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H.B. 133

             1     

NATURAL GAS TECHNICIAN

             2     
CERTIFICATION

             3     
2002 GENERAL SESSION

             4     
STATE OF UTAH

             5     
Sponsor: Gordon E. Snow

             6      Eric K Hutchings              7      This act modifies the Construction Trades Licensing Act. The act provides that a person
             8      that installs or repairs a residential or commercial natural gas appliance or a combustion
             9      system must become certified. The act modifies certain exemptions from licensure. The act
             10      adds and modifies definitions. The act modifies unlawful conduct penalty provisions.
             11      This act affects sections of Utah Code Annotated 1953 as follows:
             12      AMENDS:
             13          58-55-102, as last amended by Chapters 233 and 317, Laws of Utah 2000
             14          58-55-305, as last amended by Chapter 227, Laws of Utah 2001
             15          58-55-308, as last amended by Chapter 317, Laws of Utah 2000
             16          58-55-503, as last amended by Chapters 198 and 361, Laws of Utah 2001
             17      Be it enacted by the Legislature of the state of Utah:
             18          Section 1. Section 58-55-102 is amended to read:
             19           58-55-102. Definitions.
             20          In addition to the definitions in Section 58-1-102 , as used in this chapter:
             21          (1) (a) "Alarm business or company" means a person engaged in the sale, installation,
             22      maintenance, alteration, repair, replacement, servicing, or monitoring of an alarm system.
             23          (b) "Alarm business or company" does not include the activities of:
             24          (i) a person engaged in the manufacture and sale of alarm systems when that person is not
             25      engaged in the installation, maintenance, alteration, repair, replacement, servicing, or monitoring
             26      of alarm systems, and the manufacture or sale occurs only at a place of business established by the
             27      person engaged in the manufacture or sale and does not involve site visits at the place or intended


             28      place of installation of an alarm system; or
             29          (ii) an owner of an alarm system, or an employee of the owner of an alarm system who is
             30      engaged in installation, maintenance, alteration, repair, replacement, servicing, or monitoring of
             31      the alarm system owned by that owner.
             32          (2) "Alarm company agent" means any individual employed within this state by a person
             33      engaged in the alarm business.
             34          (3) "Alarm system" means equipment and devices assembled for the purpose of:
             35          (a) detecting and signaling unauthorized intrusion or entry into or onto certain premises;
             36      or
             37          (b) signaling a robbery or attempted robbery on protected premises.
             38          (4) "Apprentice electrician" means a person licensed under this chapter as an apprentice
             39      electrician who is learning the electrical trade under approved supervision of a master electrician,
             40      residential master electrician, a journeyman electrician, or a residential journeyman electrician.
             41          (5) "Apprentice plumber" means a person licensed under this chapter as an apprentice
             42      plumber who is learning the plumbing trade under approved supervision of a journeyman plumber.
             43          (6) "Approved supervision" means the immediate supervision of apprentices by qualified
             44      licensed electricians or plumbers as a part of a planned program of training.
             45          (7) "Board" means the Contractors Licensing Board, Electrician Licensing Board, Alarm
             46      System Security and Licensing Board, or Plumbers Licensing Board created in Section 58-55-201 .
             47          (8) "Combustion system" means an assembly consisting of components with a means for
             48      conveying natural gas from the shutoff valve of the piping system nearest the gas appliance to the
             49      burner and includes electric control and combustion air supply and venting systems, either
             50      continuously or intermittently, and that incorporates components intended to achieve control of
             51      quantity, flow, and pressure.
             52          [(8)] (9) "Construction trade" means any trade or occupation involving:
             53          (a) construction, alteration, remodeling, repairing, wrecking or demolition, addition to, or
             54      improvement of any building, highway, road, railroad, dam, bridge, structure, excavation or other
             55      project, development, or improvement to other than personal property[.]; or
             56          (b) installation or repair of a residential or commercial natural gas appliance or a
             57      combustion system.
             58          [(9)] (10) "Construction trades instructor" means a person licensed under this chapter to


