HOUSE AMENDED
PRIOR PRINTER'S NOS. 135, 1037 PRINTER'S NO. 2428
No. 100 Session of 2007
INTRODUCED BY TOMLINSON, WONDERLING, BOSCOLA, RAFFERTY,
ERICKSON, LAVALLE, FERLO, BROWNE, PILEGGI, STACK AND LOGAN,
MARCH 2, 2007
AS REPORTED FROM COMMITTEE ON CONSUMER AFFAIRS, HOUSE OF
REPRESENTATIVES, AS AMENDED, SEPTEMBER 23, 2008
AN ACT
1 Providing for the regulation of home improvement contracts and
2 for the registration of certain contractors; prohibiting
3 certain acts; and providing for penalties.
4 The General Assembly of the Commonwealth of Pennsylvania
5 hereby enacts as follows:
6 Section 1. Short title.
7 This act shall be known and may be cited as the Home
8 Improvement Consumer Protection Act.
9 Section 2. Definitions.
10 The following words and phrases when used in this act shall
11 have the meanings given to them in this section unless the
12 context clearly indicates otherwise:
13 "Arbitration clause." A process in which a neutral
14 arbitrator or panel of neutral arbitrators is engaged by the
15 parties to settle a dispute between a contractor and an owner.
16 "Bureau." The Bureau of Consumer Protection in the Office of
17 Attorney General.
1 "CERTIFICATE." A CERTIFICATE OF REGISTRATION AS A <--
2 CONTRACTOR, ISSUED BY THE BUREAU OF CONSUMER PROTECTION, WHICH
3 CONTAINS A REGISTRATION NUMBER ASSIGNED BY THE BUREAU OF
4 CONSUMER PROTECTION.
5 "Contractor." Any person who owns and operates a home
6 improvement business or who undertakes, offers to undertake or
7 agrees to perform any home improvement. The term includes a
8 subcontractor or independent contractor who has contracted with
9 a home improvement retailer, regardless of the retailer's net
10 worth, to provide home improvement services to the retailer's
11 customers. The term does not include any of the following:
12 (1) A person for whom the total cash value of all of
13 that person's home improvements is less than $5,000 during
14 any period of 12 consecutive months THE PREVIOUS TAXABLE <--
15 YEAR.
16 (2) A home improvement retailer having a net worth of
17 more than $50,000,000 or an employee of that retailer that
18 does not perform home improvements.
19 "Home improvement."
20 (1) The term includes all of the following done in
21 connection with land or a portion of the land adjacent to a
22 private residence or a building or a portion of the building
23 which is used or designed to be used as a private residence
24 for which the total cash price of all work agreed upon
25 between the contractor and owner is more than $500.
26 (i) Repair, replacement, remodeling, demolition,
27 removal, renovation, installation, alteration,
28 conversion, modernization, improvement, rehabilitation or
29 sandblasting.
30 (ii) Construction, replacement, installation or
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1 improvement of driveways, swimming pools, pool houses,
2 porches, garages, roofs, siding, insulation, solar energy
3 systems, security systems, flooring, patios, fences,
4 gazebos, sheds, cabanas, landscaping of a type that is
5 not excluded under paragraph (2)(vi), painting, doors and
6 windows and waterproofing.
7 (iii) Without regard to affixation, the installation
8 of central heating or air conditioning or storm windows
9 or awnings.
10 (2) The term does not include:
11 (i) The construction of a new home.
12 (ii) The sale of goods or materials by a seller who
13 neither arranges to nor performs, directly or indirectly,
14 any work or labor in connection with the installation or
15 application of the goods or materials.
16 (iii) The sale of services furnished for commercial
17 or business use or for resale, if the service takes place
18 somewhere other than at a private residence.
19 (iv) The sale of appliances, including stoves,
20 refrigerators, freezers, room air conditioners and others
21 which are designed for and are easily removable from the
22 premises without material alteration.
23 (v) Any work performed without compensation by the
24 owner of the owner's private residence or residential
25 rental property.
26 (vi) Any work performed by a landscaper certified by
27 the Department of Agriculture under the act of December
28 16, 1992 (P.L.1228, No.162), known as the Plant Pest Act,
29 except to the extent that the work involves any of the
30 following at a private residence:
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1 (A) The construction, replacement, installation
2 or improvement of buildings, driveways, swimming
3 pools, porches, garages, roofs, siding, insulation,
4 solar energy systems, security systems, flooring,
5 patios, nondecorative fences, doors, lighting
6 systems, concrete walkways and windows.
