January 31, 2012, Introduced by Reps. Franz and Cotter and referred to the Committee on Regulatory Reform.
A bill to amend 1980 PA 299, entitled
"Occupational code,"
by amending sections 411, 601, 2401, 2402, 2403, 2404, 2404b, 2410,
2411, and 2412 (MCL 339.411, 339.601, 339.2401, 339.2402, 339.2403,
339.2404, 339.2404b, 339.2410, 339.2411, and 339.2412), section 411
as amended by 2008 PA 309, section 601 as amended by 2008 PA 319,
section 2401 as amended by 1991 PA 166, section 2402 as amended and
section 2404b as added by 2007 PA 157, section 2403 as amended by
1984 PA 191, sections 2404 and 2411 as amended by 2010 PA 151, and
section 2412 as amended by 2007 PA 155; and to repeal acts and
parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 411. (1) Subject to subsection (2), a person who fails to
renew a license or registration on or before the expiration date
shall not practice the occupation, operate, or use the title after
the expiration date printed on the license or registration. A
license or registration shall lapse on the day after the expiration
date.
(2)
A The department shall
permit a person who fails to renew
a
license or registration on or before the expiration date shall be
permitted
to renew the license or
registration by payment of if
the
person pays the required license or registration fee and a late
renewal fee within 60 days after the expiration date.
(3) Except as otherwise provided in this act, the department
may
renew the license or registration of a
person who fails failed
to
renew a license or registration within the time period set forth
described
in subsection (2), may
be relicensed or reregistered
without
examination and without meeting requiring
any additional
education or training requirements in force at the time of the
renewal
application for relicensure or
reregistration if all of the
following conditions are met:
(a) The person applies within 3 years after the expiration
date of the last license or registration.
(b) The person pays an application processing fee, the late
renewal fee, and the per year license or registration fee for the
upcoming licensure or registration period, subject to subsection
(8).
(c)
Penalties The person has
satisfied any penalties and
conditions imposed by disciplinary action in this state or any
other
jurisdiction. have been satisfied.
(d) The person submits proof of having completed the
equivalent of 1 year of continuing education within the 12 months
immediately preceding the date of application or as otherwise
provided in a specific article or by rule, if continuing education
is
required of licensees or registrants under a the specific
article applicable to the person's license or registration.
(4) Except as otherwise provided in this act, the department
may
relicense or reregister a person may
be relicensed or
reregistered
subsequent to 3 or more years after
the expiration
date
of the person's last license or registration upon showing that
if the person meets the requirements for licensure or registration
as
established by the department in
rules or procedures. which The
rules
or procedures may require that
a person to pass all or part
of
a required examination, to complete continuing education
requirements,
or to meet current education or training
requirements.
(5) Unless otherwise provided in this act, a person who seeks
reinstatement of a license or registration shall file an
application on a form provided by the department, pay the
application processing fee, and file a petition to the department
and the appropriate board stating reasons for reinstatement and
including evidence that the person can and is likely to serve the
public in the regulated activity with competence and in conformance
with all other requirements prescribed by law, rule, or an order of
the
department or board. The procedure to be followed in In
conducting
the review of a petition for reinstatement, is
prescribed
the department shall follow
the procedure established in
article 5. If approved for reinstatement, the person shall pay the
per year license or registration fee for the upcoming license or
registration period, if appropriate, in addition to completing any
requirements
imposed in accordance with under
section 203(2).
(6)
Beginning Except as
provided in subsections (7) and (10),
beginning July 23, 2004, the department shall issue an initial or
renewal
license or registration not later than within 90 days after
the
applicant files a completed application. Receipt of the An
application is considered received on the date the application is
received
by any agency or department of the this state. of
Michigan.
If the department considers the application is considered
incomplete, by
the department, the department shall notify the
applicant in writing, or make information electronically available
to
the applicant, within 30 days after receipt
of it receives the
incomplete application, describing the deficiency and requesting
the additional information. The 90-day period described in this
subsection
is tolled upon notification by from the date the
department notifies the applicant of a deficiency until the date
the
department receives the requested information. is received by
the
department. The A determination of the completeness of by the
department that an application is complete does not operate as an
approval of the application for the license or registration and
does
not confer eligibility of on
an applicant determined the
department determines is otherwise ineligible for issuance of a
license or registration.
(7) Notwithstanding the time periods described in subsection
(6),
in the case of for a real estate broker and or associate
broker
licensed license under article 25, the time period for
approval by the department of a completed application is 30 days
and
the time period for notification sent the department to notify
an
applicant in writing, or made make information electronically
available to the applicant, by the department to the applicant
regarding
an incomplete application is 15 days after the receipt of
the
application is received by any agency or department of the this
state. of
Michigan.
