WEST virginia legislature

2021 regular session

ENGROSSED

Committee Substitute

for

House Bill 2008

By Delegates Foster, Horst, Hamrick, Howell, Espinosa, Steele, Holstein, Clark, Keaton, and Burkhammer

[Originating in the Committee on Government Organization, February 16, 2021]

A BILL to repeal §21-3D-4, §21-3D-5, §21-3D-6, §21-3D-7, and §21-3D-9 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §21-3C-14; to amend and reenact §21-3D-1, §21-3D-2, §21-3D-3, and §21-3D-8 of said code; to amend and reenact §21-14-2 and §21-14-7 of said code; to amend and reenact §21-16-2, §21-16-3, §21-16-5, and §21-16-8 of said code; to amend said code by adding thereto a new section, designated §21-16-11; to amend and reenact §29-3B-2, §29-3B-3, §29-3B-4, §29-3B-6, and §29-3B-8 of said code; and to amend and reenact §29-3D-2, §29-3D-3, §29-3D-4, §29-3D-6, and §29-3D-7 of said code, all relating to licensure in this state; providing for state code precedence over local ordinances; providing for a national standard and national certification for crane operators; providing for legislative appropriation of the Crane Operators Certification Fund on a certain date; providing for altered definitions of a Journeyman and Master plumber; providing for monetary penalties for improperly performing plumbing work under certain conditions; providing for altered definitions of HVAC Technician; providing that an applicant for a HVAC technician license must only provide documentation of up to 2,000 hours work, training, and experience; providing for monetary penalties for improperly performing HVAC work under certain conditions; providing for veterans who meet certain conditions be eligible for HVAC technician licensure; providing for altered definitions of Journeyman and Master electricians; providing for exemptions for licensure under certain conditions; providing for extended time frames for electricians to renew a license without retesting; providing for monetary penalties for improperly performing electrical work under certain conditions; providing for definitions of fire protection workers; providing for an altered definition of Journeyman sprinkler fitter; providing for an exemption from licensure when meeting certain conditions; providing for monetary penalties for improperly performing fire protection work; and providing for other minor technical changes.

Be it enacted by the Legislature of West Virginia:

Chapter 21. Labor.

ARTICLE 3C. ELEVATOR SAFETY.

§21-3C-14. Inapplicability of local ordinances.

On January 1, 2022, and thereafter, a political subdivision of this state may not require, as a condition precedent to the performance of erecting, constructing, installing, altering, servicing, repairing, or maintaining elevators or related conveyances covered by this article in the political subdivision, a person who holds a valid license to perform such work issued under the provisions of this article, to have any other license or other evidence of competence to engage in the business of erecting, constructing, installing, altering, servicing, repairing, or maintaining elevators or related conveyance covered by this article.

ARTICLE 14. SUPERVISION OF PLUMBING WORK.

§21-14-2. Definitions.

As used in this article:

(a) “License” means a valid and current license issued by the Commissioner of Labor in accordance with the provisions of this article.

(b) “Journeyman plumber” means a person qualified by passage of a Journeyman plumber written examination with a score of at least 70 percent at least eight thousand hours of plumbing or related experience and who is competent to instruct and supervise the work of a plumber in training.

(c) “Master plumber” means a person who has passed a Master plumber written examination with a score of at least 70 percent with at least twelve thousand hours of plumbing work experience and who is competent to design plumbing systems, and to instruct and supervise the plumbing work of Journeyman plumbers, and plumbers in training: Provided, That the Master plumber written examination may not be taken until one year after passage of the Journeyman plumber examination.

(d) “Plumber in training” means a person who has not passed the Journeyman plumber examination: Provided, That the fee for plumbers in training may not be higher than $25.00. with interest in and an aptitude for performing plumbing work but who alone is not capable of performing plumbing work, and who has fewer than eight thousand hours of plumbing experience

(e) “Plumbing” means the practice, materials and fixtures utilized within a building in the installation, extension and alteration of all piping, fixtures, water treatment devices, plumbing appliances and appurtenances, in connection with sanitary drainage or storm drainage facilities; the plumbing venting systems; medical gas systems; fuel oil and gas piping for residential, commercial and institutional facilities; backflow preventers; and public or private water supply systems, as defined by the state building code.

(f)  “Single family dwelling” means a building which is occupied as, or designed or intended for occupancy as, a single residence for one or more persons.

§21-14-7. Penalties.

