PRINTER'S NO. 2754
No. 2076 Session of 2001
INTRODUCED BY VEON, BELFANTI, BELARDI, FRANKEL, DALEY, SURRA,
WOJNAROSKI, ROONEY, LEVDANSKY, TRICH, LAUGHLIN, CAWLEY,
JOSEPHS, COSTA, TANGRETTI, DeLUCA, HARHAI, CURRY, RIEGER,
MELIO, STURLA, TRELLO, HORSEY, WASHINGTON, WALKO AND JAMES,
OCTOBER 24, 2001
REFERRED TO COMMITTEE ON PROFESSIONAL LICENSURE,
OCTOBER 24, 2001
AN ACT
1 Providing for the registration of home improvement contractors;
2 prescribing requirements for home improvement contracts;
3 establishing a Home Improvement Contractors Board and a
4 recovery fund; and providing for licensing and for penalties.
5 TABLE OF CONTENTS
6 Section 1. Short title.
7 Section 2. Definitions.
8 Section 3. Home Improvement Contractors Board.
9 Section 4. Licensing.
10 Section 5. Bonding and insurance.
11 Section 6. Prohibited acts.
12 Section 7. Recovery fund.
13 Section 8. Required contract provisions.
14 Section 9. Prohibited contract provisions.
15 Section 10. Denials, reprimands, suspensions and revocations.
16 Section 11. Hearings.
17 Section 12. Judicial review.
1 Section 13. Criminal penalties.
2 Section 14. Injunction.
3 Section 15. Permits.
4 Section 16. Private right of action.
5 Section 24. Effective date.
6 The General Assembly of the Commonwealth of Pennsylvania
7 hereby enacts as follows:
8 Section 1. Short title.
9 This act shall be known and may be cited as the Home
10 Improvement Contractor Act.
11 Section 2. Definitions.
12 The following words and phrases when used in this act shall
13 have the meanings given to them in this section unless the
14 context clearly indicates otherwise:
15 "Actual loss." The cost of repairing, replacing or
16 completing work performed or to be performed pursuant to a home
17 improvement contract.
18 "Board." The Home Improvement Contractors Board established
19 in section 3.
20 "Bureau." The Bureau of Consumer Protection within the
21 Office of Attorney General of the Commonwealth.
22 "Fund." The Home Improvement Recovery Fund established in
23 section 7.
24 "Home improvement." Including, but not limited to, the
25 repair, replacement, remodeling, removal, renovation,
26 alteration, conversion, modernization, improvement, demolition,
27 rehabilitation or sandblasting of or addition to any land or
28 building or a portion thereof which is used or designed to be
29 used as a residence or dwelling unit, or the construction,
30 replacement, installation or improvement of driveways, swimming
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1 pools, poolhouses, porches, garages, roofs, siding, insulation,
2 solar energy systems, security systems, flooring, patios,
3 fences, gazebos, sheds, cabanas, landscaping, painting, doors
4 and windows, waterproofing and other improvements to structures
5 or upon land that is adjacent to a dwelling house. Without
6 regard to affixation, the term includes the installation of
7 central heating or air conditioning systems or storm windows or
8 awnings.
9 "Home improvement contractor."
10 (1) Any person who undertakes, offers to undertake,
11 purports to have the capacity to undertake or submits a bid
12 to perform any home improvement for the owner, whether or not
13 such person is licensed under or subject to the licensing
14 requirements of this act. The term includes subcontractors.
15 (2) The term does not include:
16 (i) Any person who does a home improvement job for
17 which the total contract price is $300 or less and for
18 whom the total cash value of home improvement work
19 performed during the immediate past 12 consecutive months
20 is less than $5,000.
21 (ii) Any person who performs labor or services for a
22 home improvement contractor or subcontractor for wages or
23 salary.
24 (iii) Any person other than a home improvement
25 contractor who is required by law to obtain a license for
26 such trade or profession and who is acting exclusively
27 within the scope of the profession for which the person
28 is currently licensed.
29 (iv) An authorized representative of the Federal
30 government, the Commonwealth or any of its political
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1 subdivisions.
2 (v) A person performing work on a property that that
3 person owns or a tenant performing work on the tenant's
4 residence.