(8) If the department fails to issue or deny a license or
registration
within the time required by under
this section, the
department shall return the license or registration fee, and shall
reduce the license or registration fee for the applicant's next
renewal
application, if any, by 15%. The A failure to issue or deny
a license or registration within the time required under this
section does not allow the department to otherwise delay the
processing
of the application, and that if
the application ,
upon
completion,
shall be placed is completed,
the department shall
place the application in sequence with other completed applications
received at that same time. The department shall not discriminate
against
an applicant in the processing of an application based upon
on
the fact that the a license
or registration fee was refunded or
discounted under this subsection.
(9) Beginning October 1, 2005, the director shall submit a
report by December 1 of each year to the standing committees and
appropriations subcommittees of the senate and house of
representatives concerned with occupational issues. The director
shall include all of the following information in the report
concerning the preceding fiscal year:
(a) The number of initial and renewal applications the
department received and completed within the 90-day time period
described in subsection (6) and the 30-day time period described in
subsection (7).
(b) The number of applications the department denied.
(c) The number of applicants that were not issued a license or
registration within the applicable time period and the amount of
money returned to licensees and registrants under subsection (8).
(10)
Subsection (6) does not apply to licenses or
registrations
a license or registration for any of the following:
(a)
An interior designer listed under article 6 section 601a.
(b)
A certified public accountant and or registered accountant
under article 7.
(c) An agency non-owner manager of a collection agency under
article 9.
(d)
A barber, student barber, student instructor, and or
barber instructor under article 11.
(e) An employment and consulting agent of a personnel agency
under article 10.
(f) A cosmetologist, manicurist, natural hair culturist,
esthetician,
electrologist, instructor, and or
registered student
under article 12.
(g)
A hearing aid salesperson and or
trainee under article 13.
(h)
A mortuary science licensee, embalmer, and or resident
trainee in mortuary science under article 18.
(i)
An individual architect, surveyor, and or engineer under
article 20.
(j) A forester under article 21.
(k) An individual landscape architect under article 22.
(l) A community planner under article 23.
(m)
An individual residential builder and alteration and
maintenance
contractor and a salesperson for a residential builder
and
alteration and maintenance contractor under
article 24.
(n) A real estate salesperson under article 25.
(o) A real estate appraiser under article 26.
(p)
An ocularist and or ocularist apprentice under article 27.
(11) Notwithstanding any provision in this act to the
contrary, an individual or qualifying officer who is a licensee or
registrant under this act and who is mobilized for military duty in
the armed forces of the United States by the president of the
United States is temporarily exempt from the renewal license fee,
continuing education requirements, and any other related
requirements
of this act. It is the obligation of the a licensee or
registrant to inform the department by written or electronic mail
of the desire to exercise the temporary exemption under this
subsection.
If the a licensee applying for the temporary exemption
is the individual responsible for supervision and oversight of
licensed activities, notice of arrangements for adequate provision
of that supervision and oversight shall be provided to the
department. The licensee or registrant shall accompany the request
with proof, as determined by the department, to verify the
mobilized
duty status. The department, upon receiving If it
receives a request for a temporary exemption under this subsection,
the department shall make a determination of the requestor's status
and grant the temporary exemption after verification of mobilized
duty status under this subsection. A temporary exemption is valid
until 90 days after the licensee's or registrant's release from the
mobilized
duty upon on which the exemption was based, but shall not
exceed 36 months from the date of expiration of the license or
registration.
(12) As used in this section, "completed application" means an
application complete on its face and submitted with any applicable
licensing
or registration fees as well as and
with any other
information, records, approval, security, or similar item required
by law or rule from a local unit of government, a federal agency,
or a private entity but not from another department or agency of
the
this state. of Michigan.
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) Subject to section 411, a person whose license or
registration is suspended, revoked, or lapsed, as determined by the
records of the department, is considered unlicensed or
unregistered.
(4) Except as otherwise provided for in subsection (6),
subsection (7), or section 735, 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.
(5) Except as otherwise provided for in subsection (6),
subsection (7), or section 735, a person, school, or institution
that violates subsection (1) or (2) a second or any subsequent time
is guilty of a misdemeanor, punishable by a fine of not more than
$1,000.00, or imprisonment for not more than 1 year, or both.
(6)
Notwithstanding subsections (4) and (5), a A person
not
licensed
that violates subsection (1)
by engaging in the occupation
of
residential builder without a license under
article 24 as a
residential
builder or a residential maintenance and alteration
contractor
who violates subsection (1) or (2) is
guilty as follows
of 1 or more of the following:
(a)
In the case of If the
violation is 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 If the
violation is a second or subsequent
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 an offense that If
the violation causes
death or serious injury, 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.
