HB2538ham002 102ND GENERAL ASSEMBLY

Rep. Denyse Wang Stoneback

Filed: 2/24/2022

10200HB2538ham002 LRB102 14077 AMQ 36836 a

AMENDMENT TO HOUSE BILL 2538

AMENDMENT NO. ______. Amend House Bill 2538, AS AMENDED, by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the General Contractors Licensing Act.

Section 5. Legislative intent. The intent of the General Assembly in enacting this Act is to evaluate the competency of persons engaged in general contracting and to license and regulate those persons for the protection of the public.

Section 10. Definitions. As used in this Act:

"Address of record" means the designated address recorded by the Department in the applicant's application file or licensee's licensure file as maintained by the Department.

"Board" means the General Contractor Board.

"Department" means the Department of Financial and Professional Regulation.

"Email address of record" means the designated email address of record by the Department in the applicant's application file or licensee's licensure file as maintained by the Department.

"General contracting" means: (i) any activity requiring a license under this Act; (ii) any conduct regulated by this Act; (iii) any activity requiring a county or municipal building permit; or (iv) any duty or other requirement imposed by this Act.

"General contractor" means any person who, as an investment or for compensation or with the intent to sell or to lease: (i) arranges or submits a bid or offers to undertake or purports to have the capacity to undertake or undertakes, through oneself or others, to erect, construct, alter, repair, move, install, replace, convert, remodel, rehabilitate, modernize, improve, or make additions to any building or to any appurtenance thereto attached to real estate and located on the same lot as the building, including, but not limited to, driveways, swimming pools, porches, decks, garages, fences, fallout shelters, and other accessory objects or uses; (ii) retains for oneself control over the means, method, and manner of accomplishing the desired result; and (iii) whose business operations, in whole or in part, require the hiring or supervision of one or more persons from any building trade or craft, including, but not limited to, plumbing, masonry, electrical, heating, air conditioning, or carpentry. "General contractor" includes developers of conversion condominiums as defined in the Condominium Property Act. "General contractor" does not include a person or business that only engages in a specific building trade or craft or a combination of specific building trades or crafts, such as an electrician, plumbing, or heating and air conditioning business, provides services directly to consumers, does not subcontract any work, and is not otherwise engaged in construction or remodeling of any structure. "General contractor" does not include a homeowner performing work on the homeowner's primary residence or a landscape architect.

"Licensee" means any person licensed under this Act.

"Secretary" means the Secretary of Financial and Professional Regulation or the Secretary's designee, including, but not limited to, the Director of Professional Regulation.

Section 15. Title.

(a) No person shall use the title "general contractor" without being so licensed by the Department.

(b) Nothing in this Act shall be construed as preventing or restricting the offering, advertising, or providing of services defined as general contracting under this Act by an individual not licensed under this Act.

Section 20. Display of license. Every holder of a general contractor license shall display a copy of the licensee's license in a conspicuous place in the licensee's principal office or place of business and at each site at which the licensee is engaged in general contracting.

Section 25. Address of record; email address of record. All applicants and licensees shall:

(1) provide a valid address and email address to the Department, which shall serve as the address of record and email address of record, respectively, at the time of application for licensure or renewal of licensure; and

(2) inform the Department of any change of address of record or email address of record within 14 days after the change either through the Department's website or by contacting the Department.

Section 30. General Contractor Board.

(a) Within 90 days after the effective date of this Act, the Secretary shall appoint a General Contractor Board consisting of 9 members. Seven members shall be licensed general contractors, with initial appointees meeting the qualifications for licensure set forth in this Act as determined by the Department. Of the general contractors, 3 shall be residents of Chicago and 4 shall be residents of other parts of the State. In addition to the 7 general contractors, there shall be 2 public members of the Board. The public members shall be voting members and shall not be licensed under this Act or any other design and construction profession licensing Act that the Department administers.

(b) Board members shall serve 4-year terms, except that in the case of initial appointments, terms shall be staggered as follows: 2 members shall serve for 4 years, 3 members shall serve for 3 years, and 4 members shall serve for 2 years. The Board shall annually elect a chairperson and vice chairperson. All board members must be residents of this State.

