MISSISSIPPI LEGISLATURE
2011 Regular Session
To: Judiciary B
By: Representative Gunn
AN ACT TO AMEND SECTIONS 73-60-1, 73-60-3, 73-60-5, 73-60-7, 73-60-9, 73-60-11, 73-60-17, 73-60-21, 73-60-23, 73-60-27, 73-60-29, 73-60-31, 73-60-33, 73-69-35, 73-60-37, 73-60-39, 73-60-41 AND 31-3-13, MISSISSIPPI CODE OF 1972, TO PLACE THE HOME INSPECTOR REGULATORY BOARD UNDER THE STATE BOARD OF CONTRACTORS; TO PROVIDE THAT THE HOME INSPECTOR REGULATORY BOARD SHALL ADMINISTER THE REGULATORY DUTIES RELATED TO HOME INSPECTORS; TO PLACE THE DUTIES PERFORMED BY THE REAL ESTATE COMMISSION UNDER THE HOME INSPECTOR REGULATORY BOARD; TO REVISE THE MEMBERSHIP OF THE BOARD; TO REVISE CONTINUING EDUCATION REQUIREMENTS; TO REVISE FEES; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 73-60-1, Mississippi Code of 1972, is amended as follows:
73-60-1. The following words shall have the meaning ascribed in this section unless the context clearly indicates otherwise:
(a) "Client" means any person who engages or seeks to engage the services of a home inspector for the purpose of obtaining an inspection of and written report on the conditions of a residential building.
(b) "Home inspection" means the process by which a home inspector examines the observable systems and components of improvements to residential real property that are readily accessible.
(c) "Home inspection report" means a written evaluation prepared and issued by a home inspector concerning the condition of the improvements to residential real property.
(d) "Home inspector" means any person, who for compensation, conducts a home inspection.
(e) "Board" means the Home Inspector Regulatory Board that is created pursuant to the provisions of this chapter.
(f) "Residential real property" means a structure intended to be, or that is in fact, used as a residence and consisting of one (1) to four (4) family dwelling units.
* * *
SECTION 2. Section 73-60-3, Mississippi Code of 1972, is amended as follows:
73-60-3. This chapter shall be administered and enforced by the State Board of Contractors, which shall have the duties and powers to:
(a) Receive applications for licensure as a home inspector under this chapter, establish appropriate administrative procedures for the processing of applications and issue licenses to qualified applicants pursuant to the provisions of this chapter;
(b) Implement recommendations made to the board by the Home Inspector Regulatory Board with respect to upgrading and improving the experience, education and examination requirements that are required for a home inspector license;
(c) Adopt and publish a code of ethics and standards of practice for persons licensed under this chapter;
(d) Collect all licensing fees required or permitted by this chapter;
(e) Take appropriate action upon a decision and the related findings of fact made by the board if, after an administrative hearing, the board (i) determines that a licensed home inspector under this chapter has violated the code of ethics and standards established under this section, and (ii) recommends that the license of the home inspector be suspended or revoked, that renewal be denied, or that some other disciplinary action be taken;
(f) Develop and adopt a licensing examination, which would meet nationally recognized standards, to determine the knowledge of an applicant of the home inspector profession;
(g) Solicit bids and enter into contracts with one or more educational testing services or organizations approved by the board for the preparation of questions and answers for licensure examinations under this chapter;
(h) Develop the application and license forms which shall include a field for the e-mail address of the applicant;
(i) Adopt rules and regulations for the administration of this chapter that are not inconsistent with the provisions of this chapter or the Constitution and laws of Mississippi or of the United States;
(j) Employ an assistant * * * who shall keep a record of all proceedings, transactions, communications and official acts of the State Board of Contractors and board and perform such other duties as the State Board of Contractors and board may require; and
(k) Employ such other staff and technical assistance as may be necessary to properly administer the requirements of this chapter.
SECTION 3. Section 73-60-5, Mississippi Code of 1972, is amended as follows:
73-60-5. (1) There is hereby created, as an adjunct board to the State Board of Contractors, a board to be known as the Home Inspector Regulatory Board, which shall consist of seven (7) members appointed by the Governor, with the advice and consent of the Senate, to include one (1) representative from each congressional district, one (1) from the state at large and all shall be licensed home inspectors, one (1) member who shall a member of the State Board of Contractors and one (1) member who shall be a member of the Real Estate Commission. From and after January 1, 2008, two (2) members shall be appointed to serve for a term of three (3) years, two (2) members shall be appointed to serve for a term of two (2) years and one (1) member shall be appointed to serve for a term of one (1) year. Thereafter, each member shall be appointed to serve for a term of four (4) years. From and after January 1, 2012, the two (2) members who are members of the State Board of Contractors and the Real Estate Commission shall serve for a term of four (4) years.
