MISSISSIPPI LEGISLATURE
2005 Regular Session
To: Judiciary B
By: Representative Broomfield
AN ACT TO AMEND SECTION 31-3-1, MISSISSIPPI CODE OF 1972, TO REVISE CERTAIN DEFINITIONS FOR THE STATE BOARD OF PUBLIC CONTRACTORS; TO AMEND SECTION 31-3-13, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE BOARD TO ISSUE RESTRICTED CERTIFICATES OF RESPONSIBILITY FOR CERTAIN PROJECTS; TO PROHIBIT MUNICIPALITIES AND COUNTIES FROM REQUIRING ADDITIONAL TESTING ONCE A CONTRACTOR HAS RECEIVED HIS OR HER CERTIFICATE OF RESPONSIBILITY; TO AMEND SECTIONS 27-17-457 AND 17-25-5, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 31-3-1, Mississippi Code of 1972, is amended as follows:
31-3-1. The following words, as used in this chapter, shall have the meanings specified below:
"Board": The State Board of Contractors created under this chapter.
"Contractor": Any person contracting or undertaking as prime contractor, subcontractor or sub-subcontractor of any tier to do any erection, building, construction, reconstruction, repair, maintenance or related work on any public or private project; however, "contractor" shall not include any owner of a dwelling or other structure to be constructed, altered, repaired or improved and not for sale, lease, public use or assembly. It is further provided that nothing herein shall apply to:
(a) Except for those who obtain a restricted certificate of responsibility for undertakings that are less than Fifty Thousand Dollars ($50,000.00) on a public project, any contract or undertaking on a public project by a prime contractor, subcontractor or sub-subcontractor of any tier involving erection, building, construction, reconstruction, repair, maintenance or related work where such contract, subcontract or undertaking is less than Fifty Thousand Dollars ($50,000.00);
(b) Except for those who obtain a restricted certificate of responsibility for undertakings that are less than One Hundred Thousand Dollars ($100,000.00) on a private project, any contract or undertaking on a private project by a prime contractor, subcontractor or sub-subcontractor of any tier involving erection, building, construction, reconstruction, repair, maintenance or related work where such contract, subcontract or undertaking is less than One Hundred Thousand Dollars ($100,000.00);
(c) Highway construction, highway bridges, overpasses and any other project incidental to the construction of highways which are designated as federal aid projects and in which federal funds are involved;
(d) A residential project to be occupied by fifty (50) or fewer families and not more than three (3) stories in height;
(e) A residential subdivision where the contractor is developing either single-family or multi-family lots;
(f) A new commercial construction project not exceeding seventy-five hundred (7500) square feet and not more than two (2) stories in height undertaken by an individual or entity licensed under the provisions of Section 73-59-1 et seq.;
(g) Erection of a microwave tower built for the purpose of telecommunication transmissions;
(h) Any contract or undertaking on a public project by a prime contractor, subcontractor or sub-subcontractor of any tier involving the construction, reconstruction, repair or maintenance of fire protection systems where such contract, subcontract or undertaking is less than Five Thousand Dollars ($5,000.00);
(i) Any contract or undertaking on a private project by a prime contractor, subcontractor or sub-subcontractor of any tier involving the construction, reconstruction, repair or maintenance of fire protection systems where such contract, subcontract or undertaking is less than Ten Thousand Dollars ($10,000.00); or
(j) Any contract or undertaking on a private or public project by a prime contractor, subcontractor or sub-subcontractor of any tier involving the construction, reconstruction, repair or maintenance of technically specialized installations if performed by a Mississippi contractor who has been in the business of installing fire protection sprinkler systems on or before July 1, 2000.
"Certificate of responsibility": A certificate numbered and held by a contractor issued by the board under the provisions of this chapter after payment of the special privilege license tax therefor levied under this chapter.
"Person": Any person, firm, corporation, joint venture or partnership, association or other type of business entity.
"Private project": Any project for erection, building, construction, reconstruction, repair, maintenance or related work which is not funded in whole or in part with public funds.
"Public agency": Any board, commission, council or agency of the State of Mississippi or any district, county or municipality thereof, including school, hospital, airport and all other types of governing agencies created by or operating under the laws of this state.
"Public funds": Monies of public agencies, whether obtained from taxation, donation or otherwise; or monies being expended by public agencies for the purposes for which such public agencies exist.
"Public project": Any project for erection, building, construction, reconstruction, repair, maintenance or related work which is funded in whole or in part with public funds.
