2012 -- S 2735

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LC01560

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO BUSINESSES AND PROFESSIONS - UNDERGROUND UTILITY

CONTRACTORS

     Introduced By: Senator William A. Walaska

     Date Introduced: March 06, 2012

     Referred To: Senate Labor

It is enacted by the General Assembly as follows:

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     SECTION 1. Title 5 of the General Laws entitled "BUSINESSES AND PROFESSIONS"

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is hereby amended by adding thereto the following chapter:

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     CHAPTER 20.1

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UNDERGROUND UTILITY CONTRACTORS

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     5-20.1-1. Purpose. -- The purpose of this chapter is to establish provisions, qualifications

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and procedures for licensing underground utility contractors engaged in the laying or repairing of

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underground utilities.

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     5-20.1-2. Definitions. - The following words and phrases shall have the meanings stated

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herein when used in this chapter:

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     (1) “Board” means the board of underground utility contractor licensing.

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     (2) “Department” means the department of labor and training.

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     (3) “Director” means the director of the department of labor and training.

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     (4) “Underground utility” means the installation, repair, alteration or replacement of

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underground utilities, sewer lines, storm drainage lines or water lines, mains and laterals, laying

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drains and related services outside of buildings, making connections with public and/or private

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underground utilities provided that such work is to be done between the main, lateral, related

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services and/or appurtenances to within five feet (5’) of the outer wall of a building or structure

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and specifically excluding gas and telecommunications work.

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     (5) “Underground utility contractor” means any corporation, association, sole

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proprietorship, firm, partnership, limited liability corporation, limited liability partnership, or

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other business organization which is engaged in the installation, repair, alteration or replacement

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of underground utilities outside of buildings, making connections with public and/or private

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underground utilities provided that such work is to be done between the main, laterals, services

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and/or appurtenances to within five feet (5’) of the outer walls of a building or structure. The term

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“underground utility contractor” shall include any agent, servant and/or employee of a licensed

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underground utility contractor. The term “underground utility contractor” does not include

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individuals licensed under chapter 20 of title 5, entitled “plumbers and irrigators.”

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     5-20.1-3. License required. — (a) It is unlawful for any underground utility contractor to

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engage in the installation, repair, alteration or replacement of an underground utility as defined in

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this chapter without a valid license issued by the director.

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     (b) Any person licensed as a master plumber under the provisions of chapter 20 of title 5

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shall be exempt from the requirement to obtain both an underground utility contractor’s license as

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required by this chapter and an installers license as required by chapter 56 of title 5 provided that

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master plumbers are required to comply with the provisions of sections 5-20.1-10 and 5-56-7.

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     (c) Any public utility or agent thereof regulated by the public utilities commission or the

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division of public utilities and carriers shall be exempt from the provisions of this chapter.

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     5-20.1-4. Conditions for obtaining an underground utility contractor’s license. — (a)

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To obtain a license under this chapter an underground utility contractor must submit to the

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director an application for an underground utility contractor’s license completed in its entirety,

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together with a fee of two hundred dollars ($200). The application must also comply with the

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following requirements:

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     (1) The applicant must have demonstrated to the board that the underground utility

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contractor is capable of installing, repairing, altering or replacing sewer lines, storm drainage

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lines or waterlines and services in accordance with approved plans and specifications;

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     (2) The applicant must obtain a passing grade on a written examination given by the

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director, intended to demonstrate an understanding of the rules and regulations, and ability to read

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and interpret approved plans and specifications. Any applicant who fails an examination for a

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license is permitted to take further examinations upon payment of the prescribed fee for each

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examination. The department shall provide and conduct examinations at least three (3) times each

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year. All examinations shall be conducted at places designated by the department within the state;

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     (3) The board shall approve or deny applications for an underground utility contractor’s

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license as soon after the examination as is practicable and shall submit that approval or denial to

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the director. Each applicant who has successfully passed the examination and has had an

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application approved for a license as an underground utility contractor shall have issued and

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mailed to him/her, by the department, a certificate of license specifying that applicant as an

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underground utility contractor; and

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     (4) Any contractor licensed in accordance with this chapter shall not be required to obtain

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another license or to take any other test by any other municipality in order to perform

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underground utility work.

