Regular Session 2017-2018 House Bill 1469 P.N. 3795

SENATE AMENDED

PRIOR PRINTER'S NOS. 1874, 2016, 2186

PRINTER'S NO. 3795

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

1469

Session of

2017

INTRODUCED BY HEFFLEY, McGINNIS, MILLARD, MALONEY, PHILLIPS-

HILL, COX, WHEELAND, ZIMMERMAN, MICCARELLI AND JOZWIAK,

MAY 31, 2017

SENATOR WARD, LABOR AND INDUSTRY, IN SENATE, AS AMENDED,

JUNE 21, 2018

AN ACT

Amending the act of November 10, 1999 (P.L.491, No.45), entitled

"An act establishing a uniform construction code; imposing

powers and duties on municipalities and the Department of

Labor and Industry; providing for enforcement; imposing

penalties; and making repeals," in adoption and enforcement

by municipalities, further providing for administration and

enforcement; and, in training and certification of

inspectors, further providing for training of inspectors.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Section 501(b)(1), (2) and (3) of the act of

November 10, 1999 (P.L.491, No.45), known as the Pennsylvania

Construction Code Act, are amended and the section is amended by

adding subsections to read:

Section 501. Administration and enforcement.

* * *

(b) Municipal administration and enforcement.--This act may

be administered and enforced by municipalities in any of the

following ways:

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(1) By the designation of an employee to serve as the

municipal code official to act on behalf of the municipality

for administration and enforcement of this act. A municipal

code official may utilize third-party agencies to supplement

the municipal code enforcement program's plan review and

inspection services or may utilize third-party agencies to

perform plan review and inspection services in categories

which its program does not possess the necessary personnel to

administer.

(2) By the retention of one or more [construction code

officials or] third-party agencies to act on behalf of the

municipality for administration and enforcement of this

act[.], except that the provisions of subsection (b.1) shall

apply if the municipality contracts with only one third-party

agency for administration and enforcement.

(3) Two or more municipalities may provide for the joint

administration and enforcement of this act through an

intermunicipal agreement under 53 Pa.C.S. Ch. 23 Subch. A

(relating to intergovernmental cooperation)[.], except that

the provisions of subsection (b.1) shall apply if the

agreement provides for only one third-party agency for

administration and enforcement.

* * *

(b.1) Exclusive administration and enforcement.--The

following apply:

(1) If a municipality contracts with one third-party

agency for administration and enforcement of this act, an

applicant may utilize the services of another third-party

agency if the alternative third-party agency agrees to remit

a surcharge for its services to the municipality. The

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surcharge shall be a percentage of the total amount of fees

charged by the alternative third-party agency. The percentage

shall be established by the municipality by ordinance as a

percentage not to exceed 10%. If the municipality fails to

establish a surcharge as specified under this paragraph, the

surcharge shall be 1% of the total fees charged by the

alternative third-party agency for the alternative third-

party agency's services on a project.

(2) In accordance with the municipality's

overall permitting process for a project, the municipality

shall notify the applicant that the applicant may utilize the

services of an alternative third-party agency of the

applicant's choice for the construction requirements of the

application covered by this act, including all plan review

and inspection services. The applicant shall be notified of

the information required under subsection (b.2).

(3) The applicant shall notify the municipality and its

contracted third-party agency of its intent to utilize an

alternative third-party agency for the construction

requirements required by this act for a project. The

applicant shall provide, in its notification, the name of the

alternative third-party agency that will be utilized and

appropriate contact information.

(4) Before performing services on a project, the

alternative third-party agency being utilized by the

applicant shall notify the municipality and its contracted

third-party agency that it is performing services required by

this act on the project for the applicant. On the date of

issuance of the permit required by this act, the alternative

third-party agency shall provide the municipality and its

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exclusive third-party agency with a copy of the permit issued

for the project and the approved plans of record for the

project.

(5) The applicant shall utilize the services of the

alternative third-party agency for all requirements of this

act associated with a project.

(6) On the date of issuance of the final inspection

report for a project, the alternative third-party agency

shall forward the following to the municipality and the

municipality's third-party agency:

(i) The final inspection report that was issued for

the project.

(ii) A summary of total fees charged to the

applicant.

(iii) Payment of the surcharge assessed under

paragraph (1).

