February 2, 2005, Introduced by Senator KUIPERS and referred to the Committee on Economic Development, Small Business and Regulatory Reform.
A bill to amend 1986 PA 54, entitled
"Building officials and inspectors registration act,"
by amending the title and sections 2, 3, 4, 6, 7, 8, 10, 12, and 13
(MCL 338.2302, 338.2303, 338.2304, 338.2306, 338.2307, 338.2308,
338.2310, 338.2312, and 338.2313), section 3 as amended by 1998 PA
50, and by adding sections 2a, 8a, 8b, 8c, 8d, 8e, 8f, and 8g; and
to repeal acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
TITLE
An act to regulate and register building officials, plan
reviewers, building inspectors, electrical inspectors, mechanical
inspectors,
and plumbing inspectors; to prescribe the certain
powers
and duties of the certain state construction code
commission
agencies and departments; to
create a building
officials
advisory board certain boards; to require the approval
of educational and training programs for building officials, plan
reviewers, and inspectors; to provide for the establishment and
disposition of certain fees; to provide for the promulgation of
rules; and to prescribe remedies, sanctions, and penalties.
Sec. 2. As used in this act:
(a) "Adopted" means a properly passed rule or ordinance.
(b) "Advisory board" means the building officials advisory
board created pursuant to section 3.
(c) "Approved" means reviewed and found acceptable by the
commission.
(d)
"Building official" means a construction code
enforcement
person working as an inspector , or plan reviewer, or
actively engaged in the administration and enforcement of adopted
building, electrical, mechanical, or plumbing codes, or any
combination of these codes.
(e) "Censure" means an expression of disapproval of a
registrant's professional conduct, which conduct is not necessarily
a violation of this act or a rule promulgated or an order issued
under this act.
(f)
(e) "Code" means the state construction code
provided
for in section 4 of the Stille-DeRossett-Hale single state
construction
code act, of 1972, Act No. 230 of the Public Acts of
1972,
being section 125.1504 of the Michigan Compiled Laws 1972
PA
230,
MCL 125.1504, or a part of that code which
that is of
limited
application. , and includes a modification of or amendment
to
the code, or a nationally recognized model building code or
other
nationally recognized model code adopted by a governmental
subdivision
pursuant to section 8 of the state construction code
act
of 1972, being section 125.1508 of the Michigan Compiled Laws.
(g) "Code change cycle" means the publication by a nationally
recognized code writing body of a new edition of a basic code that
includes all approved changes to the basic code since the previous
edition. Code change cycle does not include changes to the basic
code approved and published in periodic supplements to the code.
(h)
(f) "Commission" means the state construction
code
commission
as established in section 3 3a of the
Stille-
DeRossett-Hale
single state construction code act, of
1972, Act
No.
230 of the Public Acts of 1972, being section 125.1503 of the
Michigan Compiled Laws 1972 PA 230, MCL
125.1503a.
(i) "Competence" means a degree of expertise that enables a
person to engage in an occupation at a level meeting or exceeding
minimal standards of acceptable practice for the occupation.
(j) "Complaint" means an oral or written grievance.
(k) "Complainant" means a person who has filed a complaint
with the department alleging that a person has violated this act or
a rule promulgated or an order issued under this act. If a
complaint is made by the department, the director of the department
shall designate 1 or more employees of the department to act as the
complainant.
(l) "Department" means the department of labor and economic
growth.
(m) "Disciplinary board" means the disciplinary board created
pursuant to section 8b.
(n)
(g) "Education or training program" means
formal or
informal courses, seminars, correspondence programs, and other
teaching aids for building officials, plan reviewers, and
inspectors
which that have been approved. by the commission.
(o) (h)
"Enforcing agency" means
an enforcing agency that
term
as defined in section 2 2a of
the Stille-DeRossett-Hale
single state construction code act, of 1972, Act No. 230
of the
Public
Acts of 1972, being section 125.1502 of the Michigan
Compiled
Laws 1972 PA 230, MCL 125.1502a.
