March 4, 2015, Introduced by Reps. Franz, Glenn, Kelly, Somerville, Lauwers and Goike 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,
2404c, 2407, 2410, 2411, and 2412 (MCL 339.411, 339.601, 339.2401,
339.2402, 339.2403, 339.2404, 339.2404b, 339.2404c, 339.2407,
339.2410, 339.2411, and 339.2412), section 411 as amended by 2014
PA 265, section 601 as amended by 2008 PA 319, section 2401 as
amended by 1991 PA 166, section 2402 as amended by 2007 PA 157,
section 2403 as amended by 1984 PA 191, section 2404 as amended and
section 2404c as added by 2014 PA 176, section 2404b as amended by
2014 PA 175, section 2407 as amended by 1988 PA 463, section 2411
as amended by 2010 PA 151, and section 2412 as amended by 2007 PA
155.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 411. (1) Subject to subsection (2), a person that fails
to renew a license or registration on or before the expiration date
shall not practice the occupation, operate, or use the title of
that occupation 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 person that fails to renew a license or registration on
or before the expiration date is permitted to renew the license or
registration by payment of 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 that 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)
Any The person satisfies
any penalties or 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 if the person
shows that 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 must 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 that 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 for conducting the review of
a petition for reinstatement is prescribed 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 under section 203(2).
(6)
The Except as provided in
subsections (7) and (10), the
department shall issue an initial or renewal license or
registration
not later than within 90 days after the applicant
files
a completed application. The An
application is considered
received on the date the application is received by any agency or
department of this state. If 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 the department
receives the incomplete application, describing the deficiency and
requesting the additional information. The 90-day period described
in this subsection is tolled from the date the department notifies
the applicant of a deficiency until the date 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 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 in writing, or made electronically
available, 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 this state.
(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%. 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 the department shall place that application,
when completed, 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 on
the fact that the license or registration fee was refunded or
discounted under this subsection.
(9) 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 denied by the department.
(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 a license or
registration for any of the following:
(a) A certified public accountant and registered accountant
under article 7.
(b) An agency non-owner manager of a collection agency under
article 9.
(c) A barber, student barber, student instructor, or barber
instructor under article 11.
(d) An employment and consulting agent of a personnel agency
under article 10.
(e) A cosmetologist, manicurist, natural hair culturist,
esthetician, electrologist, instructor, or registered student under
article 12.
(f) A hearing aid salesperson and trainee under article 13.
(g) A mortuary science licensee, embalmer, or resident trainee
in mortuary science under article 18.
(h) An individual architect, surveyor, or engineer under
article 20.
(i) An individual landscape architect under article 22.
(j)
An individual residential builder and alteration and
maintenance
contractor or a salesperson for a residential builder
and
alteration and maintenance contractor under
article 24.
(k) A real estate salesperson under article 25.
(l) A real estate appraiser under article 26.
(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 any renewal license fee,
continuing education requirements, or other related requirements of
this act applicable to that license or registration. It is the
obligation of the 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, the licensee
shall provide notice of arrangements for adequate provision of that
supervision and oversight to the department. The licensee or
registrant shall accompany the request with proof, as determined by
the department, to verify the mobilized duty status. 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 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 that is complete on its face and submitted with any
applicable licensing or registration fees and 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
this state.
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 $10,000.00. 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, $10,000.00, 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) Except as provided in section 2404c, 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.
(2) Before the department issues a license, an applicant shall
submit a copy of his or her operator's license or state personal
identification card to the department. The department may use the
license or card only for proof of identity of the applicant.
(3) (2)
Except as provided in section
2404c, the department
shall require that an applicant for a license under this article
pass an examination 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)
Except as provided in section 2404c, the department may
issue
a residential maintenance and alteration contractor's license
to
an individual who applies for the license and who qualifies for
the
license by passing the examination. A license 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.
A license shall specify the particular craft or trade for
which
the licensee is qualified. This subsection does not prohibit
a
specialty contractor from taking and executing a contract
involving
the performance of the craft or trade for which the
contractor
holds a license and 1 or more other crafts or trades if
the
performance of the work in the other craft or trade is
incidental
and supplemental to the performance of work in the craft
or
trade 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 in
this state, the department shall issue a branch office license to
the
builder or contractor for each place of business maintained by
the
builder. or contractor.
(5) 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.
(6)
An applicant for renewal of a residential builder or
maintenance
and alteration contractor license
shall state to the
department that he or she has a current copy of the Michigan
residential code and meets the appropriate requirements regarding
continuing competency described in this article or rules
promulgated under this article.
(7) A licensee shall maintain documentation, for at least 5
years, of activities that meet the continuing competency
requirements under this article.