(a) On and after January 1, 2009, a person performing or offering to perform plumbing work without a license issued by the Commissioner of Labor, is subject to a cease and desist order.

(b) Any person continuing to engage in plumbing work after the issuance of a cease and desist order is guilty of a misdemeanor and, upon conviction thereof, is subject to the following penalties:

(1) For the first offense, a fine of not less than $200 nor more than $1,000;

(2) For the second offense, a fine of not less than $500 nor more than $2,000, or confinement in jail for not more than six months, or both;

(3) For the third and subsequent offenses, a fine of not less than $1,000 nor more than $5,000, and confinement in jail for not less than thirty days nor more than one year.

(c) A separate offense means each day, after official notice is given, that a person performs plumbing work that is unlawful or is not in compliance with the provisions of this article.

(d) The Commissioner of Labor may institute proceedings in the circuit court of the county where the alleged violation of the provisions of this article occurred or are occurring to enjoin any violation of any provision of this article. A circuit court by injunction may compel compliance with the provisions of this article, with the lawful orders of the Commissioner of Labor and with any final decision of the Commissioner of Labor. The Commissioner of Labor shall be represented in all such proceedings by the Attorney General or his or her assistants.

(e) Any person adversely affected by an action of the Commissioner of Labor may appeal the action pursuant to the provisions of chapter 29A of this code.

ARTICLE 16. REGULATION OF HEATING, VENTILATING AND COOLING WORK.

§21-16-2. Definitions.

As used in this article and the legislative rules promulgated pursuant to this article:

(a) “Perform work on a heating, ventilating, and cooling system” means to install, maintain, alter, remodel, or repair one or more components of a heating, ventilating, and cooling system.

(b) “Heating, ventilating, and cooling system” means equipment to heat, cool, or ventilate residential or commercial structures, comprised of one or more of the following components:

(1) “Heating system” means a system in which heat is transmitted by radiation, conduction, or convection, or a combination of any of these methods, to the air, surrounding surfaces, or both, and includes a forced air system that uses air being moved by mechanical means to transmit heat, but does not include a fireplace or wood-burning stove not incorporated into or used as a primary heating system;

(2) “Ventilating system” means the natural or mechanical process of supplying air to, or removing air from, any space whether the air is conditioned or not conditioned, at a rate of airflow of more than 250 cubic feet per minute; and

(3) “Cooling system” means a system in which heat is removed from air, surrounding surfaces, or both, and includes an air-conditioning system.

(c) “HVAC Technician” means a person with at least 2,000 hours of HVAC-related work, training, and experience and is licensed to install, test, maintain, and repair both residential and nonresidential heating, ventilating and cooling systems.

(d) “HVAC Residential Technician” means a person licensed to install, test, maintain, and repair residential heating, ventilating, and cooling systems: Provided, That such persons may perform work on nonresidential heating, ventilating, and cooling systems subject to rules promulgated by the commissioner pursuant to §21-16-3 of this code.

(e) “Residential heating, ventilating, and cooling system” means a system of no more than four separate heating, ventilating, and cooling units each with a combined capacity of five tons – 130,000 BTUs for: (1) A single or dual family structure; or (2) a commercial location of no more than 5,000 square feet in size where no fire damper is required.  Such term shall not apply to heating, ventilating, and cooling systems that include any packaged rooftop units.

(f) “HVAC technician in training” means a person with less than 2,000 hours of HVAC-related work, training, and experience interest in and an aptitude for performing installation, maintenance, and repair work to a heating, ventilating, and cooling system as defined in this article, but who alone is not capable or authorized to perform heating, ventilating, and cooling system work unless directly supervised by a HVAC technician or an HVAC residential technician: Provided, That the fee for HVAC technician in training license may not be higher than $25.00.

(g) “HVAC residential technician license” means a valid and current license issued by the Commissioner of Labor in accordance with the provisions of this article to perform work as an HVAC residential technician.

(h) “HVAC technician license” means a valid and current license issued by the Commissioner of Labor in accordance with the provisions of this article to perform work as an HVAC technician. 

(i) “Routine maintenance” means work performed on a routine schedule that includes cleaning and/or replacing filters, greasing or lubricating motor bearings, adjusting and/or replacing belts, checking system temperature, checking gas temperature, adjusting gas pressure as required, and checking voltage and amperage draw on heating, ventilating, and cooling systems.

