H. B. 4299
(By Delegates Stemple and Kominar)
[Introduced February 4, 2004; referred to the
Committee on Government Organization then Finance.]
A BILL to amend and reenact §21-11-3, §21-11-4, §21-11-6, §21-11-
12, §21-11-13, §21-11-15, §21-11-17 and §21-11-20 of the code
of West Virginia, 1931, as amended, all relating to
modifications to the West Virginia Contractor Licensing Act;
by increasing the cost of the undertaking in the definition of
a contractor; providing compensation for board members;
increasing the penalty for failing to conspicuously display
license; exempting certain work from licensure; decreasing the
period that a lapsed license may be renewed; providing for an
appeal of penalty for contracting without a license; and
removal of references to the board in certain sections.
Be it enacted by the Legislature of West Virginia:
That §21-11-3, §21-11-4, §21-11-6, §21-11-12, §21-11-13, §21-
11-15, §21-11-17, and §21-11-20 of the code of West Virginia, 1931,
as amended, be amended and reenacted to read as follows:
ARTICLE 11. WEST VIRGINIA CONTRACTOR LICENSING ACT.
§21-11-3. Definitions
(a) "Commissioner" means the commissioner of the division of
labor.
(b) "Board" means the West Virginia contractor licensing
board.
(c) "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
one two
thousand
five hundred dollars 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
such 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 one thousand
dollars 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 subsection (c) of this section
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 such corporation,
partnership or sole proprietorship shall also be exempt from the
requirements of this article.
(d) "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.
(e) "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 such construction.
(f) "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.
(g) "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.
(h) "License" means a license to engage in business in this
state as a contractor in one of the classifications set out in this
article.
(i) "Multifamily contractor" means a person who is engaged in construction, repair or improvement of a multifamily residential
structure.
(j) "Person" includes an individual, firm, sole
proprietorship, partnership, corporation, association or other
entity engaged in the undertaking of construction projects or any
combination thereof.
(k) "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.
(l) "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.
(m) "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.
(n) "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.
(o) "Residential occupancy" means occupancy of a structure for
residential purposes for periods greater than thirty consecutive
calendar days.
(p) "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.
(q) "Subcontractor" means a person who performs a portion of
a project undertaken by a principal or general contractor or
another subcontractor.
(r) "Division" means the division of labor.
(s) "Cease and desist order" means an order issued by the
commissioner pursuant to the provisions of this article.
§21-11-4. West Virginia contractor licensing board created;
members; appointment; terms; vacancies; qualifications;
quorum.
(a) There is hereby created the West Virginia contractor
licensing board. 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. Such 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 the first day of January, one thousand nine hundred
ninety-eight. The commissioner of labor, the secretary of the
department of tax and revenue or his designee, and the commissioner
of the bureau of employment programs or his 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
no remuneration for their
service, but shall be reimbursed for their actual expenses incurred
in the performance of their duties as such. compensation not to
exeed 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 reasoanble and necessary expenses incurred incident to his or
her duries as a member of the board. A majority of the
membership
of the board members appointed shall constitute a quorum of the
board.
§21-11-6. Necessity for license; exemptions.
(a) On or after the first day of October, one thousand nine
hundred ninety-one, no person shall engage in this state in any act
as a contractor, as defined in this article, unless such person
holds a license issued under the provisions of this article. No
firm, partnership, corporation, association or other entity shall
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 shall be subject, after hearing, to a warning, a
reprimand, or a fine of not
more less than two hundred dollars
nor
more than one thousand dollars.
(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 for by the owner of the equipment
on an emergency basis in order to maintain or restore the operation
of such equipment;
(7) Work performed by an employer's regular employees, for
which the employees are paid regular wages and not a contract
price, on
business 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 such 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.
§21-11-12. 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 regulation 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
two years ninety days or more may be renewed.
(b) In the event that continuing education or other
requirements are made a condition of license reinstatement after
lapse, suspension or revocation, such requirements must be
satisfied before the license is reissued.
