain constitutionality, and any reasonable doubt 

must be resolved in favor of the constitutionality of the 

legislative enactment in question. Courts are not concerned 

with questions relating to legislative policy. The general 
7

powers of the legislature, within constitutional limits, are 

almost plenary. In considering the constitutionality of an act of 

the legislature, the negation of legislative power must appear 

beyond reasonable doubt.” Syllabus Point 1, State ex rel. 

Appalachian Power Company v. Gainer, 149 W.Va. 740, 143 

S.E.2d 351 (1965).

Syl., Johnson v. Bd. of Stewards of Charles Town Races, 225 W.Va. 340, 693 S.E.2d 93 

(2010). With these standards in mind, we consider the parties’ arguments. 

III. Discussion

The Commissioner first contends that the circuit court erred by finding that 

West Virginia Code § 17A-6E-4(c)(5) cannot lawfully be applied to applicants who were 

convicted of felonies prior to the enactment of the statute because it results in a violation 

of the ex post facto clause of the West Virginia Constitution and the United States 

Constitution.8 

Under Ex post facto principles of the United States and 

West Virginia Constitutions, a law passed after the commission 

of an offense which increases the punishment, lengthens the 

sentence or operates to the detriment of the accused, cannot be 

applied to him. 

8 Article III, Section 4 of the West Virginia Constitution provides:

The privilege of the writ of habeas corpus shall not be 

suspended. No person shall be held to answer for treason, 

felony or other crime, not cognizable by a justice, unless on 

presentment or indictment of a grand jury. No bill of attainder, 

ex post facto law, or law impairing the obligation of a contract, 

shall be passed.

Likewise, Article I, Section 10 of the United States Constitution provides, in 

pertinent part, “[n]o State shall . . . pass any . . . ex post facto Law[.]”
8

Syl. Pt. 1, Adkins v. Bordenkircher, 164 W.Va. 292, 262 S.E.2d 885 (1980). The license 

requirement for motor vehicle salespersons became effective on January 1, 2008,9 and 

provides that a license cannot be issued to an applicant who “has been convicted of a 

felony” involving financial matters or the motor vehicle industry. W.Va. Code § 17A-6E4(c)(5).10 The circuit court found that “the statute constitutes an unlawful ex post facto 

law” when applied to the respondent because there was no licensing requirement for motor 

vehicle salespersons when he entered his guilty plea to the felony charge. The circuit court 

reasoned that because the respondent was unaware at the time he entered his guilty plea

that his felony conviction would foreclose his employment as a motor vehicle salesperson 

in the future, the respondent suffered an additional punishment when the Commissioner 

denied his license application. In other words, the circuit court found that West Virginia 

Code § 17A-6E-4(c)(5) operates to the respondent’s detriment by denying him the ability 

to earn a living in the profession he has pursued most of his adult life. 

9 See supra note 3.

10 In his response brief, the respondent urged this Court to find that the “has been 

convicted” language refers to the time period between the effective date of the licensing 

requirement, January 1, 2008, and the submission of a licensing application. We decline 

to do so because construing the statutory language in such fashion would reach an absurd 

result. In that regard, an applicant convicted of a felony involving financial matters or the 

motor vehicle industry on December 31, 2007, could obtain a license, but an applicant 

convicted of the same felony on January 1, 2008, could not. It is a well-established rule of 

statutory construction that “[w]here a particular construction of a statute would result in an 

absurdity, some other reasonable construction, which will not produce such absurdity, will 

be made.” Syl. Pt. 2, Newhart v. Pennybacker, 120 W.Va. 774, 200 S.E. 350 (1938).
9

The Commissioner argues that the circuit court’s reasoning is flawed because 

it is clear from the Legislature’s stated purpose that the motor vehicle salesperson licensing 

statute is civil in nature. As such, the Commissioner contends that W.Va. Code § 17A-6E4(c)(5) does not operate to extend criminal punishment, nor is the sanction it imposes–

denial of a license—so punitive as to constitute a criminal penalty. Because the statute is 

civil in nature, the Commissioner maintains that applying West Virginia Code § 17A-6E4(c)(5) to the respondent and denying his license application does not implicate the ex post 

facto clause of the West Virginia and United States Constitutions. In support of his 

argument, the Commissioner points to Richmond v. Levin, 219 W.Va. 512, 516, 637 S.E.2d 

