SB156 By Senators Price, Elliott and Givhan RFD Governmental Affairs Rd 1 06-FEB-20

SYNOPSIS: Under existing law, a person who provides services for any of the following without a license as required by law is guilty of a Class A misdemeanor: General contracting services; residential homebuilding services; heating, air conditioning, or refrigeration contracting services; electrical contracting services; plumbing, gas fitting, or medical gas pipe fitting services; and home repair services.

This bill would provide that if a person provides any of these services without a license as required by law on a residential or commercial structure that was damaged or otherwise in need of repair or services because of an event for which the Governor declared a state of emergency, the person would be guilty of a Class C felony.

This bill would also specify that the provisions of the bill do not apply to charitable cleanup or repair services for which no license is required and for which no fee is charged.

Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, prohibits a general law whose purpose or effect would be to require a new or increased expenditure of local funds from becoming effective with regard to a local governmental entity without enactment by a 2/3 vote unless: it comes within one of a number of specified exceptions; it is approved by the affected entity; or the Legislature appropriates funds, or provides a local source of revenue, to the entity for the purpose.

The purpose or effect of this bill would be to require a new or increased expenditure of local funds within the meaning of the amendment. However, the bill does not require approval of a local governmental entity or enactment by a 2/3 vote to become effective because it comes within one of the specified exceptions contained in the amendment.

A BILL TO BE ENTITLED AN ACT

Relating to consumer protection; to amend Sections 13A-9-114, 34-8-6, 34-14A-14, 34-31-32, 34-36-16, and 34-37-17, Code of Alabama 1975, to establish the Alabama State of Emergency Consumer Protection Act, to provide additional criminal penalties for certain crimes committed under certain conditions; and in connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local funds within the meaning of Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. (a) This section shall be known and may be cited as the Alabama State of Emergency Consumer Protection Act.

(b) A person not licensed as required by law who engages in, provides, or agrees or contracts to provide, any of the following services to one or more property owners where the cumulative cost of the undertaking, inclusive of labor, materials, overhead, and profit, exceeds two thousand five hundred dollars ($2,500) or the statutory threshold for a required license, whichever is greater, for a residential structure, commercial structure, or other structure which does not belong to the person and which is damaged, destroyed, or otherwise in need of repair or services as a result of an event for which the Governor declares a state of emergency, as defined in Section 31-9-3, Code of Alabama 1975, is guilty of a Class C felony:

(1) General contracting services under Section 34-8-6, Code of Alabama 1975.

(2) Residential homebuilding services under Section 34-14A-14, Code of Alabama 1975.

(3) Heating, air conditioning, or refrigeration contracting services under Section 34-31-32, Code of Alabama 1975.

(4) Electrical contracting services under Section 34-36-16, Code of Alabama 1975.

(5) Plumbing, gas fitting, or medical gas pipe fitting services under Section 34-37-17, Code of Alabama 1975.

(6) Home repair, as defined by Section 13A-9-110, Code of Alabama 1975.

(c) A certified copy of the emergency declaration signed by the Governor shall be prima facie evidence of the event giving rise to the emergency in the affected municipality or county.

(d) Nothing in this section precludes the prosecution of other crimes, including, but not limited to, financial exploitation of an elderly person, theft of property, theft of property by deception, and insurance fraud.

(e) In addition to any other sentence the court may impose under this section, the court shall order the defendant to make restitution to the victim as a condition of probation or suspension of sentence, either within a specified period of time or in specified installments. Intentional refusal to make restitution under the order may be considered as grounds for revocation of the person's probation or suspension of sentence.

(f) This section does not provide any limitation or restriction on a person from providing charitable cleanup or repair services for which no license is required by law and for which no fee is charged.Section 2. Sections 13A-9-114, 34-8-6, 34-14A-14, 34-31-32, 34-36-16, and 34-37-17, Code of Alabama 1975, are amended to read as follows:

§13A-9-114.

"Violations of this article shall be punished as follows:

"(1)Except as provided in Section 1 of the act providing this amendatory language, a A first conviction shall be a Class A misdemeanor.

"(2) A second or subsequent conviction shall be a Class C felony.

§34-8-6.

"(a) Any Except as provided in Section 1 of the act providing this amendatory language, any person, firm, or corporation not being duly authorized who shall engage in the business of general contracting in this state, except as provided for in this chapter, and any person, firm, or corporation presenting or attempting to file as its own the license certificate of another, or who shall give false or forged evidence of any kind to the board, or to any member thereof, in obtaining a certificate of license, or who falsely shall impersonate another, or who shall use an expired or revoked certificate of license shall be deemed guilty of a Class A misdemeanor and for each offense for which he or she is convicted shall be punished as provided by law. Furthermore, any person including an owner, architect, engineer, construction manager, or private awarding authority who considers a bid from anyone not properly licensed under this chapter shall be deemed guilty of a Class B misdemeanor and shall for each offense of which he or she is convicted be punished as provided by law.

