HB3715sam002 93RD GENERAL ASSEMBLY

Sen. Emil Jones Jr.

Filed: 5/17/2004

09300HB3715sam002 LRB093 09844 AMC 51064 a

AMENDMENT TO HOUSE BILL 3715

AMENDMENT NO. ______. Amend House Bill 3715 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Painting, Drywall Finishing, and Glazing Contractor Licensing Act.

Section 5. Definitions. For the purposes of this Act:

"Board" means the Painting, Drywall Finishing, and Glazing Contractor Licensing Board.

"Contractor" means a person who manages the daily activities of a painting, drywall finishing, or glazing business, including field supervision.

"Department" means the Department of Professional Regulation.

"Director" means the Director of Professional Regulation.

"Drywall finishing" includes the taping, surfacing, and finishing of drywall.

"Foreman" means a person who has the knowledge and skill of a journeyman and directly supervises physical painting, drywall finishing, or glazing.

"Glazing" means setting glass in window frames.

"Journeyman" means a person who has completed an apprenticeship program approved by the Department or is an experienced worker, not a trainee, and is fully qualified and able to perform painting, drywall finishing, or glazing without supervision.

"Paint" consists of vehicle, pigment, binder, and dryers.

"Painting" means the application of paint.

"Person" means an individual, partnership, corporation, business trust, limited liability company, or other legal entity.

Section 10. Licensure requirement.

(a) Beginning January 1, 2006, a person may not act as a contractor on a project in which the total cost (labor and materials) of one or more of the contractor's contracts is $500 or more without being licensed under this Act.

(b) Beginning January 1, 2006, a contractor must be licensed before submitting bids.

Section 12. Exemptions.

(a) This Act does not apply to the following specific areas of the trade:

(1) Scraping, sweeping, and general clean-up of steel beams during bridge construction prior to painting.

(2) Power washing and sandblasting work prior to priming and painting.

(3) Lead-based paint removal.

(4) Taping compound (mud) clean-up from floors.

(5) Plastic or cardboard covering and empty cans clean-up.

(6) Removal of old paint from roadways and direct traffic.

(b) This Act does not apply to the performance of painting, drywall finishing, or glazing of any property owned or operated by a public utility, a public utility affiliate, a telecommunications carrier or its affiliate, an electric cooperative as defined in Section 3.4 of the Electric Supplier Act, a telephone cooperative as defined in Section 13-212 of the Public Utilities Act, a utility owned and operated by a municipal corporation or unit of local government, or a company that generates electricity.

(c) This Act does not apply to electrical contractors, utility workers, or their employees performing painting of brackets, fixtures, electrical equipment, transmission towers, traffic signal or lighting poles, welds, or other miscellaneous equipment that is deemed necessary to complete the electrical maintenance or installation.

(d) This Act does not apply to licensed plumbers, sprinkler fitters, and pipefitters performing work in plumbing, pipefitting, heating, irrigation, ventilation, air conditioning, refrigeration (HVACR) systems, instrumentation, and stress relieving.

(e) This Act does not apply to a manufacturer as part of ongoing maintenance on property owned or leased by such manufacturer.

(f) The provisions of this Act do not apply to painting, drywall finishing, or glazing supplies or services sold or provided by employees or agents of a business entity primarily engaged in the retail sale of consumer products.

(g) This Act does not apply to the performance of painting, drywall finishing, or glazing of any property owned or operated by a water or wastewater system that serves a municipality with a population of 10,000 citizens or less or any size rural water or wastewater system.

(h) This Act does not apply to individuals performing custodial and maintenance work whose job duties also include drywall repair and related drywall taping, spot painting, and minor glazing repair work.

(i) This Act does not apply to the painting of roadway surfaces.

(j) This Act does not apply to overall interior and exterior demolition.

(k) Nothing in this Act shall be construed to require a person who performs painting, drywall finishing, or glazing on his or her own property to be licensed under this Act.

(l) Nothing in this Act shall be construed to require a person who performs painting, drywall finishing, or glazing work on his or her employer's property to be licensed under this Act where there exists an employer-employee relationship.

