By: Harris, Armbrister, Lucio S.B. No. 1176
(In the Senate - Filed March 11, 2003; March 19, 2003, read
first time and referred to Committee on Business and Commerce;
May 9, 2003, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 6, Nays 0; May 9, 2003, sent
to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1176 By: Armbrister
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of roofing contractors; providing
penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 7, Occupations Code, is amended by adding
Subtitle D to read as follows:
SUBTITLE D. REGULATION OF CONSTRUCTION OF HOUSING AND BUILDINGS
CHAPTER 1251. ROOFING CONTRACTORS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1251.001. DEFINITIONS. In this chapter:
(1) "Advisory board" means the Roofing Contractors
Advisory Board.
(2) "Commercial roofing" means the exterior roof,
cover, or skin of the roof assembly consisting of membrane, metal
panels, sheets, shingles, tiles, slate, or other materials on any
building or structure other than residential buildings or
structures.
(3) "Commission" means the Texas Commission of
Licensing and Regulation.
(4) "Department" means the Texas Department of
Licensing and Regulation.
(5) "Executive director" means the executive director
of the department.
(6) "Qualifying party" means an individual who
possesses all the necessary qualifications for a license and who is
a principal of a business entity licensed under this chapter.
(7) "Residential roofing" means any material applied
to the exterior roof framing, whether of wood or steel, on a
single-family home, duplex, triplex, or fourplex.
(8) "Roofing contracting" means performing or
offering to perform the installation, construction, maintenance,
service, repair, alteration, or modification of a roofing product
or equipment in roofs.
Sec. 1251.002. EXEMPTIONS. (a) This chapter does not
apply to a person:
(1) while the person performs roofing contracting:
(A) on new residential construction of a
single-family home, duplex, triplex, or fourplex;
(B) under the direct supervision of an individual
license holder;
(C) on property owned by the person and used as
the person's residence;
(D) on a dwelling owned by a member of the
person's family;
(E) on property that is primarily for
agricultural use; or
(F) on property that is a portable building or a
garage that is not connected to a dwelling;
(2) who is registered and regulated as a manufacturer,
retailer, or installer under Chapter 1201 while the person performs
roofing contracting in the building or installation of manufactured
homes or in providing retailer or manufacturer warranty services
free of charge to the consumer;
(3) who is a maintenance engineer while the person
performs roofing contracting as an employee of the property owner,
the property lessee, or the management company managing the
property where the roofing contracting is being performed;
(4) that qualifies for an exemption from federal
income taxation under Section 501(a) of the Internal Revenue Code
of 1986 by being listed as an exempt organization in Section
501(c)(3) of that code; or
(5) who collects less than $250,000 in revenues from
commercial or residential roofing in one calendar year as
determined by the department.
(b) This chapter does not restrict the practice of
architecture or engineering by a person licensed in this state to
practice that profession.
[Sections 1251.003-1251.050 reserved for expansion]
SUBCHAPTER B. DEPARTMENT POWERS AND DUTIES
Sec. 1251.051. ADMINISTRATION; ENFORCEMENT; FEES.
(a) The department shall administer this chapter.
(b) The department may contract with another state agency or
with a political subdivision of the state for the enforcement of
this chapter and the rules adopted and orders issued under this
chapter.
(c) The commission may set fees in amounts reasonable and
necessary to recover the costs of administering this chapter,
including fees for administration of continuing education courses,
examinations, and issuance of licenses, including renewals and
temporary licenses.
Sec. 1251.052. RULES; STANDARDS. (a) The department may
adopt rules to enforce this chapter.
(b) The department shall adopt rules for the practice of
roofing contracting consistent with this chapter. The standards
prescribed by rule must be substantially the same as the standards
set forth in the roofing manufacturers' standard requirements.
Sec. 1251.053. FORMS. The department shall prescribe
application forms for original and renewal licenses and shall
design the licenses.
Sec. 1251.054. ON-LINE DIRECTORY. (a) The department
shall make available on-line a directory of persons licensed under
this chapter.
(b) The department may not charge for access to the on-line
directory.
Sec. 1251.055. CONSUMER COMPLAINT INVESTIGATION. (a) The
department shall investigate consumer complaints filed with the
department. If the department determines after investigation that
a license holder has violated this chapter or a rule adopted under
this chapter, the department may take appropriate action under
Subchapter F.
