HB3779 94TH GENERAL ASSEMBLY

LRB094 09447 AMC 39695 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
HB3779

Introduced 2/25/2005, by Rep. Robert W. Churchill

SYNOPSIS AS INTRODUCED:

New Act
5 ILCS 80/4.26 new

Creates the General Contractor Licensing Act. Provides for the licensure of general contractors by the Department of Financial and Professional Regulation. Provides civil and criminal penalties for violations of the Act. Preempts home rule. Amends the Regulatory Sunset Act to repeal the new Act on January 1, 2016. Effective immediately.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY	FISCAL NOTE ACT MAY APPLY	HOME RULE NOTE ACT MAY APPLY
	HOUSING AFFORDABILITY IMPACT NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning regulation.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

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

Section 5. Definitions. As used in this Act:

"Board" means the General Contractor Licensing Board.

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

"Designated agent" means a person who is designated by a general contracting firm, corporation, partnership, or association that will be responsible for overseeing the performance of general contractor services for that firm, corporation, partnership, or association.

"General contractor" means a person who builds, designs, assembles, or otherwise develops structures, buildings, or other places of dwelling, business, or employment for another person.

"Governmental unit" means a city, village, incorporated town, county, or sanitary or water district.

"Person" means any natural person, firm, corporation, partnership, or association.

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

"Telecommunications carrier" means a telecommunications carrier as defined in the Public Utilities Act.

Section 10. Licensure requirement. On or after January 1, 2006, no person may act as a general contractor on a project in this State without a license issued by the Department under this Act.

Section 15. Exemptions.

(a) This Act does not prohibit a person licensed in this State under any other Act from engaging in the practice for which that person is licensed.

(b) This Act does not apply to a not-for-profit organization that is exempt from taxation under 501(c)(3) of the Internal Revenue Code.

Section 20. General contractor services by municipal corporations or political subdivisions. No governmental unit shall perform general contractor services, unless such services are performed by one or more licensed general contractors, provided that any such governmental unit may contract for general contractor services with any person authorized to perform general contractor services in this State.

Section 25. General Contractors Licensing Board.

(a) There is created an General Contractor Licensing Board, which shall exercise its duties provided in this Act under the supervision of the Department. The Board shall consist of 9 licensed general contractors designated from time to time by the Secretary. In making the appointments to the Board, the Secretary shall consider the recommendations of individuals, firms, or organizations involved in general contracting in this State.

(b) The Board shall aid the Secretary and the Department by:

(1) Preparing subject matter for examinations as provided in this Act.

(2) Suggesting rules to govern examinations and hearings for suspension, revocation, or reinstatement of licenses.

(3) Submitting recommendations to the Secretary from time to time for the efficient administration of this Act.

(4) Grading all tests and examinations for licenses and promptly reporting the results to the Secretary.

(5) Performing such other duties from time to time prescribed by the Secretary.

(c) Each Board member shall be compensated the sum of $50 for each day or part thereof on which he serves on business of the Board and in addition thereto shall be reimbursed for per diem expenses as authorized for State employees.

Section 30. Powers and duties of the Secretary. The Secretary shall have all the following powers and duties:

(1) To prepare forms for application for examination for a general contractor license.

(2) To prepare and issue licenses as provided in this Act.

(3) With the aid of the Board, to adopt rules for examination of applicants for general contractor licenses.

(4) With the aid of the Board, to prepare and give uniform and comprehensive examinations to applicants for a license.

(5) To issue a general contractor license and license renewal to every applicant who has passed the examination and who has paid the required license and renewal fee.

(6) To adopt rules for hearings to deny, suspend, revoke, and reinstate licenses as provided in this Act.

(7) To maintain a current record showing (A) the names and addresses of licensees, (B) the dates of issuance of licenses, (C) the date and substance of the charges set forth in any hearing for denial, suspension, or revocation of any license, (D) the date and substance of the final order issued upon each such hearing, and (E) the date and substance of all petitions for reinstatement of licenses and final orders on such petitions.

