ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 21
(Senator Bowman, original sponsor)
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[Passed March 9, 2007;
in effect ninety days from passage.]
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AN ACT to amend and reenact §21-11-14 of the Code of West Virginia,
1931, as amended, relating to granting the West Virginia
Contractor Licensing Board the authority to take disciplinary
action including assessing a civil penalty against a licensee
for failure to satisfy an adverse judgment in favor of a
consumer entered by a magistrate or circuit court.
Be it enacted by the Legislature of West Virginia:
That §21-11-14 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 11. WEST VIRGINIA CONTRACTOR LICENSING ACT.
§21-11-14. Disciplinary powers of the board.
(a) The board has the power and authority to impose the
following disciplinary actions:
(1) Permanently revoke a license;
(2) Suspend a license for a specified period;
(3) Censure or reprimand a licensee;
(4) Impose limitations or conditions on the professional
practice of a licensee;
(5) Impose requirements for remedial professional education to
correct deficiencies in the education, training and skill of a
licensee;
(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 one thousand dollars.
(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.
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