"(b) Every person, firm, or corporation licensed pursuant to this chapter shall include his or her license number in all construction contracts, subcontracts, bids, and proposals. Any person, firm, or corporation violating this provision shall be guilty of a Class B misdemeanor and shall for each offense of which he or she is convicted be punished as provided by law.

"(c) In addition to or in lieu of the criminal penalties and administrative sanctions provided in this chapter, the board may issue an order to any person, firm, or corporation engaged in any activity, conduct, or practice constituting a violation of this chapter, directing the person, firm, or corporation to forthwith cease and desist from the activity, conduct, practice, or the performance of any work then being done or about to be commenced. The order shall be issued in the name of the State of Alabama under the official seal of the board. If the person, firm, or corporation to whom the board directs a cease and desist order does not cease or desist the proscribed activity, conduct, practice, or performance of work immediately, the board shall cause to issue in any court of competent jurisdiction and proper venue, a writ of injunction enjoining the person, firm, or corporation from engaging in any activity, conduct, practice, or performance of work as prohibited by this chapter. Upon showing by the board that the person, firm, or corporation has engaged or is engaged in any activity, conduct, practice, or performance of work prohibited by this chapter, the courts shall issue a temporary restraining order restraining the person, firm, or corporation from engaging in such unlawful activity, conduct, practice, or performance of work pending the hearing on a preliminary injunction, and in due course a permanent injunction shall issue after the hearing, commanding the cessation of the unlawful activity, conduct, practice, or performance of work complained of, all without the necessity of the board having to give bond. A temporary restraining order, preliminary injunction, or permanent injunction issued pursuant to this subsection shall not be subject to being released on bond. In the suit for an injunction, the board may demand of the defendant a fine of up to five thousand dollars ($5,000) plus costs and attorney fees for each offense. A judgment for penalty, attorney fees, and costs may be rendered in the same judgment in which the injunction is made absolute. The trial of the proceeding by injunction shall be summary and by the trial judge without jury. Anyone violating this chapter who fails to cease work, after a hearing and notification from the board, shall not be eligible to apply for a contractor's license for a period not to exceed one year from the date of official notification to cease work. It shall be within the power of the board to withhold approval, for up to six months, of any application from anyone who prior to the application has been found in violation of this chapter.

"(d) The submission of the contractor's current license number before considering the bid shall be sufficient evidence to relieve the owner, architect, engineer, construction manager, or awarding authority of any liability under this chapter.

§34-14A-14.

"(a) Any Except as provided in Section 1 of the act providing this amendatory language, any person who undertakes or attempts to undertake the business of residential home building without holding a current and valid residential home builders license, issued by the Home Builders Licensure Board, as required by this chapter, or who knowingly presents to, or files false information with the board for the purpose of obtaining the license or who violates any law or code adopted by a county commission under this chapter shall be deemed guilty of a Class A misdemeanor.

"(b) Upon notice from the board, any person who undertakes or attempts to undertake the business of residential home building without holding a current and valid residential home builders license, as required by the provisions of this chapter, shall immediately cease. Such notice shall be in writing and shall be given to the owner of the property, or to his or her agent, or to the residential home builder, or to the person doing the work, and shall state the conditions under which work may be resumed.

"(c) The board may invoke a complaint procedure against any person who violates this chapter by undertaking or attempting to undertake the business of home building without holding a current and valid residential home builders license issued by the board. Whenever it appears to the board that any residential home builder has violated or is about to violate this chapter, the board may resolve the violation by agreement with the residential home builder, may initiate a complaint against the residential home builder, and may levy and collect administrative fines for violations of this chapter or the rules of the board in an amount not to exceed five thousand dollars ($5,000) for each violation.

"(d) A residential home builder, who does not have the license required, shall not bring or maintain any action to enforce the provisions of any contract for residential home building which he or she entered into in violation of this chapter.

"(e) Whenever it appears to the board that any residential home builder has violated or is about to violate this chapter, the board may in its own name petition the circuit court of the county where the violation occurred or is about to occur to issue a temporary restraining order or other appropriate injunctive relief enjoining the violation.

§34-31-32.

"(a) Any Except as provided in Section 1 of the act providing this amendatory language, any person engaged in business as a certified contractor or performing the functions of a certified contractor in violation of this chapter shall be guilty of a Class A misdemeanor, as defined by the state criminal code.