(7)
Notwithstanding subsections (4) and (5), a A person
not
licensed
under article 20 as an that
violates subsection (1) by
engaging in the occupation of architect, professional engineer, or
professional
land surveyor who violates subsection (1) or (2)
without
a license under article 20 is guilty as
follows of 1 or
more of the following:
(a)
In the case of If the
violation is 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 93 days, or both.
(b)
In the case of If the
violation is a second or subsequent
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.
(c)
In the case of an offense that If
the violation causes
death or serious injury, 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.
(8)
Any A penalty for a 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.
(9) Notwithstanding the existence and pursuit of any other
remedy, an affected person may maintain an injunctive action 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.
(10) This act does not apply to a person engaging in or
practicing the following:
(a) Interior design.
(b) 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 who is exempt from
this article under 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.
(11) As used in subsection (9), "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 under
this
act, the department, a person who that 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.
(12) An investigation may be conducted under article 5 to
enforce
this section. A person who that
violates this section shall
be
is subject to this section and sections 506, 602, and
606.
(13) The department, the attorney general, or a county
prosecutor may utilize forfeiture as a remedy in the manner
provided
for described in section 606.
(14) 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.
(15) 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.
(16)
Upon entering If a court enters
a conviction under
subsection
(4), (5), or (6), a the court entering the conviction
shall notify, by mail, facsimile transmission, or electronic mail,
the bureau of commercial services at the department of the
conviction.
Sec. 2401. As used in this article:
(a) "Michigan residential code" means the Michigan residential
code promulgated by the director under section 4 of the Stille-
DeRossett-Hale single state construction code act, 1972 PA 230, MCL
125.1504.
(b) (a)
"Residential builder"
means a person engaged in the
construction of a residential structure or a combination
residential and commercial structure who, for a fixed sum, price,
fee, percentage, valuable consideration, or other compensation,
other than wages for personal labor only, undertakes with another
or offers to undertake or purports to have the capacity to
undertake with another for the erection, construction, replacement,
repair, alteration, or an addition to, subtraction from,
improvement, wrecking of, or demolition of, a residential structure
or combination residential and commercial structure; a person who
manufactures, assembles, constructs, deals in, or distributes a
residential or combination residential and commercial structure
which
that is prefabricated, preassembled, precut, packaged, or
shell housing; or a person who erects a residential structure or
combination
residential and commercial structure except that is not
for the person's own use and occupancy on the person's property.
(b)
"Residential maintenance and alteration contractor" means
a
person who, for a fixed sum, price, fee, percentage, valuable
consideration,
or other compensation, other than wages for personal
labor
only, undertakes with another for the repair, alteration, or
an
addition to, subtraction from, improvement of, wrecking of, or
demolition
of a residential structure or combination residential
and
commercial structure, or building of a garage, or laying of
concrete
on residential property, or who engages in the purchase,
substantial
rehabilitation or improvement, and resale of a
residential
structure, engaging in that activity on the same
structure
more than twice in 1 calendar year, except in the
following
instances:
(i) If the work is for the person's own use and
occupancy.
(ii) If the rehabilitation or improvement work of
residential
type
property or a structure is contracted for, with, or hired
entirely
to be done and performed for the owner by a person
licensed
under this article.
(iii) If work is performed by a person employed by the
owner to
perform
work for which the person is licensed by the state.
(c) "Residential structure" means a premises used or intended
to be used for a residence purpose, and related facilities
appurtenant
to the premises , that
are used or intended to be used
,
as an adjunct of residential
occupancy.
(d)
"Salesperson" means an employee or agent, other than a
qualifying
officer, of a licensed residential builder or
residential
maintenance and alteration contractor, who for a
salary,
wage, fee, percentage, commission, or other consideration,
sells
or attempts to sell, negotiates or attempts to negotiate,
solicits
for or attempts to solicit for, obtains or attempts to
obtain
a contract or commitment for, or furnishes or attempts or
agrees
to furnish, the goods and services of a residential builder
or
residential maintenance and alteration contractor, except a
person
working for a licensed residential builder or residential
maintenance
and alteration contractor who makes sales which are
occasional
and incidental to the person's principal employment.
(d) (e)
"Wages" means money paid
or to be paid on an hourly or
daily basis by an owner, lessor, or occupant of a residential
structure or combination residential and commercial structure as
consideration for the performance of personal labor on the
structure by a person who does not perform or promise to perform
the labor for any other fixed sum, price, fee, percentage, valuable
consideration, or other compensation and who does not furnish or
agree to furnish the material or supplies required to be used in
the performance of the labor or an act defined in subdivision (a).
or
(b).
Sec.
