75R13923 JMM-F By Moncrief S.B. No. 259 Substitute the following for S.B. No. 259: By Yarbrough C.S.S.B. No. 259 A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to the regulation of roofing contractors; providing 1-3 penalties. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. SHORT TITLE. This Act may be cited as the 1-6 "Roofing Contractors Licensing Law." 1-7 SECTION 2. DEFINITIONS. In this Act: 1-8 (1) "Advisory board" means the Roofing Contractors 1-9 Advisory Board. 1-10 (2) "Commercial roofing" means the exterior roof, 1-11 cover, or skin of the roof assembly consisting of membrane, metal 1-12 panels, sheets, shingles, tiles, slate, and other materials on any 1-13 building or structure other than buildings or structures listed in 1-14 Subdivision (8) of this section. 1-15 (3) "Commission" means the Texas Commission of 1-16 Licensing and Regulation. 1-17 (4) "Commissioner" means the commissioner of licensing 1-18 and regulation. 1-19 (5) "Mechanical integrity" means physical installation 1-20 of products, systems, or equipment in accordance with their 1-21 intended purpose and according to industry standards at least as 1-22 strict as the roofing manufacturers' specifications. 1-23 (6) "Person" means an individual, corporation, 1-24 organization, business trust, estate, trust, partnership, 2-1 association, and any other legal entity. 2-2 (7) "Qualifying party" means a person who possesses 2-3 all the necessary qualifications and who is a principal of a 2-4 company licensed under this Act. 2-5 (8) "Residential roofing" means any material applied 2-6 to the exterior roof framing (wood or steel) on single-family 2-7 homes, duplexes, or quadplexes. 2-8 (9) "Roofing contracting" means performing or offering 2-9 to perform the design, installation, construction, maintenance, 2-10 service, repair, alteration, or modification of a product or of 2-11 equipment in roofs. 2-12 (10) "Roofing contracting company" or "company" means 2-13 any person, corporation, partnership, association, or other entity 2-14 that performs roofing contracting. 2-15 SECTION 3. POWERS AND DUTIES OF COMMISSIONER. (a) The 2-16 commissioner shall adopt rules for the practice of roofing 2-17 contracting consistent with this Act. The standards prescribed by 2-18 rule must be substantially the same as the standards set forth in 2-19 the roofing manufacturers' standard requirements. The commissioner 2-20 shall enforce this Act and may adopt rules relating to enforcement 2-21 requirements. 2-22 (b) The commissioner may issue an emergency order as 2-23 necessary to enforce this Act if the commissioner determines that 2-24 an emergency exists or formerly existed requiring immediate 2-25 temporary action to protect the public health and safety or to 2-26 protect damaged property. The order may be issued without notice 2-27 and hearing or with such notice and hearing as the commissioner 3-1 considers practicable under the circumstances. If an emergency 3-2 order is issued under this subsection without a hearing, the 3-3 commissioner shall set the time and place for a hearing to affirm, 3-4 modify, or set aside the emergency order. The commission may issue 3-5 cease and desist orders. 3-6 (c) The commissioner shall prescribe application forms for 3-7 original and renewal licenses and the design of the licenses. 3-8 (d) The commissioner shall prescribe the method and content 3-9 of examinations administered under this Act and shall set 3-10 compliance requirements for the examinations. The examination 3-11 shall be offered at least quarterly at various locations around the 3-12 state as determined by the commission. 3-13 (e) The commissioner shall enforce insurance requirements 3-14 for persons licensed under this Act. 3-15 (f) The commission may employ the personnel necessary to 3-16 implement this Act. The commission shall contract with at least 3-17 two full-time roofing contractors to serve as test examiners. 3-18 (g) The commissioner may authorize necessary disbursements 3-19 to implement this Act, including office expenses, costs of 3-20 equipment, and other necessary facilities. 3-21 (h) The commission shall publish annually a directory of the 3-22 persons licensed under this Act. The commission may sell the 3-23 directory on payment of a reasonable fee set by the commission. 3-24 The fees collected under this subsection shall be appropriated to 3-25 the commission for use in the administration of this Act. 3-26 (i) The commission may contract with another state agency or 3-27 with a political subdivision of the state for the enforcement of 4-1 this Act and the rules adopted by the commissioner under this Act. 4-2 (j) The commissioner shall adopt rules that require a 4-3 license holder to obtain a permit from an approved landfill to 4-4 dispose of roofing materials. Rules adopted under this subsection 4-5 shall include a requirement that a license holder maintain a record 4-6 for each disposal of roofing materials by the license holder. 