(iv) The fee required under section 703(a).

(v) Any additional documentation associated with the

project that is requested by the municipality.

(7) The municipality or its contracted third-party

agency, whichever is applicable, shall accept the final

inspection report with respect to the requirements of this

act. The contracted third-party agency shall be immune from

any civil liability associated with contents of the final

inspection report.

(8) The municipality or its contracted third-party

agency may withhold issuance of the certificate of occupancy

for a project if the alternative third-party agency fails to

comply with paragraph (6).

(9) The municipality may notify the department of a

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possible violation of this act if an alternative third-party

agency fails to comply with paragraph (6). Upon receiving

notice by the municipality, the department shall conduct an

investigation. The department may consider an intentional

failure to comply with paragraph (6) as just cause for

decertification of the alternative third-party agency under

section 701(h).

(10) A professional services contract between a

municipality and a third-party agency for the

exclusive administration and enforcement of this act in

effect before the effective date of this subsection shall

remain in effect and the provisions of this subsection shall

apply upon the expiration of the original terms of the

professional services contract.

(b.2) Administration and enforcement by third-party

agencies.-- If a municipality contracts with one or more third-

party agencies for the administration and enforcement of this

act, the municipality shall have the following duties:

(1) E nsuring that the form utilized for a permit

application notifies an applicant of all of the following:

(i) The authority of a third-party agency exists as

a result of a contract approved by the governing body of

the municipality, or as a result of intermunicipal

agreement under 53 Pa.C.S. Ch. 23 Subch. A entered into

by the municipality.

(ii) An applicant may inform the governing body of

the municipality of complaints about a third-party

agency's services, including reports of incompetence or

gross negligence, a failure to abide by a time period

specified under this act, rude or unprofessional behavior

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or discrimination based on personal bias against the

applicant.

(iii) The department certifies third-party agencies

and investigates complaints about service, including

complaints due to violations of this act, incompetence or

gross negligence, fraud, deceit or acts of moral

turpitude.

(iv) The department has a publicly accessible

Internet website which includes the form for filing a

complaint about service under subparagraph (iii).

(2) Maintaining a record of complaints submitted under

paragraph (1)(ii).

* * *

Section 2. Section 701 of the act is amended by adding a

subsection to read:

Section 701. Training of inspectors.

* * *

(h.1) Code administrator complain ts.--The follow ing apply:

(1) The department shall accept and review a complaint

submitted by a building permit applicant about a code

administrator and the secretary shall have the discretion to

enforce remedial actions if necessary, including actions to

decertify the code administrator or revoke the code

administrator's certification for a period of time as

determined by the secretary. The department shall review a

complaint about a code administrator regarding any of the

following allegations:

(i) Incompetence, negligence or unethical conduct.

(ii) Failure to abide by a deadline specified under

this act for a code enforcement action which results in

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an unduly delay in the progress of a project.

(iii) Duplicative, undisclosed or exorbitant fees

assessed as a result of a code enforcement action.

(iv) An interpretation of the Uniform Construction

Code which demonstrates professional incompetence or

differs from standard practice, including the

establishment of a different requirement after plan

approval.

(v) A violation of 34 Pa. Code § 401.14 (relating to

decertification or refusal to certify).

(2) After reviewing a complaint as specified under

paragraph (1), the department shall have the following

duties:

(i) Notifying the municipality where the code

administrator subject to the complaint is being utilized

as to the existence of the complaint and recommending

remedial actions that the department determines to be

necessary to correct deficiencies.

(ii) Notifying the code administrator who is the

subject of the complaint.

(iii) Investigating the complaint.

(3) The secretary may issue an order to a municipality

to allow a building permit holder who submitted a complaint

under this subsection to utilize another third-party agency

of the building permit holder's choice for any remaining code

enforcement actions necessary to utilize a project. The order

may also include a provision to allow the building permit

holder to permanently utilize a third-party agency of the

permit holder's choice for future projects in the

municipality if the secretary deems that it is possible that

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the building permit holder will be retaliated against for

filing a complaint to the department by a code administrator.

(4) If a building permit applicant makes a complaint to

the department concerning a third-party agency or code

administrator, the department may not disclose the identity

of the building permit holder's complaint without the

building permit holder's consent unless disclosure is

unavoidable as a result of an investigation of a code

administrator under this subsection.