(b) The department shall maintain a file on each written
complaint filed with the department. The file must include:
(1) the name of the person who filed the complaint;
(2) the date the complaint is received by the
department;
(3) the subject matter of the complaint;
(4) the name of each person contacted in relation to
the complaint;
(5) a summary of the results of the review or
investigation of the complaint; and
(6) an explanation of the reason the file was closed,
if the department closed the file without taking action other than
to investigate the complaint.
(c) The department shall provide to the person filing the
complaint and to each person who is a subject of the complaint a
written summary of the department's policies and procedures
relating to complaint investigation and resolution. The department
shall make the summary available on the department's Internet site.
(d) The department, at least quarterly until final
disposition of the complaint, shall notify the person filing the
complaint and each person who is a subject of the complaint of the
status of the investigation unless the notice would jeopardize an
undercover investigation.
[Sections 1251.056-1251.100 reserved for expansion]
SUBCHAPTER C. ADVISORY BOARD
Sec. 1251.101. ADVISORY BOARD. (a) The Roofing
Contractors Advisory Board is created to advise the department in:
(1) adopting rules;
(2) enforcing and administering this chapter; and
(3) determining the content of examinations.
(b) The advisory board shall advise the commission in
setting fees.
Sec. 1251.102. COMPOSITION. (a) The advisory board is
composed of six members appointed by the presiding officer of the
commission, with the commission's approval.
(b) The executive director or the executive director's
designee shall serve as an ex officio, nonvoting member of the
advisory board.
Sec. 1251.103. APPOINTMENT. The presiding officer of the
commission shall appoint the advisory board members as follows:
(1) three members must be full-time licensed roofing
contractors with at least 10 years' experience in roofing
contracting and must hold the following licenses:
(A) one member must hold a commercial license;
(B) one member must hold a residential license;
and
(C) one member must hold a commercial and a
residential license; and
(2) three members must be public representatives.
Sec. 1251.104. TERM. Members of the advisory board hold
office for staggered terms of six years, with two terms expiring on
February 1 of each odd-numbered year.
Sec. 1251.105. PRESIDING OFFICER. The presiding officer of
the commission, with the commission's approval, shall designate a
member of the advisory board to serve as presiding officer of the
advisory board.
Sec. 1251.106. VACANCIES. If a vacancy occurs on the
advisory board, the presiding officer of the commission, with the
commission's approval, shall appoint a member who represents the
same interests as the former member to serve the unexpired term.
Sec. 1251.107. MEETINGS. The advisory board shall meet at
least once every six months and may meet at other times at the call
of the presiding officer of the commission.
Sec. 1251.108. VOTES. A decision of the advisory board is
not effective unless it receives the affirmative vote of at least a
majority of the members present.
Sec. 1251.109. COMPENSATION NOT ALLOWED. An advisory board
member serves without compensation.
[Sections 1251.110-1251.150 reserved for expansion]
SUBCHAPTER D. LICENSE REQUIREMENTS
Sec. 1251.151. LICENSE REQUIRED; CITATION. (a) Unless
exempted under Section 1251.002, a person may not perform roofing
contracting without a license issued under this chapter.
(b) A business entity that holds a license must have at
least one qualifying party.
(c) The license holder and the license holder's qualifying
party shall comply with the requirements of this chapter.
(d) The commission or a municipal official may issue a
citation to a person who performs roofing contracting without a
license issued under this chapter.
Sec. 1251.152. SCOPE OF LICENSE. A license is valid
throughout this state, and the license holder is not required to
hold a municipal license or certificate to practice roofing
contracting in any municipality in this state.
Sec. 1251.153. ROOFING CONTRACTOR LICENSE CLASSES. Roofing
contractor licenses are as follows:
(1) a Class I license entitles the license holder to
perform commercial and residential roofing services;
(2) a Class II license entitles the license holder to
perform only commercial roofing services; and
(3) a Class III license entitles the license holder to
perform only residential roofing services.
Sec. 1251.154. APPLICATION; ELIGIBILITY. (a) A license
application must be made on a form prescribed by the department and
must specify the class of license the applicant seeks.
(b) To be eligible for a license, the qualifying party must
be at least 18 years old and must present to the department
satisfactory evidence of at least three years of practical
experience in roofing contracting in the previous five years.
