HB0335 96TH GENERAL ASSEMBLY

LRB096 03071 ASK 13086 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB0335

Introduced 1/27/2009, by Rep. Jack D. Franks

SYNOPSIS AS INTRODUCED:

New Act
5 ILCS 80/4.30 new
30 ILCS 105/5.719 new

Creates the Residential Building General Contractor Act. Provides for the registration of residential building general contractors with the Department of Labor beginning January 1, 2010. Establishes the Residential Building General Contractor Board. Sets forth powers and duties of the Department and the Board, registration requirements, grounds for discipline, civil and criminal penalties for violation of the Act, and administrative procedure. Includes provisions concerning exemption from the Act and local building permits. Provides that the Act does not limit the power of a unit of local government from regulating or licensing the practice of residential building general contracting in a stricter manner. Amends the Regulatory Sunset Act to set a repeal date of January 1, 2020 for the new Act. Amends the State Finance Act to create the Residential Building Contractor Fund. Effective immediately.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

HOME RULE NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning regulation.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Residential Building General Contractor Act.

Section 5. Purpose. It is the purpose of this Act to provide for the registration of residential building general contractors.

Section 10. Definitions. In this Act:

"Board" means the Residential Building General Contractor Board.

"Department" means the Department of Labor.

"Director" means the Director of Labor.

"Residential building general contracting" means the construction, alteration, repair, improvement, movement, wrecking, or demolishing of or the addition to or subtraction from any single family dwelling built, being built, or to be built, for the support, shelter, and enclosure of persons, animals, chattels, or movable property of any kind. "Residential building general contracting" does not include (i) the sale, installation, cleaning, or repair of carpets; (ii) the sale of goods or materials by a merchant who directly or through a third party performs any work or labor in connection with the installation or application of the goods or materials; or (iii) the repair, installation, replacement or connection of any home appliance, including, but not limited to, disposals, refrigerators, entertainment systems, ranges, garage door openers, television antennas, washing machines, telephones, or other home appliances, by an employee or a third party acting on behalf of the merchant that sold the home appliance.

"Residential building general contractor" means any person who undertakes to, offers to undertake to, purports to have the capacity to undertake to, submits a bid to, or does himself or herself or by or through others engage in residential building general contracting.

Section 12. Exemptions. Persons licensed under the Roofing Industry Licensing Act are exempt from this Act as long as the services they provide are limited to those described in the definition of "roofing contractor" in the Roofing Industry Licensing Act.

Section 15. Title. Only a residential building general contractor registered under this Act may use the title "residential building general contractor" or "registered residential building general contractor".

Section 20. Unregistered practice; civil penalty.

(a) Beginning on January 1, 2010, any person who practices, offers to practice, attempts to practice, or holds himself or herself out to practice residential building general contracting without being registered under this Act shall, in addition to any other penalty provided by law, pay a civil penalty to the Department in an amount not to exceed $10,000 for each offense as determined by the Department. The civil penalty shall be assessed by the Department after a hearing is held in accordance with the provisions set forth in this Act regarding the provision of a hearing for the discipline of a registrant.

(b) The Department has the authority and power to investigate any and all unregistered activities.

(c) The civil penalty imposed under this Section must be paid within 60 days after the effective date of the order imposing the civil penalty. The order shall constitute a judgment and may be filed and execution had thereon in the same manner as any judgment from any court of record.

Section 22. Building permits. A municipality, county, or subdivision of a municipality or county that requires a building permit may not issue a building permit to a residential building general contractor unless the applicant has provided sufficient proof that he or she is registered under this Act.

Section 25. Powers and duties of the Department.

(a) The Department shall exercise the powers and duties prescribed by the Civil Administrative Code of Illinois for the administration of licensing Acts and shall exercise such other powers and duties vested in it by this Act.