(c) Appointments to fill vacancies shall be made in the same manner as initial appointments.

(d) A majority of members of the Board shall constitute a quorum. A quorum is required for Board decisions.

(e) Members of the Board shall serve without compensation, but, at the discretion of the Department, may be reimbursed for expenses incurred in performing their duties.

(f) Board members are not liable for acts, omissions, decisions, or other conduct in connection with the duties of the Board, except those determined to be willful, wanton, or intentional misconduct.

Section 35. Powers and duties of the Board.

(a) The Board shall hold at least one meeting each year, conducted in accordance with the Open Meetings Act.

(b) The Board shall annually elect a chairperson and a vice chairperson who shall be general contractors.

(c) The Department may, at any time, seek the expert advice and knowledge of the Board on any matter relating to the enforcement of this Act, including qualifications of applicants for licensure.

Section 40. Powers and duties of the Department. The Department shall exercise, subject to the provisions of this Act, the following functions, powers, and duties:

(1) Authorize examinations to ascertain the fitness and qualifications of applicants for licensure and pass upon the qualifications and fitness of applicants for licensure by endorsement.

(2) Adopt rules required for the administration of this Act.

(3) Conduct hearings on proceedings to refuse to issue, renew, or restore licensure; to revoke or suspend licensure; or to place on probation or reprimand persons licensed under this Act.

(4) Adopt rules to establish what constitutes an approved general contractor education program.

(5) Issue licenses to those who meet the requirements of this Act.

(6) Conduct investigations related to possible violations of this Act.

Section 45. Application for licensure.

(a) Applications for licensure shall be made to the Department in writing on forms or electronically as prescribed by the Department and shall be accompanied by the required fee, which shall not be refundable. All applications shall contain information that, in the judgment of the Department, enables the Department to pass on the qualifications of the applicant for licensure as a general contractor.

(b) Applicants have 3 years from the date of application to complete the application process. If the process has not been completed in 3 years, the application shall be denied, the fee shall be forfeited, and the applicant must reapply and meet the requirements in effect at the time of reapplication.

(c) Applicants must provide evidence that they have completed at least 12 hours in an approved course in dwelling construction within one year prior to the date of application. The course shall include instruction in at least the following subjects and one or more tests on at least the following:

(1) construction laws;

(2) construction codes;

(3) construction business practices;

(4) prevention of wage theft; and

(5) selection of subcontractors.

Section 50. License classifications.

(a) General contractor licenses shall be divided into classifications depending on the cost of the work as follows:

(1) Class A. The holder of a Class A license is subject to no limitation as to the value of any single contract project.

(2) Class B. The holder of a Class B license is not entitled to engage in the construction of any single contract project of a value in excess of $10,000,000.

(3) Class C. The holder of a Class C license is not entitled to engage in the construction of any single contract project of a value in excess of $5,000,000.

(4) Class D. The holder of a Class D license is not entitled to engage in the construction of any single contract project of a value in excess of $2,000,000.

(5) Class E. The holder of a Class E license is not entitled to engage in the construction of any single contract project of a value in excess of $500,000.

(b) General contractors must be licensed to perform work for a third party on private and commercial structures. Subcontractors working under the supervision of a licensed general contractor are not required to be licensed under this Act.

Section 55. Licensure; renewal; and restoration.

(a) The expiration date and renewal period for each license issued under this Act shall be established by rule. A licensee may renew a license during the 2 months preceding its expiration date by paying the required fee.

(b) A general contractor who has permitted the general contractor's license to expire or has had the license placed on inactive status may have the license restored by making application to the Department and filing proof acceptable to the Department of the general contractor's fitness to have the license restored, including, but not limited to, sworn evidence certifying active lawful practice in another jurisdiction satisfactory to the Department and by paying the required fee as determined by rule.