Section 15. Powers and duties of the Department. The Department may exercise the following powers and duties subject to the provisions of this Act:

(1) To prescribe forms of application for licensure.

(2) To pass upon the qualifications of applicants for licensure and issue licenses to those found to be fit and qualified.

(3) To conduct hearings on proceedings to revoke, suspend, or otherwise discipline or to refuse to issue or renew licenses.

(4) To adopt rules when required for the administration and enforcement of this Act.

Section 20. Application for original licensure.

(a) To obtain an original license, an applicant shall submit an application in writing to the Department on a form containing the information prescribed by the Department and accompanied by the required application fee, which shall not be refundable. An application shall require information that in the judgment of the Department will enable the Department to pass on the qualifications of the applicant for a license.

(b) An applicant for a license must submit satisfactory evidence that he or she:

(1) has obtained public liability and property damage insurance in such amounts and under such circumstances as may be determined by the Department;

(2) has obtained workers' compensation insurance covering his or her employees or is approved as a self-insurer of workers' compensation in accordance with Illinois law;

(3) has an Illinois Unemployment Insurance identification number or has proof of application to the Illinois Department of Labor for such an identification number; and

(4) has submitted a bond to the Department in the amount of $10,000.

(c) It is the responsibility of the licensee to provide to the Department notice in writing of any changes in the information required to be provided on the application.

Section 23. Business as an individual; application as legal entity.

(a) When an individual proposes to do business in his or her own name, licensure, when granted, shall be issued only to that individual.

(b) If the applicant is proposing to qualify a partnership, corporation, business trust, or other legal entity, application shall be made for each such entity and shall state the name of the partnership and of its partners, the name of the corporation and of its officers and directors, the name of business trust and its trustees, or the name of such other legal entity and its members, and the use of fictitious names, if a fictitious name is used. The application shall also show that the person applying for the certification is legally qualified to act for the business organization in all matters connected with its contracting business and that he or she has authority to supervise painting, drywall finishing, and glazing operations.

Section 27. License number on contracts and bids.

(a) Each contractor shall affix his or her license number to all his or her contracts and bids. In addition, the official issuing building permits shall affix the contractor's license number to each application for a building permit and on each building permit issued and recorded.

(b) Every contractor shall affix his or her license number and name on all vehicles used as part of his or her business as a contractor.

(c) Every holder of a license shall display it in a conspicuous place in his or her principal office, place of business, or employment.

Section 30. Qualifications for a license as a contractor.

(a) To qualify for a license as a contractor, a person shall have at least 48 months of practical experience as defined by rule.

(b) The Department may credit training, apprenticeship, or education in lieu of the 48 months of practical experience as follows:

(1) a maximum of one and one-half years upon submission of a certificate of completion from a U.S. D.O.L. Bureau of Apprenticeship and Training accredited school for painting, drywall finishing, or glazing completed in not less than 12 months; or

(2) a maximum of 2 years upon submission of transcripts of one of the following:

(A) a 4-year degree from an accredited college or university in the fields of accounting, business, economics, mathematics, physics, or areas;

(B) a professional degree in law; or

(C) substantial college or university course work in accounting, architecture, business, construction technology, drafting, economics, engineering, mathematics, or physics; or

(3) a maximum of 3 years upon submission of:

(A) a Certificate of Completion of Apprenticeship from an U.S. D.O.L. Bureau of Apprenticeship and Training accredited apprenticeship program or a certified statement of a completion of apprenticeship training from the International Union of Painters and Allied Trades; or

(B) transcripts for a 4-year degree from an accredited college or university in architecture, construction technology, or any field of engineering that is directly related to painting, drywall finishing, or glazing.

(c) Applicants have 3 years from the date of application to complete the application process. If the application has not been completed within 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.

