March 21, 2017, Introduced by Senator GREEN and referred to the Committee on Regulatory Reform.
A bill to amend 1980 PA 299, entitled
"Occupational code,"
by amending sections 303a, 401, and 601 (MCL 339.303a, 339.401, and
339.601), section 303a as amended by 2014 PA 265, section 401 as
amended by 1988 PA 463, and section 601 as amended by 2016 PA 412,
and by adding article 14.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
1 Sec. 303a. The term of office of a member of a board appointed
2 under this article shall commence on 1 of the following dates, as
3 applicable:
|
4 |
Accountancy |
July 1 |
|
5 |
Architects |
April 1 |
|
6 |
Barbers |
October 1 |
|
1 |
Collection agencies |
July 1 |
|
2 |
Cosmetology |
January 1 |
|
3 |
Employment agencies |
October 1 |
|
4 |
Hearing aid dealers |
October 1 |
|
5 |
Home inspectors |
July 1 |
|
6 |
Land surveyors |
April 1 |
|
7 |
Landscape architects |
July 1 |
|
8 |
Mortuary science |
July 1 |
|
9 |
Professional engineers |
April 1 |
|
10 |
Real estate appraisers |
July 1 |
|
11 |
Real estate brokers and salespersons |
July 1 |
|
12 |
Residential builders |
April 1 |
13 Sec. 401. (1) The
Except as otherwise provided
in a specific
14 article, the specific amounts to be charged for licenses,
15 registrations, and other activities provided for in this act shall
16 be as are prescribed in the state license fee act, Act No.
152 of
17 the Public Acts of 1979, being sections 338.2201 to 338.2277 of the
18 Michigan Compiled Laws.1979
PA 152, MCL 338.2201 to 338.2277.
19 (2) The occupational fund is created within the state
20 treasury. The state treasurer may receive money or other assets
21 from any source for deposit into the fund, including money from
22 this act and the state license fee act, 1979 PA 152, MCL 338.2201
23 to 338.2277. The state treasurer shall direct the investment of the
24 fund. The state treasurer shall credit to the fund interest and
25 earnings from fund investments. Money in the fund at the close of
26 the fiscal year shall remain in the fund and shall not lapse to the
27 general fund. The department is the administrator of the fund for
1 auditing purposes.
2 (3) Fees established under this act are intended to bear a
3 reasonable relation to the department's cost, including overhead,
4 of the service or action for which the fee is charged and shall be
5 deposited into the fund to offset those costs. The department shall
6 adjust on an annual basis the license fees prescribed under this
7 act by an amount determined by the state treasurer to reflect the
8 cumulative annual percentage change in the Detroit consumer price
9 index, subject to a maximum adjustment of 5% in any 1 year. As used
10 in this subsection, "Detroit consumer price index" means the most
11 comprehensive index of consumer prices available for the Detroit
12 area from the Bureau of Labor Statistics of the United States
13 Department of Labor.
14 (4) The department shall expend money from the fund, on
15 appropriation, only for the operation of the corporations,
16 securities, and commercial licensing bureau and indirect overhead
17 expenses of the department that include, but are not limited to,
18 the purchase and sale to the general public of printed laws and
19 rules.
20 Sec. 601. (1) A person shall not engage in or attempt to
21 engage in the practice of an occupation regulated under this act or
22 use a title designated in this act unless the person possesses a
23 license or registration issued by the department for the
24 occupation.
25 (2) A school, institution, or person shall not operate or
26 attempt to operate a barber college, school of cosmetology, or real
27 estate school unless the school, institution, or person is licensed
1 or approved by the department.
2 (3) Subject to section 411, a person whose license or
3 registration is suspended, revoked, or lapsed, as determined by the
4 records of the department, is considered unlicensed or
5 unregistered.
6 (4) Except as otherwise provided for in section 735, a person,
7 school, or institution that violates subsection (1) or (2) is
8 guilty of a misdemeanor, punishable by a fine of not more than
9 $500.00, or imprisonment for not more than 90 days, or both.
10 (5) Except as otherwise provided for in section 735, a person,
11 school, or institution that violates subsection (1) or (2) a second
12 or any subsequent time is guilty of a misdemeanor, punishable by a
13 fine of not more than $1,000.00, or imprisonment for not more than
14 1 year, or both.