(c) A licensed general contractor whose license expired while engaged (i) in federal service on active duty with the Armed Forces of the United States or the State Militia called into service or training or (ii) in training or education under the supervision of the United States preliminary to induction into the military service, may have a license restored or reinstated without paying any lapsed reinstatement, renewal, or restoration fees if within 2 years after termination other than by dishonorable discharge of the service, training, or education, the Department is furnished with satisfactory evidence that the licensee has been so engaged in the practice of general contracting and that the service, training, or education has been so terminated.

Section 60. Inactive status.

(a) A person licensed under this Act who notifies the Department in writing on forms or electronically as prescribed by the Department may elect to place the person's license on inactive status and, subject to rules of the Department, shall be excused from payment of renewal fees until the person notifies the Department in writing on forms or electronically as prescribed by the Department of the person's desire to resume active status.

(b) Any licensee whose license is on inactive status shall not use the title "licensed general contractor" or "general contractor" in this State.

(c) Any licensee who uses the title "licensed general contractor" or "general contractor" while the licensee's license is inactive shall be considered to be using the title without a license, which shall be grounds for discipline under this Act.

Section 65. Fees. The fees for the administration and enforcement of this Act, including, but not limited to, fees for original licensure, renewal, and restoration, shall be established by the Department by rule. The fees shall not be refundable.

Section 70. Disposition of funds. All of the fees collected as authorized under this Act shall be deposited into the General Professions Dedicated Fund. The money deposited into the General Professions Dedicated Fund may be used for the expenses of the Department in the administration of this Act. Money from the Fund may also be used for direct and allocable indirect costs related to the public purposes of the Department of Financial and Professional Regulation. Money in the Fund may be transferred to the Professions Indirect Cost Fund as authorized by Section 2105-300 of the Department of Professional Regulation Law.

Section 75. Advertising. Any person licensed under this Act may advertise the availability of professional services in the public media or on the premises where the professional services are rendered so long as the advertising is truthful and not misleading.

Section 80. Insurance. A licensee shall carry and provide proof of a valid liability insurance policy insuring the licensee against bodily injury and property damage arising out of or in connection with general contracting. The Department shall establish the required insurance policy amounts by rule.

Section 85. Listing. The Secretary of State shall maintain and make available to the public a list of licensed general contractors, including license type, company name, address, phone number, license expiration date, primary insurance expiration date, and secondary insurance expiration date, if applicable.

Section 90. Violation; injunction; cease and desist order.

(a) If any person violates this Act, the Secretary may, in the name of the People of the State of Illinois, through the Attorney General or the State's Attorney of any county in which the action is brought, petition for an order enjoining the violation and for an order enforcing compliance with this Act. Upon the filing of a verified petition in court, the court may issue a temporary restraining order, without notice or bond, and may preliminarily and permanently enjoin the violation. If it is established that the person has violated or is violating the injunction, the court may punish the offender for contempt of court. Proceedings under this Section shall be in addition to, and not in lieu of, all other remedies and penalties provided by this Act.

(b) Whoever holds oneself out as a "licensed general contractor", "general contractor", or any other name or designation that would in any way imply that the person is able to use the title "licensed general contractor" or "general contractor" without being licensed under this Act shall be guilty of a Class A misdemeanor, and for each subsequent conviction shall be guilty of a Class 4 felony.

Section 95. Grounds for disciplinary action.

(a) The Department may refuse to issue or to renew a license, or may revoke, suspend, place on probation, reprimand, or take other disciplinary or nondisciplinary action the Department may deem proper, including fines not to exceed $10,000 for each violation, with regard to any license issued under this Act, for any one or combination of the following reasons:

(1) Material misstatement in furnishing information.

(2) Negligent or intentional disregard of this Act or rules adopted under this Act.

(3) Conviction of or plea of guilty or nolo contendere, finding of guilt, jury verdict, or entry of judgment or sentencing, including, but not limited to, convictions, preceding sentences of supervision, conditional discharge, or first offender probation under the laws of any jurisdiction of the United States that is (i) a felony, (ii) a misdemeanor, an essential element of which is dishonesty, or (iii) any crime that is directly related to the practice of general contracting.