7 (B) The placement of retaining walls, fountains
8 or drainage systems.
9 (vii) Emergency work pursuant to section 7 of the
10 act of December 17, 1968 (P.L.1224, No.387), known as the
11 Unfair Trade Practices and Consumer Protection Law.
12 (viii) The conversion of existing commercial
13 structures into residential or noncommercial structures.
14 "Home improvement contract." An agreement between a
15 contractor, subcontractor or salesperson and an owner for the
16 performance of a home improvement which includes all agreements
17 for labor, services and materials to be furnished and performed
18 under the contract.
19 "Owner."
20 (1) The term includes any of the following:
21 (i) An owner of a private residence, including any
22 person authorized by an owner to act on the owner's
23 behalf to order, contract for or purchase a home
24 improvement.
25 (ii) A person entitled to the performance of the
26 work of a contractor pursuant to a home improvement
27 contract.
28 (2) An owner of a private residence shall not be
29 required to reside in the residence to be deemed an owner
30 under this act.
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1 (3) A person who owns three or more private residences
2 in this Commonwealth shall not be deemed an owner except with
3 respect to the person's primary residence or the part of the
4 building which houses the primary residence of the owner AND <--
5 THOSE PRIVATE RESIDENCES THE PERSON USES FOR PERSONAL
6 RECREATIONAL PURPOSES.
7 "Person." An individual, partnership, limited partnership,
8 limited liability company, joint venture or corporation.
9 "Private residence." Any of the following:
10 (1) A single family dwelling.
11 (2) A multifamily dwelling consisting of not more than
12 two units.
13 (3) A single unit located within any multifamily
14 dwelling, including condominiums and co-op units.
15 "Special order material." Any material, product or equipment
16 that is not a stock item and must be specially ordered from the
17 factory or distributor and which is produced or processed for
18 the contractor for a specific home improvement contract. Special
19 order materials are not returnable by the contractor for a
20 refund or credit and have no usefulness for other home
21 improvement contracts because they are specially ordered for a
22 specific home improvement contract.
23 "Specifications." The plans, detailed drawings, lists of
24 materials, stated allowances or other methods customarily used
25 in the home improvement industry as a whole to describe with
26 particularity the work, workmanship, materials and quality of
27 materials for each home improvement.
28 "Tenant." A person who has entered into a lease or other <--
29 contractual arrangement with the owner.
30 Section 3. Registration of contractors.
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1 (a) General rule.--No person shall hold himself out as a
2 contractor nor shall a person perform any home improvement
3 without first registering with the bureau as provided for in
4 this act.
5 (b) Public access to registration information.--The bureau
6 shall maintain a toll-free telephone number from which a caller
7 can obtain information as to whether a contractor is registered
8 with the bureau pursuant to this act, as well as information
9 that may be obtained on the bureau's website.
10 (c) Confidentiality of personal information.--The bureau
11 shall create a policy for the disclosure of personal information
12 to the public. The bureau may not disclose to the public a
13 contractor's Social Security number or driver's license number., <--
14 DRIVER'S LICENSE NUMBER OR ANY CONFIDENTIAL INFORMATION <--
15 PROHIBITED BY LAW FROM BEING DISCLOSED, PROVIDED THAT A
16 CONTRACTOR'S HOME ADDRESS AND HOME TELEPHONE NUMBER SHALL BE
17 DISCLOSED ONLY IF IT IS ALSO USED AS THE CONTRACTOR'S BUSINESS
18 ADDRESS AND BUSINESS TELEPHONE NUMBER.
19 (d) Nongrant or renewal of license.--The Department of
20 Banking shall not grant or renew a license to any person
21 registered, or required to be registered, as a home improvement
22 contractor pursuant to any of the following:
23 (1) The act of December 12, 1980 (P.L.1179, No.219),
24 known as the Secondary Mortgage Loan Act.
25 (2) The act of December 22, 1989 (P.L.687, No.90), known
26 as the Mortgage Bankers and Brokers and Consumer Equity
27 Protection Act.
28 Section 4. Procedures for registration as a contractor.
29 (a) Application.--
30 (1) A person shall apply to the bureau in writing, or
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1 electronically via a secure Internet connection, if permitted
2 by the bureau, on a form provided by the bureau. The
3 application shall include the following information:
4 (i) For an individual applicant, the name, home <--
5 address, home telephone number and driver's license
6 identification number of the applicant or an
7 identification card issued by the Pennsylvania Department
8 of Transportation, as well as the individual's business
9 name, address and telephone number if different, and all
10 prior business names and addresses of home improvement
11 businesses.