15 (6) Notwithstanding subsections (4) and (5), a person that is
16 not licensed under article 14 as a home inspector or under article
17 24 as a residential builder or a residential maintenance and
18 alteration contractor and that violates subsection (1) or (2) is
19 guilty as follows:of
1 of the following:
20 (a) In the case of For a first offense, a
misdemeanor
21 punishable by a fine of not less than $5,000.00 or more than
22 $25,000.00, or imprisonment for not more than 1 year, or both.
23 (b) In the case of For a second or subsequent
offense, a
24 misdemeanor punishable by a fine of not less than $5,000.00 or more
25 than $25,000.00, or imprisonment for not more than 2 years, or
26 both.
27 (c) In the case of For an offense that causes
death or serious
1 injury, a felony punishable by a fine of not less than $5,000.00 or
2 more than $25,000.00, or imprisonment for not more than 4 years, or
3 both.
4 (7) Notwithstanding subsections (4) and (5), a person that an
5 individual who is not licensed under article 20 as an architect,
6 professional engineer, or professional land surveyor and that who
7 violates subsection (1) or (2) is guilty as follows:
8 (a) In the case of For a first offense, a
misdemeanor
9 punishable by a fine of not less than $5,000.00 or more than
10 $25,000.00 or imprisonment for not more than 93 days, or both.
11 (b) In the case of For a second or subsequent
offense, a
12 misdemeanor punishable by a fine of not less than $5,000.00 or more
13 than $25,000.00 or imprisonment for not more than 1 year, or both.
14 (c) In the case of For an offense that causes
death or serious
15 injury, a felony punishable by a fine of not less than $5,000.00 or
16 more than $25,000.00 or imprisonment for not more than 4 years, or
17 both.
18 (8) If a trier of fact finds that a person has violated this
19 act, the trier of fact shall require that person to make
20 restitution, based on proofs submitted to and findings made by the
21 trier of fact as provided by law.
22 (9) Notwithstanding the existence and pursuit of any other
23 remedy, an affected person may maintain an action for injunctive
24 action relief to restrain or prevent a person from violating
25 subsection (1) or (2). If successful in obtaining injunctive
26 relief, the affected person is entitled to actual costs and
27 attorney fees.
1 (10) This act does not apply to a person that is engaging in
2 or practicing any of the following:
3 (a) Interior design.
4 (b) Residential building design. As used in this subdivision,
5 "residential building design" means the rendering of residential
6 design services for a detached 1- and 2-family residence building
7 by a person that is exempt from the requirements of under section
8 2012 from the requirements of article 20.
9 (c) Any activity for which the person is licensed under
10 article 11 of the skilled trades regulation act, MCL 339.6101 to
11 339.6133.
12 (d) Any activity for which the person is licensed under
13 article 8 of the skilled trades regulation act, MCL 339.5801 to
14 339.5819.
15 (e) Any activity for which the person is licensed under
16 article 7 of the skilled trades regulation act, MCL 339.5701 to
17 339.5739.
18 (11) As used in subsection (9), "affected person" means a
19 person that is directly affected by the actions of a person that is
20 suspected of violating subsection (1) or (2) and includes, but is
21 not limited to, a licensee or registrant, a board established under
22 this act, the department, a person that utilizes the services of
23 the person that is engaging in or attempting to engage in an
24 occupation that is regulated under this act or using a title that
25 is designated by this act without being licensed or registered by
26 the department, or a private association that is composed primarily
27 of members of the occupation in which the person is engaging in or
1 attempting to engage in or in which the person is using a title
2 designated under this act without being registered or licensed by
3 the department.
4 (12) An The
department may conduct an investigation
may be
5 conducted under article 5
to enforce this section. A person that
6 violates this section is subject to this section and sections 506,
7 602, and 606.
8 (13) The department, the attorney general, or a county
9 prosecutor may utilize forfeiture as a remedy for a violation of
10 this section in the manner provided for in section 606.
11 (14) The remedies under this section are independent and
12 cumulative. The use of 1 remedy by a person does not bar the use of
13 other lawful remedies by that person or the use of a lawful remedy
14 by another person.