5 (vi) Students enrolled in a certified vocational
6 school program in which they work under the direct
7 supervision of a licensed home improvement contractor or
8 other contractor who is duly licensed in another field.
9 (vii) A public utility operating under the laws of
10 this Commonwealth or a rural cooperative utility in
11 construction, maintenance or development work incidental
12 to its own business.
13 (viii) A person who only furnished materials,
14 supplies or equipment without fabricating them or
15 consuming them in the performance of the work of the home
16 improvement contractor.
17 "Home improvement salesperson." Any person who negotiates or
18 offers to negotiate a home improvement contract with an owner or
19 who solicits or otherwise endeavors to procure by any means
20 whatsoever, directly or indirectly, a home improvement contract
21 from an owner.
22 "Licensee." A person licensed pursuant to this act.
23 "Lien." Any legal claim on or security interest in real
24 property that arose by consent or by operation of law.
25 "Owner." Any homeowner, tenant or any other natural person
26 who orders, contracts for or purchases the home improvement
27 services of a home improvement contractor or the person entitled
28 to the performance of the work of a contractor pursuant to a
29 home improvement contract.
30 "Person." Any natural person, corporation, partnership or
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1 other business entity.
2 Section 3. Home Improvement Contractors Board.
3 (a) Establishment.--The Home Improvement Contractors Board
4 is hereby established.
5 (b) Composition.--The board shall consist of seven members
6 appointed as follows:
7 (1) The bureau shall appoint three members of the
8 general public not employed by or affiliated with a licensee
9 and who have no spouse or immediate family member employed by
10 or affiliated with a licensee.
11 (2) The Governor shall appoint three current or former
12 licensees who shall have at least five years of experience
13 each.
14 (3) The Governor shall appoint one current member of a
15 craft or trade union of home improvement contractors.
16 (c) Term.--The term for each member shall be four years and
17 each member shall be eligible for reappointment.
18 (d) Vacancy.--The appointing authority shall have the power
19 to make appointments to fill any vacancies.
20 (e) Compensation.--Members of the board shall not be
21 compensated but shall be entitled to receive an allowance for
22 expenses incurred in the performance of their duties.
23 Section 4. Licensing.
24 (a) License required.--No person shall maintain, own,
25 operate or transact a home improvement business unless a license
26 is first obtained pursuant to this section.
27 (b) Applications.--Applications for a home improvement
28 contractor's license shall be submitted to the board on forms
29 prescribed and furnished by the board and shall contain the
30 information and be accompanied by the attachments required by
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1 the board.
2 (c) Corporation or business entity.--If the applicant is a
3 corporation, partnership or other business entity, a qualifying
4 natural person within the entity must be listed on the
5 application. If the applicant is a corporation, the qualifying
6 natural person must be a responsible managing officer or a
7 responsible managing employee who can meet the experience
8 requirements and pass the written examination. If the applicant
9 is a partnership or other entity, the qualifying natural person
10 must be a responsible general partner or a responsible managing
11 employee who can meet the experience requirements and pass the
12 written examination. No license shall be issued by the board to
13 any applicant unless the board is satisfied that the applicant
14 is or has in its employ a party who is qualified for the
15 classification for which application is made and the applicant
16 has satisfied the requirements of this section.
17 (d) Out-of-State applicant.--Any applicant, who, for at
18 least three years, holds a valid license as a home improvement
19 contractor or salesperson issued by a jurisdiction out of State
20 shall be deemed to have satisfied the experience and examination
21 requirements for licensure only upon a determination by the
22 board that the licensing requirements of the other jurisdiction
23 are substantially similar to those of this Commonwealth. The
24 out-of-State applicant shall be subject to all other
25 requirements of this act.
26 (e) Contractor license.--An applicant for a contractor
27 license shall:
28 (1) Demonstrate proof of financial responsibility as
29 determined by regulation of the board.
30 (2) Pass an examination approved and adopted by the
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1 board.
2 (3) Pay all required fees as set by the board.
3 (4) Have at least 2 years of trade experience or
4 comparable educational training as defined by the board.
