MISSISSIPPI LEGISLATURE
2022 Regular Session
To: Ways and Means
By: Representative Lamar
AN ACT TO AMEND SECTIONS 19-5-9 AND 21-19-25, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT, REGARDLESS OF WHETHER A COUNTY OR MUNICIPALITY HAS ADOPTED CERTAIN CONSTRUCTION CODES, A COUNTY OR MUNICIPALITY, AS THE CASE MAY BE, SHALL REQUIRE PERMITTING AS A CONDITION TO CONSTRUCTION, AND THAT SUCH PERMITS SHALL CONTAIN ON THEIR FACE THE CONTRACTOR'S MATERIAL PURCHASE CERTIFICATE NUMBER TO THE EXTENT FURNISHED BY THE DEPARTMENT OF REVENUE AND THE CONTRACTOR'S LICENSE OR CERTIFICATE OF RESPONSIBILITY NUMBER AS REQUIRED BY CERTAIN SECTIONS OF LAW; TO AMEND SECTIONS 73-59-1, 73-59-3, 73-59-9 AND 73-59-15, MISSISSIPPI CODE OF 1972, WHICH ARE SECTIONS OF LAWS REGULATING RESIDENTIAL BUILDERS AND REMODELERS, TO DEFINE THE TERMS "CONSTRUCTION MANAGER" AND "RESIDENTIAL SOLAR CONTRACTOR" FOR PURPOSES OF SUCH SECTIONS OF LAW, TO REVISE THE PERSONS OR ENTITIES THAT MUST BE LICENSED BY THE STATE BOARD OF CONTRACTORS UNDER SUCH LAWS, TO REVISE CERTAIN PROVISIONS REGARDING PENALTIES FOR PERSONS WHO UNDERTAKE TO PERFORM THE BUSINESS OF RESIDENTIAL CONSTRUCTION OR IMPROVEMENT WITHOUT FIRST HAVING A LICENSE; TO REVISE THE TYPES OF REMEDIES AVAILABLE TO SUCH PERSONS OR ENTITIES AND TO REVISE THE TYPES OF RESIDENTIAL CONSTRUCTION TO WHICH SUCH SECTIONS OF LAWS DO NOT APPLY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 19-5-9, Mississippi Code of 1972, is amended as follows:
19-5-9. (1) The construction codes published by a nationally recognized code group which sets minimum standards and has the proper provisions to maintain up-to-date amendments are adopted as minimum standard guides for building, plumbing, electrical, gas, sanitary, and other related codes in Mississippi. Any county within the State of Mississippi, in the discretion of the board of supervisors, may adopt building codes, plumbing codes, electrical codes, sanitary codes, or other related codes dealing with general public health, safety or welfare, or a combination of the same, within but not exceeding the provisions of the construction codes published by nationally recognized code groups, by order or resolution in the manner prescribed in this section, but those codes so adopted shall apply only to the unincorporated areas of the county. However, those codes shall not apply to the erection, maintenance, repair or extension of farm buildings or farm structures, except as may be required under the terms of the "Flood Disaster Protection Act of 1973," and shall apply to a master planned community as defined in Section 19-5-10 only to the extent allowed in Section 19-5-10. The provisions of this section shall not be construed to authorize the adoption of any code which applies to the installation, repair or maintenance of electric wires, pipelines, apparatus, equipment or devices by or for a utility rendering public utility services, required by it to be utilized in the rendition of its duly authorized service to the public. Before any such code shall be adopted, it shall be either printed or typewritten and shall be presented in pamphlet form to the board of supervisors at a regular meeting. The order or resolution adopting the code shall not set out the code in full, but shall merely identify the same. The vote or passage of the order or resolution shall be the same as on any other order or resolution. After its adoption, the code or codes shall be certified to by the president and clerk of the board of supervisors and shall be filed as a permanent record in the office of the clerk who shall not be required to transcribe and record the same in the minute book as other orders and resolutions.