(2) The Home Inspector Regulatory Board shall advise the State Board of Contractors or its designee on all matters relating to this chapter. The board shall meet no less than four (4) times annually and shall be reimbursed for expenses on a per diem basis pursuant to state law.
SECTION 4. Section 73-60-7, Mississippi Code of 1972, is amended as follows:
73-60-7. (1) The Home Inspectors Regulatory Board shall have the duties and powers to:
(a) Be responsible for matters relating to home inspectors' code of ethics and standards, home inspector qualifications, testing standards and disciplinary functions.
(b) Hold meetings, public hearings and administrative hearings and prepare examination specifications for licensed home inspectors.
(c) Conduct investigations, subpoena individuals and records, administer oaths, take testimony and receive evidence and to do all other things necessary and proper to discipline a person licensed under this chapter and to enforce this chapter. In case of contumacy by, or refusal to obey a subpoena issued to, any person, the Chancery Court of the First Judicial District of Hinds County, Mississippi, upon application by the board, may issue to this person an order requiring him to appear before the board, or the officer designated by him, there to produce documentary evidence if so ordered or to give evidence touching the matter under investigation or in question. Failure to obey the order of the court may be punished by the court as contempt of court.
(d) Further define by regulation, the type of educational experience, home inspector experience and equivalent experience that will meet the statutory requirements.
(e) Recommend suspension or revocation of licenses pursuant to the disciplinary proceedings provided for in this chapter.
(f) Present an annual budget to the Mississippi Legislature for approval. A copy of the budget shall be given to the State Board of Contractors.
(2) The members of the State Board of Contractors and board shall be immune from any civil action or criminal prosecution for initiating or assisting in any lawful investigation of the actions of, or participating in any disciplinary proceeding concerning, a home inspector licensed pursuant to this chapter, provided that such action is taken without malicious intent and in the reasonable belief that the action was taken pursuant to the powers and duties vested in the members of the State Board of Contractors and board under this chapter.
SECTION 5. Section 73-60-9, Mississippi Code of 1972, is amended as follows:
73-60-9. (1) No person may engage in or transact any home inspection business, or hold himself out to the public as a home inspector, or offer to engage in or transact any home inspection business in this state unless the person is licensed by the board.
(2) No license shall be issued under the provisions of this chapter to a partnership, association, corporation, limited liability company or partnership, firm or group. However, nothing in this chapter precludes a licensed home inspector from performing home inspection for and on behalf of a partnership, association, corporation, limited liability company or partnership, firm or group or from entering into contracts or enforcing contracts as partnership, association, corporation, limited liability company or partnership, firm or group.
SECTION 6. Section 73-60-11, Mississippi Code of 1972, is amended as follows:
73-60-11. (1) An application for an original license shall be made in writing to the board on forms as the board may prescribe and shall be accompanied by the required fee and proof of liability insurance and errors and omissions insurance.
(2) To qualify for a license under this chapter, a person shall:
(a) Have successfully completed high school or its equivalent;
(b) Be at least twenty-one (21) years of age;
(c) Have successfully completed an approved course of study of at least sixty (60) hours that may include field work as prescribed by the commission;
(d) Have passed an examination as prescribed by the commission; and
(e) Provide a certificate of insurance for errors and omissions and general liability insurance (in the required amounts) pursuant to Section 73-60-15.
(3) The commission must review each application for a license submitted to it and must notify each applicant that the application is either accepted or rejected. The commission must send notification of acceptance or rejections to the applicant at the address provided by the applicant in the application within thirty (30) days of receiving the application. If the application is rejected, the notice sent to the applicant must state the reasons for the rejection.
SECTION 7. Section 73-60-17, Mississippi Code of 1972, is amended as follows:
73-60-17. (1) A licensed home inspector is required to follow the most current version of the Standards of Practice and Code of Ethics as adopted and published by the commission.