2402. (1) A residential builders' and maintenance and
alteration
contractors' board is created. Of
the 9-member board, 4
members
shall be The board shall
consist of 9 individuals, as
follows:
(a)
Six individuals who are licensed
residential builders. ,
and
2 members shall be licensed maintenance and alteration
contractors.
(b) (2)
Of the members Three
individuals representing the
general
public, at least 1 member shall be of whom is registered
under the building officials and inspectors registration act, 1986
PA 54, MCL 338.2301 to 338.2313.
Sec. 2403. (1) Notwithstanding article 6, a person may engage
in the business of or act in the capacity of a residential builder
or
a residential maintenance and alteration contractor or
salesperson
in this state without having a
license, if the person
is 1 of the following:
(a) An authorized representative of the United States
government, this state, or a county, township, city, village, or
other political subdivision of this state.
(b)
An owner of property , with reference to engaged in
construction
of a structure on the that property
for the owner's
own use and occupancy.
(c)
An owner of rental property , with reference to the
engaged in maintenance and alteration of that rental property.
(d)
An officer of a court acting within the terms scope of
the
officer's
that office.
(e)
A person other than the salesperson who engages solely in
the business of performing work and services under contract with a
residential
builder or a residential maintenance and alteration
contractor
licensed under this article.
(f) A person working on 1 undertaking or project by 1 or more
contracts,
if the aggregate contract price for which the labor,
material, and any other item for the undertaking or project is less
than
$600.00. This The exemption described
in this subdivision does
not apply if the work of a construction is only a part of a larger
or major operation, whether undertaken by the same or a different
residential
builder, or residential maintenance and alteration
contractor,
or in which a division of the
operation is made in
contracts of amounts less than $600.00, to evade this act.
(g)
An electrical contractor who that
is licensed under Act
No.
217 of the Public Acts of 1956, as amended, being sections
338.881
to 338.892 of the Michigan Compiled Laws the electrical
administrative
act, 1956 PA 217, MCL 338.881 to 338.892. This The
exemption described in this subdivision applies only to the
electrical installation, electrical maintenance, or electrical
repair work performed by the electrical contractor.
(h)
A plumbing contractor licensed under Act No. 266 of the
Public
Acts of 1929, as amended, being sections 338.901 to 338.917
of
the Michigan Compiled Laws the
state plumbing act, 2002 PA 733,
MCL
338.3511 to 338.3569. This The exemption
described in this
subdivision applies only to plumbing installation, plumbing
maintenance, or plumbing repair work performed by the plumbing
contractor.
(i) A mechanical contractor who is licensed under the Forbes
mechanical contractors act, 1984 PA 192, MCL 338.971 to 338.988.
This
The exemption described
in this subdivision applies only to
mechanical installation, mechanical maintenance, or mechanical
repair work performed by the mechanical contractor.
(2) This section does not prohibit a person from engaging in
any of the following, for a fixed sum, price, fee, percentage,
valuable consideration, or other compensation, whether on his or
her own or as a subcontractor for a residential builder:
(a) The repair of, alteration of, addition to, subtraction
from, improvement of, wrecking of, or demolition of a residential
structure, commercial structure, or combination residential and
commercial structure.
(b) The building of a garage.
(c) The laying of concrete on commercial or residential
property.
(d) The construction, alteration, or repair of any
appurtenance of residential or commercial property.
(e) The purchase, substantial rehabilitation or improvement,
and resale of a residential or commercial structure.
(f) Any of the following crafts and trades: carpentry,
concrete, swimming pool installation, basement waterproofing,
excavation, insulation work, masonry work, painting and decorating,
roofing, siding and gutters installation, screen or storm sash
installation, tile and marble work, and house wrecking.
Sec. 2404. (1) The department may require an applicant, a
licensee, or each partner, trustee, director, officer, member, or
shareholder of an applicant or licensee to submit evidence of good
moral
character , and
financial stability.
(2)
Before the issuance of department issues a license, an
applicant
shall submit a copy of an his
or her operator's license
or
state personal identification card.
, to be used by the The
department may only use the copy of the card for proof of the
applicant's
identity. of the applicant.
(3) (2)
The department shall require an
applicant for a
license
to pass an examination establishing that establishes that
the applicant has a fair knowledge of the obligations of a
residential
builder or residential maintenance and alteration
contractor
to the public and the applicant's
principal, and the
statutes relating to the applicant's licensure.
(3)
The department, upon application, may issue a residential
maintenance
and alteration contractor's license to an applicant
who,
upon examination, qualifies for a license, which authorizes
the
licensee according to the applicant's qualifications, crafts,
and
trades to engage in the activities of a residential maintenance
and
alteration contractor. A license includes the following crafts
and
trades: carpentry; concrete; swimming pool installation;
waterproofing
a basement; excavation; insulation work; masonry
work;
painting and decorating; roofing; siding and gutters; screen
or
storm sash installation; tile and marble work; and house
wrecking.
