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First Substitute H.B. 302
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6 LONG TITLE
7 General Description:
8 This bill transfers the regulation and administration of contractor related regulation
9 from the Division of Occupations and Professional Licensing to the Division of Real
10 Estate.
11 Highlighted Provisions:
12 This bill:
13 . addresses the Division of Real Estate's authority related to liens;
14 . directs the Division of Real Estate to oversee the construction notice registry;
15 . requires the Division of Real Estate to administer the Residence Lien Restriction
16 and Lien Recovery Fund Act;
17 . transfers the licensure and regulation of the construction trade industry to the
18 Division of Real Estate including the following provisions:
19 . amends definitions;
20 . amends language related to the Construction Services Commission;
21 . establishes adjudication proceeding requirements;
22 . amends provisions related to licensing boards;
23 . establishes application process for licensing and notification requirements;
24 . addresses the terms of licensure and provides renewal procedures;
25 . provides exemptions from licensure to certain persons;
26 . provides the division with access to Bureau of Criminal Identification records;
27 . provides for licensure by endorsement;
28 . provides for the division issuing temporary or restricted licenses, and adopting
29 rules permitting inactive licenses;
30 . requires written agreement for the voluntary surrender of a license;
31 . amends provisions relating to denial of licensure and disciplinary proceedings;
32 . establishes procedures for administrative review and creates special appeals
33 boards;
34 . provides for suspensions;
35 . establishes a diversion program in disciplinary matters;
36 . amends the definitions of unlawful and unprofessional conduct;
37 . establishes a maximum civil penalty;
38 . requires the division to comply with court-ordered discipline; and
39 . amends payment provisions relating to contractors, subcontractors, and
40 suppliers;
41 . transfers the administration of the Utah Uniform Building Standards Act to the
42 Division of Real Estate and includes the following provisions:
43 . amends definitions; and
44 . amends provisions relating to appointment and responsibilities of the Building
45 Inspector Licensing Board and the collaboration between the division and the
46 board;
47 . provides access to the Division of Real Estate of an index to expunged records; and
48 . makes conforming and technical amendments.
49 Monies Appropriated in this Bill:
50 None
51 Other Special Clauses:
52 This bill takes effect on July 1, 2006.
53 This bill provides coordination clauses.
54 Utah Code Sections Affected:
55 AMENDS:
56 9-4-102, as last amended by Chapter 18, Laws of Utah 2004
57 10-9-106.5, as last amended by Chapter 253, Laws of Utah 2001
58 11-36-102, as last amended by Chapter 239, Laws of Utah 2002
59 13-8-5, as last amended by Chapter 9, Laws of Utah 2001
60 17-27-105.5, as last amended by Chapter 253, Laws of Utah 2001
61 19-5-121, as enacted by Chapter 274, Laws of Utah 2001
62 26-15-3, as last amended by Chapter 218, Laws of Utah 1995
63 26A-1-113, as last amended by Chapter 249, Laws of Utah 2002
64 26A-1-114, as last amended by Chapter 171, Laws of Utah 2003
65 35A-4-303, as last amended by Chapter 21, Laws of Utah 2004
66 38-1-7 (Effective 05/01/05), as last amended by Chapters 85 and 250, Laws of Utah
67 2004
68 38-1-11, as last amended by Chapters 42, 85 and 188, Laws of Utah 2004
69 38-1-27 (Effective 05/01/05), as repealed and reenacted by Chapter 250, Laws of Utah
70 2004
71 38-11-102, as last amended by Chapters 42 and 85, Laws of Utah 2004
72 38-11-103, as last amended by Chapter 172, Laws of Utah 1995
73 38-11-204, as last amended by Chapter 42, Laws of Utah 2004
74 38-11-207, as last amended by Chapter 198, Laws of Utah 2001
75 38-11-301, as last amended by Chapter 198, Laws of Utah 2001
76 38-11-302, as last amended by Chapters 20 and 172, Laws of Utah 1995
77 57-23-4, as enacted by Chapter 262, Laws of Utah 1991
78 58-1-202, as last amended by Chapter 241, Laws of Utah 2002
79 58-1-203, as last amended by Chapter 241, Laws of Utah 2002
80 58-1-301.5, as enacted by Chapter 214, Laws of Utah 2002
81 58-3a-102, as enacted by Chapter 260, Laws of Utah 1996
82 58-3a-602, as enacted by Chapter 260, Laws of Utah 1996
83 58-22-102, as last amended by Chapter 259, Laws of Utah 1996
84 58-22-602, as enacted by Chapter 259, Laws of Utah 1996
85 58-53-304, as renumbered and amended by Chapter 191, Laws of Utah 1998
86 58-53-602, as enacted by Chapter 191, Laws of Utah 1998
87 59-12-102, as last amended by Chapters 1, 156, 255, 298 and 300, Laws of Utah 2004
88 63-2-302, as last amended by Chapters 90 and 173, Laws of Utah 2004
89 63-38-3.2, as last amended by Chapter 16, Laws of Utah 2003
90 63-46b-1, as last amended by Chapter 235, Laws of Utah 2004
91 63A-5-206, as last amended by Chapters 216 and 231, Laws of Utah 2000
92 70D-1-19, as last amended by Chapter 75, Laws of Utah 2004
93 77-18-15, as last amended by Chapter 227, Laws of Utah 1999
94 ENACTS:
95 61-2e-104, Utah Code Annotated 1953
96 61-2e-312, Utah Code Annotated 1953
97 61-2e-313, Utah Code Annotated 1953
98 61-2e-314, Utah Code Annotated 1953
99 61-2e-315, Utah Code Annotated 1953
100 61-2e-316, Utah Code Annotated 1953
101 61-2e-317, Utah Code Annotated 1953
102 61-2e-404, Utah Code Annotated 1953
103 61-2e-405, Utah Code Annotated 1953
104 61-2e-406, Utah Code Annotated 1953
105 61-2e-504, Utah Code Annotated 1953
106 61-2e-505, Utah Code Annotated 1953
107 RENUMBERS AND AMENDS:
108 61-2e-101, (Renumbered from 58-55-101, as renumbered and amended by Chapter 181,
109 Laws of Utah 1994)
110 61-2e-102, (Renumbered from 58-55-102, as last amended by Chapters 39 and 75,
111 Laws of Utah 2004)
112 61-2e-103, (Renumbered from 58-55-103, as last amended by Chapters 61 and 90,
113 Laws of Utah 2004)
114 61-2e-201, (Renumbered from 58-55-201, as last amended by Chapter 241, Laws of
115 Utah 2002)
116 61-2e-301, (Renumbered from 58-55-301, as last amended by Chapter 317, Laws of
117 Utah 2000)
118 61-2e-302, (Renumbered from 58-55-302, as last amended by Chapters 90 and 236,
119 Laws of Utah 2004)
120 61-2e-303, (Renumbered from 58-55-303, as last amended by Chapter 198, Laws of
121 Utah 2001)
122 61-2e-304, (Renumbered from 58-55-304, as last amended by Chapter 14, Laws of
123 Utah 2004)
124 61-2e-305, (Renumbered from 58-55-305, as last amended by Chapters 39 and 191,
125 Laws of Utah 2004)
126 61-2e-306, (Renumbered from 58-55-306, as last amended by Chapter 241, Laws of
127 Utah 2002)
128 61-2e-307, (Renumbered from 58-55-307, as last amended by Chapter 241, Laws of
129 Utah 2002)
130 61-2e-308, (Renumbered from 58-55-308, as last amended by Chapter 39, Laws of
131 Utah 2004)
132 61-2e-309, (Renumbered from 58-55-310, as renumbered and amended by Chapter 181,
133 Laws of Utah 1994)
134 61-2e-310, (Renumbered from 58-55-311, as renumbered and amended by Chapter 317,
135 Laws of Utah 2000)
136 61-2e-311, (Renumbered from 58-55-312, as renumbered and amended by Chapter 317,
137 Laws of Utah 2000)
138 61-2e-401, (Renumbered from 58-55-401, as renumbered and amended by Chapters
139 181 and 308, Laws of Utah 1994)
140 61-2e-402, (Renumbered from 58-55-402, as last amended by Chapters 233 and 317,
141 Laws of Utah 2000)
142 61-2e-403, (Renumbered from 58-55-403, as last amended by Chapter 233, Laws of
143 Utah 2000)
144 61-2e-501 (Effective 07/01/05), (Renumbered from 58-55-501 (Effective 07/01/05), as
145 last amended by Chapter 45, Laws of Utah 2004)
146 61-2e-502, (Renumbered from 58-55-502, as last amended by Chapter 198, Laws of
147 Utah 2001)
148 61-2e-503 (Effective 07/01/05), (Renumbered from 58-55-503 (Effective 07/01/05), as
149 last amended by Chapter 45, Laws of Utah 2004)
150 61-2e-601, (Renumbered from 58-55-601, as renumbered and amended by Chapter 181,
151 Laws of Utah 1994)
152 61-2e-602, (Renumbered from 58-55-602, as last amended by Chapter 365, Laws of
153 Utah 1999)
154 61-2e-603, (Renumbered from 58-55-603, as renumbered and amended by Chapter 181,
155 Laws of Utah 1994)
156 61-2e-604, (Renumbered from 58-55-604, as renumbered and amended by Chapter 181,
157 Laws of Utah 1994)
158 61-2f-101, (Renumbered from 58-56-1, as enacted by Chapter 269, Laws of Utah 1989)
159 61-2f-102, (Renumbered from 58-56-2, as enacted by Chapter 269, Laws of Utah 1989)
160 61-2f-103, (Renumbered from 58-56-3, as last amended by Chapter 75, Laws of Utah
161 2004)
162 61-2f-104, (Renumbered from 58-56-5, as last amended by Chapter 75, Laws of Utah
163 2002)
164 61-2f-201, (Renumbered from 58-56-4, as last amended by Chapters 75 and 110, Laws
165 of Utah 2004)
166 61-2f-202, (Renumbered from 58-56-6, as last amended by Chapter 75, Laws of Utah
167 2002)
168 61-2f-203, (Renumbered from 58-56-7, as last amended by Chapter 75, Laws of Utah
169 2002)
170 61-2f-204, (Renumbered from 58-56-8, as last amended by Chapter 75, Laws of Utah
171 2002)
172 61-2f-205, (Renumbered from 58-56-11, as last amended by Chapter 196, Laws of Utah
173 1997)
174 61-2f-206, (Renumbered from 58-56-12, as last amended by Chapter 75, Laws of Utah
175 2004)
176 61-2f-207, (Renumbered from 58-56-13, as enacted by Chapter 293, Laws of Utah
177 1990)
178 61-2f-208, (Renumbered from 58-56-14, as enacted by Chapter 293, Laws of Utah
179 1990)
180 61-2f-209, (Renumbered from 58-56-15, as last amended by Chapter 75, Laws of Utah
181 2004)
182 61-2f-210, (Renumbered from 58-56-16, as last amended by Chapter 42, Laws of Utah
183 1999)
184 61-2f-211, (Renumbered from 58-56-17, as last amended by Chapter 229, Laws of Utah
185 2003)
186 61-2f-212, (Renumbered from 58-56-17.5, as enacted by Chapter 385, Laws of Utah
187 1997)
188 61-2f-301, (Renumbered from 58-56-8.5, as enacted by Chapter 262, Laws of Utah
189 1995)
190 61-2f-302, (Renumbered from 58-56-9, as last amended by Chapter 75, Laws of Utah
191 2002)
192 Uncodified Material Affected:
193 ENACTS UNCODIFIED MATERIAL
194
195 Be it enacted by the Legislature of the state of Utah:
196 Section 1. Section 9-4-102 is amended to read:
197 9-4-102. Definitions.
198 As used in this chapter:
199 (1) "Accessible housing" means housing which has been constructed or modified to be
200 accessible, as described in the construction codes adopted under Section [
201 (2) "Director" means the director of the division.
202 (3) "Division" means the Division of Housing and Community Development.
203 Section 2. Section 10-9-106.5 is amended to read:
204 10-9-106.5. Manufactured homes.
205 (1) For purposes of this section, a manufactured home is the same as defined in Section
206 [
207 foundation in accordance with plans providing for vertical loads, uplift, and lateral forces and
208 frost protection in compliance with the applicable building code. All appendages, including
209 carports, garages, storage buildings, additions, or alterations must be built in compliance with
210 the applicable building code.
211 (2) A manufactured home may not be excluded from any zone or area in which a
212 single-family residence would be permitted, provided the manufactured home complies with all
213 local zoning, building code, and subdivision requirements, including any restrictive covenants,
214 applicable to single family residence within that zone or area.
215 (3) A municipality may not:
216 (a) adopt or enforce an ordinance or regulation that treats a proposed development that
217 includes manufactured homes differently than one that does not include manufactured homes;
218 or
219 (b) reject a development plan based on the fact that the development is expected to
220 contain manufactured homes.
221 Section 3. Section 11-36-102 is amended to read:
222 11-36-102. Definitions.
223 As used in this chapter:
224 (1) "Building permit fee" means the fees charged to enforce the uniform codes adopted
225 pursuant to Title [
226 greater than the fees indicated in the appendix to the Uniform Building Code.
227 (2) "Capital facilities plan" means the plan required by Section 11-36-201 .
228 (3) "Development activity" means any construction or expansion of a building,
229 structure, or use, any change in use of a building or structure, or any changes in the use of land
230 that creates additional demand and need for public facilities.
231 (4) "Development approval" means any written authorization from a local political
232 subdivision that authorizes the commencement of development activity.
233 (5) "Enactment" means:
234 (a) a municipal ordinance, for municipalities;
235 (b) a county ordinance, for counties; and
236 (c) a governing board resolution, for special districts.
237 (6) "Hookup fees" means reasonable fees, not in excess of the approximate average
238 costs to the political subdivision, for services provided for and directly attributable to the
239 connection to utility services, including gas, water, sewer, power, or other municipal, county,
240 or independent special district utility services.
241 (7) (a) "Impact fee" means a payment of money imposed upon development activity as
242 a condition of development approval.
243 (b) "Impact fee" does not mean a tax, a special assessment, a building permit fee, a
244 hookup fee, a fee for project improvements, or other reasonable permit or application fee.
245 (8) (a) "Local political subdivision" means a county, a municipality, or a special district
246 created under Title 17A, Special Districts.
247 (b) "Local political subdivision" does not mean school districts, whose impact fee
248 activity is governed by Section 53A-20-100.5 .
249 (9) "Private entity" means an entity with private ownership that provides culinary water
250 that is required to be used as a condition of development.
251 (10) (a) "Project improvements" means site improvements and facilities that are:
252 (i) planned and designed to provide service for development resulting from a
253 development activity; and
254 (ii) necessary for the use and convenience of the occupants or users of development
255 resulting from a development activity.
256 (b) "Project improvements" does not mean system improvements.
257 (11) "Proportionate share" means the cost of public facility improvements that are
258 roughly proportionate and reasonably related to the service demands and needs of any
259 development activity.
260 (12) "Public facilities" means only the following capital facilities that have a life
261 expectancy of ten or more years and are owned or operated by or on behalf of a local political
262 subdivision or private entity:
263 (a) water rights and water supply, treatment, and distribution facilities;
264 (b) wastewater collection and treatment facilities;
265 (c) storm water, drainage, and flood control facilities;
266 (d) municipal power facilities;
267 (e) roadway facilities;
268 (f) parks, recreation facilities, open space, and trails; and
269 (g) public safety facilities.
270 (13) (a) "Public safety facility" means a building constructed or leased to house police,
271 fire, or other public safety entities.
272 (b) "Public safety facility" does not mean a jail, prison, or other place of involuntary
273 incarceration.
274 (14) (a) "Roadway facilities" means streets or roads that have been designated on an
275 officially adopted subdivision plat, roadway plan, or general plan of a political subdivision,
276 together with all necessary appurtenances.
277 (b) "Roadway facilities" includes associated improvements to federal or state roadways
278 only when the associated improvements:
279 (i) are necessitated by the new development; and
280 (ii) are not funded by the state or federal government.
281 (c) "Roadway facilities" does not mean federal or state roadways.
282 (15) (a) "Service area" means a geographic area designated by a local political
283 subdivision on the basis of sound planning or engineering principles in which a defined set of
284 public facilities provide service within the area.
285 (b) "Service area" may include the entire local political subdivision.
286 (16) (a) "System improvements" means:
287 (i) existing public facilities that are designed to provide services to service areas within
288 the community at large; and
289 (ii) future public facilities identified in a capital facilities plan that are intended to
290 provide services to service areas within the community at large.
291 (b) "System improvements" does not mean project improvements.
292 Section 4. Section 13-8-5 is amended to read:
293 13-8-5. Definitions -- Limitation on retention proceeds withheld -- Deposit in
294 interest-bearing escrow account -- Release of proceeds -- Payment to subcontractors --
295 Penalty -- No waiver.
296 (1) As used in this section:
297 (a) (i) "Construction contract" means a written agreement between the parties relative
298 to the design, construction, alteration, repair, or maintenance of a building, structure, highway,
299 appurtenance, appliance, or other improvements to real property, including moving,
300 demolition, and excavating for nonresidential commercial or industrial construction projects.
301 (ii) If the construction contract is for construction of a project that is part residential
302 and part nonresidential, this section applies only to that portion of the construction project that
303 is nonresidential as determined pro rata based on the percentage of the total square footage of
304 the project that is nonresidential.
305 (b) "Construction lender" means any person, including a bank, trust company, savings
306 bank, industrial bank, land bank, safe deposit company, private banker, savings and loan
307 association, credit union, cooperative bank, small loan company, sales finance company,
308 investment company, or any other financial institution that advances monies to a borrower for
309 the purpose of making alterations or improvements to real property. A construction lender
310 does not include a person or entity who is acting in the capacity of contractor, original
311 contractor, or subcontractor.
312 (c) "Contractor" means a person who, for compensation other than wages as an
313 employee, undertakes any work in a construction trade, as defined in Section [
314 61-2e-102 and includes:
315 (i) any person engaged as a maintenance person who regularly engages in activities set
316 forth in Section [
317 (ii) a construction manager who performs management and counseling services on a
318 construction project for a fee.
319 (d) "Original contractor" is as provided in Section 38-1-2 .
320 (e) "Owner" means the person who holds any legal or equitable title or interest in
321 property. Owner does not include a construction lender unless the construction lender has an
322 ownership interest in the property other than solely as a construction lender.
323 (f) "Public agency" means any state agency or political subdivision of the state that
324 enters into a construction contract for an improvement of public property.
325 (g) "Retention payment" means release of retention proceeds as defined in Subsection
326 (1)(h).
327 (h) "Retention proceeds" means monies earned by a contractor or subcontractor but
328 retained by the owner or public agency pursuant to the terms of a construction contract to
329 guarantee payment or performance by the contractor or subcontractor of the construction
330 contract.
331 (i) "Subcontractor" is as defined in Section 38-1-2 .
332 (j) "Successful party" has the same meaning as it does under Section 38-1-18 .
333 (2) (a) This section is applicable to all construction contracts relating to construction
334 work or improvements entered into on or after July 1, 1999, between:
335 (i) an owner or public agency and an original contractor;
336 (ii) an original contractor and a subcontractor; and
337 (iii) subcontractors under a contract described in Subsection (2)(a)(i) or (ii).
338 (b) This section does not apply to a construction lender.
339 (3) (a) Notwithstanding Section [
340 withheld and retained from any payment due under the terms of the construction contract may
341 not exceed 5% of the payment:
342 (i) by the owner or public agency to the original contractor;
343 (ii) by the original contractor to any subcontractor; or
344 (iii) by a subcontractor.
345 (b) The total retention proceeds withheld may not exceed 5% of the total construction
346 price.
347 (c) The percentage of the retention proceeds withheld and retained pursuant to a
348 construction contract between the original contractor and a subcontractor or between
349 subcontractors shall be the same retention percentage as between the owner and the original
350 contractor if:
351 (i) the retention percentage in the original construction contract between an owner and
352 the original contractor is less than 5%; or
353 (ii) after the original construction contract is executed but before completion of the
354 construction contract the retention percentage is reduced to less than 5%.
355 (4) (a) If any payment on a contract with a private contractor, firm, or corporation to do
356 work for an owner or public agency is retained or withheld by the owner or the public agency,
357 as retention proceeds, it shall be placed in an interest-bearing account.
358 (b) The interest accrued under Subsection (4)(a) shall be:
359 (i) for the benefit of the contractor and subcontractors; and
360 (ii) paid after the project is completed and accepted by the owner or the public agency.
361 (c) The contractor shall ensure that any interest accrued on the retainage is distributed
362 by the contractor to subcontractors on a pro rata basis.
363 (5) Any retention proceeds retained or withheld pursuant to this section and any
364 accrued interest shall be released pursuant to a billing statement from the contractor within 45
365 days from the later of:
366 (a) the date the owner or public agency receives the billing statement from the
367 contractor;
368 (b) the date that a certificate of occupancy or final acceptance notice is issued to:
369 (i) the original contractor who obtained the building permit from the building inspector
370 or public agency;
371 (ii) the owner or architect; or
372 (iii) the public agency;
373 (c) the date that a public agency or building inspector having authority to issue its own
374 certificate of occupancy does not issue the certificate but permits partial or complete occupancy
375 of a newly constructed or remodeled building; or
376 (d) the date the contractor accepts the final pay quantities.