             59      teach one or more construction trades in both a classroom and project environment, where a project
             60      is intended for sale to or use by the public and is completed under the direction of an instructor
             61      who has no economic interest in the project.
             62          [(10)] (11) (a) "Contractor" means any person who for compensation other than wages as
             63      an employee undertakes any work in the construction, plumbing, or electrical trade for which
             64      licensure is required under this chapter and includes:
             65          (i) a person who builds any structure on his own property for the purpose of sale or who
             66      builds any structure intended for public use on his own property;
             67          (ii) any person who represents himself to be a contractor by advertising or any other
             68      means;
             69          (iii) any person engaged as a maintenance person, other than an employee, who regularly
             70      engages in activities set forth under the definition of "construction trade";
             71          (iv) any person engaged in any construction trade for which licensure is required under this
             72      chapter; or
             73          (v) a construction manager who performs management and counseling services on a
             74      construction project for a fee.
             75          (b) "Contractor" does not include an alarm company or alarm company agent.
             76          [(11)] (12) (a) "Electrical trade" means the performance of any electrical work involved
             77      in the installation, construction, alteration, change, repair, removal, or maintenance of facilities,
             78      buildings, or appendages or appurtenances.
             79          (b) "Electrical trade" does not include:
             80          (i) transporting or handling electrical materials;
             81          (ii) preparing clearance for raceways for wiring; or
             82          (iii) work commonly done by unskilled labor or any installations under the exclusive
             83      control of electrical utilities.
             84          (c) For purposes of Subsection [(11)] (12)(b):
             85          (i) no more than one unlicensed person may be so employed unless more than five licensed
             86      electricians are employed by the shop; and
             87          (ii) a shop may not employ unlicensed persons in excess of the five-to-one ratio permitted
             88      by this Subsection [(11)] (12)(c).
             89          [(12)] (13) "Employee" means an individual as defined by the division by rule giving


             90      consideration to the definition adopted by the Internal Revenue Service and the Department of
             91      Workforce Services.
             92          [(13)] (14) "Engage in a construction trade" means to:
             93          (a) engage in, represent oneself to be engaged in, or advertise oneself as being engaged in
             94      a construction trade; or
             95          (b) use the name "contractor" or "builder" or in any other way lead a reasonable person to
             96      believe one is or will act as a contractor.
             97          [(14)] (15) "Financial responsibility" means a demonstration of a current and expected
             98      future condition of financial solvency evidencing a reasonable expectation to the division and the
             99      board that an applicant or licensee can successfully engage in business as a contractor without
             100      jeopardy to the public health, safety, and welfare. Financial responsibility may be determined by
             101      an evaluation of the total history concerning the licensee or applicant including past, present, and
             102      expected condition and record of financial solvency and business conduct.
             103          (16) "Gas appliance" means any device that uses natural gas to produce light, heat, power,
             104      steam, hot water, refrigeration, or air conditioning.
             105          [(15)] (17) "General building contractor" means a person licensed under this chapter as a
             106      general building contractor qualified by education, training, experience, and knowledge to perform
             107      or superintend construction of structures for the support, shelter, and enclosure of persons, animals,
             108      chattels, or movable property of any kind or any of the components of that construction except
             109      plumbing, electrical, and mechanical, for which the general building contractor shall employ the
             110      services of a contractor licensed in the particular specialty, except that a general building
             111      contractor engaged in the construction of single-family and multifamily residences up to four units
             112      may perform the mechanical and hire a licensed plumber or electrician as an employee. The
             113      division may by rule exclude general building contractors from engaging in the performance of
             114      other construction specialties in which there is represented a substantial risk to the public health,
             115      safety, and welfare, and for which a license is required unless that general building contractor
             116      holds a valid license in that specialty classification.
             117          [(16)] (18) "General engineering contractor" means a person licensed under this chapter
             118      as a general engineering contractor qualified by education, training, experience, and knowledge
             119      to perform construction of fixed works in any or all of the following: irrigation, drainage, water,
             120      power, water supply, flood control, inland waterways, harbors, railroads, highways, tunnels,