(b) The Department shall adopt rules and regulations necessary for the administration and enforcement of this Act, including rules and regulations (i) concerning standards and criteria for registration and for the payment of applicable fees, (ii) requiring residential building general contractors to report to the Department the subcontractors it uses and update the information with each building permit, and (iii) requiring the sworn testament of a residential building general contractor that, if he or she employs subcontractors, payment of such subcontractors shall be made by the residential building general contractor in cases where payment is made by the consumer to the residential building general contractor with the understanding that such subcontracting payments shall subsequently be made by the residential building general contractor and requiring the filing of a lien waiver signed by both the residential building general contractor and the subcontractor indicating that in cases where the residential building general contractor fails to remit the designated payment to the subcontractor, through no fault of the consumer, the subcontractor may not seek a lien against the property of the consumer. The Department must consult the Board concerning these rules and regulations. Notice of proposed rulemaking shall be transmitted to the Board and the Department shall review the Board's response and any recommendations made therein. The Department shall notify the Board in writing of the explanation for any deviations from the Board's recommendations and response.

(c) The Department may, at any time, seek the advice and the expert knowledge of the Board on any matter relating to the administration of this Act.

(d) The Department must issue a quarterly report to the Board setting forth the status of all complaints received by the Department related to the practice of the profession.

(e) The Department must prescribe forms required for the administration of this Act.

(f) The Department must establish and maintain an Internet website dedicated to the provision of information to the public concerning registered residential building general contractors. The content of the website shall include without limitation each of the following:

(1) A description of any criminal conviction of a registrant. For the purposes of this item (1), a person shall be deemed to be convicted of a crime if he or she has been found or adjudged guilty by or entered a plea of guilty in a court of competent jurisdiction.

(2) A description of any civil claim or criminal charge pending or previously pending against a registrant.

(3) A description of any civil settlement or judgment entered against a registrant.

(4) A description of any final disciplinary action taken against a registrant by the Board.

(5) A listing of all previous businesses that a registrant has owned or was employed with as a residential building general contractor.

Section 30. Residential Building General Contractor Board.

(a) The Director shall appoint a Residential Building General Contractor Board comprised of persons who are residents of this State and who shall serve in an advisory capacity to the Director. The Board shall consist of 7 members, 4 of whom shall be individuals experienced in the practice of residential building general contracting and who meet the requirements for residential building general contractor registration set forth under this Act, 2 of whom shall be representatives of a statewide association representing residential building general contractors, and one of whom shall be a knowledgeable public member who is not registered under this Act or any Act administered by the Department.

(b) Members of the Board shall serve 4-year terms and until their successors are appointed and qualified, except that of the members of the Board first appointed, 2 shall be appointed to serve for 2 years, 2 shall be appointed to serve for 3 years, and 3 shall be appointed to serve for 4 years. No member may serve more than 2 complete 4-year terms.

(c) Members of the Board shall be immune from suit in any action based on any disciplinary proceedings or other acts performed in good faith as members of the Board, unless the conduct that gave rise to the suit was willful or wanton misconduct.

(d) If a vacancy on the Board occurs for any reason resulting in an unexpired term, within 90 days after the vacancy first occurs, the Director shall fill the vacancy in like manner for the unexpired balance of the term only. The Board shall meet annually to elect one member as chairperson and one member as vice-chairperson from their number. No officer may be elected more than 2 times in succession to the same office.

(e) Board members shall receive reimbursement for actual, necessary, and authorized expenses incurred in attending the meetings of the Board.

Section 35. Registration requirements.

(a) Every person applying to the Department for registration must do so in writing on forms prescribed by the Department and pay the required nonrefundable fee. The application shall include without limitation all of the following information:

(1) The name, principal place of business, address, and telephone number of the applicant.

(2) Verification satisfactory to the Board that the applicant is at least 18 years of age.

(3) Disclosure of all settlements and judgments against the applicant.

(4) Disclosure of all civil claims and criminal charges pending against the applicant.

(b) Before issuing or renewing a certificate of registration, the Department shall require each applicant or registrant to file and maintain in force a surety bond, issued by an insurance company authorized to transact fidelity and surety business in Illinois. The Department shall set the requirements of the bond by rule.

(c) The Department may establish further requirements for registration by rule.

Section 40. Issuance of certificate. Whenever an applicant for registration has complied with the requirements of Section 35 of this Act, the Department shall issue a certificate of registration to the applicant as a registered residential building general contractor, subject to the provisions of this Act.

