Senator Don L. Ipson proposes the following substitute bill:


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DIVISION OF OCCUPATIONAL AND PROFESSIONAL

2     
LICENSING

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2017 GENERAL SESSION

4     
STATE OF UTAH

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Chief Sponsor: Don L. Ipson

6     
House Sponsor: Kay J. Christofferson

7     

8     LONG TITLE
9     General Description:
10           This bill modifies provisions of the Professional Engineers and Professional Land
11     Surveyors Licensing Act (the act).
12     Highlighted Provisions:
13          This bill:
14          ▸      defines terms;
15          ▸     provides rulemaking authority to the Division of Occupational and Professional
16     Licensing (DOPL) related to defining unprofessional conduct under the act;
17          ▸     modifies DOPL's citation authority to include unprofessional conduct under the act;
18     and
19          ▸     makes technical changes.
20     Money Appropriated in this Bill:
21          None
22     Other Special Clauses:
23          None
24     Utah Code Sections Affected:
25     AMENDS:

26          58-22-102, as last amended by Laws of Utah 2013, Chapter 278
27          58-22-503, as last amended by Laws of Utah 2013, Chapter 278
28     ENACTS:
29          58-22-502.5, Utah Code Annotated 1953
30     

31     Be it enacted by the Legislature of the state of Utah:
32          Section 1. Section 58-22-102 is amended to read:
33          58-22-102. Definitions.
34          In addition to the definitions in Section 58-1-102, as used in this chapter:
35          (1) "Board" means the Professional Engineers and Professional Land Surveyors
36     Licensing Board created in Section 58-22-201.
37          (2) "Building" means a structure which has human occupancy or habitation as its
38     principal purpose, and includes the structural, mechanical, and electrical systems, utility
39     services, and other facilities required for the building, and is otherwise governed by the State
40     Construction Code or an approved code under Title 15A, State Construction and Fire Codes
41     Act.
42          (3) "Complete construction plans" means a final set of plans, specifications, and reports
43     for a building or structure that normally includes:
44          (a) floor plans;
45          (b) elevations;
46          (c) site plans;
47          (d) foundation, structural, and framing detail;
48          (e) electrical, mechanical, and plumbing design;
49          (f) information required by the energy code;
50          (g) specifications and related calculations as appropriate; and
51          (h) all other documents required to obtain a building permit.
52          (4) "EAC/ABET" means the Engineering Accreditation Commission/Accreditation
53     Board for Engineering and Technology.
54          (5) "Fund" means the Professional Engineer, Professional Structural Engineer, and
55     Professional Land Surveyor Education and Enforcement Fund created in Section 58-22-103.
56          (6) "NCEES" means the National Council of Examiners for Engineering and

57     Surveying.
58          (7) "Principal" means a licensed professional engineer, professional structural engineer,
59     or professional land surveyor having responsible charge of an organization's professional
60     engineering, professional structural engineering, or professional land surveying practice.
61          (8) "Professional engineer" means a person licensed under this chapter as a
62     professional engineer.
63          (9) (a) "Professional engineering," [or] "the practice of engineering," or "the practice of
64     professional engineering" means a service or creative work, the adequate performance of which
65     requires engineering education, training, and experience in the application of special
66     knowledge of the mathematical, physical, and engineering sciences to the service or creative
67     work as consultation, investigation, evaluation, planning, design, and design coordination of
68     engineering works and systems, planning the use of land and water, facility programming,
69     performing engineering surveys and studies, and the review of construction for the purpose of
70     monitoring compliance with drawings and specifications; any of which embraces these services
71     or work, either public or private, in connection with any utilities, structures, buildings,
72     machines, equipment, processes, work systems, projects, and industrial or consumer products
73     or equipment of a mechanical, electrical, hydraulic, pneumatic, or thermal nature, and
74     including other professional services as may be necessary to the planning, progress, and
75     completion of any engineering services.
76          (b) The practice of professional engineering does not include the practice of
77     architecture as defined in Section 58-3a-102, but a licensed professional engineer may perform
78     architecture work as is incidental to the practice of engineering.
79          (10) "Professional engineering intern" means a person who:
80          (a) has completed the education requirements to become a professional engineer;
81          (b) has passed the fundamentals of engineering examination; and
82          (c) is engaged in obtaining the four years of qualifying experience for licensure under
83     the direct supervision of a licensed professional engineer.
84          (11) "Professional land surveying" or "the practice of land surveying" means a service
85     or work, the adequate performance of which requires the application of special knowledge of
86     the principles of mathematics, the related physical and applied sciences, and the relevant
87     requirements of law for adequate evidence to the act of measuring and locating lines, angles,

