WEST virginia
legislature
2017 regular session
By
[
to the Committee on Government Organization.
A BILL to repeal §21-11-1,
§21-11-2, §21-11-3, §21-11-4, §21-11-5, §21-11-6, §21-11-7, §21-11-8, §21-11-9,
§21-11-10, §21-11-10a, §21-11-11, §21-11-12, §21-11-13, §21-11-14, §21-11-15,
§21-11-16, §21-11-17, §21-11-18 and §21-11-20 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto a new article,
designated §30-41-1, §30-41-2, §30-41-3, §30-41-4, §30-41-5, §30-41-6, §30-41-7,
§30-41-8, §30-41-9, §30-41-10, §30-41-11, §30-41-12, §30-41-13, §30-41-14,
§30-41-15, §30-41-16, §30-41-17, §30-41-18, §30-41-19 and §30-41-20, all
relating to the West Virginia Contractor Act; providing a short title and
declaration of policy with definitions; continuing the West Virginia Contractor
Licensing Board, composition, terms, qualifications and appointment;
administrative duties of board and legislative rules; necessity for contractor
license and exemptions; procedure for
licensing; providing for expiration date, fees and renewal of license;
providing for revocation for unlawful use, assignment or transfer of license;
prerequisites to obtaining building permit and mandatory written contracts;
requiring informational list for basic universal design features; providing
injunction and criminal penalties for violation of article; specific
administrative duties of board and record keeping by the board; authorizing to
grant reciprocity and to provide training to students who desire to obtain a West
Virginia contractor license; and misdemeanor criminal penalties for violations
of article.
Be it enacted by the
Legislature of West Virginia:
That §21-11-1,
§21-11-2, §21-11-3, §21-11-4, §21-11-5, §21-11-6, §21-11-7, §21-11-8, §21-11-9,
§21-11-10, §21-11-10a, §21-11-11, §21-11-12, §21-11-13, §21-11-14, §21-11-15,
§21-11-16, §21-11-17, §21-11-18 and §21-11-20 of the Code of West Virginia,
1931, as amended, be repealed; and that said code be amended by adding thereto
a new article, designated §30-41-1, §30-41-2, §30-41-3, §30-41-4, §30-41-5,
§30-41-6, §30-41-7, §30-41-8, §30-41-9, §30-41-10, §30-41-11, §30-41-12,
§30-41-13, §30-41-14, §30-41-15, §30-41-16, §30-41-17, §30-41-18, §30-41-19 and
§30-41-20, all to read as follows:
ARTICLE 41. WEST VIRGINIA CONTRACTOR LICENSING ACT.
§30-41-1 Short title.
This article shall be
known and may be cited as the "West Virginia Contractor Licensing
Act".
§30-41-2. Policy
declared.
It is hereby declared to
be the policy of the State of West Virginia that all persons desiring to
perform contracting work in this state be duly licensed to ensure capable and
skilled craftsmanship utilized in construction projects in this state, both
public and private, fair bidding practices between competing contractors
through uniform compliance with the laws of this state, and protection of the
public from unfair, unsafe and unscrupulous bidding and construction practices.
§30-41-3.
Definitions.
(a) “Basic universal
design” means the design of products and environments to be useable by all
people, to the greatest extent possible, without the need for adaptation or
specialization.
(b) "Board"
means the West Virginia Contractor Licensing Board.
(c) "Cease and
desist order" means an order issued by the board pursuant to the
provisions of this article.
(d)
"Contractor" means a person who in any capacity for compensation,
other than as an employee of another, undertakes, offers to undertake, purports
to have the capacity to undertake or submits a bid to construct, alter, repair,
add to, subtract from, improve, move, wreck or demolish any building, highway,
road, railroad, structure or excavation associated with a project, development
or improvement, or to do any part thereof, including the erection of
scaffolding or other structures or works in connection therewith, where the
cost of the undertaking is $2,500 or more.
Contractor includes a
construction manager who performs management and counseling services for a
construction project for a professional fee.