Section 33. Bond. Before issuing or renewing a license, the Department shall require each applicant or licensee to file and maintain in force a surety bond in the amount specified in paragraph (4) of subsection (b) of Section 20, issued by an insurance company authorized to transact fidelity and surety business in the State of Illinois. The bond shall be continuous in form, unless terminated by the insurance company. An insurance company may terminate a bond and avoid further liability by filing a 60-day notice of termination with the Department and, at the same time, sending the notice to the contractor. A license shall be cancelled without hearing on the termination date of the contractor's bond, unless a new bond is filed with the Department to become effective at the termination date of the prior bond. If a license has been cancelled without hearing under this Section, the license shall be reinstated upon showing proof of compliance with this Act.

Section 35. Expiration of license.

(1) A license shall expire 2 years from the last day of the month in which it was issued.

(2) Failure to renew the license prior to the expiration thereof shall cause the license to become nonrenewed and it shall be unlawful thereafter for the licensee to engage or offer to engage in painting, drywall finishing, or glazing contracting business under the license unless and until the license is restored or reissued as defined by rule.

Section 40. Public records.

(1) All information required by the Department of any applicant for licensure shall be a public record, except financial information.

(2) If a licensee changes his or her name style, address, or employment from that which appears on his or her current license, he or she shall notify the Department of the change within 30 days after it occurs.

(3) All public records of the Department, when duly certified by the Director, shall be received as prima facie evidence in any State administrative or judicial proceedings.

Section 45. Grounds for disciplinary action. The Department may refuse to issue or to renew or may revoke, suspend, place on probation, reprimand, or take other disciplinary action as the Department may deem proper, including fines not to exceed $1,000 for each violation, with regard to any license for any one or combination of the following causes:

(a) violation of this Act or its rules;

(b) conviction of any crime under the laws of any U.S. jurisdiction which is a felony or which is a misdemeanor, an essential element of which is dishonesty, or of any crime which directly relates to the practice of the profession;

(c) making any misrepresentation for the purpose of obtaining a license;

(d) professional incompetence or gross negligence in the practice of painting, drywall finishing, or glazing contracting;

(e) gross malpractice, prima facie evidence of which may be a conviction or judgment of malpractice in any court of competent jurisdiction;

(f) aiding or assisting another person in violating any provision of this Act or rules;

(g) failing, within 60 days, to provide information in response to a written request made by the Department which has been sent by certified or registered mail to the licensee's last known address;

(h) engaging in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public;

(i) habitual or excessive use or addiction to alcohol, narcotics, stimulants, or any other chemical agent or drug that results in the inability to practice with reasonable judgment, skill, or safety;

(j) discipline by another U.S. jurisdiction or foreign nation, if at least one of the grounds for the discipline is the same or substantially equivalent to those set forth in this Section;

(k) 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 services not actually or personally rendered;

(l) a finding by the Department that the licensee, after having his or her license placed on probationary status, has violated the terms of probation;

(m) conviction by any court of competent jurisdiction, either within or without this State, of any violation of any law governing the practice of painting, drywall finishing, or glazing contracting, if the Department determines, after investigation, that such person has not been sufficiently rehabilitated to warrant the public trust;

(n) a finding that licensure has been applied for or obtained by fraudulent means;

(o) practicing, attempting to practice, or advertising under a name other than the full name as shown on the license or any other legally authorized name;

(p) gross and willful overcharging for professional services including filing false statements for collection of fees or monies for which services are not rendered;

(q) failure to file a return, or to pay the tax, penalty or interest shown in a filed return, or to pay any final assessment of tax, penalty or interest, as required by any tax Act administered by the Illinois Department of Revenue, until such time as the requirements of any such tax Act are satisfied;

(r) failure to continue to meet the requirements of this Act shall be deemed a violation;

(s) physical or mental disability, including deterioration through the aging process or loss of abilities and skills that result in an inability to practice the profession with reasonable judgment, skill, or safety;

(t) material misstatement in furnishing information to the Department or to any other State agency;

(u) the determination by a court that a licensee is subject to involuntary admission or judicial admission as provided in the Mental Health and Developmental Disabilities Code will result in an automatic suspension of his or her license. The suspension will end upon a finding by a court that the licensee is no longer subject to involuntary admission or judicial admission, the issuance of an order so finding and discharging the patient, and the recommendation of the Board to the Director that the licensee be allowed to resume professional practice;

(v) advertising in any manner that is false, misleading, or deceptive; or

(w) a violation of the Union Employee Health and Benefits Protection Act, the Minimum Wage Law, the Illinois Wage Payment and Collection Act, the Prevailing Wage Act, the One Day Rest in Seven Act, or the Employee Benefit Contribution Act.