5 (5) File with the board information that includes, but
6 is not limited to, a complete statement of the general nature
7 of the applicant's contracting business or the applicant's
8 duties, all outstanding judgments against the applicant in
9 actions arising out of the field of home improvements or
10 other construction work and any pending litigation that the
11 applicant is involved in arising out of the field of home
12 improvements or other construction work.
13 (f) Salesperson license.--An applicant for a salesperson
14 license shall:
15 (1) Demonstrate proof of financial responsibility as
16 determined by regulation of the board.
17 (2) Pass an examination approved and adopted by the
18 board.
19 (3) Pay all required fees as set by the board.
20 (4) File with the board information that includes, but
21 is not limited to, all outstanding judgments against the
22 applicant in actions arising out of the field of selling home
23 improvements or other construction work including any pending
24 litigation arising out of the field of home improvements or
25 other construction work.
26 (g) Suspension.--The board may refuse to issue or renew or
27 may suspend or revoke a license if it finds that the applicant
28 or licensee:
29 (1) Has made a material omission or misrepresentation of
30 fact on an application for a license.
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1 (2) Has failed to furnish information to the board
2 concerning an application for a license as required by this
3 act.
4 (3) Lacks competence to engage in the home improvement
5 business, as evidenced by work performed in a poor and
6 unworkmanlike manner, or when the work involved is inadequate
7 or incomplete.
8 (4) Has been convicted of a felony or any crime of
9 dishonesty.
10 (5) Has failed to perform contracts, has manipulated
11 assets or accounts or has engaged in fraud or bad faith.
12 (6) Has violated any provision of this act or is
13 performing or attempting to perform any conduct prohibited by
14 this act.
15 (h) Renewal.--Persons licensed under this section must renew
16 the license every two years in a manner prescribed by the board.
17 (i) List.--The board shall maintain all information
18 regarding complaints and claims filed against licensees,
19 including information regarding the resolution of such
20 complaints and claims, copies of all applications and
21 information on all actions by the board to deny, suspend or
22 revoke a license. This information shall be available to the
23 public.
24 Section 5. Bonding and insurance.
25 (a) Insurance coverage.--All licensees must have in effect
26 insurance covering personal injury in an amount not less than
27 $100,000/$300,000 and insurance covering property damage caused
28 by the work of that home improvement contractor in an amount not
29 less than $50,000. The contractor shall provide satisfactory
30 evidence to the board at the time of registration and annual
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1 renewal that the insurance required by this subsection has been
2 procured and is in effect.
3 (b) Bond.--A person who wishes to obtain or renew a license
4 as a home improvement contractor shall file with the board a
5 surety or property bond or cash deposit. The amount of each bond
6 or cash deposit must be fixed by the board with reference to the
7 magnitude of the contractor's operations but must be not less
8 than $50,000 for the benefit of any person who is damaged
9 because of the breach of the home improvement contract. Any
10 person so damaged may sue directly on the bond without
11 assignment thereof. If the bond ceases to be in effect, the
12 contractor's license shall become invalid.
13 (c) Private action.--A person having a claim against a
14 contractor for any of the prohibited acts in this act may bring
15 suit upon the bond in the court of appropriate jurisdiction. A
16 person having a claim shall notify the board at the time suit is
17 filed and the board shall maintain a record, available for
18 public inspection and copying, of all suits commenced. Such
19 notification shall not constitute a precondition to the filing
20 of a suit, and failure to notify the board shall in no way
21 affect the validity of such lawsuit. Priority for payment shall
22 be based upon the time of filing with the board. In the event
23 that claims pending at any one time exceed the amount of the
24 bond, the claims shall be satisfied from the bond in the
25 following order:
26 (1) Homeowners' claims.
27 (2) Labor, including employee benefits.
28 (3) Material and equipment.
29 (4) All other claims.
30 Section 6. Prohibited acts.
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1 (a) Prohibition.--The following acts are prohibited:
2 (1) Abandonment of or willful failure to perform,
3 without justification, any home improvement contract or
4 project engaged in or undertaken by a contractor or deviation
5 from or disregard of plans or specifications in any material
6 respect without the consent of the owners.
7 (2) Failure to perform as promised under a home
8 improvement contract.
9 (3) Any substantial misrepresentation in the procurement
10 of a home improvement contract or any false promise of
11 character likely to influence, persuade or induce.