Contractor does not
include:
(1) One who merely
furnishes materials or supplies without fabricating or consuming them in the
construction project;
(2) A person who
personally performs construction work on the site of real property which the
person owns or leases whether for commercial or residential purposes;
(3) A person who is
licensed or registered as a professional and who functions under the control of
any other licensing or regulatory board, whose primary business is real estate
sales, appraisal, development, management and maintenance, who acting in his or
her respective professional capacity and any employee of the professional,
acting in the course of his or her employment, performs any work which may be
considered to be performing contracting work;
(4) A pest control
operator licensed under the provisions of section seven, article sixteen-a,
chapter nineteen of this code to engage in the application of pesticides for
hire, unless the operator also performs structural repairs exceeding $1,000 on
property treated for insect pests; or
(5) A corporation,
partnership or sole proprietorship whose primary purpose is to prepare
construction plans and specifications used by the contractors defined in this
subsection and who employs full-time a registered architect licensed to
practice in this state or a registered professional engineer licensed to
practice in this state. Employees of the corporation, partnership or sole
proprietorship shall also be exempt from the requirements of this article.
(e) "Electrical
contractor" means a person who engages in the business of contracting to
install, erect, repair or alter electrical equipment for the generation,
transmission or utilization of electrical energy.
(f) "General
building contractor" means a person whose principal business is in
connection with any structures built, being built, or to be built for the
support, shelter and enclosure of persons, animals, chattels or movable
property of any kind, requiring in the construction the use of more than two
contractor classifications, or a person who supervises, the whole or any part
of the construction.
(g) "General
engineering contractor" means a person whose principal business is in
connection with public or private works projects, including, but not limited
to, one or more of the following: Irrigation, drainage and water supply
projects; electrical generation projects; swimming pools; flood control;
harbors; railroads; highways; tunnels; airports and airways; sewers and sewage
disposal systems; bridges; inland waterways; pipelines for transmission of
petroleum and other liquid or gaseous substances; refineries; chemical plants
and other industrial plants requiring a specialized engineering knowledge and
skill; piers and foundations; and structures or work incidental thereto.
(h) "Heating,
ventilating and cooling contractor" means a person who engages in the
business of contracting to install, erect, repair, service or alter heating,
ventilating and air conditioning equipment or systems to heat, cool or
ventilate residential and commercial structures.
(i) "License"
means a license to engage in business in this state as a contractor in one of
the classifications set out in this article.
(j) "Multifamily
contractor" means a person who is engaged in construction, repair or
improvement of a multifamily residential structure.
(k) "Person"
includes an individual, firm, sole proprietorship, partnership, corporation,
association or other entity engaged in the undertaking of construction projects
or any combination thereof.
(l) "Piping
contractor" means a person whose principal business is the installation of
process, power plant, air, oil, gasoline, chemical or other kinds of piping;
and boilers and pressure vessels using joining methods of thread, weld, solvent
weld or mechanical methods.
(m) "Plumbing
contractor" means a person whose principal business is the installation,
maintenance, extension and alteration of piping, plumbing fixtures, plumbing
appliances and plumbing appurtenances, venting systems and public or private
water supply systems within or adjacent to any building or structure; included
in this definition is installation of gas piping, chilled water piping in
connection with refrigeration processes and comfort cooling, hot water piping
in connection with building heating and piping for stand pipes.
(n) "Residential
contractor" means a person whose principal business is in connection with
construction, repair or improvement of real property used as, or intended to be
used for, residential occupancy.
(o) "Specialty
contractor" means a person who engages in specialty contracting services
which do not substantially fall within the scope of any contractor
classification as set out herein.
(p) "Residential
occupancy" means occupancy of a structure for residential purposes for
periods greater than thirty consecutive calendar days.
(q) "Residential
structure" means a building or structure used or intended to be used for
residential occupancy, together with related facilities appurtenant to the
premises as an adjunct of residential occupancy, which contains not more than
three distinct floors which are above grade in any structural unit regardless
of whether the building or structure is designed and constructed for one or
more living units. Dormitories, hotels, motels or other transient lodging units
are not residential structures.
(r)
"Subcontractor" means a person who performs a portion of a project
undertaken by a principal or general contractor or another subcontractor.
§30-41-4. West Virginia
contractor licensing board created; members; appointment; terms; vacancies;
qualifications; quorum.