88     elevations, natural and man-made features in the air, on the surface of the earth, within
89     underground workings, and on the beds of bodies of water for the purpose of determining areas
90     and volumes, for the monumenting or locating of property boundaries or points controlling
91     boundaries, and for the platting and layout of lands and subdivisions of lands, including the
92     topography, alignment and grades of streets, and for the preparation and perpetuation of maps,
93     record plats, field notes records, and property descriptions that represent these surveys and
94     other duties as sound surveying practices could direct.
95          (12) "Professional land surveyor" means an individual licensed under this chapter as a
96     professional land surveyor.
97          (13) "Professional structural engineer" means a person licensed under this chapter as a
98     professional structural engineer.
99          (14) (a) "Professional structural engineering" or "the practice of structural engineering"
100     means a service or creative work [in the following areas, and may be further defined by rule by
101     the division in collaboration with the board: (a)] providing structural engineering services for
102     significant structures, including:
103          (i) buildings and other structures representing a substantial hazard to human life, which
104     include:
105          (A) buildings and other structures whose primary occupancy is public assembly with an
106     occupant load greater than 300;
107          (B) buildings and other structures with elementary school, secondary school, or day
108     care facilities with an occupant load greater than 250;
109          (C) buildings and other structures with an occupant load greater than 500 for colleges
110     or adult education facilities;
111          (D) health care facilities with an occupant load of 50 or more resident patients, but not
112     having surgery or emergency treatment facilities;
113          (E) jails and detention facilities with a gross area greater than 3,000 square feet; [or]
114     and
115          (F) [an occupancy] buildings and other structures with an occupant load greater than
116     5,000;
117          (ii) buildings and other structures designated as essential facilities, including:
118          (A) hospitals and other health care facilities having surgery or emergency treatment

119     facilities with a gross area greater than 3,000 square feet;
120          (B) fire, rescue, and police stations and emergency vehicle garages with a mean height
121     greater than 24 feet or a gross area greater than 5,000 square feet;
122          (C) designated earthquake, hurricane, or other emergency shelters with a gross area
123     greater than 3,000 square feet;
124          (D) designated emergency preparedness, communication, and operation centers and
125     other buildings required for emergency response with a mean height more than 24 feet or a
126     gross area greater than 5,000 square feet;
127          (E) power-generating stations and other public utility facilities required as emergency
128     backup facilities with a gross area greater then 3,000 square feet;
129          (F) structures with a mean height more than 24 feet or a gross area greater than 5,000
130     square feet containing highly toxic materials as defined by the division by rule, where the
131     quantity of the material exceeds the maximum allowable quantities set by the division by rule;
132     and
133          (G) aviation control towers, air traffic control centers, and emergency aircraft hangars
134     at commercial service and cargo air services airports as defined by the Federal Aviation
135     Administration with a mean height greater than 35 feet or a gross area greater than 20,000
136     square feet; and
137          (iii) buildings and other structures requiring special consideration, including:
138          (A) structures or buildings that are[:] normally occupied by human beings and are five
139     stories or more in height;
140          [(I) normally occupied by human beings; and]
141          [(II) five stories or more in height; or]
142          [(III) that have an average roof height more than 60 feet above the average ground level
143     measured at the perimeter of the structure; or]
144          (B) structures or buildings that are normally occupied by human beings and have an
145     average roof height more than 60 feet above the average ground level measured at the
146     perimeter of the structure; and
147          [(B)] (C) [all] buildings that are over 200,000 aggregate gross square feet in area[;
148     and].
149          (b) "Professional structural engineering" or "the practice of structural engineering":

150          [(b)] (i) includes the definition of professional engineering or the practice of
151     professional engineering as provided in Subsection (9)[.]; and
152          (ii) may be further defined by rules made by the division in collaboration with the
153     board in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
154          (15) "Structure" means that which is built or constructed, an edifice or building of any
155     kind, or a piece of work artificially built up or composed of parts joined together in a definite
156     manner, and as otherwise governed by the State Construction Code or an approved code under
157     Title 15A, State Construction and Fire Codes Act.
158          (16) "Supervision of an employee, subordinate, associate, or drafter of a licensee"
159     means that a licensed professional engineer, professional structural engineer, or professional
160     land surveyor is responsible for and personally reviews, corrects when necessary, and approves
161     work performed by an employee, subordinate, associate, or drafter under the direction of the
162     licensee, and may be further defined by rule by the division in collaboration with the board.
163          (17) "TAC/ABET" means the Technology Accreditation Commission/Accreditation
164     Board for Engineering and Technology.
165          (18) "Unlawful conduct" [is] means the same as that term is defined in Sections
166     58-1-501 and 58-22-501.
167          (19) "Unprofessional conduct" [as defined in Section 58-1-501 may be further defined
168     by rule by the division in collaboration with the board] means the same as that term is defined
169     in Sections 58-1-501 and 58-22-502.5 .
170          Section 2. Section 58-22-502.5 is enacted to read:
171          58-22-502.5. Unprofessional conduct.
172          Unprofessional conduct includes unprofessional conduct that is defined by rules made
173     by the division in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
174          Section 3. Section 58-22-503 is amended to read:
175          58-22-503. Penalties and administrative actions for unlawful or unprofessional
176     conduct.
177          (1) (a) If upon inspection or investigation, the division concludes that a person has
178     violated [Subsections 58-1-501(1)(a) through (d) or Section] Section 58-1-501, 58-22-501 , or
179     58-22-502.5, or any rule or order issued with respect to Section 58-22-501 or 58-22-502.5 , and
180     that disciplinary action is appropriate, the director or the director's designee from within the