(2) A home inspection report must be issued by a home inspector to a client as specified in the most current version of the Standards of Practice.
SECTION 8. Section 73-60-21, Mississippi Code of 1972, is amended as follows:
73-60-21. Except as provided in Section 33-1-39, a license under this chapter shall expire two (2) years after its date of issuance. The board may issue a renewal license without examination, on submission of a completed renewal application, payment of the required license renewal fee, and successful completion of continuing education requirements.
SECTION 9. Section 73-60-23, Mississippi Code of 1972, is amended as follows:
73-60-23. (1) Each person who applies for renewal of his license shall successfully complete home inspector continuing education courses approved by the board at the rate of twelve (12) hours every * * * year which shall include two (2) hours on new home construction related topics. No license may be renewed except upon the successful completion of the required courses or their equivalent or upon a waiver of those requirements for good cause shown as determined by the board pursuant to rule with the recommendation of the regulatory board.
(2) The board shall establish criteria for certifying providers of continuing education for home inspectors. All such continuing education providers must be approved by the board.
(3) Each renewal applicant shall certify, on his or her renewal application, full compliance with continuing education requirements. The provider of approval of continuing education shall retain and submit to the board, after the completion of each course, evidence of those successfully completing the course.
SECTION 10. Section 73-60-27, Mississippi Code of 1972, is amended as follows:
73-60-27. (1) On or after July 1, 2001, any person who acts as a home inspector, or holds himself out as a home inspector, without being licensed under this chapter, shall, in addition to any other penalty provided by law, be liable for an administrative fine not to exceed One Thousand Dollars ($1,000.00) for a first offense and not to exceed Five Thousand Dollars ($5,000.00) for a second or subsequent offense as determined by the board.
(2) The commission has the authority and power to investigate any and all unlicensed activity.
(3) No licensed home inspector may perform repairs on a residential building as part of or result of the home inspection.
(4) After October 1, 2001, no person licensed under this chapter shall offer to perform or perform inspection services on new construction for a fee without having first obtained a residential home builders license from the Mississippi Board of Contractors and certification by the Southern Building Code Congress or any other national professional code organization.
SECTION 11. Section 73-60-29, Mississippi Code of 1972, is amended as follows:
73-60-29. The commission shall charge and collect * * * fees for its services under this chapter. The fees charged shall be in the amounts indicated below and shall be set by the board.
LICENSURE FEES:
Application and examination...........................$175.00
Initial and annual renewal license...........................$200.00
Delinquent renewal penalty................100% of renewal fee
SERVICES:
For each change of address.............................$25.00
For each duplicate license.............................$25.00
To change status as a licensee from active to inactive.$25.00
For each bad check received by the commission..........$25.00
All fees charged and collected under this chapter shall be paid by the board at least once a week, accompanied by a detailed statement thereof, to the credit of the fund known as the "Home Inspector License Fund," hereby created in the State Treasury. All monies which are collected under this chapter shall be paid into and credited to such fund for the use of the board in carrying out the provisions of the chapter including the payment of salaries and expenses, printing an annual directory of licensees, and for educational purposes. All interest earned on the Home Inspector License Fund shall be retained by the board for purposes consistent with this chapter. The board shall submit a monthly statement to the State Board of Contractors detailing any expenses which it bears as a share in the expense of administering this chapter, for which expenses it shall be reimbursed in the amount approved by the board. The board shall prepare an annual statement of income and expenses related to its regulatory related administrative function.
SECTION 12. Section 73-60-31, Mississippi Code of 1972, is amended as follows:
73-60-31. The board may refuse to issue or to renew or may revoke or suspend a license or may place on probation, censure, reprimand, or take other disciplinary action with regard to any license issued under this chapter, including the issuance of fines for each violation, for any one (1) or combination of the following causes:
(a) Violations of this chapter or the board's rules promulgated pursuant hereto;
(b) Violation of terms of license probation;
(c) Conviction of a felony or making a plea of guilty or nolo contendere within five (5) years prior to the date of application;
(d) Operating without adequate insurance coverage required for licensees; and
(e) Fraud in the procurement or performance of a contract to conduct a home inspection.
SECTION 13. Section 73-60-33, Mississippi Code of 1972, is amended as follows:
73-60-33. (1) The board may investigate the actions of an applicant or of a person holding or claiming to hold a license upon complaint in writing of any person setting forth facts which, if proved, would constitute a violation of this chapter or rules promulgated hereunder.