4-7 SECTION 4. ADVISORY BOARD. (a) The Roofing Contractors 4-8 Advisory Board is created to advise the commissioner in adopting 4-9 rules, method, and content of examination and enforcing and 4-10 administering this Act and to advise the commission in setting 4-11 fees. 4-12 (b) The advisory board is composed of six members appointed 4-13 by the commissioner who are experienced in the design, 4-14 installation, construction, maintenance, service, repair, 4-15 alteration, or modification of roofing systems. Members of the 4-16 advisory board shall hold office for staggered terms of six years, 4-17 with two terms expiring on February 1 of each odd-numbered year. 4-18 (c) The commissioner shall appoint the advisory board 4-19 members as follows: 4-20 (1) three members must be full-time licensed roofing 4-21 contractors as follows: 4-22 (A) one member must hold a commercial license; 4-23 (B) one member must hold a residential license; 4-24 and 4-25 (C) one member must hold a commercial and a 4-26 residential license; and 4-27 (2) three shall be public members. 5-1 (d) For the members appointed under Subsection (c)(1) of 5-2 this section, at least one member must practice in a municipality 5-3 with a population of 250,000 or more and at least one member must 5-4 practice in a municipality with a population of less than 250,000. 5-5 For the purposes of this subsection, "population" means the 5-6 population according to the most recent federal decennial census. 5-7 (e) The commissioner shall designate one member of the 5-8 advisory board to serve as chairman. The commissioner or the 5-9 commissioner's designee shall serve as an ex officio, nonvoting 5-10 member of the advisory board. On the resignation, death, 5-11 suspension, or incapacity of any member, the commissioner shall 5-12 fill the vacancy for the remainder of the unexpired term with an 5-13 individual who represents the same category with which the 5-14 predecessor was identified. 5-15 (f) The advisory board shall meet at least every six months 5-16 and may meet at other times at the call of the chairman. The 5-17 advisory board shall meet at a place designated by the board within 5-18 the State of Texas. A decision of the advisory board is not 5-19 effective unless it receives the affirmative vote of at least a 5-20 majority of the members present. 5-21 (g) The advisory board members serve without compensation. 5-22 SECTION 5. LICENSE REQUIRED. (a) Unless the person is 5-23 exempted under Section 14 of this Act, a person or company may not 5-24 perform roofing contracting without a license under this Act. 5-25 (b) A roofing contracting company that is not exempt under 5-26 this Act must employ a license holder, or license holders, whose 5-27 license is assigned to that company. 6-1 (c) A representative of the commission or a municipal 6-2 official may issue a citation to a person who performs roofing 6-3 contracting without a license issued under this Act. 6-4 (d) A license issued under this Act is valid throughout the 6-5 state, and the holder and persons under the holder's supervision 6-6 are not required to hold a municipal license to practice roofing 6-7 contracting in any municipality within this state. 6-8 SECTION 6. ROOFING CONTRACTOR LICENSES. (a) The roofing 6-9 contracting company shall be the license holder and shall comply 6-10 with all the requirements of this Act, with a principal of the 6-11 company being the qualifying party meeting all the requirements of 6-12 this Act. Roofing contractor licenses are of the following three 6-13 classes and entitle the licensee to perform the following services, 6-14 respectively: 6-15 (1) a Class I license entitles the licensee to perform 6-16 commercial and residential roofing services; 6-17 (2) a Class II license entitles the licensee to 6-18 perform only commercial roofing services; and 6-19 (3) a Class III license entitles the licensee to 6-20 perform only residential roofing services. 6-21 (b) The commissioner shall prescribe separate examinations 6-22 for each class of license. For Class I licenses, the commissioner 6-23 shall prescribe separate examinations for commercial and 6-24 residential services. 6-25 (c) The qualifying party that applies for a roofing 6-26 contractor license must be at least 18 years old and must present 6-27 to the commissioner satisfactory evidence of at least 36 months of 7-1 practical experience in the preceding five years. 