NDT C.S.H.B. 37 75(R) BILL ANALYSIS LICENSING & ADMINISTRATIVE PROCEDURES C.S.H.B. 37 By: Goolsby 4-23-97 Committee Report (Substituted) BACKGROUND In the past, many contractors have cost the State revenue for non-payment of appropriate taxes, and insurance, while at the same time, not providing adequate protection for their workers and protecting the property owners by whom they were employed. Many of these contractors also were not in compliance with national and municipal building codes with regard to certain fire and safety requirements. Texas is prepared by all accounts to experience continued growth in many sectors of our economy, including the construction trades. It is imperative that the State of Texas act now to protect the consumer. PURPOSE C.S.H.B. 37 would establish the Plastering Contractors Advisory Board, and provide for the registration of plastering contractors. CSHB 37 would also establish the requirements for registration, renewal, continuing education, suspension, and revocation of plastering contractors. RULEMAKING AUTHORITY It is the opinion of the committee that rulemaking authority is granted in Section 3, and Section 5 of the bill to the department of licensing and regulation. SECTION BY SECTION ANALYSIS SECTION 1. DEFINITIONS. Defines "board," "commission," "commissioner," "department," "exterior insulation finish system," "metal lathing," "plastering," "plastering contractor," "spray fireproofing," and "person." SECTION 2. PLASTERING CONTRACTORS ADVISORY BOARD. (a) The Plastering Contractors Advisory Board is established as an advisory board to the department. The board is comprised of six members appointed by the commissioner and member may hold office for two years, with three members' terms expiring in February 1 of each year. The commissioner will designate a member of the board to serve as the board's presiding officer. (b) Three of the members appointed under subsection (a) must be plastering contractors eligible for a certificate of registration and who have at least 10 years experience in the plaster industry. The remaining three members will represent the general public but must be familiar with the plaster industry, including persons who work as architects, general contractors, and in the field of insurance. (c) The commissioner may remove a member of the board for inefficiency or neglect of duty in office. If a vacancy occurs on the board, the commissioner will appoint a member who represents the same interests as the former member to serve the rest of the unexpired term. (d) The board will meet at least twice a year at the call of the presiding officer at the place designated by the officer. A decision of the board is not valid unless a majority of the members are present at the meeting at which the decision is made. (e) The board will advise the commissioner in adopting rules, setting fees, establishing registration renewal requirements, and enforcing and administering this Act. (f) A member of the board is not entitled to compensation. Reimbursement for expenses incurred by members of the board are subject to Section 4, Article 6252-33, Revised Statutes. SECTION 3. ISSUANCE OF CERTIFICATE OF REGISTRATION; RULES. (a) The commissioner will issue a certificate of registration to an applicant for registration as a plastering contractor who has the qualifications for a certificate of registration required by this Act or rule adopted under this Act. (b) The commissioner will: (1) adopt rules relating to issuing a certificate of registration under this Act; and (2) prescribe all forms required under this Act. (c) A certificate of registration under this Act is valid for one year from the date of issuance. SECTION 4. REGISTRATION REQUIREMENTS. (a) To qualify for a certificate of registration under this Act, a person must apply on a form prescribed by the commissioner and pay any application and registration fees required by the commission. The applicant must show evidence of financial responsibility by posting a bond in an amount prescribed by the commissioner. (b) An applicant under this Act will provide proof that the person is covered by insurance by presenting a copy of the person's certificate of workers' compensation coverage or alternative coverage and proof of the person's general liability insurance coverage. Proof of insurance coverage under this section must include: (1) the policy number and name of the insurer; (2) the amounts of coverage; (3) the effective date and expiration date of the coverage; and (4) the signature of the insurance agent providing coverage. (c) An application under this section must be notarized and contain the applicant's state identification number, if any, sales tax number, and Internal Revenue Service employer identification number. (d) The business name used by an applicant under this section must be the same on all documents included with the application. (e) The applicant will provide a telephone number and mailing address. The applicant will also provide the address where the applicant is physically located, if different from the mailing address. (f) If the applicant is a partnership or corporation, the applicant must provide: (1) the name of each owner of the applicant firm; and (2) the name and signature of the individual who filed the application for the firm. SECTION 5. FEES. The commission by rule will set application and registration fees under this Act. SECTION 6. REGISTRATION RENEWAL; CONTINUING EDUCATION. (a) A person holding a certificate of registration may renew the certificate by: (1) completing the renewal registration application form prescribed by the commissioner; (2) paying