SB1488sam001 96TH GENERAL ASSEMBLY

Sen. Iris Y. Martinez

Filed: 3/12/2009

09600SB1488sam001 LRB096 06297 ASK 23017 a

AMENDMENT TO SENATE BILL 1488

AMENDMENT NO. ______. Amend Senate Bill 1488 by deleting everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Heating, Ventilation, Air Conditioning, and Refrigeration Contractor Registration Act.

Section 5. Objects and Purpose. The installation and maintenance of HVACR systems in the State is hereby declared to affect the public health, safety, and welfare and to be subject to regulation and control in the public interest. It is further declared to be a matter of public interest and concern that the installation and maintenance of HVACR systems as defined in this Act merit and receive the confidence of the public, and that only qualified persons are authorized to install and maintain HVACR systems in the State. The purpose of this Act is to provide for the registration of persons who install and repair HVACR systems in the State and this Act shall be liberally construed to best carry out these subjects and purposes.

Section 10. Definitions. As used in this Act:

"Advisory board" means the HVACR Contractors Advisory Board.

"Department" means the Department of Financial and Professional Regulation.

"Secretary" means the Secretary of the Department of Financial and Profession Regulation.

"HVACR" means heating, ventilation, air conditioning and refrigeration.

"HVACR contractor" means any person, sole proprietorship, corporation, partnership, association, or other business entity that performs or offers to perform heating, ventilation, air conditioning, or refrigeration contracting to the general public.

"HVACR contracting" means to perform or offer to perform the design, installation, construction, maintenance, service, repair, alteration, or modification of a product or equipment in environmental air conditioning, commercial refrigeration, or process cooling or heating systems. HVACR contracting includes all HVACR systems, products, or equipment of any size or capacity, and electrical wiring to and from the unit's disconnect and all necessary low voltage control wiring on any HVACR equipment.

"HVACR maintenance work" means repair work and all other work required for the continued normal performance of an environmental heating, ventilation, air conditioning system, refrigeration system or equipment, or process cooling system.

"Person" means any natural person.

"Registered contractor" means a HVACR contractor fully registered by the State under the terms of this Act.

Section 15. HVACR Contractor Advisory Board.

(a) There is created an HVACR Contractor Advisory Board that shall exercise its duties provided in this Act under the supervision of the Department. The Board shall consist of 7 members, who are experienced in the design, installation, construction, maintenance, service, repair, alteration, or modification of equipment used for environmental air conditioning, commercial refrigeration, and process cooling or heating. The Secretary shall appoint:

(i) 4 members who are full-time registered air conditioning and refrigeration contractors holding registration;

(ii) 2 members who are officials of municipalities; and

(iii) One member who is a registered Professional Engineer in an Engineering firm with an HVACR discipline in the State.

To the extent possible, the members of the Board shall reasonably reflect the geographic distribution of the population of the State.

(b) In appointing the HVACR members of the Board, at least one, but no more than 2 of those appointees should be an HVACR contractor, who employs organized labor.

(c) The term for members of the Board shall be 6 years, except for the initial appointees. Of the initial appointments, 2 members shall be appointed for terms ending July 1, 2011, 2 members shall be appointed for terms ending July 1, 2012, and 3 members shall be appointed for terms ending July 1, 2013. A member shall serve no more than 2 consecutive terms.

(d) The Board may annually elect a chairperson and a vice chairperson who shall preside in the absence of the chairperson.

(e) The Secretary may terminate the appointment of a member for cause. Cause for termination may include, without limitation, misconduct, incapacity, neglect of duty, or missing 4 Board meetings during any one calendar year.

(f) Upon the termination of a member of the Board or the vacancy of a seat on the Board, the Secretary shall fill the remainder of the unexpired term with an individual who represents the same interest with which the predecessor was identified.

(g) A majority of the Board members currently appointed shall constitute a quorum. A vacancy in the membership of the Board shall not impair the right of a quorum to exercise all of the rights and to perform all of the duties of the Board. A decision of the Board is effective upon the affirmative vote of at least 4 members.

(h) The Board shall meet at least quarterly and may be convened by the chairperson, the vice chairperson, or 3 members of the Board upon 10 days written notice.

(i) The Board shall advise and make recommendations to the Secretary on matters of registration, education, approval of courses, discipline, and enforcing and administrating this Act and the rules adopted under this Act.

(j) Members of the Board shall be immune from suit in an action based upon any disciplinary proceedings or other acts performed in good faith as members of the Board.

(k) Each member shall be reimbursed for his or her necessary and contingent expenses.

Section 20. Powers and duties of the Secretary. The Secretary shall:

(1) Prepare and issue registered contractor certificates as provided in this Act.