12 (4) Any fraud in the execution of or in the alteration
13 of any contract, mortgage, promissory note or other document
14 incident to a home improvement transaction.
15 (5) Misrepresentation of a material fact by an applicant
16 in obtaining or attempting to obtain a license.
17 (6) Use or attempted use of a license that has expired
18 or that has been revoked.
19 (7) Presentation of oneself falsely or impersonation of
20 a licensed home improvement contractor or salesperson.
21 (8) Offer to make or making any home improvement without
22 having a valid license under this act.
23 (9) Entrance into a home improvement contract with the
24 intent of:
25 (i) damaging the property of a consumer;
26 (ii) doing work on the property of a consumer
27 without the consumer's prior authorization;
28 (iii) misrepresenting that the contractor or another
29 person is an employee or agent of the Federal government,
30 the Commonwealth or any of its political subdivisions, or
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1 any other governmental agency or entity; or
2 (iv) misrepresenting that the supplier or another
3 person is an employee or agent of any public or private
4 utility.
5 (10) Advertisement, in any manner, that a licensee is
6 licensed under this act unless the advertisement includes an
7 accurate reference to the appropriate current license number
8 consisting of and limited to a form as prescribed by the
9 board.
10 (11) Creation or confirmation of a consumer's impression
11 that is false and that the home improvement supplier does not
12 believe to be true.
13 (12) Promises of performance that the contractor does
14 not intend to perform or knows will not be performed.
15 (13) Use of employment of any deception, false pretense
16 or false promise to cause a consumer to enter into a home
17 improvement contract.
18 (14) Entrance into a contract in which the total sales
19 price is more than 25% greater than the value of the work
20 performed under the contract.
21 (15) Acting as a contractor or selling a home
22 improvement under a name other than that which is stated on
23 the person's license.
24 (16) Violation of any rule adopted by the board.
25 (17) Aiding or abetting an unlicensed person to evade
26 the provisions of this act, knowingly combining or conspiring
27 with an unlicensed person, allowing one's license to be used
28 by an unlicensed person or acting as an agent, partner,
29 associate or otherwise of an unlicensed person with intent to
30 evade the provisions of this act.
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1 (18) Demand for or receipt of any payment for a home
2 improvement before the home improvement contract is signed.
3 (19) Failure to pay all taxes associated with home
4 improvement sales or contracting.
5 (20) Any violation of a requirement under this act not
6 enumerated in this section or any violation of regulations of
7 the board.
8 (21) Failure to notify the board of any change of
9 address within ten days of the change.
10 (b) Unfair Trade Practices and Consumer Protection Law.--Any
11 violation of this section shall also be a violation of the act
12 of December 17, 1968 (P.L.1224, No.387), known as the Unfair
13 Trade Practices and Consumer Protection Law.
14 (c) Workers' Compensation Act.--Any contractor covered by
15 this act who violates the act of June 2, 1915 (P.L.736, No.338),
16 known as the Workers' Compensation Act, Federal and State tax
17 law or the act of December 5, 1936 (2nd Sp.Sess., 1937 P.L.2897,
18 No.1), known as the Unemployment Compensation Law, or the Unfair
19 Trade Practices and Consumer Protection Law in the course of
20 conducting a home improvement business violates this act.
21 Section 7. Recovery fund.
22 (a) Establishment.--The board shall:
23 (1) Establish the Home Improvement Recovery Fund.
24 (2) Keep the fund at a level of at least $250,000.
25 (b) Initial fee.--Before the board issues a home improvement
26 contractor license, the contractor shall pay a fee of $100 to be
27 credited to the fund. If the board finds that because of pending
28 claims the amount of the fund may fall below $250,000, the board
29 shall assess each contractor a fee of $50. If a contractor fails
30 to pay an assessment within 60 days after notice of the
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1 assessment, the contractor's license shall be suspended until
2 the assessment is paid.
3 (c) Claims against fund.--Subject to this act, an owner may
4 recover compensation from the fund for an actual loss that
5 results from any violation of this act by a home improvement
6 contractor, acting with or without a valid license, as found by
7 the board or a court of competent jurisdiction. For purposes of
8 recovery from the fund, the act or omission of a licensed home
9 improvement contractor includes any act or omission of a
10 subcontractor, salesperson or employee of the licensed home
11 improvement contractor whether or not an express agency
12 relationship exists.