(j) “Single family dwelling” means a building that is occupied as, or designed or intended for occupancy as, a single residence for one or more persons.

§21-16-3. License required; exemptions.

(a) On and after January 1, 2016, a person performing or offering to perform work on a heating, ventilating, and cooling system in this state shall have a license issued by the Commissioner of Labor, in accordance with the provisions of this article and the legislative rules promulgated pursuant hereto: Provided, That the commissioner shall issue HVAC residential technician licenses to qualified applicants without examination who present satisfactory evidence no later than December 31, 2019, of having at least 2,000 hours of experience and/or training working on heating, ventilating, and cooling systems: Provided, however, That if a license issued under the authority of this subsection subsequently lapses, the applicant is subject to all licensure requirements, including the examination.

(b) Notwithstanding any other provision of this article to the contrary, the commissioner shall credit verified military service, training, or education toward the licensing requirements, other than including examination requirements pursuant to §21-16-11 of this code, for a license issued under this article. The commissioner shall expedite the issuance of a provisional license or a license by endorsement or reciprocity under this article to an applicant who: has verified military experience or holds a current license issued by another jurisdiction that has license requirements that are substantially equivalent to the license requirements of this state. 

(c) A person licensed under this article shall carry a copy of the license on any job in which heating, ventilating, and cooling work is being performed.

(d) This article does not apply to:

(1) A person who personally performs work on a heating, ventilating, and cooling system in a single family dwelling owned by that person or by a member of that person’s immediate family;

(2) A person who performs work on a heating, ventilating, and cooling system at a manufacturing plant or other industrial establishment as an employee of the person, firm, or corporation operating the plant or establishment;

(3) A person who performs only electrical, or plumbing work on a heating, ventilating, and cooling system, which includes, but is not limited to, thermostats, bathroom fans, and tankless water heater ventilation, so long as the work is within the scope of practice which the person is otherwise licensed or authorized to perform; or

(4) A person who performs routine maintenance on any heating, ventilating, and cooling system.

§21-16-5. Rule-making authority.

(a)  The Commissioner of Labor shall propose rules for legislative approval, in accordance with the provisions of §21-16-5 et seq. of this code, for the implementation and enforcement of the provisions of this article, which shall provide:

(1) Standards and procedures for issuing and renewing licenses, applications, examinations, and qualifications: Provided, That an HVAC technician may not be required to provide documentation of more than 2,000 hours of total work, training, and experience as a requirement for licensure;

(2) Provisions for the granting of HVAC technician licenses, without examination, to applicants who present satisfactory evidence no later than July 1, 2016, of having at least 2,000 hours of experience and/or training working on heating, ventilating, and cooling systems and at least 6,000 hours of experience and/or training in heating, ventilating, and cooling or related work, to include other sheet metal industry tasks: Provided, That if a license issued under the authority of this subsection subsequently lapses, the applicant is subject to all licensure requirements, including the examination;

(3) Reciprocity provisions;

(4) Procedures for investigating complaints and revoking or suspending licenses, including appeal procedures;

(5) Fees for issuance and renewal of licenses and other costs necessary to administer the provisions of this article;

(6) Enforcement procedures; and

(7) Any other rules necessary to effectuate the purposes of this article.

(b) The commissioner may promulgate emergency rules pursuant to the provisions of §29A-3-15 of this code for the purpose of describing:

(1) Provisions for the granting of HVAC residential technician licenses without examination to qualified applicants who present satisfactory evidence no later than December 31, 2019, of having at least 2,000 hours of experience and/or training working on heating, ventilating, and cooling systems: Provided, That if a license issued under the authority of this subsection subsequently lapses, the applicant is subject to all licensure requirements, including the examination;

(2) Provisions for developing an examination required to obtain an HVAC residential technician license commensurate with the scope of practice for HVAC residential technicians as described in §21-16-2(d) of this code: Provided, That applicants for such license examination must provide satisfactory evidence of having at least 2,000 hours of experience and/or training working on heating, ventilating, and cooling systems: Provided, however, That the rules proposed by the commissioner shall provide that the HVAC residential license examination will be developed in consultation with HVAC industry representatives; and

(3) Provisions for allowing HVAC residential technicians to perform work on nonresidential heating, ventilating, and cooling systems subject to rules promulgated by the commissioner.

§21-16-8. Penalties.

(a) On and after January 1, 2016, a person performing or offering to perform, or an employer authorizing a person not exempt by the provisions of section three of this article, to perform, heating, ventilating and cooling work without a license issued by the Commissioner of Labor, is subject to a cease and desist order.