(2) Renew the registration of any applicant who has fulfilled the requirements and who has paid the required renewal fee.

(3) Prescribe rules for hearings to deny, suspend, revoke, or reinstate registrations as provided in this Act.

(4) Maintain a current record showing:

(i) the names and addresses of registered HVACR contractors;

(ii) the dates of issuance of registrations;

(iii) the date and substance of the charges set forth in any hearing for denial, suspension, or revocation of any registration;

(iv) the date and substance of the final order issued upon each hearing; and

(v) the date and substance of all petitions for reinstatement of a registered HVACR contractor and the final orders on such petitions.

(6) Prescribe, in consultation with the Board, uniform and reasonable rules defining what constitutes an approved continuing education unit of related HVACR associations and a course of instruction in HVACR in colleges, universities, or trade schools, and approve or disapprove the courses of instruction offered by the colleges, universities, or trade schools by reference to their compliance or noncompliance with the rules adopted under this Act. Upon the recommendation of the Board, the Department may require by rule that each registered HVACR contractor annually complete a minimum number of 10 hours of classroom instruction and provide evidence of attending the meetings or classes before receiving a renewal of the HVACR contractor's registration. At least 5 hours of any required classroom instruction must be on the topic of general business practices. In addition, the Department shall by rule establish guidelines for approval of the continuing education to be required.

(7) Adopt guidelines for the denial of registration of any HVACR contractors found to have committed repeated violations of this Act or the rules adopted pursuant to this Act.

(8) Provide, for a reasonable administration fee, an on-line directory of the persons registered under this Act.

(9) Prescribe rules and contract with another State agency or political subdivision for the enforcement of this Act and the rules adopted under this Act.

(10) Employ those persons necessary for the implementation of this Act.

(11) Issue emergency orders, without notice or a hearing, as necessary to enforce this Act and to protect the public health and safety. The Secretary shall set a time and place for a hearing to affirm, modify, or set aside the emergency order.

Section 30. Application for Registration.

(a) An applicant for registration shall file a written application with the Department on the form designated by the Department at least 30 days before the date of registration.

(b) The Secretary shall promptly approve the application for registration if:

(1) the required application fee has been paid;

(2) the applicant is at least 18 years of age;

(3) the applicant has submitted a Certificate of Insurance showing Liability coverage of at least $250,000 and Workman's Compensation coverage of at least one technician in the HVACR classifications of Illinois Code #5537 or #5538; and vehicle insurance, if applicable; and

(4) the applicant has signed an attestation of honest representation of all of the above.

Section 35. Issuance of a registration. The Secretary shall issue the Certificate of Registration to a HVACR contractor with the appropriate endorsement to each contractor who fulfills the above requirement, submits the proper insurance documents and has paid to the Department the required registered contractor fee. Each HVACR contractor's certificate shall be issued in the name of the Department with the seal thereof attached. A person registered as an HVACR contractor under this Act shall not be required to be registered or licensed under any other Act in the State in order to engage in HVACR contracting or HVACR maintenance work.

Section 40. Registered contractor renewal. A HVACR contractor's registation issued under this Act shall expire on the next December 31 following the date of issuance. An HVACR contractor's registration may be renewed for one year upon payment of the required renewal fee and the submission of required evidence of successful completion of 5 hours of general business continuing education and 5 hours of either technical or business continuing education units. There cannot be any lapse in the basic insurance coverage during the year.

Application for renewal shall be on forms provided by the Department. An application for renewal of a registration received by the Department after January 1 shall include the annual renewal fees plus any applicable reinstatement fees.

Section 45. Enforcement of contracts. An HVACR contracting company that performs HVACR contracting without proper registration contractor certificate under this Act may not collect a fee or otherwise enforce a contract for the services performed.

Section 50. Denial, suspension, or revocation of a registration. The Secretary, after notice and the opportunity for a hearing to the applicant or registered contractor, may deny, suspend, or revoke a registered contractor certificate in any case in which he or she finds that there has been a substantial failure to comply with the provisions of this Act or the standards and rules established pursuant to this Act.

Notice shall be provided by certified mail or by personal service setting forth the particular reasons for the proposed action and fixing a date, not less than 20 days from the date of the mailing or service, within which time the applicant or registered holder must request in writing a hearing. Failure to serve upon the Department a request for a hearing, in writing and within the time provided in the notice, shall constitute a waiver of the person's right to an administrative hearing.

The hearing shall be conducted by the Secretary or by an individual designated in writing by the Secretary as a hearing officer. The Secretary or hearing officer shall give written notice of the time and place of the hearing, by certified mail or personal service, to the applicant or registered contractor at least 10 days prior to the hearing. On the basis of the hearing, or upon default of the applicant or registered contractor, the Secretary shall make a determination specifying his or her findings and conclusions. A copy of the determination shall be sent by certified mail or served personally upon the applicant or registered contractor. The decision of the Secretary shall be final on issues of fact and final in all respects unless judicial review is sought as provided in this Act.