13 (d) Procedures for submitting claims.--To begin a proceeding
14 to recover from the fund, a claimant shall submit to the board a
15 claim, under oath, that states:
16 (1) The amount claimed, based on the actual loss.
17 (2) The facts giving rise to the claim.
18 (3) Any other evidence that supports the claim.
19 (4) Any other information that the board requires.
20 (e) Action on claim by board.--
21 (1) On receipt of a claim, the board shall:
22 (i) Send a copy of the claim to the contractor
23 alleged to be responsible for the actual loss.
24 (ii) Require a written response to the claim within
25 ten days.
26 The board shall review the claim and any response to it and
27 may investigate the claim.
28 (2) On the basis of its review and any investigation,
29 the board may do any or all of the following:
30 (i) set the matter for a hearing held in accordance
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1 with section 11;
2 (ii) dismiss the claim, if it is made in bad faith;
3 (iii) issue an order to pay all or part of the
4 claim; or
5 (iv) deny the claim.
6 (f) Payments from fund.--The board may order payment of a
7 claim against the fund if:
8 (1) the decision or order of the board is final and all
9 rights of appeal are exhausted; or
10 (2) the claimant provides the board with a certified
11 copy of a final judgment of a court of competent jurisdiction
12 or a final award in arbitration, with all rights of appeal
13 exhausted, in which the court or arbitrator:
14 (i) Expressly has found on the merits that the
15 claimant is entitled to recover under this act.
16 (ii) Has found the value of the actual loss.
17 (g) Order of payment.--The order of payment shall be as
18 follows:
19 (1) The board shall pay approved claims in the order
20 submitted.
21 (2) If approved claims submitted to the board against a
22 contractor exceed $50,000 less the amount of unreimbursed
23 claim payments previously made for the contractor, the board
24 may pay the approved claim proportionately so that each
25 claimant receives the same percentage payment of the claims.
26 (3) After the fund is reimbursed, the board shall pay
27 unsatisfied approved claims.
28 (h) Insufficient balance.--If there is not enough money in
29 the fund to pay an approved claim wholly or partly, the board
30 shall pay the unpaid claim:
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1 (1) When enough money is deposited in the fund.
2 (2) In the order that each claim originally was filed
3 with a court of competent jurisdiction or submitted to the
4 board.
5 (i) Limitations period.--A claim shall be brought against
6 the fund within two years after the claimant discovered or, by
7 the use of ordinary diligence, should have discovered the loss
8 or damage.
9 (j) Reimbursement of fund.--After the board pays a claim
10 from the fund:
11 (1) The board shall be subrogated to all rights of the
12 claimant in the claim up to the amount paid.
13 (2) The claimant shall assign to the board all rights of
14 the claimant in the claim up to the amount paid.
15 (3) The board has a right to reimbursement of the fund
16 by the contractor or salesperson for the amount paid from the
17 fund and interest on the amount at an annual rate of at least
18 10% as adjusted by the board.
19 (4) If, within 30 days after the board gives notice, a
20 contractor on whose account a claim was paid does not
21 reimburse the fund in full, the board may sue the contractor
22 in a court of competent jurisdiction for the unreimbursed
23 amount.
24 Section 8. Required contract provisions.
25 No home improvement contract shall be valid and enforceable
26 against an owner unless it:
27 (1) Is in writing and legible.
28 (2) Is signed by the owner and the contractor or a
29 salesperson on behalf of a contractor.
30 (3) Contains the entire agreement between the owner and
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1 contractor.
2 (4) Contains the date of the transaction.
3 (5) Contains the name, specific address (post office box
4 numbers only are not sufficient) and the license number of
5 the contractor.
6 (6) Contains the approximate starting date and
7 completion date.
8 (7) Is entered into with a licensed contractor or a
9 licensed salesperson.