(4) Making any misrepresentations for the purpose of obtaining a license.

(5) Professional incompetence or gross negligence in the rendering of general contracting services.

(6) Aiding or assisting another person in violating any provision of this Act or any rules issued pursuant to this Act.

(7) Failing to provide information within 60 days in response to a written request made by the Department.

(8) Engaging in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public.

(9) Habitual or excessive use or abuse of drugs defined by law as controlled substances, alcohol, narcotics, stimulants, or any other substances that results in the inability to practice with reasonable judgment, skill, or safety.

(10) Discipline by another jurisdiction, if at least one of the grounds for the discipline is the same or substantially equivalent to those set forth in this Section.

(11) Directly or indirectly giving to or receiving from any person, firm, corporation, partnership, or association any fee, commission, rebate, or other form of compensation for any professional service not actually rendered.

(12) A finding by the Department that the licensee, after having the license placed on probationary status, has violated or failed to comply with the terms of probation.

(13) A finding by the Department that the licensee has failed to pay a fine imposed by the Department.

(14) Being named as a perpetrator in an indicated report by the Department of Children and Family Services under the Abused and Neglected Child Reporting Act, and upon proof by clear and convincing evidence that the licensee has caused a child to be an abused child or neglected child as defined in the Abused and Neglected Child Reporting Act.

(15) Solicitation of professional services by using false or misleading advertising.

(16) Inability to practice the profession with reasonable judgment, skill, or safety as a result of physical illness, including, but not limited to, deterioration through the aging process, loss of motor skill, mental illness, or disability.

(17) Using or attempting to use an expired, inactive, suspended, or revoked license, or impersonating another licensee.

(b) The Department may refuse to issue or may suspend the license of any person who fails to file a tax return, fails to pay the tax, penalty, or interest showing in a filed tax return, or fails to pay any final assessment of tax, penalty, or interest, as required by any tax Act administered by the Department of Revenue, until the requirements of the tax Act are satisfied.

(c) The entry of a decree by any circuit court establishing that any person holding a license under this Act is a person subject to involuntary admission under the Mental Health and Developmental Disabilities Code shall operate as a suspension of that license. That person may resume using the title "licensed general contractor" or "general contractor" only upon a finding by the Department that the person has been determined to be no longer subject to involuntary admission by the court and meeting the requirements for restoration as required by this Act and its rules.

(d) The Department may temporarily suspend a license if the licensee is found to be engaging in a pattern of substantial code violations as determined by the Department.

(e) If the Department has cause to believe that a licensee is insolvent, including on the basis of public complaints, the Department may review the financial books and records of the licensee.

(f) The Department shall not issue a license to an applicant whose license was revoked for any cause within the preceding 4 years.

Section 100. Investigation; notice and hearing.

(a) The Department may investigate the actions of any applicant or of any person holding or claiming to hold a license under this Act.

(b) The Department shall, before disciplining an applicant or licensee, at least 30 days prior to the date set for the hearing, (i) notify in writing the applicant or licensee of the charges made and the time and place for the hearing on the charges, (ii) direct the applicant or licensee to file a written answer to the charges under oath within 20 days after the service of the notice, and (iii) inform the applicant or licensee that the failure to file a written answer to the charges will result in a default judgment being entered against the applicant or licensee.

(c) Written or electronic notice, and any notice in the subsequent proceeding, may be served by personal delivery, by email, or by mail to the applicant or licensee at the applicant's or licensee's address of record or email address of record.

(d) At the time and place fixed in the notice, the hearing officer appointed by the Secretary shall proceed to hear the charges and the parties or the parties' counsel shall be accorded ample opportunity to present any statement, testimony, evidence, and argument as may be pertinent to the charges or to their defense. The hearing officer may continue the hearing from time to time.

(e) If the applicant or licensee, after receiving the notice, fails to file an answer, the license, in the discretion of the Secretary, may be suspended, revoked, placed on probationary status, or be subject to whatever disciplinary action the Secretary considers proper, including limiting the scope, nature, or extent of the person's practice or imposition of a fine, without hearing, if the act or acts charged constitute sufficient grounds for action under this Act.