181     division for each alternative respectively, shall promptly issue a citation to the person
182     according to this chapter and any pertinent rules, attempt to negotiate a stipulated settlement, or
183     notify the person to appear before an adjudicative proceeding conducted under Title 63G,
184     Chapter 4, Administrative Procedures Act.
185          (i) A person who violates [Subsections 58-1-501(1)(a) through (d) or Section] Section
186     58-1-501, 58-22-501 , or 58-22-502.5, or any rule or order issued with respect to Section
187     58-22-501 or 58-22-502.5 , as evidenced by an uncontested citation, a stipulated settlement, or
188     by a finding of violation in an adjudicative proceeding, may be assessed a fine pursuant to this
189     Subsection (1) and may, in addition to or in lieu of, be ordered to cease and desist from
190     violating [Subsections 58-1-501(1)(a) through (d) or Section] Section 58-1-501, 58-22-501, or
191     58-22-502.5, or any rule or order issued with respect to this section.
192          (ii) Except for a cease and desist order, the licensure sanctions cited in Section
193     58-22-401 may not be assessed through a citation.
194          (b) A citation shall:
195          (i) be in writing;
196          (ii) describe with particularity the nature of the violation, including a reference to the
197     provision of the chapter, rule, or order alleged to have been violated;
198          (iii) clearly state that the recipient must notify the division in writing within 20
199     calendar days of service of the citation if the recipient wishes to contest the citation at a hearing
200     conducted under Title 63G, Chapter 4, Administrative Procedures Act; and
201          (iv) clearly explain the consequences of failure to timely contest the citation or to make
202     payment of any fines assessed by the citation within the time specified in the citation.
203          (c) The division may issue a notice in lieu of a citation.
204          (d) Each citation issued under this section, or a copy of each citation, may be served
205     upon a person upon whom a summons may be served in accordance with the Utah Rules of
206     Civil Procedure and may be made personally or upon the person's agent by a division
207     investigator or by any person specially designated by the director or by mail.
208          (e) If within 20 calendar days from the service of the citation, the person to whom the
209     citation was issued fails to request a hearing to contest the citation, the citation becomes the
210     final order of the division and is not subject to further agency review. The period to contest a
211     citation may be extended by the division for cause.

212          (f) The division may refuse to issue or renew, suspend, revoke, or place on probation
213     the license of a licensee who fails to comply with a citation after it becomes final.
214          (g) The failure of an applicant for licensure to comply with a citation after it becomes
215     final is a ground for denial of license.
216          (h) No citation may be issued under this section after the expiration of six months
217     following the occurrence of any violation.
218          (i) The director or the director's designee shall assess fines according to the following:
219          (i) for a first offense handled pursuant to Subsection (1)(a), a fine of up to $1,000;
220          (ii) for a second offense handled pursuant to Subsection (1)(a), a fine of up to $2,000;
221     and
222          (iii) for any subsequent offense handled pursuant to Subsection (1)(a), a fine of up to
223     $2,000 for each day of continued offense.
224          (2) An action initiated for a first or second offense which has not yet resulted in a final
225     order of the division shall not preclude initiation of any subsequent action for a second or
226     subsequent offense during the pendency of any preceding action. The final order on a
227     subsequent action shall be considered a second or subsequent offense, respectively, provided
228     the preceding action resulted in a first or second offense, respectively.
229          (3) Any penalty which is not paid may be collected by the director by either referring
230     the matter to a collection agency or bringing an action in the district court of the county in
231     which the person against whom the penalty is imposed resides or in the county where the office
232     of the director is located. Any county attorney or the attorney general of the state shall provide
233     legal assistance and advice to the director in any action to collect the penalty. In any action
234     brought to enforce the provisions of this section, reasonable attorney's fees and costs shall be
235     awarded to the division.