March 15, 2006, Introduced by Reps. Ward, Stewart and Miller and referred to the Committee on Regulatory Reform.
A bill to amend 1980 PA 299, entitled
"Occupational code,"
by amending sections 104, 601, 602, 603, 604, 728, 1009, 1019, and
2412 (MCL 339.104, 339.601, 339.602, 339.603, 339.604, 339.728,
339.1009, 339.1019, and 339.2412), section 104 as amended by 1996
PA 151, sections 601 and 602 as amended by 2005 PA 278, section 604
as amended by 1989 PA 261, section 728 as amended by 2000 PA 334,
sections 1009 and 1019 as amended by 1992 PA 253, and section 2412
as amended by 2001 PA 113, and by adding section 2006; and to
repeal acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec.
104. (1) "Department" means the department of commerce
labor and economic growth.
(2)
"Director" means the director of the department of
commerce
or an authorized representative of
the director of the
department. of
commerce.
(3) "Disability" means an infirmity that prevents a board
member from performing a duty assigned to the board member.
(4) "Files" means the records, memoranda, opinions, minutes,
and similar written materials that were formerly in the physical
dominion of a board abolished by this act and the records,
memoranda, opinions, minutes, and similar written materials of a
board created under this act.
(5) "Formal complaint" means a document that states the
charges of each alleged violation and is prepared by the department
or the department of attorney general after a complaint has been
received by the department.
(6) "General public" means each individual residing in this
state who is 18 years of age or older, other than a person or the
spouse of a person who is licensed or registered in the occupation
or who has a material financial interest in the occupation being
regulated by the specific article in which the term is used.
(7) "Good moral character" means good moral character as
defined
in section 1 of Act No. 381 of the Public Acts of 1974,
being
section 338.41 of the Michigan Compiled Laws 1974 PA 381,
MCL 338.41.
(8) "Incompetence" means a departure from, or a failure to
conform to, minimal standards of acceptable practice for the
occupation.
(9) "Knowledge and skill" means the information, education,
practical experience, and the facility in applying that
information, education, and practical experience.
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 felony, punishable by a
fine
of not more than $500.00 $5,000.00, or imprisonment
for not
more
than 90 days 4 years, 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
felony, punishable, except as provided in section 735,
by
a fine of not more than $1,000.00 $10,000.00, or imprisonment
for
not more than 1 year 4
years, or both.
(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.
(6) This act does not apply to a person engaging in or
practicing the following:
(a) Interior design.
(b) Building design.
(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.
(7) As used in subsection (5), "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, the department, 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.
(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.
(9) A person, a qualifying officer, or an agent for a legal
entity licensed or registered under this act 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 or registration is required under this act without
alleging and proving that the person, qualifying officer, or agent
was licensed or registered under this act 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 act or using a title designated by this act
without being licensed or registered 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 or unregistered
person, for a refund of compensation after deducting the value of
the goods or services retained by the person.
(10) The department, the attorney general, a county
prosecutor, and an attorney representing a local unit of government
may utilize forfeiture as a remedy in the manner provided for in
section 2006.
(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. 602. A person, school, or institution that violates this
act or a rule or order promulgated or issued under this act shall
be
assessed 1 or more of the following
penalties administrative
or civil sanctions:
(a)
Placement of a limitation on a license or certificate of
registration
for an occupation regulated under
articles 8 to 25
this act.
(b)
Suspension of a license or certificate of registration.
(c)
Denial of a license, certificate of registration, or
renewal
of a license or certificate of registration.
(d)
Revocation of a license or certificate of registration.
(e) An administrative fine for each violation or for each day
of a continuing violation to be paid to the department, not to
exceed $10,000.00 per offense or day of violation.
(f) Censure.
(g) Probation.
(h) A requirement that restitution be made as a condition for
reinstatement.
Sec. 603. (1) If restitution is required to be made under
section 601 or 602, or both, the department may suspend or revoke
the license or certificate of registration of
the person required
to
make the restitution may be suspended until the restitution is
made.
(2) If the department suspends or revokes a license or
registration for failure to make restitution, in whole or part, the
restitution in the form of repair or remedial corrective work shall
be performed by a person appropriately licensed or registered under
this act and shall be paid for by the licensee or registrant
seeking reinstatement.
Sec. 604. A person who violates 1 or more of the provisions of
an
article which regulates regulating an occupation or who
commits
1 or more of the following shall be is subject to the
penalties
administrative or civil sanctions prescribed in section
602:
(a)
Practices Engages in fraud or deceit in obtaining a
license or registration.
(b)
Practices Engages in fraud, deceit, or dishonesty in
practicing an occupation.
(c) Violates a rule of conduct of an occupation.
(d) Demonstrates a lack of good moral character.
(e) Commits an act of gross negligence in practicing an
occupation.
(f)
Practices Engages in false advertising.
(g)
Commits an act which that demonstrates incompetence.
(h) Violates any other provision of this act or a rule
promulgated under this act for which a penalty or sanction is not
otherwise prescribed.
(i) Fails to comply with a subpoena issued under this act.
(j) Fails to respond to a citation as required by section 555.