10 (8) Provides a notice in at least 14-point boldface type
11 that gives the toll-free telephone number of the board and
12 states:
13 STATE LAW REQUIRES THAT ANYONE WHO CONTRACTS TO DO HOME
14 IMPROVEMENT WORK BE LICENSED BY THE HOME IMPROVEMENT
15 CONTRACTORS BOARD IF THE TOTAL PRICE OF THE JOB IS $300
16 OR MORE (INCLUDING LABOR AND MATERIALS). SALESPERSONS
17 MUST ALSO BE LICENSED.
18 LICENSED CONTRACTORS AND SALESPERSONS ARE REGULATED BY
19 LAWS DESIGNED TO PROTECT THE PUBLIC. YOU MAY CONTACT THE
20 BOARD TO FIND OUT WHETHER THE CONTRACTOR OR SALESPERSON
21 HAS A VALID LICENSE. THE BOARD HAS COMPLETE INFORMATION
22 ON THE HISTORY OF LICENSED CONTRACTORS, INCLUDING ANY
23 SUSPENSIONS, REVOCATIONS, COMPLAINTS AND RESOLUTION OF
24 COMPLAINTS.
25 IF YOU HAVE A COMPLAINT AGAINST A CONTRACTOR OR
26 SALESPERSON, YOU MAY CONTACT THE BOARD TO OBTAIN A
27 COMPLAINT FORM AND FURTHER INFORMATION. YOU MUST FILE ALL
28 COMPLAINTS WITHIN TWO YEARS OF THE DATE OF THE CONTRACT.
29 IF THE CONTRACTOR FAILED TO COMPLETE THE WORK OR
30 PERFORMED SHODDY WORK, YOU MAY FILE A CLAIM WITH THE
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1 RECOVERY FUND BY CONTACTING THE BOARD. YOU MUST FILE ALL
2 CLAIMS AGAINST THE FUND WITHIN TWO YEARS OF THE DATE OF
3 THE CONTRACT.
4 (9) Includes a description of the work to be performed
5 and the materials to be used and a set of specifications that
6 cannot be changed without the written approval of the owner.
7 (10) Includes the total sales price due under the
8 contract.
9 (11) Includes the amount of any down payment, which
10 cannot exceed one third of the total contract price.
11 (12) Includes a schedule of all progress payments, if
12 required, showing the amount of each payment and the state of
13 completion of the work to be performed.
14 (13) Includes a statement that, upon satisfactory
15 payment being made for any portion of the work performed, the
16 contractor shall, prior to any further payment being made,
17 furnish to the person contracting for the home improvement a
18 full and unconditional release from any claim or mechanic's
19 lien for that portion of the work being performed.
20 (14) Includes a notice in at least 14-point boldface
21 type that the owner shall not sign the contract if there are
22 any blanks and that the owner is entitled to a copy of the
23 contract at the time the owner signs it.
24 (15) Includes a notice of any three-day right of
25 cancellation, if required under Federal or State law.
26 (16) Includes a description of any collateral taken to
27 secure the contract.
28 (17) Advises the owner that it is the responsibility of
29 the contractor to obtain all necessary permits to perform the
30 work.
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1 (18) Includes the names, license numbers and complete
2 addresses (post office box numbers only are not sufficient)
3 of all subcontractors on the project.
4 (19) Complies with all applicable Federal and State
5 credit laws if the contract includes financing the work to be
6 performed.
7 (20) Includes a statement that any holder of the
8 contract is subject to all claims and defenses which the
9 owner could assert against the contractor and that recovery
10 shall not exceed the total contract price.
11 (21) Is written in both English and another language if
12 a language other than English is used in the negotiation or
13 explanation of the contract or the work to be performed.
14 Section 9. Prohibited contract provisions.
15 Any of the following provisions, if included in a home
16 improvement contract, shall be void and unenforceable:
17 (1) A hold-harmless clause.
18 (2) A waiver of Federal, State or local health, life
19 safety or building code requirements.
20 (3) A confession of judgment clause.
21 (4) A waiver of any right to a jury trial in any action
22 brought by or against the owner.
23 (5) A clause in which the owner relieves the contractor
24 from liability for any legal or equitable remedies that the
25 owner may have against the contractor under the contract or
26 other instrument.
27 (6) A mandatory arbitration clause.
28 (7) Any assignment of or order for payment of wages or
29 other compensation for services.
30 (8) A provision relieving the contractor from liability
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1 for acts committed by the contractor or the contractor's
2 agent in the collection of any payments or in the
3 repossession of any goods.