             121      airports and runways, sewers and bridges, refineries, pipelines, chemical and industrial plants
             122      requiring specialized engineering knowledge and skill, piers, and foundations, or any of the
             123      components of those works. However, a general engineering contractor may not perform
             124      construction of structures built primarily for the support, shelter, and enclosure of persons,
             125      animals, and chattels.
             126          [(17)] (19) "Immediate supervision" means reasonable direction, oversight, inspection, and
             127      evaluation of the work of a person, in or out of the immediate presence of the supervising person,
             128      so as to ensure that the end result complies with applicable standards.
             129          [(18)] (20) "Individual" means a natural person.
             130          [(19)] (21) "Journeyman electrician" means a person licensed under this chapter as a
             131      journeyman electrician having the qualifications, training, experience, and knowledge to wire,
             132      install, and repair electrical apparatus and equipment for light, heat, power, and other purposes.
             133          [(20)] (22) "Journeyman plumber" means a person licensed under this chapter as a
             134      journeyman plumber having the qualifications, training, experience, and technical knowledge to
             135      engage in the plumbing trade.
             136          [(21)] (23) "Master electrician" means a person licensed under this chapter as a master
             137      electrician having the qualifications, training, experience, and knowledge to properly plan, layout,
             138      and supervise the wiring, installation, and repair of electrical apparatus and equipment for light,
             139      heat, power, and other purposes.
             140          [(22)] (24) "Person" means a natural person, sole proprietorship, joint venture, corporation,
             141      limited liability company, association, or organization of any type.
             142          [(23)] (25) "Plumbing trade" means the performance of any mechanical work pertaining
             143      to the installation, alteration, change, repair, removal, maintenance, or use in buildings or within
             144      three feet beyond the outside walls of buildings of pipes, fixtures, and fittings for delivery of the
             145      water supply, discharge of liquid and water carried waste, or the building drainage system within
             146      the walls of the building. It includes that work pertaining to the water supply, distribution pipes,
             147      fixtures, and fixture traps, the soil, waste and vent pipes, and the building drain and roof drains
             148      together with their devices, appurtenances, and connections where installed within the outside
             149      walls of the building.
             150          [(24)] (26) "Ratio of apprentices" means, for the purpose of determining compliance with
             151      the requirements for planned programs of training and electrician apprentice licensing applications,


             152      the shop ratio of apprentice electricians to journeyman or master electricians shall be one
             153      journeyman or master electrician to one apprentice on industrial and commercial work, and one
             154      journeyman or master electrician to three apprentices on residential work. All on-the-job training
             155      shall be under circumstances in which the ratio of apprentices to supervisors is in accordance with
             156      a ratio of one-to-one on nonresidential work and up to three apprentices to one supervisor on
             157      residential projects.
             158          [(25)] (27) "Residential and small commercial contractor" means a person licensed under
             159      this chapter as a residential and small commercial contractor qualified by education, training,
             160      experience, and knowledge to perform or superintend the construction of single-family residences,
             161      multifamily residences up to four units, and commercial construction of not more than three stories
             162      above ground and not more than 20,000 square feet, or any of the components of that construction
             163      except plumbing, electrical, and mechanical, for which the residential and small commercial
             164      contractor shall employ the services of a contractor licensed in the particular specialty, except that
             165      a residential and small commercial contractor engaged in the construction of single-family and
             166      multifamily residences up to four units may perform the mechanical work and hire a licensed
             167      plumber or electrician as an employee.
             168          [(26)] (28) "Residential apprentice plumber" means a person licensed under this chapter
             169      as a residential apprentice plumber who is learning the residential plumbing trade while working
             170      on residential buildings under the approved supervision of a residential journeyman plumber or
             171      a journeyman plumber.
             172          [(27)] (29) "Residential building," as it relates to the license classification of residential
             173      apprentice plumber and residential journeyman plumber, means a single or multiple family
             174      dwelling of up to four units.
             175          [(28)] (30) "Residential journeyman electrician" means a person licensed under this
             176      chapter as a residential journeyman electrician having the qualifications, training, experience, and
             177      knowledge to wire, install, and repair electrical apparatus and equipment for light, heat, power, and
             178      other purposes on buildings using primarily nonmetallic sheath cable.
             179          [(29)] (31) "Residential journeyman plumber" means a person licensed under this chapter
             180      as a residential journeyman plumber having the qualifications, training, experience, and knowledge
             181      to engage in the plumbing trade as limited to the plumbing of residential buildings.
             182          [(30)] (32) "Residential master electrician" means a person licensed under this chapter as