Section 35. Examination. The Department shall hold examinations for applicants for general contractor licenses at least once every 3 months in some place in this State.

Section 40. Application for examination.

(a) An applicant for a general contractor license shall file a written application for examination with the Department on a form designated by the Department at least 30 days before the date set by the Department for the examination. In the case of a firm, corporation, partnership, or association, the application must specify the name of a designated agent who will take the examination on behalf of the firm, corporation, partnership, or association.

(b) The application shall be accompanied by the required fee and shall contain the following:

(1) The name, address, and telephone number of the business and (i) the individual, if a sole proprietorship; (ii) the partners, if a firm or partnership; or (iii) officers, if a corporation or association.

(2) An original certificate of insurance documenting that the contractor carries general liability insurance with a minimum of $100,000 per occurrence, bodily injury insurance with a minimum of $300,000 per occurrence, property damage insurance with a minimum of $50,000, and worker's compensation insurance with a minimum $500,000. No registration may be issued in the absence of this certificate. Certificates must be in force at all times for registration to remain valid.

(3) An indemnification bond in the amount of $20,000 or a letter of credit in the same amount for work performed in accordance with this Act and the rules adopted under this Act.

(4) In the case of a firm, corporation, partnership, or association, the name of its designated agent.

(5) Any other information the Department may deem necessary to determine the applicant's qualifications for licensure.

(c) If the application for examination is approved, the Department shall promptly notify the applicant in writing of such approval and of the place and time of the examination. If the application is disapproved, the Department shall promptly notify the applicant in writing of such disapproval, stating the reasons for disapproval.

(d) If an applicant neglects, fails, or refuses to take an examination for license under this Act, the application is denied. However, such applicant may submit a new application for examination, accompanied by the required application fee. Application fees for examination for a general contractor license are not refundable.

Section 45. Issuance of license. The Secretary shall issue a general contractor license to each applicant who successfully passes the examination, or whose designated agent successfully passes the examination, and has paid to the Department the required license fee. Each general contractor license shall be issued in the name of the Department with the seal thereof attached.

Section 50. Licensure by endorsement.

(a) Upon the payment of the required fee, an applicant who is registered or licensed as a general contractor in another state may, without examination, be granted a license by the Department, provided that the Board finds that the requirements for the registration or licensing of general contractors in such other state were, at the date of the registration or license, substantially equal to the requirements then in force in this State, and provided that the same privilege of licensure or registration is accorded by that state to licensed general contractors in the State of Illinois.

(b) A general contractor licensed or registered as a general contractor by another state whose license requirements are substantially equal to the requirements for a general contractor license in Illinois, and that state does not have a reciprocal agreement with the State of Illinois, may apply for and be issued an license under this Act if the applicant successfully passes the examination and pays the required fees.

Section 55. Change in business information. A licensee must notify the Department in advance of any changes in the business structure, name, or location or of the termination of the designated agent listed on the application. Failure to notify the Department of this information is grounds for suspension or revocation of the general contractor license.

Section 60. Duration of license; continuing education; license renewal, reinstatement, or restoration.

(a) All licenses issued under this Act shall expire on April 30 next following date of issuance.

(b) Upon the recommendation of the Board, the Department may require by rule that each general contractor or its designated agents annually complete a minimum number of hours of classroom instruction and provide evidence of attending the classes before receiving a renewal license. A continuing education requirement established by the Department shall not exceed 15 hours per year. In support of these requirements, the Department shall by rule establish curricula for continuing education and requirements for instructors and may certify instructors and training programs and schools for continuing education.

(c) A general contractor license may be renewed for a period of one year upon payment of the required renewal fee and submission of required evidence of successful completion of any required continuing education courses. Application for renewal shall be on forms provided by the Department.

(d) A licensee whose license has been expired for a period of less than 5 years may apply to the Department for reinstatement of his or her license. The Department shall issue the license renewal provided the applicant pays to the Department all lapsed renewal fees, plus the reinstatement fee.