(2) If the board of supervisors of any county adopts or has adopted construction codes which do not have proper provisions to maintain up-to-date amendments, specifications in such codes for cements used in portland cement concrete shall be superseded by nationally recognized specifications referenced in any code adopted by the Mississippi Building Code Council.
(3) All provisions of this section shall apply to amendments and revisions of the codes mentioned in this section. The provisions of this section shall be in addition and supplemental to any existing laws authorizing the adoption, amendment or revision of county orders, resolutions or codes.
(4) Any code adopted under the provisions of this section shall not be in operation or force until sixty (60) days have elapsed from the adoption of same; however, any code adopted for the immediate preservation of the public health, safety and general welfare may be effective from and after its adoption by a unanimous vote of the members of the board. Within five (5) days after the adoption or passage of an order or resolution adopting that code or codes the clerk of the board of supervisors shall publish in a legal newspaper published in the county the full text of the order or resolution adopting and approving the code, and the publication shall be inserted at least three (3) times, and shall be completed within thirty (30) days after the passage of the order or resolution.
(5) Any person or persons objecting to the code or codes may object in writing to the provisions of the code or codes within sixty (60) days after the passage of the order or resolution approving same, and if the board of supervisors adjudicates that ten percent (10%) or more of the qualified electors residing in the affected unincorporated areas of the county have objected in writing to the code or codes, then in such event the code shall be inoperative and not in effect unless adopted for the immediate preservation of the public health, safety and general welfare until approved by a special election called by the board of supervisors as other special elections are called and conducted by the election commissioners of the county as other special elections are conducted, the special election to be participated in by all the qualified electors of the county residing in the unincorporated areas of the county. If the voters approve the code or codes in the special election it shall be in force and in operation thereafter until amended or modified as provided in this section. If the majority of the qualified electors voting in the special election vote against the code or codes, then, in such event, the code or codes shall be void and of no force and effect, and no other code or codes dealing with that subject shall be adopted under the provisions of this section until at least two (2) years thereafter.
(6) After any such code shall take effect the board of supervisors is authorized to employ such directors and other personnel as the board, in its discretion, deems necessary and to expend general county funds or any other funds available to the board to fulfill the purposes of this section.
(7) For the purpose of promoting health, safety, morals or the general welfare of the community, the governing authority of any municipality, and, with respect to the unincorporated part of any county, the governing authority of any county, in its discretion, is empowered to regulate the height, number of stories and size of building and other structures, the percentage of lot that may be occupied, the size of the yards, courts and other open spaces, the density or population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes, but no permits shall be required except as may be required under the terms of the "Flood Disaster Protection Act of 1973" for the erection, maintenance, repair or extension of farm buildings or farm structures outside the corporate limits of municipalities.
(8) The authority granted in this section is cumulative and supplemental to any other authority granted by law.
(9) Notwithstanding any provision of this section to the contrary, any code adopted by a county before or after April 12, 2001, is subject to the provisions of Section 41-26-14(10).
(10) Notwithstanding any provision of this section to the contrary, the Boards of Supervisors of Jackson, Harrison, Hancock, Stone and Pearl River Counties shall enforce the requirements imposed under Section 17-2-1 as provided in such section.
(11) Regardless of whether a county adopts or has adopted codes, as set forth in this section, each and every county in this state shall require permitting as a condition to construction within the unincorporated areas of the county, and such permits shall contain, on their face, in conspicuous print, (a) the contractor's material purchase certificate number to the extent furnished by the Department of Revenue pursuant to Section 27-65-21(4) or the contractor's Taxpayer Identification Number as furnished by the Internal Revenue Service, and either a copy of such material purchase certificate furnished by the Department of Revenue pursuant to Section 27-65-21(4), or a copy of the contractor's W-9, as the case may be, shall be required to be provided to the county as part of the prime contractor's application for such permit, prior to the issuance of such permit, and (b) the contractor's license or certificate of responsibility number as required by either Section 31-3-14 et seq., 51-5-1 et seq. or 73-59-1 et seq.