377 (6) If only partial occupancy of a building is permitted, any retention proceeds withheld
378 and retained pursuant to this section and any accrued interest shall be partially released within
379 45 days under the same conditions as provided in Subsection (5) in direct proportion to the
380 value of the part of the building occupied.
381 (7) The billing statement from the contractor as provided in Subsection (5)(a) shall
382 include documentation of lien releases or waivers.
383 (8) (a) Notwithstanding Subsection (3):
384 (i) if a contractor or subcontractor is in default or breach of the terms and conditions of
385 the construction contract documents, plans, or specifications governing construction of the
386 project, the owner or public agency may withhold from payment for as long as reasonably
387 necessary an amount necessary to cure the breach or default of the contractor or subcontractor;
388 or
389 (ii) if a project or a portion of the project has been substantially completed, the owner
390 or public agency may retain until completion up to twice the fair market value of the work of
391 the original contractor or of any subcontractor that has not been completed:
392 (A) in accordance with the construction contract documents, plans, and specifications;
393 or
394 (B) in the absence of plans and specifications, to generally accepted craft standards.
395 (b) An owner or public agency that refuses payment under Subsection (8)(a) shall
396 describe in writing within 45 days of withholding such amounts what portion of the work was
397 not completed according to the standards specified in Subsection (8)(a).
398 (9) (a) Except as provided in Subsection (9)(b), an original contractor or subcontractor
399 who receives retention proceeds shall pay each of its subcontractors from whom retention has
400 been withheld each subcontractor's share of the retention received within ten days from the day
401 that all or any portion of the retention proceeds is received:
402 (i) by the original contractor from the owner or public agency; or
403 (ii) by the subcontractor from:
404 (A) the original contractor; or
405 (B) a subcontractor.
406 (b) Notwithstanding Subsection (9)(a), if a retention payment received by the original
407 contractor is specifically designated for a particular subcontractor, payment of the retention
408 shall be made to the designated subcontractor.
409 (10) (a) In any action for the collection of the retained proceeds withheld and retained
410 in violation of this section, the successful party is entitled to:
411 (i) attorney's fees; and
412 (ii) other allowable costs.
413 (b) (i) Any owner, public agency, original contractor, or subcontractor who knowingly
414 and wrongfully withholds a retention shall be subject to a charge of 2% per month on the
415 improperly withheld amount, in addition to any interest otherwise due.
416 (ii) The charge described in Subsection (10)(b)(i) shall be paid to the contractor or
417 subcontractor from whom the retention proceeds have been wrongfully withheld.
418 (11) A party to a construction contract may not require any other party to waive any
419 provision of this section.
420 Section 5. Section 17-27-105.5 is amended to read:
421 17-27-105.5. Manufactured homes.
422 (1) For purposes of this section, a manufactured home is the same as defined in Section
423 [
424 foundation in accordance with plans providing for vertical loads, uplift, and lateral forces and
425 frost protection in compliance with the applicable building code. All appendages, including
426 carports, garages, storage buildings, additions, or alterations must be built in compliance with
427 the applicable building code.
428 (2) A manufactured home may not be excluded from any zone or area in which a
429 single-family residence would be permitted, provided the manufactured home complies with
430 all local zoning, building code, and subdivision requirements, including any restrictive
431 covenants, applicable to single-family residence within that zone or area.
432 (3) A county may not:
433 (a) adopt or enforce an ordinance or regulation that treats a proposed development that
434 includes manufactured homes differently than one that does not include manufactured homes;
435 or
436 (b) reject a development plan based on the fact that the development is expected to
437 contain manufactured homes.
438 Section 6. Section 19-5-121 is amended to read:
439 19-5-121. Underground wastewater disposal systems -- Certification required to
440 design, inspect, maintain, or conduct percolation or soil tests -- Exemptions -- Rules --
441 Fees.
442 (1) As used in this section, "maintain" does not include the pumping of an underground
443 wastewater disposal system.
444 (2) (a) Except as provided in Subsections (2)(b) and (2)(c), beginning January 1, 2002,
445 a person may not design, inspect, maintain, or conduct percolation or soil tests for an
446 underground wastewater disposal system, without first obtaining certification from the board.
447 (b) An individual is not required to obtain certification from the board to maintain an
448 underground wastewater disposal system that serves a noncommercial, private residence owned
449 by the individual or a member of the individual's family and in which the individual or a
450 member of the individual's family resides or an employee of the individual resides without
451 payment of rent.
452 (c) The board shall make rules allowing an uncertified individual to conduct
453 percolation or soil tests for an underground wastewater disposal system that serves a
454 noncommercial, private residence owned by the individual and in which the individual resides
455 or intends to reside, or which is intended for use by an employee of the individual without
456 payment of rent, if the individual:
457 (i) has the capability of properly conducting the tests; and
458 (ii) is supervised by a certified individual when conducting the tests.
459 (3) (a) The board shall adopt and enforce rules for the certification and recertification
460 of individuals who design, inspect, maintain, or conduct percolation or soil tests for
461 underground wastewater disposal systems.
462 (b) (i) The rules shall specify requirements for education and training and the type and
463 duration of experience necessary to obtain certification.
464 (ii) The rules shall recognize the following in meeting the requirements for
465 certification:
466 (A) the experience of a contractor licensed under Title [
467 Construction Trades Licensing Act, who has five or more years of experience installing
468 underground wastewater disposal systems;
469 (B) the experience of an environmental health scientist licensed under Title 58, Chapter
470 20a, Environmental Health Scientist Act; or
471 (C) the educational background of a professional engineer licensed under Title 58,
472 Chapter 22, Professional Engineers and Professional Land Surveyors Licensing Act.
473 (iii) If eligibility for certification is based on experience, the applicant for certification
474 must show proof of experience.
475 (4) The department may establish fees in accordance with Section 63-38-3.2 for the
476 testing and certification of individuals who design, inspect, maintain, or conduct percolation or
477 soil tests for underground wastewater disposal systems.
478 Section 7. Section 26-15-3 is amended to read:
479 26-15-3. Department to advise Uniform Building Code Commission regarding the
480 code and specific edition of a plumbing code -- Enforcement.
481 (1) The department shall advise the Division of [
482
483 and specific edition of a plumbing code adopted by a nationally recognized code authority to be
484 adopted by the Division of [
485 amendments to that code as provided for under Section [
486 (2) The department may enforce the plumbing code adopted by the Division of
487 [
488 [
489 (3) Section [
490 section.
491 Section 8. Section 26A-1-113 is amended to read:
492 26A-1-113. Right of entry to regulated premises by representatives for inspection.
493 (1) Upon presenting proper identification, authorized representatives of local health
494 departments may enter upon the premises of properties regulated by local health departments to
495 perform routine inspections to [
496 and ordinances as adopted by:
497 (a) the [
498 (b) the Department of Environmental Quality[
499 (c) local boards of health[
500 (d) county or municipal governing bodies[
501 (e) the Division of [
502 Section [
503 (2) Section [
504 section.
505 (3) This section does not authorize local health departments to inspect private
506 dwellings.
507 Section 9. Section 26A-1-114 is amended to read:
508 26A-1-114. Powers and duties of departments.
509 (1) A local health department may:
510 (a) subject to [
511 ordinances, department rules, and local health department standards and regulations relating to
512 public health and sanitation, including the plumbing code adopted by the Division of
513 [
514 under Title 26, Chapter 15a, Food Safety Manager Certification Act, in all incorporated and
515 unincorporated areas served by the local health department;
516 (b) establish, maintain, and enforce isolation and quarantine, and exercise physical
517 control over property and over individuals as the local health department finds necessary for
518 the protection of the public health;
519 (c) establish and maintain medical, environmental, occupational, and other laboratory
520 services considered necessary or proper for the protection of the public health;
521 (d) establish and operate reasonable health programs or measures not in conflict with
522 state law that:
523 (i) are necessary or desirable for the promotion or protection of the public health and
524 the control of disease; or
525 (ii) may be necessary to ameliorate the major risk factors associated with the major
526 causes of injury, sickness, death, and disability in the state;
527 (e) close theaters, schools, and other public places and prohibit gatherings of people
528 when necessary to protect the public health;
529 (f) abate nuisances or eliminate sources of filth and infectious and communicable
530 diseases affecting the public health and bill the owner or other person in charge of the premises
531 upon which this nuisance occurs for the cost of abatement;
532 (g) make necessary sanitary and health investigations and inspections on its own
533 initiative or in cooperation with the Department of Health or Environmental Quality, or both,
534 as to any matters affecting the public health;
535 (h) pursuant to county ordinance or interlocal agreement:
536 (i) establish and collect appropriate fees for the performance of services and operation
537 of authorized or required programs and duties;
538 (ii) accept, use, and administer all federal, state, or private donations or grants of funds,
539 property, services, or materials for public health purposes; and
540 (iii) make agreements not in conflict with state law that are conditional to receiving a
541 donation or grant;
542 (i) prepare, publish, and disseminate information necessary to inform and advise the
543 public concerning:
544 (i) the health and wellness of the population, specific hazards, and risk factors that may
545 adversely affect the health and wellness of the population; and
546 (ii) specific activities individuals and institutions can engage in to promote and protect
547 the health and wellness of the population;
548 (j) investigate the causes of morbidity and mortality;
549 (k) issue notices and orders necessary to carry out this part;
550 (l) conduct studies to identify injury problems, establish injury control systems,
551 develop standards for the correction and prevention of future occurrences, and provide public
552 information and instruction to special high risk groups;
553 (m) cooperate with boards created under Section 19-1-106 to enforce laws and rules
554 within the jurisdiction of the boards;
555 (n) cooperate with the state health department, the Department of Corrections, the
556 Administrative Office of the Courts, the Division of Juvenile Justice Services, and the Crime
557 Victims Reparations Board to conduct testing for HIV infection of convicted sexual offenders
558 and any victims of a sexual offense;
559 (o) investigate suspected bioterrorism and disease pursuant to Section 26-23b-108 ; and
560 (p) provide public health assistance in response to a national, state, or local emergency,
561 a public health emergency as defined in Section 26-23b-102 , or a declaration by the President
562 of the United States or other federal official requesting public health-related activities.
563 (2) The local health department shall:
564 (a) establish programs or measures to promote and protect the health and general
565 wellness of the people within the boundaries of the local health department;
566 (b) investigate infectious and other diseases of public health importance and implement
567 measures to control the causes of epidemic and communicable diseases and other conditions
568 significantly affecting the public health which may include involuntary testing of convicted
569 sexual offenders for the HIV infection pursuant to Section 76-5-502 and voluntary testing of
570 victims of sexual offenses for HIV infection pursuant to Section 76-5-503 ;
571 (c) cooperate with the department in matters pertaining to the public health and in the
572 administration of state health laws; and
573 (d) coordinate implementation of environmental programs to maximize efficient use of
574 resources by developing with the Department of Environmental Quality a Comprehensive
575 Environmental Service Delivery Plan that:
576 (i) recognizes that the Department of Environmental Quality and local health
577 departments are the foundation for providing environmental health programs in the state;
578 (ii) delineates the responsibilities of the department and each local health department
579 for the efficient delivery of environmental programs using federal, state, and local authorities,
580 responsibilities, and resources;
581 (iii) provides for the delegation of authority and pass through of funding to local health
582 departments for environmental programs, to the extent allowed by applicable law, identified in
583 the plan, and requested by the local health department; and
584 (iv) is reviewed and updated annually.
585 (3) The local health department has the following duties regarding public and private
586 schools within its boundaries:
587 (a) enforce all ordinances, standards, and regulations pertaining to the public health of
588 persons attending public and private schools;
589 (b) exclude from school attendance any person, including teachers, who is suffering
590 from any communicable or infectious disease, whether acute or chronic, if the person is likely
591 to convey the disease to those in attendance; and
592 (c) (i) make regular inspections of the health-related condition of all school buildings
593 and premises;
594 (ii) report the inspections on forms furnished by the department to those responsible for
595 the condition and provide instructions for correction of any conditions that impair or endanger
596 the health or life of those attending the schools; and
597 (iii) provide a copy of the report to the department at the time the report is made.
598 (4) If those responsible for the health-related condition of the school buildings and
599 premises do not carry out any instructions for corrections provided in a report in Subsection
600 (3)(c), the local health board shall cause the conditions to be corrected at the expense of the
601 persons responsible.
602 (5) The local health department may exercise incidental authority as necessary to carry
603 out the provisions and purposes of this part.
604 Section 10. Section 35A-4-303 is amended to read:
605 35A-4-303. Determination of contribution rates.
606 (1) (a) On or before January 1 of each year beginning January 1, 1985, an employer's
607 basic contribution rate will be the same as the employer's benefit ratio, determined by dividing
608 the total benefit costs charged back to an employer during the immediately preceding four
609 fiscal years by the total taxable wages of the employer for the same time period, calculated to
610 four decimal places, disregarding the remaining fraction, if any.
611 (b) In calculating the basic contribution rate under Subsection (1)(a):
612 (i) if four fiscal years of data are not available, the data of three fiscal years shall be
613 divided by the total taxable wages for the same time period;
614 (ii) if three fiscal years of data are not available, the data of two fiscal years shall be
615 divided by the total taxable wages for the same time period; or
616 (iii) if two fiscal years of data are not available, the data of one fiscal year shall be
617 divided by the total taxable wages for the same time period.
618 (2) (a) On or before January 1 of each year beginning with January 1, 1985, all social
619 costs as defined in Subsection 35A-4-307 (1) applicable to the immediately preceding four
620 fiscal years shall be divided by the total taxable wages of all employers subject to contributions
621 for the same time period, calculated to four decimal places, disregarding the remaining fraction,
622 if any.
623 (b) In calculating the social contribution rate under Subsection (2)(a):
624 (i) if four fiscal years of data are not available, the data of three fiscal years shall be
625 divided by the total taxable wages for the same time period; or
626 (ii) if three fiscal years of data are not available, the data of two fiscal years shall be
627 divided by the total taxable wages for the same time period.
628 (c) On or after January 1, 2000, the social contribution rate shall be:
629 (i) set at 0.0010 for any rate year in which the reserve factor established in Subsection
630 (3)(c) is equal to or less than 1.0000; or
631 (ii) calculated by dividing all social costs as defined in Subsection 35A-4-307 (1)
632 applicable to the preceding four fiscal years by the total taxable wages of all employers subject
633 to contributions for the same time period, calculated to four decimal places, disregarding any
634 remaining fraction, for any rate year in which the reserve factor established in Subsection (3)(c)
635 is greater than 1.0000.
636 (d) (i) The social contribution rate for the rate year beginning January 1, 2004, is set at
637 .003.
638 (ii) On or after January 1, 2005, the social contribution rate shall be calculated by
639 dividing all social costs as defined in Subsection 35A-4-307 (1) applicable to the preceding four
640 fiscal years by the total taxable wages of all employers subject to contributions for the same
641 period, calculated to four decimal places, disregarding any remaining fraction.
642 (iii) Notwithstanding Subsection (2)(d)(ii), the social contribution rate for only the rate
643 year beginning January 1, 2005, may not exceed .004.
644 (3) (a) On or before January 1 of each year beginning with January 1, 1985, the reserve
645 factor shall be computed under Subsection (3)(b). For purposes of computing the reserve
646 factor:
647 (i) the five-year average benefit cost rate is calculated by:
648 (A) determining the five highest benefit cost rates experienced in the 25 years ending
649 December 31 one year prior to the computation date;
650 (B) adding together the rates determined under Subsection (3)(a)(i)(A); and
651 (C) dividing the amount under Subsection (3)(a)(i)(B) by five, calculated to four
652 decimal places, disregarding the remaining fraction, if any;
653 (ii) the minimum adequate reserve fund balance is calculated by:
654 (A) multiplying the five-year average benefit cost rate by 1.5; and
655 (B) multiplying the amount under Subsection (3)(a)(ii)(A) by total wages of the fiscal
656 year ending prior to the computation date, rounded to the nearest dollar;
657 (iii) the maximum adequate reserve fund balance is calculated by:
658 (A) multiplying the five-year average benefit cost rate by 2.0; and
659 (B) multiplying the amount under Subsection (3)(a)(iii)(A) by the total wages used
660 under Subsection (3)(a)(ii)(B), rounded to the nearest dollar; and
661 (iv) the computation date is the January 1 on which the reserve factor is calculated.
662 (b) (i) The reserve factor is one if the actual reserve fund balance as of June 30
663 preceding the computation date is:
664 (A) equal to or greater than the minimum adequate reserve fund balance; and
665 (B) equal to or less than the maximum adequate reserve fund balance.
666 (ii) If the actual reserve fund balance as of June 30 preceding the computation date is
667 less than the minimum adequate reserve fund balance, the reserve factor shall be the greater of:
668 (A) 2.0000 minus an amount equal to the actual reserve fund balance divided by the
669 minimum adequate reserve fund balance, calculated to four decimal places, disregarding the
670 remaining fraction, if any; or
671 (B) the reserve factor calculated in the prior year.
672 (iii) The reserve factor is 2.0000 if:
673 (A) the actual reserve fund balance as of June 30 preceding the computation date is:
674 (I) insolvent; or
675 (II) negative; or
676 (B) there is an outstanding loan from the Federal Unemployment Account.
677 (iv) If the actual reserve fund balance as of June 30 preceding the computation date is
678 more than the maximum adequate reserve fund balance, the reserve factor shall be calculated
679 by:
680 (A) dividing the actual reserve fund balance by the maximum adequate reserve fund
681 balance, calculated to four decimal places, disregarding the remaining fraction, if any; and
682 (B) subtracting the amount under Subsection (3)(b)(iv)(A) from 2.0000.
683 (c) Beginning January 1, 2000, the division shall by administrative decision set the
684 reserve factor at a rate that shall sustain an adequate reserve. For the purpose of setting the
685 reserve factor:
686 (i) the adequate reserve is defined as between 17 and19 months of benefits at the
687 average of the five highest benefit cost rates in the last 25 years;
688 (ii) the reserve factor shall be 1.0000 if the actual reserve fund balance as of June 30
689 preceding the computation date is determined to be an adequate reserve;
690 (iii) the reserve factor will be set between 0.5000 and 1.0000 if the actual reserve fund
691 balance as of June 30 preceding the computation date is greater than the adequate reserve;
692 (iv) the reserve factor will be set between 1.0000 and 1.5000 if the actual reserve fund
693 balance as of June 30 prior to the computation date is less than the adequate reserve;
694 (v) if the actual reserve fund balance as of June 30 preceding the computation date is
695 insolvent or negative or if there is an outstanding loan from the Federal Unemployment
696 Account, the reserve factor will be set at 2.0000 until the actual reserve fund balance as of June
697 30 preceding the computation date is determined to be an adequate reserve;
698 (vi) the reserve factor will be set on or before January 1 of each year; and
699 (vii) monies made available to the state under Section 903 of the Social Security Act,
700 as amended, which are received on or after January 1, 2004, may not be considered in
701 establishing the reserve factor under this section for the rate year 2005 or any subsequent rate
702 year.
703 (4) (a) Until January 1, 1995, an employer's overall contribution rate is the employer's
704 basic contribution rate multiplied by the reserve factor, if there is a reserve factor, calculated to
705 four decimal places, disregarding any further fraction, plus the social contribution rate, and
706 rounded up to the next higher multiple of .10%, but not more than a maximum overall
707 contribution rate of 8.0% and not less than 1% for new employers.
708 (b) On or after January 1, 1995, an employer's overall contribution rate is the
709 employer's basic contribution rate multiplied by the reserve factor, calculated to four decimal
710 places, disregarding any further fraction, plus the social contribution rate, and rounded to three
711 decimal places, disregarding any further fraction, if the fourth decimal place is .0004 or less, or
712 rounding up to the next higher number, if the fourth decimal place is .0005 or more, but not
713 more than a maximum overall contribution rate of 8.0% and not less than 1% for new
714 employers.
715 (c) On or after January 1, 2000, an employer's overall contribution rate is the
716 employer's basic contribution rate multiplied by the reserve factor established according to
717 Subsection (3)(c), calculated to four decimal places, disregarding the remaining fraction, plus
718 the social contribution rate established according to Subsection (2)(c), and calculated to three
719 decimal places, disregarding the remaining fraction, but not more than a maximum overall
720 contribution rate of 8.0%, plus the applicable social contribution rate and not less than 1.1% for
721 new employers.
722 (d) On or after January 1, 2004, an employer's overall contribution rate is the
723 employer's basic contribution rate multiplied by the reserve factor established according to
724 Subsection (3)(c), calculated to four decimal places, disregarding the remaining fraction, plus
725 the social contribution rate established according to Subsection (2)(d), and calculated to three
726 decimal places, disregarding the remaining fraction, but not more than a maximum overall
727 contribution rate of 9.0%, plus the applicable social contribution rate and not less than 1.1% for
728 new employers.