(5) A code administrator may not discriminate, threaten,

coerce or otherwise retaliate against a building permit

applicant who files a complaint under this subsection. A

person who alleges a violation of this paragraph may bring a

civil action in a court of competent jurisdiction for

appropriate injunctive relief or damages within 180 days of

occurrence of the alleged violation.

* * *

SECTION 1. SECTION 501(B)(1), (2) AND (3) AND (C)(1) OF THE

ACT OF NOVEMBER 10, 1999 (P.L.491, NO.45), KNOWN AS THE

PENNSYLVANIA CONSTRUCTION CODE ACT, ARE AMENDED, SUBSECTION (B)

IS AMENDED BY ADDING A PARAGRAPH AND THE SECTION IS AMENDED BY

ADDING SUBSECTIONS TO READ:

SECTION 501. ADMINISTRATION AND ENFORCEMENT.

* * *

(B) MUNICIPAL ADMINISTRATION AND ENFORCEMENT.--THIS ACT MAY

BE ADMINISTERED AND ENFORCED BY MUNICIPALITIES IN ANY OF THE

FOLLOWING WAYS:

(1) BY THE DESIGNATION OF AN EMPLOYEE TO SERVE AS THE

MUNICIPAL CODE OFFICIAL TO ACT ON BEHALF OF THE MUNICIPALITY

FOR ADMINISTRATION AND ENFORCEMENT OF THIS ACT. A MUNICIPAL

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CODE OFFICIAL MAY UTILIZE THIRD-PARTY AGENCIES TO SUPPLEMENT

THE MUNICIPAL CODE ENFORCEMENT PROGRAM'S PLAN REVIEW AND

INSPECTION SERVICES OR MAY UTILIZE THIRD-PARTY AGENCIES TO

PERFORM PLAN REVIEW AND INSPECTION SERVICES IN CATEGORIES

WHICH ITS PROGRAM DOES NOT POSSESS THE NECESSARY PERSONNEL TO

ADMINISTER.

(2) BY THE RETENTION OF ONE OR MORE CONSTRUCTION CODE

OFFICIALS OR THIRD-PARTY AGENCIES TO ACT ON BEHALF OF THE

MUNICIPALITY FOR ADMINISTRATION AND ENFORCEMENT OF THIS ACT.

THIS PARAGRAPH SHALL EXPIRE JUNE 30, 2019.

(2.1) ON AND AFTER JULY 1, 2019, BY THE RETENTION OF TWO

OR MORE THIRD-PARTY AGENCIES TO ACT ON BEHALF OF THE

MUNICIPALITY FOR ADMINISTRATION AND ENFORCEMENT OF THIS ACT.

(3) TWO OR MORE MUNICIPALITIES MAY PROVIDE FOR THE JOINT

ADMINISTRATION AND ENFORCEMENT OF THIS ACT THROUGH AN

INTERMUNICIPAL AGREEMENT UNDER 53 PA.C.S. CH. 23 SUBCH. A

(RELATING TO INTERGOVERNMENTAL COOPERATION). ANY

INTERMUNICIPAL AGREEMENT THAT PROVIDES FOR EXCLUSIVE

ENFORCEMENT BY A THIRD-PARTY AGENCY SHALL BE IN WRITING AND

CONFORM TO PARAGRAPH (2.1) ON AND AFTER JULY 1, 2019.

* * *

(B.1) ADMINISTRATION AND ENFORCEMENT BY THIRD-PARTY

AGENCIES.--A MUNICIPALITY OPTING TO ADMINISTER AND ENFORCE THIS

ACT BY RETAINING TWO OR MORE THIRD-PARTY AGENCIES UNDER

SUBSECTION (B)(2.1) SHALL BE SUBJECT TO THE FOLLOWING

REQUIREMENTS:

(1) THE SERVICES OF THE THIRD-PARTY AGENCIES SHALL BE

FURNISHED AND PERFORMED UNDER WRITTEN PROFESSIONAL SERVICES

CONTRACTS WITH THE MUNICIPALITY.

(2) IN ENTERING INTO PROFESSIONAL SERVICES CONTRACTS

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UNDER THIS SUBSECTION, THE GOVERNING BODY OF THE MUNICIPALITY

SHALL TAKE INTO CONSIDERATION ALL OF THE FOLLOWING:

(I) THE QUALIFICATIONS OF THE THIRD-PARTY AGENCY.