(b) A person continuing to perform, or an employer continuing to authorize a person not exempt by the provisions of §21-16-3 of this code, to perform, heating, ventilating, and cooling work after the issuance of a cease and desist order is guilty of a misdemeanor and, upon conviction thereof, is subject to the following penalties:

(1) For the first offense, a fine of not less than $200 nor more than $1,000;

(2) For the second offense, a fine of not less than $500 nor more than $2,000;

(3) For the third and subsequent offenses, a fine of not less than $1,000 nor more than $5,000, and confinement in jail for not more than one year.

(c) Each day after official notice is given, a person continues to perform, or an employer continues to authorize a person to perform, and which is not exempt by the provisions of section three of this article, heating, ventilating and cooling work, is a separate offense and punishable accordingly.

(d)(1) The Commissioner of Labor may institute proceedings in the circuit court of Kanawha County or of the county where the alleged violation of the provisions of this article occurred or are occurring to enjoin any violation of any provision of this article.

(2) A circuit court may by injunction compel compliance with this article, with the lawful orders of the Commissioner of Labor and with any final decision of the Commissioner of Labor.

(3) The Commissioner of Labor shall be represented in all such proceedings by the Attorney General or his or her assistants.

(e) Any person adversely affected by an action of the Commissioner of Labor may appeal the action pursuant to chapter 29A of this code.

§21-16-11. Veteran qualifications for license as HVAC Technician.

(a) Any person who has served as a member of any branch of the United States Armed Forces, the National Guard, or armed forces reserve, may apply for licensure, if:

(1) He or she has successfully completed a course of instruction required to qualify him or her for rating as a HVAC Technician’s mate or other equivalent rating in his or her particular branch of the armed forces;

(2) He or she meets the requirements of this article;

(3) He or she has been honorably discharged from service and submits, to the Commissioner of Labor, a photostatic copy of the honorable discharge;

(4) He or she submits a completed application to the Commissioner of Labor; and

(5) He or she pays the prescribed licensing fees.

(b) A veteran who has allowed more than 30 years to pass from the date of his or her successful completion of a course of instruction and the date of application for licensure in this state may be required to attend additional training courses.

CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.

ARTICLE 3B. SUPERVISION OF ELECTRICIANS.

§29-3B-2. Necessity of license; definitions.

After the effective date of this article, no electrical work may be performed, offered or engaged in for compensation or hire within the state of West Virginia by any person, firm or corporation unless such person, firm or corporation possesses a license and a certificate issued by the state Fire Marshal in accordance with this article: Provided, That any person who is assisting a Journeyman or Master electrician does not need a license to perform such supervised work, and a copy of the license is posted on any job in which electrical work is being performed for hire.

As used in this article:

(a) “Apprentice electrician” means a person with interest in and an aptitude for performing electrical work but who alone is not capable of performing electrical work unless directly supervised by a higher license classification.

(b)(a) “Electrical contractor” means a person, firm or corporation who engages in the business of electrical work and employs master electricians, journeyman electricians, apprentice electricians or other related workers for the construction, alteration, or repair of any electrical wiring, equipment or systems as defined in the scope of the national electric code.

(c)(b) “Electrical work” means the installation of wires, conduits, apparatus, fixtures, other appliances, equipment, or systems for transmitting, carrying, controlling, or using electricity as defined in the scope of the national electric code.

(d)(c) “Journeyman electrician” means a person qualified by at least four years one year of electrical work experience to do any work installing wires, conduits, apparatus, equipment, fixtures, and other appliances, provided that this classification is not authorized to design electrical systems.

(e)(d) “License” means a valid and current certificate of competency issued by the state Fire Marshal.

(f)(e) “Master electrician” means a person with at least five two years of electrical work experience, including experience in all phases of electrical wiring and installation, who is competent to design electrical systems, and to instruct and supervise the electrical work of journeyman electricians, apprentice electricians, and other related workers.

(g)(f) “Specialty electrician” means a person qualified to perform electrical work in a limited or specialized area.

§29-3B-3. Exemptions; nonapplicability of license requirements; legislative rules for limited reciprocity.