15 (15) An interior designer may perform services in connection
16 with the design of interior spaces including preparation of
17 documents relative to finishes, systems furniture, furnishings,
18 fixtures, equipment, and interior partitions that do not affect the
19 building mechanical, structural, electrical, or fire safety
20 systems.
21 (16) At the time a court enters a conviction under for a
22 violation of subsection (4),
(5), or (6), or (7), the court shall
23 notify, by mail, facsimile transmission, or electronic mail, the
24 department of the conviction.
25 ARTICLE 14
26 Sec. 1401. As used in this article:
27 (a) "Client" means a person on whose behalf a home inspector
1 is acting. The term may include a seller under certain
2 circumstances.
3 (b) "Electrical system" means the total system, beginning with
4 the utility connection, in a residence that facilitates the flow of
5 electricity beginning with the main panel and extending to the
6 subpanels and including branch circuits, and directly wired
7 electrical and lighting fixtures.
8 (c) "Foundation" means 1 or more of the supporting elements of
9 a structure, including, but not limited to, any of the following:
10 (i) Slab.
11 (ii) Crawl space.
12 (iii) Basement.
13 (iv) Piers.
14 (d) "Heating and air conditioning system" means a separate or
15 combined system that is used to distribute or radiate heat or cool
16 air throughout all or part of a residence.
17 (e) "Home inspection services" means services provided to a
18 client, for consideration, that are designed to identify and
19 disclose the functional condition of the major systems in a
20 residence at the time of the inspection. Home inspection services
21 do not include an inspection designed only to disclose any of the
22 following:
23 (i) Compliance with local, state, or federal building or
24 construction laws, codes, or regulations.
25 (ii) Compliance with local, state, or federal health and
26 safety laws or regulations.
27 (iii) The presence or absence of pests, termites, or other
1 vermin or damage resulting from the presence of pests, termites, or
2 vermin.
3 (f) "Home inspector" means an individual who is engaged in, or
4 offering to engage in, the business of providing home inspection
5 services but does not include any of the following:
6 (i) An individual who is acting on behalf of a local, state,
7 or federal governmental unit or agency and is conducting an
8 inspection or investigation concerning compliance with either or
9 both of the following:
10 (A) Health or safety laws or regulations.
11 (B) Construction or building laws, codes, or regulations.
12 (ii) An individual who is licensed, registered, or certified
13 under 1 or more of the following while conducting an inspection
14 that is reasonably related to a task or prospective task within the
15 scope of licensure, registration, or certification:
16 (A) Article 20.
17 (B) Article 24.
18 (C) Article 25.
19 (D) Article 26.
20 (E) Article 7, 8, or 11 of the skilled trades regulation act,
21 2016 PA 407, MCL 339.5701 to 339.5739, 339.5801 to 339.5819, and
22 339.6101 to 339.6133.
23 (g) "Major deficiency" means a defect in 1 or more major
24 systems that may cause the reasonable likelihood of harm to the
25 safety of the occupants or that may result in the reasonable
26 likelihood of a major system becoming nonoperational.
27 (h) "Major system" means any 1 of the following:
1 (i) Electrical system.
2 (ii) Heating and air conditioning system.
3 (iii) Plumbing system.
4 (iv) Structure and foundation.
5 (i) "Plumbing system" means that system regulating the inward
6 and outward flow of water and sewage in a residence and includes,
7 but is not limited to, water heaters, fixtures, faucets, valves,
8 and pipes. Plumbing does not include wells, septic systems, water
9 softeners, or sump pumps unless included in writing in the contract
10 for home inspection services.
11 (j) "Residence" means a building that is used primarily for
12 family living quarters and designed for occupancy by not more than
13 4 families in separate dwelling units. Residence does not include
14 any building newly constructed or not previously occupied as a
15 dwelling unit.
16 (k) "Structure" means the walls, windows, doors, and roof on
17 the exterior of a residence and the walls, ceilings, floors,
18 windows, and doors on the interior of a residence.