The license shall specify the particular craft or trade
for
which the licensee has qualified. This subsection does not
prohibit
a specialty contractor from taking and executing a
contract
involving the use of 2 or more crafts or trades if the
performance
of the work in the craft or trade other than the craft
for
which the person is licensed is incidental and supplemental to
the
performance of work in the craft for which the specialty
contractor
is licensed.
(4)
A residential builder or residential maintenance and
alteration
contractor shall maintain a place of
business in this
state.
If a residential builder or residential maintenance and
alteration
contractor maintains more than 1
place of business
within
in this state, the
department shall issue a branch office
license
shall be issued to the builder or contractor for each place
of
those places of business. so
maintained.
(5) Beginning the license cycle after December 21, 2007, the
department
shall issue the license of a residential builder and
residential
maintenance and alteration contractor for
a period term
of
3 years. in duration. Beginning December 21, 2007,
an applicant
for
renewal of a residential builder or maintenance and alteration
contractor
license shall state that he or she
has a current copy of
the Michigan residential code and has fulfilled the appropriate
requirements regarding continuing competency.
(6) Beginning December 21, 2007, a licensee shall maintain
documentation, for at least 5 years, of activities meeting the
continuing
competency requirements as prescribed required under
this article.
Sec.
2404b. (1) Beginning the effective date of the amendatory
act
that added this section June
1, 2008, applicants an applicant
for
initial licensure either as a residential builder or as a
residential
maintenance and alteration contractor shall must
successfully
complete a prelicensure course of study as prescribed
by
required under this subsection to obtain a license. Licensees
holding
A licensee that holds a residential builder or a
residential
maintenance and alteration contractor license
on the
effective
date of the amendatory act that added this section that
are
June 1, 2008 and is renewing a license in the capacity of an
individual
or qualifying officer, or both, are is exempt from the
requirement of successfully completing prelicensure courses
described in this subsection. The department shall require an
applicant
who is not exempted exempt under this subsection
to
successfully complete 60 hours of approved prelicensure courses
consisting of at least 6 hours of courses in each of the following
areas of competency:
(a) Business management, estimating, and job costing.
(b) Design and building science.
(c) Contracts, liability, and risk management.
(d) Marketing and sales.
(e) Project management and scheduling.
(f) The current Michigan residential code.
(g) Construction safety standards promulgated under the
Michigan occupational safety and health act, 1974 PA 154, MCL
408.1001 to 408.1094.
(2)
Beginning in the 2009
calendar year, after
the effective
date
of the amendatory act that added this section, a person
obtaining
shall not receive an initial licensure license under
this
article
as a residential builder or a residential maintenance and
alteration
contractor shall if he or she
does not successfully
complete
not less than 1 of the
following:
(a) If subdivision (b) does not apply, at least 3 hours of
activities
demonstrating continuing competency per in each calendar
year , during the first 6 calendar years of licensure, and
21 hours
per
for each 3-year time period since the issuance of his or her
license. At least 3 hours shall be devoted to those activities
designed to develop a licensee's understanding and ability to apply
state building codes and laws relating to the licensed occupation,
safety,
and changes in construction and business management laws. A
(b)
If a licensee who has held a
license for more than 6 years
or
who and has not been determined by the department in the subject
of
a final order to have violated this
act or a rule adopted under
this
act shall successfully complete under
subsection (3), at least
3
hours of activities demonstrating continuing competency per in
each
license cycle to include that includes 1 hour of codes, 1 hour
of safety, and 1 hour of legal issues as described in this
subsection.
(3)
In the case of a licensee who has been If the department
has
determined by the department in
a final order to have that
a
licensee
has violated this act or a rule adopted
under this act, he
or
she shall the licensee must successfully complete, during the
next complete license cycle, up to 21 hours of activities that
demonstrate the development of continuing competency during that
next license cycle as determined appropriate by order of the
department,
at least 3 hours of that continuing competency to
include
that includes at least 1 hour of codes, 1 hour of safety,
and 1 hour of legal issues as described in subsection (2).
(4)
As activities that demonstrate the development of
continuing
competency For purposes of
this section, the education
courses
described in section 3, pages 3-6 through to 3-58 of the
January 2005 edition of the publication "NAHB University of
Housing, Blueprint for Success", published by the national
association of home builders, and taught by instructors meeting the
requirements of section 4, pages 4-5 through 4-9 of the January
2005 edition of "NAHB University of Housing, Blueprint for
Success", are considered approved, are considered appropriate for
fulfilling the prelicensure and continuing competency requirements
of subsections (1), (2), and (3), and are incorporated by
reference.