(a) The West Virginia
Contractor Licensing Board is continued. The board shall consist of ten members
appointed by the Governor by and with the advice and consent of the Senate for
terms of four years. The members shall serve until their successors are
appointed and have qualified. Eight of the appointed members shall be owners of
businesses engaged in the various contracting industries, with at least one
member appointed from each of the following contractor classes: One electrical
contractor, one general building contractor, one general engineering
contractor, one heating, ventilating and cooling contractor, one multifamily
contractor, one piping contractor, one plumbing contractor and one residential
contractor, as defined in section three hereof. Two of the appointed members
shall be building code officials who are not members of any contracting
industry. At least three members of the board shall reside at the time of their
appointment in each congressional district as existing on January 1, 2017. The Secretary
of the Department of Tax and Revenue or designee, and the Commissioner of the
Bureau of Employment Programs or designee shall be ex-officio nonvoting members
of the board.
(b) Terms of the members
first appointed shall be two members for one year, two members for two years,
three members for three years and three members for four years, as designated
by the Governor at the time of appointment. Thereafter, terms shall be for four
years. A member who has served all or part of two consecutive terms shall not
be subject to reappointment unless four years have elapsed since the member
last served. Vacancies shall be filled by appointment by the Governor for the
unexpired term of any member whose office is vacant and shall be made within
sixty days of the occurrence of the vacancy. A vacancy on the board shall not
impair the right of the remaining members to exercise all the powers of the
board.
(c) The board shall
elect a chair from one of the voting members of the board. The board shall meet
at least once annually and at such other times as called by the chair or a
majority of the board. Board members shall receive compensation not to exceed
the amount paid to members of the Legislature for the interim duties as
recommended by the Citizens Legislative Compensation Commission and authorized
by law for each day or portion of a day spent attending meetings of the board
and shall be reimbursed for all reasonable and necessary expenses incurred
incident to his or her duties as a member of the board. A majority of the
members appointed shall constitute a quorum of the board.
§30-41-5.
Administrative duties and powers of the board; rules.
(a) The board shall
propose rules for legislative approval in accordance with article three,
chapter twenty-nine-a of this code relating to the following:
(1) The minimum
qualifications for applicants for examination and license in each of the
following specified classes of contractor:
(A) Electrical
contractor;
(B) General building
contractor;
(C) General engineering
contractor;
(D) Heating, ventilating
and cooling contractor;
(E) Multifamily
contractor;
(F) Piping contractor;
(G) Plumbing contractor;
(H) Residential
contractor; or
(I) Specialty
contractor;
(2) The content of
examinations for applicants in each class;
(3) Procedures for
application, examination and license renewal, and the manner in which the
examination will be conducted;
(4) The continued
competency of licensees for purposes of renewal and reinstatement of licenses;
and
(5) Procedures for
disciplinary action before the board.
(b) The board shall:
(1) Hold at least one
examination in each calendar quarter for each specific classification of
contractor, designate the time and place of the examinations and notify
applicants thereof;
(2) Investigate alleged
violations of this article and legislative rules, orders and final decisions of
the board;
(3) Notify the board
members of meeting dates and agenda items at least five days prior to the
meetings; and
(4) Take minutes and
records of all meetings and proceedings.
(c) The board has all
the powers and duties set forth in this article, including:
(1) Maintaining an office and hire, discharge,
establish the job requirements and fix the compensation of employees and
contract persons necessary to enforce the provisions of this article;
(2) To sue and be sued
in its official name as an agency of this state; and
(3) Conferring with the
Attorney General or assistants of the Attorney General in connection with legal
matters and questions.
§30-41-6. Necessity
for license; exemptions.
(a) No person may engage
in this state in any activity as a contractor, or submit a bid to perform work
as a contractor, as defined in this article, unless that person holds a license
issued under the provisions of this article. No firm, partnership, corporation,
association or other entity may engage in contracting in this state unless an
officer thereof holds a license issued pursuant to this article.
(b) Any person to whom a
license has been issued under this article shall keep the license or a copy
thereof posted in a conspicuous position at every construction site where work
is being done by the contractor. The contractor's license number shall be
included in all contracting advertisements and all fully executed and binding
contracts. Any person violating the provisions of this subsection is subject,
after hearing, to a warning, a reprimand, or a fine of not more than $200.