             183      a residential master electrician having the qualifications, training, experience, and knowledge to
             184      properly plan, layout, and supervise the wiring, installation, and repair of electrical apparatus and
             185      equipment for light, heat, power, and other purposes on residential projects.
             186          [(31)] (33) "Residential project," as it relates to an electrician or electrical contractor,
             187      means buildings primarily wired with nonmetallic sheathed cable, in accordance with standard
             188      rules and regulations governing this work, including the National Electrical Code, and in which
             189      the voltage does not exceed 250 volts line to line and 125 volts to ground.
             190          [(32)] (34) "Specialty contractor" means a person licensed under this chapter under a
             191      specialty contractor classification established by rule, who is qualified by education, training,
             192      experience, and knowledge to perform those construction trades and crafts requiring specialized
             193      skill the regulation of which are determined by the division to be in the best interest of the public
             194      health, safety, and welfare. A specialty contractor may perform work in crafts or trades other than
             195      those in which he is licensed if they are incidental to the performance of his licensed craft or trade.
             196          [(33)] (35) "Unlawful conduct" is as defined in Sections 58-1-501 and 58-55-501 .
             197          [(34)] (36) "Unprofessional conduct" is as defined in Sections 58-1-501 and 58-55-502
             198      and as may be further defined by rule.
             199          [(35)] (37) "Wages" means all amounts due an employee for labor or services whether the
             200      amount is fixed or ascertained on a time, task, piece, commission, or other basis for calculating the
             201      amount.
             202          Section 2. Section 58-55-305 is amended to read:
             203           58-55-305. Exemptions from licensure.
             204          In addition to the exemptions from licensure in Section 58-1-307 , the following persons
             205      may engage in acts or practices included within the practice of construction trades subject to the
             206      stated circumstances and limitations without being licensed under this chapter:
             207          (1) an authorized representative of the United States government or an authorized
             208      employee of the state or any of its political subdivisions when working on construction work of
             209      the state or the subdivision, and when acting within the terms of his trust, office, or employment;
             210          (2) a person engaged in construction or operation incidental to the construction and repair
             211      of irrigation and drainage ditches of regularly constituted irrigation districts, reclamation districts,
             212      and drainage districts or construction and repair relating to farming, dairying, agriculture, livestock
             213      or poultry raising, metal and coal mining, quarries, sand and gravel excavations, well drilling,


             214      hauling to and from construction sites, and lumbering;
             215          (3) public utilities operating under the rules of the Public Service Commission on
             216      construction work incidental to their own business;
             217          (4) sole owners of property engaged in building:
             218          (a) no more than one residential structure per year and no more than three residential
             219      structures per five years on their property for their own noncommercial, nonpublic use; except, any
             220      person other than the property owner or individuals described in Subsection (5) who engages in
             221      building the structure must be licensed under this chapter if he is otherwise required to be licensed
             222      under this chapter; or
             223          (b) structures on their property for their own noncommercial, nonpublic use which are
             224      incidental to a residential structure on the property, including sheds, carports, or detached garages;
             225          (5) (a) an individual engaged in construction or renovation of a residential building for
             226      noncommercial, nonpublic use if that person:
             227          (i) works without compensation other than token compensation that is not considered
             228      salary or wages; and
             229          (ii) works under the direction of the property owner who engages in building the structure;
             230          (b) for purposes of this Subsection (5), "token compensation" means compensation paid
             231      by a sole owner of property exempted from licensure under Subsection (4) to an individual
             232      exempted from licensure under this Subsection (5), that is:
             233          (i) minimal in value when compared with the fair market value of the services provided
             234      by the individual;
             235          (ii) not related to the fair market value of the services provided by the individual; and
             236          (iii) is incidental to providing of services by the individual including paying for or
             237      providing meals or refreshment while services are being provided, or paying reasonable
             238      transportation costs incurred by the individual in travel to the site of construction;
             239          (6) a person engaged in the sale or merchandising of personal property that by its design
             240      or manufacture may be attached, installed, or otherwise affixed to real property who has contracted
             241      with a person, firm, or corporation licensed under this chapter to install, affix, or attach that
             242      property;
             243          (7) a contractor submitting a bid on a federal aid highway project, if, before undertaking
             244      any construction under that bid, the contractor is licensed under this chapter;