The procedure governing hearings authorized by this Section shall be in accordance with rules promulgated by the Department. A full and complete record shall be kept of all proceedings, including the notice of hearing, the complaint, and all other documents in the nature of pleadings, written motions filed in the proceedings, and the report and orders of the Secretary and hearing officer. The Department, at its expense, shall provide a court reporter to take testimony. Technical error in the proceedings before the Department or hearing officer or their failure to observe the technical rules of evidence shall not be grounds for the reversal of any administrative decision unless it appears to the Court that such error or failure materially affects the rights of any party and results in substantial injustice to them.

The Department or hearing officer, or any parties in an investigation or hearing before the Department, may cause the depositions of witnesses within the State to be taken in the manner prescribed by law for depositions in civil actions in courts of this State, and compel the attendance of witnesses and the production of books, papers, records, or memoranda.

The Department shall not be required to certify any record to the Court or file any answer in Court or 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. The cost shall be paid by the party requesting a copy of the record. Failure on the part of the person requesting a copy of the record to pay the cost shall be grounds for dismissal of the action.

Section 55. Grounds for revocation or suspension of a registered contractor. The Secretary may revoke or suspend a registered contractor when findings show one or more of the following:

(1) the registered contractor obtained or conspired with others to obtain a registration by misrepresentation of the facts;

(2) the registered contractor willfully violated any law of this State or any rule or code promulgated there under regulating HVACR contractors;

(3) the registered contractor has made a fraudulent promise to influence, persuade, or induce an individual to contract for services; or

(4) the registered contractor has loaned or in any manner transferred a registered contractor under his or her employment to another person.

The Department may refuse to issue or may suspend the registration of a HVACR contractor who fails to file a return, or to pay the tax, penalty, or interest shown in a filed return, or to pay any final assessment of the tax, penalty, or interest, as required by any tax Act administered by the Illinois Department of Revenue, until such time as the requirements of any such tax Act are satisfied.

Section 60. Power to subpoena. The Secretary or hearing officer shall have power to subpoena to any hearing authorized by this Act any person in this State to give testimony and evidence either orally or by deposition or both. The Secretary or hearing officer may also issue subpoena duces tecum for production of any books and records and other documents for evidence at any authorized hearing under this Act. Witnesses subpoenaed as provided herein shall be paid the same witness fees and mileage as provided for witnesses who are subpoenaed to give testimony in any civil case in a court of this State. The Secretary or hearing officer is empowered to administer oaths or affirmations to witnesses at any hearing authorized by this Act.

Section 65. Court ordered appearance. Any circuit court upon the application of the Secretary or any party of record to a hearing authorized by this Act may order the attendance of any witness and the production of books, papers, or documents in this State at any hearing authorized by this Act for the purpose of giving testimony or evidence. Any court, as provided in this Section, may compel obedience to the order for appearance or production of records by a proceeding for contempt.

Section 70. Order or certified copy; prima facie proof. An order of suspension, revocation, or reinstatement of a registration, or of dismissal of a complaint or petition, or a certified copy of such an order, over the seal of the Department and purporting to be signed by the Secretary, shall be prima facie proof that:

(a) the signature is the genuine signature of the Secretary; and

(b) the Secretary is duly appointed and qualified.

Section 75. Administrative Procedure Act. The provisions of the Illinois Administrative Procedure Act are hereby expressly adopted and shall apply to all administrative rules and procedures of the Department of Public Health under this Act, except that in case of conflict between the Illinois Administrative Procedure Act and this Act the provisions of this Act shall control, and except that Section 5-35 of the Illinois Administrative Procedure Act relating to procedures for rulemaking does not apply to the adoption of any rule required by federal law in connection with which the Department is precluded by law from exercising any discretion.

All final administrative decisions of the Department under this Act shall be subject to judicial review pursuant to the provisions of the Administrative Review Law and the rules adopted under it. The term "administrative decision" has the meaning ascribed to it in Section 3-101 of the Code of Civil Procedure.

Section 80. Criminal penalties.

(1) Any person violating any provision of this Act or rule promulgated pursuant to this Act shall be guilty of a Class B misdemeanor and assessed a civil penalty of $500 for the first offense and a second or subsequent violation of this Act shall constitute a Class A misdemeanor with a fine of $1,000. Each day of violation constitutes a separate offense. The State's Attorney of the county in which the violation occurred or the Attorney General shall bring such actions in the name of the People of the State. The court may enjoin the use of an HVACR system installed in violation of this Act or a rule promulgated pursuant to this Act until it has been corrected to comply with the minimum standards for HVACR contracting as provided for by the rules adopted under this Act.