610, 614 (2006), wherein this Court observed that

[t]he due process concerns of the Ex Post Facto Clause 

have application only to retroactivity of “punitive” laws or 

rules. That is, “[a] fundamental principle of ex post facto law 

is that it only applies to criminal proceedings, not civil.” State 

v. Smith, 198 W.Va. 702, 713, 482 S.E.2d 687, 698 (1996). See

Haislop v. Edgell, 215 W.Va. 88, 94, 593 S.E.2d 839, 845 

(2003) (observing that legislation which is civil “would not 

implicate the ex post facto clause,” whereas legislation which 

is punitive “would violate the clause.”); State v. Whalen, 214 

W.Va. 299, 301 n. 2, 588 S.E.2d 677, 679 n. 2 (2003) (“[T]he 

retroactive aspects of the Sex Offender Registration Act do not 

violate the constitutional prohibition against ex post facto laws, 

because the Act is a civil regulatory statute and not a criminal 

penalty statute.”).

 This Court has held that whether a statute is civil or criminal in nature is a 

matter of statutory construction. In syllabus point one of State ex rel. Palumbo v. Graley’s 

Body Shop, Inc., 188 W.Va. 501, 425 S.E.2d 177 (1992), this Court explained:
10

The question of whether a particular statutorily defined 

penalty is civil or criminal is a matter of statutory construction, 

and requires the application of a two-level inquiry adopted by 

the United States Supreme Court in United States v. Ward, 448 

U.S. 242, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980). First, courts 

must determine whether the legislature indicated, either 

expressly or impliedly, a preference for labelling the statute 

civil or criminal. Second, if the legislature indicates an 

intention to establish a civil remedy, courts must consider 

whether the legislature, irrespective of its intent to create a civil 

remedy, provided for sanctions so punitive as to transform the 

civil remedy into a criminal penalty. As part of the second level 

of the inquiry, courts should be guided by the following factors 

identified by the United States Supreme Court in Kennedy v. 

Mendoza–Martinez, 372 U.S. 144, 168–69, 83 S.Ct. 554, 567–

68, 9 L.Ed.2d 644, 661 (1963): “Whether the sanction involves 

an affirmative disability or restraint, whether it has historically 

been regarded as a punishment, whether it comes into play only 

on a finding of scienter, whether its operation will promote the 

traditional aims of punishment—retribution and deterrence, 

whether the behavior to which it applies is already a crime, 

whether an alternative purpose to which it may rationally be 

connected is assignable for it, and whether it appears excessive 

in relation to the alternative purpose assigned[.]”

In syllabus point four of Hensler v. Cross, 210 W.Va. 530, 558 S.E.2d 330 (2001), this 

Court held:

The question whether an Act is civil or punitive in 

nature is initially one of statutory construction. A court will 

reject the Legislature’s manifest intent only when a party 

challenging the Act provides the clearest proof that the 

statutory scheme is so punitive in either purpose or effect as to 

negate the Legislature’s intention.

When the tests set forth in Graley’s Body Shop and Hensler are applied to the motor vehicle 

salesperson licensing statutes, it is clear the Legislature intended the denial of a license to 

be a civil penalty. 
11

With regard to the initial inquiry required by syllabus point one of Graley’s 

Body Shop, we note that the Legislature did not expressly label the licensing scheme as 

“civil” in nature; however, the conclusion that the statute is civil is easily reached based 

upon the expressly stated statutory purpose and the means by which that purpose is 

achieved. West Virginia Code § 17A-6E-1 (2006) provides: 

(a) It is the purpose of this article to protect retail motor vehicle 

customers, motor vehicle dealers, banks and the state from 

sustaining losses due to the fraudulent activity of persons 

engaged in the business of selling vehicles.

(b) This article establishes minimum competency and ethical 

standards for persons engaged in the business of selling 

motor vehicles to the general public.

Having declared its purpose, the Legislature proceeded to set forth an administrative 

process under which persons seeking a motor vehicle salesperson license must submit an 

application to the DMV, complete a written test, and undergo a background investigation. 