12 (ii) For a partnership applicant, the name, home
13 address, home telephone number and driver's license
14 identification number of each partner as well as the
15 partnership name, address and telephone number.
16 (iii) For a corporation, limited liability company
17 or limited partnership applicant, the name, home address,
18 home telephone number and driver's license identification
19 number of each officer, each director or each individual
20 holding greater than a 5% stake in the business, as well
21 as the entity's business name, address and telephone
22 number.
23 (I) FOR AN INDIVIDUAL APPLICANT, ALL OF THE <--
24 FOLLOWING:
25 (A) NAME.
26 (B) DATE OF BIRTH.
27 (C) HOME ADDRESS AND HOME TELEPHONE NUMBER.
28 (D) DRIVER'S LICENSE NUMBER OR A COPY OF AN
29 IDENTIFICATION CARD ISSUED BY THE STATE IN WHICH THE
30 INDIVIDUAL RESIDES.
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1 (E) BUSINESS NAME, ADDRESS AND TELEPHONE NUMBER.
2 (F) FEDERAL EMPLOYER IDENTIFICATION NUMBER, IF
3 APPLICABLE.
4 (G) SOCIAL SECURITY NUMBER.
5 (H) ALL PRIOR BUSINESS NAMES AND ADDRESSES OF
6 HOME IMPROVEMENT BUSINESSES OPERATED BY THE
7 INDIVIDUAL.
8 (II) FOR A GENERAL PARTNERSHIP APPLICANT, ALL OF THE
9 FOLLOWING:
10 (A) NAME OF EACH PARTNER.
11 (B) DATE OF BIRTH OF EACH PARTNER.
12 (C) HOME ADDRESS AND HOME TELEPHONE NUMBER OF
13 EACH PARTNER.
14 (D) DRIVER'S LICENSE NUMBER OR A COPY OF AN
15 IDENTIFICATION CARD ISSUED BY THE STATE IN WHICH THE
16 PARTNER RESIDES, OF EACH PARTNER.
17 (E) PARTNERSHIP NAME, ADDRESS AND TELEPHONE
18 NUMBER.
19 (F) FEDERAL EMPLOYER IDENTIFICATION NUMBER, IF
20 APPLICABLE.
21 (G) SOCIAL SECURITY NUMBER OF EACH PARTNER.
22 (H) ALL PRIOR BUSINESS NAMES AND ADDRESSES OF
23 HOME IMPROVEMENT BUSINESSES OPERATED BY THE APPLICANT
24 AND EACH PARTNER.
25 (III) FOR A CORPORATION, LIMITED LIABILITY COMPANY
26 OR LIMITED PARTNERSHIP, ALL OF THE FOLLOWING:
27 (A) NAME OF EACH OFFICER, MANAGER AND GENERAL
28 PARTNER.
29 (B) DATE OF BIRTH OF EACH OFFICER, MANAGER AND
30 GENERAL PARTNER.
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1 (C) HOME ADDRESS AND HOME TELEPHONE NUMBER OF
2 EACH OFFICER, MANAGER AND GENERAL PARTNER.
3 (D) DRIVER'S LICENSE NUMBER OR A COPY OF AN
4 IDENTIFICATION CARD ISSUED BY THE STATE IN WHICH THE
5 INDIVIDUAL RESIDES, OF EACH OFFICER, MANAGER AND
6 GENERAL PARTNER.
7 (E) ENTITY'S NAME, ADDRESS AND TELEPHONE NUMBER.
8 (F) FEDERAL EMPLOYER IDENTIFICATION NUMBER, IF
9 APPLICABLE.
10 (G) SOCIAL SECURITY NUMBER OF EACH OFFICER,
11 MANAGER AND GENERAL PARTNER.
12 (H) THE NAME OF EACH DIRECTOR OR EACH INDIVIDUAL
13 HOLDING GREATER THAN A 5% EQUITY INTEREST IN THE
14 ENTITY.
15 (I) ALL PRIOR BUSINESS NAMES AND ADDRESSES OF
16 HOME IMPROVEMENT BUSINESSES OPERATED BY EACH OFFICER,
17 MANAGER AND GENERAL PARTNER.
18 (iv) For an out-of-State corporation, limited
19 liability or limited partnership, the name and address of
20 the entity's resident agent or registered office provider
21 within this Commonwealth and any registration number or
22 license number issued to the entity by its home state or
23 political subdivision of such other state, if applicable.