729 (e) The overall contribution rate does not include the addition of any penalty applicable
730 to an employer as a result of delinquency in the payment of contributions as provided in
731 Subsection (10).
732 (5) Except as provided in Subsection (10), each new employer shall pay a contribution
733 rate based on the average benefit cost rate experienced by employers of the major industry as
734 defined by department rule to which the new employer belongs, the basic contribution rate to
735 be determined as follows:
736 (a) Except as provided in Subsection (5)(b), on or before January 1 of each year, the
737 basic contribution rate to be used in computing the employer's overall contribution rate is the
738 benefit cost rate which is the greater of:
739 (i) the amount calculated by dividing the total benefit costs charged back to both active
740 and inactive employers of the same major industry for the last two fiscal years by the total
741 taxable wages paid by those employers that were paid during the same time period, computed
742 to four decimal places, disregarding the remaining fraction, if any; or
743 (ii) 1%.
744 (b) If the major industrial classification assigned to a new employer is an industry for
745 which a benefit cost rate does not exist because the industry has not operated in the state or has
746 not been covered under this chapter, the employer's basic contribution rate shall be 5.4%. This
747 basic contribution rate is used in computing the employer's overall contribution rate.
748 (6) (a) A reopening employer's basic contribution rate is the average overall
749 contribution rate for all employers in the state, but not less than 1%, until such time as the
750 reopening employer becomes a qualified employer as defined in Section 35A-4-301 .
751 (b) The average overall contribution rate for all employers in the state shall be defined
752 by rule.
753 (c) The reopening employer is an employer that is not substantially related to or
754 affiliated with the predecessor employer and that acquires, for the purpose of reopening,
755 substantially all the assets of a business or operating component of a business that has been
756 closed or substantially closed for 90 days or more of its normal operating period immediately
757 prior to the acquisition.
758 (d) A business or operating component of a business has been substantially closed if:
759 (i) its normal production has been stopped;
760 (ii) a majority of its workers have been laid off; and
761 (iii) the services of remaining employees are devoted to the protection and disposition
762 of assets and inventory or administrative duties.
763 (7) Notwithstanding any other provision of this chapter, and except as provided in
764 Subsection (8), if an employing unit that moves into this state is declared to be a qualified
765 employer because it has sufficient payroll and benefit cost experience under another state, a
766 rate shall be computed on the same basis as a rate is computed for all other employers subject
767 to this chapter if that unit furnishes adequate records on which to compute the rate.
768 (8) An employer who begins to operate in this state after having operated in another
769 state shall be assigned the maximum overall contribution rate until the employer acquires
770 sufficient experience in this state to be considered a "qualified employer" if the employer is:
771 (a) regularly engaged as a contractor in the construction, improvement, or repair of
772 buildings, roads, or other structures on lands;
773 (b) generally regarded as being a construction contractor or a subcontractor specialized
774 in some aspect of construction; or
775 (c) required to have a contractor's license or similar qualification under Title [
776 Chapter [
777 state.
778 (9) (a) If an employer, other than a reopening employer, acquires the business or all or
779 substantially all the assets of another employer and the other employer had discontinued
780 operations upon the acquisition:
781 (i) for purposes of determining and establishing the acquiring party's qualifications for
782 an experience rating classification, the payrolls of both employers during the qualifying period
783 shall be jointly considered in determining the period of liability with respect to:
784 (A) the filing of contribution reports;
785 (B) the payment of contributions; and
786 (C) after January 1, 1985, the benefit costs of both employers; and
787 (ii) the transferring employer shall be divested of the transferring employer's payroll
788 experience.
789 (b) Any employing unit or prospective employing unit that acquires the payroll
790 experience of an employer shall, for all purposes of this chapter, be an employer as of the date
791 of acquisition.
792 (c) Notwithstanding Section 35A-4-310 , when a transferring employer, as provided in
793 Subsection (9)(a), is divested of the employer's payroll experience by transferring all of the
794 employer's business to another and by ceasing operations as of the date of the transfer, the
795 transferring employer shall cease to be an employer, as defined by this chapter, as of the date of
796 transfer.
797 (10) (a) A rate of less than 8% shall be effective January 1 of any contribution year on
798 or after January 1, 1985, but before January 1, 1988, and a rate of less than the maximum
799 overall contribution rate on or after January 1, 1988, only with respect to new employers and to
800 those qualified employers who, except for amounts due under division determinations that have
801 not become final, paid all contributions prescribed by the division with respect to the four
802 consecutive calendar quarters in the fiscal year immediately preceding the computation date on
803 or after January 1, 1985.
804 (b) Notwithstanding Subsections (1), (5), (6), (7), and (9), on or after January 1, 1988,
805 any employer who fails to pay all contributions prescribed by the division with respect to the
806 four consecutive calendar quarters in the fiscal year immediately preceding the computation
807 date, except for amounts due under determinations that have not become final, shall pay a
808 contribution rate equal to the overall contribution rate determined under the experience rating
809 provisions of this chapter, plus a surcharge of 1% of wages.
810 (c) Any employer who pays all required contributions shall, for the current contribution
811 year, be assigned a rate based upon the employer's own experience as provided under the
812 experience rating provisions of this chapter effective the first day of the calendar quarter in
813 which the payment was made.
814 (d) Delinquency in filing contribution reports shall not be the basis for denial of a rate
815 less than the maximum contribution rate.
816 Section 11. Section 38-1-7 (Effective 05/01/05) is amended to read:
817 38-1-7 (Effective 05/01/05). Notice of claim -- Contents -- Recording -- Service on
818 owner of property.
819 (1) (a) Except as modified in Section 38-1-27 , a person claiming benefits under this
820 chapter shall file for record with the county recorder of the county in which the property, or
821 some part of the property, is situated, a written notice to hold and claim a lien within 90 days
822 from the date of final completion of the original contract under which the claimant claims a
823 lien under this chapter. For purposes of this Subsection (1), final completion of the original
824 contract means:
825 (i) if as a result of work performed under the original contract a permanent certificate
826 of occupancy is required for such work, the date of issuance of a permanent certificate of
827 occupancy by the local government entity having jurisdiction over the construction project;
828 (ii) if no certificate of occupancy is required by the local government entity having
829 jurisdiction over the construction project, but as a result of the work performed under the
830 original contract an inspection is required for such work, the date of the final inspection for
831 such work by the local government entity having jurisdiction over the construction project; or
832 (iii) if with regard to work performed under the original contract no certificate of
833 occupancy and no final inspection are required by the local government entity having
834 jurisdiction over the construction project, the date on which there remains no substantial work
835 to be completed to finish such work on the original contract.
836 (b) Notwithstanding Section 38-1-2 , where a subcontractor performs substantial work
837 after the applicable dates established by Subsections (1)(a)(i) and (ii), that subcontractor's
838 subcontract shall be considered an original contract for the sole purpose of determining:
839 (i) the subcontractor's time frame to file a notice of intent to hold and claim a lien
840 under Subsection (1); and
841 (ii) the original contractor's time frame to file a notice of intent to hold and claim a lien
842 under Subsection (1) for that subcontractor's work.
843 (c) For purposes of this section, the term "substantial work" does not include:
844 (i) repair work;
845 (ii) warranty work; or
846 (iii) work for which the project owner is not holding payment to ensure completion of
847 that work.
848 (2) (a) The notice required by Subsection (1) shall contain a statement setting forth:
849 (i) the name of the reputed owner if known or, if not known, the name of the record
850 owner;
851 (ii) the name of the person:
852 (A) by whom the lien claimant was employed; or
853 (B) to whom the lien claimant furnished the equipment or material;
854 (iii) the time when:
855 (A) the first and last labor or service was performed; or
856 (B) the first and last equipment or material was furnished;
857 (iv) a description of the property, sufficient for identification;
858 (v) the name, current address, and current phone number of the lien claimant;
859 (vi) the amount of the lien claim;
860 (vii) the signature of the lien claimant or the lien claimant's authorized agent;
861 (viii) an acknowledgment or certificate as required under Title 57, Chapter 3,
862 Recording of Documents; and
863 (ix) if the lien is on an owner-occupied residence, as defined in Section 38-11-102 , a
864 statement describing what steps an owner, as defined in Section 38-11-102 , may take to require
865 a lien claimant to remove the lien in accordance with Section 38-11-107 .
866 (b) Substantial compliance with the requirements of this Subsection (2) is sufficient to
867 hold and claim a lien.
868 (3) (a) Within 30 days after filing the notice of lien, the lien claimant shall deliver or
869 mail by certified mail a copy of the notice of lien to:
870 (i) the reputed owner of the real property; or
871 (ii) the record owner of the real property.
872 (b) If the record owner's current address is not readily available to the lien claimant, the
873 copy of the claim may be mailed to the last-known address of the record owner, using the
874 names and addresses appearing on the last completed real property assessment rolls of the
875 county where the affected property is located.
876 (c) Failure to deliver or mail the notice of lien to the reputed owner or record owner
877 precludes the lien claimant from an award of costs and attorneys' fees against the reputed
878 owner or record owner in an action to enforce the lien.
879 (4) The Division of [
880 rules governing the form of the statement required under Subsection (2)(a)(ix).
881 Section 12. Section 38-1-11 is amended to read:
882 38-1-11. Enforcement -- Time for -- Lis pendens -- Action for debt not affected --
883 Instructions and form affidavit and motion.
884 (1) A lien claimant shall file an action to enforce the lien filed under this chapter within
885 180 days from the day on which the lien claimant filed a notice of claim under Section 38-1-7 .
886 (2) (a) Within the time period provided for filing in Subsection (1) the lien claimant
887 shall file for record with the county recorder of each county in which the lien is recorded a
888 notice of the pendency of the action, in the manner provided in actions affecting the title or
889 right to possession of real property, or the lien shall be void, except as to persons who have
890 been made parties to the action and persons having actual knowledge of the commencement of
891 the action.
892 (b) The burden of proof shall be upon the lien claimant and those claiming under the
893 lien claimant to show actual knowledge.
894 (3) This section may not be interpreted to impair or affect the right of any person to
895 whom a debt may be due for any work done or materials furnished to maintain a personal
896 action to recover the same.
897 (4) (a) If a lien claimant files an action to enforce a lien filed under this chapter
898 involving a residence, as defined in Section 38-11-102 , the lien claimant shall include with the
899 service of the complaint on the owner of the residence:
900 (i) instructions to the owner of the residence relating to the owner's rights under Title
901 38, Chapter 11, Residence Lien Restriction and Lien Recovery Fund Act; and
902 (ii) a form affidavit to enable the owner of the residence to specify the grounds upon
903 which the owner may exercise available rights under Title 38, Chapter 11, Residence Lien
904 Restriction and Lien Recovery Fund Act.
905 (b) The instructions and form affidavit required by Subsection (4)(a) shall meet the
906 requirements established by rule by the Division of [
907 Real Estate in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
908 (c) If a lien claimant fails to provide to the owner of the residence the instructions and
909 form affidavit required by Subsection (4)(a), the lien claimant shall be barred from maintaining
910 or enforcing the lien upon the residence.
911 (d) Judicial determination of the rights and liabilities of the owner of the residence
912 under [
913 Recovery Fund Act, and Title 14, Chapter 2, Private Contracts, shall be stayed until after the
914 owner has been given a reasonable period of time to establish compliance with Subsections
915 38-11-204 (4)(a) and (4)(b) through an informal proceeding, as set forth in Title 63, Chapter
916 46b, Administrative Procedures Act, commenced within 30 days of the owner being served
917 summons in the foreclosure action, at the Division of [
918
919 compliance, as defined in Section 38-11-102 .
920 (5) The written notice requirement applies to liens filed on or after July 1, 2004.
921 Section 13. Section 38-1-27 (Effective 05/01/05) is amended to read:
922 38-1-27 (Effective 05/01/05). Construction notice registry -- Form and contents of
923 notice of commencement, preliminary notice, and notice of completion.
924 (1) As used in this section and Sections 38-1-30 through 38-1-37 :
925 (a) "Database" means the Construction Notice Registry Database created in this
926 section.
927 (b) (i) "Designated agent" means the third party the Division of [
928
929 Notice Registry Database.
930 (ii) The designated agent is not an agency, instrumentality, or a political subdivision of
931 the state.
932 (c) "Division" means the Division of [
933 Estate.
934 (d) "Program" means the Construction Notice Registry Database Program created in
935 this section.
936 (2) Subject to receiving adequate funding through a legislative appropriation and
937 contracting with an approved third party vendor who meets the requirements of Sections
938 38-1-30 through 38-1-37 , there is created the Construction Notice Registry Database Program
939 which shall:
940 (a) assist in protecting public health, safety, and welfare and promote a fair working
941 environment;
942 (b) be overseen by the division with the assistance of the designated agent;
943 (c) provide a central repository for notices of commencement, preliminary notices, and
944 notices of completion filed in connection with all privately owned construction projects as well
945 as all state and local government owned construction projects throughout Utah;
946 (d) be accessible for filing and review of notices of commencement, preliminary
947 notices, and notices of completion [
948 (e) accommodate electronic filing of such notices as well as provide for alternate filing
949 by U.S. mail, telefax, telephone, or any other alternate method as provided by rule made by the
950 division in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act;
951 (f) provide electronic notification for up to three e-mail addresses for each interested
952 person or company who requests notice from the construction notice registry as well as provide
953 alternate means of notification for those persons who make alternate filings, including U.S.
954 mail, telefax, or any other method as prescribed by rule made by the division in accordance
955 with Title 63, Chapter 46a, Utah Administrative Rulemaking Act; and
956 (g) provide hard-copy printing of electronic receipts for individual filings evidencing
957 the date and time of individual filings as well as the content of individual filings.
958 (3) Persons interested in a construction project may request notice of filings related to
959 the project. The database shall be indexed by owner name, original contractor name, project
960 name, project address, parcel number, project number, and any other identifier that the division
961 considers reasonably appropriate and established by rule, made in accordance with Title 63,
962 Chapter 46a, Utah Administrative Rulemaking Act.
963 (4) (a) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act,
964 the division shall establish by rule the filing fees for notices of commencement, preliminary
965 notices, notices of completion, and requests for notice, which fees may not exceed the amount
966 reasonably necessary to create and maintain the database.
967 (b) The fees established by the division may vary by method of filing if one form of
968 filing is more costly than other forms of filing.
969 Section 14. Section 38-11-102 is amended to read:
970 38-11-102. Definitions.
971 (1) "Board" means the Residence Lien Recovery Fund Advisory Board established
972 under Section 38-11-104 .
973 (2) "Certificate of compliance" means an order issued by the director to the owner
974 finding that the owner is in compliance with the requirements of Subsections 38-11-204 (4)(a)
975 and (4)(b) and is entitled to protection under Section 38-11-107 .
976 (3) "Construction on an owner-occupied residence" means designing, engineering,
977 constructing, altering, remodeling, improving, repairing, or maintaining a new or existing
978 residence.
979 (4) "Department" means the Department of Commerce.
980 (5) "Director" means the director of the Division of [
981
982 (6) "Division" means the Division of [
983 Estate.
984 (7) "Duplex" means a single building having two separate living units.
985 (8) "Encumbered fund balance" means the aggregate amount of outstanding claims
986 against the fund. The remainder of monies in the fund are unencumbered funds.
987 (9) "Executive director" means the executive director of the Department of Commerce.
988 (10) "Factory built housing" is as defined in Section [
989 (11) "Factory built housing retailer" means a person that sells factory built housing to
990 consumers.
991 (12) "Fund" means the Residence Lien Recovery Fund established under Section
992 38-11-201 .
993 (13) "Laborer" means a person who provides services at the site of the construction on
994 an owner-occupied residence as an employee of an original contractor or other qualified
995 beneficiary performing qualified services on the residence.
996 (14) "Licensee" means any holder of a license issued under Title 58, Chapters 3a, 22,
997 53, and [
998 (15) "Nonpaying party" means the original contractor, subcontractor, or real estate
999 developer who has failed to pay the qualified beneficiary making a claim against the fund.
1000 (16) "Original contractor" means a person who contracts with the owner of real
1001 property or the owner's agent to provide services, labor, or material for the construction of an
1002 owner-occupied residence.
1003 (17) "Owner" means a person who:
1004 (a) contracts with a person who is licensed as a contractor or is exempt from licensure
1005 under Title [
1006 construction on an owner-occupied residence upon real property owned by that person;
1007 (b) contracts with a real estate developer to buy a residence upon completion of the
1008 construction on the owner-occupied residence; or
1009 (c) buys a residence from a real estate developer after completion of the construction
1010 on the owner-occupied residence.
1011 (18) "Owner-occupied residence" means a residence that is, or after completion of the
1012 construction on the residence will be, occupied by the owner or the owner's tenant or lessee as a
1013 primary or secondary residence within 180 days from the date of the completion of the
1014 construction on the residence.
1015 (19) "Qualified beneficiary" means a person who:
1016 (a) provides qualified services;
1017 (b) pays necessary fees or assessments required under this chapter; and
1018 (c) registers with the division:
1019 (i) as a licensed contractor under Subsection 38-11-301 (1) or (2), if that person seeks
1020 recovery from the fund as a licensed contractor; or
1021 (ii) as a person providing qualified services other than as a licensed contractor under
1022 Subsection 38-11-301 (3) if the person seeks recovery from the fund in a capacity other than as
1023 a licensed contractor.
1024 (20) (a) "Qualified services" means the following performed in construction on an
1025 owner-occupied residence:
1026 (i) contractor services provided by a contractor licensed or exempt from licensure
1027 under Title [
1028 (ii) architectural services provided by an architect licensed under Title 58, Chapter 3a,
1029 Architects Licensing Act;
1030 (iii) engineering and land surveying services provided by a professional engineer or
1031 land surveyor licensed or exempt from licensure under Title 58, Chapter 22, Professional
1032 Engineers and Professional Land Surveyors Licensing Act;
1033 (iv) landscape architectural services by a landscape architect licensed or exempt from
1034 licensure under Title 58, Chapter 53, Landscape Architects Licensing Act;
1035 (v) design and specification services of mechanical or other systems;
1036 (vi) other services related to the design, drawing, surveying, specification, cost
1037 estimation, or other like professional services;
1038 (vii) providing materials, supplies, components, or similar products;
1039 (viii) renting equipment or materials;
1040 (ix) labor at the site of the construction on the owner-occupied residence; and
1041 (x) site preparation, set up, and installation of factory built housing.
1042 (b) "Qualified services" do not include the construction of factory built housing in the
1043 factory.
1044 (21) "Real estate developer" means a person having an ownership interest in real
1045 property who contracts with a person who is licensed as a contractor or is exempt from
1046 licensure under Title [
1047 construction of a residence that is offered for sale to the public.
1048 (22) (a) "Residence" means an improvement to real property used or occupied, to be
1049 used or occupied as, or in conjunction with:
1050 (i) a primary or secondary detached single-family dwelling; or
1051 (ii) a multifamily dwelling up to and including duplexes.
1052 (b) "Residence" includes factory built housing.
1053 (23) "Subsequent owner" means a person who purchases a residence from an owner
1054 within 180 days from the date the construction on the residence is completed.
1055 Section 15. Section 38-11-103 is amended to read:
1056 38-11-103. Administration.
1057 This chapter shall be administered by the Division of [
1058
1059
1060 Section 16. Section 38-11-204 is amended to read:
1061 38-11-204. Claims against the fund -- Requirement to make a claim --
1062 Qualifications to receive compensation -- Qualifications to receive a certificate of
1063 compliance.
1064 (1) To claim recovery from the fund a person shall:
1065 (a) meet the requirements of either Subsection (4) or (7);
1066 (b) pay an application fee determined by the division under Section 63-38-3.2 ; and
1067 (c) file with the division a completed application on a form provided by the division
1068 accompanied by supporting documents establishing:
1069 (i) that the person meets the requirements of either Subsection (4) or (7);
1070 (ii) that the person was a qualified beneficiary or laborer during the construction on the
1071 owner-occupied residence; and
1072 (iii) the basis for the claim.
1073 (2) To recover from the fund, the application required by Subsection (1) shall be filed
1074 no later than one year:
1075 (a) from the date the judgment required by Subsection (4)(d) is entered;
1076 (b) from the date the nonpaying party filed bankruptcy, if the claimant is precluded
1077 from obtaining a judgment or from satisfying the requirements of Subsection (4)(d) because the
1078 nonpaying party filed bankruptcy within one year after the entry of judgment; or
1079 (c) from the date the laborer, trying to recover from the fund, completed the laborer's
1080 qualified services.
1081 (3) To obtain a certificate of compliance an owner or agent of the owner shall establish
1082 with the division that the owner meets the requirements of Subsections (4)(a) and (4)(b).