See W. Va. Code § 17A-6E-4 (2006). In other words, the Legislature set forth a regulatory

process for the issuance of licenses to motor vehicle salespersons and conferred the 

authority to grant such a license upon the DMV, an administrative agency. The Legislature 

also provided for the revocation, suspension, or refusal of a request for renewal of a motor 

vehicle salesperson license in certain circumstances, including when a licensee is 

subsequently convicted of a felony involving financial matters or the motor vehicle 

industry. See W.Va. Code § 17A-6E-9 (2006). 
12

In Shumate v. West Virginia Department of Motor Vehicles, 182 W.Va. 810, 

392 S.E.2d 701 (1990), this Court examined a statutory enactment that allowed the DMV 

to revoke the license of a driver who was operating a vehicle under the influence of alcohol 

for a period of ten years when the driver had a prior license suspension or revocation. In 

that case, the driver challenged the application of the statute as a violation of the ex post 

facto clause because it was not in effect at the time of his prior revocation. Explaining that 

the DMV’s authority to revoke a person’s license to operate a motor vehicle is an 

“administrative remedy,” this Court declared that the “proceedings which take place

pursuant to such statutory enactment are civil proceedings.” Id. at 814, 392 S.E.2d at 705. 

The same is true with respect to the statutory enactment for motor vehicle salesperson 

licensing. 

Having determined that the motor vehicle salesperson licensing statutes are 

civil in nature, we now turn to the second inquiry under syllabus point one of Graley’s 

Body Shop. Despite our determination that the Legislature intended to create a civil 

remedy, we must consider whether the denial of a license is so punitive as to constitute a 

criminal penalty. When the Mendoza–Martinez factors outlined in syllabus point one of 

Graley’s Body Shop are applied to West Virginia Code § 17A-6E-4(c)(5), the analysis 

reveals that the statute is not so punitive as to transform its civil penalty into a criminal 

one. 
13

Beginning with the first two factors, we find that the disability or restraint 

here—the inability of the respondent to pursue certain employment—is generally 

considered non-punitive and has not been historically regarded as a punishment. In Hudson

v. United States, 522 U.S. 93 (1997), the Supreme Court considered whether monetary 

penalties and occupational debarment that had been imposed upon the petitioners in that 

case as a result of their violation of federal banking statutes constituted criminal penalties 

that precluded their subsequent criminal prosecution for the same conduct on double 

jeopardy grounds. 522 U.S. at 95. Applying the first and second Mendoza–Martinez

factors, the Court explained that

neither money penalties nor debarment has historically been 

viewed as punishment. We have long recognized that 

“revocation of a privilege voluntarily granted,” such as a 

debarment, “is characteristically free of the punitive criminal 

element.” Helvering [v. Mitchell], 303 U.S. [391], at 399, and 

n. 2, 58 S.Ct. [630], at 633 n. 2 . . . 

Second, the sanctions imposed do not involve an 

“affirmative disability or restraint,” as that term is normally 

understood. While petitioners have been prohibited from 

further participating in the banking industry, this is “certainly 

nothing approaching the ‘infamous punishment’ of 

imprisonment.” Flemming v. Nestor, 363 U.S. 603, 617, 80 

S.Ct. 1367, 1376, 4 L.Ed.2d 1435 (1960).

Hudson, 522 U.S. at 104. 

Turning to the third Mendoza-Martinez factor, we can easily discern that the 

denial of a motor vehicle salesperson license “does not come into play only on a finding of 

scienter.” Graley’s Body Shop, 188 W.Va. at 503, 425 S.E.2d at 179, syl. pt.1, in part. 
14

Simply put, the licensing statute does not have any inherent scienter requirements. 

Applying the next factor, it is obvious that the sanction does promote deterrence which is 

a traditional aim of punishment. However, we agree with the Commissioner that deterrence 

is a “mere side effect” to the purpose of the statute, which is to protect the public from 

fraud in the motor vehicle industry. 