A licensee may take any courses equivalent to those the
courses incorporated by reference by this subsection. Updates to
the courses described in this subsection or equivalent courses are
acceptable unless the department determines that the courses do not
provide a means of developing and maintaining continuing competency
for those applicants or licensees who successfully fulfill the
course requirements. Any construction code update courses approved
by
the bureau of construction codes as well as and any fire
safety
or workplace safety courses approved or sponsored by the department
are also considered appropriate for fulfilling the continuing
competency requirements of this subsection. The department may, by
rule, amend, supplement, update, substitute, or determine
equivalency regarding any courses or alternate activities for
developing continuing competency described in this subsection.
(5) The department may waive the requirement of membership in
a local, state, or national trade association contained in the
instructor standards of section 4, pages 4-5 through 4-9 of the
January 2005 edition of the publication "NAHB University of
Housing, Blueprint for Success", published by the national
association of home builders, and incorporated by reference. By
rule, the department may amend, supplement, update, substitute, or
determine equivalency regarding the standards in this subsection
and shall establish instructor qualifications for courses not
incorporated by reference in subsection (4).
(6)
The subject matter of For purposes
of this section, the
department shall only consider courses or activities given or
sponsored by any of the following as appropriate for fulfilling the
prelicensure
and continuing competency activities may be offered by
a
requirements described in
this section:
(a) A high school, intermediate school district, community
college,
or university. ,
(b)
The bureau of construction codes , or the Michigan
occupational
safety and health administration.
,
(c)
A trade association. ,
or a
(d) A proprietary school licensed by the department as meeting
the subject matter qualifications described in subsection (4) and
the instructional qualifications described in subsection (5).
(7) The department shall promulgate rules to provide for the
following:
(a) Requirements other than those listed in subsection (4) for
determining that a course meets the minimum criteria for developing
and maintaining continuing competency.
(b) Requirements for acceptable courses offered at seminars
and conventions by trade associations, research institutes, risk
management entities, manufacturers, suppliers, governmental
agencies other than those named in subsection (4), consulting
agencies, or other entities.
(c) Acceptable distance learning.
(d) Alternate forms of continuing competency, including
comprehensive testing, participation in mentoring programs,
research, participation in code hearings conducted by the
international
code council, and publication of articles in a trade
journal
journals or regional magazine magazines as an expert in the
field. The alternate forms shall be designed to maintain and
improve the licensee's ability to perform the occupation with
competence and shall prescribe proofs that are necessary to
demonstrate that the licensee has fulfilled the requirements of
continuing competency.
(8) Each licensee may select approved courses in his or her
subject matter area or specialty. Service as a lecturer or
discussion leader in an approved course shall be counted toward the
continuing competency requirements of this section. Alternate forms
of continuing competency may be earned and documented as
promulgated in rules by the department.
(9) The department may audit a predetermined percentage of
licensees
who renew in a year for to
determine their compliance
with
the requirements of this section. Failure The department shall
initiate a complaint against and investigate a licensee who fails
to
comply with the an audit or the requirements shall result in the
investigation
of a complaint initiated by the department of this
section, and the licensee is subject to the penalties prescribed in
this act for that failure.
(10)
A licensee as a licensed residential builder or
residential
alteration and maintenance contractor may
apply for
inactive status by completing an application, made available by the
department, in which he or she declares that he or she is no longer
actively
engaged in the practice authorized by his or her license
as a residential builder and temporarily intends to suspend
activity
authorized by his or her license. Upon submission of a
completed
application, the The department shall designate the a
licensee that submits a completed application as inactive and note
that status on records available to the public. A licensee
designated as inactive must have a current copy of the Michigan
residential code and is exempt from the continuing competency
requirements imposed under this section, but must still pay the
per-year license fee. An inactive licensee may activate his or her
license by submitting an application to the department requesting
activation
of the license. Upon activation of a If the department
activates the license, the licensee must complete at least 1 credit
hour of continuing competency for that calendar year.
Sec. 2410. A person or qualifying officer for a corporation or
member of a partnership or other business association who currently
holds
a residential builder or maintenance and alteration
contractor
license shall is not
be required to repeat an
examination
for that license when making application if he or she
is
applying for an additional license. However,
a maintenance and
alteration
contractor who currently holds a license and makes
application
for a residential builders' license shall be required
to
take an examination for that license.
Sec.
2411. (1) A person must file a complaint filed under this
section
or article 5 , or both, shall be made within 18 months
after
the latest of the following regarding closing of the purchase
of a residential structure or a combination of residential and
commercial
structure as follows: or
the issuance of an occupancy or
temporary occupancy certificate for that structure.