19 Sec. 1402. There is created a home inspectors board.
20 Sec. 1403. (1) Beginning on the effective date of this
21 article, an individual shall not provide, or offer to provide, home
22 inspection services unless he or she is licensed under this article
23 or unless the individual or services are exempted from licensure
24 under this article under section 1401(f)(i) or (ii). An individual
25 shall not use the term "home inspector" or any other similar title
26 that connotes licensure under this article unless he or she is
27 licensed under this article. An individual who violates this
1 section is subject to the penalties of article 6.
2 (2) Except as otherwise provided in subsection (3), the
3 department shall license an individual who files a completed
4 application and pays the appropriate application and license fee
5 and who meets all of the following:
6 (a) Education requirements that consist of at least 80 credit
7 hours of education as determined appropriate by the department.
8 (b) Participation in at least 200 home inspections conducted
9 under the authority and direction of a home inspector licensed
10 under this article, as evidenced by an affidavit of the licensee.
11 (c) The passage of a proctored examination acceptable to the
12 department and the board. The current examination referred to as
13 the national home inspection examination developed by the
14 examination board of professional home inspectors, as it exists on
15 the effective date of this article, is considered an acceptable
16 examination. Any other examination that utilizes psychometric
17 standards and that has substantially the same substantive areas of
18 testing, as determined by the board and the department, may also be
19 used for purposes of this subdivision. The director, in
20 consultation with the board, may by rule adopt any updates or
21 alternatives to the examination described in this subdivision.
22 (d) Is at least 18 years of age and has not been convicted of
23 any felony.
24 (3) Beginning on the effective date of this article and until
25 the expiration of 12 months after that effective date, the
26 department shall issue a license to an individual who applies for a
27 license; submits the appropriate license and application fees;
1 documents, in a manner acceptable to the department, that in the
2 preceding 3 calendar years he or she has been engaged in providing
3 home inspection services and during that period has conducted or
4 participated in at least 200 fee-paid home inspections; and passes
5 the examination described in subsection (2)(c). An individual who
6 meets the conditions described in this subsection is not required
7 to meet the requirements of subsection (2)(a), (b), and (d).
8 (4) The department shall issue a license to an individual as a
9 home inspector if the individual is licensed or otherwise regulated
10 in another state that has substantially the same standards for
11 licensure as this state, as determined by the department, and who
12 meets all other relevant requirements in this state.
13 Sec. 1404. (1) Beginning on the effective date of this
14 article, an individual who provides or offers to provide home
15 inspection services shall comply with the requirements of this
16 section and section 1405.
17 (2) A home inspector who enters into a contract for home
18 inspection services that does not meet the requirements of this
19 article is subject to an action for damages brought by the client
20 in a court of competent jurisdiction, penalties and sanctions
21 contained in articles 5 and 6, or both.
22 (3) A home inspector shall inspect those major systems of a
23 residence that are the subject of a contract for home inspection
24 services but is only required to inspect to the extent that those
25 major systems are readily accessible and visible to the home
26 inspector. A home inspector shall indicate in writing any major
27 system, or any part of a major system, that he or she was not able
1 to inspect and the reasons for the inability to inspect.
2 (4) The home inspector shall disclose whether he or she, an
3 employee or agent, or an immediate family member has an ownership
4 interest in the residence being inspected.
5 (5) A home inspector shall disclose whether he or she, an
6 employee or agent, or an immediate family member is a member of a
7 board of directors of, or an officer of, an entity that has an
8 ownership interest in the residence being inspected.
9 (6) A home inspector shall disclose and provide at the time a
10 written home inspection report is delivered to the client at least
11 both of the following:
12 (a) The scope of the home inspection services, including a
13 detailed description of the major systems to be inspected, the type
14 of major deficiencies the home inspection is designed to reveal,
15 and items that are excluded from coverage under the contract for
16 home inspection services.
17 (b) A statement that a home inspector inspecting a particular
18 residence shall not repair or offer to repair a residence that was
19 the subject of home inspection services provided by that home
20 inspector.
21 Sec. 1405. (1) A contract for home inspection services shall
22 be in writing, executed by the home inspector and either the client
23 or the client's agent, and meet the requirements of subsection (4).
24 A home inspector shall provide a copy of the executed contract for
25 home inspection services to the client at the time of its
26 execution.