(e) A licensee who has permitted his or her license to expire for more than 5 years may apply, in writing, to the Department for restoration of his or her license. The Department shall restore his or her license provided he or she pays to the Department the required restoration fee and shall successfully pass the examination for a license. The restoration fee includes the applicant's examination fee. Failure by the applicant to successfully pass the examination shall be sufficient grounds for the Department to withhold issuance of the requested restoration of the applicant's license. The applicant may retake the examination in accordance with the provisions of this Act.

(f) The Department shall reinstate a license that expires while a licensee is in the active military service of the United States upon application to the Department by the former licensee within 2 years after termination of such military service, payment of the annual license fee, and submission of evidence of such military service. The license shall be reinstated without examination and without payment of the lapsed renewal fee.

Section 65. Denial, suspension, or revocation of a license. The Secretary, after notice and opportunity for hearing to the applicant, license holder, or registrant, may deny, suspend, or revoke a license or registration in any case in which he or she finds that there has been a substantial failure to comply with the provisions of this Act or the rules adopted pursuant to this Act.

Notice shall be provided by certified mail or by personal service setting forth the particular reasons for the proposed action and fixing a date, not less than 20 days from the date of the mailing or service, within which time the applicant or license holder must request in writing a hearing. Failure to serve upon the Department a request for hearing in writing within the time provided in the notice shall constitute a waiver of the person's right to an administrative hearing.

The hearing shall be conducted by the Secretary or by an individual designated in writing by the Secretary as a hearing officer to conduct the hearing. The Secretary or hearing officer shall give written notice of the time and place of the hearing, by certified mail or personal service, to the applicant, license holder, or registrant at least 10 days prior to the hearing. On the basis of the hearing, or upon default of the applicant, license holder, or registrant, the Secretary shall make a determination specifying his or her findings and conclusions. A copy of the determination shall be sent by certified mail or served personally upon the applicant, license holder, or registrant. The decision of the Secretary shall be final on issues of fact and final in all respects unless judicial review is sought as provided in this Act.

The procedure governing hearings authorized by this Section shall be in accordance with rules promulgated by the Department. A full and complete record shall be kept of all proceedings, including the notice of hearing, complaint, and all other documents in the nature of pleadings, written motions filed in the proceedings, and the report and orders of the Secretary and hearing officer.

The Department at its expense shall provide a court reporter to take testimony. Technical error in the proceedings before the Department or hearing officer or their failure to observe the technical rules of evidence shall not be grounds for the reversal of any administrative decision unless it appears to the court that such error or failure materially affects the rights of any party and results in substantial injustice to them.

The Department or hearing officer, or any parties in an investigation or hearing before the Department, may cause the depositions of witnesses within the State to be taken in the manner prescribed by law for depositions in civil actions in courts of this State, and compel the attendance of witnesses and the production of books, papers, records, or memoranda.

The Department shall not be required to certify any record to the court or file any answer in court or 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. Such cost shall be paid by the party requesting a copy of the record. Failure on the part of the person requesting a copy of the record to pay the cost shall be grounds for dismissal of the action.

Section 70. Grounds for discipline.

(a) The Secretary may deny, revoke, or suspend a license when findings show one or more of the following:

(1) That the licensee or registrant obtained or conspired with others to obtain a license or registration by inducing the issuance thereof in consideration of the payment of money or delivery of any other thing of value or by and through misrepresentation of facts.

(2) That the licensee willfully violated any law of this State or any rule adopted thereunder regulating general contractors.

(3) That the licensee has been guilty of negligence or incompetence in the performance of general contractor services.

(4) That the licensee has loaned or in any manner transferred his or her license to another person.

(b) If a license is suspended or revoked, then the license shall be surrendered to the Department but, if suspended, it shall be returned to the licensee upon the termination of the suspension period.

(c) The Department may refuse to issue or may suspend the license of any person who fails 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 the tax Act are satisfied.