1083 (4) To recover from the fund, regardless of whether the residence is occupied by the
1084 owner, a subsequent owner, or the owner or subsequent owner's tenant or lessee, a qualified
1085 beneficiary shall establish that:
1086 (a) (i) the owner of the owner-occupied residence or the owner's agent entered into a
1087 written contract with an original contractor licensed or exempt from licensure under Title [
1088 61, Chapter [
1089 (A) for the performance of qualified services;
1090 (B) to obtain the performance of qualified services by others; or
1091 (C) for the supervision of the performance by others of qualified services in
1092 construction on that residence;
1093 (ii) the owner of the owner-occupied residence or the owner's agent entered into a
1094 written contract with a real estate developer for the purchase of an owner-occupied residence;
1095 or
1096 (iii) the owner of the owner-occupied residence or the owner's agent entered into a
1097 written contract with a factory built housing retailer for the purchase of an owner-occupied
1098 residence;
1099 (b) the owner has paid in full the original contractor, licensed or exempt from licensure
1100 under Title [
1101 developer, or factory built housing retailer under Subsection (4)(a) with whom the owner has a
1102 written contract in accordance with the written contract and any amendments to the contract;
1103 (c) (i) the original contractor, licensed or exempt from licensure under Title [
1104 Chapter [
1105 factory built housing retailer subsequently failed to pay a qualified beneficiary who is entitled
1106 to payment under an agreement with that original contractor or real estate developer licensed or
1107 exempt from licensure under Title [
1108 Licensing Act, for services performed or materials supplied by the qualified beneficiary;
1109 (ii) a subcontractor who contracts with the original contractor, licensed or exempt from
1110 licensure under Title [
1111 real estate developer, or the factory built housing retailer failed to pay a qualified beneficiary
1112 who is entitled to payment under an agreement with that subcontractor or supplier; or
1113 (iii) a subcontractor who contracts with a subcontractor or supplier failed to pay a
1114 qualified beneficiary who is entitled to payment under an agreement with that subcontractor or
1115 supplier;
1116 (d) (i) the qualified beneficiary filed:
1117 (A) an action against the nonpaying party to recover monies owed to the qualified
1118 beneficiary within 180 days from the date the qualified beneficiary last provided qualified
1119 services, unless precluded from doing so by the nonpaying party's bankruptcy filing within the
1120 180 days after completion of services; and
1121 (B) a notice of commencement of action with the division within 30 days from the date
1122 the qualified beneficiary filed the civil action if a civil action was filed as required by
1123 Subsection (4)(d)(i)(A);
1124 (ii) the qualified beneficiary has obtained a judgment against the nonpaying party who
1125 failed to pay the qualified beneficiary under an agreement to provide qualified services for
1126 construction of that owner-occupied residence;
1127 (iii) (A) the qualified beneficiary has:
1128 (I) obtained from a court of competent jurisdiction the issuance of an order requiring
1129 the judgment debtor, or if a corporation any officer of the corporation, to appear before the
1130 court at a specified time and place to answer concerning the debtor's or corporation's property;
1131 (II) received return of service of the order from a person qualified to serve documents
1132 under the Utah Rules of Civil Procedure, Rule 4(b); and
1133 (III) made reasonable efforts to obtain asset information from the supplemental
1134 proceedings; and
1135 (B) if assets subject to execution are discovered as a result of the order required under
1136 Subsection (4)(d)(iii)(A) or for any other reason, to obtain the issuance of a writ of execution
1137 from a court of competent jurisdiction; or
1138 (iv) the qualified beneficiary timely filed a proof of claim where permitted in the
1139 bankruptcy action, if the nonpaying party has filed bankruptcy;
1140 (e) the qualified beneficiary is not entitled to reimbursement from any other person;
1141 and
1142 (f) the qualified beneficiary provided qualified services to a contractor, licensed or
1143 exempt from licensure under Title [
1144 Licensing Act.
1145 (5) The requirements of Subsections (4)(d)(i), (ii), and (iii) need not be met if the
1146 qualified beneficiary has been precluded from obtaining a judgment against the nonpaying
1147 party or from satisfying the requirements of Subsections (4)(d)(i), (ii), and (iii) because the
1148 nonpaying party filed bankruptcy.
1149 (6) If a qualified beneficiary fails to file the notice with the division required under
1150 Subsection (4)(d)(i)(B), the claim of the qualified beneficiary shall be paid:
1151 (a) if otherwise qualified under this chapter;
1152 (b) to the extent that the limit of Subsection 38-11-203 (4)(a) has not been reached by
1153 payments from the fund to qualified beneficiaries who have complied with the notice
1154 requirements of Subsection (4)(d)(i)(B); and
1155 (c) in the order that the claims are filed by persons who fail to comply with Subsection
1156 (4)(d)(i)(B), not to exceed the limit of Subsection 38-11-203 (4)(a).
1157 (7) To recover from the fund a laborer shall:
1158 (a) establish that the laborer has not been paid wages due for the work performed at the
1159 site of a construction on an owner-occupied residence; and
1160 (b) provide any supporting documents or information required by rule by the division.
1161 (8) A fee determined by the division under Section 63-38-3.2 shall be deducted from
1162 any recovery from the fund received by a laborer.
1163 (9) The requirements of Subsections (4)(a) and (4)(b) may be satisfied if an owner or
1164 agent of the owner establishes to the satisfaction of the director that the owner of the
1165 owner-occupied residence or the owner's agent entered into a written contract with an original
1166 contractor who:
1167 (a) was a business entity that was not licensed under Title [
1168 Utah Construction Trades Licensing Act, but was solely or partly owned by an individual who
1169 was licensed under Title [
1170 (b) was a natural person who was not licensed under Title [
1171 Utah Construction Trades Licensing Act, but who was the sole or partial owner and qualifier of
1172 a business entity that was licensed under Title [
1173 Trades Licensing Act.
1174 (10) The director shall have equitable power to determine if the requirements of
1175 Subsections (4)(a) and (4)(b) have been met, but any decision by the director under Title 38,
1176 Chapter 11, Residence Lien Restriction and Lien Recovery Fund Act, shall not alter or have
1177 any effect on any other decision by the division under Title [
1178 Estate Division.
1179 Section 17. Section 38-11-207 is amended to read:
1180 38-11-207. Reimbursement to the fund.
1181 (1) If the director disburses monies from the fund as a result of a person licensed under
1182 Title [
1183 beneficiary failing to pay qualified beneficiaries:
1184 (a) the division shall issue a notice of the disbursement from the fund and the
1185 obligation to reimburse the fund to the licensee or qualified beneficiary; and
1186 (b) the licensee or qualified beneficiary shall reimburse the fund within 20 days from
1187 the issuance of the notice required by Subsection (1)(a).
1188 (2) The notice required by Subsection (1)(a) shall meet the requirements established by
1189 rule by the division in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking
1190 Act.
1191 (3) (a) A finding of fact in an administrative action that a payment of any amount has
1192 been made from the fund in settlement of a claim arising from the act, representation,
1193 transaction, or conduct of a person licensed under Title [
1194 Construction Trades Licensing Act, in violation of Section [
1195 in the immediate suspension of that person's license without further compliance with Title 63,
1196 Chapter 46b, Administrative Procedures Act.
1197 (b) The finding of fact for Subsection (3)(a) may be made in the same administrative
1198 action as the related claim and may be included in the findings required by Section 38-11-203 .
1199 (c) The suspension required by Subsection (3)(a) shall remain in effect until the person
1200 applies for reinstatement and is issued a license in accordance with Sections 58-1-308 and
1201 [
1202 Section 18. Section 38-11-301 is amended to read:
1203 38-11-301. Registration as a qualified beneficiary -- Initial regular assessment --
1204 Affidavit.
1205 (1) A person licensed as of July 1, 1995, as a contractor under the provisions of Title
1206 [
1207 that regularly engage in providing qualified services shall be automatically registered as a
1208 qualified beneficiary upon payment of the initial assessment.
1209 (2) A person applying for licensure as a contractor after July 1, 1995, in license
1210 classifications that regularly engage in providing qualified services shall be automatically
1211 registered as a qualified beneficiary upon issuance of a license and payment of the initial
1212 assessment.
1213 (3) (a) After July 1, 1995, any person providing qualified services as other than a
1214 contractor as provided in Subsection (1) or any person exempt from licensure under the
1215 provisions of Title [
1216 register as a qualified beneficiary by:
1217 (i) submitting an application in a form prescribed by the division;
1218 (ii) demonstrating registration with the Division of Corporations and Commercial Code
1219 as required by state law;
1220 (iii) paying a registration fee determined by the division under Section 63-38-3.2 ; and
1221 (iv) paying the initial assessment established under Subsection (4), and any special
1222 assessment determined by the division under Subsection 38-11-206 (1).
1223 (b) A person who does not register under Subsection (1), (2), or (3)(a) shall be
1224 prohibited from recovering under the fund as a qualified beneficiary for work performed as
1225 qualified services while not registered with the fund.
1226 (4) (a) An applicant shall pay an initial assessment determined by the division under
1227 Section 63-38-3.2 .
1228 (b) The initial assessment to qualified registrants under Subsection (1) shall be made
1229 not later than July 15, 1995, and shall be paid no later than November 1, 1995.
1230 (c) The initial assessment to qualified registrants under Subsections (2) and (3) shall be
1231 paid at the time of application for license or registration, however, beginning on May 1, 1996,
1232 only one initial assessment or special assessments thereafter shall be required for persons
1233 having multiple licenses under this section.
1234 (5) A person shall be considered to have been registered as a qualified beneficiary on
1235 January 1, 1995, for purposes of meeting the requirements of Subsection 38-11-204 (1)(c)(ii) if
1236 the person:
1237 (a) (i) is licensed on or before July 1, 1995, as a contractor under [
1238 Title [
1239 classifications that regularly engage in providing qualified services; or
1240 (ii) provides qualified services after July 1, 1995, as other than a contractor as provided
1241 in Subsection (5)(a)(i) or is exempt from licensure under the provisions of Title [
1242 Chapter [
1243 (b) registers as a qualified beneficiary under Subsection (1) or (3) on or before
1244 November 1, 1995.
1245 Section 19. Section 38-11-302 is amended to read:
1246 38-11-302. Effective date and term of registration -- Penalty for failure to pay
1247 assessments -- Reinstatement.
1248 (1) (a) A registration as a qualified beneficiary under this chapter is effective on the
1249 date the division receives the initial assessment of the qualified beneficiary.
1250 (b) A registrant shall be required to renew [
1251 imposition of a special assessment under Subsection 38-11-206 (1).
1252 (2) A registration automatically expires if a registrant fails to renew [
1253 registrant's registration as required under Subsection (1).
1254 (3) The division shall notify a qualified beneficiary in accordance with procedures
1255 established by rule when renewal of registration is required in connection with a special
1256 assessment.
1257 (4) The license renewal notice to a contractor shall notify the licensee that failure to
1258 renew [
1259 registration as a qualified beneficiary and of the limitations set forth in Subsection (6) on
1260 qualified beneficiaries whose registration has expired to make a claim upon the fund.
1261 (5) Registration may be reinstated by:
1262 (a) submitting an application for reinstatement in a form prescribed by the division;
1263 (b) paying a reinstatement fee determined by the division under Section 63-38-3.2 ; and
1264 (c) paying all unpaid assessments that were assessed during the period of the person's
1265 registration and all assessments made upon qualified beneficiaries during the period the
1266 applicant's registration was expired.
1267 (6) (a) A qualified beneficiary whose registration expires loses all rights to make a
1268 claim upon the fund or receive compensation from the fund resulting from providing qualified
1269 service during the period of expiration.
1270 (b) Except as provided by Section [
1271 whose registration expires may make a claim upon the fund or receive compensation from the
1272 fund for qualified services provided during the period the qualified beneficiary was part of the
1273 fund.
1274 Section 20. Section 57-23-4 is amended to read:
1275 57-23-4. Exclusions.
1276 This chapter does not apply to:
1277 (1) an interest in real estate regulated under Title 57, Chapter 19, Timeshare and Camp
1278 Resort Act;
1279 (2) an offering for an interest in real estate which is regulated under:
1280 (a) Title 61, Chapter 1, Utah Uniform Securities Act;
1281 (b) the securities laws of any state; or
1282 (c) federal securities laws; or
1283 (3) a sale of manufactured housing licensed under Title [
1284 Uniform Building Standards Act, unless the sale is made in conjunction with an offering or sale
1285 of a cooperative interest under this chapter.
1286 Section 21. Section 58-1-202 is amended to read:
1287 58-1-202. Boards -- Duties, functions, and responsibilities.
1288 [
1289 [
1290 [
1291 [
1292 [
1293 relicensure actions to the director in writing;
1294 [
1295 persons in training to become qualified to obtain a license in the occupation or profession it
1296 represents; and
1297 [
1298 proceedings and in issuing recommended orders when so designated by the director.
1299 [
1300
1301 Section 22. Section 58-1-203 is amended to read:
1302 58-1-203. Duties, functions, and responsibilities of division in collaboration with
1303 board.
1304 [
1305 performed by the division with the collaboration and assistance of the appropriate board:
1306 [
1307 other institutions of learning are reputable and in good standing with the division;
1308 [
1309 [
1310 [
1311 [
1312 this chapter or other licensing chapters;
1313 [
1314 of authority; and
1315 [
1316 [
1317
1318
1319 Section 23. Section 58-1-301.5 is amended to read:
1320 58-1-301.5. Division access to Bureau of Criminal Identification records.
1321 (1) The division shall have direct access to criminal background information
1322 maintained by the Bureau of Criminal Identification under Title 53, Chapter 10, Part 2, Bureau
1323 of Criminal Identification, for background screening of licensure applicants as required in:
1324 (a) Section 58-31b-302 of Title 58, Chapter 31b, Nurse Practice Act;
1325 (b) Section 58-47b-302 of Title 58, Chapter 47b, Massage Therapy Practice Act; and
1326 [
1327
1328 [
1329 (2) The division access under Subsection (1) shall be in accordance with Section
1330 53-10-108 .
1331 Section 24. Section 58-3a-102 is amended to read:
1332 58-3a-102. Definitions.
1333 In addition to the definitions in Section 58-1-102 , as used in this chapter:
1334 (1) "Architect" means a person licensed under this chapter as an architect.
1335 (2) "Board" means the Architects Licensing Board created in Section 58-3a-201 .
1336 (3) "Building" means a structure which has human occupancy or habitation as its
1337 principal purpose, and includes the structural, mechanical, and electrical systems, utility
1338 services, and other facilities required for the building, and is otherwise governed by the codes
1339 adopted under Title [
1340 (4) "Complete construction plans" means a final set of plans and specifications for a
1341 building that normally includes:
1342 (a) floor plans;
1343 (b) elevations;
1344 (c) site plans;
1345 (d) foundation, structural, and framing detail;
1346 (e) electrical, mechanical, and plumbing design;
1347 (f) information required by the energy code;
1348 (g) specifications and related calculations as appropriate; and
1349 (h) all other documents required to obtain a building permit.
1350 (5) "Fund" means the Architects Education and Enforcement Fund created in Section
1351 58-3a-103 .
1352 (6) (a) "Practice of architecture" means rendering or offering to render the following
1353 services in connection with the design, construction, enlargement, or alteration of a building or
1354 group of buildings, and the space within and surrounding such buildings:
1355 (i) planning;
1356 (ii) facility programming;
1357 (iii) preliminary studies;
1358 (iv) preparation of designs, drawings, and specifications;
1359 (v) preparation of technical submissions and coordination of any element of technical
1360 submissions prepared by others including, as appropriate and without limitation, professional
1361 engineers, and landscape architects; and
1362 (vi) administration of construction contracts.
1363 (b) "Practice of architecture" does not include the practice of professional engineering
1364 as defined in Section 58-22-102 , but a licensed architect may perform such professional
1365 engineering work as is incidental to the practice of architecture.
1366 (7) "Principal" means a licensed architect having responsible charge of an
1367 organization's architectural practice.
1368 (8) "Supervision of an employee, subordinate, associate, or drafter of an architect"
1369 means that a licensed architect is responsible for and personally reviews, corrects when
1370 necessary, and approves work performed by any employee, subordinate, associate, or drafter
1371 under the direction of the architect, and may be further defined by rule by the division in
1372 collaboration with the board.
1373 (9) "Unlawful conduct" as defined in Section 58-1-501 is further defined in Section
1374 58-3a-501 .
1375 (10) "Unprofessional conduct" as defined in Section 58-1-501 may be further defined
1376 by rule by the division in collaboration with the board.
1377 Section 25. Section 58-3a-602 is amended to read:
1378 58-3a-602. Plans and specifications to be sealed.
1379 (1) Any final plan and specification of a building erected in this state shall bear the seal
1380 of an architect licensed under this chapter, except as provided in Section 58-3a-304 , in Title 58,
1381 Chapter 22, Professional Engineers and Professional Land Surveyors Licensing Act, and by the
1382 codes adopted under Title [
1383 (2) Any final plan and specification of a building prepared by or under the supervision
1384 of the licensed architect shall bear the seal of the architect when submitted to a client, or when
1385 submitted to a building official for the purpose of obtaining a building permit, even if the
1386 practice is exempt from licensure under Section 58-3a-304 .
1387 Section 26. Section 58-22-102 is amended to read:
1388 58-22-102. Definitions.
1389 In addition to the definitions in Section 58-1-102 , as used in this chapter:
1390 (1) "Board" means the Professional Engineers and Professional Land Surveyors
1391 Licensing Board created in Section 58-22-201 .
1392 (2) "Building" means a structure which has human occupancy or habitation as its
1393 principal purpose, and includes the structural, mechanical, and electrical systems, utility
1394 services, and other facilities required for the building, and is otherwise governed by the codes
1395 adopted under Title [
1396 (3) "Complete construction plans" means a final set of plans, specifications, and reports
1397 for a building or structure that normally includes:
1398 (a) floor plans;
1399 (b) elevations;
1400 (c) site plans;
1401 (d) foundation, structural, and framing detail;
1402 (e) electrical, mechanical, and plumbing design;
1403 (f) information required by the energy code;
1404 (g) specifications and related calculations as appropriate; and
1405 (h) all other documents required to obtain a building permit.
1406 (4) "EAC/ABET" means the Engineering Accreditation Commission/Accreditation
1407 Board for Engineering and Technology.
1408 (5) "Fund" means the Professional Engineer, Professional Structural Engineer, and
1409 Professional Land Surveyor Education and Enforcement Fund created in Section 58-22-103 .
1410 (6) "NCEES" means the National Council of Examiners for Engineering and
1411 Surveying.
1412 (7) "Principal" means a licensed professional engineer, professional structural engineer,
1413 or professional land surveyor having responsible charge of an organization's professional
1414 engineering, professional structural engineering, or professional land surveying practice.
1415 (8) "Professional engineer" means a person licensed under this chapter as a
1416 professional engineer.
1417 (9) "Professional engineering or the practice of engineering" means any service or
1418 creative work, the adequate performance of which requires engineering education, training, and
1419 experience in the application of special knowledge of the mathematical, physical, and
1420 engineering sciences to such services or creative work as consultation, investigation,
1421 evaluation, planning, design, and design coordination of engineering works and systems,
1422 planning the use of land and water, facility programming, performing engineering surveys and
1423 studies, and the review of construction for the purpose of monitoring compliance with
1424 drawings and specifications; any of which embraces such services or work, either public or
1425 private, in connection with any utilities, structures, buildings, machines, equipment, processes,
1426 work systems, projects, and industrial or consumer products or equipment of a mechanical,
1427 electrical, hydraulic, pneumatic, or thermal nature, and including such other professional
1428 services as may be necessary to the planning, progress, and completion of any engineering
1429 services, provided that the practice of professional engineering shall not include the practice of
1430 architecture as defined in 58-3a-102, but a licensed professional engineer may perform such
1431 architecture work as is incidental to the practice of engineering.
1432 (10) "Professional engineering intern" means a person who has completed the
1433 education requirements to become a professional engineer, has passed the fundamentals of
1434 engineering examination, and is engaged in obtaining the four years of qualifying experience
1435 for licensure under the direct supervision of a licensed professional engineer.
1436 (11) "Professional land surveying or the practice of land surveying" means any service
1437 or work, the adequate performance of which requires the application of special knowledge of
1438 the principles of mathematics, the related physical and applied sciences, and the relevant
1439 requirements of law for adequate evidence to the act of measuring and locating lines, angles,
1440 elevations, natural and man-made features in the air, on the surface of the earth, within
1441 underground workings, and on the beds of bodies of water for the purpose of determining areas
1442 and volumes, for the monumenting or locating property boundaries or points controlling
1443 boundaries, and for the platting and layout of lands and subdivisions thereof, including the
1444 topography, alignment and grades of streets, and for the preparation and perpetuation of maps,
1445 record plats, field notes records, and property descriptions that represent these surveys and such
1446 other duties as sound surveying practices could direct.
1447 (12) "Professional land surveyor" means an individual licensed under this chapter as a
1448 professional land surveyor.
1449 (13) "Professional structural engineer" means a person licensed under this chapter as a
1450 professional structural engineer.