24 (v) For a joint venture applicant, the name, address
25 and telephone number of the joint venture, as well as the
26 name, address and telephone number of each party to the
27 joint venture. When the parties to a joint venture
28 include business entities, the information required from
29 such entities pursuant to paragraph (2) and subsection
30 (b) shall also be provided.
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1 (vi) A complete description of the nature of the
2 contracting business of the applicant.
3 (vii) A statement whether:
4 (A) The individual or individuals making
5 application, even if doing so as part of a business
6 entity application, has ever been convicted of a
7 criminal offense related to a home improvement
8 transaction, fraud, theft, a crime of deception or a
9 crime involving fraudulent business practices, as
10 well as a statement whether the applicant has ever
11 filed a petition in bankruptcy or within the last ten
12 years received a final civil judgment entered against
13 the applicant or businesses in which the applicant
14 held an interest that was related to a home
15 improvement transaction.
16 (B) The applicant's certificate or the <--
17 certificate of a business with which the person
18 making application held an interest has ever been
19 revoked or suspended pursuant to an order issued by a
20 court of competent jurisdiction in this Commonwealth
21 or any other state or political subdivision thereof
22 and, if so, the current status of the license.
23 (B) THE APPLICANT'S CERTIFICATE OR A SIMILAR <--
24 CERTIFICATE OR LICENSE ISSUED BY ANY OTHER STATE OR
25 POLITICAL SUBDIVISION THEREOF HAS EVER BEEN REVOKED
26 OR SUSPENDED PURSUANT TO AN ORDER ISSUED BY A COURT
27 OF COMPETENT JURISDICTION AND, IF SO, THE CURRENT
28 STATUS OF THE CERTIFICATE OR SIMILAR CERTIFICATE OR
29 LICENSE. THE STATEMENT REQUIRED BY THIS CLAUSE SHALL
30 INCLUDE THE SAME INFORMATION WITH RESPECT TO ANY
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1 OTHER BUSINESS IN WHICH THE PERSON MAKING APPLICATION
2 HAS OR HAS EVER HAD AN INTEREST.
3 (viii) Whether within the last ten years the
4 applicant has ever been suspended or debarred from
5 participating in any Federal, State or local, LOCAL OR <--
6 NOT-FOR-PROFIT program through which PUBLIC funding or <--
7 other assistance is provided to consumers OWNERS for home <--
8 improvements.
9 (ix) Proof of liability insurance covering personal
10 injury in an amount not less than $50,000 and insurance
11 covering property damage caused by the work of a home
12 improvement contractor in an amount not less than
13 $50,000.
14 (2) Information requested in paragraph (1)(i) through
15 (v) shall be for a ten-year period, prior to the time of
16 registration. The applicant shall provide information prior
17 to the last ten years or as further clarification of the
18 information provided, if the bureau requests such
19 information.
20 (b) Reporting of multiple registrations or licensures.--Any
21 registered contractor in this Commonwealth who is registered or
22 licensed as a home improvement contractor in any other state, or
23 political subdivision thereof, shall report this information to
24 the bureau on the initial registration and biennial registration
25 application. Any disciplinary action taken in such other
26 jurisdiction shall be reported to the bureau on the initial
27 registration application or, if such action occurred subsequent
28 to submission of an initial application, on the biennial
29 registration application or within 90 days of final disposition,
30 whichever is sooner. Multiple registrations or licensures shall
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1 be noted by the bureau on the contractor's registration, and
2 such state, or political subdivision thereof, shall be notified
3 by the bureau of any disciplinary actions taken against such
4 contractor in this Commonwealth.
5 Section 5. Application fees.
6 Each application for a certificate for a home improvement
7 contractor or renewal of that certificate shall be accompanied
8 by a fee of $50. After completion of the application and payment
9 of the fee, the bureau shall issue the home improvement
10 contractor a registration certificate identifying the name of
11 the individual contractor, name and address of the business and
12 a registration number. Renewals shall be on a biennial basis.