(a)
In the case of a maintenance and alteration contract:
(i) Completion.
(ii) Occupancy.
(iii) Purchase.
(b)
In the case of a project requiring an occupancy permit:
(i) Issuance of the certificate of occupancy or
temporary
certificate
of occupancy.
(ii) Closing.
(2) A licensee or applicant who commits 1 or more of the
following
is subject to the penalties set forth in under article 6:
(a)
Abandonment without legal excuse of Abandoning a contract,
construction project, or operation engaged in or undertaken by the
licensee, without legal excuse.
(b)
Diversion of funds If
money or property is received
for
prosecution
or completion of all or part of a specific construction
project
or operation, or for a specified purpose in the prosecution
or
completion of all or part of a construction project or
operation,
and the funds or property diverting
the application or
use
for of that money or
property to any other construction
project
or operation, obligation, or purposes.
(c)
Failure Failing to account for or remit money coming into
the person's possession that belongs to others.
(d)
A willful departure Willfully
departing from or disregard
of
disregarding plans or specifications in a material respect and
prejudicial to another, without consent of the owner or an
authorized representative and without the consent of the person
entitled to have the particular construction project or operation
completed in accordance with the plans and specifications.
(e)
A willful violation of Willfully
violating the building
laws of this state or of a political subdivision of this state.
(f)
In a residential maintenance and alteration contract,
failure
to furnish to a lender the purchaser's signed completion
certificate
executed upon completion of the work to be performed
under
the contract.
(g)
If a licensed residential builder or licensed residential
maintenance
and alteration contractor, failure
(f) Failing to notify the department within 10 days of a
change in the control or direction of the business of the licensee
resulting from a change in the licensee's partners, directors,
officers, or trustees, or a change in the control or direction of
the business of the licensee resulting from any other occurrence or
event.
(h)
Failure to deliver to the purchaser the entire agreement
of
the parties including any finance or other charge arising out of
or
incidental to the agreement if the agreement involves repair,
alteration,
or addition to, subtraction from, improvement of,
wrecking
of, or demolition of a residential structure or
combination
of residential and commercial structure, building of a
garage,
laying of concrete on residential property, or manufacture,
assembly,
construction, sale, or distribution of a residential or
combination
residential and commercial structure that is
prefabricated,
preassembled, precut, packaged, or shell housing.
(i)
If a salesperson, failure to pay over immediately upon
receipt
money received by the salesperson, in connection with a
transaction
governed by this article to the residential builder or
residential
maintenance and alteration contractor under whom the
salesperson
is licensed.
(g) (j)
Aiding or abetting an unlicensed
person to evade this
article, or knowingly combining or conspiring with, or acting as
agent, partner, or associate for an unlicensed person, allowing an
unlicensed
person to use one's license, to
be used by an unlicensed
person,
or acting as or being an ostensible
licensed residential
builder
or licensed residential maintenance and alteration
contractor
for an undisclosed person who does
or shall control or
direct
controls or directs, or who may have the right to control or
direct,
directly or indirectly, the operations of a the licensee.
(h) (k)
Acceptance of If a person is
a salesperson, accepting
a
commission, bonus, or other valuable consideration by a
salesperson
for the sale of goods or the
performance of service
specified in the article from a person other than the residential
builder
or residential maintenance and alteration contractor under
whom the person is licensed.
(i) (l) Becoming
insolvent, filing a bankruptcy action,
becoming subject to a receivership, assigning for the benefit of
creditors, failing to satisfy judgments or liens, or failing to pay
an obligation as it becomes due in the ordinary course of business.
(j) (m)
Workmanship not meeting Engaging
in workmanship that
does
not meet the standards of the Michigan
residential code. as
promulgated
under the Stille-DeRossett-Hale single state
construction
code act, 1972 PA 230, MCL 125.1501 to 125.1531.
(3)
The department shall conduct a review upon if it receives
notice
that the a licensee has violated the asbestos abatement
contractors licensing act, 1986 PA 135, MCL 338.3101 to 338.3319.
The department may suspend or revoke that person's license for a
knowing violation of the asbestos abatement contractors licensing
act, 1986 PA 135, MCL 338.3101 to 338.3319.
(4) Notwithstanding article 5, the following apply to
administrative proceedings regarding workmanship under subsection
(2)(m)
(2)(j):
(a)
A complaint submitted by an owner shall must describe in
writing to the department the factual basis for the allegation. The
homeowner shall send a copy of the initial complaint to the
licensee
concurrent with the submission of at the same time the
owner submits the complaint to the department.