SECTION 2. Section 21-19-25, Mississippi Code of 1972, is amended as follows:
21-19-25. (1) Any municipality within the State of Mississippi may, in the discretion of its governing authority, adopt building codes, plumbing codes, electrical codes, gas codes, sanitary codes, or any other codes dealing with general public health, safety or welfare, or a combination of the same, by ordinance, in the manner prescribed in this section. Before any such code shall be adopted, it shall be either printed or typewritten, and it shall be presented in pamphlet form to the governing authority of the municipality at a regular meeting. The ordinance adopting the code shall not set out the code in full, but shall merely identify the same. The vote on passage of the ordinance shall be the same as on any other ordinances. After its adoption, the code shall be certified to by the mayor and clerk of the municipality, and shall be filed as a permanent record in the office of the clerk, who shall not be required to transcribe and record the same in the ordinance book as other ordinances. It shall not be necessary that the ordinance adopting the code or the code itself be published in full, but notice of the adoption of the code shall be given by publication in some newspaper of the municipality for one (1) time, or if there be no such newspaper, by posting at three (3) or more public places within the corporate limits, a notice in substantially the following form:
Notice is given that the city (or town or village) of _________, on the (give date of ordinance adopting code), adopted (state type of code and other information serving to identify the same) code.
(2) If the governing authority of any municipality adopts or has adopted construction codes which do not have proper provisions to maintain up-to-date amendments, specifications in such codes for cements used in portland cement concrete shall be superseded by nationally recognized specifications referenced in any code adopted by the Mississippi Building Code Council.
(3) All the provisions of this section shall apply to amendments and revisions of the code mentioned in this section. Any code adopted in accordance with this section shall not be in force for one (1) month after its passage, unless the municipal authorities in the ordinance authorize to the contrary. The provisions of this section shall be in addition and supplemental to any existing laws authorizing the adoption, amendment or revision of municipal ordinances or codes.
(4) Notwithstanding any provision of this section to the contrary, any code adopted by a municipality before or after April 12, 2001, is subject to the provisions of Section 41-26-14(10).
(5) Notwithstanding any provision of this section to the contrary, the governing authorities of each municipality in Jackson, Harrison, Hancock, Stone and Pearl River Counties shall enforce the requirements imposed under Section 17-2-1 as provided in such section.
(6) Regardless of whether the governing authority of any municipality adopts or has adopted construction codes, as set forth in this section, each and every governing authority of any municipality shall require permitting as a condition to construction within the municipality's jurisdiction, and any and all such permits shall contain on their faces, in conspicuous print, (a) the contractor's material purchase certificate number to the extent one is furnished by the Department of Revenue pursuant to Section 27-65-21(4) or the contractor's Taxpayer Identification Number as furnished by the Internal Revenue Service, and either a copy of such material purchase certificate furnished by the Department of Revenue pursuant to Section 27-65-21(4), or a copy of the contractor's W-9, as the case may be, shall be required to be provided to the governing authority of such municipality as part of the contractor's application for such permit, prior to the issuance of such permit, and (b) the contractor's license or certificate of responsibility number as required by either Section 31-3-14 et seq., 51-5-1 et seq. or 73-59-1 et seq.
(7) The provisions of this section shall apply to all municipalities of this state, whether operating under the code charter, a special charter, commission form, or other form of government.
SECTION 3. Section 73-59-1, Mississippi Code of 1972, is amended as follows:
73-59-1. For the purposes of this chapter, the following words shall have the meanings ascribed herein:
(a) "Board" means the State Board of Contractors created in Section 31-3-3, Mississippi Code of 1972.
(b) "Residential builder" means any corporation, partnership or individual who constructs a building or structure for sale for use by another as a residence or who, for a fixed price, commission, fee, wage or other compensation, undertakes or offers to undertake the construction, or superintending of the construction, of any building or structure which is not more than three (3) floors in height, to be used by another as a residence, when the total cost of the undertaking exceeds Fifty Thousand Dollars ($50,000.00).