The fifth factor, which concerns whether the behavior affected by the 

sanction is already a crime, does not indicate that the penalty imposed is punitive even 

though it is predicated upon past criminal conduct. Not being able to obtain a license to 

sell motor vehicles does not result in any additional criminal punishment. The denial of a 

license simply results in the inability to exercise a privilege that is not universally available. 

Turning to the final two factors, we first find that the statute clearly has a 

rational alternative purpose—protecting motor vehicle customers, dealers, banks, and the 

state from fraudulent activity. Finally, we find that denying a motor vehicle salesperson 

license to applicants who have previously committed felonies involving financial matters

or the motor vehicle industry is not excessive in light of the statutory purpose of preventing

fraudulent activity during the purchase of motor vehicles. The license is not denied for the 

purpose of punishing the applicant; rather, it is denied as a means of preventing “sustain[ed] 

losses due to fraudulent activity.” W.Va. Code § 17A-6E-1(a). 
15

In summary, application of the Mendoza-Martinez factors does not show that 

the denial of a motor vehicle salesperson license pursuant to West Virginia Code § 17A6E-4(c)(5) constitutes a criminal punishment such that the ex post facto clause is 

implicated. There is simply no “clear[] proof that the statutory scheme is so punitive in 

either purpose or effect as to negate the Legislature’s intention.” Hensler, 210 W.Va. at 

531, 558 S.E.2d at 331, syl. pt. 2, in part. Accordingly, we now hold that West Virginia 

Code § 17A-6E-4(c)(5) is a regulatory statute which does not violate the prohibition against 

ex post facto laws. The circuit court’s finding to the contrary is erroneous. 

Next, the Commissioner argues that the circuit court erred by finding that 

application of West Virginia Code § 17A-6E-4(c)(5) resulted in a denial of the respondent’s 

due process rights under the United States and West Virginia Constitutions.11

It has long been recognized that one of the liberty 

interests protected by due process is a person’s interest in the 

pursuit of a lawful occupation. See, e.g., Meyer v. Nebraska, 

262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); State v. 

Memorial Gardens Dev. Corp., 143 W.Va. 182, 101 S.E.2d 

425 (1957); Lawrence v. Barlow, 77 W.Va. 289, 87 S.E. 380 

(1915). Thus this and other courts have consistently protected 

people from arbitrary state interference with their right to 

pursue a lawful occupation by demanding procedural 

regularity from government when it licenses private 

employment.

11 Article III, Section 10 of the West Virginia Constitution provides: “No person 

shall be deprived of life, liberty, or property, without due process of law[.]” 
16

Major v. DeFrench, 169 W.Va. 241, 254, 286 S.E.2d 688, 696 (1982); see also Syl. Pt. 1, 

State ex rel. Ellis v. Kelly, 145 W.Va. 70, 112 S.E.2d 641 (1960) (“The right to engage in 

a lawful business, though such business is subject to reasonable regulations under the 

police power, is protected by constitutional provisions relating to due process of law.”). It 

is also well established that “[d]ue process of law, within the meaning of the State and 

Federal constitutional provisions, extends to actions of administrative officers and 

tribunals, as well as to the judicial branches of the governments.” Id. at 70, 112 S.E.2d at 

642, syl. pt. 2. Generally, procedural due process requires

a formal written notice of charges; sufficient opportunity to 

prepare to rebut the charges; opportunity to have retained 

counsel at any hearings on the charges, to confront his 

accusers, and to present evidence on his own behalf; an 

unbiased hearing tribunal; and an adequate record of the 

proceedings.

Jordan v. Roberts, 161 W.Va. 750, 755-56, 246 S.E.2d 259, 262 (1978) (quotations and 

citation omitted). 

The Commissioner contends that the respondent was provided all the 

necessary due process protections outlined above. In particular, he was notified of the 

reason for the denial of his license application. He was given the opportunity to rebut that 

reason at a hearing that was scheduled within three months of his notice of appeal. At the 

hearing, respondent was permitted to present evidence on his behalf, and he had the 

opportunity to confront the Commissioner’s representatives. The hearing was conducted 

by an independent hearing examiner, and the proceedings were properly recorded.
17

 Upon review of the record, we find that the circuit court erred by finding that 

the respondent was not afforded procedural due process. West Virginia Code § 17A-6E-10 

specifically provides for “administrative due process” and allows “any person [to] appeal 

an order . . . denying . . . his or her salesperson license.” As noted by the Commissioner, 

the prescribed procedure for such an appeal, which includes a hearing before an 

independent hearing examiner, was followed in this case. Although the respondent may 

not have obtained the outcome he desired, he was afforded his procedural due process 

rights.12 The circuit court erred in finding otherwise. 