Section 105. Record of proceedings.

(a) The Department, at its expense, shall provide a certified shorthand reporter to take down the testimony and preserve a record of all proceedings in which a licensee may have the licensee's license revoked or suspended or in which the licensee may be placed on probationary status, reprimanded, fined, or subjected to other disciplinary action with reference to the license when a disciplinary action is authorized under this Act and rules issued pursuant to this Act. The notice of hearing, complaint, and all other documents in the nature of pleadings and written motions filed in the proceedings, the transcript of the testimony, and the orders of the Department shall be the record of the proceedings. The record may be made available to any person interested in the hearing upon payment of the fee required by Section 2105-115 of the Department of Professional Regulation Law.

(b) The Department may contract for court reporting services, and, if it does so, the Department shall provide the name and contact information for the certified shorthand reporter who transcribed the testimony at a hearing to any person interested, who may obtain a copy of the transcript of any proceedings at a hearing upon payment of the fee specified by the certified shorthand reporter.

Section 110. Compelling testimony. Any court, upon the application of the Department, designated hearing officer, or the applicant or licensee against whom proceedings of this Act are pending, may enter an order requiring the attendance of witnesses and the witnesses' testimony and the production of documents, papers, files, books, and records in connection with any hearing or investigation. The court may compel obedience to its order by proceedings for contempt.

Section 115. Hearing; motion for rehearing.

(a) The hearing officer appointed by the Secretary shall hear evidence in support of the formal charges and evidence produced by the licensee. At the conclusion of the hearing, the hearing officer shall present to the Secretary a written report of the hearing officer's findings of fact, conclusions of law, and recommendations.

(b) At the conclusion of the hearing, a copy of the hearing officer's report shall be served upon the applicant or licensee, either personally or as provided in this Act for the service of the notice of hearing. Within 20 days after such service, the applicant or licensee may present to the Department a motion, in writing, for a rehearing which shall specify the particular grounds for rehearing. The Department may respond to the motion for rehearing within 20 days after its service on the Department. If no motion for rehearing is filed, then upon the expiration of the time specified for filing such a motion, or upon denial of a motion for rehearing, the Secretary may enter an order in accordance with the recommendations of the hearing officer. If the applicant or licensee orders from the reporting service and pays for a transcript of the record within the time for filing a motion for rehearing, the 20-day period within which a motion may be filed shall commence upon delivery of the transcript to the applicant or licensee.

(c) If the Secretary disagrees in any regard with the report of the hearing officer, the Secretary may issue an order contrary to the hearing officer's report.

(d) If the Secretary is not satisfied that substantial justice has been done, the Secretary may order a hearing by the same or another hearing officer.

(e) At any point in any investigation or disciplinary proceeding provided for in this Act, both parties may agree to a negotiated consent order. The consent order shall be final upon signature of the Secretary.

Section 120. Appointment of a hearing officer. The Secretary has the authority to appoint an attorney licensed to practice law in this State to serve as the hearing officer in any action for refusal to issue, restore, or renew a license or to discipline an applicant or licensee. The hearing officer shall have full authority to conduct the hearing.

Section 125. Order or certified copy; prima facie proof. An order or a certified copy thereof, over the seal of the Department and purporting to be signed by the Secretary, shall be prima facie proof that:

(1) the signature is the genuine signature of the Secretary; and

(2) the Secretary is appointed and qualified.

Section 130. Restoration of suspended or revoked license.

(a) At any time after the successful completion of a term of probation, suspension, or revocation of a license under this Act, the Department may restore the license to the licensee unless after an investigation and hearing the Department determines that restoration is not in the public interest.

(b) If the circumstances of suspension or revocation so indicate, the Department may require an examination of the licensee prior to restoring the licensee.

(c) No person whose license has been revoked as authorized in this Act may apply for restoration of that license until the time provided for in the Civil Administrative Code of Illinois.