(k) Violates or fails to comply with a final order issued by a
board, including a stipulation, settlement agreement, or a
citation.
(l) Knowingly fails to notify the department of a change in
address.
(m) Knowingly fails to notify the department of a change in
partners, officers, or other members if required under a particular
article.
(n) Knowingly fails to conspicuously display a license or
registration or produce a pocket license or registration if
required under a particular article.
(o) Operates or advertises under a name different than the
name under which the person is licensed or registered.
Sec.
728. (1) A firm organized for the practice of public
accounting shall apply for and obtain a license under this article
in order to engage in the practice of public accounting in this
state. The firm applying for licensure under this article shall
meet both of the following requirements:
(a) At least a simple majority of the equity and voting rights
of the firm are held directly or beneficially by individuals who
are licensed in good standing as certified public accountants of
this or another state or the equivalent in another licensing
jurisdiction acceptable to the board.
(b) The principal officer of the firm and each officer or
director having authority for the practice of public accounting by
the firm are licensed in good standing as certified public
accountants in this or another state or the equivalent in another
licensing jurisdiction acceptable to the board.
(2)
A firm shall provide a change in address to the department
within
30 days of the change.
Sec. 1009. (1) A license issued under this article is not
transferable.
(2) Within 15 days after a personnel agency changes from a
sole proprietorship to a partnership or corporation, or from a
partnership to a sole proprietorship or corporation, or from a
corporation to a sole proprietorship or partnership, all licensure
requirements for the new entity shall be met.
(3)
A personnel agency which that
seeks to admit a new
partner to an existing partnership or a new officer or stockholder
to an existing corporation shall notify the department within 15
days after a change in the partners of a partnership or the
officers of a corporation or the stockholders of a corporation
owning 10% or more of the stock of the corporation. The notice
shall be made on a form provided by the department and shall
contain information by which the department may determine whether
the new individual is of good moral character.
(4) If a designated employment agent or consulting agent is no
longer employed by the personnel agency or is no longer charged
with the general management of the personnel agency's office, the
personnel agency shall designate another licensed employment agency
or consulting agent and notify the department within 15 days after
the appointment is made. A temporary license may be issued to an
applicant for an agent's license pursuant to section 213.
(5) An employment agent or consulting agent shall notify the
department in writing within 5 business days after the date he or
she is no longer employed by a personnel agency or is no longer
charged with the general management of the office of that personnel
agency.
(6)
A personnel agency shall notify the department, in
writing,
within 30 days after the date of any change of address and
shall
demonstrate that the premises designated is an acceptable
place
for the personnel agency to conduct business.
Sec. 1019. A personnel agency, or any licensed agent or other
agent or employee of a personnel agency shall not do any of the
following:
(a)
Use any name other than the name in which the personnel
agency
is licensed.
(b)
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 services as a personnel agency without alleging and
proving
that the agency and its agent were licensed under this
article
during the performance of the act or contract.
(a) (c)
Use a form which
that contains provisions in
violation of this article, rules promulgated under this article, or
other state or federal laws or regulations.
(b) (d)
Share a fee with any other person,
except a
personnel agency licensed in this state or in any other state
requiring licenses for personnel agencies or a personnel agency in
a state in which licensure is not required.
(c) (e)
Persuade, induce, or solicit an
employer to
discharge an employee.
(d) (f)
Request or accept a registration
fee or any other
fee not set forth in the agency's contract with a client or charge
a fee higher than the fee set forth in the contract.
(e) (g)
Request or accept, or give, offer,
or promise to
give, a gift of such value that the gift is likely to persuade,
induce, or influence an action of an employer or benefit the
personnel agency or any of its agents or employees.
(f) (h)
Knowingly procure, entice, send,
or aid in
procuring, enticing, or sending a person to perform an illegal act.
(g) (i)
Prevent an employee of the
department from
inspecting the records of the agency at any time during normal
business hours.
Sec. 2006. The department, the attorney general, a county
prosecutor, and an attorney representing a local unit of government
may utilize the forfeiture provisions of chapter 47 of the revised
judicature act of 1961, 1961 PA 236, MCL 600.4701 to 600.4709, for
items seized and determined to be proceeds of a crime, substituted
proceeds of a crime, or the instrumentality of a crime, relating to
a violation of this article, as those terms are defined under
section 4701 of the revised judicature act of 1961, 1961 PA 236,
MCL 600.4701.
Sec.
2412. (1) A person or qualifying officer for a
corporation
or member of a residential builder or residential
maintenance
and alteration contractor 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 a
license
is required by this article without alleging and proving
that
the person was licensed under this article during the
performance
of the act or contract. (2) Failure
of the person
bringing a complaint against a licensee to utilize a contractually
provided alternative dispute resolution procedure shall be an
affirmative defense to an action brought in a court of this state
against a licensee under this article.
Enacting section 1. Sections 916 and 2512a of the occupational
code, 1980 PA 299, MCL 339.916 and 339.2512a, are repealed.
Enacting section 2. This amendatory act does not take effect
unless Senate Bill No.____ or House Bill No. 5875(request no.
02669'05 a **) of the 93rd Legislature is enacted into law.