Sec. 2404b. (1) Beginning June 1, 2008, an applicant for
initial
licensure either as a residential builder or as a
residential
maintenance and alteration contractor must
successfully
complete the prelicensure course of study requirements under this
subsection to obtain a license unless he or she is exempt from
those requirements under this section. All of the following apply
for purposes of this subsection:
(a)
If an individual who holds a residential builder or a
residential
maintenance and alteration contractor license,
or an
individual who held a license as a qualifying officer of a licensed
residential
builder, or residential maintenance and alteration
contractor,
on June 1, 2008 is renewing a
license, he or she is
exempt from the requirement of successfully completing prelicensure
courses described in this subsection.
(b) If an individual is applying for a license or relicensure
as
a residential builder, or residential maintenance and alteration
contractor,
he or she is exempt from the
requirement of
successfully completing prelicensure courses described in this
subsection if all of the following are met:
(i) His or her application is submitted before the expiration
of
the 18-month period beginning on the effective date of the
amendatory
act that added this subdivision. September
16, 2014.
This subdivision does not apply to applications that are submitted
after that 18-month period.
(ii) He or she held an individual license as a residential
builder, or
residential maintenance and alteration contractor, or
held a license as a qualifying officer of a licensed residential
builder, or
residential maintenance and alteration contractor, at
any time within the 9-year period preceding his or her application.
(c) Unless he or she is exempt under subdivision (a) or (b),
an applicant shall not receive an initial license under this act
unless he or she successfully completed 60 hours of approved
prelicensure courses that include at least 6 hours of courses in
each of the following areas of competency:
(i) Business management, estimating, and job costing.
(ii) Design and building science.
(iii) Contracts, liability, and risk management.
(iv) Marketing and sales.
(v) Project management and scheduling.
(vi) The current Michigan residential code.
(vii) Construction safety standards promulgated under the
Michigan occupational safety and health act, 1974 PA 154, MCL
408.1001 to 408.1094.
(2) All of the following apply to an individual license under
this article, as applicable:
(a) Subject to subdivision (b), if the individual licensee
obtained
his or her initial license as a residential builder or a
residential
maintenance and alteration contractor on
or after
January 1, 2009, he or she must successfully complete at least 21
hours of activities that demonstrate continuing competence in each
3-year license cycle, including both of the following:
(i) At least 3 hours of activities that demonstrate continuing
competency in each calendar year, during the first 6 calendar years
of licensure.
(ii) At least 3 hours of 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.
(b) If an individual licensee described in subdivision (a) was
exempt from the prelicensure course requirements of subsection (1)
under subsection (1)(b) when he or she obtained his or her initial
license
as a residential builder, or residential maintenance and
alteration
contractor, the hours of activities
that he or she must
complete in the first year of his or her first 3-year license cycle
under subdivision (a) must include successful completion of at
least 1 hour of codes, 1 hour of safety, and 1 hour of legal issues
described in this subsection.
(c) If the licensee was initially licensed as a licensed
residential
builder, or residential maintenance and alteration
contractor,
or held a license as a qualifying
officer of a licensed
residential
builder, or residential maintenance and alteration
contractor,
before January 1, 2009, he or she
has held a license
for not more than two 3-year license cycles, and the department has
not taken disciplinary action against him or her for a violation of
this act or a rule promulgated under this act, he or she must
successfully complete at least 3 hours of activities that
demonstrate continuing competency in each 3-year license cycle that
includes at least 1 hour of codes, 1 hour of safety, and 1 hour of
legal issues described in this subsection.
(d) If the licensee has held a license for more than two 3-
year license cycles, and the department has not taken disciplinary
action against him or her for a violation of this act or a rule
promulgated under this act, he or she must successfully complete at
least 3 hours of activities demonstrating continuing competency in
each license cycle that includes 1 hour of codes, 1 hour of safety,
and 1 hour of legal issues as described in this subsection.
(3) In addition to the requirements of subsection (2), if the
department has taken disciplinary action against a licensee for a
violation of this act or a rule promulgated under this act, the
licensee must successfully complete, during the next complete
license cycle, at least 3 and not more than 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 the continuing competency must
include 1 hour of codes, 1 hour of safety, and 1 hour of legal
issues as described in subsection (2).
(4) Any construction code update courses approved by the
bureau of construction codes 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 section. 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 section.
(5) The subject matter of the prelicensure and continuing
competency activities required under this section may be offered by
a high school, an intermediate school district, a community
college, a university, the bureau of construction codes, the
Michigan occupational safety and health administration, a trade
association, or any other proprietary school that is licensed by
the department.
(6) 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, International
Code Council, and
publication of articles in trade journals or regional 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.
(7) Each licensee may select approved courses in his or her
subject matter area or specialty. A licensee's service as a
lecturer or discussion leader in an approved course shall count
toward his or her continuing competency requirements under this
section. Alternate forms of continuing competency may be earned and
documented as promulgated in rules by the department.
