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.