             245          (8) (a) a person engaged in the alteration, repair, remodeling, or addition to or
             246      improvement of any building with a contracted or agreed value of less than $1,000, including both
             247      labor and materials, and including all changes or additions to the contracted or agreed upon work;
             248          (b) notwithstanding Subsection (8)(a)[,]:
             249          (i) work in the plumbing and electrical trades must be performed by a licensed electrician
             250      or plumber except as otherwise provided in this section; and
             251          (ii) installation, repair, or replacement of a residential or commercial gas appliance or a
             252      combustion system must be performed by a person who has received certification under Subsection
             253      58-55-308 (2);
             254          (9) a person practicing a specialty contractor classification or construction trade which is
             255      not classified by rule by the director as significantly impacting the public's health, safety, and
             256      welfare;
             257          (10) owners and lessees of property and persons regularly employed for wages by owners
             258      or lessees of property or their agents for the purpose of maintaining the property, are exempt from
             259      this chapter when doing work upon the property;
             260          (11) (a) a person engaged in minor plumbing work incidental to the replacement or repair
             261      of a fixture or an appliance in a residential or small commercial building, or structure used for
             262      agricultural use, as defined in Section 58-56-4 , provided that no modification is made to:
             263          (i) existing culinary water, soil, waste, or vent piping; or
             264          (ii) a gas appliance or combustion system;
             265          (b) except as provided in Subsection (5), installation for the first time of a fixture or an
             266      appliance is not included in the exemption provided under Subsection (11)(a);
             267          (12) a person who ordinarily would be subject to the plumber licensure requirements set
             268      forth in this chapter when installing or repairing a water conditioner or other water treatment
             269      apparatus if the conditioner or apparatus:
             270          (a) meets the appropriate state construction codes or local plumbing standards; and
             271          (b) is installed or repaired under the direction of a person authorized to do such work under
             272      an appropriate specialty contractor license;
             273          (13) a person who ordinarily would be subject to the electrician licensure requirements set
             274      forth in this chapter when employed by or under contract with:
             275          (a) railroad corporations, telephone corporations or their corporate affiliates, elevator


             276      contractors or constructors, or street railway systems; or
             277          (b) public service corporations, rural electrification associations, or municipal utilities who
             278      generate, distribute, or sell electrical energy for light, heat, or power;
             279          (14) a person involved in minor electrical work incidental to a mechanical or service
             280      installation; and
             281          (15) a student participating in construction trade education and training programs approved
             282      by the division in collaboration with the board under the condition that:
             283          (a) all work intended as a part of a finished product on which there would normally be an
             284      inspection by a building inspector is, in fact, inspected and found acceptable by a licensed building
             285      inspector; and
             286          (b) a licensed contractor obtains the necessary building permits.
             287          Section 3. Section 58-55-308 is amended to read:
             288           58-55-308. Scope of practice -- Rules.
             289          (1) The division, in collaboration with the board, may adopt rules pursuant to Title 63,
             290      Chapter 46a, Utah Administrative Rulemaking Act, to define and limit the scope of practice and
             291      operating standards of the classifications and subclassifications licensed under this chapter in a
             292      manner consistent with established practice in the relevant industry. The division and the board
             293      may limit the field and scope of operations of a licensee under this chapter in accordance with the
             294      rules and the public health, safety, and welfare, based on the licensee's education, training,
             295      experience, knowledge, and financial responsibility.
             296          (2) (a) The work and scope of practice covered by this Subsection (2) is the installation,
             297      repair, or replacement of a residential or commercial gas appliance or combustion system.
             298          (b) The provisions of this Subsection (2) apply to any:
             299          (i) licensee under this chapter whose license authorizes the licensee to perform the work
             300      described in Subsection (2)(a); and
             301          (ii) person exempt from licensure under Subsection 58-55-305 (8).
             302          (c) Any person described in Subsection (2)(b) that performs work described in Subsection
             303      (2)(a):
             304          (i) must first receive training and certification as specified in rules adopted by the division;
             305      and
             306          (ii) shall ensure that any employee authorized under other provisions of this chapter to


