HB-5874, As Passed House, June 29, 2006

 

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

HOUSE BILL NO. 5874

 

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1980 PA 299, entitled

 

"Occupational code,"

 

by amending section 601 (MCL 339.601), as amended by 2005 PA 278,

 

and by adding section 2006.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 601. (1) A person shall not engage in or attempt to

 

engage in the practice of an occupation regulated under this act or

 

use a title designated in this act unless the person possesses a

 

license or registration issued by the department for the

 

occupation.

 

     (2) A school, institution, or person shall not operate or

 

attempt to operate a barber college, school of cosmetology, or real

 

estate school unless the school, institution, or person is licensed

 


or approved by the department.

 

     (3) A person, school, or institution that violates subsection

 

(1) or (2) is guilty of a misdemeanor  ,  punishable by a fine of

 

not more than $500.00  ,  or imprisonment for not more than 90

 

days, or both.

 

     (4) A person, school, or institution that violates subsection

 

(1) or (2) a second or any subsequent time is guilty of a

 

misdemeanor  ,  punishable, except as provided in section 735, by a

 

fine of not more than $1,000.00  ,  or imprisonment for not more

 

than 1 year, or both.

 

     (5) Notwithstanding subsections (3) and (4), a person not

 

licensed under article 20 as an architect, professional engineer,

 

or professional land surveyor who violates subsection (1) or (2) is

 

guilty as follows:

 

     (a) In the case of a first offense, a misdemeanor punishable

 

by a fine of not less than $5,000.00 or more than $25,000.00 or

 

imprisonment for not more than 1 year, or both.

 

     (b) In the case of a second offense, a misdemeanor punishable

 

by a fine of not less than $5,000.00 or more than $25,000.00 or

 

imprisonment for not more than 2 years, or both.

 

     (c) In the case of a third or subsequent offense, a felony

 

punishable by a fine of not less than $5,000.00 or more than

 

$25,000.00 or imprisonment for not more than 4 years, or both.

 

     (6) Any violation of this act shall include a requirement that

 

restitution be made, based upon proofs submitted to and findings

 

made by the trier of fact as provided by law.

 

     (7)  (5)  Notwithstanding the existence and pursuit of any

 


other remedy, an affected person may maintain injunctive action in

 

a court of competent jurisdiction to restrain or prevent a person

 

from violating subsection (1) or (2). If successful in obtaining

 

injunctive relief, the affected person  shall be  is entitled to

 

actual costs and attorney fees.

 

     (8)  (6)  This act does not apply to a person engaging in or

 

practicing the following:

 

     (a) Interior design.

 

     (b)  Building  Residential building design. As used in this

 

subdivision, "residential building design" means the rendering of

 

residential design services for a detached 1- and 2-family

 

residence building by a person exempted from the requirements of

 

section 2012.

 

     (c) Any activity for which the person is licensed under the

 

state plumbing act, 2002 PA 733, MCL 338.3511 to 338.3569.

 

     (d) Any activity for which the person is licensed under the

 

Forbes mechanical contractors act, 1984 PA 192, MCL 338.971 to

 

338.988.

 

     (e) Any activity for which the person is licensed under the

 

electrical administrative act, 1956 PA 217, MCL 338.881 to 338.892.

 

     (9)  (7)  As used in subsection  (5)  (7), "affected person"

 

means a person directly affected by the actions of a person

 

suspected of violating subsection (1) or (2) and includes, but is

 

not limited to, a licensee or registrant, a board established

 

pursuant to this act, a person who has utilized the services of the

 

person engaging in or attempting to engage in an occupation

 

regulated under this act or using a title designated by this act

 


without being licensed or registered by the department, or a

 

private association composed primarily of members of the occupation

 

in which the person is engaging in or attempting to engage in or in

 

which the person is using a title designated under this act without

 

being registered or licensed by the department.

 

     (10)  (8)  An investigation may be conducted under article 5

 

to enforce this section. A person who violates this section shall

 

be subject to this section and section 506.

 

     (11)  (9)  The remedies under this section are independent and

 

cumulative. The use of 1 remedy by a person  shall  does not bar

 

the use of other lawful remedies by that person or the use of a

 

lawful remedy by another person.

 

     (12)  (10)  An interior designer may perform services in

 

connection with the design of interior spaces including preparation

 

of documents relative to finishes, systems furniture, furnishings,

 

fixtures, equipment, and interior partitions that do not affect the

 

building mechanical, structural, electrical, or fire safety

 

systems.

 

     Sec. 2006. (1) A person, a qualifying officer, a licensee, or

 

an agent for a licensee under this article shall not bring or

 

maintain an action in a court of this state for the collection of

 

compensation for the performance of an act or contract for which

 

licensure is required under this article without alleging and

 

proving that the person, qualifying officer, licensee, or agent was

 

licensed under this article during the performance of the act or

 

contract. A person who has utilized the services of a person

 

engaging in or attempting to engage in an occupation regulated

 


under this article or using a title designated by this article

 

without being licensed by the department may bring an action in a

 

court of competent jurisdiction, or offer as a counterclaim to an

 

action brought by an unlicensed person, for a refund of

 

compensation after deducting the value of the goods or services

 

retained by the person.

 

     (2) If the department suspends a license for failure to make

 

restitution, in whole or in part, the restitution in the form of

 

repair or remedial corrective work shall be performed by a person

 

appropriately licensed under this article and shall be paid for by

 

the licensee.