7-2 (d) The application must be made on a form prescribed by the 7-3 commissioner and must specify the class of license the applicant 7-4 seeks. The application must be sworn to and verified and must be 7-5 accompanied by: 7-6 (1) evidence of the insurance coverage required under 7-7 this Act; 7-8 (2) a statement of the applicant's practical 7-9 experience; and 7-10 (3) the examination fee. 7-11 (e) The commissioner shall issue a roofing contractor 7-12 license to a company which has a qualifying party who possesses the 7-13 required qualifications, passes the appropriate examinations, and 7-14 pays the examination fee and the original license fee required by 7-15 this Act. An applicant who fails an examination is eligible for 7-16 reexamination. 7-17 (f) A license issued under this Act is valid for a one-year 7-18 period from the date of issuance. 7-19 (g) With the advice of the advisory board, the commissioner 7-20 shall adopt rules relating to the use, display, and advertisement 7-21 of a licensee's license. 7-22 SECTION 7. NOTICE OF EXAMINATION RESULTS. (a) Not later 7-23 than the 45th day after the date on which an examination is 7-24 administered under this Act, the commissioner shall notify each 7-25 examinee of the results of the examination. However, if an 7-26 examination is graded or reviewed by a national testing service, 7-27 the commissioner shall notify examinees of the results of the 8-1 examination not later than the 14th day after the date on which the 8-2 commissioner receives the results from the testing service. 8-3 (b) If requested in writing by a person who fails the 8-4 examination, the commissioner shall furnish the person with the 8-5 results of the person's performance on the examination. 8-6 SECTION 8. INSURANCE REQUIREMENT. (a) A licensed 8-7 contractor shall maintain general liability insurance coverage in 8-8 the following amounts: 8-9 (1) for a Class I license, $250,000 per occurrence, 8-10 with a minimum total aggregate of $500,000; 8-11 (2) for a Class II license, $250,000 per occurrence, 8-12 with a minimum total aggregate of $500,000; and 8-13 (3) for a Class III license, $100,000 minimum total 8-14 aggregate. 8-15 (b) Insurance must be obtained from an admitted company or 8-16 an eligible surplus lines insurer, as defined in Article 1.14-2, 8-17 Insurance Code. 8-18 (c) A license applicant or holder shall furnish to the 8-19 commission a certificate of insurance. The license holder's name, 8-20 business name, and address must be shown as it appears on the 8-21 license. The certificate form to be submitted shall be the form 8-22 furnished by the commission. Each certificate of insurance shall 8-23 reflect all assumed names used by the license holder and registered 8-24 with this agency. Neither binders nor interim certificates of less 8-25 than 60 days will be accepted. 8-26 (d) The certificate of insurance shall state that the 8-27 insurance carrier shall notify the commission not later than the 9-1 30th day before the cancellation or nonrenewal by the insurance 9-2 carrier and not later than the 10th day following nonrenewal or 9-3 cancellation by the insured. 9-4 (e) A license holder whose proof of insurance expires shall 9-5 be notified by the commission that the holder has an insurance 9-6 violation. Failure to furnish the required proof shall be grounds 9-7 for revocation of the license in accordance with Article 9100, 9-8 Revised Statutes. 9-9 (f) A surety bond shall be posted with the commission by 9-10 each licensee in the following amounts: 9-11 (1) $35,000 for a Class I license; 9-12 (2) $25,000 for a Class II license; and 9-13 (3) $10,000 for a Class III license. 9-14 SECTION 9. CONTINUING EDUCATION PROGRAMS. The commissioner 9-15 shall recognize, prepare, or administer continuing education 9-16 programs for licensees. The Roofing Contractors Association of 9-17 Texas shall be an education provider and shall be the approval 9-18 agent of continuing education credits in these programs. 9-19 Participation in the programs is mandatory. Each licensee shall be 9-20 required to complete eight hours of continuing education per 9-21 license year. 9-22 SECTION 10. LICENSE BY RECIPROCITY. The commissioner may 9-23 waive any license requirement for an applicant or for the 9-24 qualifying party of an applicant with a valid license from another 9-25 state with which this state has a reciprocity agreement. A 9-26 reciprocity agreement with another state may only be recognized 9-27 under this section if the other state has licensing requirements 10-1 that the commissioner determines are substantially equivalent to 10-2 the requirements of this Act. The commissioner may not waive a 10-3 license requirement under this section for an applicant or 10-4 qualifying party of an applicant that does not maintain insurance 10-5 coverage and does not post a surety bond of the same type and 10-6 amount as required by Section 8 of this Act. The insurance 10-7 coverage and surety bond must apply to work performed in this 10-8 state. 