SECTION 2. Section 31-3-13, Mississippi Code of 1972, is amended as follows:
31-3-13. The board shall have the following powers and responsibilities:
(a) To receive applications for certificates of responsibility, to investigate and examine applicants for same by holding hearings and securing information, to conduct examinations, and to issue certificates of responsibility to such contractors as the board finds to be responsible. One-fourth (1/4) of the certificates scheduled for renewal on the last day of December 1980, shall be reviewed by the board on the first Tuesday in January 1981. The remaining certificates shall be subject to renewal in the following manner: one-fourth (1/4) on the first Tuesday in April 1981; one-fourth (1/4) on the first Tuesday in July 1981; and one-fourth (1/4) on the first Tuesday in October 1981. The board is authorized to extend the dates of expiration of certificates to coincide with the scheduled date of review of individual contractors. Except for the certificates extended from December 31, 1980, to the first Tuesday in January 1981, the board shall charge fees for the extension of certificates as follows:
(i) Twenty-five Dollars ($25.00) if the date of renewal of the extended certificate is the first Tuesday in April 1981;
(ii) Fifty Dollars ($50.00) if the date of renewal of the extended certificate is the first Tuesday in July 1981; and
(iii) Seventy-five Dollars ($75.00) if the date of renewal of the extended certificate is the first Tuesday in October 1981.
The extended certificates renewed in compliance with this paragraph (a) and all original certificates and renewals thereof issued on or after July 1, 1980, shall expire one (1) year from the date of issuance. No certificate or any renewal thereof shall be issued until the application has been on file with the board for at least thirty (30) days. Application for renewal of certificates of responsibility, together with the payment of a special privilege license tax as provided under this chapter, shall serve to extend the current certificate until the board either renews the certificate or denies the application.
No certificate of responsibility or any renewal thereof shall be issued until the applicant furnishes to the board his Mississippi state sales tax number or Mississippi state use tax number and his state income tax identification numbers.
Additional fees may be required as provided in Section 31-3-14.
The board shall conduct an objective, standardized examination of an applicant for a certificate to ascertain the ability of the applicant to make practical application of his knowledge of the profession or business of construction in the category or categories for which he has applied for a certificate of responsibility. The following are the types of certificates of responsibility that a contractor may be tested on: (a) undertakings greater than Fifty Thousand Dollars ($50,000.00) on public projects, a regular certificate of responsibility; (b) undertakings less than Fifty Thousand Dollars ($50,000.00), a restricted certificate of responsibility; (c) undertakings greater than One Hundred Thousand Dollars ($100,000.00) on private projects, a regular certificate of responsibility; and (d) undertakings less than One Hundred Thousand Dollars ($100,000.00) on private projects, a restricted certificate of responsibility.
The cost of the test and the cost of administering the test shall be paid for by applicants for certificates of responsibility at the time applications are filed. The board shall investigate thoroughly the past record of all applicants, which will include an effort toward ascertaining the qualifications of applicants in reading plans and specifications, estimating costs, construction ethics, and other similar matters. The board shall take all applicants under consideration after having examined him or them and go thoroughly into the records and examinations, prior to granting any certificate of responsibility. If the applicant is an individual, examination may be taken by his personal appearance for examination or by the appearance for examination of one or more of his responsible managing employees; and if a copartnership or corporation or any other combination or organization, by the examination of one or more of the responsible managing officers or members of the executive staff of the applicant's firm, according to its own designation.
(b) To conduct thorough investigations of all applicants seeking renewal of their licenses and of all complaints filed with the board concerning the performance of a contractor on a public or private project.
(c) To obtain information concerning the responsibility of any applicant for a certificate of responsibility or a holder of a certificate of responsibility under this chapter. Such information may be obtained by investigation, by hearings, or by any other reasonable and lawful means. The board shall keep such information appropriately filed and shall disseminate same to any interested person. The board shall have the power of subpoena.
(d) To maintain a list of contractors to whom certificates of responsibility are issued, refused, revoked or suspended, which list shall be available to any interested person. Such list shall indicate the kind or kinds of works or projects for which a certificate of responsibility was issued, refused, revoked or suspended.
(e) To revoke by order entered on its minutes a certificate of responsibility upon a finding by the board that a particular contractor is not responsible, and to suspend such certificate of responsibility in particular cases pending investigation, upon cause to be stated in the board's order of suspension. No such revocation or suspension shall be ordered without a hearing conducted upon not less than ten (10) days' notice to such certificate holder by certified or registered mail, wherein the holder of the certificate of responsibility shall be given an opportunity to present all lawful evidence which he may offer.
(f) To adopt rules and regulations setting forth the requirements for certificates of responsibility, the revocation or suspension thereof, and all other matters concerning same; rules and regulations governing the conduct of the business of the board and its employees; and such other rules and regulations as the board finds necessary for the proper administration of this chapter, including those for the conduct of its hearings on the revocation or suspension of certificates of responsibility. Such rules and regulations shall not conflict with the provisions of this chapter.
(g) The board shall have the power and responsibility to classify the kind or kinds of works or projects that a contractor is qualified and entitled to perform under the certificate of responsibility issued to him. Such classification shall be specified in the certificate of responsibility.