Section 45. Current address. Every registrant under this Act must maintain a current address with the Department. It shall be the responsibility of the registrant to notify the Department in writing of any change of address.

Section 50. Renewal; restoration; military service.

(a) The expiration date and renewal period for each certificate of registration issued under this Act shall be set by the Department by rule.

(b) Any person who has permitted his or her certificate of registration to expire may have his or her certificate of registration restored by applying to the Department, filing proof acceptable to the Department of his or her fitness to have the registration restored, which may include sworn evidence certifying to active practice in another jurisdiction satisfactory to the Department and paying the required restoration fee. If the person has not maintained an active practice in another jurisdiction satisfactory to the Department, the Board shall determine, by an evaluation program established by rule, the person's fitness to resume active status and may require the successful completion of an examination.

(c) Any person whose registration has expired while he or she has been engaged (i) in federal service on active duty with the Armed Forces of the United States or the State Militia called into service or training or (ii) in training or education under the supervision of the United States preliminary to induction into the military service, may have his or her certificate of registration renewed or restored without paying any lapsed renewal fees if, within 2 years after termination of service, training, or education, other than by dishonorable discharge, he or she furnishes the Department with satisfactory evidence to the effect that he or she has been so engaged and that the service, training, or education has been so terminated.

(d) Each application for renewal must contain the signature of the residential building general contractor.

Section 55. Inactive status.

(a) Any residential building general contractor who notifies the Department in writing on forms prescribed by the Department may elect to place his or her certificate of registration on inactive status and shall be excused from payment of renewal fees until he or she notifies the Department in writing of his or her desire to resume active status.

(b) Any person whose certificate of registration has been expired for more than 3 years may have his or her certificate restored by making application to the Department and filing proof acceptable to the Department of his or her fitness to have his or her certificate restored, including evidence certifying to active practice in another jurisdiction, and by paying the required restoration fee.

(c) Any residential building general contractor whose certificate of registration is on inactive status, has been suspended or revoked, or has expired may not represent himself or herself to be a residential building general contractor or use the title "residential building general contractor", "registered residential building general contractor", or any other title that includes the words "residential building general contractor".

Section 60. Fees; disposition of funds.

(a) The Department shall establish by rule a schedule of fees for the administration and maintenance of this Act. Such fees shall be nonrefundable.

(b) All fees collected pursuant to this Act shall be deposited in the Residential Building General Contractor Fund. All moneys deposited into the Fund may be used for the expenses of the Department in the administration of this Act.

Section 65. Roster. The Department shall maintain a roster of the names and addresses of all registrants under this Act. This roster shall be made available upon written request and payment of the required fee; however, the Attorney General may obtain the roster without charge for the purpose of creating and maintaining an Internet website of residential building general contractors.

Section 70. Advertising. Any person registered under this Act may advertise the availability of professional services in the public media or on the premises where such professional services are rendered, provided that such advertising is truthful and not misleading.

Section 75. Injunction; criminal penalty; cease and desist order.

(a) If any person violates the provisions of this Act, the Director may, in the name of the People of the State of Illinois and through the Attorney General or the State's Attorney of any county in which the action is brought, petition for an order enjoining such violation and for an order enforcing compliance with this Act. Upon the filing of a verified petition in court, the court may issue a temporary restraining order, without notice or bond, and may preliminarily and permanently enjoin such violation. If it is established that such person has violated or is violating the injunction, the Court may punish the offender for contempt of court. Proceedings under this Section shall be in addition to, and not in lieu of, all other remedies and penalties provided by this Act.

(b) If any person holds himself or herself out as a "residential building general contractor" or "registered residential building general contractor" without being registered under the provisions of this Act, then any registered residential building general contractor, interested party, or person injured thereby may, in addition to the Director, petition for relief as provided in subsection (a) of this Section.

(c) Whoever holds himself or herself out as a "residential building general contractor" or "registered residential building general contractor" in this State without being registered for that purpose is guilty of a Class A misdemeanor, and for each subsequent conviction, is guilty of a Class 4 felony.