(2) If it is established that the defendant contrary to this Act has been or is engaged in or is about to engage in HVACR contracting after his or her registration has been suspended or revoked or after his or her registration has not been renewed, the court may enter a judgment perpetually enjoining the defendant from further engaging in HVACR contracting contrary to this Act. In case of violation of any injunction entered under this Section, the court may summarily try and punish the offender for contempt of court.

Section 85. Unregistered practice; violation; civil penalty.

(a) A person who practices, offers to practice, attempts to practice, or holds himself or herself out to practice as an HVACR contractor 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 $5,000 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 an HVACR contractor.

(b) The Department has the authority and power to investigate any person who practices, offers to practice, attempts to practice, or holds himself or herself out to practice as an HVACR contractor without being registered under this Act.

(c) The civil penalty 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 executed in the same manner as a judgment from a court of record.

Section 90. Consumer complaint investigation.

(a) The Secretary shall prepare information of consumer interest describing the functions performed by the Secretary under this Act and the rights of consumers affected by this Act. The information must describe the procedure by which a consumer complaint is filed with and resolved by the Secretary. The Secretary shall make the information available to the general public.

(b) The Secretary shall investigate consumer complaints filed with the Secretary or advisory board. If the Secretary determines after investigation that a registered contractor has violated this Act or a rule adopted under this Act, the Secretary may take appropriate action under Section 50 of this Act.

Section 95. Fees; Fund. The Department shall, by rule, establish a schedule of fees for registration. Further, the Department, by rule, shall establish a one-time implementation fee upon all new applications for registration. The Department shall, by rule, establish a fee for providing the on-line directory of registered HVACR contractors.

All fees, fines, and penalties collected by the Department under Act shall be deposited into the General Professions Dedicated Fund for use by the Department in performing activities relating to the duties of the Department.

Section 100. Home rule. A home rule unit may not regulate the registration of HVACR contractors in a manner less restrictive than the regulation by the State under this Act. 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 105. Municipal Reporting. A municipality that regulates HVACR contractors shall report violations of the applicable ordinances or rules to the Secretary not later than 30 days after the date on which the municipality takes action to enforce the ordinance or rule. Violation of an applicable municipal ordinance is a ground for the denial, suspension, or revocation of a registration issued under this Act.

Section 110. Permits; municipality. A municipality that has adopted an ordinance or resolution regulating HVACR contractors may provide for its administration and enforcement by requiring permits for any HVACR installation, the inspection of HVACR installations by inspectors who are registered as HVACR contractors in accordance with this Act, and the issuance of certificates of approval or compliance that shall be evidence that a HVACR system has been installed in compliance with the standards required under this Act or by rule.

A municipality may, by ordinance or resolution, prescribe reasonable fees for the issuance of permits for installation work, the issuance of certificates of compliance or approval, and for the inspection of HVACR installations.

Section 115. Inspections. The Department is authorized and directed to make inspections necessary to determine compliance with this Act and the rules adopted pursuant to this Act.

Subject to constitutional limitation, the Department, by its representatives, after proper identification, is authorized to enter at reasonable times, upon private and public property for the purpose of inspecting and investigating conditions relating to the enforcement of this Act and the rules adopted pursuant to this Act.

Section 120. Exemptions and limitations.

(a) This Act does not apply to a person who:

(1) performs HVACR contracting in a building owned solely by the person as the person's home;

(2) performs HVACR maintenance work if

(i) the person is a maintenance person or maintenance engineer who is a regular bona fide employee of the property owner, the property lessee, or the management company managing the property where the maintenance work is being performed;

(ii) the work is performed in connection with the business in which the person is employed; and

(iii) the person and the person's employer referred to in item (i) above do not engage in the occupation of HVACR contracting for the general public;

(3) is registered as a professional engineer under the Professional Engineering Practice Act of 1989, performs work in connection with the business in which the person is employed, and does not engage in the practice of HVACR contracting for the general public;

(4) performs process cooling or heating work for an industrial operation when employed by that operation;

(5) performs air conditioning services only on a motor vehicle or who employs a person who performs air conditioning services only on a motor vehicle; or

(6) performs air conditioning and refrigeration contracting on residential refrigerators, freezers, and ice machines.

(b) A person registered under this Act may not perform or offer or attempt to perform any act, service, or function that is defined as the practice of engineering by the Professional Engineering Practice Act of 1989, unless separately licensed thereunder.

Section 130. 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 Heating, Ventilation, Air Conditioning, and Refrigeration Contractor Registration Act.

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