1451 (14) "Professional structural engineering or the practice of structural engineering"
1452 means the design and analysis of complex buildings and structures and includes the definition
1453 of professional engineering or the practice of engineering provided in Subsection (9), and may
1454 be further defined by rule by the division in collaboration with the board.
1455 (15) "Structure" means that which is built or constructed, an edifice or building of any
1456 kind, or any piece of work artificially built up or composed of parts joined together in some
1457 definite manner, and as otherwise governed by the codes adopted under Title [
1458 [
1459 (16) " Supervision of an employee, subordinate, associate, or drafter of a licensee"
1460 means that a licensed professional engineer, professional structural engineer, or professional
1461 land surveyor is responsible for and personally reviews, corrects when necessary, and approves
1462 work performed by any employee, subordinate, associate, or drafter under the direction of the
1463 licensee, and may be further defined by rule by the division in collaboration with the board.
1464 (17) "TAC/ABET" means the Technology Accreditation Commission/Accreditation
1465 Board for Engineering and Technology.
1466 (18) "Unlawful conduct" is defined in Sections 58-1-501 and 58-22-501 .
1467 (19) "Unprofessional conduct" as defined in Section 58-1-501 may be further defined
1468 by rule by the division in collaboration with the board.
1469 Section 27. Section 58-22-602 is amended to read:
1470 58-22-602. Plans, specifications, reports, maps, sketches, surveys, drawings,
1471 documents, and plats to be sealed.
1472 (1) Any final plan, specification, and report of a building or structure erected in this
1473 state shall bear the seal of a professional engineer or professional structural engineer licensed
1474 under this chapter, except as provided in Section 58-22-305 , in Title 58, Chapter 3a,
1475 [
1476 [
1477 (2) Any final plan, specification, and report prepared by, or under the supervision of,
1478 the professional engineer or professional structural engineer shall bear the seal of the
1479 professional engineer or professional structural engineer when submitted to a client, when filed
1480 with public authorities, or when submitted to a building official for the purpose of obtaining a
1481 building permit, even if the practice is exempt from licensure under Section 58-22-305 .
1482 (3) Any final plan, map, sketch, survey, drawing, document, plat, and report shall bear
1483 the seal of the professional land surveyor licensed under this chapter when submitted to a client
1484 or when filed with public authorities.
1485 Section 28. Section 58-53-304 is amended to read:
1486 58-53-304. Exemptions from licensure.
1487 In addition to the exemptions from licensure in Section 58-1-307 , the following may
1488 engage in the stated limited acts or practices without being licensed under this chapter:
1489 (1) a person preparing a site plan as defined in Subsection 58-53-102 (3), for a one-,
1490 two-, three-, or four-family residence not exceeding two stories in height, exclusive of the
1491 basement;
1492 (2) a person designing sprinkler irrigation systems when licensed as a landscape
1493 contractor under Title [
1494 (3) a person licensed to practice professional engineering or professional structural
1495 engineering under Title 58, Chapter 22, Professional Engineers and Professional Land
1496 Surveyors Licensing Act;
1497 (4) a person licensed to practice architecture under Title 58, Chapter 3a, Architects
1498 Licensing Act;
1499 (5) unlicensed employees of a person licensed under this chapter while preparing site
1500 plans as defined in Subsection 58-53-102 (3), under the supervision of a landscape architect;
1501 and
1502 (6) an organization engaged in the practice of landscape architecture, provided that:
1503 (a) the organization employs a principal; and
1504 (b) all individuals employed by the organization, who are engaged in the practice of
1505 landscape architecture, are licensed or exempt from licensure under this chapter.
1506 Section 29. Section 58-53-602 is amended to read:
1507 58-53-602. Site plans to be sealed.
1508 (1) Any site plan prepared in this state shall bear the seal of a landscape architect
1509 licensed under this chapter, except as provided in Section 58-53-304 , in Title 58, Chapter 22,
1510 Professional Engineers and Professional Land Surveyors Licensing Act, in Title 58, Chapter 3a,
1511 Architects Licensing Act, or by the codes adopted under Title [
1512 Uniform Building Standards Act.
1513 (2) Any final site plan prepared by or under the supervision of the licensed landscape
1514 architect shall bear the seal of the landscape architect when submitted to a client, or when
1515 submitted to a building official for the purpose of obtaining a building permit, even if the
1516 practice is exempt from licensure under Section 58-53-304 .
1517 Section 30. Section 59-12-102 is amended to read:
1518 59-12-102. Definitions.
1519 As used in this chapter:
1520 (1) (a) "Admission or user fees" includes season passes.
1521 (b) "Admission or user fees" does not include annual membership dues to private
1522 organizations.
1523 (2) "Agreement" means the Streamlined Sales and Use Tax Agreement described in
1524 Section 59-12-102.1 .
1525 (3) "Agreement combined tax rate" means the sum of the tax rates:
1526 (a) listed under Subsection (4); and
1527 (b) that are imposed within a local taxing jurisdiction.
1528 (4) "Agreement sales and use tax" means a tax imposed under:
1529 (a) Subsection 59-12-103 (2)(a)(i);
1530 (b) Section 59-12-204 ;
1531 (c) Section 59-12-401 ;
1532 (d) Section 59-12-402 ;
1533 (e) Section 59-12-501 ;
1534 (f) Section 59-12-502 ;
1535 (g) Section 59-12-703 ;
1536 (h) Section 59-12-802 ;
1537 (i) Section 59-12-804 ;
1538 (j) Section 59-12-1001 ;
1539 (k) Section 59-12-1102 ;
1540 (l) Section 59-12-1302 ;
1541 (m) Section 59-12-1402 ; or
1542 (n) Section 59-12-1503 .
1543 (5) "Aircraft" is as defined in Section 72-10-102 .
1544 (6) "Alcoholic beverage" means a beverage that:
1545 (a) is suitable for human consumption; and
1546 (b) contains .5% or more alcohol by volume.
1547 (7) "Area agency on aging" is as defined in Section 62A-3-101 .
1548 (8) "Authorized carrier" means:
1549 (a) in the case of vehicles operated over public highways, the holder of credentials
1550 indicating that the vehicle is or will be operated pursuant to both the International Registration
1551 Plan and the International Fuel Tax Agreement;
1552 (b) in the case of aircraft, the holder of a Federal Aviation Administration operating
1553 certificate or air carrier's operating certificate; or
1554 (c) in the case of locomotives, freight cars, railroad work equipment, or other rolling
1555 stock, the holder of a certificate issued by the United States Surface Transportation Board.
1556 (9) (a) Except as provided in Subsection (9)(b), "biomass energy" means any of the
1557 following that is used as the primary source of energy to produce fuel or electricity:
1558 (i) material from a plant or tree; or
1559 (ii) other organic matter that is available on a renewable basis, including:
1560 (A) slash and brush from forests and woodlands;
1561 (B) animal waste;
1562 (C) methane produced:
1563 (I) at landfills; or
1564 (II) as a byproduct of the treatment of wastewater residuals;
1565 (D) aquatic plants; and
1566 (E) agricultural products.
1567 (b) "Biomass energy" does not include:
1568 (i) black liquor;
1569 (ii) treated woods; or
1570 (iii) biomass from municipal solid waste other than methane produced:
1571 (A) at landfills; or
1572 (B) as a byproduct of the treatment of wastewater residuals.
1573 (10) "Certified automated system" means software certified by the governing board of
1574 the agreement in accordance with Section 59-12-102.1 that:
1575 (a) calculates the agreement sales and use tax imposed within a local taxing
1576 jurisdiction:
1577 (i) on a transaction; and
1578 (ii) in the states that are members of the agreement;
1579 (b) determines the amount of agreement sales and use tax to remit to a state that is a
1580 member of the agreement; and
1581 (c) maintains a record of the transaction described in Subsection (10)(a)(i).
1582 (11) "Certified service provider" means an agent certified:
1583 (a) by the governing board of the agreement in accordance with Section 59-12-102.1 ;
1584 and
1585 (b) to perform all of a seller's sales and use tax functions for an agreement sales and
1586 use tax other than the seller's obligation under Section 59-12-107.4 to remit a tax on the seller's
1587 own purchases.
1588 (12) (a) Subject to Subsection (12)(b), "clothing" means all human wearing apparel
1589 suitable for general use.
1590 (b) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
1591 commission shall make rules:
1592 (i) listing the items that constitute "clothing"; and
1593 (ii) that are consistent with the list of items that constitute "clothing" under the
1594 agreement.
1595 (13) (a) For purposes of Subsection 59-12-104 (42), "coin-operated amusement device"
1596 means:
1597 (i) a coin-operated amusement, skill, or ride device;
1598 (ii) that is not controlled through seller-assisted, over-the-counter, sales of tokens; and
1599 (iii) includes a music machine, pinball machine, billiard machine, video game machine,
1600 arcade machine, and a mechanical or electronic skill game or ride.
1601 (b) For purposes of Subsection 59-12-104 (42), "coin-operated amusement device" does
1602 not mean a coin-operated amusement device possessing a coinage mechanism that:
1603 (i) accepts and registers multiple denominations of coins; and
1604 (ii) allows the seller to collect the sales and use tax at the time an amusement device is
1605 activated and operated by a person inserting coins into the device.
1606 (14) "Commercial use" means the use of gas, electricity, heat, coal, fuel oil, or other
1607 fuels that does not constitute industrial use under Subsection (34) or residential use under
1608 Subsection (63).
1609 (15) (a) "Common carrier" means a person engaged in or transacting the business of
1610 transporting passengers, freight, merchandise, or other property for hire within this state.
1611 (b) (i) "Common carrier" does not include a person who, at the time the person is
1612 traveling to or from that person's place of employment, transports a passenger to or from the
1613 passenger's place of employment.
1614 (ii) For purposes of Subsection (15)(b)(i), in accordance with Title 63, Chapter 46a,
1615 Utah Administrative Rulemaking Act, the commission may make rules defining what
1616 constitutes a person's place of employment.
1617 (16) "Component part" includes:
1618 (a) poultry, dairy, and other livestock feed, and their components;
1619 (b) baling ties and twine used in the baling of hay and straw;
1620 (c) fuel used for providing temperature control of orchards and commercial
1621 greenhouses doing a majority of their business in wholesale sales, and for providing power for
1622 off-highway type farm machinery; and
1623 (d) feed, seeds, and seedlings.
1624 (17) "Computer" means an electronic device that accepts information:
1625 (a) (i) in digital form; or
1626 (ii) in a form similar to digital form; and
1627 (b) manipulates that information for a result based on a sequence of instructions.
1628 (18) "Computer software" means a set of coded instructions designed to cause:
1629 (a) a computer to perform a task; or
1630 (b) automatic data processing equipment to perform a task.
1631 (19) "Construction materials" means any tangible personal property that will be
1632 converted into real property.
1633 (20) "Delivered electronically" means delivered to a purchaser by means other than
1634 tangible storage media.
1635 (21) (a) "Delivery charge" means a charge:
1636 (i) by a seller of:
1637 (A) tangible personal property; or
1638 (B) services; and
1639 (ii) for preparation and delivery of the tangible personal property or services described
1640 in Subsection (21)(a)(i) to a location designated by the purchaser.
1641 (b) "Delivery charge" includes a charge for the following:
1642 (i) transportation;
1643 (ii) shipping;
1644 (iii) postage;
1645 (iv) handling;
1646 (v) crating; or
1647 (vi) packing.
1648 (22) "Dietary supplement" means a product, other than tobacco, that:
1649 (a) is intended to supplement the diet;
1650 (b) contains one or more of the following dietary ingredients:
1651 (i) a vitamin;
1652 (ii) a mineral;
1653 (iii) an herb or other botanical;
1654 (iv) an amino acid;
1655 (v) a dietary substance for use by humans to supplement the diet by increasing the total
1656 dietary intake; or
1657 (vi) a concentrate, metabolite, constituent, extract, or combination of any ingredient
1658 described in Subsections (22)(b)(i) through (v);
1659 (c) (i) except as provided in Subsection (22)(c)(ii), is intended for ingestion in:
1660 (A) tablet form;
1661 (B) capsule form;
1662 (C) powder form;
1663 (D) softgel form;
1664 (E) gelcap form; or
1665 (F) liquid form; or
1666 (ii) notwithstanding Subsection (22)(c)(i), if the product is not intended for ingestion in
1667 a form described in Subsections (22)(c)(i)(A) through (F), is not represented:
1668 (A) as conventional food; and
1669 (B) for use as a sole item of:
1670 (I) a meal; or
1671 (II) the diet; and
1672 (d) is required to be labeled as a dietary supplement:
1673 (i) identifiable by the "Supplemental Facts" box found on the label; and
1674 (ii) as required by 21 C.F.R. Sec. 101.36.
1675 (23) (a) "Direct mail" means printed material delivered or distributed by United States
1676 mail or other delivery service:
1677 (i) to:
1678 (A) a mass audience; or
1679 (B) addressees on a mailing list provided by a purchaser of the mailing list; and
1680 (ii) if the cost of the printed material is not billed directly to the recipients.
1681 (b) "Direct mail" includes tangible personal property supplied directly or indirectly by a
1682 purchaser to a seller of direct mail for inclusion in a package containing the printed material.
1683 (c) "Direct mail" does not include multiple items of printed material delivered to a
1684 single address.
1685 (24) (a) "Drug" means a compound, substance, or preparation, or a component of a
1686 compound, substance, or preparation that is:
1687 (i) recognized in:
1688 (A) the official United States Pharmacopoeia;
1689 (B) the official Homeopathic Pharmacopoeia of the United States;
1690 (C) the official National Formulary; or
1691 (D) a supplement to a publication listed in Subsections (24)(a)(i)(A) through (C);
1692 (ii) intended for use in the:
1693 (A) diagnosis of disease;
1694 (B) cure of disease;
1695 (C) mitigation of disease;
1696 (D) treatment of disease; or
1697 (E) prevention of disease; or
1698 (iii) intended to affect:
1699 (A) the structure of the body; or
1700 (B) any function of the body.
1701 (b) "Drug" does not include:
1702 (i) food and food ingredients;
1703 (ii) a dietary supplement;
1704 (iii) an alcoholic beverage; or
1705 (iv) a prosthetic device.
1706 (25) (a) Except as provided in Subsection (25)(c), "durable medical equipment" means
1707 equipment that:
1708 (i) can withstand repeated use;
1709 (ii) is primarily and customarily used to serve a medical purpose;
1710 (iii) generally is not useful to a person in the absence of illness or injury;
1711 (iv) is not worn in or on the body;
1712 (v) is listed as eligible for payment under:
1713 (A) Title XVIII of the federal Social Security Act; or
1714 (B) the state plan for medical assistance under Title XIX of the federal Social Security
1715 Act; and
1716 (vi) is used for home use only.
1717 (b) "Durable medical equipment" includes parts used in the repair or replacement of the
1718 equipment described in Subsection (25)(a).
1719 (c) Notwithstanding Subsection (25)(a), "durable medical equipment" does not include
1720 mobility enhancing equipment.
1721 (26) "Electronic" means:
1722 (a) relating to technology; and
1723 (b) having:
1724 (i) electrical capabilities;
1725 (ii) digital capabilities;
1726 (iii) magnetic capabilities;
1727 (iv) wireless capabilities;
1728 (v) optical capabilities;
1729 (vi) electromagnetic capabilities; or
1730 (vii) capabilities similar to Subsections (26)(b)(i) through (vi).
1731 (27) (a) "Food and food ingredients" means substances:
1732 (i) regardless of whether the substances are in:
1733 (A) liquid form;
1734 (B) concentrated form;
1735 (C) solid form;
1736 (D) frozen form;
1737 (E) dried form; or
1738 (F) dehydrated form; and
1739 (ii) that are:
1740 (A) sold for:
1741 (I) ingestion by humans; or
1742 (II) chewing by humans; and
1743 (B) consumed for the substance's:
1744 (I) taste; or
1745 (II) nutritional value.
1746 (b) "Food and food ingredients" does not include:
1747 (i) an alcoholic beverage;
1748 (ii) tobacco; or
1749 (iii) prepared food.
1750 (28) (a) "Fundraising sales" means sales:
1751 (i) (A) made by a school; or
1752 (B) made by a school student;
1753 (ii) that are for the purpose of raising funds for the school to purchase equipment,
1754 materials, or provide transportation; and
1755 (iii) that are part of an officially sanctioned school activity.
1756 (b) For purposes of Subsection (28)(a)(iii), "officially sanctioned school activity"
1757 means a school activity:
1758 (i) that is conducted in accordance with a formal policy adopted by the school or school
1759 district governing the authorization and supervision of fundraising activities;
1760 (ii) that does not directly or indirectly compensate an individual teacher or other
1761 educational personnel by direct payment, commissions, or payment in kind; and
1762 (iii) the net or gross revenues from which are deposited in a dedicated account
1763 controlled by the school or school district.
1764 (29) "Geothermal energy" means energy contained in heat that continuously flows
1765 outward from the earth that is used as the sole source of energy to produce electricity.
1766 (30) "Governing board of the agreement" means the governing board of the agreement
1767 that is:
1768 (a) authorized to administer the agreement; and
1769 (b) established in accordance with the agreement.
1770 (31) (a) "Hearing aid" means:
1771 (i) an instrument or device having an electronic component that is designed to:
1772 (A) (I) improve impaired human hearing; or
1773 (II) correct impaired human hearing; and
1774 (B) (I) be worn in the human ear; or
1775 (II) affixed behind the human ear;
1776 (ii) an instrument or device that is surgically implanted into the cochlea; or
1777 (iii) a telephone amplifying device.
1778 (b) "Hearing aid" does not include:
1779 (i) except as provided in Subsection (31)(a)(i)(B) or (31)(a)(ii), an instrument or device
1780 having an electronic component that is designed to be worn on the body;
1781 (ii) except as provided in Subsection (31)(a)(iii), an assistive listening device or system
1782 designed to be used by one individual, including:
1783 (A) a personal amplifying system;
1784 (B) a personal FM system;
1785 (C) a television listening system; or
1786 (D) a device or system similar to a device or system described in Subsections
1787 (31)(b)(ii)(A) through (C); or
1788 (iii) an assistive listening device or system designed to be used by more than one
1789 individual, including:
1790 (A) a device or system installed in:
1791 (I) an auditorium;
1792 (II) a church;
1793 (III) a conference room;
1794 (IV) a synagogue; or
1795 (V) a theater; or
1796 (B) a device or system similar to a device or system described in Subsections
1797 (31)(b)(iii)(A)(I) through (V).
1798 (32) (a) "Hearing aid accessory" means a hearing aid:
1799 (i) component;
1800 (ii) attachment; or
1801 (iii) accessory.
1802 (b) "Hearing aid accessory" includes:
1803 (i) a hearing aid neck loop;
1804 (ii) a hearing aid cord;
1805 (iii) a hearing aid ear mold;
1806 (iv) hearing aid tubing;
1807 (v) a hearing aid ear hook; or
1808 (vi) a hearing aid remote control.
1809 (c) "Hearing aid accessory" does not include:
1810 (i) a component, attachment, or accessory designed to be used only with an:
1811 (A) instrument or device described in Subsection (31)(b)(i); or
1812 (B) assistive listening device or system described in Subsection (31)(b)(ii) or (iii); or
1813 (ii) a hearing aid battery.
1814 (33) "Hydroelectric energy" means water used as the sole source of energy to produce
1815 electricity.
1816 (34) "Industrial use" means the use of natural gas, electricity, heat, coal, fuel oil, or
1817 other fuels:
1818 (a) in mining or extraction of minerals;
1819 (b) in agricultural operations to produce an agricultural product up to the time of
1820 harvest or placing the agricultural product into a storage facility, including:
1821 (i) commercial greenhouses;
1822 (ii) irrigation pumps;
1823 (iii) farm machinery;
1824 (iv) implements of husbandry as defined in Subsection 41-1a-102 (23) that are not
1825 registered under Title 41, Chapter 1a, Part 2, Registration; and
1826 (v) other farming activities;
1827 (c) in manufacturing tangible personal property at an establishment described in SIC
1828 Codes 2000 to 3999 of the 1987 Standard Industrial Classification Manual of the federal
1829 Executive Office of the President, Office of Management and Budget; or
1830 (d) by a scrap recycler if:
1831 (i) from a fixed location, the scrap recycler utilizes machinery or equipment to process
1832 one or more of the following items into prepared grades of processed materials for use in new
1833 products:
1834 (A) iron;
1835 (B) steel;
1836 (C) nonferrous metal;
1837 (D) paper;
1838 (E) glass;
1839 (F) plastic;
1840 (G) textile; or
1841 (H) rubber; and
1842 (ii) the new products under Subsection (34)(d)(i) would otherwise be made with
1843 nonrecycled materials.
1844 (35) (a) "Lease" or "rental" means a transfer of possession or control of tangible
1845 personal property for:
1846 (i) (A) a fixed term; or
1847 (B) an indeterminate term; and
1848 (ii) consideration.