10-9 SECTION 11. TEMPORARY LICENSE. (a) In the event the 10-10 qualifying party becomes incapacitated and unable to serve in the 10-11 normal capacity of principal of a company or is no longer available 10-12 due to the dissolution of a partnership or corporation, a temporary 10-13 license may be issued to another principal of the company, who then 10-14 becomes the qualifying party for a period extending 30 days beyond 10-15 the date of the next examination, not to exceed six months. The 10-16 temporary license is not renewable, but a second temporary license 10-17 may be issued if the company's qualifying party becomes unavailable 10-18 in circumstances that make the company again eligible to receive a 10-19 temporary license. The temporary license shall be of the same 10-20 class and endorsement as the license being replaced. 10-21 (b) The commissioner may issue a temporary license under the 10-22 conditions provided by Subsection (a) of this section to an 10-23 applicant who applies to the commissioner on a form prescribed by 10-24 the commissioner and pays the required fees. 10-25 SECTION 12. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE. 10-26 (a) A violation of this Act or a rule adopted under this Act is a 10-27 ground for the denial, suspension, or revocation of a license 11-1 issued under this Act as well as a ground for the imposition of 11-2 administrative penalties as provided by Article 9100, Revised 11-3 Statutes. The failure to provide proper installation consistent 11-4 with the manufacturer's specifications or consistent with commonly 11-5 accepted roofing practices, proper service, and mechanical 11-6 integrity under this Act constitutes a violation of this Act. An 11-7 intentional or knowing misrepresentation of necessary services, 11-8 services to be provided, or services that have been provided 11-9 constitutes a violation of this Act and a ground for the suspension 11-10 or revocation of a license issued under this Act. 11-11 (b) Proceedings for the denial, suspension, or revocation of 11-12 a license and appeals from those proceedings are governed by 11-13 Chapter 2001, Government Code. The imposition of administrative 11-14 penalties is governed by Article 9100, Revised Statutes. 11-15 SECTION 13. CONSUMER COMPLAINT INVESTIGATION. (a) The 11-16 commissioner shall prepare information of consumer interest 11-17 describing the functions performed by the commissioner under this 11-18 Act and the rights of consumers as affected by this Act. The 11-19 information must describe the procedure by which a consumer 11-20 complaint is filed with and resolved by the commissioner. The 11-21 commissioner shall make the information available to the general 11-22 public. 11-23 (b) The commissioner shall investigate consumer complaints 11-24 filed with the commissioner. If the commissioner determines after 11-25 investigation that a licensee has violated this Act or a rule 11-26 adopted under this Act, the commissioner may take appropriate 11-27 action under Section 12 of this Act. 12-1 SECTION 14. EXEMPTIONS. (a) This Act does not apply: 12-2 (1) to a person who performs roofing contracting on 12-3 property owned by the person; 12-4 (2) to a person or firm that is licensed and regulated 12-5 as a manufacturer, rebuilder, retailer, or installer under the 12-6 Texas Manufactured Housing Standards Act (Article 5221f, Vernon's 12-7 Texas Civil Statutes), and that engages in roofing contracting for 12-8 manufactured homes or in providing retailer or manufacturer 12-9 warranty services free of charge; 12-10 (3) to new residential construction of single-family 12-11 homes, duplexes, or quadplexes; 12-12 (4) to a person who performs roofing contracting if: 12-13 (A) the person is a maintenance person or 12-14 maintenance engineer who is a regular bona fide employee of the 12-15 property owner, the property lessee, or the management company 12-16 managing the property where the roofing contracting work is being 12-17 performed; 12-18 (B) the work is performed in connection with the 12-19 business in which the person is employed; and 12-20 (C) the person and the person's employee 12-21 referred to in Paragraph (A) of this subdivision do not engage in 12-22 the occupation of roofing contracting for the general public; 12-23 (5) to a person who performs roofing contracting on a 12-24 dwelling owned by a member of the person's family; 12-25 (6) to roofing contracting that is performed on 12-26 property that is primarily for agricultural use; 12-27 (7) to roofing contracting that is performed on 13-1 property that is a portable building or a garage that is not 13-2 connected to a dwelling; or 13-3 (8) to a person who holds a license or other 13-4 credential under the laws of this state who performs roofing 13-5 contracting that is incidental to work performed by the person in 13-6 the ordinary scope of the person's work under the license or 13-7 credential. 