(a) This article does not apply to and no license may be required for: (1) A person who performs electrical work with respect to any property owned or leased by that person; (2) a person who performs electrical work at any manufacturing plant or other industrial establishment as an employee of the person, firm or corporation operating the plant or establishment; (3) a person who performs electrical work while employed by an employer who engages in the business of selling appliances at retail, so long as such electrical work is performed incident to the installation or repair of appliances sold by the employer; (4) a person who, while employed by a public utility or its affiliate, performs electrical work in connection with the furnishing of public utility service; or (5) any government employee performing electrical work on government property.

(1) A person who performs electrical work with respect to any property owned or leased by that person or that person’s immediate family;

(2) A person who performs electrical work at any manufacturing plant or other industrial establishment as an employee of the firm or corporation operating the plant or establishment;

(3) A person who performs electrical work while employed by an employer who engages in the business of selling appliances at retail, so long as such electrical work is performed incident to the installation or repair of appliances sold by the employer;

(4) A person who, while employed by a public utility or its affiliate, performs electrical work in connection with the furnishing of public utility service;

(5) Any government employee performing electrical work on government property; or

(6) Any person who performs low voltage electrical work with only low voltage wiring will not be required to have an electrician’s license other than a specialty license. Low voltage electrical work is 80 volts or less, and directly related wiring. Wiring is directly related if it:

(A) Originated at the load-side terminals of a disconnecting means or junction box that has been installed, complete with line-side connections by others for the specific purpose of supply to the low voltage wiring system involved;

(B) Is permanently and legibly marked to identify the low voltage wiring system supplied; and

(C) Is not installed in a location considered hazardous under the National Electrical Code.

(b)(1) Notwithstanding any other provision of this article to the contrary, a journeyman or master electrician license may be issued for a person who is a former resident of this state, who formerly held an electrician’s license issued by this state, who has obtained an equivalent electrician license from another state, and who returns to this state as a permanent resident, without requiring the person to meet the application or examination requirements that would otherwise be imposed on the person by the requirements of this article when the issuance of the license is permitted by legislative rules promulgated pursuant to the provisions of this subsection.

(2) The State Fire Marshal shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code to provide for the licensing of electricians with equivalent qualifications described in subdivision (1) of this subsection. Notwithstanding any other provision of this code to the contrary, the legislative rules described in this subsection may not be filed as emergency rules.

§29-3B-4. Licenses; classes of licenses; issuance of licenses by commissioner; qualifications required for license; nontransferability and nonassignability of licenses; expiration of license; renewal; reciprocity.

(a) The following classes of license may be issued by the State Fire Marshal: “Master electrician license,” “journeyman electrician license,” “apprentice electrician license” and “temporary electrician license.” Additional classes of specialty electrician license may be issued by the State Fire Marshal.

(b) The State Fire Marshal shall issue the appropriate class of license upon a finding that the applicant possesses the qualifications for the class of license to be issued. When considering whether an applicant possess the qualifications for the class of license, the State Fire Marshal shall consider whether an applicant’s prior criminal convictions bear a rational nexus on the license being sought.

(1) The State Fire Marshal may not disqualify an applicant from initial licensure because of a prior criminal conviction that remains unreversed unless that conviction is for a crime that bears a rational nexus to the activity requiring licensure. In determining whether a criminal conviction bears a rational nexus to a profession or occupation, the State Fire Marshal shall consider at a minimum:

(A) The nature and seriousness of the crime for which the individual was convicted;

(B) The passage of time since the commission of the crime;

(C) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the profession or occupation; and

(D) Any evidence of rehabilitation or treatment undertaken by the individual. 

(2) Notwithstanding any other provision of this code to the contrary, if an applicant is disqualified from licensure because of a prior criminal conviction, the State Fire Marshal shall permit the applicant to apply for initial licensure if:

(A) A period of five years has elapsed from the date of conviction or the date of release from incarceration, whichever is later;

(B) The individual has not been convicted of any other crime during the period of time following the disqualifying offense; and

(C) The conviction was not for an offense of a violent or sexual nature: Provided, That a conviction for an offense of a violent or sexual nature may subject an individual to a longer period of disqualification from licensure, to be determined by the State Fire Marshal.

(3) An individual with a criminal record who has not previously applied for licensure may petition the State Fire Marshal at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license. This petition shall include sufficient details about the individual’s criminal record to enable the State Fire Marshal to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction.

(c) The State Fire Marshal shall propose rules for legislative approval regarding qualifications for testing, issuance of licenses, and renewal in accordance with the provisions of §29A-3-1 et seq., of this code.