(d) Whenever, in the opinion of the Department, a person violates any provision of this Act, the Department may issue a rule to show cause why an order to cease and desist should not be entered against that person. The rule shall clearly set forth the grounds relied upon by the Department and shall allow the person at least 7 days after the date of the rule to file an answer that is satisfactory to the Department. Failure to answer to the satisfaction of the Department shall cause an order to cease and desist to be issued.

Section 80. Disciplinary grounds.

(a) The Department may refuse to issue, renew, or may revoke, suspend, place on probation, reprimand, or take other disciplinary action as the Department considers appropriate, including the issuance of fines not to exceed $10,000 for each violation, with regard to any certificate of registration for any one or more of the following causes:

(1) Violation of this Act or any rule adopted under this Act.

(2) Conviction of any crime under the laws of an U.S. jurisdiction that is a felony or a misdemeanor an essential element of which is dishonesty or that directly relates to the practice of the profession.

(3) Making any misrepresentation for the purpose of obtaining a certificate of registration.

(4) Professional incompetence or gross negligence in the practice of building contracting.

(5) Gross malpractice, prima facie evidence of which may be a conviction or judgment of malpractice in any court of competent jurisdiction.

(6) Aiding or assisting another person in violating any provision of this Act or any rule adopted under this Act.

(7) Failing, within 60 days, to provide information in response to a written request made by the Department that has been sent by certified or registered mail to the registrant's last known address.

(8) Engaging in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public.

(9) Habitual or excessive use of or addiction to alcohol, narcotics, stimulants, or any other chemical agent or drug that results in the inability to practice with reasonable judgment, skill, or safety.

(10) Discipline by another U.S. jurisdiction or foreign nation, if at least one of the grounds for the discipline is the same or substantially equivalent to those set forth in this Section.

(11) Directly or indirectly giving to or receiving from any person, firm, corporation, partnership, or association any fee, commission, rebate, or other form of compensation for any professional service not actually rendered.

(12) A finding by the Department that a registrant, after having his or her certificate of registration placed on probationary status, has violated the terms of probation.

(13) Conviction by any court of competent jurisdiction, either within or without this State, of any violation of any law governing the practice of building contracting if the Department determines, after investigation, that such person has not been sufficiently rehabilitated to warrant the public trust.

(14) A finding that registration has been applied for or obtained by fraudulent means.

(15) Practicing, attempting to practice, or advertising under a name other than the full name as shown on the certificate of registration or any other legally authorized name.

(16) Gross and willful overcharging for professional services, including filing false statements for collection of fees or moneys for which services are not rendered.

(17) Failure to file a tax return or to pay any final assessment of tax, penalty, or interest, as required by any tax Act administered by the Department of Revenue, until such time as the requirements of any such tax Act are satisfied.

(18) Failure to continue to meet the requirements of this Act.

(19) Physical or mental disability, including deterioration through the aging process or loss of abilities and skills, that result in an inability to practice the profession with reasonable judgment, skill, or safety.

(20) Material misstatement in furnishing information to the Department or to any other State agency.

(21) Advertising in any manner that is false, misleading, or deceptive.

(22) The determination by a court that a registrant is subject to involuntary admission or judicial admission as provided in the Mental Health and Developmental Disabilities Code. Such determination shall result in an automatic suspension of a registrant's certificate. The suspension shall end upon a finding by a court that the registrant is no longer subject to involuntary admission or judicial admission, the issuance of an order so finding and discharging the patient, and the recommendation of the Board to the Secretary that the registrant be allowed to resume practice within the profession.

(b) The Department shall deny the issuance or renewal of any certificate of registration under this Act to any person who has defaulted on an educational loan guaranteed by the Illinois Student Assistance Commission; however, the Department may issue a certificate or renewal if the person in default has established a satisfactory repayment record, as determined by the Illinois Student Assistance Commission.

Section 83. Notification of intention to place a lien. A licensee under this Act must provide written notification to the owner of the property for which the licensee has provided building contracting services of the licensee's intention to place a lien on that property. This notification must be provided at least 10 days before the lien is placed on the property.