The powers of the State Board of Contractors shall not extend to fixing a maximum limit in the bid amount of any contractor, or the bonding capacity, or a maximum amount of work which a contractor may have under contract at any time, except as stated in paragraph (a) of this section; and the Board of Contractors shall not have jurisdiction or the power or authority to determine the maximum bond a contractor may be capable of obtaining. The board, in determining the qualifications of any applicant for an original certificate of responsibility or any renewal thereof, shall, among other things, take into consideration the following: (1) experience and ability, (2) character, (3) the manner of performance of previous contracts, (4) financial condition, (5) equipment, (6) personnel, (7) work completed, (8) work on hand, (9) ability to perform satisfactorily work under contract at the time of an application for a certificate of responsibility or a renewal thereof, (10) default in complying with provisions of this law, or any other law of the state, and (11) the results of objective, standardized examinations. A record shall be made and preserved by the board of each examination of an applicant and the findings of the board thereon, and a certified copy of the record and findings shall be furnished to any applicant desiring to appeal from any order or decision of the board.
(h) The board shall enter upon its minutes an order or decision upon each application filed with it, and it may state in such order or decision the reason or reasons for its order or decision.
Upon failure of the board to enter an order or decision upon its minutes as to any application within one hundred eighty (180) days from the date of filing such application, the applicant shall have the right of appeal as otherwise provided by this chapter.
The holder of any valid certificate of responsibility issued by the Board of Public Contractors prior to January 1, 1986, shall be automatically issued a certificate of responsibility by the State Board of Contractors for the same classification or classifications of work which the holder was entitled to perform under the State Board of Public Contractors Act.
(i) (i) Notwithstanding any provision of law to the contrary, the board may issue a certificate of responsibility to any person who establishes such person's competency in any classification by successfully passing the examination, authorized under subsection (a) of this section, for measuring of industry expertise in such work that is administered by the board, and such certificate of responsibility shall authorize the holder of the certificate of responsibility to engage in contracting in this state or any of its political subdivisions.
(ii) Such holder of a valid certificate of responsibility shall be eligible to contract for such work in any county or municipality upon:
1. Exhibiting evidence of a current certificate of responsibility to the appropriate local officials;
2. Paying any applicable local privilege fees; and
3. Paying any inspection or permit fees customarily required by any county or municipality for such work.
No county or municipality shall require such holder of a valid certificate of responsibility or a person licensed by the State Board of Contractors as a residential builder or remodeler to pass any county or municipal test or examination, nor shall a county or municipality impose any additional requirements upon such valid holder of a certificate of responsibility, nor in any way discriminate against such holder of a certificate of responsibility on the basis of such holder's nonresidency within the county or municipality.
SECTION 3. Section 27-17-457, Mississippi Code of 1972, is amended as follows:
27-17-457. (1) Any contractor, including, but not limited to, any electrical, plumbing, heating and air conditioning, water and sewer, roofing or mechanical contractor, who is licensed by any one (1) municipality or county of the State of Mississippi, which municipality or county has an examining board where there is regularly given a written examination, and who does not hold a current certificate of responsibility issued by the State Board of Public Contractors, shall be allowed to do business in any other municipality or county in the state without being required to obtain a license in such other municipality or county or to undergo any further examination provided:
(a) That he furnishes evidence that he has such license;
(b) That he furnishes evidence that he actually took and passed the written examination which qualified him for such license; however, in lieu thereof evidence that if said contractor was issued a license prior to May 1, 1972, and prior to the existence of such written examination by a county or municipality which has an examining board that does presently require written examination to qualify for a license; and
(c) That he is not operating a separate place of business located in such other municipality or county.
(2) Any contractor, including, but not limited to, any electrical, plumbing, heating and air conditioning, water and sewer, roofing or mechanical contractor, who is licensed by any one (1) municipality or county of the State of Mississippi, which municipality or county has an examining board where there is regularly given a written examination, and who holds a current certificate of responsibility issued by the State Board of Public Contractors shall be allowed to do business in any other municipality or county in the state without being required to obtain a separate license in such other municipality or county or to undergo any further examination provided said contractor meets the requirements of paragraphs (a) and (b) of subsection (1) of this section.
(3) No additional privilege license bond shall be required in order for such a contractor to do business in another municipality or county in the state as long as the contractor has obtained the bond in the municipality or county where he is licensed.
(4) Nothing in this Section 27-17-457 supercedes or otherwise affects the provisions of Title 31, Chapter 3, or the provisions of Title 73, Chapter 59. In the event any provision in Section 27-17-457 conflicts with any provision of Title 31, Chapter 3, or of Title 73, Chapter 59, the latter titles and chapters are hereby deemed and shall be controlling over the provisions of Section 27-17-457.