(d) To the extent that other jurisdictions provide for the licensing of electricians, the State Fire Marshal may shall grant the same or equivalent classification of license without written examination upon satisfactory proof furnished to the State Fire Marshal that the qualifications of the applicant demonstrate that the person can perform work safely and competently and is in good standing with all other jurisdictions where he or she is licensed are equal to the qualifications required by this article and upon payment of the required fee: Provided, That as a condition to reciprocity, the other jurisdictions must extend to licensed electricians of this state, the same or equivalent classification.

(e) In addition to any other information required, the applicant’s Social Security social security number shall be recorded on any application for a license submitted pursuant to the provisions of this section.

§29-3B-6. Relicensing without retesting after nonrenewal under certain circumstances.

An electrician previously licensed by the State Fire Marshal who did not renew his or her electrician’s license may renew the license without retesting within three five years of the date of the last renewal: Provided, That the electrician’s license had not been revoked and that the applicant pays double the current fee if his or her license has been lapsed for two renewal periods, or triple the current fee if his or her license has been lapsed for three renewal periods.

§29-3B-8. Effect of noncompliance with article; failure to obtain license.

Any person, firm, corporation, or employee thereof, or any representative, member or officer of such firm or corporation, individually, entering upon or engaging in the business of performing any electrical work as defined in this article, without obtaining the required license or otherwise complying with this article, is for the first offense guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $100, nor more than $500. For a second and each subsequent offense, the penalty and punishment is a fine of not less than $500 nor more than $1,000. For the third and each subsequent offense, the penalty and punishment is a fine of not less than $1,000 nor more than $5,000.

Each day during which such electrical work is performed without the required license or while in noncompliance with any of the provisions of this article, after official notice that such work is unlawful, is a separate offense.

Any electrical work performed by a person, firm, or corporation which is determined by the State Fire Marshal to constitute a safety or health hazard to members of the public or any electrical work of an extensive nature being performed by any person without the required license or otherwise in noncompliance with the requirements of this article or contrary to an order or rule promulgated lawfully by the State Fire Marshal, is subject to being issued a citation or a civil action in the name of the state in the circuit court of the county where such work is being performed for an injunction against such person, firm or corporation, enjoining such work or violation. A circuit court by mandatory or prohibitory injunction may compel compliance with the provisions of this article, with the lawful orders of the State Fire Marshal and with any final decision of the State Fire Marshal or State Fire Commission. The State Fire Marshal shall be represented in all such proceedings by the Attorney General or his or her assistants.

ARTICLE 3D. SUPERVISION OF FIRE PROTECTION WORK.

§29-3D-2. Definitions.

As used in this article and the legislative rules promulgated pursuant to this article:

“Combination Fire/Smoke Damper” means a device that meets both fire damper and smoke damper requirements.

“Damper” means a fire damper, smoke damper or combination fire/smoke damper.

“Damper work” means to install, test, maintain or repair a damper.

“Engineered Suppression Systems Installer” means a person certified by a manufacturer to install, alter, extend, maintain, layout lay out, or repair an agent suppression system.

“Engineered Suppression Systems Technician” means a person certified by a manufacturer to maintain or repair an agent suppression system.

“Fire damper” means a device installed in an air distribution system, designed to close automatically upon detection of heat, to interrupt migratory airflow and to restrict the passage of flame. Fire dampers are classified for use in either static systems or for dynamic systems, where the dampers are rated for closure under airflow.

“Fire protection damper technician” means a person certified to install, test, maintain or repair a damper.

“Fire protection damper technician in training” means a person with interest in and an aptitude for performing installation, maintenance or repair work to a damper as defined in this article, but who alone is not capable or authorized to perform damper work unless directly supervised by a Fire Protection Damper Technician.

“Fire protection layout technician” is an individual who has achieved National Institute for Certification in Engineering Technologies (NICET) Level III, or has achieved from the National Fire Protection Association a certification in Certified Water Based Systems Professional (CWBSP), or has passed an exam approved by the state Fire Marshal from the National Inspection Testing Certification (NITC) organization, or higher certification as recognized by the state Fire Marshal, and who has the knowledge, experience and skills necessary to layout lay out fire protection systems based on engineering design documents.

“Fire protection system” means any fire protection suppression device or system designed, installed, and maintained in accordance with the applicable National Fire Protection Association (NFPA) codes and standards, but does not include public or private mobile fire vehicles.