1849 (b) "Lease" or "rental" includes an agreement covering a motor vehicle and trailer if the
1850 amount of consideration may be increased or decreased by reference to the amount realized
1851 upon sale or disposition of the property as defined in Section 7701(h)(1), Internal Revenue
1852 Code.
1853 (c) "Lease" or "rental" does not include:
1854 (i) a transfer of possession or control of property under a security agreement or
1855 deferred payment plan that requires the transfer of title upon completion of the required
1856 payments;
1857 (ii) a transfer of possession or control of property under an agreement:
1858 (A) that requires the transfer of title upon completion of required payments; and
1859 (B) in which the payment of an option price does not exceed the greater of:
1860 (I) $100; or
1861 (II) 1% of the total required payments; or
1862 (iii) providing tangible personal property along with an operator for a fixed period of
1863 time or an indeterminate period of time if the operator is necessary for equipment to perform as
1864 designed.
1865 (d) For purposes of Subsection (35)(c)(iii), an operator is necessary for equipment to
1866 perform as designed if the operator's duties exceed the:
1867 (i) set-up of tangible personal property;
1868 (ii) maintenance of tangible personal property; or
1869 (iii) inspection of tangible personal property.
1870 (36) "Load and leave" means delivery to a purchaser by use of a tangible storage media
1871 if the tangible storage media is not physically transferred to the purchaser.
1872 (37) "Local taxing jurisdiction" means a:
1873 (a) county that is authorized to impose an agreement sales and use tax;
1874 (b) city that is authorized to impose an agreement sales and use tax; or
1875 (c) town that is authorized to impose an agreement sales and use tax.
1876 (38) "Manufactured home" is as defined in Section [
1877 (39) For purposes of Subsection 59-12-104 (14), "manufacturing facility" means:
1878 (a) an establishment described in SIC Codes 2000 to 3999 of the 1987 Standard
1879 Industrial Classification Manual of the federal Executive Office of the President, Office of
1880 Management and Budget; or
1881 (b) a scrap recycler if:
1882 (i) from a fixed location, the scrap recycler utilizes machinery or equipment to process
1883 one or more of the following items into prepared grades of processed materials for use in new
1884 products:
1885 (A) iron;
1886 (B) steel;
1887 (C) nonferrous metal;
1888 (D) paper;
1889 (E) glass;
1890 (F) plastic;
1891 (G) textile; or
1892 (H) rubber; and
1893 (ii) the new products under Subsection (39)(b)(i) would otherwise be made with
1894 nonrecycled materials.
1895 (40) "Mobile home" is as defined in Section [
1896 (41) "Mobile telecommunications service" is as defined in the Mobile
1897 Telecommunications Sourcing Act, 4 U.S.C. Sec. 124.
1898 (42) (a) Except as provided in Subsection (42)(c), "mobility enhancing equipment"
1899 means equipment that is:
1900 (i) primarily and customarily used to provide or increase the ability to move from one
1901 place to another;
1902 (ii) appropriate for use in a:
1903 (A) home; or
1904 (B) motor vehicle;
1905 (iii) not generally used by persons with normal mobility; and
1906 (iv) listed as eligible for payment under:
1907 (A) Title XVIII of the federal Social Security Act; or
1908 (B) the state plan for medical assistance under Title XIX of the federal Social Security
1909 Act.
1910 (b) "Mobility enhancing equipment" includes parts used in the repair or replacement of
1911 the equipment described in Subsection (42)(a).
1912 (c) Notwithstanding Subsection (42)(a), "mobility enhancing equipment" does not
1913 include:
1914 (i) a motor vehicle;
1915 (ii) equipment on a motor vehicle if that equipment is normally provided by the motor
1916 vehicle manufacturer;
1917 (iii) durable medical equipment; or
1918 (iv) a prosthetic device.
1919 (43) "Model 1 seller" means a seller that has selected a certified service provider as the
1920 seller's agent to perform all of the seller's sales and use tax functions for agreement sales and
1921 use taxes other than the seller's obligation under Section 59-12-107.4 to remit a tax on the
1922 seller's own purchases.
1923 (44) "Model 2 seller" means a seller that:
1924 (a) except as provided in Subsection (44)(b), has selected a certified automated system
1925 to perform the seller's sales tax functions for agreement sales and use taxes; and
1926 (b) notwithstanding Subsection (44)(a), retains responsibility for remitting all of the
1927 sales tax:
1928 (i) collected by the seller; and
1929 (ii) to the appropriate local taxing jurisdiction.
1930 (45) (a) Subject to Subsection (45)(b), "model 3 seller" means a seller that has:
1931 (i) sales in at least five states that are members of the agreement;
1932 (ii) total annual sales revenues of at least $500,000,000;
1933 (iii) a proprietary system that calculates the amount of tax:
1934 (A) for an agreement sales and use tax; and
1935 (B) due to each local taxing jurisdiction; and
1936 (iv) entered into a performance agreement with the governing board of the agreement.
1937 (b) For purposes of Subsection (45)(a), "model 3 seller" includes an affiliated group of
1938 sellers using the same proprietary system.
1939 (46) "Modular home" means a modular unit as defined in Section [
1940 (47) "Motor vehicle" is as defined in Section 41-1a-102 .
1941 (48) (a) "Other fuels" means products that burn independently to produce heat or
1942 energy.
1943 (b) "Other fuels" includes oxygen when it is used in the manufacturing of tangible
1944 personal property.
1945 (49) "Person" includes any individual, firm, partnership, joint venture, association,
1946 corporation, estate, trust, business trust, receiver, syndicate, this state, any county, city,
1947 municipality, district, or other local governmental entity of the state, or any group or
1948 combination acting as a unit.
1949 (50) "Place of primary use":
1950 (a) for telephone service other than mobile telecommunications service, means the
1951 street address representative of where the purchaser's use of the telephone service primarily
1952 occurs, which shall be:
1953 (i) the residential street address of the purchaser; or
1954 (ii) the primary business street address of the purchaser; or
1955 (b) for mobile telecommunications service, is as defined in the Mobile
1956 Telecommunications Sourcing Act, 4 U.S.C. Sec. 124.
1957 (51) "Postproduction" means an activity related to the finishing or duplication of a
1958 medium described in Subsection 59-12-104 (60)(a).
1959 (52) (a) "Prepared food" means:
1960 (i) food:
1961 (A) sold in a heated state; or
1962 (B) heated by a seller;
1963 (ii) two or more food ingredients mixed or combined by the seller for sale as a single
1964 item; or
1965 (iii) except as provided in Subsection (52)(c), food sold with an eating utensil provided
1966 by the seller, including a:
1967 (A) plate;
1968 (B) knife;
1969 (C) fork;
1970 (D) spoon;
1971 (E) glass;
1972 (F) cup;
1973 (G) napkin; or
1974 (H) straw.
1975 (b) "Prepared food" does not include:
1976 (i) food that a seller only:
1977 (A) cuts;
1978 (B) repackages; or
1979 (C) pasteurizes; or
1980 (ii) (A) the following:
1981 (I) raw egg;
1982 (II) raw fish;
1983 (III) raw meat;
1984 (IV) raw poultry; or
1985 (V) a food containing an item described in Subsections (52)(b)(ii)(A)(I) through (IV);
1986 and
1987 (B) if the Food and Drug Administration recommends in Chapter 3, Part 401.11 of the
1988 Food and Drug Administration's Food Code that a consumer cook the items described in
1989 Subsection (52)(b)(ii)(A) to prevent food borne illness.
1990 (c) Notwithstanding Subsection (52)(a)(iii), an eating utensil provided by the seller
1991 does not include the following used to transport the food:
1992 (i) a container; or
1993 (ii) packaging.
1994 (53) "Prescription" means an order, formula, or recipe that is issued:
1995 (a) (i) orally;
1996 (ii) in writing;
1997 (iii) electronically; or
1998 (iv) by any other manner of transmission; and
1999 (b) by a licensed practitioner authorized by the laws of a state.
2000 (54) (a) Except as provided in Subsection (54)(b)(ii) or (iii), "prewritten computer
2001 software" means computer software that is not designed and developed:
2002 (i) by the author or other creator of the computer software; and
2003 (ii) to the specifications of a specific purchaser.
2004 (b) "Prewritten computer software" includes:
2005 (i) a prewritten upgrade to computer software if the prewritten upgrade to the computer
2006 software is not designed and developed:
2007 (A) by the author or other creator of the computer software; and
2008 (B) to the specifications of a specific purchaser;
2009 (ii) notwithstanding Subsection (54)(a), computer software designed and developed by
2010 the author or other creator of the computer software to the specifications of a specific purchaser
2011 if the computer software is sold to a person other than the purchaser; or
2012 (iii) notwithstanding Subsection (54)(a) and except as provided in Subsection (54)(c),
2013 prewritten computer software or a prewritten portion of prewritten computer software:
2014 (A) that is modified or enhanced to any degree; and
2015 (B) if the modification or enhancement described in Subsection (54)(b)(iii)(A) is
2016 designed and developed to the specifications of a specific purchaser.
2017 (c) Notwithstanding Subsection (54)(b)(iii), "prewritten computer software" does not
2018 include a modification or enhancement described in Subsection (54)(b)(iii) if the charges for
2019 the modification or enhancement are:
2020 (i) reasonable; and
2021 (ii) separately stated on the invoice or other statement of price provided to the
2022 purchaser.
2023 (55) (a) "Prosthetic device" means a device that is:
2024 (i) worn on or in the body to:
2025 (A) artificially replace a missing portion of the body;
2026 (B) prevent or correct a physical deformity or physical malfunction; or
2027 (C) support a weak or deformed portion of the body; and
2028 (ii) listed as eligible for payment under:
2029 (A) Title XVIII of the federal Social Security Act; or
2030 (B) the state plan for medical assistance under Title XIX of the federal Social Security
2031 Act.
2032 (b) "Prosthetic device" includes:
2033 (i) parts used in the repairs or renovation of a prosthetic device; or
2034 (ii) replacement parts for a prosthetic device.
2035 (c) "Prosthetic device" does not include:
2036 (i) corrective eyeglasses;
2037 (ii) contact lenses;
2038 (iii) hearing aids; or
2039 (iv) dental prostheses.
2040 (56) (a) "Protective equipment" means an item:
2041 (i) for human wear; and
2042 (ii) that is:
2043 (A) designed as protection:
2044 (I) to the wearer against injury or disease; or
2045 (II) against damage or injury of other persons or property; and
2046 (B) not suitable for general use.
2047 (b) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
2048 commission shall make rules:
2049 (i) listing the items that constitute "protective equipment"; and
2050 (ii) that are consistent with the list of items that constitute "protective equipment"
2051 under the agreement.
2052 (57) (a) "Purchase price" and "sales price" mean the total amount of consideration:
2053 (i) valued in money; and
2054 (ii) for which tangible personal property or services are:
2055 (A) sold;
2056 (B) leased; or
2057 (C) rented.
2058 (b) "Purchase price" and "sales price" include:
2059 (i) the seller's cost of the tangible personal property or services sold;
2060 (ii) expenses of the seller, including:
2061 (A) the cost of materials used;
2062 (B) a labor cost;
2063 (C) a service cost;
2064 (D) interest;
2065 (E) a loss;
2066 (F) the cost of transportation to the seller; or
2067 (G) a tax imposed on the seller;
2068 (iii) a charge by the seller for any service necessary to complete the sale;
2069 (iv) a delivery charge; or
2070 (v) an installation charge.
2071 (c) "Purchase price" and "sales price" do not include:
2072 (i) a discount:
2073 (A) in a form including:
2074 (I) cash;
2075 (II) term; or
2076 (III) coupon;
2077 (B) that is allowed by a seller;
2078 (C) taken by a purchaser on a sale; and
2079 (D) that is not reimbursed by a third party; or
2080 (ii) the following if separately stated on an invoice, bill of sale, or similar document
2081 provided to the purchaser:
2082 (A) the amount of a trade-in;
2083 (B) the following from credit extended on the sale of tangible personal property or
2084 services:
2085 (I) interest charges;
2086 (II) financing charges; or
2087 (III) carrying charges; or
2088 (C) a tax or fee legally imposed directly on the consumer.
2089 (58) "Purchaser" means a person to whom:
2090 (a) a sale of tangible personal property is made; or
2091 (b) a service is furnished.
2092 (59) "Regularly rented" means:
2093 (a) rented to a guest for value three or more times during a calendar year; or
2094 (b) advertised or held out to the public as a place that is regularly rented to guests for
2095 value.
2096 (60) "Renewable energy" means:
2097 (a) biomass energy;
2098 (b) hydroelectric energy;
2099 (c) geothermal energy;
2100 (d) solar energy; or
2101 (e) wind energy.
2102 (61) (a) "Renewable energy production facility" means a facility that:
2103 (i) uses renewable energy to produce electricity; and
2104 (ii) has a production capacity of 20 kilowatts or greater.
2105 (b) A facility is a renewable energy production facility regardless of whether the
2106 facility is:
2107 (i) connected to an electric grid; or
2108 (ii) located on the premises of an electricity consumer.
2109 (62) "Rental" is as defined in Subsection (35).
2110 (63) "Residential use" means the use in or around a home, apartment building, sleeping
2111 quarters, and similar facilities or accommodations.
2112 (64) "Retail sale" or "sale at retail" means a sale, lease, or rental for a purpose other
2113 than:
2114 (a) resale;
2115 (b) sublease; or
2116 (c) subrent.
2117 (65) (a) "Retailer" means any person engaged in a regularly organized business in
2118 tangible personal property or any other taxable transaction under Subsection 59-12-103 (1), and
2119 who is selling to the user or consumer and not for resale.
2120 (b) "Retailer" includes commission merchants, auctioneers, and any person regularly
2121 engaged in the business of selling to users or consumers within the state.
2122 (66) (a) "Sale" means any transfer of title, exchange, or barter, conditional or
2123 otherwise, in any manner, of tangible personal property or any other taxable transaction under
2124 Subsection 59-12-103 (1), for consideration.
2125 (b) "Sale" includes:
2126 (i) installment and credit sales;
2127 (ii) any closed transaction constituting a sale;
2128 (iii) any sale of electrical energy, gas, services, or entertainment taxable under this
2129 chapter;
2130 (iv) any transaction if the possession of property is transferred but the seller retains the
2131 title as security for the payment of the price; and
2132 (v) any transaction under which right to possession, operation, or use of any article of
2133 tangible personal property is granted under a lease or contract and the transfer of possession
2134 would be taxable if an outright sale were made.
2135 (67) "Sale at retail" is as defined in Subsection (64).
2136 (68) "Sale-leaseback transaction" means a transaction by which title to tangible
2137 personal property that is subject to a tax under this chapter is transferred:
2138 (a) by a purchaser-lessee;
2139 (b) to a lessor;
2140 (c) for consideration; and
2141 (d) if:
2142 (i) the purchaser-lessee paid sales and use tax on the purchaser-lessee's initial purchase
2143 of the tangible personal property;
2144 (ii) the sale of the tangible personal property to the lessor is intended as a form of
2145 financing:
2146 (A) for the property; and
2147 (B) to the purchaser-lessee; and
2148 (iii) in accordance with generally accepted accounting principles, the purchaser-lessee
2149 is required to:
2150 (A) capitalize the property for financial reporting purposes; and
2151 (B) account for the lease payments as payments made under a financing arrangement.
2152 (69) "Sales price" is as defined in Subsection (57).
2153 (70) (a) "Sales relating to schools" means the following sales by, amounts paid to, or
2154 amounts charged by a school:
2155 (i) sales that are directly related to the school's educational functions or activities
2156 including:
2157 (A) the sale of:
2158 (I) textbooks;
2159 (II) textbook fees;
2160 (III) laboratory fees;
2161 (IV) laboratory supplies; or
2162 (V) safety equipment;
2163 (B) the sale of a uniform, protective equipment, or sports or recreational equipment
2164 that:
2165 (I) a student is specifically required to wear as a condition of participation in a
2166 school-related event or school-related activity; and
2167 (II) is not readily adaptable to general or continued usage to the extent that it takes the
2168 place of ordinary clothing;
2169 (C) sales of the following if the net or gross revenues generated by the sales are
2170 deposited into a school district fund or school fund dedicated to school meals:
2171 (I) food and food ingredients; or
2172 (II) prepared food; or
2173 (D) transportation charges for official school activities; or
2174 (ii) amounts paid to or amounts charged by a school for admission to a school-related
2175 event or school-related activity.
2176 (b) "Sales relating to schools" does not include:
2177 (i) bookstore sales of items that are not educational materials or supplies;
2178 (ii) except as provided in Subsection (70)(a)(i)(B):
2179 (A) clothing;
2180 (B) clothing accessories or equipment;
2181 (C) protective equipment; or
2182 (D) sports or recreational equipment; or
2183 (iii) amounts paid to or amounts charged by a school for admission to a school-related
2184 event or school-related activity if the amounts paid or charged are passed through to a person:
2185 (A) other than a:
2186 (I) school;
2187 (II) nonprofit organization authorized by a school board or a governing body of a
2188 private school to organize and direct a competitive secondary school activity; or
2189 (III) nonprofit association authorized by a school board or a governing body of a
2190 private school to organize and direct a competitive secondary school activity; and
2191 (B) that is required to collect sales and use taxes under this chapter.
2192 (c) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
2193 commission may make rules defining the term "passed through."
2194 (71) For purposes of this section and Section 59-12-104 , "school" means:
2195 (a) an elementary school or a secondary school that:
2196 (i) is a:
2197 (A) public school; or
2198 (B) private school; and
2199 (ii) provides instruction for one or more grades kindergarten through 12; or
2200 (b) a public school district.
2201 (72) "Seller" means a person that makes a sale, lease, or rental of:
2202 (a) tangible personal property; or
2203 (b) a service.
2204 (73) (a) "Semiconductor fabricating or processing materials" means tangible personal
2205 property:
2206 (i) used primarily in the process of:
2207 (A) (I) manufacturing a semiconductor; or
2208 (II) fabricating a semiconductor; or
2209 (B) maintaining an environment suitable for a semiconductor; or
2210 (ii) consumed primarily in the process of:
2211 (A) (I) manufacturing a semiconductor; or
2212 (II) fabricating a semiconductor; or
2213 (B) maintaining an environment suitable for a semiconductor.
2214 (b) "Semiconductor fabricating or processing materials" includes:
2215 (i) parts used in the repairs or renovations of tangible personal property described in
2216 Subsection (73)(a); or
2217 (ii) a chemical, catalyst, or other material used to:
2218 (A) produce or induce in a semiconductor a:
2219 (I) chemical change; or
2220 (II) physical change;
2221 (B) remove impurities from a semiconductor; or
2222 (C) improve the marketable condition of a semiconductor.
2223 (74) "Senior citizen center" means a facility having the primary purpose of providing
2224 services to the aged as defined in Section 62A-3-101 .
2225 (75) "Simplified electronic return" means the electronic return:
2226 (a) described in Section 318(C) of the agreement; and
2227 (b) approved by the governing board of the agreement.
2228 (76) "Solar energy" means the sun used as the sole source of energy for producing
2229 electricity.
2230 (77) (a) "Sports or recreational equipment" means an item:
2231 (i) designed for human use; and
2232 (ii) that is:
2233 (A) worn in conjunction with:
2234 (I) an athletic activity; or
2235 (II) a recreational activity; and
2236 (B) not suitable for general use.
2237 (b) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
2238 commission shall make rules:
2239 (i) listing the items that constitute "sports or recreational equipment"; and
2240 (ii) that are consistent with the list of items that constitute "sports or recreational
2241 equipment" under the agreement.
2242 (78) "State" means the state of Utah, its departments, and agencies.
2243 (79) "Storage" means any keeping or retention of tangible personal property or any
2244 other taxable transaction under Subsection 59-12-103 (1), in this state for any purpose except
2245 sale in the regular course of business.
2246 (80) (a) "Tangible personal property" means personal property that:
2247 (i) may be:
2248 (A) seen;
2249 (B) weighed;
2250 (C) measured;
2251 (D) felt; or
2252 (E) touched; or
2253 (ii) is in any manner perceptible to the senses.
2254 (b) "Tangible personal property" includes:
2255 (i) electricity;
2256 (ii) water;
2257 (iii) gas;
2258 (iv) steam; or
2259 (v) prewritten computer software.
2260 (81) (a) "Telephone service" means a two-way transmission:
2261 (i) by:
2262 (A) wire;
2263 (B) radio;
2264 (C) lightwave; or
2265 (D) other electromagnetic means; and
2266 (ii) of one or more of the following:
2267 (A) a sign;
2268 (B) a signal;
2269 (C) writing;
2270 (D) an image;
2271 (E) sound;
2272 (F) a message;
2273 (G) data; or
2274 (H) other information of any nature.
2275 (b) "Telephone service" includes:
2276 (i) mobile telecommunications service;
2277 (ii) private communications service; or
2278 (iii) automated digital telephone answering service.