(i)
"Inspector" means the person responsible for the
administration
and enforcement of the construction of buildings,
structures,
or appurtenances under the requirements of the
applicable
building, electrical, mechanical, or plumbing code
administered
and enforced within the jurisdiction of the employing
enforcing
agency employing the person.
(j)
"Practical construction experience" means experience in
construction
related trades or code administration and enforcement
which
is found to be acceptable to the commission.
(k)
"Plan reviewer" means a person engaged in the practice of
examining
construction documents for the purpose of determining
compliance
with applicable codes.
(l) "Provisional registration" means a
building official, plan
reviewer,
or inspector who is registered subject to attaining the
amount
of training, education, and experience required by the
appropriate
board and the commission.
(m)
"Registered" means a building official, plan reviewer, or
inspector
who is registered under this act.
(n)
"Test" means a method of determining the qualifications of
a
person seeking registration as a building official, plan
reviewer,
or inspector under this act. Tests may be written, oral,
practical,
or a combination of written, oral, and practical.
Completion
of educational or training programs which have been
approved
by the commission may be substituted for appropriate tests
or
portions of tests.
(o)
"Code change cycle" means the publication by a nationally
recognized
code writing body of a new edition of a basic code which
includes
all approved changes to the basic code since the previous
edition.
Code change cycle does not include changes to the basic
code
approved and published in annual supplements to the code.
Sec. 2a. As used in this act:
(a) "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 registered in the occupation or who has a
material financial interest in the occupation being regulated by
the specific law in which the term is used.
(b) "Good moral character" means good moral character as
defined in section 1 of 1974 PA 381, MCL 338.41.
(c) "Governmental subdivision" means that term as defined in
section 2a of the Stille-DeRossett-Hale single state construction
code act, 1972 PA 230, MCL 125.1502a.
(d) "Gross negligence" means the intentional failure to
perform a manifest duty that affects the life or property of
another, or both.
(e) "Incompetence" means a departure from, or a failure to
conform to, minimal standards of acceptable practice for the
occupation.
(f) "Inspector" means the person responsible for the
administration and enforcement of the construction of buildings,
structures, or appurtenances under the requirements of the
applicable building, electrical, mechanical, or plumbing code
administered and enforced within the jurisdiction of the enforcing
agency employing the person.
(g) "Knowledge and skill" means information, education, and
practical experience, and facility in applying that information,
education, and practical experience.
(h) "Limitation" means a condition, stricture, constraint,
restriction, or probation attached to a registration relative to
the scope of practice, including, but not limited to, the
following:
(i) A requirement that the registrant perform only specified
functions of the registrant's occupation.
(ii) A requirement that the registrant perform the registrant's
occupation only for a specified period of time.
(iii) A requirement which reasonably assures a registrant's
competence to perform the registrant's occupation.
(iv) A requirement that the registrant be directly supervised
in the performance of registrant's duties for a specified period of
time.
(v) A requirement that a registrant file reports with the
department at intervals as determined by the department.
(i) "Negligence" means a failure to exercise that degree of
care rendered appropriate by the particular circumstances and that
an individual of ordinary prudence in the same situation and with
equal experience would not have omitted.
(j) "Practical construction experience" means approved
experience in construction related trades or code administration
and enforcement conforming to this act and the code.
(k) "Plan reviewer" means a person engaged in the examination
of construction documents for the purpose of determining compliance
with applicable codes.
(l) "Provisional registration" means a building official, plan
reviewer, or inspector who is registered subject to attaining the
amount of training, education, and experience required by the
appropriate board and the commission.
(m) "Published interpretation" means an article or technical
bulletin on the meaning and application of the code, a section or
subsection of the code, or a referenced standard within the code
published either in print form or electronic media by the bureau of
construction codes. Published interpretation includes a formal
decision by the commission on the meaning and application of the
code, a section or subsection of the code, or a referenced standard
within the code. Published interpretation does not include an
interpretation issued by the international code council, the
national fire protection association or its component
organizations, or any other organizations or individuals that
develop or comment on codes or standards for public or private use.