27 (2) All terms of a contract for home inspection services shall
1 be contained in the written contract except that conditions of the
2 residence affecting the home inspector's ability to conduct a home
3 inspection shall be noted in the report provided to the client
4 after the inspection is conducted. Any changes or modifications of
5 the terms of a contract for home inspection services shall be
6 reduced to writing.
7 (3) Unless otherwise indicated in writing, the purchaser or
8 owner of a residence being inspected is considered the client in
9 the case of a home inspection conducted as part of a sale of the
10 residence.
11 (4) The following shall be contained in a contract for home
12 inspection services:
13 (a) A description of the home inspection services to be
14 provided.
15 (b) Any disclaimers including, but not limited to, the absence
16 of any warranties as to the adequacy of future performance of a
17 major system and that the home inspection is considered a valid
18 assessment of the condition of the residence only as of the date
19 the home inspection is conducted.
20 (c) Any exclusion of defects that are not reasonably apparent
21 by visual inspection.
22 (d) Any exclusion of any major system that is not operable at
23 the time of the conduct of the home inspection.
24 (e) The disclosures required in section 1404(4) and (5).
25 (5) After performing home inspection services, a home
26 inspector shall provide to the client a written home inspection
27 report that contains the results of the home inspection. The home
1 inspection report shall include a list of the major systems that
2 were inspected and any major systems that were not inspected. The
3 home inspector shall list in the report any conditions that affect
4 or limit the ability of the home inspector to provide home
5 inspection services under the contract.
6 (6) A home inspection report shall include all of the
7 following statements:
8 (a) That defects that are not reasonably apparent by visual
9 inspection are excluded.
10 (b) That a major system that is not operable at the time of
11 the conduct of the home inspection is excluded.
12 (7) The home inspector shall indicate in a written home
13 inspection report that the home inspection is considered a valid
14 assessment of the condition of the residence only as of the date
15 the home inspection is conducted.
16 (8) A home inspector shall retain a copy of a contract for
17 home inspection services and the written home inspection report for
18 at least 18 months after the date of the report.
19 (9) Any disputes between a home inspector and a client may be
20 resolved by arbitration, if the contract so provides. The
21 arbitration shall be conducted in compliance with the rules of the
22 American arbitration association.
23 (10) The home inspector-client relationship is privileged.
24 Communications between a home inspector and client, including the
25 home inspection report, are privileged. A person shall not
26 intentionally or willfully interfere in the home inspector-client
27 relationship or any communications arising from the home inspector-
1 client relationship.
2 (11) A client or the department may not file an administrative
3 or civil complaint against a home inspector under this article more
4 than 12 months after the date of the inspection.
5 Sec. 1406. The remedies under this article are cumulative and
6 the use of 1 remedy does not bar the use of any other remedy
7 provided by law.
8 Sec. 1407. The director shall promulgate rules to provide for
9 all of the following:
10 (a) A requirement that licensees complete at least 20 hours of
11 continuing education for professional competence annually.
12 (b) Requirements for acceptable courses offered at seminars
13 and conventions by trade associations, research institutes, risk
14 management entities, manufacturers, suppliers, governmental
15 agencies, consulting agencies, or other entities.
16 (c) Acceptable distance learning.
17 (d) Standards of performance and practice and a code of
18 ethics.
19 (e) Alternate forms of demonstrating continuing competency,
20 including comprehensive testing, participation in mentoring
21 programs, research, participation in code hearings conducted by the
22 international code council, and publication of articles in a trade
23 journal or regional magazine as an expert in the field, if those
24 alternate forms are designed to maintain and improve the licensee's
25 ability to perform the occupation with competence.
26 (f) What proof is necessary to demonstrate that a licensee has
27 fulfilled the requirements of continuing competency.
1 Sec. 1408. Fees for an individual who is licensed or seeking
2 licensure as a home inspector under this article are as follows:
3 (a) Nonrefundable application processing fee, $100.00.
4 (b) Per year license fee, $100.00.
5 (c) Examination fee, if applicable, $200.00.
6 (d) Examination review fee, if applicable, $20.00.
7 Enacting section 1. This amendatory act takes effect 1 year
8 after the date it is enacted into law.