(c) Except as otherwise
provided in this code, the following are exempt from licensure:
(1) Work done
exclusively by employees of the United States Government, the State of West
Virginia, a county, municipality or municipal corporation, and any governmental
subdivision or agency thereof;
(2) The sale or
installation of a finished product, material or article or merchandise which is
not actually fabricated into and does not become a permanent fixed part of the
structure;
(3) Work performed
personally by an owner or lessee of real property on property the primary use
of which is for agricultural or farming enterprise;
(4) A material supplier
who renders advice concerning use of products sold and who does not provide
construction or installation services;
(5) Work performed by a
public utility company regulated by the West Virginia Public Service Commission
and its employees;
(6) Repair work
contracted by the owner of the equipment on an emergency basis in order to
maintain or restore the operation of the equipment;
(7) Work performed by an
employer's regular employees, for which the employees are paid regular wages
and not a contract price, on property owned or leased by the employer which is
not intended for speculative sale or lease;
(8) Work personally
performed on a structure by the owner or occupant thereof; and
(9) Work performed when
the specifications for the work have been developed or approved by engineering
personnel employed by the owner of a facility by registered professional
engineers licensed pursuant to the laws of this state when the work to be
performed because of its specialized nature or process cannot be reasonably or
timely contracted for within the general area of the facility.
§30-41-7. Application
for and issuance of license.
(a) A person desiring to
be licensed as a contractor under this article shall submit to the board a
written application requesting licensure, providing the applicant's social security number and such other information as
the board may require on forms supplied by the board. The applicant shall pay a
license fee not to exceed $150: Provided, That electrical contractors
already licensed under section four, article three-b, chapter twenty-nine of
this code shall pay no more than $20.
(b) No license may be
issued without examination pursuant to this subsection: Provided, That any person issued a
contractor's license by the board
pursuant to this subsection may apply to the board for transfer of the license
to a new business entity in which the license holder is the principal owner,
partner or corporate officer: Provided however, That a license holder
may hold a license on behalf of only one business entity during a given time
period. The board may transfer the license issued pursuant to this subsection
to the new business entity without requiring examination of the license holder.
§30-41-8. Licenses;
expiration date; fees; renewal.
(a) A license issued
under the provisions of this article expires one year from the date on which it
is issued. The board shall establish application and annual license fees not to
exceed $150.
(b) The board may
propose rules for legislative approval in accordance with article three,
chapter twenty-nine-a of this code, to establish license and renewal fees.
§30-41-9. Unlawful
use, assignment, transfer of license; revocation.
No license may be used
for any purpose by any person other than the person to whom the license is
issued. No license may be assigned, transferred or otherwise disposed of so as
to permit the unauthorized use thereof. No license issued pursuant to the
provisions of subsection (b), section seven of this article may be assigned,
transferred or otherwise disposed of except as provided in said subsection. Any
person who violates this section is subject to the penalties imposed in section
fourteen of this article.
§30-41-10.
Prerequisites to obtaining building permit; mandatory written contracts.
(a) Any person making
application to the building inspector or other authority of any incorporated
municipality or other political subdivision in this state charged with the duty
of issuing building or other permits for the construction of any building,
highway, sewer or structure or for any removal of materials or earth, grading
or improvement, shall, before issuance of the permit, either furnish
satisfactory proof to the inspector or authority that the person is duly
licensed under the provisions of this article to carry out or superintend the
construction, or file a written affidavit that the person is not subject to
licensure as a contractor or subcontractor as defined in this article. The
inspector or authority may not issue a building permit to any person who does
not possess a valid contractor's license when required by this article.
(b) No person licensed
under the provisions of this article may perform contracting work of an
aggregate value of $10,000 or more, including materials and labor, without a
written contract, setting forth a description and cost of the work to be
performed, signed by the licensee and the person for whom the work is to be
performed.
(c) The board shall file
a procedural rule setting forth a standard contract form which meets the
minimum requirements of this subsection for use by licensees. The board shall
post the contract form on its website and shall assist licensees in the correct
completion of the form. The board shall
mail a written notice of the requirements imposed by the rule to each licensed
contractor at the address provided to the board by the contractor on his or her
last application for licensure or renewal.
§30-41-11.
Informational list for basic universal design features.
