PRINTER'S NO. 292
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
297
Session of
2017
INTRODUCED BY TOMLINSON, GREENLEAF, BROWNE, COSTA, SCHWANK,
HAYWOOD, YUDICHAK, MENSCH, RAFFERTY AND VULAKOVICH,
FEBRUARY 6, 2017
REFERRED TO CONSUMER PROTECTION AND PROFESSIONAL LICENSURE,
FEBRUARY 6, 2017
AN ACT
Amending the act of October 17, 2008 (P.L.1645, No.132),
entitled "An act providing for the regulation of home
improvement contracts and for the registration of certain
contractors; prohibiting certain acts; and providing for
penalties," further providing for definitions, for
registration of contractors, for home improvement fraud and
for prohibited acts.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 2 of the act of October 17, 2008
(P.L.1645, No.132), known as the Home Improvement Consumer
Protection Act, is amended by adding definitions to read:
Section 2. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
* * *
"Appeals officer." The appeals officer designated under
section 3(g)(1).
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"Applicant." A person seeking registration under this act.
* * *
Section 2. Section 3 of the act is amended by adding
subsections to read:
Section 3. Registration of contractors.
* * *
(e) Nonissuance, suspension or revocation.--The bureau may,
in the bureau's discretion, refuse to register a person or
suspend or revoke a registration issued to a person upon proof
that a person has:
(1) obtained a registration through fraud, deception,
misrepresentation or providing false, misleading, inaccurate
or incomplete information in an application for registration
or application to renew or update a registration to the
bureau under this act;
(2) engaged in the use or employment of dishonesty,
fraud, deception, misrepresentation, false promise or false
pretense to encourage or solicit a person to enter into a
written or oral agreement for home improvements;
(3) failed to perform or complete home improvements for
which compensation has been accepted;
(4) failed to perform home improvements in a workmanlike
manner or failed to meet the standard required for the home
improvements;
(5) been convicted of a crime relating to a home
improvement transaction involving theft, deception, fraud,
misrepresentation or moral turpitude or a crime adverse to
the provisions of this act. As used in this paragraph, the
term "convicted" shall include a judgment, an admission of
guilt, a plea of nolo contendere or the equivalent, whether
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or not a sentence has been imposed;
(6) received a final civil judgment entered against the
person that was related to a home improvement transaction;
(7) had a suspended or revoked registration as a
contractor imposed by any other state agency outside this
Commonwealth for reasons similar to those listed under this
subsection; or
(8) violated or failed to comply with the provisions of
this act.
(f) Notice.--Upon a determination by the bureau of
nonissuance, suspension or revocation of a registration under
subsection (e), the bureau shall notify the applicant in writing
at the address provided on the registration application of the
determination. The notice shall indicate the reason for the
determination and shall inform the applicant of the procedure to
appeal the determination.
(g) Filing of appeal to the appeals officer.--
(1) The bureau shall designate an appeals officer who
shall review the determination of nonissuance, suspension or
revocation of a registration upon an appeal filed by an
applicant.
(2) If the bureau makes a determination of nonissuance,
suspension or revocation of a registration of an applicant
under this act, the applicant may file an appeal with the
appeals officer within 15 business days of the mailing date
of the notice under subsection (f). The appeal shall state
the reasons for allowing the applicant to be a registered
contractor under this act.
(3) The appeals officer:
(i) Shall set a schedule for the applicant and for
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the bureau to submit supporting documentation.
(ii) Shall review all information provided by the
parties to the appeal.
(iii) May hold a hearing which shall be transcribed.
The decision to hold a hearing may not be appealed. The
appeals officer may admit testimony, evidence and
documents into evidence that are reasonably probative and
relevant to the issue in dispute, as determined by the
appeals officer. The appeals officer may limit the nature
and extent of evidence found to be cumulative.
(iv) Shall consider the the following factors in
making a determination under this section:
(A) The nature and responsibility of the
position which the applicant would hold.
(B) The date, nature, seriousness and
circumstances surrounding the reasons for
nonissuance, suspension or revocation of the
registration under this act.
(C) Whether the reasons for nonissuance,
suspension or revocation of the registration under
this act were isolated or repeated incidents.
(D) Evidence of rehabilitation, including good
conduct in prison or in the community, counseling or
psychiatric treatment received, additional academic
or vocational schooling, successful participation in
correctional work release programs or the
recommendation of people who have supervised the
applicant.