12 During the lower court proceeding, the respondent relied upon Frietag v. Carter, 

489 F.2d 1377 (7th Cir. 1973), to support his claim that he was denied due process. Frietag

was a class action that arose after a chauffeur’s license was denied to an applicant under a 

city’s taxi-cab licensing ordinance that listed “lack of ‘infirmity . . . of mind’” as a 

prerequisite for issuance of the license. Id. at 1379. In that case, the court determined, 

inter alia, that the applicant had been denied due process because the license denial was 

based upon fourteen-year old records that indicated that he had been a patient at a 

psychiatric hospital. Not only was the applicant’s current mental state not considered, he 

was never provided formal notice of the reasons for the license denial or a hearing. Id. at 

1382. The factual differences between Frietag and the case at bar are readily apparent. In 

Frietag, the government official had to determine the applicant’s mental status, and the 

court found that simply relying upon mental health records that were fourteen years old 

was inadequate and not a fair investigation of the applicant’s fitness. Id. at 1383. In the 

case at bar, there was no dispute that the respondent had been previously convicted of a 

felony involving a financial matter and the motor vehicle industry. Moreover, the 

respondent was provided notice and a hearing. While the respondent has argued that the 

Commissioner should have investigated his present situation to determine his fitness to 

obtain a license, West Virginia Code § 17A-6E-4(c)(5) does not provide for such 

consideration when applicants are convicted of felonies involving financial matters or the 

motor vehicle industry. To the extent respondent asserted a substantive due process claim, 

we address that issue infra. As for his lack of procedural due process claim, Frietag

provides no support. 
18

Finally, the Commissioner argues that the circuit court erred in finding that 

W.Va. Code § 17A-6E-4(c)(5) violates the substantive due process standard because the 

statute provides for no exception to the license prohibition when the applicant has been 

convicted of a felony involving a financial matter or the motor vehicle industry. 

Specifically, the circuit court found the statute is overly broad “because of its strict 

prohibition against those individuals [like respondent] acquiring a license regardless of the 

situation or the facts surrounding their criminal history and/or current character.” 

Concomitantly, the court found that the statute is overly narrow because it “prohibits those 

who have committed a certain type of felony from obtaining the requisite licensing. . . yet 

allows other individuals who are guilty of criminal acts to acquire licensure so long as they 

have not committed a felony.” 

The Commissioner maintains that the statute is not overly broad because the 

Legislature sought to protect the public from the exact individuals who are barred from 

obtaining a license. The Commissioner argues that the Legislature’s decision to exclude 

certain convicted felons from obtaining a motor vehicle salesperson license is a reasonable 

and proper exercise of the State’s regulatory powers. In other words, the Commissioner 

says that the license prohibition is rationally related to the specific purpose of the statute—

protecting motor vehicle customers, dealers, banks, and the State “from fraudulent activity 

of persons engaged in the business of selling vehicles.” W.Va. Code § 17A-6E-1(a). 

Because exceptions are permitted for other types of felonies, the Commissioner contends 

that the statute is not overly broad. 
19

As for the circuit court’s finding that the statute is overly narrow, the 

Commissioner asserts that the ruling was based upon a misreading of the statute because 

the court failed to recognize that West Virginia Code § 17A-6E-4(c)(4), the subsection that 

immediately precedes West Virginia Code § 17A-6E-4(c)(5), prohibits applicants who 

have “committed a fraudulent act or omission or repeatedly defaulted in financial 

obligations in connection with the buying, selling, leasing, rental, or otherwise dealing in 

motor vehicles, recreational vehicles, or trailers” from obtaining a license.13 Because 

applicants are prohibited from obtaining a motor vehicle salesperson license if they have 

committed fraudulent acts in the motor vehicle industry regardless of whether the acts were 

felonies, misdemeanors, or even crimes, the Commissioner reasons that the statute is not 

overly narrow. 