(c) "Remodeler" means any corporation, partnership or individual who, for a fixed price, commission, fee, wage or other compensation, undertakes or offers to undertake the construction, or superintending of the construction, of improvements to an existing residence when the total cost of the improvements exceeds Ten Thousand Dollars ($10,000.00).
(d) "Residential construction" means any undertaking described in paragraph (b) of this section performed by a residential builder.
(e) "Residential improvement" means any undertaking described in paragraph (c) of this section performed by a remodeler.
(f) "Active licensee" means any builder or remodeler licensed under this chapter and engaged in building and remodeling.
(g) "Inactive licensee" means any builder or remodeler licensed under this chapter and not engaged in building or remodeling.
(h) "Construction manager" means any person or entity, other than a residential builder, remodeler or owner, who has a contract or agreement with the owner of the property for residential construction or residential improvement, no matter if that owner himself is the general contractor or a holder of a building permit.
(i) "Residential solar contractor" means any person or entity who installs, modifies, maintains, and repairs thermal and photovoltaic solar energy systems.
SECTION 4. Section 73-59-3, Mississippi Code of 1972, is amended as follows:
73-59-3. (1) Except as
otherwise provided in Section 73-59-15 or Section 33-1-39, the following
persons * * *
or entities shall be licensed by the board annually as an active
licensee or inactive licensee, as appropriate * * *:
(a) Persons or entities acting in the capacity as a residential builder;
(b) Persons or entities acting in the capacity as a residential remodeler;
(c) Persons or entities acting in the capacity as a construction manager through a contract or an agreement with the owner of the property being improved or constructed upon;
(d) Any subcontractor, of any tier, performing the following work or within the following trade, on any residential construction or residential improvement project, no matter the dollar amount of the construction or improvements:
(i) Electrical;
(ii) Plumbing;
(iii) Mechanical; and/or
(iv) Heating, ventilation and/or air conditioning; and
(e) Persons or entities acting in the capacity as a residential solar contractor.
(2) As a prerequisite to obtaining a license or renewal thereof, each of the persons or entities in subsection (1) of this section shall submit to the board:
(a) Proof of workers' compensation insurance, if required by applicable law; however, workers' compensation insurance shall not be required for inactive licensees;
(b) A federal employment identification number or social security number.
( * * *3) The board may require liability
insurance to be licensed under this chapter and it shall be reflected on the
certificate of licensure; however, liability insurance shall not be required
for inactive licensees.
( * * *4) The board shall issue or renew a
license to * * * persons or entities required
by subsection (1) of this section to be licensed, upon payment to the board
of the license fee. The initial license fee shall be Fifty Dollars ($50.00).
The license fee may thereafter be increased or decreased by the board and
cannot exceed One Hundred Dollars ($100.00); however, the receipts from fees collected
by the board shall be no greater than the amount required to pay all costs and
expenses incurred by the board in enforcing the provisions of this chapter.
Twenty-five Dollars ($25.00) of the fee required by this section which is assessed
to residential builders licensed under the provisions of Section 73-59-1 et
seq. shall be deposited to the Construction Education Fund created pursuant to
Section 31-3-14 and shall be distributed to the Mississippi Housing Institute.
The remaining fees collected under this chapter shall be deposited into the
special fund in the State Treasury known as the "State Board of Contractors
Fund" created pursuant to Section 31-3-17 and shall be used for the
administration and enforcement of this chapter and as provided in Section 31-3-14.
Amounts in such fund shall not lapse into the State General Fund at the end of
a fiscal year. Interest accrued to such fund shall remain in the fund. All
expenditures from the special fund shall be by requisition to the Department of
Finance and Administration, signed by the executive director of the board and
countersigned by the chairman or vice chairman of the board.