the renewal fee set by the commission; (3) providing a new bond or a continuation certificate for the existing bond that satisfies the requirements of Section 4(a) of this Act regarding evidence of financial responsibility; (4) providing proof that the person satisfies the workers' compensation insurance and liability coverage requirements under Section 4(b) of this Act; and (5) providing proof that the person has satisfied the continuing education and other renewal requirements adopted by the commissioner. (b) To renew a certificate of registration under this section, the person must be present evidence that 10 hours of classroom study in subjects required by the commissioner during the 12 months preceding the date of renewal. (c) A holder of a certificate of registration under this Act who fails to renew the certificate before the date of registration expires must pay a late fee set by the commission in addition to other renewal requirements of this section. SECTION 7. COMMISSIONER AND DEPARTMENT DUTIES; INSPECTIONS. (a) The commission will enforce this Act. (b) The department will investigate allegations of violations of this Act. The department may enter any place of business or other establishment at which the alleged illegal activity occurs during reasonable business hours and without advance notice. SECTION 8. SUSPENSION, REVOCATION, AND RENEWAL OF REGISTRATION; REISSUANCE. (a) After a hearing, the commissioner will suspend or revoke a certificate of registration on a finding that a person: (1) made a material misstatement in an application for a certificate of registration; (2) wilfully disregarded or violated this Act or a rule adopted under this Act; (3) wilfully aided or abetted another in the violation of this Act or a rule adopted under this Act; (4) was convicted for a crime an essential element of which is misstatement, fraud, dishonesty, or a felony; or (5) engaged in dishonorable or unethical conduct likely to deceive, defraud, or harm the public. (b) The commissioner may reissue a certificate of registration to a person whose certificate of registration has been revoked if the person applies in writing to the department and show good cause to justify reissuing the certificate of registration. SECTION 9. PROHIBITED ACTS. (a) Except as provided by subsection(c), a person may not engage in metal lathing, plastering, spray proofing, or the application of an exterior insulation finish system for compensation unless the person holds a plastering contractor certificate of registration under this Act. (b) A person may not bid on or accept a prime contract to engage in metal lathing, plastering, spray fireproofing, or the application of an exterior insulation finish system unless the person is registered as a plastering contractor under this Act. (c) The requirement under this subsection (a) does not apply to a person who performs plastering contacting if, (1) the person is a maintenance man or engineer who is a bona fide employee of the property, the property lessee, or the management company managing the property where the maintenance work is being performed; (2) the work is performed in connection with the business in which the person is employed; and (3) the person and the person's employer referred to in (1) do not engage in the occupation of plastering contracting for the general public. (d) The work described by subsection (c) of this section remains subject to any permit, inspection, or approval requirements prescribe by a municipal ordinance. SECTION 10. OFFENSE; ADMINISTRATIVE PENALTY. (a) A person commits an offense if the person knowingly or intentionally acts as a plastering contractor without a certificate of registration under this Act. An offense under this subsection is a Class C misdemeanor. (b) A person who violates this Act or rule adopted under this Act is subject to an administrative penalty assessed by the commission as provided by Section 17, Article 9100, Revised Statutes. SECTION 11. TRANSITION. In making the initial appointments to the Plastering Contractors Advisory Board, the commissioner will designate three members for terms expiring on February 1, 1999, and three members for terms expiring on February 1, 2000. SECTION 12. EFFECTIVE DATE. (a) Except as provided by subsection (b) of this section, this Act takes effect September 1, 1997. (b) Sections 9 and 10 of this Act take effect March 1, 1998. SECTION 13. EMERGENCY. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE. SECTION 1. (7) First change: Deletes the words "The definition" and adds the words "The term". Second change: Deletes the word "apply" and adds "include". Third change: Adds the following words: installing, texturing, or applying acoustical material. SECTION 2. The word "in" has been deleted. SECTION 4. (a) The word "or" has been deleted and the word "of" added. (b) The word "equivalent" is changed to "alternative". SECTION 7. (a) The word "commission" has been deleted and the word "commissioner" added. SECTION 9. (b) The word "fire" is changed to "finish". (c) The words "The requirement under this" is deleted. The word "contacting" is deleted and the word "contracting" is added. (1) The word "man" is deleted and the word "worker" is added. (3) The first "The" is deleted and the word "the" is added (capitalization error). The words "referred to in (1)" has been deleted. (d) This entire section has been re-worded but the integrity of the language has not changed. SECTION 10. (a) Changes the criminal offense from a Class A misdemeanor to a Class C misdemeanor. (b) The word "violated" has been deleted and the word "violates" has been added.