13 SECTION 6. PROOF OF REGISTRATION. <--
14 A CONTRACTOR SHALL INCLUDE ITS REGISTRATION NUMBER IN ALL
15 ADVERTISEMENTS, INCLUDING BUSINESS CARDS, DISTRIBUTED WITHIN
16 THIS COMMONWEALTH AND ON ALL CONTRACTS, ESTIMATES AND PROPOSALS
17 WITH OWNERS IN THIS COMMONWEALTH. THIS SECTION SHALL APPLY TO
18 ALL ADVERTISEMENTS, CONTRACTS, ESTIMATES AND PROPOSALS CREATED
19 BY A CONTRACTOR AFTER THE EFFECTIVE DATE OF THIS ACT.
20 Section 6 7. Home improvement contracts. <--
21 (a) Requirements.--No home improvement contract shall be
22 valid or enforceable against an owner unless it:
23 (1) Is in writing and legible and contains the home
24 improvement contractor registration number of the performing
25 contractor.
26 (2) Is signed by all of the following:
27 (i) The owner, his agent or other contracted party.
28 (ii) The contractor or a salesperson on behalf of a
29 contractor.
30 (3) Contains the entire agreement between the owner and
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1 the contractor, including attached copies of all required
2 notices.
3 (4) Contains the date of the transaction.
4 (5) Contains the name, address and telephone number of
5 the contractor. For the purposes of this paragraph, a post
6 office box number alone shall not be considered an address.
7 (6) Contains the approximate starting date and
8 completion date.
9 (7) Includes a description of the work to be performed,
10 the materials to be used and a set of specifications that
11 cannot be changed without a written change order signed by
12 the owner and contractor.
13 (8) Includes the total sales price due under the
14 contract.
15 (9) Includes the amount of any down payment plus any
16 amount advanced for the purchase of special order materials.
17 The amount of the down payment and the cost of the special
18 order materials must be listed separately.
19 (10) Includes the names, addresses and telephone numbers
20 of all subcontractors on the project known at the date of
21 signing the contract. For the purposes of this paragraph, a
22 post office box number alone shall not be considered an
23 address.
24 (11) Except as provided in section 12, agrees to
25 maintain liability insurance covering personal injury in an
26 amount not less than $50,000 and insurance covering property
27 damage caused by the work of a home improvement contractor in
28 an amount not less than $50,000 and identifies the current
29 amount of insurance coverage maintained at the time of
30 signing the contract.
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1 (12) INCLUDES THE TOLL-FREE TELEPHONE NUMBER UNDER <--
2 SECTION 3(B).
3 (13) INCLUDES A NOTICE OF THE RIGHT OF RESCISSION UNDER
4 SUBSECTION (B).
5 (b) Right of rescission.--An individual signing a home
6 improvement contract, except as provided in the emergency
7 provisions of section 7 of the act of December 17, 1968
8 (P.L.1224, No.387), known as the Unfair Trade Practices and
9 Consumer Protection Law, shall be permitted to rescind the
10 contract without penalty regardless of where the contract was
11 signed, within three business days of the date of signing.
12 (c) Copy to be provided.--A contractor or salesperson shall
13 provide and deliver to the owner, without charge, a completed
14 copy of the home improvement contract at the time the contract
15 is executed which shall contain all required notices.
16 (d) Arbitration clause.--Nothing in this act shall preclude
17 the court from setting aside an arbitration clause on any basis
18 permitted under Pennsylvania law. If the contract contains an
19 arbitration clause, it shall meet the following requirements or
20 be deemed void by the court upon motion of either party, filed
21 prior to the commencement of arbitration:
22 (1) The text of the clause must be in capital letters.
23 (2) The text shall be printed in 12-point boldface type
24 and the arbitration clause must appear on a separate page
25 from the rest of the contract.
26 (3) The clause shall contain a separate line for each of
27 the parties to indicate their assent to be bound thereby.
28 (4) The clause shall not be effective unless both
29 parties have assented as evidenced by signature and date,
30 which shall be the date on which the contract was executed.
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1 (5) The clause shall state clearly whether the decision
2 of the arbitration is binding on the parties or may be
3 appealed to the court of common pleas.
4 (6) The clause shall state whether the facts of the
5 dispute, related documents and the decision are confidential.
6 (e) Voidable clauses.--If a home improvement contract
7 contains any of the following clauses, the home improvement
8 contract shall be voidable BY THE OWNER: <--
9 (1) A hold harmless clause.
10 (2) A waiver of Federal, State or local health, life,
11 safety or building code requirements.
12 (3) A confession of judgment clause.
13 (4) A waiver of any right to a jury trial in any action
14 brought by or against the owner.
15 (5) (Reserved).
