SB-0968, As Passed Senate, October 20, 2016

SUBSTITUTE FOR

SENATE BILL NO. 968

     A bill to amend 1980 PA 299, entitled

"Occupational code,"

by amending sections 104, 601, 2402, and 2403 (MCL 339.104,

339.601, 339.2402, and 339.2403), section 104 as amended by 1996 PA

151, section 601 as amended by 2008 PA 319, section 2402 as amended

by 2007 PA 157, and section 2403 as amended by 1984 PA 191.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 104. (1) "Department" means the department of

commerce.licensing and regulatory affairs.

     (2) "Director" means the director of the department of

commerce or an his or her authorized representative. of the

director of the department of commerce.

     (3) "Disability" means an infirmity that prevents a board

member from performing a duty assigned to the board member.

     (4) "Files" means the records, memoranda, opinions, minutes,

and similar written materials that were formerly in the physical

dominion of a board abolished by this act and the records,

memoranda, opinions, minutes, and similar written materials of a

board created under this act.

     (5) "Formal complaint" means a document that states the

charges of each alleged violation and is prepared by the department

or the department of attorney general after a complaint has been is

received by the department.

     (6) "General public" means each individual residing in this

state who is 18 years of age or older, other than a person an

individual or the spouse of a person an individual who is licensed

or registered in the occupation or who has a material financial

interest in the occupation being regulated by under the specific

article in which the term is used.

     (7) "Good moral character" means good moral character as

defined in section 1 of Act No. 381 of the Public Acts of 1974,

being section 338.41 of the Michigan Compiled Laws.1974 PA 381, MCL

338.41.

     (8) "Incompetence" means a departure from, or a failure to

conform to, minimal standards of acceptable practice for the an

occupation.

     (9) "Knowledge and skill" means the information, education,

practical experience, and the facility in applying that

information, education, and practical experience.

     Sec. 601. (1) A person shall not engage in or attempt to

engage in the practice of an occupation regulated under this act or

use a title designated in this act unless the person possesses a

license or registration issued by the department for the

occupation.

     (2) A school, institution, or person shall not operate or

attempt to operate a barber college, school of cosmetology, or real

estate school unless the school, institution, or person is licensed

or approved by the department.

     (3) Subject to section 411, a person whose license or

registration is suspended, revoked, or lapsed, as determined by the

records of the department, is considered unlicensed or

unregistered.

     (4) Except as otherwise provided for in section 735, a person,

school, or institution that violates subsection (1) or (2) is

guilty of a misdemeanor, punishable by a fine of not more than

$500.00, or imprisonment for not more than 90 days, or both.

     (5) Except as otherwise provided for in section 735, a person,

school, or institution that violates subsection (1) or (2) a second

or any subsequent time is guilty of a misdemeanor, punishable by a

fine of not more than $1,000.00, or imprisonment for not more than

1 year, or both.

     (6) Notwithstanding subsections (4) and (5), a person that is

not licensed under article 24 as a residential builder or a

residential maintenance and alteration contractor who and that

violates subsection (1) or (2) is guilty as follows:

     (a) In the case of a first offense, a misdemeanor punishable

by a fine of not less than $5,000.00 or more than $25,000.00, or

imprisonment for not more than 1 year, or both.

     (b) In the case of a second or subsequent offense, a

misdemeanor punishable by a fine of not less than $5,000.00 or more

than $25,000.00, or imprisonment for not more than 2 years, or

both.

     (c) In the case of an offense that causes death or serious

injury, a felony punishable by a fine of not less than $5,000.00 or

more than $25,000.00, or imprisonment for not more than 4 years, or

both.

     (7) Notwithstanding subsections (4) and (5), a person that is

not licensed under article 20 as an architect, professional

engineer, or professional land surveyor who and that violates

subsection (1) or (2) is guilty as follows:

     (a) In the case of a first offense, a misdemeanor punishable

by a fine of not less than $5,000.00 or more than $25,000.00 or

imprisonment for not more than 93 days, or both.

     (b) In the case of a second or subsequent offense, a

misdemeanor punishable by a fine of not less than $5,000.00 or more

than $25,000.00 or imprisonment for not more than 1 year, or both.

     (c) In the case of an offense that causes death or serious

injury, a felony punishable by a fine of not less than $5,000.00 or

more than $25,000.00 or imprisonment for not more than 4 years, or

both.

     (8) Any violation of If a trier of fact finds that a person

has violated this act, the trier of fact shall include a

requirement that require that person to make restitution, be made,

based upon based on proofs submitted to and findings made by the

trier of fact as provided by law.

     (9) Notwithstanding the existence and pursuit of any other

remedy, an affected person may maintain injunctive action to

restrain or prevent a person from violating subsection (1) or (2).

If successful in obtaining injunctive relief, the affected person

shall be is entitled to actual costs and attorney fees.

     (10) This act does not apply to a person that is engaging in

or practicing any of the following:

     (a) Interior design.

     (b) Residential building design. As used in this subdivision,

"residential building design" means the rendering of residential

design services for a detached 1- and 2-family residence building

by a person exempted that is exempt from the requirements of

section 2012.