(v) Shall make a final determination which shall be
mailed to the applicant within 30 days of receipt of the
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appeal in accordance with the following:
(A) The determination shall be a final order and
the appeals officer shall provide a written
explanation to both the applicant and the bureau.
(B) If the final determination is not mailed
within 30 days of the receipt of the appeal, the
appeal shall be deemed denied.
(h) Filing of appeal to Commonwealth Court.--
(1) Within 30 days of the mailing date of the final
determination by the appeals officer, the applicant or the
bureau may file a petition for review or another document as
may be required by rule of the Commonwealth Court.
(2) A petition for review under this section shall stay
the registration until a decision by the Commonwealth Court
under this section has been issued.
(3) The bureau, the appeals officer and the applicant
shall be served notice of actions commenced under this
subsection and shall have an opportunity to respond in
accordance with applicable court rules.
(4) The record before the Commonwealth Court shall
consist of the documentation produced by the bureau to the
appeals officer, the request for appeal, all documentation
submitted in support of the applicant to the appeals
officer, the hearing transcript and the final determination
of the appeals officer.
(5) The Commonwealth Court may award reasonable attorney
fees and costs of litigation or an appropriate portion of the
fees and costs to the bureau or to the applicant if the court
finds that the appeal to the court was frivolous. Nothing in
this subsection shall prohibit the Commonwealth Court from
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imposing penalties and costs in accordance with the
applicable rules of court.
(6) The decision of the Commonwealth Court shall contain
findings of facts and conclusions of law based upon the
evidence as a whole. Decisions shall clearly and
conspicuously explain the rational for the decision.
Section 3. Section 8(a) and (c)(1) of the act are amended to
read:
Section 8. Home improvement fraud.
(a) Offense defined.--A person commits the offense of home
improvement fraud if, with intent to defraud or injure anyone or
with knowledge that he is facilitating a fraud or injury to be
perpetrated by anyone, the actor:
(1) makes a false or misleading statement to induce,
encourage or solicit a person to enter into any written or
oral agreement for home improvement services or provision of
home improvement materials or to justify an increase in the
previously agreed upon price;
(2) receives any advance payment for performing home
improvement services or providing home improvement materials
and fails to perform or provide such services or materials
when specified in the contract taking into account any force
majeure or unforeseen labor strike that would extend the time
frame or unless extended by agreement with the owner and
fails to return the payment received for such services or
materials which were not provided by that date;
(3) while soliciting a person to enter into an agreement
for home improvement services or materials, misrepresents or
conceals the contractor's or salesperson's real name, the
name of the contractor's business, the contractor's business
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address or any other identifying information;
(4) damages a person's property with the intent to
induce, encourage or solicit that person to enter into a
written or oral agreement for performing home improvement
services or providing home improvement materials;
(5) misrepresents himself or another as an employee or
agent of the Federal, Commonwealth or municipal government,
any other governmental unit or any public utility with the
intent to cause a person to enter into any agreement for
performing home improvement services or providing home
improvement materials;
(6) misrepresents an item as a special order material or
to misrepresent the cost of the special order material;
(7) alters a home improvement agreement, mortgage,
promissory note or other document incident to performing or
selling a home improvement without the consent of the
consumer; [or]
(8) directly or indirectly publishes a false or
deceptive advertisement in violation of State law governing
advertising about home improvement[.]; or
(9) enters into a home improvement agreement, whether or
not the agreement is written or oral, without first
registering with the bureau as provided for under this act.
* * *
(c) Grading.--
(1) A violation of subsection (a)(1), (3), (4), (5),
(6), (7) [or], (8) or (9) constitutes:
(i) a felony of the third degree if the amount
involved exceeds $2,000; or
(ii) a misdemeanor of the first degree if the amount
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involved is $2,000 or less or if the amount involved
cannot be satisfactorily ascertained.
* * *
Section 4. Section 9 of the act is amended by adding a
paragraph to read:
Section 9. Prohibited acts.
No person shall:
* * *
(13) Provide false or incomplete information on a
registration application to the bureau.
Section 5. The act is amended by adding sections to read:
Section 14. Construction.
Nothing in this act shall be construed to limit the bureau's
ability to bring an action in the name of the Commonwealth under
the act of December 17, 1968 (P.L.1224, No.387), known as the
Unfair Trade Practices and Consumer Protection Law.
Section 15. Applicability of 2 Pa.C.S..
The provisions of 2 Pa.C.S. (relating to administrative law
and procedure) may not apply to this act unless specifically
adopted by regulation or policy.
Section 6. This act shall take effect in 60 days.
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