“Fire protection work” means the installation, alteration, extension, maintenance, or testing of all piping, materials, and equipment inside a building, including the use of shop drawings prepared by a fire protection layout technician, in connection with the discharge of water, other special fluids, chemicals or gases and backflow preventers for fire protection for the express purpose of extinguishing or controlling fire.

“Journeyman sprinkler fitter” means a person qualified by at least 5,000 2,000 hours of work experience or a score of at least 70 percent on an NITC or other equivalent examination selected by the state Fire Marshal related to installing, adjusting, repairing, and dismantling fire protection systems and who is competent to instruct and supervise the fire protection work: Provided, That current license renewal exemptions to examinations apply. of a sprinkler fitter in training.

“License” means a valid and current license issued by the State Fire Marshal in accordance with the provisions of this article.

“Portable Fire Extinguisher Technician” means a person certified in accordance with NFPA 10 to install, maintain, repair, and certify portable fire extinguishers as defined by NFPA 10.

“Preengineered Suppression Systems Installer” means a person certified by a manufacturer to install, alter, extend, maintain, layout lay out or repair an agent suppression system.

“Preengineered Suppression Systems Technician” means a person certified to maintain or repair an agent suppression system.

“Single family dwelling” means a building which is occupied as, or designed or intended for occupancy as, a single residence for one or more persons.

“Smoke Damper” means a device within an operating (dynamic) air distribution system to control the movement of smoke.

“Sprinkler fitter in training” means a person with interest in and an aptitude for performing fire protection work but who alone is not capable of performing such work, and who has fewer than 5,000 hours of experience installing, adjusting, repairing and dismantling fire protection systems.

§29-3D-3. License required; exemptions.

(a) On and after January 1, 2009, a person performing or offering to perform fire protection work in this state shall have a license issued by the State Fire Marshal, in accordance with the provisions of this article.

(b) On and after January 1, 2016, a person performing or offering to perform damper work in this state shall have a license issued by the State Fire Marshal, in accordance with the provisions of this article and the legislative rules promulgated pursuant hereto: Provided, That a person may not be licensed to perform damper work in this state without first being licensed as a HVAC technician pursuant to the provisions of §21-16-1 et seq. of this code.

(c)(b) A person licensed under this article must carry a copy of the license on any job in which fire protection work is being performed.

(d)(c) This article does not apply to:

(1) A person who personally performs fire protection work or damper work on a single family dwelling owned or leased, and occupied by that person or that person’s immediate family;

(2) A person who performs fire protection work or damper work at any manufacturing plant or other industrial establishment as an employee of the person, firm or corporation operating the plant or establishment;

(3) A person who, while employed by a public utility or its affiliate, performs fire protection work in connection with the furnishing of public utility service.

(4) A person who performs fire protection work while engaging in the business of installing, altering or repairing water distribution or drainage lines outside the foundation walls of a building, public or private sewage treatment or water treatment systems including all associated structures or buildings, sewers, or underground utility services;

(5) A person who performs fire protection work while engaged in the installation, extension, dismantling, adjustment, repair or alteration of a heating ventilation and air conditioning (HVAC) system, air-veyor system, air exhaust system or air handling system; or

(6) A person who performs fire protection work at a coal mine that is being actively mined or where coal is being processed.

§29-3D-4. Rule-making authority.

The State Fire Marshal shall propose rules for legislative approval, in accordance with the provisions of §29A-3-1 et seq. of this code, for the implementation and enforcement of the provisions of this article, which shall provide:

(1) Standards and procedures for issuing and renewing licenses, including classifications of licenses as defined in this article, applications, examinations and qualifications: Provided, That the rules shall require a person to be licensed as a HVAC technician or HVAC technician in training pursuant to §21-16-1 et seq. of this code and the rules promulgated pursuant thereto, before being granted a license to perform performing damper work pursuant to this article;

(2) Provisions for the granting of licenses without examination, to applicants who present satisfactory evidence of having the expertise required to perform fire protection work at the level of the classifications defined in this article and who apply for licensure on or before July 1, 2009: Provided, That if a license issued under the authority of this subsection subsequently lapses, the applicant is subject to all licensure requirements, including the examination;

(3) Provisions for the granting of licenses without examination, to applicants who present satisfactory evidence of having the expertise required to perform damper work at the level of the classifications defined in this article and who apply for licensure on or before July 1, 2016: Provided, That if a license issued under the authority of this subsection subsequently lapses, the applicant is subject to all licensure requirements, including the examination;

(4) Reciprocity provisions;

(5) Procedures for investigating complaints and revoking or suspending licenses, including appeal procedures;

(6) Fees for testing, issuance and renewal of licenses, and other costs necessary to administer the provisions of this article;

(7) Enforcement procedures; and

(8) Any other rules necessary to effectuate the purposes of this article.