§21-11-13. Violation of article; injunction; criminal penalties.
(a) Upon a determination that a person is engaged in
contracting business in the state without a valid license, the
board or commissioner shall issue a cease and desist order
requiring such person to immediately cease all operations in the
state. The order shall be withdrawn upon issuance of a license to
such person.
After a hearing, the The board may impose a penalty of
not less than two hundred dollars nor more than one thousand
dollars upon any person engaging in contracting business in the
state without a valid license.
Any person penalized pursuant to
this subsection may appeal to the Board within sixty days of the
imposition of the penalty. The board shall, by rule, provide for
an administrative hearing and for review of any final ruling issued
pursuant to such hearing. The board shall hear the appeal within
thirty days from receipt of notice of appeal.
(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 two hundred
dollars nor more than one thousand dollars;
(2) For a second offense, a fine of not less than five hundred
dollars nor more than five thousand dollars, or confinement in the
county or regional jail for not more than six months, or both;
(3) For a third or subsequent offense, a fine of not less than
one thousand dollars nor more than five thousand dollars, and
confinement in the county or regional 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 such 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 twenty-five thousand
dollars or more, shall, in addition to any other penalty herein
provided, be assessed by the board an administrative penalty not to
exceed two hundred dollars per day for each day the person is in
violation.
(e) The board shall, by rule, provide for an administrative
hearing before a penalty is levied and for review of any final
ruling issued pursuant to such hearing.
§21-11-15. Administrative duties of division.
(a)
For and on behalf of the board, the The division and
commissioner 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
and the board;
(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 to the
commissioner and division shall be 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
§21-11-17. Record keeping.
(a) The
board division 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 said 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: Provided, That for the fiscal
year ending the thirtieth day of June, one thousand nine hundred
ninety-two, expenditures are authorized from collections rather
than pursuant to an appropriation by the Legislature. 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 division 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 commissioner and
board and related to complaints made to the commissioner or board
or investigations conducted by the commissioner or board pursuant
to this article, including the identity of the complainant or
respondent, shall be confidential and shall not be knowingly and
improperly disclosed by any member or former member of the board,
the commissioner 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 such 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
such subsequent hearing, as well as the board's and commissioner's
orders, are not confidential.
(C) The commissioner or 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 such
complaint filed immediately upon such respondent's request.
(E) Where the commissioner or board is otherwise required by
the provisions of this article to disclose such information or to
proceed in such a manner that disclosure is necessary and required
to fulfill such requirements.
(2) If, in a specific case, the commissioner or 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 commissioner or
board shall order that all or a portion of the information
communicated to the commissioner or board to cause an investigation
and all allegations of violations or misconduct contained in a
complaint shall be confidential, and the person providing such
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 such section or by the commissioner or board,
such person shall be guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not less than five hundred dollars nor more
than five thousand dollars, or imprisoned in the county jail not
more than one month, or both fined and imprisoned.
(e) The commissioner shall certify to the state auditor and to
the board a detailed statement of all moneys received and spent
during the preceding fiscal year.
§21-11-20. Board authorized to provide training.
(a)
The West Virginia contractor licensing On behalf of the
board, the division 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 division is
authorized to expend funds from its special revenue account, known
as the contractor licensing fund, to support this activity.
Note: This bill makes several changes to the West Virginia
Contractor Licensing Act, including, increasing the "cost of the
undertaking" in the definition of a contractor in §21-11-3;
providing for compensation members of the West Virginia Contractor
Licensing Board for board members in §21-11-4; increasing the penalty for failing to conspicuously display a contractor license
in §21-11-6; exempting certain work from licensure when the work
performed by an employer's regular employees on property owned or
leased by the employer which is not intended for speculative sale
or lease in §21-11-6; decreasing the period after which a lapsed
license may be renewed from two years to ninety days in §21-11-12;
providing for an appeal of a determination that a person is engaged
in contracting business in the state without a valid license in
§21-11-13; and the removal of references to the board in §§21-11-
15, 17 and 20.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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