(a) Ninety days after
the Contractor Licensing Board certifies and makes available to the general
public the standard form informational list of basic universal design features
pursuant to this section, a licensed contractor of any proposed residential
housing in the state shall provide to the buyer an informational list of basic
universal design features that would make the home entrance, interior routes of
travel, the kitchen and the bathroom or bathrooms universally accessible. Basic
universal design features are to include, but not be limited to, the following:
(1) At least one nonstep
entrance into the dwelling;
(2) All doors on the
entry-level floor, including bathrooms, have a minimum of thirty-six inches;
(3) At least one
accessible bathroom on the entry-level floor with ample maneuvering space;
(4) Kitchen, general
living space and one room capable of conversion into a bedroom, all with ample
maneuvering space, on the entry-level floor; and
(5) Any other external
or internal feature requested at a reasonable time by the buyer and agreed to
by the seller.
(b) If a buyer is
interested in a specific informational feature on the list established by
subsection (a) of this section, the seller or builder upon request of the buyer
shall indicate whether the feature is standard, limited, optional or not
available and, if available, shall further indicate the cost of such a feature
to the buyer.
(c) The standard form
informational list of basic universal design features shall be certified and
made available for reproduction by the board, in accordance with the provisions
of subsection (a) of this section, based on mutual recommendation of the board,
the American Institute of Architects-West Virginia, the Home Builders
Association of West Virginia and the West Virginia Center for Excellence in
Disabilities.
§30-41-12. Notice
included with invitations to bid and specifications.
Any architect or
engineer preparing any plan and specification for contracting work to be
performed in this state shall include in the plan, specification and invitation
to bid a reference to this article informing any prospective bidder that the
person's contractor's license number must be included on any bid submission. A
subcontractor shall furnish that person's contractor's license number to the
contractor prior to the award of the contract.
§30-41-13. License
renewal, lapse and reinstatement.
(a) A license which is
not renewed on or before the renewal date shall lapse. The board may establish
by rule on a delayed renewal fee to be paid for issuance of any license which
has lapsed: Provided, That no license which has lapsed for a period of
ninety days or more may be renewed: Provided, however, That if a
licensee is in a dispute with a state agency, and it is determined that the
licensee is not at fault, the board shall renew the license.
(b) If continuing
education or other requirements are made a condition of license reinstatement
after lapse, suspension or revocation, these requirements must be satisfied
before the license is reissued.
§30-41-14. Violation
of article; injunction; criminal penalties.
(a) (1) Upon a
determination that a person is engaged in contracting business in the state
without a valid license, the board shall issue a cease and desist order
requiring the person to immediately cease all operations in the state. The
order shall be withdrawn upon issuance of a license to that person.
(2) After affording an
opportunity for a hearing, the board may impose a penalty of not less than $200
nor more than $1,000 upon any person engaging in contracting business in the
state without a valid license. The board may accept payment of the penalty in
lieu of a hearing.
(3) Within thirty days
after receipt of the final order issued pursuant to this section, any party
adversely affected by the order may appeal the order to the circuit court of
Kanawha County, West Virginia, or to the circuit court of the county in which
the petitioner resides or does business.
(b) Any person
continuing to engage in contracting business in the state without a valid
license after service of a cease and desist order is guilty of a misdemeanor
and, upon conviction, is subject to the following penalties:
(1) For a first offense,
a fine of not less than $200 nor more than $1,000;
(2) For a second
offense, a fine of not less than $500 nor more than $5,000, or confinement in
jail for not more than six months, or both fined and confined;
(3) For a third or
subsequent offense, 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) The board may
institute proceedings in the circuit court of the county in which the alleged
violations of the provisions of this article occurred or are now occurring to
enjoin any violation of any provision of this article.
(d) Any person who
undertakes any construction work without a valid license when a license is
required by this article, when the total cost of the contractor's construction
contract on any project upon which the work is undertaken is $25,000 or more,
shall, in addition to any other penalty herein provided, be assessed by the
board an administrative penalty not to exceed $200 per day for each day the
person is in violation.
§30-41-15.
Disciplinary powers of the board.
(a) The board may 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;
(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;
(7) Order a contractor
who has been found, after hearing, to have violated any provision of this
article or the rules of the board to provide, as a condition of licensure,
assurance of financial responsibility. The form of financial assurance may
include, but is not limited to, a surety bond, a cash bond, a certificate of
deposit, an irrevocable letter of credit or performance insurance: Provided,
That the amount of financial assurance required under this subdivision may not
exceed the total of the aggregate amount of the judgments or liens levied
against the contractor or the aggregate value of any corrective work ordered by
the board or both: Provided, however, That the board may remove this
requirement for licensees against whom no complaints have been filed for a
period of five continuous years; and
(8) A fine not to exceed
$1,000.