Section 85. Investigation; notice of hearing. The Department may investigate the actions or qualifications of any applicant or person holding or claiming to hold a certificate of registration. The Department shall, before suspending or revoking, placing on probation, reprimanding, or taking any other disciplinary action under Section 80 of this Act, at least 30 days before the date set for the hearing, notify the applicant or registrant in writing of the nature of the charges and that a hearing will be held on the date designated. The written notice may be served by personal delivery or certified or registered mail to the applicant or registrant at the address of his or her last notification to the Department. The Department shall direct the applicant or registrant to file a written answer with the Department, under oath, within 20 days after the service of the notice, and inform the person that if he or she fails to file an answer, his or her certificate may be revoked, suspended, placed on probation, reprimanded, or the Department may take any other additional disciplinary action, including the issuance of fines not to exceed $1,000 for each violation, as the Department may consider necessary, without a hearing. At the time and place fixed in the notice, the Board shall proceed to hear the charges and the parties or their counsel. All parties shall be afforded an opportunity to present any statements, testimony, evidence, and arguments as may be pertinent to the charges or to their defense. The Board may continue the hearing from time to time.

Section 90. Record of proceedings; transcript. The Department, at its expense, shall preserve a record of all proceedings at the formal hearing of any case involving the refusal to issue, renew, or restore a certificate of registration or the discipline of a registrant. The notice of hearing, complaint, and all other documents in the nature of pleadings and written motions filed in the proceedings, the transcript of testimony, the report of the Board, and the orders of the Department shall be the record of the proceedings.

Section 95. Subpoenas; depositions; oaths. The Department may subpoena and bring before it any person and take testimony, either orally, by deposition, or both, with the same fees and mileage and in the same manner as prescribed in civil cases in circuit courts of this State. The Director, the designated hearing officer, and every member of the Board has the power to administer oaths to witnesses at any hearing which the Department is authorized to conduct, and any other oaths authorized in any Act administered by the Department.

Section 100. Compelling testimony. Any court, upon the application of the Department, designated hearing officer, or the applicant or registrant against whom proceedings under Section 80 of this Act are pending, may enter an order requiring the attendance of witnesses and their testimony and the production of documents, papers, files, books, and records in connection with any hearing or investigation. The court may compel obedience to its order by proceedings for contempt.

Section 105. Findings and recommendations. At the conclusion of a hearing, the Board shall present to the Director a written report of its findings of fact, conclusions of law, and recommendations. The report shall contain a finding as to whether the registrant violated this Act or failed to comply with the conditions required in this Act. The Board shall specify the nature of the violation or failure to comply and shall make its recommendations to the Director.

The report of findings of fact, conclusions of law, and recommendations of the Board shall be the basis for the Department's order for refusal or for the granting of the certificate of registration. If the Director disagrees with the recommendations of the Board, the Director may issue an order in contravention of the Board recommendations. The Director shall provide a written report to the Board on any disagreement and shall specify the reasons for the action in the final order. These findings are not admissible in evidence against the person in a criminal prosecution for violation of this Act, but the hearing and findings shall not serve as a bar to criminal prosecution for violation of this Act.

Section 110. Board; rehearing. At the conclusion of a hearing, a copy of the Board's report shall be served upon the accused person, either personally or as provided in this Act for the service of the notice. Within 20 days after such service, the applicant or registrant may present to the Department a motion in writing for a rehearing which shall specify the particular grounds for rehearing. If no motion for a rehearing is filed, then upon the expiration of the time specified for filing such a motion or if a motion for rehearing is denied, then upon the denial, the Director may enter any order in accordance with recommendations of the Board, except as otherwise provided in this Act. If the applicant or registrant requests and pays for a transcript of the record within the time for filing a motion for rehearing, the 20-day period within which a motion may be filed shall commence upon the delivery of the transcript to the applicant or registrant.

Whenever the Director is not satisfied that substantial justice has been done, he or she may order a rehearing by the same or another special board. At the expiration of the time specified for filing a motion for a rehearing the Director has the right to take the action recommended by the Board.