(II) THE FEE SCHEDULE.

(III) THE AVAILABILITY OF SERVICES.

(IV) THE INPUT OF AFFECTED STAKEHOLDERS.

(3) THIRD-PARTY AGENCIES CONTRACTING WITH THE

MUNICIPALITY UNDER THIS SUBSECTION MAY NOT BE AFFILIATED WITH

ONE ANOTHER.

(4) ONE OF THE THIRD-PARTY AGENCIES CONTRACTING WITH THE

MUNICIPALITY UNDER THIS SUBSECTION SHALL BE DESIGNATED AS THE

ENFORCEMENT AGENT FOR THE MUNICIPALITY FOR GENERAL CODE

ENFORCEMENT ACTIONS.

(5) A PROFESSIONAL SERVICES CONTRACT BETWEEN A

MUNICIPALITY AND A THIRD-PARTY AGENCY IN EFFECT BEFORE THE

EFFECTIVE DATE OF THIS SUBSECTION SHALL REMAIN IN EFFECT AND

THE PROVISIONS OF SUBSECTION (B)(2.1) SHALL TAKE EFFECT UPON

THE EXPIRATION OF THE ORIGINAL TERMS OF THE PROFESSIONAL

SERVICES CONTRACT.

(6) A PROFESSIONAL SERVICES CONTRACT ENTERED INTO

BETWEEN A MUNICIPALITY AND A THIRD-PARTY AGENCY ON OR AFTER

THE EFFECTIVE DATE OF THIS SUBSECTION MAY NOT EXCEED THREE

YEARS.

(B.2) WAIVER.--IF A MUNICIPALITY OPTS TO ADMINISTER AND

ENFORCE THIS ACT UNDER SUBSECTION (B)(2.1) BUT CANNOT OBTAIN AN

OFFER FROM A QUALIFIED THIRD-PARTY AGENCY TO FULFILL THE NEED TO

HAVE AT LEAST TWO THIRD-PARTY AGENCIES, THE MUNICIPALITY MAY BE

RELIEVED FROM THE REQUIREMENT OF RETAINING TWO THIRD-PARTY

AGENCIES BY COMPLETING A CERTIFICATION FORM, SUBJECT TO THE

FOLLOWING:

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(1) THE MUNICIPALITY MUST COMPLETE THE CERTIFICATION

FORM BEFORE THE CONTRACT WITH THE SELECTED THIRD-PARTY AGENCY

IS EXECUTED AND MUST MAINTAIN THE FORM THROUGHOUT THE LIFE OF

THE CONTRACT WITH THE THIRD-PARTY AGENCY.

(2) THE CERTIFICATION FORM MUST BE COMPLETED ANNUALLY.

(3) A COPY OF THE CERTIFICATION FORM MUST BE FILED WITH

THE DEPARTMENT. THE DEPARTMENT SHALL MAINTAIN A LIST OF

MUNICIPALITIES THAT HAVE FILED A CERTIFICATION FORM ON THE

DEPARTMENT'S PUBLICLY ACCESSIBLE INTERNET WEBSITE.

(4) THE DEPARTMENT SHALL FURNISH THE CERTIFICATION FORM

WHICH MUST:

(I) REQUIRE THE MUNICIPALITY TO DISCLOSE THE METHODS

AND DATES OF THE PUBLIC SOLICITATION. FOR PURPOSES OF

MEETING THIS REQUIREMENT, THE MUNICIPALITY SHALL

ADVERTISE REQUESTS FOR PROPOSALS AND ANNOUNCE THE

SOLICITATION AT A PUBLIC MEETING.

(II) REQUIRE THE MUNICIPALITY TO DISCLOSE THE NUMBER

OF QUALIFIED BIDS RECEIVED TO THE PUBLIC SOLICITATION.

(III) CONTAIN A STATEMENT THAT THE INFORMATION

PROVIDED BY THE MUNICIPALITY IS IN COMPLIANCE WITH 18

PA.C.S. § 4904 (RELATING TO UNSWORN FALSIFICATION TO

AUTHORITIES).