4 (9) A provision in which the owner agrees not to assert
5 any claim or defense arising out of the contract.
6 (10) A provision that the contractor may be awarded
7 attorney fees and costs.
8 (11) A waiver of any provisions of this act.
9 Section 10. Denials, reprimands, suspensions and revocations.
10 (a) General rule.--Subject to the hearing provisions of
11 section 11, the board may deny a license to an applicant,
12 reprimand a licensee or suspend or revoke a license if the
13 licensee violates any provisions of this act.
14 (b) Commencement of action.--An action which could result in
15 denial of an application for a license or a reprimand,
16 suspension or revocation of a license can be commenced at any
17 time by the board. An owner may file a complaint in the form
18 prescribed by the board at any time within two years of the date
19 of the contract unless the board finds that the complainant's
20 delay in bringing the complaint was justified and the delay does
21 not result in an undue burden on the licensee.
22 (c) Responsibility for violations by others.--Subject to the
23 hearing provisions of section 11, the board may reprimand a
24 contractor or subcontractor or suspend or revoke the license of
25 a contractor for any violation of this act by an agent,
26 director, employee, manager, officer, partner or salesperson of
27 the contractor unless the board finds that:
28 (1) The employee was acting outside of the scope of the
29 employment.
30 (2) The contractor or management personnel of the
20010H2076B2754 - 19 -
1 contractor tried and could not prevent the violation.
2 (d) Penalty.--Instead of or in addition to reprimanding a
3 licensee or suspending or revoking a license, the board may
4 impose a civil penalty not exceeding $5,000 for each violation,
5 whether or not the person is licensed under this act. In setting
6 the amount of the civil penalty, the board shall consider all of
7 the following:
8 (1) The seriousness of the violation.
9 (2) The good faith of the violator.
10 (3) Any previous violations.
11 (4) The harmful effect of the violation on the
12 complainant and the public.
13 Section 11. Hearings.
14 (a) Right to hearing.--Before the board can suspend or
15 revoke a license, it shall give the person against whom the
16 action is contemplated an opportunity for a hearing before the
17 board.
18 (b) Specific notice requirements.--A hearing notice shall be
19 given to the person at least ten business days before the
20 hearing by certified mail to the business address of the
21 licensee on record with the board. Every notice shall bear an
22 identifying number, which shall be the number assigned to all
23 hearings, orders and communications between the parties relating
24 to the subject matter of the hearing.
25 (c) Oaths.--The board may administer oaths in a proceeding
26 under this section.
27 (d) Hearing.--The board shall set the time and place of the
28 hearing but shall hold the hearing in an appropriate location to
29 accommodate the needs of witnesses with disabilities, indigent
30 witnesses or a majority of witnesses.
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1 (e) Right to counsel.--A person may be represented at the
2 hearing by counsel.
3 (f) Subpoenas.--In connection with a hearing under this
4 section, the board may issue subpoenas for the attendance of
5 witnesses to testify or produce evidence.
6 (g) Rules of evidence.--The rules of evidence shall be those
7 prescribed by State law for administrative hearings.
8 (h) Failure to appear.--If, after due notice, the person
9 against whom the action is contemplated does not appear, the
10 board may hear and determine the issue without the person.
11 (i) Transcription of hearings.--All hearings shall be
12 recorded. If a party appeals a final order of the board, the
13 party, at its own expense, shall order and deliver to the board
14 a complete transcript of the testimony.
15 (j) Witnesses.--Any member of the board may examine any
16 witness called. The board may call as a witness, in addition to
17 those persons for whom subpoenas have been issued, any person
18 attending the hearing.
19 (k) Briefs.--Any party may and at the request of the board
20 shall submit to the board briefs on the issues of fact and law
21 involved in the hearings. The briefs shall be filed in the
22 manner the board may designate.
23 (l) Orders.--All orders for the board shall be in writing
24 and shall designate the names of the parties. Copies of all
25 final orders shall be sent to each party to the proceedings and
26 shall also be available to the public.
27 (m) Public access to hearings and records.--All hearings
28 shall be open to the public. The records created as a result of
29 all proceedings that result in a hearing shall be open to the
30 public.