(c) The qualifying party's application must be accompanied
by:
(1) a statement of the applicant's practical
experience;
(2) evidence of the insurance coverage required under
this chapter;
(3) the application fee; and
(4) the examination fee.
Sec. 1251.155. EXAMINATIONS. (a) The department shall
prescribe the method and content of examinations administered under
this chapter and shall set compliance requirements for the
examinations. The examination shall be offered at least quarterly
at various locations around the state as determined by the
department.
(b) The department shall prescribe separate examinations
for each class of license. For a Class I license, the department
shall prescribe separate examinations for commercial and
residential services.
(c) The qualifying party must pass the examination before a
license may be issued.
(d) The qualifying party may retake the examination.
Sec. 1251.156. ISSUANCE; TERM. (a) The department shall
issue a license to a person who qualifies for a license under this
chapter.
(b) A license is valid for one year from the date of
issuance.
Sec. 1251.157. RENEWAL; CONTINUING EDUCATION. (a) To
renew a license, a qualifying party of the license holder must:
(1) complete eight hours of continuing education
annually; and
(2) provide proof of maintenance of the insurance
required by this chapter.
(b) The department shall recognize, prepare, or administer
a continuing education program for the qualifying parties of
license holders. The department may recognize a course offered by a
trade association or other providers.
Sec. 1251.158. INSURANCE DISCLOSURE. A license holder who
does not maintain general liability insurance coverage for work
performed under this chapter must disclose that fact to each
customer on a job in writing on a form prescribed by the department.
The customer must sign the disclosure before the license holder may
commence work for that customer.
Sec. 1251.159. USE, DISPLAY, AND ADVERTISEMENT OF LICENSE;
RULES. With the advice of the advisory board, the department shall
adopt rules relating to the use, display, and advertisement of a
license issued under this chapter.
Sec. 1251.160. DISPOSAL OF ROOFING MATERIALS; RULES. The
department shall adopt rules that require a license holder to
obtain a permit from an approved landfill to dispose of roofing
materials. The rules must include a requirement that a license
holder maintain a record for each disposal of roofing materials by
the license holder.
Sec. 1251.161. RECIPROCITY. The department may waive any
prerequisite, except an insurance requirement, to obtaining a
license for an applicant who holds a license issued by another
jurisdiction with which this state has a reciprocity agreement.
The commission may make an agreement, subject to the approval of the
governor, with another state to allow for licensing by reciprocity.
Sec. 1251.162. TEMPORARY LICENSE. (a) The department may
issue a temporary license to a license holder for a principal of a
license holder to serve as that license holder's qualifying party
if the original qualifying party for the license holder:
(1) becomes incapacitated and unable to serve in the
normal capacity of principal of the license holder; or
(2) is no longer available due to the dissolution of a
partnership, corporation, or other legal entity.
(b) The applicant for the temporary license shall apply to
the department on a form prescribed by the department and pay the
required fee.
(c) The temporary license is valid for 60 days beyond the
date of the next examination or six months, whichever is less. The
temporary license must be of the same class as the license being
replaced.
[Sections 1251.163-1251.200 reserved for expansion]
SUBCHAPTER E. PROHIBITED ACTIVITIES
Sec. 1251.201. PROPER ROOFING INSTALLATION REQUIRED.
(a) In this section, "mechanical integrity" means physical
installation of products, systems, or equipment in accordance with
their intended purpose and according to industry standards at least
as strict as the roofing manufacturers' specifications.
(b) The failure to provide proper installation consistent
with the manufacturer's specifications or consistent with commonly
accepted roofing practices, proper service, and mechanical
integrity under this chapter violates this chapter.
Sec. 1251.202. MISREPRESENTATION OF ROOFING CONTRACTING
SERVICES. An intentional or knowing misrepresentation of a
necessary roofing contracting service, roofing contracting service
to be provided, or a roofing contracting service that has been
provided, violates this chapter.
Sec. 1251.203. CERTAIN ADVERTISING PROHIBITED. A person
may not advertise to the public that the person is engaged in the
business of roofing contracting unless the person holds a license
issued under this chapter.