16 (6) An assignment of or order for payment of wages or
17 other compensation for services.
18 (7) A provision by which the owner agrees not to assert
19 any claim or defense arising out of the contract.
20 (8) A provision that the contractor shall be awarded
21 attorney fees and costs.
22 (9) A clause by which the owner relieves the contractor
23 from liability for acts committed by the contractor or the
24 contractor's agents in the collection of any payments or in
25 the repossession of any goods.
26 (10) A waiver of any rights provided under this act.
27 (11) A provision providing for the automatic or
28 recurring renewal of any provisions of the agreement, unless:
29 (i) the contract establishes a procedure by which
30 the consumer OWNER can choose not to renew the provision <--
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1 or provisions, thereby avoiding any new fees or charges,
2 by providing written notice to the contractor via first
3 class mail postmarked no later than three business days
4 prior to any renewal;
5 (ii) such procedure is clearly and conspicuously
6 disclosed in the agreement; and
7 (iii) the contract includes a provision requiring
8 the contractor to notify the consumer OWNER of any <--
9 automatic or recurring renewal, and the consumer's <--
10 OWNER'S option to cancel such renewal, by mail not <--
11 earlier than 20 days and not later than ten days prior to
12 the date of any such renewal.
13 (f) Home improvement retailer contracts.--A home improvement
14 retailer having a net worth of more than $50,000,000 or an
15 employee of that retailer that does not perform home
16 improvements shall comply with the provisions of this
17 subsection. No home improvement contract issued by a home
18 improvement retailer having a net worth of more than $50,000,000
19 or an employee of that retailer shall be valid or enforceable
20 against an owner unless the contract:
21 (1) Is in writing and legible and contains all of the
22 following:
23 (i) The name, address and telephone number of the
24 retailer.
25 (ii) The name of the person signing the contract on
26 behalf of the retailer and the person's position with the
27 retailer or the person's authority to sign the contract.
28 (iii) The signature of the owner, the owner's agent
29 or other contracted party.
30 (2) Complies with subsections (a)(3), (4), (6), (7), (8)
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1 and (9), (b), (c), (d) and (e).
2 (g) Contractor's recovery right.--Nothing in this section
3 shall preclude a contractor who has complied with subsection (a)
4 from the recovery of payment for work performed based on the
5 reasonable value of services which were requested by the owner
6 if a court determines that it would be inequitable to deny such
7 recovery.
8 Section 7 8. Home improvement fraud. <--
9 (a) Offense defined.--A person commits the offense of home
10 improvement fraud if, with intent to defraud or injure anyone or
11 with knowledge that he is facilitating a fraud or injury to be
12 perpetrated by anyone, the actor:
13 (1) makes a false or misleading statement to induce,
14 encourage or solicit a person to enter into any written or
15 oral agreement for home improvement services or provision of
16 home improvement materials or to justify an increase in the
17 previously agreed upon price;
18 (2) receives any advance payment for performing home
19 improvement services or providing home improvement materials
20 and fails to perform or provide such services or materials
21 when specified in the contract taking into account any force
22 majeure or unforeseen labor strike that would extend the time
23 frame or unless extended by agreement with the consumer OWNER <--
24 and fails to return the payment received for such services or
25 materials which were not provided by that date;
26 (3) while soliciting a person to enter into an agreement
27 for home improvement services or materials, misrepresents or
28 conceals the contractor's or salesperson's real name, the
29 name of the contractor's business, the contractor's business
30 address or any other identifying information;
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1 (4) damages a person's property with the intent to
2 induce, encourage or solicit that person to enter into a
3 written or oral agreement for performing home improvement
4 services or providing home improvement materials;
5 (5) misrepresents himself or another as an employee or
6 agent of the Federal, Commonwealth or municipal government,
7 any other governmental unit or any public utility, with the
8 intent to cause a person to enter into any agreement for
9 performing home improvement services or providing home
10 improvement materials;
11 (6) misrepresents an item as a special order material or
12 to misrepresent the cost of the special order material;
13 (7) alters a home improvement agreement, mortgage,
14 promissory note or other document incident to performing or
15 selling a home improvement without the consent of the
16 consumer; or
17 (8) directly or indirectly publishes a false or
18 deceptive advertisement in violation of State law governing
19 advertising about home improvement.
20 (b) Prosecution.--Prosecutions under this section shall not
21 bar prosecution or conviction for any other crimes.