The Department shall deny any license or renewal under this Act to any person who has defaulted on an educational loan guaranteed by the Illinois Student Assistance Commission; however, the Department may issue a license or renewal if the person in default has established a satisfactory repayment record as determined by the Illinois Student Assistance Commission.

Section 50. Stenographer; record of proceedings. The Department, at its expense, shall provide a stenographer to take down the testimony and preserve a record of all proceedings initiated pursuant to this Act, the rules for the administration of this Act, or any other Act or rules relating to this Act and proceedings for restoration of any license issued under this Act. The notice of hearing, complaint, answer, and all other documents in the nature of pleadings and written motions and responses filed in the proceedings, the transcript of the testimony, all exhibits admitted into evidence, the report of the hearing officer, the Board's findings of fact, conclusions of law, and recommendations to the Director, and the order shall be the record of the proceedings. The Department shall furnish a transcript of the record to any person interested in the hearing upon payment of the fee required under Section 2105-115 of the Department of Professional Regulation Law (20 ILCS 2105/2105-115).

Section 55. Attendance of witnesses; production of documents; contempt. Any circuit court may, upon application of the Department or its designee or of the applicant or licensee against whom proceedings are pending, enter an order requiring the attendance of witnesses and their 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 60. Subpoenas; oaths. The Department has the power to subpoena and bring before it any person in this State and to take testimony either orally or by deposition or both, or to subpoena documents, exhibits, or other materials with the same fees and mileage and in the same manner as prescribed by law in judicial proceedings in civil cases in circuit courts of this State.

The Director and any member of the Board have power to administer oaths to witnesses at any hearing that the Department or Board is authorized by law to conduct. Further, the Director has power to administer any other oaths required or authorized to be administered by the Department under this Act.

Section 65. Findings of facts, conclusions of law, and recommendations; order. Within 60 days of the Department's receipt of the transcript of any hearing that is conducted pursuant to this Act or the rules for its enforcement or any other statute or rule requiring a hearing under this Act or the rules for its enforcement, or for any hearing related to restoration of any license issued pursuant to this Act, the hearing officer shall submit his or her written findings and recommendations to the Board. The Board shall review the report of the hearing officer and shall present its findings of fact, conclusions of law, and recommendations to the Director by the date of the Board's second meeting following the Board's receipt of the hearing officer's report.

A copy of the findings of fact, conclusions of law, and recommendations to the Director shall be served upon the accused person, either personally or by registered or certified mail. Within 20 days after service, the accused person may present to the Department a written motion for a rehearing, which shall state the particular grounds therefor. If the accused person orders and pays for a transcript pursuant to Section 50, the time elapsing thereafter and before the transcript is ready for delivery to him or her shall not be counted as part of the 20 days.

The Director shall issue an order based on the findings of fact, conclusions of law, and recommendations to the Director. If the Director disagrees in any regard with the findings of fact, conclusions of law, and recommendations to the Director, he may issue an order in contravention of the findings of fact, conclusions of law, and recommendations to the Director.

If the Director issues an order in contravention of the findings of fact, conclusions of law, and recommendations to the Director, the Director shall notify the Board in writing with an explanation for any deviation from the Board's findings of fact, conclusions of law, and recommendations to the Director within 30 days of the Director's entry of the order.

Section 70. Temporary suspension. The Director may temporarily suspend the license of a painting, drywall finishing, or glazing contractor without a hearing, simultaneously with the institution of proceedings for a hearing provided for in this Act, if the Director finds that evidence in his or her possession indicates that continuation in practice would constitute an imminent danger to the public. In the event that the Director temporarily suspends a license without a hearing, a hearing by the Department shall be held within 30 days after such suspension has occurred.

