March 18, 2008, Introduced by Senator SCHAUER and referred to the Committee on Commerce and Tourism.
A bill to amend 1980 PA 299, entitled
"Occupational code,"
by amending section 2411 (MCL 339.2411), as amended by 2007 PA 157.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 2411. (1) A complaint filed under this section or article
5, or both, shall be made within 18 months after the latest of the
following regarding a residential structure or a combination of
residential and commercial structure as follows:
(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 shall be subject to the penalties set forth in article 6:
(a) Abandonment without legal excuse of a contract,
construction project, or operation engaged in or undertaken by the
licensee.
(b) Diversion of funds or property received for prosecution or
completion of a specific construction project or operation, or for
a specified purpose in the prosecution or completion of a
construction project or operation, and the funds or property
application or use for any other construction project or operation,
obligation, or purposes.
(c) Failure to account for or remit money coming into the
person's
possession which that belongs to others.
(d) A willful departure from or disregard of 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 the building laws of the state or
of a political subdivision of the 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 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 finance and any other charge arising out
of or incidental to the agreement when 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, or building of
a garage, or laying of concrete on residential property, or
manufacture, assembly, construction, sale, or distribution of a
residential or combination residential and commercial structure
which
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.
(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, or allowing
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, or who may
have the right to control or direct, directly or indirectly, the
operations of a licensee.
(k) Acceptance of 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.
(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.
(m) Workmanship not meeting 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.
(n) Knowingly hiring, or continuing to employ, a person not
authorized to work in the United States.
(3) The department shall suspend or revoke the license of a
person licensed under this article whose failure to pay a lien
claimant results in a payment being made from the homeowner
construction lien recovery fund pursuant to the construction lien
act, 1980 PA 497, MCL 570.1101 to 570.1305, regardless of whether
the person was performing services as a licensee under this
article; under the electrical administrative act, 1956 PA 217, MCL
338.881 to 338.892; or under the state plumbing act, 2002 PA 733,
MCL 338.3511 to 338.3569. The department shall not renew a license
or issue a new license until the licensee has repaid in full to the
fund the amount paid out plus the costs of litigation and interest
at the rate set by section 6013 of the revised judicature act of
1961, 1961 PA 236, MCL 600.6013.
(4) The department shall conduct a review upon notice that the
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.
(5) Notwithstanding article 5, the following apply to
administrative proceedings regarding workmanship under subsection
(2)(m):
(a) A complaint submitted by an owner shall 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 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 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
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. Failure of the department to send a copy
of the verified complaint within 30 days of receipt of the building
inspection report prevents the department from assessing a fine
against the licensee under article 6 but does not prevent the
department from pursuing 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 neutral third
party for determining the rights and responsibilities of the
parties and shall be initiated by the licensee, who shall provide
notice of the initiation of the procedure to the complainant by
certified mail not less than 30 days before the commencement of
that procedure. 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 in the case of a licensee who
contractually provides for an alternative dispute resolution
procedure that has not been utilized and completed unless it is
determined that the licensee has not complied with a decision or
order issued as a result of that alternative dispute resolution
procedure, that alternative dispute resolution procedure was not
fully completed within 90 days after the filing of the complaint
with the department, or an alternative dispute resolution procedure
meeting the requirements of subdivision (d) is not available to the
complainant.
(f) The complainant shall demonstrate that notice has been
provided to the licensee describing reasonable times and dates that
the residential structure was accessible for any needed repairs and
proof acceptable to the department that the repairs were not made
within 60 days after the sending of the notice. This subdivision
does not apply where the department determines a necessity to
safeguard the structure or to protect the occupant's health and
safety and, in such case, the department may utilize any remedy
available under section 504(3)(a) through (d).
(g) In the case where 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 consistent with the Stille-DeRossett-Hale single state
construction code act, 1972 PA 230, MCL 125.1501 to 125.1531.
(6) In any case where the licensee or respondent fails to
appear, participate, or defend any action, the board shall issue an
order granting by default the relief requested, based upon proofs
submitted to and findings made, by the hearing examiner after a
contested case.
(7) As used in this section, "verified complaint" means a
complaint in which all or a portion of the allegations have been
confirmed by an affidavit of the state or local building official.