(n) "Registrant" means a building official, plan reviewer, or
inspector who is registered under this act.
(o) "Respondent" means a person against whom a complaint has
been filed and may be a person required to be registered.
(p) "Test" means a method of determining the qualifications of
a person seeking registration as a building official, plan
reviewer, or inspector under this act.
Sec. 3. (1) The building officials advisory board is created
in
the department of labor to assist the commission in
establishing standards and criteria for the training and
qualifications of building officials.
(2) The advisory board shall consist of 9 members appointed by
the
commission. Of those members first appointed, 3 shall be
appointed
for a term of 1 year, 3 shall be appointed for a term of
2
years, and 3 shall be appointed for a term of 3 years. The
advisory board shall consist of the following:
(a)
A Three building official officials
who enforces
enforce the
code. building officials and code
administrators basic
building
code.
(b)
A building official who enforces the uniform building
code.
(c)
A building official who enforces the Michigan building
code.
(b) (d)
Two members of the general public,
1 of whom shall
be a person with 1 or more disabilities.
(c) (e)
A registered licensed
architect or professional
engineer.
(d) (f)
A building contractor licensed residential
builder.
(e) (g)
A building trades journey worker
from a recognized
apprentice course.
(f) (h)
A representative of small
business.
(3) Of the 3 building officials appointed pursuant to
subsection
(2)(a), (b), and (c), 1 shall represent a county, 1
shall represent a city, and 1 shall represent a township or
village.
Sec. 4. (1) The commission shall promote effective and uniform
enforcement
of construction codes in the state by improving the
competence of building officials, plan reviewers, and inspectors.
(2) The advisory board, barrier free design board, the
electrical administrative board, the board of mechanical rules, and
the state plumbing board shall participate in and work with the
commission to establish both of the following:
(a) Minimum training and experience standards, qualifications,
and classifications of responsibility applicable to persons engaged
in
the enforcement of codes , and plan reviews.
(b)
Minimum criteria for the approval of educational
education or training programs and tests.
(3) Tests may be written, oral, practical, or a combination of
written, oral, and practical. Completion of educational or training
programs that have been approved may be substituted for appropriate
tests or portions of tests.
(4) (3) The commission may review and approve prepared
educational
and education or training
programs, tests, and
instructors.
The examination and evaluation of training and
educational
education or training
programs, instructors, and tests
shall include, but not be limited to:
(a)
Construction code Code administration.
(b) Specialty aspects of code program parts, including all of
the following:
(i) Prohibited appliances.
(ii) Premanufactured units.
(iii) Approval of materials, products, and methods.
(iv) Barrier free design.
(v) Energy conservation Michigan uniform energy code.
(c) Inspection techniques.
(d) Communication skills.
(e) Human and public relations.
(f) Report writing.
(g) Plans and specifications reading.
(h) Pertinent laws, ordinances, rules, published
interpretations, and policies.
(i) Construction practices.
(5) (4) If the commission finds that the proposed
educational
education or training courses
or programs are
acceptable
approved under minimum
requirements established under
this
section, the commission shall give approval to approve
the
courses
or education or training
programs for a limited period of
time and with appropriate qualifications as the commission
prescribes.
(6) (5) A board listed in section 4(2) subsection (2)
shall
recommend to the commission criteria for approval which
that relate to the board's function and are as
required by
section
4(2) subsection (2). The commission shall give
consideration
to any submission by a board , but the commission
shall
have has
final responsibility for the approval of education
or training standards and programs.
Sec. 6. (1) Application for registration as a building
official,
plan reviewer, or inspector shall be made submitted
to
the appropriate board listed in section 4(2) and to the commission
along with the fee prescribed in section 13.
(2)
Any person who on the effective date of this act has been
engaged
in the business of a building official, plan reviewer, or
inspector
for a period of 3 years shall, upon furnishing the
appropriate
board listed in section 4(2) with satisfactory evidence
of
having been so engaged, be registered if the person makes
application
to the commission within 6 months after the effective
date
of this act, and pays the fee prescribed in section 13.