             307      perform work described in Subsection (2)(a) has first received training and certification as
             308      specified in rules adopted by the division.
             309          (d) The division may exempt from the training requirements adopted under Subsection
             310      (2)(c) a person that has adequate experience, as determined by the division.
             310a           h (e) THE DIVISION S [MAY] SHALL s EXEMPT FROM INITIAL CERTIFICATION REQUIREMENTS ADOPTED
             310b      UNDER SUBSECTION (2)(c) A PERSON WHO HAS PASSED A TEST EQUIVALENT TO THE LEVEL OF
             310c      TESTING REQUIRED BY THE DIVISION FOR CERTIFICATION, OR HAS COMPLETED AN
             310d      APPRENTICESHIP PROGRAM THAT TEACHES THE INSTALLATION OF GAS LINE APPLIANCES AND
             310e      IS APPROVED BY THE FEDERAL BUREAU OF APPRENTICESHIP TRAINING. h
             311          [(2)] (3) This section does not prohibit a licensed specialty contractor from accepting and
             312      entering into a contract involving the use of two or more crafts or trades if the performance of the
             313      work in the crafts or trades, other than that in which he is licensed, is incidental and supplemental
             314      to the work for which he is licensed.
             315          Section 4. Section 58-55-503 is amended to read:
             316           58-55-503. Penalty for unlawful conduct -- Citations.
             317          (1) Any person who violates Subsection 58-55-308 (2) or Subsection 58-55-501 (1), (2),
             318      (3), (4), (5), (6), (7), (9), (10), (12), (14), or (15), or who fails to comply with a citation issued
             319      under this section after it is final, is guilty of a class A misdemeanor. Any person who violates the
             320      provisions of Subsection 58-55-501 (8) may not be awarded and may not accept a contract for the
             321      performance of the work.
             322          (2) Any person who violates the provisions of Subsection 58-55-501 (13) is guilty of an
             323      infraction unless the violator did so with the intent to deprive the person to whom money is to be
             324      paid of the money received, in which case the violator is guilty of theft, as classified in Section
             325      76-6-412 .
             326          (3) Grounds for immediate suspension of the licensee's license by the division and the
             327      board include the issuance of a citation for violation of Subsection 58-55-308 (2) or Section
             328      58-55-501 or the failure by a licensee to make application to, report to, or notify the division with
             329      respect to any matter for which application, notification, or reporting is required under this chapter
             330      or rules adopted under this chapter, including applying to the division for a new license to engage
             331      in a new specialty classification or to do business under a new form of organization or business
             332      structure, filing with the division current financial statements, notifying the division concerning
             333      loss of insurance coverage, or change in qualifier.
             334          (4) (a) If upon inspection or investigation, the division concludes that a person has violated
             335      the provisions of Subsection 58-55-308 (2) or Subsections 58-55-501 (1), (2), (3), (9), (10), (12),
             336      (14), (19), or any rule or order issued with respect to these subsections, and that disciplinary action
             337      is appropriate, the director or his designee from within the division for each alternative