(5) This Section 27-17-457 is intended to apply only to the Local Privilege Tax Law, and is not intended to apply to or restrict the powers and authority granted to municipalities and counties in Sections 21-19-25 and 19-5-9, or any powers or authority derived from said sections related to permits and permit bonds, and the issuance, denial or requirements thereof.
(6) No taxpayer receiving a privilege license under this Section 27-17-457 shall be authorized to advertise to the public that they are "licensed" unless said taxpayer is currently in compliance with paragraph (b) of subsection (1) of this section, or holds a current license or certificate of responsibility from the State Board of Contractors. Any officer collecting the tax may suspend the issuance or renewal of a privilege license granted under this section until such time as said officer finds that such taxpayer is in compliance with the provisions of this subsection. If any taxpayer receiving a privilege license under this section presents themselves to the public as "licensed" then said taxpayer must state to the public that they are "licensed by the city of" and/or "county of" followed by the name or names of the appropriate city and/or county from which such taxpayer is currently in compliance with paragraph (b) of subsection (1) of this section; or, if otherwise appropriate, "licensed by the State Board of Contractors."
(7) (a) Notwithstanding any provision of law to the contrary, the board may issue a certificate of responsibility to any person who establishes such person's competency in any classification by successfully passing the examination, authorized under Section 31-3-13, for measuring of industry expertise in such work that is administered by the board, and such certificate of responsibility shall authorize the holder of the certificate of responsibility to engage in contracting in this state or any of its political subdivisions.
(b) Such holder of a valid certificate of responsibility shall be eligible to contract for such work in any county or municipality upon:
(i) Exhibiting evidence of a current certificate of responsibility to the appropriate local officials;
(ii) Paying any applicable local privilege fees; and
(iii) Paying any inspection or permit fees customarily required by any county or municipality for such work.
No county or municipality shall require such holder of a valid certificate of responsibility or a person licensed by the State Board of Contractors as a residential builder or remodeler to pass any county or municipal test or examination, nor shall a county or municipality impose any additional requirements upon such valid holder of a certificate of responsibility, nor in any way discriminate against such holder of a certificate of responsibility on the basis of such holder's nonresidency within the county or municipality.
SECTION 4. Section 17-25-5, Mississippi Code of 1972, is amended as follows:
17-25-5. (1) Every municipality and county of the State of Mississippi shall grant competency examination reciprocity to any contractor including, but not limited to, any electrical, plumbing, heating and air conditioning, water and sewer, roofing or mechanical contractor, who is licensed by another municipality or county of this state without imposing any further competency examination requirements provided:
(a) That the contractor furnishes evidence that he has a license issued on the basis of a competency examination administered in one (1) municipality or county of the State of Mississippi which has an examining board that regularly gives a written examination which has been approved by the State Board of Public Contractors or the Building Officials Association of Mississippi;
(b) That he furnishes evidence that he actually took and passed the written examination which qualified him for such license; however, in lieu thereof, he may furnish evidence that he was issued a license prior to May 1, 1972, and prior to the existence of a written examination by a county or municipality which has an examining board that requires written examination to qualify for a license;
(c) That he has been actively engaged in the business for which he is licensed for two (2) years or more;
(d) That he has held a license for his business for one (1) year or more; and
(e) That he pays the license fee to the municipality or county to which application is made for a license unless he holds a current certificate of responsibility issued by the State Board of Public Contractors, in which case no license fee shall be collected.
(2) (a) Any contractor who operates more than one (1) separate place of business within the state must obtain the appropriate privilege license and pay the privilege license fee for each location if required by the local jurisdiction.
(b) Every jurisdiction in which a contractor does business may impose its own separate bonding requirements on the contractor desiring to do business there.
(3) (a) Notwithstanding any provision of law to the contrary, the board may issue a certificate of responsibility to any person who establishes such person's competency in any classification by successfully passing the examination, authorized under Section 31-3-13, for measuring of industry expertise in such work that is administered by the board, and such certificate of responsibility shall authorize the holder of the certificate of responsibility to engage in contracting in this state or any of its political subdivisions.
(b) Such holder of a valid certificate of responsibility shall be eligible to contract for such work in any county or municipality upon:
(i) Exhibiting evidence of a current certificate of responsibility to the appropriate local officials;
(ii) Paying any applicable local privilege fees; and
(iii) Paying any inspection or permit fees customarily required by any county or municipality for such work.
No county or municipality shall require such holder of a valid certificate of responsibility or a person licensed by the State Board of Contractors as a residential builder or remodeler to pass any county or municipal test or examination, nor shall a county or municipality impose any additional requirements upon such valid holder of a certificate of responsibility, nor in any way discriminate against such holder of a certificate of responsibility on the basis of such holder's nonresidency within the county or municipality.
SECTION 5. This act shall take effect and be in force from and after July 1, 2005.