(b) The department shall presume the innocence of the licensee
throughout the proceeding until the administrative law hearing
examiner finds otherwise in a determination of findings of fact and
conclusions of law under article 5. The licensee has the burden of
refuting evidence submitted by a person during the administrative
hearing. The licensee also has the burden of proof regarding the
reason deficiencies were not corrected.
(c)
Upon receipt of If the
department receives a building
inspection report issued to the department by a state or local
building enforcement official authorized to do so under the Stille-
DeRossett-Hale single state construction code act, 1972 PA 230, MCL
125.1501
to 125.1531, which and the
report verifies or confirms the
substance of the complaint, the department shall send by certified
mail a copy of the verified complaint to the licensee. If the
department does not send a copy of the verified complaint within 30
days
after receipt of it
receives the building inspection
report,
the department shall not assess a fine against the licensee under
article 6, but the department may pursue restitution, license
suspension, or other remedies provided under this act.
(d) A licensee may contractually provide for an alternative
dispute resolution procedure to resolve complaints filed with the
department.
The procedure shall be conducted by a All of the
following apply to a dispute resolution procedure described in this
subdivision:
(i) A neutral third party for
determining shall conduct the
procedure and determine the rights and responsibilities of the
parties. and
shall be initiated by the
(ii) The licensee ,
who shall initiate the procedure and
provide notice of the initiation of the procedure to the
complainant
by certified mail not less than at
least 30 days before
the commencement of that procedure.
(iii) The neutral third party shall conduct the procedure shall
be
conducted at a location mutually
agreed to by the parties.
(e) The department shall not initiate a proceeding against a
licensee under this subsection if the licensee has contractually
provided for an alternative dispute resolution procedure under
subdivision (d) and that procedure has not been utilized and
completed,
unless it is determined the
department determines that
the licensee has not complied with a decision or order issued as a
result
of that alternative dispute resolution procedure, that the
alternative dispute resolution procedure was not fully completed
within 90 days after the filing of the complaint with the
department,
or an the alternative dispute resolution procedure
meeting
the requirements of provided
by the licensee under
subdivision (d) is not available to the complainant.
(f)
The Subject to subdivision
(g), the complainant shall
demonstrate
that does all of the
following:
(i) Demonstrates that the complainant provided notice has been
provided
to the licensee describing reasonable
times and dates that
the workmanship that is the subject of the complaint.
(ii) Demonstrates that the complainant made the residential
structure
was accessible to the
licensee at reasonable times and
dates
for any needed repairs. and
(iii) Provides proof acceptable to the department that the
licensee
did not make repairs were not made within
60 days after
the
sending of complainant
sent the notice. This subdivision
(g) Subdivision (f) does not apply if the department
determines
a necessity it is
necessary to safeguard the structure
or
to protect the occupant's health and safety. and, in such case,
If it makes a determination under this subdivision, the department
may utilize any remedy available under section 504(3).
(h) (g)
If the owner and licensee have
agreed contractually on
mutually acceptable performance guidelines relating to workmanship,
the
department shall consider those guidelines in its evaluation of
a
complaint. The guidelines shall be and
the guidelines are
consistent with the Stille-DeRossett-Hale single state construction
code act, 1972 PA 230, MCL 125.1501 to 125.1531, the department
shall consider those guidelines in evaluating the complaint.
(5) If the licensee or respondent fails to appear or
participate in or defend any action, the board shall issue an order
granting
by default the relief requested, based upon on proofs
submitted to and findings made by the hearing examiner after a
contested case.
(6) As used in this section, "verified complaint" means a
complaint
in which all or a portion of the allegations have been
are confirmed by an affidavit of the state or local building
official.
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 that
brings a complaint
against a licensee to utilize a contractually provided alternative
dispute
resolution procedure shall be is
an affirmative defense to
an action brought in a court of this state against a licensee under
this article.
(3) A person or qualifying officer for a corporation or a
member
of a residential builder or residential maintenance and
alteration
contractor shall not impose or take
any legal or other
action to impose a lien on real property unless that person was
licensed under this article during the performance of the act or
contract.
(4) A prosecuting attorney and the attorney general may bring
an action for a civil violation in a court of competent
jurisdiction against a person not licensed under this article that
has violated section 601(1) or (2). The court shall assess a civil
fine, to be paid to the prosecuting attorney or the attorney
general bringing the action, of not less than $5,000.00 and not
more
than $25,000.00, aside from in
addition to any civil damages
or restitution ordered by the court.
Enacting section 1. Section 2407 of the occupational code,
1980 PA 299, MCL 339.2407, is repealed.
Enacting section 2. This amendatory act does not take effect
unless Senate Bill No.____ or House Bill No. 5326(request no.
00669'11 a) of the 96th Legislature is enacted into law.