Section 75. Subpoena power. The Secretary or hearing officer shall have power to subpoena to any hearing authorized by this Act any person in this State to give testimony and evidence either orally or by deposition or both. The Secretary or hearing officer may also issue subpoena duces tecum for production of any books and records and other documents for evidence at any authorized hearing under this Act. Witnesses subpoenaed as provided herein shall be paid the same witness fees and mileage as provided for witnesses who are subpoenaed to give testimony in any civil case in a court of this State. The Secretary or hearing officer is hereby empowered to administer oaths or affirmations to witnesses at any hearing authorized by this Act.

Section 80. Attendance of any witness and production of books, papers or documents. Any circuit court upon the application of the Secretary or any party of record to a hearing authorized by this Act may order the attendance of any witness and the production of any books, papers, or documents in this State at any hearing authorized by this Act for the purpose of giving testimony or evidence. Any court thereof as provided in this Section may compel obedience to such order for appearance or production of records by proceedings for contempt.

Section 85. Order or certified copy; prima facie proof. An order of suspension, revocation, or reinstatement of a license, or of dismissal of a complaint or petition, or a certified copy of such an order, 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 duly appointed and qualified.

Section 90. Administrative Review Law. All final administrative decisions of the Secretary hereunder shall be subject to judicial review pursuant to the provisions of the Administrative Review Law, and all amendments and modifications thereof, and the rules adopted pursuant thereto. The term "administrative decision" is defined as in Section 3-101 of the Code of Civil Procedure.

Section 95. Illinois Administrative Procedure Act. The provisions of the Illinois Administrative Procedure Act are hereby expressly adopted and shall apply to all administrative rules and procedures of the Department under this Act, except that Section 5-35 of the Illinois Administrative Procedure Act relating to procedures for rulemaking does not apply to the adoption of any rule required by federal law in connection with which the Department is precluded by law from exercising any discretion.

Section 100. Criminal penalties; injunction.

(1) Except as otherwise provided in subsection (c) of Section 125 of this Act, any person violating any provision of this Act or its rules shall be guilty of a Class B misdemeanor with a fine of $500 for the first offense; and a second or subsequent violation of this Act or its rules shall be guilty of a Class A misdemeanor with a fine of $1,000. Each day of violation constitutes a separate offense. The State's Attorney of the county in which the violation occurred or the Attorney General shall bring such actions in the name of the People of the State of Illinois.

(2) If it is established that the defendant contrary to this Act has been or is performing general contractor services without having been issued a license or under a suspended, revoked, or nonrenewed license, then the court may enter a judgment perpetually enjoining the defendant from further performing general contractor services contrary to this Act. In case of violation of any injunction entered under this Section, the court may summarily try and punish the offender for contempt of court. Such injunction proceedings shall be in addition to, and not in lieu of, all penalties and other remedies provided in this Act.

Section 105. Unlicensed and unregistered practice; violation; civil penalty.

(a) A person who practices, offers to practice, attempts to practice, or holds himself or herself out to practice as a general contractor 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 of 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 person who practices, offers to practice, attempts to practice, or holds himself or herself out to practice as a general contractor without being licensed under this Act.

(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 on the judgment in the same manner as a judgment from a court of record.

Section 110. Fees; deposit of moneys.

(a) The Department shall, by rule, establish a schedule of fees for examination, registration, and licensure sufficient to offset the costs of administration and enforcement of this Act.

(b) All fees and fines collected pursuant to this Act shall be deposited into the General Professions Dedicated Fund for use by the Department in administering and enforcing this Act.

Section 115. Inspections. The Department is authorized and directed to make inspections necessary to determine compliance with this Act and its rules.

Subject to constitutional limitations, the Department, by its representatives, after proper identification, is authorized and shall have the power to enter at reasonable times, upon private and public property for the purpose of inspecting and investigating conditions relating to the enforcement of this Act and its rules.

Section 120. Advertising.

(a) Persons who advertise general contractor services must display a license issued under this Act at their place of business. The number of the license so displayed must also be included on all their vehicles.

(b) No person who provides general contractor services may advertise those services, unless that person includes in the advertisement the license number that is required to be displayed under subsection (a) of this Section. Nothing contained in this subsection (b) requires the publisher of advertising for general contractor services to investigate or verify the accuracy of the license number provided by the advertiser.