(b) No license issued
under the provisions of this article may be suspended or revoked without a
prior hearing before the board: Provided, That 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 the person is able to practice with skill and
safety.
(d) The board may accept
the voluntary surrender of a license: Provided, That the 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 the disciplinary action is taken. The board shall
hear the appeal within thirty 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 that action in either the circuit
court of Kanawha County, West Virginia, or in the circuit court of the county
in which the petitioner resides or does business, within thirty days after the
date upon which the petitioner received notice of the final order or decision
of the board.
(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 the person's operations as a contractor when the person has the
capacity to pay or when the 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;
(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;
(12) Knowingly employing
a person or persons who do not have the legal right to be employed in the
United States;
(13) Failing to execute
written contracts prior to performing contracting work in accordance with
section ten of this article;
(14) Failing to abide by
an order of the board; or
(15) Failing to satisfy
a judgment or execution ordered by a magistrate court, circuit court or
arbitration board.
(h) In all disciplinary
hearings the board has the burden of proof as to all matters in contention. No
disciplinary action may be taken by the board except on the affirmative vote of
at least six members thereof. Other than as specifically set out herein, the
board has no power or authority to impose or assess damages.
§30-41-16.
Administrative duties of board.
(a) The board shall
perform the following administrative duties:
(1) Collect and record
all fees;
(2) Maintain records and
files;
(3) Issue and receive
application forms;
(4) Notify applicants of
the results of the board examination;
(5) Arrange space for
holding examinations and other proceedings;
(6) Issue licenses and
temporary licenses as authorized by this article;
(7) Issue duplicate
licenses upon submission of a written request by the licensee attesting to loss
of or the failure to receive the original and payment by the licensee of a fee
established by regulation adopted by the division;
(8) Notify licensees of
renewal dates at least thirty days before the expiration date of their license;
(9) Answer routine
inquiries;
(10) Maintain files
relating to individual licensees;
(11) Arrange for
printing and advertising;
(12) Purchase supplies;
(13) Employ additional
help when needed;
(14) Perform other
services that may be requested by the board;
(15) Provide inspection,
enforcement and investigative services to the board; and
(16) Issue cease and
desist orders to persons engaging in contracting within the state without a
valid license.
(b) All authority not
specifically delegated are the responsibility of the board.
(c) Following successful
completion of the examination, and prior to the issuance of the license, the
applicant shall certify by affidavit that the applicant:
(1) Is in compliance
with the business franchise tax provisions of chapter eleven of this code;
(2) Has registered, and
is in compliance, with the workers' compensation fund and the employment
security fund, as required by chapter twenty-three and chapter twenty-one-a of
this code; and
(3) Is in compliance
with the applicable wage bond requirements of section one, article five of this
chapter: Provided, That in the case of an out-of-state contractor not
doing business in this state and seeking licensure for bidding purposes only,
the applicant may be granted a conditional license for bid purposes only.
§30-41-17. Rules.
The board may propose
rules for legislative approval in accordance with article three, chapter
twenty-nine-a of this code that are necessary to carry out the provisions of
this article. The board may disseminate educational or any other material
designed to improve performance standards of any contractor group to
contractors within the state. The board may adopt, and use, a seal with the
words "State Contractor Licensing Board of West Virginia".
§30-41-18. Record
keeping.
(a) The board shall keep
a record of all actions taken and account for moneys received. All moneys shall
be deposited in a special account in the State Treasury to be known as the
"West Virginia Contractor Licensing Board Fund." Expenditures from
this fund shall be for the purposes set forth in this article and are not
authorized from collections but are to be made only in accordance with
appropriation by the Legislature and in accordance with the provisions of
article three, chapter twelve of this code and upon the fulfillment of the
provisions set forth in article two, chapter five-a of this code. Amounts collected which are found from time
to time to exceed the funds needed for purposes set forth in this article may
be transferred to other accounts or funds and redesignated for other purposes
by appropriation of the Legislature.