2279 (c) "Telephone service" does not include a service or a transaction that a state or a
2280 political subdivision of a state is prohibited from taxing as of July 1, 2001, under the Internet
2281 Tax Freedom Act, Pub. L. No. 105-277.
2282 (82) Notwithstanding where a call is billed or paid, "telephone service address" means:
2283 (a) if the location described in this Subsection (82)(a) is known, the location of the
2284 telephone service equipment:
2285 (i) to which a call is charged; and
2286 (ii) from which the call originates or terminates;
2287 (b) if the location described in Subsection (82)(a) is not known but the location
2288 described in this Subsection (82)(b) is known, the location of the origination point of the signal
2289 of the telephone service first identified by:
2290 (i) the telecommunications system of the seller; or
2291 (ii) if the system used to transport the signal is not that of the seller, information
2292 received by the seller from its service provider; or
2293 (c) if the locations described in Subsection (82)(a) or (b) are not known, the location of
2294 a purchaser's primary place of use.
2295 (83) (a) "Telephone service provider" means a person that:
2296 (i) owns, controls, operates, or manages a telephone service; and
2297 (ii) engages in an activity described in Subsection (83)(a)(i) for the shared use with or
2298 resale to any person of the telephone service.
2299 (b) A person described in Subsection (83)(a) is a telephone service provider whether or
2300 not the Public Service Commission of Utah regulates:
2301 (i) that person; or
2302 (ii) the telephone service that the person owns, controls, operates, or manages.
2303 (84) "Tobacco" means:
2304 (a) a cigarette;
2305 (b) a cigar;
2306 (c) chewing tobacco;
2307 (d) pipe tobacco; or
2308 (e) any other item that contains tobacco.
2309 (85) (a) "Use" means the exercise of any right or power over tangible personal property
2310 under Subsection 59-12-103 (1), incident to the ownership or the leasing of that property, item,
2311 or service.
2312 (b) "Use" does not include the sale, display, demonstration, or trial of that property in
2313 the regular course of business and held for resale.
2314 (86) (a) Subject to Subsection (86)(b), "vehicle" means the following that are required
2315 to be titled, registered, or titled and registered:
2316 (i) an aircraft as defined in Section 72-10-102 ;
2317 (ii) a vehicle as defined in Section 41-1a-102 ;
2318 (iii) an off-highway vehicle as defined in Section 41-22-2 ; or
2319 (iv) a vessel as defined in Section 41-1a-102 .
2320 (b) For purposes of Subsection 59-12-104 (35) only, "vehicle" includes:
2321 (i) a vehicle described in Subsection (86)(a); or
2322 (ii) (A) a locomotive;
2323 (B) a freight car;
2324 (C) railroad work equipment; or
2325 (D) other railroad rolling stock.
2326 (87) "Vehicle dealer" means a person engaged in the business of buying, selling, or
2327 exchanging a vehicle as defined in Subsection (86).
2328 (88) (a) Except as provided in Subsection (88)(b), "waste energy facility" means a
2329 facility that generates electricity:
2330 (i) using as the primary source of energy waste materials that would be placed in a
2331 landfill or refuse pit if it were not used to generate electricity, including:
2332 (A) tires;
2333 (B) waste coal; or
2334 (C) oil shale; and
2335 (ii) in amounts greater than actually required for the operation of the facility.
2336 (b) "Waste energy facility" does not include a facility that incinerates:
2337 (i) municipal solid waste;
2338 (ii) hospital waste as defined in 40 C.F.R. 60.51c; or
2339 (iii) medical/infectious waste as defined in 40 C.F.R. 60.51c.
2340 (89) "Watercraft" means a vessel as defined in Section 73-18-2 .
2341 (90) "Wind energy" means wind used as the sole source of energy to produce
2342 electricity.
2343 (91) "ZIP Code" means a Zoning Improvement Plan Code assigned to a geographic
2344 location by the United States Postal Service.
2345 Section 31. Section 61-2e-101 , which is renumbered from Section 58-55-101 is
2346 renumbered and amended to read:
2347
2348
2349 [
2350 This chapter is known as the "Utah Construction Trades Licensing Act."
2351 Section 32. Section 61-2e-102 , which is renumbered from Section 58-55-102 is
2352 renumbered and amended to read:
2353 [
2354 In addition to the definitions in Section 58-1-102 , as used in this chapter:
2355 (1) (a) "Alarm business or company" means a person engaged in the sale, installation,
2356 maintenance, alteration, repair, replacement, servicing, or monitoring of an alarm system,
2357 except as provided in Subsection (1)(b).
2358 (b) "Alarm business or company" does not include:
2359 (i) a person engaged in the manufacture and sale of alarm systems when:
2360 (A) that person is not engaged in the installation, maintenance, alteration, repair,
2361 replacement, servicing, or monitoring of alarm systems[
2362 (B) the manufacture or sale:
2363 (I) occurs only at a place of business established by the person engaged in the
2364 manufacture or sale; and
2365 (II) does not involve site visits at the place or intended place of installation of an alarm
2366 system; or
2367 (ii) an owner of an alarm system, or an employee of the owner of an alarm system who
2368 is engaged in installation, maintenance, alteration, repair, replacement, servicing, or monitoring
2369 of the alarm system owned by that owner.
2370 (2) "Alarm company agent" means any individual employed within this state by a
2371 person engaged in the alarm business.
2372 (3) "Alarm system" means equipment and devices assembled for the purpose of:
2373 (a) detecting and signaling unauthorized intrusion or entry into or onto certain
2374 premises; or
2375 (b) signaling a robbery or attempted robbery on protected premises.
2376 (4) "Apprentice electrician" means a person licensed under this chapter as an
2377 apprentice electrician who is learning the electrical trade under approved supervision of:
2378 (a) a master electrician[
2379 (b) a residential master electrician[
2380 (c) a journeyman electrician[
2381 (d) a residential journeyman electrician.
2382 (5) "Apprentice plumber" means a person licensed under this chapter as an apprentice
2383 plumber who is learning the plumbing trade under approved supervision of a journeyman
2384 plumber.
2385 (6) "Approved supervision" means the immediate supervision of apprentices by
2386 qualified licensed electricians or plumbers as a part of a planned program of training.
2387 (7) "Board" means one of the following created in Section 61-2e-201 :
2388 (a) the Electrician Licensing Board[
2389 (b) Alarm System Security and Licensing Board[
2390 (c) Plumbers Licensing Board [
2391 (8) "Combustion system" means an assembly consisting of:
2392 (a) piping and components with a means for conveying, either continuously or
2393 intermittently, natural gas from the outlet of the natural gas provider's meter to the burner of the
2394 appliance;
2395 (b) the electric control and combustion air supply and venting systems; and
2396 (c) components intended to achieve control of quantity, flow, and pressure.
2397 (9) "Commission" means the Construction Services Commission created under Section
2398 [
2399 (10) "Construction trade" means any trade or occupation involving:
2400 (a) construction, alteration, remodeling, repairing, wrecking or demolition, addition to,
2401 or improvement of any building, highway, road, railroad, dam, bridge, structure, excavation or
2402 other project, development, or improvement to other than personal property; or
2403 (b) installation or repair of a residential or commercial natural gas appliance or
2404 combustion system.
2405 (11) "Construction trades instructor" means a person licensed under this chapter to
2406 teach one or more construction trades in both a classroom and project environment, where a
2407 project is intended for sale to or use by the public and is completed under the direction of the
2408 instructor, who has no economic interest in the project.
2409 (12) (a) "Contractor" means any person who for compensation other than wages as an
2410 employee undertakes any work in the construction, plumbing, or electrical trade for which
2411 licensure is required under this chapter and includes:
2412 (i) a person who builds:
2413 (A) any structure on [
2414
2415 (B) any structure intended for public use on [
2416 (ii) any person who represents himself to be a contractor by advertising or any other
2417 means;
2418 (iii) any person engaged as a maintenance person, other than an employee, who
2419 regularly engages in activities set forth under the definition of "construction trade";
2420 (iv) any person engaged in any construction trade for which licensure is required under
2421 this chapter; or
2422 (v) a construction manager who performs management and counseling services on a
2423 construction project for a fee.
2424 (b) "Contractor" does not include an alarm company or alarm company agent.
2425 (13) "Department" means the Department of Commerce.
2426 (14) "Director" means the director of the Division of Real Estate.
2427 (15) "Division" means the Division of Real Estate.
2428 [
2429 in the installation, construction, alteration, change, repair, removal, or maintenance of facilities,
2430 buildings, or appendages or appurtenances.
2431 (b) "Electrical trade" does not include:
2432 (i) transporting or handling electrical materials;
2433 (ii) preparing clearance for raceways for wiring; or
2434 (iii) work commonly done by unskilled labor on any installations under the exclusive
2435 control of electrical utilities.
2436 (c) For purposes of Subsection [
2437 (i) no more than one unlicensed person may be so employed unless more than five
2438 licensed electricians are employed by the shop; and
2439 (ii) a shop may not employ unlicensed persons in excess of the five-to-one ratio
2440 permitted by this Subsection [
2441 [
2442 consideration to the definition adopted by the Internal Revenue Service and the Department of
2443 Workforce Services.
2444 [
2445 (a) engage in, represent oneself to be engaged in, or advertise oneself as being engaged
2446 in a construction trade; or
2447 (b) use the name "contractor" or "builder" or in any other way lead a reasonable person
2448 to believe one is or will act as a contractor.
2449 [
2450 expected future condition of financial solvency evidencing a reasonable expectation to the
2451 division and the board that an applicant or licensee can successfully engage in business as a
2452 contractor without jeopardy to the public health, safety, and welfare.
2453 (b) Financial responsibility may be determined by an evaluation of the total history
2454 concerning the licensee or applicant including past, present, and expected condition and record
2455 of financial solvency and business conduct.
2456 [
2457 heat, power, steam, hot water, refrigeration, or air conditioning.
2458 [
2459 chapter as a general building contractor qualified by education, training, experience, and
2460 knowledge to perform or superintend construction of structures for the support, shelter, and
2461 enclosure of persons, animals, chattels, or movable property of any kind or any of the
2462 components of that construction except plumbing, electrical work, mechanical work, and
2463 manufactured housing installation, for which the general building contractor shall employ the
2464 services of a contractor licensed in the particular specialty, except that a general building
2465 contractor engaged in the construction of single-family and multifamily residences up to four
2466 units may perform the mechanical work and hire a licensed plumber or electrician as an
2467 employee.
2468 (b) The division may by rule exclude general building contractors from engaging in the
2469 performance of other construction specialties in which there is represented a substantial risk to
2470 the public health, safety, and welfare, and for which a license is required unless that general
2471 building contractor holds a valid license in that specialty classification.
2472 [
2473 chapter as a general engineering contractor qualified by education, training, experience, and
2474 knowledge to perform construction of fixed works in any of the following:
2475 (i) irrigation[
2476 (ii) drainage[
2477 (iii) water[
2478 (iv) power[
2479 (v) water supply[
2480 (vi) flood control[
2481 (vii) inland waterways[
2482 (viii) harbors[
2483 (ix) railroads[
2484 (x) highways[
2485 (xi) tunnels[
2486 (xii) airports and runways[
2487 (xiii) sewers and bridges[
2488 (xiv) refineries[
2489 (xv) pipelines[
2490 (xvi) chemical and industrial plants requiring specialized engineering knowledge and
2491 skill[
2492 (xvii) piers[
2493 (xviii) foundations[
2494 (xix) any of the components of [
2495 (b) A general engineering contractor may not perform construction of structures built
2496 primarily for the support, shelter, and enclosure of persons, animals, and chattels.
2497 [
2498 and evaluation of the work of a person, in or out of the immediate presence of the supervising
2499 person, so as to ensure that the end result complies with applicable standards.
2500 [
2501 [
2502 journeyman electrician having the qualifications, training, experience, and knowledge to wire,
2503 install, and repair electrical apparatus and equipment for light, heat, power, and other purposes.
2504 [
2505 journeyman plumber having the qualifications, training, experience, and technical knowledge
2506 to engage in the plumbing trade.
2507 [
2508 electrician having the qualifications, training, experience, and knowledge to properly plan,
2509 layout, and supervise the wiring, installation, and repair of electrical apparatus and equipment
2510 for light, heat, power, and other purposes.
2511 [
2512 (a) a natural person[
2513 (b) a sole proprietorship[
2514 (c) a joint venture[
2515 (d) a corporation[
2516 (e) a limited liability company[
2517 (f) an association[
2518 (g) an organization of any type.
2519 [
2520 pertaining to the installation, alteration, change, repair, removal, maintenance, or use in
2521 buildings, or within three feet beyond the outside walls of buildings of pipes, fixtures, and
2522 fittings for:
2523 (i) delivery of the water supply;
2524 (ii) discharge of liquid and water carried waste; or
2525 (iii) the building drainage system within the walls of the building.
2526 (b) "Plumbing trade" includes work pertaining to the water supply, distribution pipes,
2527 fixtures and fixture traps, soil, waste and vent pipes, and the building drain and roof drains
2528 together with their devices, appurtenances, and connections where installed within the outside
2529 walls of the building.
2530 [
2531 compliance with the requirements for planned programs of training and electrician apprentice
2532 licensing applications, the shop ratio of apprentice electricians to journeyman or master
2533 electricians shall be one journeyman or master electrician to one apprentice on industrial and
2534 commercial work, and one journeyman or master electrician to three apprentices on residential
2535 work.
2536 (b) On-the-job training shall be under circumstances in which the ratio of apprentices
2537 to supervisors is in accordance with a ratio of one-to-one on nonresidential work and up to
2538 three apprentices to one supervisor on residential projects.
2539 [
2540 under this chapter as a residential and small commercial contractor qualified by education,
2541 training, experience, and knowledge to perform or superintend the construction of
2542 single-family residences, multifamily residences up to four units, and commercial construction
2543 of not more than three stories above ground and not more than 20,000 square feet, or any of the
2544 components of that construction except plumbing, electrical work, mechanical work, and
2545 manufactured housing installation, for which the residential and small commercial contractor
2546 shall employ the services of a contractor licensed in the particular specialty, except that a
2547 residential and small commercial contractor engaged in the construction of single-family and
2548 multifamily residences up to four units may perform the mechanical work and hire a licensed
2549 plumber or electrician as an employee.
2550 [
2551 chapter as a residential apprentice plumber who is learning the residential plumbing trade while
2552 working on residential buildings under the approved supervision of a residential journeyman
2553 plumber or a journeyman plumber.
2554 [
2555 apprentice plumber and residential journeyman plumber, means a single or multiple family
2556 dwelling of up to four units.
2557 [
2558 chapter as a residential journeyman electrician having the qualifications, training, experience,
2559 and knowledge to wire, install, and repair electrical apparatus and equipment for light, heat,
2560 power, and other purposes on buildings using primarily nonmetallic sheath cable.
2561 [
2562 chapter as a residential journeyman plumber having the qualifications, training, experience, and
2563 knowledge to engage in the plumbing trade as limited to the plumbing of residential buildings.
2564 [
2565 as a residential master electrician having the qualifications, training, experience, and
2566 knowledge to properly plan, layout, and supervise the wiring, installation, and repair of
2567 electrical apparatus and equipment for light, heat, power, and other purposes on residential
2568 projects.
2569 [
2570 means buildings primarily wired with nonmetallic sheathed cable, in accordance with standard
2571 rules and regulations governing this work, including the National Electrical Code, and in which
2572 the voltage does not exceed 250 volts line to line and 125 volts to ground.
2573 [
2574 specialty contractor classification established by rule, who is qualified by education, training,
2575 experience, and knowledge to perform those construction trades and crafts requiring
2576 specialized skill, the regulation of which are determined by the division to be in the best
2577 interest of the public health, safety, and welfare. A specialty contractor may perform work in
2578 crafts or trades other than those in which [
2579 incidental to the performance of [
2580 [
2581 Section 61-2e-501 .
2582 [
2583
2584 [
2585 the amount is fixed or ascertained on a time, task, piece, commission, or other basis for
2586 calculating the amount.
2587 Section 33. Section 61-2e-103 , which is renumbered from Section 58-55-103 is
2588 renumbered and amended to read:
2589 [
2590 Functions -- Appointment -- Qualifications and terms of members -- Vacancies --
2591 Expenses -- Meetings.
2592 (1) (a) There is created within the division the Construction Services Commission.
2593 (b) The commission shall:
2594 (i) with the concurrence of the director, make reasonable rules under Title 63, Chapter
2595 46a, Utah Administrative Rulemaking Act, to administer and enforce this chapter which are
2596 consistent with this chapter including:
2597 (A) licensing of various licensees;
2598 (B) examination requirements and administration of the examinations, to include
2599 approving and establishing a passing score for applicant examinations;
2600 (C) standards of supervision for students or persons in training to become qualified to
2601 obtain a license in the trade they represent; and
2602 (D) standards of conduct for various licensees;
2603 (ii) approve or disapprove fees adopted by the division under Section 63-38-3.2 ;
2604 (iii) except where the boards conduct them, conduct all administrative hearings not
2605 delegated to an administrative law judge relating to the licensing of any applicant;
2606 (iv) except as otherwise provided in Sections 38-11-207 and [
2607 with the concurrence of the director, impose sanctions against licensees and certificate holders
2608 with the same authority as the division under Section [
2609 (v) advise the director on the administration and enforcement of any matters affecting
2610 the division and the construction industry;
2611 (vi) advise the director on matters affecting the division budget;
2612 (vii) advise and assist trade associations in conducting construction trade seminars and
2613 industry education and promotion; and
2614 (viii) perform other duties as provided by this chapter.
2615 [
2616
2617
2618 [
2619
2620 [
2621 members appointed by the executive director with the approval of the governor from the
2622 following groups:
2623 [
2624 [
2625 [
2626 [
2627 (i) the Plumbers Licensing Board[
2628 (ii) the Alarm System Security and Licensing Board[
2629 (iii) the Electricians Licensing Board; and
2630 [
2631
2632
2633
2634 (3) (a) Except as required by Subsection (3)(b), as terms of current commission
2635 members expire, the executive director with the approval of the governor shall appoint each
2636 new member or reappointed member to a four-year term ending June 30.
2637 (b) Notwithstanding the requirements of Subsection (3)(a), the executive director with
2638 the approval of the governor shall, at the time of appointment or reappointment, adjust the
2639 length of terms to stagger the terms of commission members so that approximately 1/2 of the
2640 commission members are appointed every two years.
2641 (c) A commission member may not serve more than two consecutive terms.
2642 (4) The commission shall elect annually one of its members as chair, for a term of one
2643 year.
2644 (5) When a vacancy occurs in the membership for any reason, the replacement shall be
2645 appointed for the unexpired term.
2646 (6) (a) Members may not receive compensation or benefits for their services, but may
2647 receive per diem and expenses incurred in the performance of the members' official duties at
2648 the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107 .
2649 (b) Members may decline to receive per diem and expenses for their service.
2650 (7) (a) The commission shall meet at least monthly unless the director determines
2651 otherwise.
2652 (b) The director may call additional meetings:
2653 (i) at the director's discretion[
2654 (ii) upon the request of the chair[
2655 (iii) upon the written request of four or more commission members.
2656 (8) (a) Five members constitute a quorum for the transaction of business.
2657 (b) If a quorum is present when a vote is taken, the affirmative vote of commission
2658 members present is the act of the commission.
2659 (9) The commission shall comply with the procedures and requirements of Title 13,
2660 Chapter 1, Department of Commerce, and Title 63, Chapter 46b, Administrative Procedures
2661 Act, in all of its adjudicative proceedings.
2662 Section 34. Section 61-2e-104 is enacted to read:
2663 61-2e-104. Adjudicative proceedings.
2664 (1) The division, the commission, and the boards created under this chapter shall
2665 comply with the procedures and requirements of Title 13, Chapter 1, Department of
2666 Commerce, and Title 63, Chapter 46b, Administrative Procedures Act, in all of their
2667 adjudicative proceedings as defined by Subsection 63-46b-2 (1).
2668 (2) Before proceeding under Section 63-46b-20 , the division shall review the proposed
2669 action with a committee of no less than three licensees appointed by the chair of the licensing
2670 board created under this chapter for the profession of the person against whom the action is
2671 proposed.
2672 (3) Notwithstanding Title 63, Chapter 46b, Administrative Procedures Act, a warning
2673 or final disposition letter that does not constitute disciplinary action against the addressee,
2674 issued in response to a complaint of unprofessional or unlawful conduct under this chapter,
2675 does not constitute an adjudicative proceeding.
2676 Section 35. Section 61-2e-201 , which is renumbered from Section 58-55-201 is
2677 renumbered and amended to read:
2678
2679 [
2680 (1) There is created a Plumbers Licensing Board, an Alarm System Security and
2681 Licensing Board, and an Electricians Licensing Board. Members of the boards shall be
2682 selected to provide representation as [
2683 (a) The Plumbers Licensing Board consists of five members as follows:
2684 (i) four members shall be licensed journeyman plumbers, of whom two shall be
2685 licensed plumbing contractors; and
2686 (ii) one member shall be from the public at large with no history of involvement in the
2687 construction trades.
2688 (b) (i) The Alarm System Security and Licensing Board consists of five members as
2689 follows:
2690 (A) three individuals who are officers or owners of a licensed alarm business;
2691 (B) one individual from among nominees of the Utah Peace Officers Association; and
2692 (C) one individual representing the general public.