(2) Whenever it appears to the board that any person has engaged or is about to engage in any act or practice constituting a violation of any provision of this chapter or any rule or order hereunder, they may, in their discretion, seek any or all of the following remedies:
(a) When in the public interest to prevent harm to the welfare and safety of the public, issue a cease and desist order, with or without a prior hearing against the person or persons engaged in the prohibited activities, directing them to cease and desist from further illegal activity; or
(b) Bring an action in chancery court to enjoin the acts or practices to enforce compliance with this chapter or any rule or order hereunder. Upon a proper showing a permanent or temporary injunction, restraining order or writ of mandamus shall be granted and a receiver or conservator may be appointed for the defendant or the defendant's assets.
(3) With the exception of actions authorized by subsection (2)(a) and (b) above, the board shall, before taking any disciplinary action that it may deem proper with regard to a license, at least twenty (20) days prior to the date set for a hearing, notify the applicant or licensee in writing of any charges made and the time and place for a hearing of the charges. Such written notice may be served by personal delivery or certified or registered mail at the licensee's last known address as reflected on their licensing application.
(4) The board shall, after a hearing, issue an order either issuing, renewing, refusing to issue or renew, reinstating, or revoking the license.
SECTION 14. Section 73-60-35, Mississippi Code of 1972, is amended as follows:
73-60-35. (1) Upon the revocation or suspension of a license, the licensee shall immediately surrender the license to the board. If the licensee fails to do so, the board shall have the right to seize the license.
(2) If circumstances of suspension or revocation so indicate, the board may require an examination of the licensee before restoring his license.
SECTION 15. Section 73-60-37, Mississippi Code of 1972, is amended as follows:
73-60-37. The board shall maintain a roster of names and addresses of all licenses and of all persons whose licenses have been suspended or revoked. This roster shall be published on a web site designated by the board. All licensees under this chapter shall inform the board of any change in their business or home address.
SECTION 16. Section 73-60-39, Mississippi Code of 1972, is amended as follows:
73-60-39. A person already engaged in the business of performing home inspections on July 1, 2001, is allowed ninety (90) days from July 1, 2001, to comply with the provisions of this chapter for the purpose of qualifying to perform home inspections. Such person will qualify for a license without being required to take an examination if he can document to the satisfaction of the board that he has conducted not less than twenty (20) fee-paid home inspections in the previous twelve (12) months or one hundred (100) fee-paid home inspections over his career or that he has received certification as a home inspector from a nationally recognized education center in a curriculum approved by the United States Department of Housing and Urban Development and the United States Department of Education.
SECTION 17. Section 73-60-41, Mississippi Code of 1972, is amended as follows:
73-60-41. The information contained in or filed with any registration application or renewal application is subject to public disclosure. Information in the possession of, submitted to or obtained by the commission in connection with any investigation or examination under this chapter shall be confidential and exempt from the requirements of the Mississippi Public Records Act of 1983. No such information may be disclosed by the board or its employees unless necessary or appropriate in connection with a particular investigation or proceeding under this chapter or for any law enforcement purpose, in the absence of an order of a court of competent jurisdiction requiring such disclosure.
SECTION 18. 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. 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 board may administer an oral examination to applicants who are unable to take the written examination. 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: (i) experience and ability, (ii) character, (iii) the manner of performance of previous contracts, (iv) financial condition, (v) equipment, (vi) personnel, (vii) work completed, (viii) work on hand, (ix) ability to perform satisfactorily work under contract at the time of an application for a certificate of responsibility or a renewal thereof, (x) default in complying with provisions of this law, or any other law of the state, and (xi) 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.
The holder of a valid certificate of responsibility shall disclose to the owner or other person with whom the holder is contracting at the signing of a contract or the initial agreement to perform work whether the holder carries general liability insurance. The disclosure shall be written, the structure and composition of which shall be determined by the State Board of Contractors, and shall be placed immediately before the space reserved in the contract for the signature of the purchaser. The disclosure shall be boldfaced and conspicuous type which is larger than the type of the remaining text of the contract.
(i) The board shall assist the Home Inspector Regulatory Board in carrying out its duties under Section 73-60-1 et seq.
SECTION 19. This act shall take effect and be in force from and after July 1, 2011.