13-8 (b) This Act shall in no way restrict the practice of 13-9 architecture or engineering by persons duly licensed in Texas to 13-10 practice these professions. This Act does not affect any provision 13-11 or requirement of Chapter 478, Acts of the 45th Legislature, 13-12 Regular Session, 1937 (Article 249a, Vernon's Texas Civil 13-13 Statutes), or The Texas Engineering Practice Act (Article 3271a, 13-14 Vernon's Texas Civil Statutes). 13-15 SECTION 15. ENFORCEMENT OF CONTRACTS. (a) A person who 13-16 performs roofing contracting without holding the appropriate 13-17 license under this Act may not collect a fee or otherwise enforce a 13-18 contract for the services performed. To enforce a contract for the 13-19 performance of roofing contracting, the person performing the 13-20 services must present proof that the person or the person's company 13-21 held a license under this Act at the time the contract was signed 13-22 and the work is performed. 13-23 (b) The commissioner shall adopt rules relating to the 13-24 manner in which proof may be presented under this section. 13-25 SECTION 16. OFFENSE; PENALTY. Except as provided in Section 13-26 18 of this Act, a person commits an offense if the person is a 13-27 qualifying party and knowingly or intentionally engages in roofing 14-1 contracting without a license issued under this Act. An offense 14-2 under this section is a Class C misdemeanor. 14-3 SECTION 17. CERTAIN ADVERTISING PROHIBITED. A person may 14-4 not advertise to the public that the person is engaged in the 14-5 business of roofing contracting unless the person holds a license 14-6 issued under this Act. A violation of this section constitutes 14-7 engaging in roofing contracting without a license for purposes of 14-8 Section 16 of this Act. 14-9 SECTION 18. MUNICIPAL REGULATION. A municipality may by 14-10 ordinance adopt and enforce standards for roofing contractors that 14-11 are consistent with the standards established under this Act. A 14-12 municipality may not impose a licensing or registration fee on a 14-13 roofing contractor licensed under this Act. The municipality may 14-14 report a violation of this Act to the commission. If the 14-15 municipality elects to report the violation, it shall do so not 14-16 later than the 10th day after the date on which it discovers the 14-17 violation of this Act. Conviction of an offense under the 14-18 municipal ordinance is a ground for the denial, suspension, or 14-19 revocation of a license issued under this Act. 14-20 SECTION 19. EXEMPTION FROM EXAMINATION FOR CERTIFIED 14-21 CONTRACTORS. (a) A person who is a certified roofing contractor 14-22 in good standing as tested and approved by the Roofing Contractors 14-23 Association of Texas on the effective date of this Act is entitled 14-24 or, if the person is a qualifying party of a company, the person's 14-25 company is entitled to receive a license without examination if the 14-26 contractor applies to the commissioner for the license not later 14-27 than September 1, 1998, and: 15-1 (1) registers with the commission and pays the 15-2 required licensing fee; 15-3 (2) shows evidence of insurance coverage required 15-4 under Section 8 of this Act; and 15-5 (3) submits a copy of the contractor's certification 15-6 that has been attested to by the president and the executive 15-7 director of the Roofing Contractors Association of Texas. 15-8 (b) The class of a license issued under this section shall 15-9 be based on the classification of certification that is currently 15-10 held by the contractor and shall correspond as follows: 15-11 (1) a certified commercial and residential roofing 15-12 contractor shall receive a Class I license; 15-13 (2) a certified commercial roofing contractor shall 15-14 receive a Class II license; and 15-15 (3) a certified residential roofing contractor shall 15-16 receive a Class III license. 15-17 (c) A roofing contractor who is issued a license under this 15-18 section is subject to all other provisions of this Act, including 15-19 provisions for the renewal of the roofing contractor license. 15-20 SECTION 20. TERMS OF INITIAL BOARD MEMBERS. In making the 15-21 initial appointments to the advisory board, the commissioner shall 15-22 designate two members for terms expiring on February 1, 1999, two 15-23 members for terms expiring on February 1, 2001, and two members for 15-24 terms expiring on February 1, 2003. 15-25 SECTION 21. EFFECTIVE DATE. (a) Except as provided by 15-26 Subsection (b) of this section, this Act takes effect September 1, 15-27 1997. 16-1 (b) Sections 5 and 16 of this Act take effect September 1, 16-2 1998. 16-3 SECTION 22. EMERGENCY. The importance of this legislation 16-4 and the crowded condition of the calendars in both houses create an 16-5 emergency and an imperative public necessity that the 16-6 constitutional rule requiring bills to be read on three several 16-7 days in each house be suspended, and this rule is hereby suspended.