     (c) Any activity for which the person is licensed under the

state plumbing act, 2002 PA 733, MCL 338.3511 to 338.3569.article

11 of the skilled trades regulation act, MCL 339.6101 to 339.6133.

     (d) Any activity for which the person is licensed under the

Forbes mechanical contractors act, 1984 PA 192, MCL 338.971 to

338.988.article 8 of the skilled trades regulation act, MCL

339.5801 to 339.5819.

     (e) Any activity for which the person is licensed under the

electrical administrative act, 1956 PA 217, MCL 338.881 to

338.892.article 7 of the skilled trades regulation act, MCL

339.5701 to 339.5739.

     (11) As used in subsection (9), "affected person" means a

person that is directly affected by the actions of a person

suspected of violating subsection (1) or (2) and includes, but is

not limited to, a licensee or registrant, a board established

pursuant to under this act, the department, a person who has

utilized that utilizes the services of the person that is engaging

in or attempting to engage in an occupation that is regulated under

this act or using a title that is designated by this act without

being licensed or registered by the department, or a private

association that is composed primarily of members of the occupation

in which the person is engaging in or attempting to engage in or in

which the person is using a title designated under this act without

being registered or licensed by the department.

     (12) An investigation may be conducted under article 5 to

enforce this section. A person who that violates this section shall

be is subject to this section and sections 506, 602, and 606.

     (13) The department, the attorney general, or a county

prosecutor may utilize forfeiture as a remedy in the manner

provided for in section 606.

     (14) The remedies under this section are independent and

cumulative. The use of 1 remedy by a person shall does not bar the

use of other lawful remedies by that person or the use of a lawful

remedy by another person.

     (15) An interior designer may perform services in connection

with the design of interior spaces including preparation of

documents relative to finishes, systems furniture, furnishings,

fixtures, equipment, and interior partitions that do not affect the

building mechanical, structural, electrical, or fire safety

systems.

     (16) Upon entering At the time a court enters a conviction

under subsection (4), (5), or (6), a court entering the conviction

the court shall notify, by mail, facsimile transmission, or

electronic mail, the bureau of commercial services at the

department.the department of the conviction.

     Sec. 2402. (1) A residential builders' and maintenance and

alteration contractors' board is created. Of the 9-member board, 4

members shall be The board shall consist of 9 individuals, as

follows:

     (a) Four individuals who are licensed residential builders. ,

and 2 members shall be

     (b) Two individuals who are licensed maintenance and

alteration contractors.

(c) (2) Of the members Three individuals representing the

general public, at least 1 member shall be of whom is registered

under the building officials and inspectors registration act, 1986

PA 54, MCL 338.2301 to 338.2313.article 10 of the skilled trades

regulation act, MCL 339.6001 to 339.6023.

     Sec. 2403. Notwithstanding article 6, a person may engage in

the business of or act in the capacity of a residential builder or

a residential maintenance and alteration contractor or salesperson

in this state without having a license under this article, if the

person is 1 of the following:

     (a) An authorized representative of the United States

government, this state, or a county, township, city, village, or

other political subdivision of this state.

     (b) An owner of property, with reference to a structure on the

property for the owner's own use and occupancy.

     (c) An owner of rental property, with reference to the

maintenance and alteration of that rental property.

     (d) An officer of a court who is acting within the terms of

the officer's scope of that office.

     (e) A person other than the salesperson who that engages

solely in the business of performing work and services under

contract with a residential builder or a residential maintenance

and alteration contractor that is licensed under this article.

     (f) A person that is working on 1 undertaking or project by 1

or more contracts, if the aggregate contract price for which the

labor, material, and any other item items for the undertaking or

project is less than $600.00. This The exemption described in this

subdivision does not apply if the work of a construction is only a

part of a larger or major operation, whether undertaken by the same

or a different residential builder or residential maintenance and

alteration contractor, or in which a division of the operation is

made in contracts of amounts less than $600.00, to evade this act.

     (g) An electrical contractor who is licensed under Act No. 217

of the Public Acts of 1956, as amended, being sections 338.881 to

338.892 of the Michigan Compiled Laws. This exemption that is

licensed under article 7 of the skilled trades regulation act, MCL

339.5701 to 339.5739. The exemption described in this subdivision

applies only to the electrical installation, electrical

maintenance, or electrical repair work that is performed by the

electrical contractor.

     (h) A plumbing contractor licensed under Act No. 266 of the

Public Acts of 1929, as amended, being sections 338.901 to 338.917

of the Michigan Compiled Laws. This exemption that is licensed

under article 11 of the skilled trades regulation act, MCL 339.6101

to 339.6133. The exemption described in this subdivision applies

only to plumbing installation, plumbing maintenance, or plumbing

repair work that is performed by the plumbing contractor.

     (i) A mechanical contractor who is licensed under the

mechanical contractors act. This exemption that is licensed under

article 8 of the skilled trades regulation act, MCL 339.5801 to

339.5819. The exemption described in this subdivision applies only

to mechanical installation, mechanical maintenance, or mechanical

repair work that is performed by the mechanical contractor.

     Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.

     Enacting section 2. This amendatory act does not take effect

unless Senate Bill No. 963 of the 98th Legislature is enacted into

law.