[Sections 1251.204-1251.250 reserved for expansion]
SUBCHAPTER F. PENALTIES AND ENFORCEMENT
Sec. 1251.251. DENIAL, SUSPENSION, OR REVOCATION OF
CERTIFICATE. (a) A violation of this chapter, a rule adopted
under this chapter, or an order issued under this chapter is a
ground for the denial, suspension, or revocation of a license and a
ground for the imposition of an administrative penalty under
Subchapter F, Chapter 51.
(b) The department may place on probation a person whose
license is suspended. If a license suspension is probated, the
department may require the person to:
(1) report regularly to the department on matters that
are the basis of the probation;
(2) limit practice to the areas prescribed by the
department; or
(3) continue or review professional education until
the person or the person's qualifying party attains a degree of
skill satisfactory to the department in those areas that are the
basis of the probation.
Sec. 1251.252. EMERGENCY ORDERS. (a) The department may
issue an emergency order as necessary to enforce this chapter if the
department determines that an emergency exists or formerly existed
requiring immediate temporary action to protect the public health
and safety. The order may be issued without notice and hearing or
with notice and hearing as the department considers practicable
under the circumstances.
(b) If an emergency order is issued under this section
without a hearing, the department shall set the time and place for a
hearing to affirm, modify, or set aside the emergency order.
Sec. 1251.253. CEASE AND DESIST ORDERS. The department may
issue a cease and desist order regarding a violation of this
chapter.
Sec. 1251.254. MUNICIPAL REGULATION. (a) A municipality
may by ordinance adopt and enforce standards for roofing
contractors that are consistent with the standards established
under this chapter.
(b) A municipality may not impose a license or registration
fee on a roofing contractor licensed under this chapter.
(c) The municipality may report a violation of this chapter
to the commission. If the municipality elects to report the
violation, it shall do so not later than the 10th day after the date
on which it discovers the violation.
(d) Conviction of an offense under the municipal ordinance
is a ground for the denial, suspension, or revocation of a license
under Section 1251.251.
Sec. 1251.255. ENFORCEMENT OF CONTRACTS. (a) A person who
performs roofing contracting without holding the appropriate
license may not collect a fee or otherwise enforce a contract for
the roofing service performed. To enforce a contract for the
performance of roofing contracting, the person performing the
service must present proof that the person held a license at the
time the contract was signed and the work was performed.
(b) The department director shall adopt rules relating to
the manner in which proof may be presented under this section.
SECTION 2. (a) The Texas Department of Licensing and
Regulation shall issue a roofing contracting license under
Subchapter D, Chapter 1251, Occupations Code, as added by this Act,
without an examination for the qualifying party, if the qualifying
party:
(1) provides proof satisfactory to the department that
the qualifying party:
(A) has been engaged in the business of roofing
contracting during the five years preceding the date of the license
application; or
(B) is, on the effective date of this Act, a
certified roofing contractor in good standing as tested and
approved by a roofing trade association recognized by the
department;
(2) applies to the executive director of the Texas
Department of Licensing and Regulation not later than July 31,
2004;
(3) pays the required fee; and
(4) submits a copy of the contractor's certification
that has been attested to by the trade association.
(b) The class of a license issued under this section is
based on the classification of certification that is currently held
by the contractor and must correspond as follows:
(1) a certified commercial and residential roofing
contractor shall receive a Class I license;
(2) a certified commercial roofing contractor shall
receive a Class II license; and
(3) a certified residential roofing contractor shall
receive a Class III license.
(c) A person who is issued a license under this section and
the qualifying party for that license holder are subject to all
other provisions of Chapter 1251, Occupations Code, as added by
this Act, including provisions for the renewal of the roofing
contractor license.
SECTION 3. In making the initial appointments to the
Roofing Contractors Advisory Board, the presiding officer of the
Texas Commission of Licensing and Regulation, with the approval of
the commission, shall designate two members for terms expiring on
February 1, 2005, two members for terms expiring on February 1,
2007, and two members for terms expiring on February 1, 2009. An
initial board member appointed under Subdivision (1), Section
1251.103, Occupations Code, as added by this Act, is not required to
hold a license until September 1, 2004, but must be eligible to hold
a license under Chapter 1251, Occupations Code, as added by this
Act, as of the time of the initial appointment.
SECTION 4. (a) Except as provided by Subsection (b) of this
section, this Act takes effect September 1, 2003.
(b) Section 1251.151 and Subchapters E and F, Chapter 1251,
Occupations Code, as added by this Act, take effect September 1,
2004.
* * * * *