§29-3D-6. Denial, suspension and revocation of license.

(a) The State Fire Marshal may deny a license to any applicant who fails to comply with the rules established by the State Fire Marshal, or who lacks the necessary qualifications. When considering whether an applicant possess possesses the qualifications for a license, the State Fire Marshal shall consider whether an applicant’s prior criminal convictions bear a rational nexus on the license being sought.

(1) The State Fire Marshal may not disqualify an applicant from initial licensure because of a prior criminal conviction that remains unreversed unless that conviction is for a crime that bears a rational nexus to the activity requiring licensure. In determining whether a criminal conviction bears a rational nexus to a profession or occupation, the State Fire Marshal shall consider at a minimum:

(A) The nature and seriousness of the crime for which the individual was convicted;

(B) The passage of time since the commission of the crime;

(C) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the profession or occupation; and

(D) Any evidence of rehabilitation or treatment undertaken by the individual. 

(2) Notwithstanding any other provision of this code to the contrary, if an applicant is disqualified from licensure because of a prior criminal conviction, the State Fire Marshal shall permit the applicant to apply for initial licensure if:

(A) A period of five years has elapsed from the date of conviction or the date of release from incarceration, whichever is later;

(B) The individual has not been convicted of any other crime during the period of time following the disqualifying offense; and

(C) The conviction was not for an offense of a violent or sexual nature: Provided, That a conviction for an offense of a violent or sexual nature may subject an individual to a longer period of disqualification from licensure, to be determined by the State Fire Marshal.

(3) An individual with a criminal record who has not previously applied for licensure may petition the State Fire Marshal at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license. This petition shall include sufficient details about the individual’s criminal record to enable the State Fire Marshal to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction.

(b) The State Fire Marshal may, upon complaint or upon his or her own inquiry, and after notice to the licensee, suspend or revoke a licensee’s license if:

(1) The license was granted upon an application or documents supporting the application which materially misstated the terms of the applicant’s qualifications or experience;

(2) The licensee subscribed or vouched for a material misstatement in his or her application for licensure; or

(3) The licensee incompetently or unsafely performs plumbing, fire protection work or damper work.

§29-3D-7. Penalties.

(a) On and after January 1, 2009, a person performing or offering to perform fire protection work without a license issued by the State Fire Marshal, is subject to a citation.

(b) On and after January 1, 2016, a person performing or offering to perform, or an employer authorizing a person not exempt by the provisions of §29-3D-3 of this code, to perform, damper work without a license issued by the State Fire Marshal, is subject to a citation.

(c)(b) Any person continuing to engage in fire protection work or damper work after the issuance of a citation is guilty of a misdemeanor and, upon conviction thereof, is subject to the following penalties:

(1) For the first offense, a fine of not less than $200 nor more than $1,000;

(2) For the second offense, a fine of not less than $500 nor more than $2,000, or confinement in jail for not more than six months, or both;

(3) For the third and subsequent offenses, a fine of not less than $1,000 nor more than $5,000, and confinement in jail for not less than thirty days nor more than one year.

(d)(c) Each day after a citation is given that a person continues to perform, or an employer continues to authorize a person to perform, fire protection work or damper work, which is not exempt by the provisions of §29-3D-3 of this code, is a separate offense and punishable accordingly.

(e)(d)(1) The State Fire Marshal may institute proceedings in the circuit court of Kanawha County or the county where the alleged violation of the provisions of this article occurred or are now occurring to enjoin any violation of any provision of this article.

(2) A circuit court by injunction may compel compliance with the provisions of this article, with the lawful orders of the State Fire Marshal and with any final decision of the State Fire Marshal.

(3) The State Fire Marshal shall be represented in all such proceedings by the Attorney General or his or her assistants.

(f)(e) Any person adversely affected by an action of the State Fire Marshal may appeal the action pursuant to the provisions of chapter 29A of this code.

NOTE: The purpose of this bill is to alter requirements for licensure relating to elevator mechanics, crane operators, HVAC, electricians, and plumbers.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.