(IV) CONTAIN A STATEMENT THAT THE DEPARTMENT DOES

NOT HAVE THE DISCRETION TO DENY WAIVER REQUESTS.

(B.3) DUTIES OF MUNICIPALITIES.--IF A MUNICIPALITY CONTRACTS

WITH THIRD-PARTY AGENCIES FOR THE ADMINISTRATION AND ENFORCEMENT

OF THIS ACT, THE MUNICIPALITY SHALL:

(1) ENSURE THAT THE FORM UTILIZED FOR A PERMIT

APPLICATION NOTIFIES AN APPLICANT OF ALL OF THE FOLLOWING:

(I) THE THIRD-PARTY AGENCY IS ACTING ON BEHALF OF

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THE MUNICIPALITY.

(II) AN APPLICANT MAY INFORM THE GOVERNING BODY OF

COMPLAINTS ABOUT THE THIRD-PARTY AGENCIES' SERVICES,

INCLUDING REPORTS OF INCOMPETENCE OR GROSS NEGLIGENCE, A

FAILURE TO ABIDE BY A TIME PERIOD SPECIFIED UNDER THIS

ACT, UNPROFESSIONAL BEHAVIOR OR DISCRIMINATION BASED ON

PERSONAL BIAS AGAINST THE APPLICANT.

(III) THE DEPARTMENT CERTIFIES THIRD-PARTY AGENCIES

AND INVESTIGATES COMPLAINTS DUE TO VIOLATIONS OF THIS

ACT, INCOMPETENCE OR GROSS NEGLIGENCE, FRAUD, DECEIT OR

ACTS OF MORAL TURPITUDE.

(IV) THE DEPARTMENT HAS A PUBLICLY ACCESSIBLE

INTERNET WEBSITE THAT INCLUDES THE FORM FOR FILING A

COMPLAINT UNDER SUBPARAGRAPH (III).

(2) MAINTAIN A RECORD OF COMPLAINTS SUBMITTED UNDER

PARAGRAPH (1)(II).

(1) A MUNICIPALITY WHICH HAS ADOPTED AN ORDINANCE FOR

THE ADMINISTRATION AND ENFORCEMENT OF THIS ACT OR

MUNICIPALITIES WHICH ARE PARTIES TO AN AGREEMENT FOR THE

JOINT ADMINISTRATION AND ENFORCEMENT OF THIS ACT SHALL

ESTABLISH OR DESIGNATE A BOARD OF APPEALS AS PROVIDED BY

REGULATIONS PROMULGATED BY THE DEPARTMENT TO HEAR APPEALS

FROM DECISIONS OF THE CODE ADMINISTRATOR[.] SUBJECT TO THE

FOLLOWING:

(I) MEMBERS OF THE MUNICIPALITY'S GOVERNING BODY MAY

NOT SERVE AS MEMBERS OF THE BOARD OF APPEALS.

(II) A MUNICIPALITY MAY ESTABLISH A BOARD OF APPEALS

OR MAY ESTABLISH OR DESIGNATE A JOINT BOARD OF APPEALS IN

ACCORDANCE WITH 53 PA.C.S. CH. 23 SUBCH. A (RELATING TO

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INTERGOVERNMENTAL COOPERATION).

(III) A CITY OF THE FIRST CLASS MAY DESIGNATE AN

EXISTING DEPARTMENTAL BOARD THAT HAS JURISDICTION OVER

BUILDING STANDARD APPEALS TO ACT AS THE BOARD OF APPEALS

OF THE CITY OF THE FIRST CLASS AND ADVISE THE APPROPRIATE

DEPARTMENT THAT OVERSEES BUILDING STANDARDS AS TO WHETHER

AN APPEAL SHOULD BE GRANTED, MODIFIED OR REJECTED. THE

DEPARTMENT SHALL RENDER FINAL DECISION ON REQUESTS FOR

APPEAL.

* * *

Section 3 2. The department may issue regulations to

establish or clarify procedures necessary to effectuate the

intent of this act.

SECTION 3. THE AMENDMENT OF SECTION 501(B)(3) OF THE ACT

SHALL APPLY TO INTERMUNICIPAL AGREEMENTS ENTERED INTO ON AND

AFTER THE EFFECTIVE DATE OF THIS SECTION.

Section 4. This act shall take effect in 60 days

IMMEDIATELY.

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