Section 75. Review under Administrative Review Law. All final administrative decisions of the Department are subject to judicial review pursuant to the Administrative Review Law and its rules. The term "administrative decision" is defined as in Section 3-101 of the Code of Civil Procedure.

Section 80. Violations. A violation of this Act is punishable by a $1,000 fine for a first offense and a $2,500 fine for a second offense. A third or subsequent violation of this Act is a Class A misdemeanor.

Section 85. 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. For the purpose of this Act the notice required under Section 10-25 of the Administrative Procedure Act is deemed sufficient when mailed to the last known address of a party.

Section 90. Certification of record; costs. The Department shall not be required to certify any record to the court, to file an answer in court, or to otherwise appear in any court in a judicial review proceeding, unless there is filed in the court, with the complaint, a receipt from the Department acknowledging payment of the costs of furnishing and certifying the record. Failure on the part of the plaintiff to file the receipt in court is grounds for dismissal of the action.

Section 95. Returned checks; fines. Any person who delivers a check or other payment to the Department that is returned to the Department unpaid by the financial institution upon which it is drawn shall pay to the Department, in addition to the amount already owed to the Department, a fine of $50. The fines imposed by this Section are in addition to any other discipline provided under this Act for unlicensed practice or practice on a nonrenewed license. The Department shall notify the person that payment of fees and fines shall be paid to the Department by certified check or money order within 30 calendar days of the notification. If, after the expiration of 30 days from the date of the notification, the person has failed to submit the necessary remittance, the Department shall automatically terminate the license or deny the application, without hearing. If, after termination or denial, the person seeks a license, he or she shall apply to the Department for restoration or issuance of the license and pay all the application fees as set by rule. The Department may establish a fee for the processing of an application for restoration of a license to pay all expenses of processing this application. The Director may waive the fines due under this Section in individual cases where the Director finds that the fines would be unreasonable or unnecessarily burdensome.

Section 100. Hearing officers. The Director has the authority to appoint any attorney duly licensed to practice law in the State of Illinois to serve as the hearing officer for any action for refusal to issue or renew a license, for discipline of a licensee for sanctions for unlicensed practice, for restoration of a license, or for any other action for which findings of fact, conclusions of law, and recommendations are required pursuant to Section 65 of this Act. The hearing officer shall have full authority to conduct the hearing and shall issue his or her findings of fact and recommendations to the Board pursuant to Section 65 of this Act.

Section 105. Investigation; notice; default. The Department may investigate the actions of any applicant or any person or persons holding or claiming to hold a license. The Department shall, before suspending, revoking, placing on probationary status, or taking any other disciplinary action as the Department may deem proper with regard to any license, at least 30 days prior to the date set for the hearing, notify the accused in writing of any charges made and the time and place for a hearing on the charges before the hearing officer, direct him or her to file his written answer with the hearing officer under oath within 30 days after the service on him or her of such notice, and inform him or her that if he or she fails to file such answer default will be taken against him or her and his or her license may be suspended, revoked, placed on probationary status, or other disciplinary action, including limiting the scope, nature or extent of his or her practice, as the Department may deem proper, taken. This written notice may be served by personal delivery or certified or registered mail to the Department. In case the person fails to file an answer after receiving notice, his or her license may, in the discretion of the Department, be suspended, revoked, or placed on probationary status, or the Department may take whatever disciplinary action deemed proper, including limiting the scope, nature, or extent of the person's practice or the imposition of a fine, without a hearing, if the act or acts charged constitute sufficient grounds for such action under this Act. At the time and place fixed in the notice, the Department shall proceed to hear the charges and the parties or their counsel shall be accorded ample opportunity to present such statements, testimony, evidence and argument as may be pertinent to the charges or to their defense. The Department may continue such hearing from time to time. At the discretion of the Director after having first received the recommendation of the hearing officer, the accused person's license may be suspended, revoked, placed on probationary status, or other disciplinary action may be taken as the Director may deem proper, including limiting the scope, nature, or extent of said person's practice without a hearing, if the act or acts charged constitute sufficient grounds for such action under this Act.

Section 110. Enforcement; petition to court.