(3)
Any person who, on the effective date of this act, has
been
engaged in the business of a building official, plan reviewer,
or
inspector for a period of less than 3 years shall, upon
furnishing
the board with satisfactory evidence of having been so
engaged,
be provisionally registered if the person makes
application
to the commission within 6 months after the effective
date
of this act and pays the fee prescribed in section 13.
(4)
Any person who, on the effective date of this act, has
been
engaged in the business of a building official, plan reviewer,
or
inspector for 3 of the 5 years immediately preceding the date of
application
shall, upon furnishing the appropriate board listed in
section
4(2) with satisfactory evidence of having been so engaged,
be
registered, if the person makes application to the commission
and
pays the fee prescribed in section 13.
(2) (5)
The commission may issue an
initial registration
for a period of more or less than 3 years for the purpose of
allowing subsequent registration renewal to coincide with the code
change cycle.
Sec.
7. (1) A Except
as otherwise provided for in section
6(2), a registered building official, plan reviewer, or inspector
shall
renew the registration at periods of not less than 3 years
after
the date of initial issue. The renewal shall that coincide
with
the code change cycle of the code which that the person is
enforcing in that jurisdiction.
(2) Reregistration or renewal of an initial registration or
provisional registration shall be based upon a determination, by
the appropriate board listed in section 4(2) , of the applicant's
familiarity with changes to the applicable codes administered and
enforced within the jurisdiction of the enforcing agency employing
the applicant and pertinent laws, and the presentation of
satisfactory
evidence of attending local in-service training and
education or training programs on an ongoing basis.
(3) The commission shall not waive or diminish the experience
requirements established by this act or by rules promulgated under
this act relative to an applicant for registration and shall not
extend any time periods established by this act or by rules
promulgated under this act regarding the filing of an application
or the completion of the required hours of attendance of education
or training programs.
Sec. 8. This act does not supersede the requirements
applicable
to inspectors contained in Act No. 266 of the Public
Acts
of 1929, being sections 338.901 to 338.917 of the Michigan
Compiled
Laws, or Act No. 217 of the Public Acts of 1956, being
sections
338.881 to 338.892 of the Michigan Compiled Laws the
state plumbing act, 2002 PA 733, MCL 338.3511 to 338.3569, or the
electrical administrative act, 1956 PA 217, MCL 338.881 to 338.892.
Sec. 8a. A person subject to this act who commits 1 or more of
the following is subject to the sanctions or penalties prescribed
in section 8e:
(a) Practices fraud or deceit to obtain a registration or
reregistration.
(b) Practices fraud, deceit, or dishonesty in the performance
of his or her duties.
(c) Fails to perform his or her duties in a professional
manner.
(d) Fails to perform his or her duties in a timely manner.
(e) Fails to apply the code in a consistent and uniform
manner.
(f) Fails to follow or enforce a published interpretation.
(g) Demonstrates a lack of good moral character.
(h) Commits an act that demonstrates incompetence.
(i) Commits an act that demonstrates negligence in the
performance of his or her duties.
(j) Commits an act of gross negligence in the performance of
his or her duties.
(k) Violates a provision of this act or a rule promulgated
under this act.
(l) Violates a provision of the code, the Stille-DeRossett-Hale
single state construction code act, 1972 PA 230, MCL 125.1501 to
125.1531, or a rule promulgated under the that act.
(m) Commits an act that constitutes a conflict of interest as
described in section 10.
(n) Exercises poor judgment in the performance of his or her
duties.
(o) Accepts a gratuity or other valuable consideration for the
performance of his or her duty from other than the enforcing agency
that employs him or her.
(p) Fails to comply with a subpoena issued under this act.
(q) Fails to respond to a citation issued under this act.
(r) Violates or fails to comply with an order issued by the
disciplinary board, including a stipulation, settlement agreement,
or a citation.
(s) Performs the duties of a building official, plan reviewer,
or inspector without a valid registration.
Sec. 8b. (1) The disciplinary board is created within the
department to determine whether an individual has violated this
act, a rule promulgated under this act, or an order issued under
this act and to determine the appropriate discipline for each
violation.