Section 115. Appointment of a hearing officer. The Director has the authority to appoint any attorney licensed to practice law in the State of Illinois to serve as the hearing officer in any action for refusal to issue or renew a certificate of registration or to discipline a registrant. The Director shall notify the Board of any such appointment. The hearing officer has full authority to conduct the hearing. At least one member of the Board shall attend each hearing. The hearing officer shall report his or her findings of fact, conclusions of law, and recommendations to the Board and the Director. The Board has 60 days after receipt of the report to review it and present its findings of fact, conclusions of law, and recommendations to the Director. If the Board fails to present its report within the 60-day period, the Director shall issue an order based on the report of the hearing officer. If the Director disagrees with the recommendation of the Board or hearing officer, the Director may issue an order in contravention of the recommendation. The Director shall promptly provide a written explanation to the Board on any disagreement.

Section 120. Order of certified copy; prima facie proof.

An order or a certified copy thereof, over the seal of the Department and purporting to be signed by the Director, shall be prima facie proof that:

(1) the signature is the genuine signature of the Director;

(2) the Director is duly appointed and qualified; and

(3) the Board and the members thereof are qualified to act.

Section 125. Restoration of suspended or revoked certificate of registration. At any time after the suspension or revocation of any certificate of registration, the Department may restore it to the registrant upon the written recommendation of the Board, unless after an investigation and hearing, the Board determines that restoration is not in the public interest.

Section 130. Surrender of certificate of registration. Upon the revocation or suspension of any certificate of registration, the registrant shall immediately surrender his or her certificate to the Department. If the registrant fails to do so, the Department has the right to seize the certificate.

Section 135. Summary suspension of a certificate of registration. The Director may summarily suspend a certificate of registration issued under this Act without a hearing, simultaneously with the institution of proceedings for a hearing provided for in this Act, if the Director finds that evidence in the possession of the Director indicates that the continuation in practice by the registrant would constitute an imminent danger to the public. In the event that the Director temporarily suspends the certificate of an individual without a hearing, a hearing must be held within 30 days after such suspension has occurred.

Section 140. Administrative Review Law; venue.

(a) All final administrative decisions of the Department are subject to judicial review under the Administrative Review Law and its rules. The term "administrative decision" is defined as in Section 3-101 of the Code of Civil Procedure.

(b) Proceedings for judicial review shall be commenced in the circuit court of the county in which the party applying for review resides, but if the party is not a resident of this State, the venue shall be in Sangamon County.

Section 145. Certification of record; costs. The Department shall not be required to certify any record to the court or file an answer in court or to otherwise appear in any court in a judicial review proceeding, unless there is filed in the court with the complaint a receipt from the Department acknowledging payment of the costs of furnishing and certifying the record. Failure on the part of the plaintiff to file such receipt in court shall be grounds for dismissal of the action.

Section 150. Administrative Procedure Act. The Illinois Administrative Procedure Act is hereby expressly adopted and incorporated herein as if all of the provisions of that Act were included in this Act, except that the provision of subsection (d) of Section 10-65 of the Illinois Administrative Procedure Act that provides that at hearings the registrant has the right to show compliance with all lawful requirements for retention, continuation, or renewal of the certificate is specifically excluded. For the purposes of this Act, the notice required under Section 10-25 of the Illinois Administrative Procedure Act is deemed sufficient when mailed to the last known address of a party.

Section 165. Home rule. This Act shall not be construed to limit the power of a unit of local government from regulating or licensing the practice of residential building general contracting in a stricter manner. This Section is a limitation under subsection (i) of Section 6 of Article VII of the Illinois Constitution on the concurrent exercise by home rule units of powers and functions exercised by the State.

Section 900. The Regulatory Sunset Act is amended by adding Section 4.30 as follows:

(5 ILCS 80/4.30 new)

Sec. 4.30. Act repealed on January 1, 2020. The following Act is repealed on January 1, 2020:

The Residential Building General Contractor Act.

Section 905. The State Finance Act is amended by adding Section 5.719 as follows:

(30 ILCS 105/5.719 new)

Sec. 5.719. The Residential Building General Contractor Act Fund.

Section 999. Effective date. This Act takes effect upon becoming law.