H. B. 2879

(By Delegates Davis, Kuhn, Willis, Fantasia, Flanigan,

Capito and Willison)

(Originating in the Committee on Government Organization)

[January 14, 1998]

A BILL to amend and reenact section fourteen, article eleven, chapter twenty-one of the code of West Virginia, one thousand nine hundred and thirty one, as amended, relating to disciplinary actions against licensed contractors; requiring due process hearings and permitting disciplinary action without final adjudication in a court of record.

Be it enacted by the Legislature of West Virginia:
That section fourteen, article eleven, chapter twenty-one of the code of West Virginia, one thousand nine hundred and thirty- one, as amended, be amended and reenacted, to read as follows:

§21-11-14. Disciplinary powers of the board.

(a) The board has the power and authority to impose the following disciplinary actions:
(1) Permanently revoke a license;
(2) Suspend a license for a specified period;
(3) Censure or reprimand a licensee;
(4) Impose limitations or conditions on the professional practice of a licensee;
(5) Impose requirements for remedial professional education to correct deficiencies in the education, training and skill of a licensee; and
(6) Impose a probationary period requiring a licensee to report regularly to the board on matters related to the grounds for probation; the board may withdraw probationary status if the deficiencies that require the sanction are remedied.
(b) The board may summarily suspend a licensee pending a hearing or pending an appeal after hearing upon a determination that the licensee poses a clear, significant and immediate danger to the public health and safety.
(c) The board may reinstate the suspended or revoked license of a person, if, upon a hearing, the board finds and determines that such person is able to practice with skill and safety.
(d) The board may accept the voluntary surrender of a license: Provided, That such license may not be reissued unless the board determines that the licensee is competent to resume practice and the licensee pays the appropriate renewal fee.
(e) A person or contractor adversely affected by disciplinary action may appeal to the board within sixty days of the date such disciplinary action is taken. The board shall hear the appeal within fifteen days from receipt of notice of appeal in accordance with the provisions of chapter twenty-nine-a of this code. Hearings shall be held in Charleston. The board may retain a hearing examiner to conduct the hearings and present proposed findings of fact and conclusions of law to the board for its action.
(f) Any party adversely affected by any action of the board may appeal such action pursuant to the provisions of chapter twenty-nine-a of this code.
(g) The following are causes for disciplinary action:
(1) Abandonment, without legal excuse, of any construction project or operation engaged in or undertaken by the licensee;
(2) Willful failure or refusal to complete a construction project or operation with reasonable diligence, thereby causing material injury to another;
(3) Willful departure from or disregard of plans or specifications in any material respect without the consent of the parties to the contract;
(4) Willful or deliberate violation of the building laws or regulations of the state or of any political subdivision thereof;
(5) Willful or deliberate failure to pay any moneys when due for any materials free from defect, or services rendered in connection with such person's operations as a contractor when such person has the capacity to pay or when such person has received sufficient funds under the contract as payment for the particular construction work for which the services or materials were rendered or purchased, or the fraudulent denial of any amount with intent to injure, delay or defraud the person to whom the debt is owed;
(6) Willful or deliberate misrepresentation of a material fact by an applicant or licensee in obtaining a license, or in connection with official licensing matters;
(7) Willful or deliberate failure to comply in any material respect with the provisions of this article or the rules of the board;
(8) Willfully or deliberately acting in the capacity of a contractor when not licensed, or as a contractor by a person other than the person to whom the license is issued except as an employee of the licensee;
(9) Willfully or deliberately acting with the intent to evade the provisions of this article by: (I) Aiding or abetting an unlicensed person to evade the provisions of this article; (ii) combining or conspiring with an unlicensed person to perform an unauthorized act; (iii) allowing a license to be used by an unlicensed person; or (iv) attempting to assign, transfer or otherwise dispose of a license or permitting the unauthorized use thereof;
(10) Engaging in any willful, fraudulent or deceitful act in the capacity as a contractor whereby substantial injury is sustained by another; or
(11) Performing work which is not commensurate with a general standard of the specific classification of contractor or which is below a building or construction code adopted by the municipality or county in which the work is performed.
(h) In all disciplinary hearings the board has the burden of proof as to all matters in contention. No disciplinary action shall be taken by the board except on the affirmative vote of at least six members thereof. Except for violations of section thirteen of this article, no disciplinary action shall be taken by the board for any such cause as is set out herein unless the licensee has been finally adjudicated as having perpetrated such act in a court of record. Except as provided in subsection (b) of this section, no disciplinary action against a licensee may be imposed without a prior hearing before the board. In all proceedings before the board, a statement of the charges against the licensee and a notice of the time and place of hearing shall be served upon the person as a notice is served under section one, article two, chapter fifty-six of this code, at least thirty days prior to the hearing, and he or she may appear with witnesses and be heard in person, by counsel, or both. The board may take oral or written proof, for or against the accused, as it may deem advisable. If upon hearing the board finds that the charges are true, it may upon the affirmative vote of six members impose any disciplinary action permitted in this section and suspension or revocation of a license shall take from the person all rights and privileges acquired thereby. Other than as specifically set out herein, the board shall have no power or authority to impose or assess damages.