(2) The disciplinary board shall consist of 33 members
appointed by the governor with the advice and consent of the
senate. Of those members first appointed, 1 from each subdivision
shall be appointed for a term of 1 year, 1 from each subdivision
shall be appointed for a term of 2 years, and 1 from each
subdivision shall be appointed for a term of 3 years. All
subsequent appointments shall be for a term of 3 years. The
disciplinary board shall consist of the following:
(a) Three building officials registered under this act.
(b) Three residential builders licensed under article 24 of
the occupational code, 1980 PA 299, MCL 339.2401 to 339.2412.
(c) Three electrical inspectors registered under this act.
(d) Three electrical contractors licensed under the electrical
administrative act, 1956 PA 217, MCL 338.881 to 338.892.
(e) Three plumbing inspectors registered under this act.
(f) Three plumbers licensed under the state plumbing act, 2002
PA 733, MCL 338.3511 to 338.3569.
(g) Three plan reviewers licensed under this act.
(h) Three architects licensed under article 20 of the
occupational code, 1980 PA 299, MCL 339.2001 to 339.2014.
(i) Three mechanical inspectors registered under this act.
(j) Three mechanical contractors registered under the Forbes
mechanical contractors act, 1984 PA 192, MCL 338.971 to 338.988.
(k) Three members of the general public with knowledge and
skill of the code. Not more than 1 member of the general public may
be affiliated with a labor organization.
(3) The disciplinary board shall be divided into 5 panels.
Each panel shall hear complaints relative to its part of the code.
A member of the general public shall chair each panel. The panels
shall be comprised as follows:
(a) The building code panel shall consist of the 3 building
officials, the 3 residential builders, and the 3 members of the
general public.
(b) The electrical code panel shall consist of the 3
electrical inspectors, the 3 electrical contractors, and the 3
members of the general public.
(c) The plumbing panel shall consist of the 3 plumbing
inspectors, the 3 plumbers, and the 3 members of the general
public.
(d) The plan review panel shall consist of the 3 plan
reviewers, the 3 architects, and the 3 members of the general
public.
(e) The mechanical panel shall consist of the 3 mechanical
inspectors, the 3 mechanical contractors, and the 3 members of the
general public.
Sec. 8c. (1) A complaint that alleges that a person has
violated this act, a rule promulgated under this act, or an order
issued under this act shall be lodged with the department not later
than 18 months after the alleged violation occurs. The department
of attorney general, the department, a licensing board, or any
other person may file a complaint. The complaint shall describe in
writing to the department the factual basis for the allegation. The
department shall forward a copy of the complaint to the enforcing
agency that employs the respondent.
(2) The department shall presume the innocence of the
respondent throughout the proceedings until the appropriate panel
of the disciplinary board as described in section 8b(3) holds a
hearing and makes its findings of fact and conclusions of law. The
respondent has the burden of refuting evidence presented by the
complainant during the process.
(3) The enforcing agency that employs the respondent may
appear as a party of interest at any proceedings resulting from the
complaint.
Sec. 8d. (1) A panel of the disciplinary board as described in
section 8b(3) shall conduct its hearings in accordance with the
administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to
24.328.
(2) Each panel of the disciplinary board shall render its
written decision within 30 business days after the hearing.
Sec. 8e. (1) The appropriate panel of the disciplinary board
as described in section 8b(3) may recommend that 1 or more of the
following sanctions or penalties be imposed upon an individual who
violates this act, a rule promulgated under this act, or an order
issued under this act:
(a) Censure an individual.
(b) Place limitations on a registration.
(c) Suspend a registration.
(d) Revoke a registration.
(e) Deny a future registration or deny reregistration for a
stated period of time.
(f) Order restitution and costs to a complainant.
(g) Order a civil fine not to exceed $10,000.00 per violation,
to be paid to the department.
(h) Place an individual on probation with automatic penalties
or sanctions assessed for any subsequent violation.
(2) After reviewing the decision of the panel of the
disciplinary board, the director of the department shall enter an
order imposing 1 or more of the penalties described in subsection
(1) or shall dismiss the complaint.