"(b) The board may, at its discretion, impose late penalties on those certified contractors who fail to renew certificates by December 31 of each year. The board may also remove certification from any certified person who fails to renew his or her certificate by the first day of March and require the person to apply for a new certificate. Furthermore, the board may at its discretion, remove, revoke, or suspend the certification from any certified contractor who provides substandard or dangerous service, repair, or installation, or who otherwise violates this chapter, and may require such person to apply for a new certification. The board may, in its discretion, also require the successful re-testing of any such person who applies for a new certification.

"(c) The board may reprimand, in writing, any certified contractor who provides substandard or dangerous service, repair, or installation, or who otherwise violates this chapter.

"(d) The board may levy and collect administrative fines for serious violations of this chapter or the rules and regulations of the board of not more than two thousand dollars ($2,000) for each violation.

"(e) In addition to or in lieu of the criminal penalties and administrative sanctions provided in this chapter, the board may issue an order to any person, firm, or corporation engaged in any activity, conduct, or practice constituting a violation of this chapter, directing the person, firm, or corporation to forthwith cease and desist from the activity, conduct, practice, or performance of any work then being done or about to be commenced. The order shall be issued in the name of the State of Alabama under the authority of the board. If the person, firm, or corporation to whom the board directs a cease and desist order does not cease or desist the proscribed activity, conduct, practice, or performance of work immediately, the board shall cause to issue in any court of competent jurisdiction and proper venue, a writ of injunction enjoining the person, firm, or corporation from engaging in any activity, conduct, practice, or performance of work prohibited by this chapter. Upon showing by the board that the person, firm, or corporation has engaged or is engaged in any activity, conduct, practice, or performance of work prohibited by this chapter, the courts shall issue a temporary restraining order restraining the person, firm, or corporation from engaging in such unlawful activity, conduct, practice, or performance of work pending the hearing on a preliminary injunction, and in due course a permanent injunction shall issue after the hearing, commanding the cessation of the unlawful activity, conduct, practice, or performance of work complained of, all without the necessity of the board having to give bond. A temporary restraining order, preliminary injunction, or permanent injunction issued pursuant to this subsection shall not be subject to being released on bond. In the suit for an injunction, the board may demand of the defendant a fine of up to two thousand dollars ($2,000) plus costs for each offense. Anyone violating this chapter who fails to cease work, after a hearing and notification from the board, shall not be eligible to apply for a certified contractor's license for a period not to exceed one year from the date of official notification to cease work. The board may withhold approval, for up to six months, of any application from anyone who prior to the application has been found in violation of this chapter.

§34-36-16.

"(a) It shall be unlawful for any person to violate any provision of this chapter regulating electrical contracting, and, except as provided in Section 1 of the act providing this amendatory language, any person convicted of such violation shall be punished as prescribed for is guilty of a Class A misdemeanor.

"(b) It shall be unlawful, except as otherwise provided, on or after December 31, 2011, for a person not licensed as an electrical contractor to solicit, represent, seek to perform, or perform those tasks and functions that can only be performed by a licensed electrical contractor in accordance with this chapter.

"(c) Subsection (b) shall not apply to an electrical contractor who has taken an examination offered by the board within the preceding 12 months, who holds a license or permit issued by a county or municipal government to perform the tasks and functions that can only be performed by a licensed electrical contractor, and who performs those tasks and functions within the boundaries of the county or municipality that issued the license or permit.

§34-37-17.

"(a) The board shall have the administrative authority to discipline or require a certificate holder to attend training specific to violations. The board has the authority to levy civil fines or penalties to any registered apprentice, certificate holder, or legal entity registered by the board for a violation of any provision of this chapter regulating plumbers, gas fitters, or medical gas pipe fitters up to two thousand dollars ($2,000) per violation and actual hearing cost.

"(b) In addition to or in lieu of the criminal penalties and administrative sanctions provided in this chapter, the board may issue an order to any person or legal entity engaged in any activity, conduct, or practice constituting a violation of this chapter, directing the person or legal entity to forthwith cease and desist from the activity, conduct, practice, or performance of any work then being performed or about to be commenced.

"(c) It shall be unlawful for any person or legal entity to violate any provision of this chapter regulating plumbers, gas fitters, or medical gas piping fitters. Any Except as provided in Section 1 of the act providing this amendatory language, any person convicted of such violation shall be punished as prescribed for is guilty of a Class A misdemeanor."

Section 3. Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Amendment 621, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, because the bill defines a new crime or amends the definition of an existing crime.

Section 4. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Consumers and Consumer Protection

Criminal Law and Procedure

Crimes and Offenses

Code Amended