22 (c) Grading.--
23 (1) A violation of subsection (a)(1), (3), (4), (5), (6)
24 or (7), (7) OR (8) constitutes: <--
25 (i) a felony of the third degree if the amount
26 involved exceeds $2,000; or
27 (ii) a misdemeanor of the first degree if the amount
28 involved is $2,000 or less or if the amount involved
29 cannot be satisfactorily ascertained.
30 (2) A violation of subsection (a)(2) constitutes:
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1 (i) a felony of the third degree if the amount of
2 the payment retained exceeds $2,000; or
3 (ii) a misdemeanor of the first degree if the amount
4 of the payment retained is $2,000 or less or if the
5 amount of the payment cannot be satisfactorily
6 ascertained.
7 (3) Amounts involved pursuant to one scheme or course of
8 conduct, whether involving one or more victims, may be
9 aggregated in determining the grade of the offense pursuant
10 to subsection (a).
11 (4) Where a person commits an offense under subsection
12 (a) and the victim is 60 years of age or older, the grading
13 of the offense shall be one grade higher than specified in
14 paragraphs (1), (2) and (3). This paragraph shall not be
15 applicable to persons whose sentence would be enhanced
16 pursuant to paragraph (5).
17 (5) Notwithstanding any other provisions of this
18 section, where a person commits a second or subsequent
19 offense described in subsection (a), the offense will
20 constitute a felony of the second degree regardless of the
21 amount of money involved. For this paragraph to be
22 applicable, the second or subsequent offense must have
23 occurred after the first conviction. Paragraph (4) shall not
24 be applicable to persons whose sentences would be enhanced
25 pursuant to this paragraph.
26 (6) In addition to any other penalty imposed by this
27 act, the court may revoke or suspend the certificate of <--
28 registration issued under section 3. At the time of
29 sentencing, the court shall state the reasons for such
30 revocation or suspension. A person whose registration has
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1 been revoked or suspended may petition the court of original
2 jurisdiction for reinstatement after a period of five years
3 from the date of revocation or suspension, or as specified in
4 the court's order. THE ADMINISTRATIVE OFFICE OF PENNSYLVANIA <--
5 COURTS SHALL REPORT TO THE BUREAU ANY SUSPENSION OR
6 REVOCATION OF A CERTIFICATE ORDERED BY A COURT.
7 (d) Jurisdiction.--
8 (1) The district attorneys of the several counties shall
9 have the authority to investigate and to institute criminal
10 proceedings for any violation of this section.
11 (2) In addition to the authority conferred upon the
12 Attorney General by the act of October 15, 1980 (P.L.950,
13 No.164), known as the Commonwealth Attorneys Act, the
14 Attorney General shall have the authority to investigate and
15 institute criminal proceedings for any violation of this
16 section or any series of such violations involving more than
17 one county of this Commonwealth or involving any county of
18 this Commonwealth and another state. No person charged with a
19 violation of this section by the Attorney General shall have
20 standing to challenge the authority of the Attorney General
21 to investigate or prosecute the case, and, if any such
22 challenge is made, the challenge shall be dismissed and no
23 relief shall be available in the courts of this Commonwealth
24 to the person making the challenge.
25 Section 8 9. Prohibited acts. <--
26 No person shall:
27 (1) Fail to register as required by this act.
28 (2) Fail to refund the amount paid for a home
29 improvement within ten days of either the acceptance and
30 execution of a return receipt for certified mail containing a
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1 written request for a refund or the refusal to accept the
2 certified mail sent to the contractor's last known address if
3 all of the following apply:
4 (i) No substantial portion of the contracted work
5 has been performed at the time of the request.
6 (ii) More than 45 days have elapsed since the
7 starting date specified in the written contract.
8 (3) Accept a municipal certificate of occupancy or other
9 proof that performance of a home improvement contract is
10 complete or satisfactorily concluded with knowledge that the
11 document or proof is false and the performance is incomplete.
12 (4) Utter, offer or use a completion certificate or
13 other proof that a home improvement contract is complete or
14 satisfactorily concluded when the person knows or has reason
15 to know that the document or proof is false and is made to
16 accomplish any of the following:
17 (i) Make or accept an assignment or negotiation of
18 the right to receive payment under a home improvement
19 contract.
20 (ii) Get or grant credit or a loan on security of
21 the right to receive payment under a home improvement
22 contract.