(3) A person who acts as a building official, plan reviewer,
or inspector without a valid registration is guilty of a
misdemeanor punishable by a fine of not more than $5,000.00 or
imprisonment for not more than 93 days, or both.
Sec. 8f. (1) A party or an interested person may appeal an
order issued pursuant to a decision of a panel of the disciplinary
board to the commission within 10 business days after the director
of the department has issued his or her order. The appeal shall be
heard de novo by the commission.
(2) The decision of the panel of the disciplinary board is
considered final if not appealed to the commission within the time
period prescribed in subsection (1) and is considered an exhaustion
of all administrative remedies.
Sec. 8g. The remedies under this act are cumulative and
independent. The use of 1 remedy by a person does not bar the use
of other lawful remedies by that person or the use of a lawful
remedy by another person.
Sec. 10. (1) Performing instructional duties for educational
purposes and providing contractual inspection and consulting
services
in construction code enforcement shall are
not be
considered conflicts of interest.
(2)
An inspector shall is not be permitted to inspect his
or
her own work in a governmental subdivision. As used in this
subsection
and subsection (3), "governmental subdivision" means
governmental
subdivision as defined in section 2(1)(t) of the state
construction
code act of 1972, Act No. 230 of the Public Acts of
1972,
being section 125.1502 of the Michigan Compiled Laws.
(3) A building official or inspector shall not serve on a
zoning board or planning board in any governmental subdivision in
which he or she performs inspection and consulting services.
(4)
(3) A governmental subdivision may establish additional
requirements
and restrictions in the selection and hiring of
construction
code enforcement building officials, inspectors, and
plan reviewers.
(5) (4)
This act shall not be construed to
limit or
restrict the type of internal administrative organization an
enforcing agency may choose, or to limit or otherwise affect the
authority of the enforcing agency to dismiss or suspend a building
official, inspector, or plan reviewer at its discretion.
Sec.
12. (1) Subject to subsection (2), after 1 year after
the
effective date of this act, a person shall not be appointed or
employed
as a building official, inspector, or plan reviewer by an
enforcing
agency, unless the person is registered under this act
and
the rules promulgated under this act.
(1) (2)
Any A person who , after the effective date of
this
act, becomes employed by a
governmental subdivision as a
building official, plan reviewer, or inspector shall within 30 days
of
employment make application apply to the commission for
provisional
registration. Upon furnishing the board with
satisfactory evidence of being so employed by a governmental
subdivision and upon payment of the fees prescribed in section 13,
the
person commission shall be provisionally registered issue a
provisional registration to the person.
(2) (3)
If the commission determines that
an applicant for
registration does not qualify for registration, the applicant shall
be notified of that fact in writing and may appeal an adverse
decision
in the manner provided by Act No. 306 of the Public Acts
of
1969, being sections 24.201 to 24.328 of the Michigan Compiled
Laws
the administrative procedures act of 1969, 1969 PA 306, MCL
24.201 to 24.328.
Sec. 13. (1) The commission shall charge fees for registration
and reregistration of building officials, inspectors, and plan
reviewers and for the examination and evaluation of education or
training
and educational programs. and courses. An applicant
for registration or reregistration shall pay a per-year
registration
fee of $10.00 a year to the commission for each year
the
registration covers equal to the per-year fee paid by the
licensed occupation whose work he or she is inspecting.
(2)
Fees Additional fees established by the commission for
tests and evaluation of education or training programs shall bear a
reasonable relation to the cost for conducting the tests and
education
or training and educational programs. and
courses.
(3) Fees received by the commission pursuant to this act shall
be deposited in the state construction code fund created by section
22
of the Stille-DeRossett-Hale
single state construction code act,
of
1972, Act No. 230 of the Public Acts of 1972, being section
125.1522
of the Michigan Compiled Laws 1972 PA 230, MCL 125.1522.
Enacting section 1. Section 9 of the building officials and
inspectors registration act, 1986 PA 54, MCL 338.2309, is repealed.