(b) The board shall
maintain at the principal office, open for public inspection during office
hours, a complete indexed record of all applications, licenses issued, licenses
renewed and all revocations, cancellations and suspensions of licenses.
Applications shall show the date of application, name, qualifications, place of
business and place of residence of each applicant; and whether the application
was approved or refused.
(c) (1) All
investigations, complaints, reports, records, proceedings and other information
received by the board and related to complaints made to the board or
investigations conducted by the board pursuant to this article, including the
identity of the complainant or respondent, are confidential and may not be
knowingly and improperly disclosed by any member or former member of the board
or staff, except as follows:
(A) Upon a finding that
probable cause exists to believe that a respondent has violated the provisions
of this article, the complaint and all reports, records, nonprivileged and
nondeliberative materials introduced at any probable cause hearing held
pursuant to the complaint are thereafter not confidential: Provided,
That confidentiality of the information shall remain in full force and effect
until the respondent has been served with a copy of the statement of charges.
(B) Any subsequent
hearing held in the matter for the purpose of receiving evidence or the
arguments of the parties or their representatives shall be open to the public
and all reports, records and nondeliberative materials introduced into evidence
at the subsequent hearing, as well as the board's orders, are not confidential.
(C) The board may
release any information relating to an investigation at any time if the release
has been agreed to in writing by the respondent.
(D) The complaint as
well as the identity of the complainant shall be disclosed to a person named as
respondent in any complaint filed immediately upon the respondent's request.
(E) Where the board is
otherwise required by the provisions of this article to disclose the
information or to proceed in such a manner that disclosure is necessary and
required to fulfill these requirements.
(2) If, in a specific
case, the board finds that there is a reasonable likelihood that the
dissemination of information or opinion in connection with a pending or
imminent proceeding will interfere with a fair hearing or otherwise prejudice
the due administration of justice, the board shall order that all or a portion
of the information communicated to the board to cause an investigation and all
allegations of violations or misconduct contained in a complaint are
confidential, and the person providing this information or filing a complaint
shall be bound to confidentiality until further order of the board.
(d) If any person
violates the provisions of subsection (c) of this section by knowingly and
willfully disclosing any information made confidential by this section or by
the board, that person is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than $500 nor more than $5,000, or confined in jail not
more than one month, or both fined and confined.
(e) The board shall
certify to the State Auditor a detailed statement of all moneys received and
spent during the preceding fiscal year.
§30-41-19.
Reciprocity.
To the extent that other
states which provide for the licensing of contractors provide for similar
action, the board may grant licenses of the same or equivalent classification
to contractors licensed by other states, without written examination upon
satisfactory proof furnished to the board that the qualifications of the
applicants are equal to the qualifications of holders of similar licenses in
this state, and upon certification to the board as required by subsection (c),
section fifteen of this article, and upon payment of the required fee.
§30-41-20. Board
authorized to provide training.
(a) The board may enter
into work-sharing agreements with state vocational and technical training
schools to provide classroom training to students who desire to obtain a West
Virginia contractor license. The purpose of the training is limited to
instruction applicable to the contractor license examinations required by the
board. The terms of the work-sharing agreements shall be determined by the West
Virginia Contractor Licensing Board and county boards of education.
(b) For the purposes of
this section, the board may expend funds from its special revenue account,
known as the Contractor Licensing Fund, to support this activity.
NOTE: The purpose of this bill is
to transfer the West Virginia Contractor Act from administration and regulation
by the Division of Labor to regulation under the provisions of professions and
occupations in chapter thirty of this code.
The bill retains the short title and declaration of policy with
definitions of the existing act. It
continues the West Virginia Contractor Licensing Board, composition, terms,
qualifications and appointment, together with administrative duties of board
and legislative rules, without the Division of Labor. The bill retains the necessity for contractor
license and exemptions, procedure for licensing, expiration date, fees and
renewal of license. It continues
procedure for revocation for unlawful use, assignment or transfer of license.
Also the prerequisites to obtaining building permit and mandatory written
contracts. The requirement of informational list for basic universal design
features is retained, as is the provision for injunction and criminal penalties
for violation of article. Specific
administrative duties of board and record keeping by the board are provided
without the Division of Labor. The board
is authorized to grant reciprocity and to provide training to students who
desire to obtain a West Virginia contractor license. Misdemeanor criminal penalties for violations
of article are retained.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.