(a) If any person violates the provisions of this Act, the Director through the Attorney General of Illinois, or the State's Attorney of any county in which a violation is alleged to exist, may in the name of the People of the State of Illinois petition for an order enjoining such violation or for an order enforcing compliance with this Act. Upon the filing of a verified petition in such court, the court may issue a temporary restraining order, without notice or bond, and may preliminarily and permanently enjoin such violation, and if it is established that such person has violated or is violating the injunction, the Court may punish the offender for contempt of court.

(b) If any person shall practice as a licensee or hold himself or herself out as a licensee without being licensed under the provisions of this Act, then any person licensed under this Act, any interested party or any person injured thereby may, in addition to those officers identified in subsection (a) of this Section, petition for relief as provided therein.

(c) Whenever the Department has reason to believe that any person has violated the licensing requirements of this Act by practicing, offering to practice, attempting to practice, or holding himself or herself out to practice painting, drywall finishing, or glazing without being licensed under this Act, the Department may issue a rule to show cause why an order to cease and desist should not be entered against that person. The rule shall clearly set forth the grounds relied upon by the Department and shall provide a period of 7 days from the date of the rule to file an answer to the satisfaction of the Department. Failure to answer to the satisfaction of the Department shall cause an order to cease and desist to be issued immediately. It is not a violation of this Act for a person whose regular job duties are custodial and maintenance work, but who in the normal course of work engages in incidental drywall repair, related drywall taping, spot painting, and minor glazing repair work.

(d) Proceedings under this Section shall be in addition to, and not in lieu of, all other remedies and penalties which may be provided by law.

Section 115. Unlicensed practice; violation; civil penalty.

(a) Any person who practices, offers to practice, attempts to practice, or holds himself or herself out to practice painting, drywall finishing, or glazing without being licensed under this Act shall, in addition to any other penalty provided by law, pay a civil penalty to the Department in an amount not to exceed $5,000 for each offense as determined by the Department. The civil penalty shall be assessed by the Department after a hearing is held in accordance with the provisions set forth in this Act regarding the provision of a hearing for the discipline of a licensee.

(b) The Department has the authority and power to investigate any and all unlicensed activity.

(c) The civil penalty shall be paid within 60 days after the effective date of the order imposing the civil penalty. The order shall constitute a judgment and may be filed and execution had thereon in the same manner as any judgment from any court of record.

Section 120. Deposit of fees. All fees and fines collected under this Act shall be deposited into the General Professions Dedicated Fund and shall be appropriated to the Department for the purpose of administering and enforcing this Act.

Section 125. The Painting, Drywall Finishing, and Glazing Contractor Licensing Board. The Painting, Drywall Finishing, and Glazing Contractor Licensing Board is created and shall consist of 7 persons, one of whom is a knowledgeable public member and 6 of whom have been issued licenses as painting, drywall finishing, and glazing contractors by the Department (for initial appointments, these 6 members must meet the requirements for licensure under this Act). One of the 6 licensed contractors on the Board shall represent a statewide association representing painters. The public member shall not be licensed under this Act or any other Act the Department administers. Each member shall be appointed by the Director. Members shall be appointed who reasonably represent the different geographic areas of the State.

Members of the Painting, Drywall Finishing, and Glazing Contractor Licensing Board shall be immune from suit in any action based upon any disciplinary proceedings or other acts performed in good faith as members of the Board, unless the conduct that gave rise to the suit was willful and wanton misconduct.

The persons appointed shall hold office for 4 years and until a successor is appointed and qualified. Of the members of the Board first appointed, 2 shall be appointed to serve for 2 years, 2 shall be appointed to serve for 3 years, and 3 shall be appointed to serve for 4 years. No member shall serve more than 2 complete 4-year terms.

Within 90 days of a vacancy occurring, the Director shall fill the vacancy for the unexpired portion of the term with an appointee who meets the same qualifications as the person whose position has become vacant. The Board shall meet annually to elect one member as chairman and one member as vice-chairman. No officer shall be elected more than twice in succession to the same office. The members of the Board shall receive reimbursement for actual, necessary, and authorized expenses incurred in attending the meetings of the Board.

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