( * * *5) Except as provided in Section 33-1-39,
the license shall expire on the last day of the twelfth month following its
issuance or renewal and shall become invalid unless renewed. The board may
notify by mail or email every licensee under this chapter of the date of the
expiration of his license and the amount of the fee required for renewal of the
license for one (1) year. To receive notification by email, a licensee must
notify the board of his desire to receive notification by email and provide an
email address. Such notice may be mailed or emailed within thirty (30) days
prior to the expiration date of the license. The failure on the part of any licensee
to renew his license annually in such twelfth month shall not deprive such
licensee of the right of renewal, provided that renewal is effected within one
hundred eighty (180) days after the expiration date of the license by payment
of the license fee plus a penalty of ten percent (10%) of the license fee. A
new license required to replace a revoked, lost, mutilated or destroyed license
may be issued, subject to the rules of the board, for a charge of not more than
Fifty Dollars ($50.00). An inactive licensee may become an active licensee
upon application meeting all the requirements of this section.
( * * *6) Any person who is not a resident of
the State of Mississippi who desires to perform residential construction or
residential improvement shall be licensed to perform such construction or
improvement as provided by this chapter.
SECTION 5. Section 73-59-9, Mississippi Code of 1972, is amended as follows:
73-59-9. (1) Any * * * person or entity required
to have a license under Section 73-59-3(1) who undertakes or attempts to
undertake the business of residential construction or improvement
without having a valid license as required by this chapter, or who knowingly
presents to the board, or files with the board, false information for the
purpose of obtaining such license, shall be deemed guilty of a misdemeanor and,
upon conviction, shall be fined not less than One Hundred Dollars ($100.00) and
not more than Five Thousand Dollars ($5,000.00) or be imprisoned for not less
than thirty (30) nor more than sixty (60) days in the county jail, or both.
* * *
( * * *2) * * * Any person
or entity required to have a license under Section 73-59-3(1) who does not
have the license provided by this chapter at the time construction, building
or remodeling services are rendered may not bring any action, either at law
or in equity, to enforce any contract for residential building or remodeling or
to enforce a sales contract, but instead shall be only permitted to recover as
damages actual documented expenses for labor, materials or both, incurred as a
result of the construction, building or remodeling services rendered, but only
for those expenses which can be shown by clear and convincing evidence.
( * * *3) The board shall have the authority
to issue a citation and may stop work of a residential builder or remodeler
performing work without having a valid license as required by this chapter.
SECTION 6. Section 73-59-15, Mississippi Code of 1972, is amended as follows:
73-59-15. (1) This chapter shall not apply to:
(a) Agricultural buildings, buildings used for agricultural purposes, buildings constructed as a community effort, or tenant houses;
(b) Any person who undertakes construction or improvement on his own residence, or who acts as his own general contractor in the performance of construction or improvement on his own residence;
(c) Any person who undertakes residential construction or improvement, or who acts as a general contractor in the performance of residential construction or improvement, or who acts under supervision of the owner-occupant with respect to residential construction or improvement, when the owner of such construction or improvement is related to such person by consanguinity or direct affinity, and the property or improvement will not be for sale, rent, public use or public assembly;
(d) The owners of property who supervise, superintend, oversee, direct or in any manner assume charge of the construction, alteration, repair, improvement, movement, demolition, putting up, tearing down or maintenance of any building, railroad, excavation, project, development, improvement, plant facility or any other construction undertaking on such property for use by such owner and which will not be for sale, rent, public use or public assembly;
(e) Any contractor holding a valid license or certificate of responsibility for general construction from the board;
(f) Any nonresident
contractor holding a valid license or certificate of responsibility for * * * building construction;
(g) Any person who constructs two (2) single residences or less within a period of one (1) year in any county or municipality which does not require a building permit or any local certification for such construction, provided that the person is not building the residences for sale, profit or remuneration.
(2) A person specified in
subsection (1)(b) or (c) shall not make more than * * * one (1)
application for a permit to construct a single residence or shall not construct
more than * * * one (1) single residence within a period of
one (1) year. There shall be a rebuttable presumption that such person intends
to construct for the purpose of sale, lease, rent or any similar purpose if
more than * * * one (1) application is made for a permit to
construct a single residence or if more than * * * one (1)
single residence is constructed within a period of one (1) year.
SECTION 7. This act shall take effect and be in force from and after July 1, 2022.