(8) The department may audit a predetermined percentage of
licensees who renew in a year for compliance with the requirements
of this section. Failure to comply with the audit or the
requirements shall result in the investigation of a complaint
initiated by the department, and the licensee is subject to the
penalties prescribed in this act.
(9)
Before the effective date of the amendatory act that added
subsection
(10), September 16, 2014, 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
and temporarily intends to suspend activity authorized by his or
her license. If a completed application is submitted, the
department shall designate the licensee as inactive and note that
status on records available to the public. A licensee who is
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. If the department activates an inactive
license, the licensee must complete at least 1 credit hour of
activities that demonstrate continuing competency for that calendar
year.
(10) An individual licensee who applied for and was designated
inactive
under subsection (9) before the effective date of this
subsection
September 14, 2014 may remain in inactive status after
that effective date by complying with the requirements of
subsection
(9). A licensee who remains in inactive status after the
effective
date of this subsection on or
after September 14, 2014 is
exempt from the continuing competency requirements of this section
while
he or she remains in inactive status. A licensee An
individual who is licensed as a residential builder and is
designated inactive under subsection (9) may activate his or her
license by submitting an application to the department requesting
activation of the license. If his or her license is activated, the
licensee must complete at least 1 credit hour of activities that
demonstrate continuing competency for that calendar year.
(11) Subject to subsection (13), an applicant for initial
licensure
as a residential builder or residential maintenance and
alteration
contractor is exempt from the
requirements of subsection
(1) if he or she meets all of the following:
(a) Served in the armed forces.
(b) While serving in the armed forces, was engaged in the
erection, construction, replacement, repair, alteration, or
demolition of buildings or other structures.
(c) Was separated from service in the armed forces, and
provides to the department a form DD214, form DD215, or any other
form that is satisfactory to the department that demonstrates that
he or she was separated from that service, with an honorable
character of service or under honorable conditions (general)
character of service.
(d) Has, and provides with his or her application an affidavit
signed by a commanding officer, supervisor, or military superior
with direct knowledge of the applicant's service that he or she
has, entry-level experience in or basic knowledge of each of the
areas
of competency described in subsection (1)(a) to (g).(1)(c)(i)
to (vii).
(12) If an applicant who otherwise meets the requirements of
subsection (11) does not have entry-level experience in or basic
knowledge of each of the areas of competency described in
subsection
(1)(a) to (g), (1)(c)(i) to (vii), he
or she may provide
with his or her application an affidavit signed by a commanding
officer, supervisor, or military superior with direct knowledge of
the applicant's service that states in which of those areas of
competency the applicant has entry-level experience or basic
knowledge, and the department may in its discretion grant the
applicant credit toward the 60-hour prelicensure education
requirement of subsection (1) based on that experience or
knowledge.
(13) If an applicant for initial licensure as a residential
builder
or residential maintenance and alteration contractor
described in subsection (11) does not pass the examination for that
license the first time he or she takes the examination, that
applicant may not retake the examination until he or she
successfully completes a prelicensure course of study described in
subsection (1).
(14) As used in the section, "armed forces" means that term as
defined in section 2 of the veteran right to employment services
act, 1994 PA 39, MCL 35.1092.
Sec. 2404c. All of the following apply to an individual who is
applying
for a license or relicensure as a residential builder, or
residential
maintenance and alteration contractor, who was a
qualifying officer on December 21, 2007, and who was subsequently
denied an individual license because of financial instability:
(a) The department shall determine whether the applicant
should receive a license under this article and what requirements
described in section 2404 the applicant must meet to qualify for
that license.
(b) In making its determination under subdivision (a), the
department shall consider the information it receives under section
2404(1) concerning the good moral character of the applicant and
other persons described in section 2404(1), shall determine whether
the applicant is required to pass an examination under section
2404(2) or (3) or 2405(1), and may require that the applicant meet
other requirements to qualify for a license.
(c) The applicant shall certify that he or she successfully
completed at least 3 hours of activities that demonstrate
continuing competency, that include 1 hour of codes, 1 hour of
safety, and 1 hour of legal issues described in section 2404b(2),
in the 12 months immediately preceding the date of application.
Sec. 2407. (1) A salesperson shall be licensed in the employ
of
only 1 residential builder. or maintenance and alteration
contractor.
If a salesperson desires to change
employment from 1
residential
builder or maintenance and alteration contractor to
another, the license shall be forwarded to the department and
application made for a transfer and the issuance of a new license
under the salesperson's new employer.
(2) An application for a salesperson's license shall be
submitted
by the employing residential builder. or residential
maintenance
and alteration contractor.
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. This amendatory act takes effect 90 days
after the date it is enacted into law.
Enacting section 2. This amendatory act does not take effect
unless Senate Bill No.____ or House Bill No. 4281 (request no.
00068'15 a) of the 98th Legislature is enacted into law.