2693 (ii) The Alarm System Security and Licensing Board shall designate one of its
2694 members on a permanent or rotating basis to:
2695 (A) assist the division in reviewing complaints concerning the unlawful or
2696 unprofessional conduct of a licensee; and
2697 (B) advise the division in its investigation of [
2698 Subsection (1)(b)(ii)(A).
2699 (iii) A board member who has[
2700 advised in its investigation is disqualified from participating with the board when the board
2701 serves as a presiding officer in an adjudicative proceeding concerning the complaint.
2702 (c) The Electricians Licensing Board consists of five members as follows:
2703 (i) two members shall be licensed from among the license classifications of master or
2704 journeyman electrician, of whom:
2705 (A) one shall represent a union organization; and
2706 (B) one shall be selected having no union affiliation;
2707 (ii) two shall be licensed electrical contractors of whom:
2708 (A) one shall represent a union organization; and
2709 (B) one shall be selected having no union affiliation; and
2710 (iii) one member shall be from the public at large with no history of involvement in the
2711 construction trades or union affiliation.
2712 (2) (a) The executive director shall appoint the members of the boards created by this
2713 section.
2714 (b) In appointing these members the executive director shall give consideration to
2715 recommendations by members of the respective occupations and professions and by their
2716 organizations.
2717 (c) The names of all persons appointed to boards shall be submitted to the governor for
2718 confirmation or rejection. If an appointee is rejected by the governor, the executive director
2719 shall appoint another person in the same manner as set forth in Subsection (2)(a).
2720 (3) (a) Except as required by Subsection (3)(b), as terms of current board members
2721 expire, the executive director shall appoint each new member or reappointed member to a
2722 four-year term.
2723 (b) Notwithstanding the requirements of Subsection (3)(a), the executive director shall,
2724 at the time of appointment or reappointment, adjust the length of terms to ensure that the terms
2725 of board members are staggered so that approximately half of the board is appointed every two
2726 years.
2727 (c) A board member may not serve more than two consecutive terms, and a board
2728 member who ceases to serve on a board may not serve again on that board until after the
2729 expiration of a two-year period beginning from that cessation of service.
2730 (d) (i) When a vacancy occurs in the membership for any reason, the replacement shall
2731 be appointed for the unexpired term.
2732 (ii) After filling that term, the replacement member may be appointed for only one
2733 additional full term.
2734 (e) If a board member fails or refuses to fulfill the responsibilities and duties of a board
2735 member, including the attendance at board meetings, the executive director with the approval
2736 of the board may remove the board member and replace the member in accordance with this
2737 section.
2738 [
2739 (a) recommending to the commission appropriate rules;
2740 (b) recommending to the commission policy and budgetary matters;
2741 (c) approving and establishing a passing score for applicant examinations;
2742 (d) overseeing the screening of applicants for licensing, renewal, reinstatement, and
2743 relicensure;
2744 (e) assisting the commission in establishing standards of supervision for students or
2745 persons in training to become qualified to obtain a license in the occupation or profession it
2746 represents; and
2747 (f) acting as presiding officer in conducting hearings associated with the adjudicative
2748 proceedings and in issuing recommended orders when so authorized by the commission.
2749 (5) A majority of the board members constitutes a quorum. A quorum is sufficient
2750 authority for the board to act.
2751 (6) (a) A member who is not a government employee shall receive no compensation or
2752 benefits for the member's services, but may receive per diem and expenses incurred in the
2753 performance of the member's official duties at the rates established by the Division of Finance
2754 under Sections 63A-3-106 and 63A-3-107 .
2755 (b) A member may decline to receive per diem and expenses for the member's service.
2756 (7) Each board shall annually designate one of its members to serve as chair for a
2757 one-year period.
2758 (8) A board member may not be a member of the faculty of or have any financial
2759 interest in any vocational or professional college or school which provides continuing
2760 education to any licensee if that continuing education is required by statute or rule.
2761 Section 36. Section 61-2e-301 , which is renumbered from Section 58-55-301 is
2762 renumbered and amended to read:
2763
2764 [
2765 Denial.
2766 (1) (a) Any person engaged in the construction trades licensed under this chapter, as a
2767 contractor regulated under this chapter, as an alarm business or company, or as an alarm
2768 company agent, shall become licensed under this chapter before engaging in that trade or
2769 contracting activity in this state unless specifically exempted from licensure under Section
2770 [
2771 (b) The license issued under this chapter and the business license issued by the local
2772 jurisdiction in which the licensee has its principal place of business shall be the only licenses
2773 required for the licensee to engage in a trade licensed by this chapter, within the state.
2774 (c) Neither the state nor any of its political subdivisions may require of a licensee any
2775 additional business licenses, registrations, certifications, contributions, donations, or anything
2776 else established for the purpose of qualifying a licensee under this chapter to do business in that
2777 local jurisdiction, except for:
2778 (i) contract prequalification procedures required by state agencies[
2779 (ii) the payment of any fee for the license, registration, or certification established as a
2780 condition to do business in that local jurisdiction.
2781 (2) The division shall issue licenses under this chapter to qualified persons in the
2782 following classifications:
2783 (a) general engineering contractor;
2784 (b) general building contractor;
2785 (c) residential and small commercial contractor;
2786 (d) specialty contractor;
2787 (e) journeyman plumber;
2788 (f) apprentice plumber;
2789 (g) residential journeyman plumber;
2790 (h) residential apprentice plumber;
2791 (i) master electrician;
2792 (j) residential master electrician;
2793 (k) journeyman electrician;
2794 (l) residential journeyman electrician;
2795 (m) apprentice electrician;
2796 (n) construction trades instructor:
2797 (i) general engineering classification;
2798 (ii) general building classification;
2799 (iii) electrical classification;
2800 (iv) plumbing classification; and
2801 (v) mechanical classification;
2802 (o) alarm company; and
2803 (p) alarm company agent.
2804 (3) An applicant may apply for a license in one or more classification or specialty
2805 contractor subclassification. A license shall be granted in each classification or
2806 subclassification for which the applicant qualifies. A separate application and fee must be
2807 submitted for each license classification or subclassification.
2808 (4) (a) Each license applicant shall apply to the division in writing upon forms
2809 available from the division. Each completed application shall:
2810 (i) contain documentation of the particular qualifications required of the applicant;
2811 (ii) include the applicant's Social Security number;
2812 (iii) be verified by the applicant; and
2813 (iv) be accompanied by the appropriate fees.
2814 (b) An applicant's Social Security number is a private record under Subsection
2815 63-2-302 (1)(h).
2816 (5) (a) A license shall be issued to an applicant who submits a complete application if
2817 the division determines that the applicant meets the qualifications of licensure.
2818 (b) A written notice of additional proceedings shall be provided to an applicant who
2819 submits a complete application, but who has been, is, or will be placed under investigation by
2820 the division for conduct directly bearing upon the applicant's qualifications for licensure, if the
2821 outcome of additional proceedings is required to determine the division's response to the
2822 application.
2823 (c) A written notice of denial of licensure shall be provided to an applicant who
2824 submits a complete application if the division determines that the applicant does not meet the
2825 qualifications of licensure.
2826 (d) A written notice of incomplete application and conditional denial of licensure shall
2827 be provided to an applicant who submits an incomplete application. This notice shall advise
2828 the applicant that the application:
2829 (i) is incomplete; and
2830 (ii) is denied, unless the applicant:
2831 (A) corrects the deficiencies within the time period specified in the notice; and
2832 (B) otherwise meets all qualifications for licensure.
2833 (6) Before any person is issued a license under this title, all requirements for that
2834 license as established under this chapter and by rule shall be met.
2835 (7) If all requirements are met for the specific license, the division shall issue the
2836 license.
2837 Section 37. Section 61-2e-302 , which is renumbered from Section 58-55-302 is
2838 renumbered and amended to read:
2839 [
2840 (1) Each applicant for a license under this chapter shall:
2841 (a) submit an application prescribed by the division;
2842 (b) pay a fee as determined by the department under Section 63-38-3.2 ;
2843 (c) (i) meet the examination requirements established by rule by the commission with
2844 the concurrence of the director, except for the classifications of apprentice plumber, residential
2845 apprentice plumber, and apprentice electrician for whom no examination is required; or
2846 (ii) if required in Section [
2847 required examination if the applicant is a business entity;
2848 (d) if an apprentice, identify the proposed supervisor of the apprenticeship;
2849 (e) if an applicant for a contractor's license:
2850 (i) produce satisfactory evidence of financial responsibility, except for a construction
2851 trades instructor for whom evidence of financial responsibility is not required;
2852 (ii) produce satisfactory evidence of knowledge and experience in the construction
2853 industry and knowledge of the principles of the conduct of business as a contractor, reasonably
2854 necessary for the protection of the public health, safety, and welfare; and
2855 (iii) (A) be a licensed master electrician if an applicant for an electrical contractor's
2856 license; or
2857 (B) a licensed master residential electrician if an applicant for a residential electrical
2858 contractor's license; or
2859 (iv) be a journeyman plumber or residential journeyman plumber if an applicant for a
2860 plumbing contractor's license; and
2861 (f) if an applicant for a construction trades instructor license, satisfy any additional
2862 requirements established by rule.
2863 (2) After approval of an applicant for a contractor's license by the applicable board and
2864 the division, the applicant shall file the following with the division before the division issues
2865 the license:
2866 (a) proof of workers' compensation insurance which covers employees of the applicant
2867 in accordance with applicable Utah law;
2868 (b) proof of public liability insurance in coverage amounts and form established by rule
2869 except for a construction trades instructor for whom public liability insurance is not required;
2870 and
2871 (c) proof of registration as required by applicable law with the:
2872 (i) Utah Department of Commerce;
2873 (ii) Division of Corporations and Commercial Code;
2874 (iii) Division of Workforce Information and Payment Services in the Department of
2875 Workforce Services, for purposes of Title 35A, Chapter 4, Employment Security Act;
2876 (iv) State Tax Commission; and
2877 (v) Internal Revenue Service.
2878 (3) In addition to the general requirements for each applicant in Subsection (1),
2879 applicants shall comply with the following requirements to be licensed in the [
2880 classifications of this Subsection (3):
2881 (a) A journeyman plumber applicant shall produce satisfactory evidence of:
2882 (i) successful completion of the equivalent of at least four years of full-time training
2883 and instruction as a licensed apprentice plumber under supervision of a licensed journeyman
2884 plumber and in accordance with a planned program of training approved by the division;
2885 (ii) at least eight years of full-time experience approved by the division in collaboration
2886 with the Plumbers Licensing Board; or
2887 (iii) satisfactory evidence of meeting the qualifications determined by the board to be
2888 equivalent to Subsection (3)(a)(i) or (a)(ii).
2889 (b) A residential journeyman plumber shall produce satisfactory evidence of:
2890 (i) completion of the equivalent of at least three years of full-time training and
2891 instruction as a licensed apprentice plumber under the supervision of a licensed residential
2892 journeyman plumber or licensed journeyman plumber in accordance with a planned program of
2893 training approved by the division;
2894 (ii) completion of at least six years of full-time experience in a maintenance or repair
2895 trade involving substantial plumbing work; or
2896 (iii) meeting the qualifications determined by the board to be equivalent to Subsection
2897 (3)(b)(i) or (b)(ii).
2898 (c) (i) A master electrician applicant shall produce satisfactory evidence that the
2899 applicant:
2900 (A) (I) is a graduate electrical engineer of an accredited college or university approved
2901 by the division; and
2902 (II) has one year of practical electrical experience as a licensed apprentice electrician;
2903 (B) (I) is a graduate of an electrical trade school, having received an associate of
2904 applied sciences degree following successful completion of a course of study approved by the
2905 division[
2906 (II) has two years of practical experience as a licensed journeyman electrician;
2907 (C) has four years of practical experience as a journeyman electrician; or
2908 (D) meets the qualifications determined by the board to be equivalent to Subsection
2909 (3)(c)(i)(A), (B), or (C).
2910 (ii) (A) An individual holding a valid Utah license as a master electrician, based on at
2911 least eight years of practical experience as a licensed apprentice under the supervision of a
2912 licensed journeyman or master electrician, in effect immediately prior to May 3, 2004, is on
2913 and after May 3, 2004, considered to hold a current license under this chapter and satisfies the
2914 requirements of this Subsection (3)(c) for the purpose of renewal or reinstatement of that
2915 license under Section [
2916 (B) An individual who has less than four years of practical experience as a licensed
2917 apprentice under the supervision of a licensed journeyman or master electrician prior to May 3,
2918 2004, shall complete the education requirements of Subsection (3)(c)(i)(A) or (B) to qualify for
2919 licensing as a master electrician.
2920 (C) An individual who has more than four but less than six years of practical
2921 experience as a licensed apprentice under the supervision of a licensed journeyman or master
2922 electrician prior to May 3, 2004, may satisfy the education requirements of Subsection
2923 (3)(c)(i)(A) or (B) by successfully passing a competency placement test approved by the board
2924 and administered at a Utah state institution of higher education.
2925 (D) An individual who has more than six but less than eight years of practical
2926 experience as a licensed apprentice under the supervision of a licensed journeyman or master
2927 electrician prior to May 3, 2004, satisfies the education requirements of this Subsection (3)(c)
2928 by completing the eight-year term of practical experience within a reasonable time frame
2929 subsequent to May 3, 2004, as established by board rule in accordance with Title 63, Chapter
2930 46a, Utah Administrative Rulemaking Act.
2931 (d) A master residential electrician applicant shall produce satisfactory evidence that
2932 the applicant:
2933 (i) has at least two years of practical experience as a residential journeyman electrician;
2934 or
2935 (ii) meets the qualifications determined by the board to be equivalent to this practical
2936 experience.
2937 (e) (i) A journeyman electrician applicant shall produce satisfactory evidence that the
2938 applicant:
2939 (A) has successfully completed at least four years of full-time training and instruction
2940 as a licensed apprentice electrician under the supervision of a master electrician or journeyman
2941 electrician and in accordance with a planned training program approved by the division;
2942 (B) has at least eight years of full-time experience approved by the division in
2943 collaboration with the Electricians Licensing Board; or
2944 (C) meets the qualifications determined by the board to be equivalent to Subsection
2945 (3)(e)(i)(A) or (B).
2946 (ii) An individual holding a valid Utah license as a journeyman electrician, based on at
2947 least six years of full-time experience approved by the division in collaboration with the
2948 Electricians Licensing Board in effect immediately prior to May 3, 2004, is on and after May 3,
2949 2004, considered to hold a current license under this chapter and satisfies the requirements of
2950 Subsection (3)(e)(i)(B) for the purpose of renewal or reinstatement of that license under
2951 Section [
2952 (iii) An individual who has more than six but less than eight years of full-time
2953 experience approved by the division in collaboration with the Electricians Licensing Board
2954 prior to May 3, 2004, satisfies the requirements of Subsection (3)(e)(i) by completing the
2955 eight-year term of practical experience within a reasonable time frame subsequent to May 3,
2956 2004, as established by board rule made in accordance with Title 63, Chapter 46a, Utah
2957 Administrative Rulemaking Act.
2958 (f) A residential journeyman electrician applicant shall produce satisfactory evidence
2959 that the applicant:
2960 (i) has successfully completed two years of training in an electrical training program
2961 approved by the division;
2962 (ii) has four years of practical experience in wiring, installing, and repairing electrical
2963 apparatus and equipment for light, heat, and power under the supervision of a licensed master,
2964 journeyman, residential master, or residential journeyman electrician; or
2965 (iii) meets the qualifications determined by the division and applicable board to be
2966 equivalent to Subsection (3)(f)(i) or (ii).
2967 (g) The conduct of licensed apprentice electricians and their licensed supervisors shall
2968 be in accordance with the [
2969 (i) A licensed apprentice electrician shall be under the immediate supervision of a
2970 licensed master, journeyman, residential master, or residential journeyman electrician. An
2971 apprentice in the fourth year of training may work without supervision for a period not to
2972 exceed eight hours in any 24-hour period.
2973 (ii) A licensed master, journeyman, residential master, or residential journeyman
2974 electrician may have under immediate supervision on a residential project up to three licensed
2975 apprentice electricians.
2976 (iii) A licensed master or journeyman electrician may have under immediate
2977 supervision on nonresidential projects only one licensed apprentice electrician.
2978 (h) An alarm company applicant shall:
2979 (i) have a qualifying agent who is an officer, director, partner, proprietor, or manager of
2980 the applicant who:
2981 (A) demonstrates 6,000 hours of experience in the alarm company business;
2982 (B) demonstrates 2,000 hours of experience as a manager or administrator in the alarm
2983 company business or in a construction business; and
2984 (C) passes an examination component established by rule by the commission with the
2985 concurrence of the director;
2986 (ii) if a corporation, provide:
2987 (A) the names, addresses, dates of birth, Social Security numbers, and fingerprint cards
2988 of all corporate officers, directors, and those responsible management personnel employed
2989 within the state or having direct responsibility for managing operations of the applicant within
2990 the state; and
2991 (B) the names, addresses, dates of birth, Social Security numbers, and fingerprint cards
2992 of all shareholders owning 5% or more of the outstanding shares of the corporation, except this
2993 [
2994 (iii) if a limited liability company, provide:
2995 (A) the names, addresses, dates of birth, Social Security numbers, and fingerprint cards
2996 of all company officers, and those responsible management personnel employed within the
2997 state or having direct responsibility for managing operations of the applicant within the state;
2998 and
2999 (B) the names, addresses, dates of birth, Social Security numbers, and fingerprint cards
3000 of all individuals owning 5% or more of the equity of the company;
3001 (iv) if a partnership, the names, addresses, dates of birth, Social Security numbers, and
3002 fingerprint cards of all general partners, and those responsible management personnel
3003 employed within the state or having direct responsibility for managing operations of the
3004 applicant within the state;
3005 (v) if a proprietorship, the names, addresses, dates of birth, Social Security numbers,
3006 and fingerprint cards of the proprietor, and those responsible management personnel employed
3007 within the state or having direct responsibility for managing operations of the applicant within
3008 the state;
3009 (vi) be of good moral character in that officers, directors, shareholders described in
3010 Subsection (3)(h)(ii)(B), partners, proprietors, and responsible management personnel have not
3011 been convicted of a felony, a misdemeanor involving moral turpitude, or any other crime that
3012 when considered with the duties and responsibilities of an alarm company is considered by the
3013 board to indicate that the best interests of the public are served by granting the applicant a
3014 license;
3015 (vii) document that none of the applicant's officers, directors, shareholders described in
3016 Subsection (3)(h)(ii)(B), partners, proprietors, and responsible management personnel have
3017 been declared by any court of competent jurisdiction incompetent by reason of mental defect or
3018 disease and not been restored;
3019 (viii) document that none of the applicant's officers, directors, shareholders described
3020 in Subsection (3)(h)(ii)(B), partners, proprietors, and responsible management personnel are
3021 currently suffering from habitual drunkenness or from drug addiction or dependence;
3022 (ix) file and maintain with the division evidence of:
3023 (A) comprehensive general liability insurance in form and in amounts to be established
3024 by rule by the commission with the concurrence of the director;
3025 (B) workers' compensation insurance that covers employees of the applicant in
3026 accordance with applicable Utah law; and
3027 (C) registration as is required by applicable law with the:
3028 (I) Division of Corporations and Commercial Code;
3029 (II) Division of Workforce Information and Payment Services in the Department of
3030 Workforce Services, for purposes of Title 35A, Chapter 4, Employment Security Act;
3031 (III) State Tax Commission; and
3032 (IV) Internal Revenue Service; and
3033 (x) meet with the division and board.
3034 (i) Each applicant for licensure as an alarm company agent shall:
3035 (i) submit an application in a form prescribed by the division accompanied by
3036 fingerprint cards;
3037 (ii) pay a fee determined by the department under Section 63-38-3.2 ;
3038 (iii) be of good moral character in that the applicant has not been convicted of a felony,
3039 a misdemeanor involving moral turpitude, or any other crime that when considered with the
3040 duties and responsibilities of an alarm company agent is considered by the board to indicate
3041 that the best interests of the public are served by granting the applicant a license;
3042 (iv) not have been declared by any court of competent jurisdiction incompetent by
3043 reason of mental defect or disease and not been restored;
3044 (v) not be currently suffering from habitual drunkenness or from drug addiction or
3045 dependence; and
3046 (vi) meet with the division and board if requested by the division or the board.
3047 (4) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
3048 division may make rules establishing when Federal Bureau of Investigation records shall be
3049 checked for applicants as an alarm company or alarm company agent.
3050 (5) To determine if an applicant meets the qualifications of Subsections (3)(h)(vi) and
3051 (3)(i)(iii), the division shall provide an appropriate number of copies of fingerprint cards to the
3052 Department of Public Safety with the division's request to:
3053 (a) conduct a search of records of the Department of Public Safety for criminal history
3054 information relating to:
3055 (i) each applicant for licensure as an alarm company or alarm company agent; and
3056 &