(d) A license that has been suspended or revoked shall be considered nonrenewed for purposes of restoration, and a restoration of the license from suspension or revocation must comply with the requirements for restoration as set forth in this Act and any rules adopted pursuant to this Act.

Section 135. Surrender of license. Upon the revocation or suspension of any licensure, the licensee shall immediately surrender the licensee's license to the Department. If the licensee fails to do so, the Department has the right to seize the license.

Section 140. Administrative Review Law; venue.

(a) All final administrative decisions of the Department are subject to judicial review under the Administrative Review Law and its rules. "Administrative decision" has the same meaning as in Section 3-101 of the Code of Civil Procedure.

(b) Proceedings for judicial review shall be commenced in the circuit court of the county in which the party applying for review resides, but if the party is not a resident of this State, the venue shall be in Sangamon County.

(c) The Department shall not be required to certify any record to the court, file any answer in court, or to otherwise appear in any court in a judicial review proceeding, unless and until the Department has received from the plaintiff payment of the costs of furnishing and certifying the record, which costs shall be determined by the Department.

(d) The failure on the part of the plaintiff to file a receipt of the plaintiff's payment to the Department as specified in subsection (c) in court shall be grounds for dismissal of the action.

(e) During the pendency and hearing of any and all judicial proceedings incident to a disciplinary action, the sanctions imposed upon the accused by the Department shall remain in full force and effect.

Section 145. Confidentiality. All information collected by the Department in the course of an examination or investigation of a licensee or applicant, including, but not limited to, any complaint against a licensee or applicant filed with the Department and information collected to investigate any complaint, shall be maintained for the confidential use of the Department and shall not be disclosed. The Department may not disclose the information to anyone other than law enforcement officials, other regulatory agencies that have an appropriate regulatory interest as determined by the Secretary, or a party presenting a lawful subpoena to the Department. Information and documents disclosed to a federal, State, county, or local law enforcement agency shall not be disclosed by the agency for any purpose to any other agency or person. A formal complaint filed against a licensee or applicant by the Department or any order issued by the Department against a licensee or applicant shall be a public record, except as otherwise prohibited by law.

Section 150. Illinois Administrative Procedure Act. The Illinois Administrative Procedure Act is hereby expressly adopted and incorporated herein as if all of the provisions of that Act were included in this Act, except that the provision of subsection (d) of Section 10-65 of the Illinois Administrative Procedure Act that provides that at hearings the licensee has the right to show compliance with all lawful requirements for retention, continuation, or renewal of the license is specifically excluded. The Department shall not be required to annually verify email addresses as specified in paragraph (2) of subsection (a) of Section 10-75 of the Illinois Administrative Procedure Act. For the purposes of this Act, the notice required under Section 10-25 of the Illinois Administrative Procedure Act is deemed sufficient when mailed to the address of record or emailed to the email address of record.

Section 900. The Regulatory Sunset Act is amended by changing Section 4.38 as follows:

(5 ILCS 80/4.38)

Sec. 4.38. Acts repealed on January 1, 2028. The following Acts are repealed on January 1, 2028:

The Acupuncture Practice Act.

The Clinical Social Work and Social Work Practice Act.

The Home Medical Equipment and Services Provider License Act.

The General Contractors Licensing Act.

The Illinois Petroleum Education and Marketing Act.

The Illinois Speech-Language Pathology and Audiology Practice Act.

The Interpreter for the Deaf Licensure Act of 2007.

The Nurse Practice Act.

The Nursing Home Administrators Licensing and Disciplinary Act.

The Physician Assistant Practice Act of 1987.

The Podiatric Medical Practice Act of 1987.

(Source: P.A. 100-220, eff. 8-18-17; 100-375, eff. 8-25-17; 100-398, eff. 8-25-17; 100-414, eff. 8-25-17; 100-453, eff. 8-25-17; 100-513, eff. 9-20-17; 100-525, eff. 9-22-17; 100-530, eff. 9-22-17; 100-560, eff. 12-8-17.)

Section 999. Effective date. This Act takes effect upon becoming law.".