23 (5) Abandon or fail to perform, without justification,
24 any home improvement contract or project engaged in or
25 undertaken by a contractor. For the purposes of this
26 paragraph, the term "justification" shall include nonpayment
27 by the owner as required under the contract or any other
28 violation of the contract by the owner.
29 (6) Deviate from or disregard plans or specifications,
30 in any material respect, without a written change order dated
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1 and signed by both the contractor and owner, which contains
2 the accompanying price changes for each deviation.
3 (7) Prepare, arrange, accept or participate in the
4 financing of a home improvement contract with knowledge that
5 the home improvement contract states a greater monetary
6 obligation than the actual price of the home improvement.
7 (8) Advertise or offer, by any means, to perform a home
8 improvement if the person does not intend to do any of the
9 following:
10 (i) Accept a home improvement contract.
11 (ii) Perform the home improvement.
12 (iii) Charge for the home improvement at the price
13 advertised or offered.
14 (9) Demand or receive any payment for a home improvement
15 before the home improvement contract is signed.
16 (10) For a home improvement contract in which the total
17 price is more than $1,000, receive a deposit in excess of:
18 (i) one-third of the home improvement contract
19 price; or
20 (ii) one-third of the home improvement contract
21 price plus the cost of special order materials that have
22 been ordered.
23 (11) While acting as a salesperson, fail to account for
24 or remit to the contractor whom the salesperson represents a
25 payment received in connection with a home improvement.
26 (12) SUBSEQUENT TO ENTERING INTO AN AGREEMENT FOR HOME <--
27 IMPROVEMENT SERVICES OR MATERIALS, CHANGES THE NAME OF THE
28 CONTRACTOR'S BUSINESS, LIABILITY INSURANCE INFORMATION, THE
29 CONTRACTOR'S BUSINESS ADDRESS OR ANY OTHER IDENTIFYING
30 INFORMATION IN A FRAUDULENT OR DECEPTIVE MANNER LIKELY TO
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1 CAUSE CONFUSION OR MISUNDERSTANDING WITHOUT ADVISING THE
2 OWNER IN WRITING WITHIN TEN DAYS FOLLOWING ANY SUCH CHANGE.
3 Section 9 10. Unfair Trade Practices and Consumer Protection <--
4 Law.
5 A violation of any of the provisions of this act shall be
6 deemed a violation of the act of December 17, 1968 (P.L.1224,
7 No.387), known as the Unfair Trade Practices and Consumer
8 Protection Law. Nothing in this act shall preclude a consumer AN <--
9 OWNER from exercising any right provided under the Unfair Trade
10 Practices and Consumer Protection Law.
11 Section 10 11. Regulations. <--
12 The bureau may adopt rules and regulations necessary to carry
13 out the provisions of this act.
14 Section 11 12. Preemption of local registration. <--
15 Registration under this act shall preclude any requirement of
16 payment of a fee or registration or licensing of any home
17 improvement contractor by any political subdivision. Political
18 subdivisions shall be permitted to require building permits and
19 local enforcement of the building code for that political
20 subdivision, for which a reasonable fee may be charged. This
21 provision does not affect a municipality's responsibilities or
22 authority under the act of November 10, 1999 (P.L.491, No.45),
23 known as the Pennsylvania Construction Code Act, or the
24 requirements under section 302(e) of the act of June 2, 1915
25 (P.L.736, No.338), known as the Workers' Compensation Act,
26 regarding workers' compensation. This provision does not affect
27 existing licensing standards in effect on the effective date of
28 this act, with respect to electricians and plumbers and other
29 trades, where licensing is conditioned on requirements of
30 testing or possession of certificates obtained through specific
20070S0100B2428 - 23 -
1 training in electricity or plumbing or other trades. This
2 provision does not affect LOCAL REGULATIONS OR standards for <--
3 liability insurance adopted by a municipality prior to January
4 1, 2006, and which are in effect on the effective date of this
5 section.
6 Section 12 13. Exemptions. <--
7 This act shall not apply to any of the following persons or
8 organizations:
9 (1) The Commonwealth, or any of its political
10 subdivisions.
11 (2) The Federal Government.
12 Section 18. Applicability. <--
13 This act shall not apply to local regulations, relating to
14 liability insurance coverage for contractors which were adopted
15 by a municipality prior to January 1, 2006, and which are in
16 effect on the effective date of this section.
17 Section 19 18. Repeal. <--
18 All acts and parts of acts are repealed insofar as they are
19 inconsistent with this act.
20 Section 20 19. Effective date. <--
21 This act shall take effect in 180 days.
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