             338      respectively, shall, promptly issue a citation to the person according to this chapter and any
             339      pertinent rules, attempt to negotiate a stipulated settlement, or notify the person to appear before
             340      an adjudicative proceeding conducted under Title 63, Chapter 46b, Administrative Procedures Act.
             341          (i) Any person who is in violation of the provisions of Subsection 58-55-308 (2) or
             342      Subsection 58-55-501 (1), (2), (3), (9), (10), (12), (14), or (19), as evidenced by an uncontested
             343      citation, a stipulated settlement, or by a finding of violation in an adjudicative proceeding, may be
             344      assessed a fine pursuant to this Subsection (4) and may, in addition to or in lieu of, be ordered to
             345      cease and desist from violating Subsection 58-55-308 (2) or Subsection 58-55-501 (1), (2), (3), (9),
             346      (10), (12), (14), or (19).
             347          (ii) Except for a cease and desist order, the licensure sanctions cited in Section 58-55-401
             348      may not be assessed through a citation.
             349          (b) Each citation shall be in writing and describe with particularity the nature of the
             350      violation, including a reference to the provision of the chapter, rule, or order alleged to have been
             351      violated. The citation shall clearly state that the recipient must notify the division in writing within
             352      20 calendar days of service of the citation if the recipient wishes to contest the citation at a hearing
             353      conducted under Title 63, Chapter 46b, Administrative Procedures Act. The citation shall clearly
             354      explain the consequences of failure to timely contest the citation or to make payment of any fines
             355      assessed by the citation within the time specified in the citation.
             356          (c) Each citation issued under this section, or a copy of each citation, may be served upon
             357      any person upon whom a summons may be served in accordance with the Utah Rules of Civil
             358      Procedure and may be made personally or upon his agent by a division investigator or by any
             359      person specially designated by the director or by mail.
             360          (d) If within 20 calendar days from the service of a citation, the person to whom the
             361      citation was issued fails to request a hearing to contest the citation, the citation becomes the final
             362      order of the division and is not subject to further agency review. The period to contest a citation
             363      may be extended by the division for cause.
             364          (e) The division may refuse to issue or renew, suspend, revoke, or place on probation the
             365      license of a licensee who fails to comply with a citation after it becomes final.
             366          (f) The failure of an applicant for licensure to comply with a citation after it becomes final
             367      is a ground for denial of license.
             368          (g) No citation may be issued under this section after the expiration of six months


             369      following the occurrence of any violation.
             370          (h) Fines shall be assessed by the director or his designee according to the following:
             371          (i) for a first offense handled pursuant to Subsection (4)(a), a fine of up to $1,000;
             372          (ii) for a second offense handled pursuant to Subsection (4)(a), a fine of up to $2,000; and
             373          (iii) for any subsequent offense handled pursuant to Subsection (4)(a), a fine of up to
             374      $2,000 for each day of continued offense.
             375          (i) (i) For purposes of issuing a final order under this section and assessing a fine under
             376      Subsection (4)(i), an offense constitutes a second or subsequent offense if:
             377          (A) the division previously issued a final order determining that a person committed a first
             378      or second offense in violation of Subsection 58-55-308 (2) or Subsection 58-55-501 (1), (2), (3),
             379      (9), (10), (12), (14), or (19); or
             380          (B) (I) the division initiated an action for a first or second offense;
             381          (II) no final order has been issued by the division in the action initiated under Subsection
             382      (4) (i)(i)(B)(I);
             383          (III) the division determines during an investigation that occurred after the initiation of the
             384      action under Subsection (4) (i)(i)(B)(I) that the person committed a second or subsequent violation
             385      of the provisions of Subsection 58-55-308 (2) or Subsection 58-55-501 (1), (2), (3), (9), (10), (12),
             386      (14), or (19); and
             387          (IV) after determining that the person committed a second or subsequent offense under
             388      Subsection (4) (i)(i)(B)(III), the division issues a final order on the action initiated under
             389      Subsection (4) (i)(i)(B)(I).
             390          (ii) In issuing a final order for a second or subsequent offense under Subsection (4) (i)(i),
             391      the division shall comply with the requirements of this section.
             392          (5) Any penalty imposed by the director under Subsection (4) (h) shall be deposited into
             393      the Commerce Service Fund. Any penalty which is not paid may be collected by the director by
             394      either referring the matter to a collection agency or bringing an action in the district court of the
             395      county in which the person against whom the penalty is imposed resides or in the county where
             396      the office of the director is located. Any county attorney or the attorney general of the state is to
             397      provide legal assistance and advice to the director in any action to collect the penalty. In any
             398      action brought to enforce the provisions of this section, reasonable attorney's fees and costs shall
             399      be awarded.






Legislative Review Note
    as of 1-22-02 3:20 PM


A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel


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