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1 (n) Right to intervene.--Any owner aggrieved by the actions
2 of a licensee or other interested person may seek to intervene
3 in any investigation or enforcement action pending against the
4 contractor. The board shall liberally grant such intervention
5 requests. An owner who files a timely complaint against the
6 contractor may request that the board consolidate the complaint
7 with any others currently pending against the contractor. The
8 board shall liberally grant such consolidation requests.
9 Section 12. Judicial review.
10 A party to a proceeding before the board who is aggrieved by
11 a final decision of the board may file an appeal with the
12 Commonwealth Court for review.
13 Section 13. Criminal penalties.
14 (a) Applicability.--This section shall apply only if there
15 is no greater criminal penalty provided under this act or other
16 applicable law.
17 (b) Penalty.--A person who violates this act commits a
18 misdemeanor and, upon conviction, is subject to a fine not
19 exceeding $1,000, which shall be payable to the fund established
20 in section 7, and is also subject to an order of restitution to
21 reimburse the victim for the harm performed by the contractor,
22 but which shall be payable to the fund if the fund had
23 previously reimbursed the aggrieved person, to the extent of the
24 claim paid or is subject to imprisonment for not more than six
25 months or any combination of these.
26 Section 14. Injunction.
27 (a) Continuing conduct.--If the board concludes that the
28 continuing conduct of a person alleged to be in violation of
29 this act will result in irreparable or substantial harm to any
30 other person, the board may sue for:
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1 (1) injunctive relief against the conduct;
2 (2) an order for satisfactory completion of a home
3 improvement contract; or
4 (3) restitution.
5 (b) Injunctive relief.--If the board sues for injunctive
6 relief against a person who is not licensed under this act, the
7 board need not post a bond or show that no adequate remedy at
8 law exists.
9 Section 15. Permits.
10 No county, municipal or other governmental authority shall
11 issue a permit for a home improvement unless the contractor
12 shows proof of licensure or proof of an exemption to licensure.
13 The permit must include the licensee's number or a statement of
14 the reasons for exemption. A contractor is responsible for
15 obtaining all required permits to perform the work.
16 Section 16. Private right of action.
17 (a) Private action.--An aggrieved person may raise claims or
18 defenses against a contractor or salesperson based upon
19 violations of this act in any civil proceeding in a court with
20 jurisdiction over the matter. If the aggrieved person prevails,
21 the owner may obtain actual, consequential and punitive damages,
22 attorney fees and costs. In addition, the aggrieved person is
23 entitled to statutory damages in the amount of $1,000 per
24 violation.
25 (b) Representation.--An aggrieved person may file the action
26 provided for in subsection (a) as the representative of a class.
27 In such a case, each class member is entitled to any or all of
28 the damages set forth in subsection (a) that occurred to each
29 class member as a result of the actions complained of.
30 (c) Relief.--An aggrieved person may sue for injunctive
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1 relief and other appropriate equitable relief to stop a licensed
2 or unlicensed contractor or salesperson from violating any
3 provision of this act.
4 (d) Lien.--Where a contractor or salesperson violates any
5 provision of this act, any lien acquired by such contractor as a
6 result of financing the transaction or by operation of law or
7 any lien acquired by any lender with whom the contractor
8 arranged financing is void.
9 (e) Contract void.--Any home improvement contract subject to
10 the provisions of this act that is negotiated, signed or
11 performed by a contractor or salesperson without a license shall
12 be void. An assignee of a contract entered into by an unlicensed
13 contractor cannot enforce the contract in court. Any amounts
14 paid pursuant to the contract shall be refunded.
15 (f) Agents.--For purposes of this section, a contractor is
16 liable for the acts of any agent, director, employee, manager,
17 officer, partner or salesperson of the contractor unless the
18 court finds that:
19 (1) The employee was acting outside the scope of the
20 employment.
21 (2) The contractor or management personnel of the
22 contractor tried and could not prevent the violation.
23 (g) Preemption.--The provisions of this act and the remedies
24 provided under it shall not in any way preempt the applicability
25 of the act of December 17, 1968 (P.L.1224, No.387), known as the
26 Unfair Trade Practices and Consumer Protection Law.
27 Section 24. Effective date.
28 This act shall take effect in 60 days.
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