(c) Any person who advertises general contractor services (i) who fails to display the license number required by subsection (a) of this Section in all manners required by that subsection, (ii) who fails to provide a publisher with the correct number under subsection (b) of this Section, or (iii) who provides a publisher with a false license number, or any person who allows his or her license number to be displayed or used in order to allow any other person to circumvent any provisions of this Section is guilty of a Class A misdemeanor with a fine of $1,000. Each day that a person fails to display the required license under subsection (a) of this Section and each day that an advertisement runs or each day that a person allows his or her license to be displayed or used in violation of this Section constitutes a separate offense.

In addition to, and not in lieu of, the penalties and remedies provided for in this Section and other provisions of this Act, any person licensed under this Act who violates any provision of this Section shall be subject to suspension or revocation of his or her license under the provisions of this Act.

(c) In addition to, and not in lieu of, the penalties and remedies provided for in this Section and other provisions of this Act, and after notice and an opportunity for hearing, the Department may issue an Order Of Correction to the telecommunications carrier furnishing service to any telephone number contained in a printed advertisement for general contractor services that is found to be in violation of the provisions of this subsection (c). The Order of Correction shall be limited to the telephone number contained in the unlawful advertisement. The Order of Correction shall notify the telecommunications carrier to disconnect the telephone service furnished to any telephone number contained in the unlawful advertisement and that subsequent calls to that number shall not be referred by the telecommunications carrier to any new telephone number obtained by or any existing number registered to the person.

If, upon investigation, the Department has probable cause to believe that a person has placed an advertisement with a telecommunications carrier that contains a false license number or is placed or circulated by a person who is not properly licensed under this Act, the Department shall provide notice to the person of the Department's intent to issue an Order of Correction to the telecommunications carrier to disconnect the telephone service furnished to any telephone number contained in the unlawful advertisement, and that subsequent calls to that number shall not be referred by the telecommunications carrier to any new telephone number obtained by or any existing number registered to the person.

Notice shall be provided by certified mail or by personal service setting forth the particular reasons for the proposed action and fixing a date, not less than 20 days from the date of the mailing or service, within which time the person may request a hearing in writing. Failure to serve upon the Department a written request for hearing within the time provided in the notice shall constitute a waiver of the person's right to an administrative hearing. The hearing, findings, and conclusions shall be in accordance with the provisions of this Act and the Department's Rules of Practice and Procedure in Administrative Hearings (77 Ill. Admin. Code 100), which are incorporated by reference herein.

Upon a finding that the person has violated the provisions of this subsection (c), the Department shall issue the Order of Correction to the telecommunications carrier. If the telecommunications carrier fails to comply with the Order of Correction within 20 days after the order is final, the Department shall inform the Illinois Commerce Commission of the failure to comply and the Illinois Commerce Commission shall require the telecommunications carrier furnishing services to that person to disconnect the telephone service furnished to the telephone number contained in the unlawful advertisement and direct that subsequent calls to that number shall not be referred by the telecommunications carrier to any new telephone number obtained by or any existing number registered to the person.

A person may have his or her telephone services restored, after an Order of Correction has been issued, upon a showing, to the satisfaction of the Department, that he or she is in compliance with the provisions of this Act.

(d) The Department may require by rule additional information concerning licensed general contractors maintained in the register. The Department shall have the right to examine the payroll records of such persons to determine compliance with this provision. The Department's right to examine payroll records is limited solely to those records and does not extend to any other business records.

Section 125. Home rule. The regulation and licensing of general contractors are exclusive powers and functions of the State. A home rule unit may not regulate or license general contractors. This Section is a denial and limitation of home rule powers and functions under subsection (h) of Article VII of the Illinois Constitution.

Section 900. The Regulatory Sunset Act is amended by adding Section 4.26 as follows:

(5 ILCS 80/4.26 new)

Sec. 4.26. Act repealed on January 1, 2016. The following Act is repealed on January 1, 2016:

The General Contractor Licensing Act.

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