This Court has previously recognized that the State may regulate certain 

professions “as an incident to policing the health and welfare of the citizens of this State.” 

Thorne v. Rousch, 164 W.Va. 165, 167, 261 S.E.2d 72, 74 (1979). Nonetheless,

in regulating a given occupation, as in all legislative 

matters based upon the police power[, r]egulations will only be 

valid if they bear some reasonable relationship to the public 

health, safety, morals or general welfare. State ex rel. Cobun v. 

Town of Star City, [157] W.Va. [86], 197 S.E.2d 102 (1973); 

Quesenberry v. Estep, [142 W.Va. 426, 95 S.E.2d 832 (1956)]; 

Carter v. City of Bluefield, 132 W.Va. 881, 54 S.E.2d 747 

(1949); Bowman v. Virginia State Entomologists, 128 Va. 351, 

105 S.E. 141, 12 A.L.R. 1121 (1920).

13 This subsection of West Virginia Code § 17A-6E-4 was not altered when the 

statute was amended in 2019. 
20

164 W.Va. at 168, 261 S.E.2d at 74. As this Court further explained in Rousch,

[i]nherent in the due process clause of the State 

Constitution are both the concept of substantive due process 

and the concept of equal protection of the laws. In order for a 

statute to withstand constitutional scrutiny under the 

substantive due process standard, it must appear that the means 

chosen by the Legislature to achieve a proper legislative 

purpose bear a rational relationship to that purpose and are not 

arbitrary or discriminatory. State ex rel. Harris v. Calendine, 

[160] W.Va. [172], 233 S.E.2d 318 (1977).

164 W.Va. at 168, 261 S.E.2d at 74 (footnote omitted). 

Upon review, we agree with the Commissioner that the prohibition on the 

issuance of a motor vehicle salesperson license to an applicant who has been previously 

convicted of a felony involving a financial matter or the automobile industry bears a 

rational relationship to a legitimate State concern. As discussed above, the Legislature 

enacted the motor vehicle salesperson license requirement to “protect retail motor vehicle 

customers, motor vehicle dealers, banks and the state from sustaining losses due to the 

fraudulent activity of persons engaged in the business of selling vehicles.” W.Va. Code §

17A-6E-1(a). To accomplish that purpose, the Legislature created minimum competency 

and ethical standards, one of which precludes applicants with a felony conviction like that 

of the respondent from obtaining a license. While the prohibition on licensing applicants

set forth in West Virginia Code § 17A-6E-4(c)(5) only applies when the applicant has 

previously committed certain felonious offenses, the prohibition in West Virginia Code §

17A-6E-4(c)(4) applies when the applicant has engaged in fraudulent acts in connection 
21

with the motor vehicle industry whether felonious or not. These licensing prohibitions bear 

a rational relationship to the Legislature’s stated purpose of protecting customers, motor

vehicle dealers, banks, and the state from fraudulent activity of persons who sell vehicles. 

The licensing prohibitions are not arbitrary or discriminatory but rather serve 

to provide the protection that was the impetus for the licensing scheme. As the Legislature 

recognized, the motor vehicle industry presents an opportunity for unscrupulous 

individuals to take advantage of the public. Preventing persons who have a history of 

engaging in fraudulent activity, defaulting on loans, or committing other criminal offenses 

related to the motor vehicle industry from obtaining a license to sell motor vehicles is a 

legitimate and nondiscriminatory means of achieving the protection the Legislature sought 

to provide. Accordingly, we now hold that West Virginia Code § 17A-6E-4(c)(5) is 

rationally related to the State’s legitimate interest in preventing fraudulent activity in the 

motor vehicle industry and is not arbitrary or discriminatory. The circuit court’s decision 

to the contrary is erroneous.

 

IV. Conclusion

Based on the foregoing, we reverse the April 30, 2019, order of the Circuit

Court of Ohio County, and remand this case for entry of an order reinstating the 

Commissioner’s October 19, 2018, order denying the respondent’s application for a motor 

vehicle salesperson license. 

Reversed and remanded.