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     (b) Beginning July 1, 2013, all fines and fees collected pursuant to this chapter shall be

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deposited into a restricted receipt account for the exclusive use of the director of the department

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of labor and training in carrying out the functions and duties conferred upon by this chapter.

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     5-20.1-5. Expiration and renewal of licenses. — All licenses of underground utility

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contractors issued by the department in cooperation with the board shall expire every two (2)

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years on the anniversary date of the license’s issuance and may be renewed on or before that date

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for a period of two (2) years, upon payment of two hundred dollars ($200).

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     5-20.1-6. Duties of director. — The director of the department of labor and training

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shall:

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     (1) Prepare, provide and conduct examinations in cooperation with the board of

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underground utility contractor licensing;

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     (2) Prepare license certificates and issue them in conformity with this chapter;

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     (3) Maintain an up-to-date record specifying the names and addresses of licensed

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underground utility contractors of this state. Such record shall include the dates of issuance of

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licenses and shall be open to public inspection;

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     (4) Maintain an up-to-date record of any complaints filed with the department, the nature

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of those complaints, date of complaints and any final orders made based on the complaints; and

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     (5) Forward copies of all complaints to the board for review and determination of action

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to be taken in accordance with this chapter.

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     5-20.1- 7. Duties of the board of underground utility contractor licensing. — (a) There

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shall be in the department of labor and training, a board of underground utility contractor

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licensing, responsible for the licensing and regulating of underground utility contractors. The

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board of underground utility contractor licensing shall:

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     (1) Assist the director in the creation of an examination to be administered to applicants

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seeking an underground utility contractor license;

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     (2) Approve applications for licensure of underground utility contractors; and

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     (3) Review all complaints filed with the department, and make determinations as to the

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absence or presence of violations of this chapter

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     (b) The board shall consist of five (5) members to be appointed by the governor with

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advice and consent of the senate for a term of three (3) years:

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     (1) Three (3) members who shall possess a state sewer/drainlayers license; provided

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however, that the initial board shall have three (3) members that possess a Rhode Island

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municipal sewer/drainlayer license;

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     (2) The administrator of the division of occupational safety;

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     (3) The director of the department of labor and training or his/her designee.

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     (c) On or before January 31, the governor shall annually appoint a member or members

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of the board to succeed the member or members whose term is at that time expiring who shall

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serve for three (3) years or until his or her successor is elected and qualified. Any vacancy that

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occurs in the board from any cause shall be filled by the governor for the remainder of the

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unexpired term.

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     5-20.1-8. Licensing of underground utility contractors granted without examination.

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— (a) After enactment of this chapter and at any time prior to the expiration of six (6) months

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following enactment of this section, the department shall, without examination, upon payment of

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the fees required in this chapter and approval of the issuance of the license by the board, issue

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through the department of labor and training, a license to any applicant who shall present

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satisfactory evidence as described in subsection (b) of this section that the applicant has the

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qualification for issuance of an underground utility contractor license. Thereafter, in order to

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qualify for an underground utility contractor license after the initial “grandfather” window, said

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licensee may renew the license pursuant to section 5-20.1-5.

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     (b) Satisfactory evidence shall be any two (2) of the following that is applicable:

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     (1) The owner(s) of a business entity as defined herein in subdivision 5-20.1-2(1) must

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have been actively engaged as a sewer/drainlayer water installer for the previous three (3) years;

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     (2) Notarized confirmation by three (3) sewer/drain layer installers of his, her or its active

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standing as a sewer/drain layer installer; or

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     (3) The contractor or licensee shall provide satisfactory evidence that they have been

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previously granted a license within the past three (3) years as a sewer/drain layer installer by three

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(3) or more Rhode Island cities or towns granting or issuing such a license.

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     5-20.1-9. Responsibilities performance and conduct. — A licensed underground utility

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contractor shall perform all work in compliance with the plans and specifications approved by the

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local municipality or other appropriate authority having jurisdiction over the utility and/or work

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to be performed.

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     5-20.1-10. Insurance required of underground utility contractors. — (a) Throughout

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the period of licensure, the contractor shall have in effect public liability and property damage

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insurance covering the work of that contractor which shall be subject to this chapter in not less

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than the following amount: one million dollars ($1,000,000) combined single limit, bodily injury

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and property damage.

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     (b) In addition, all contractors shall be in compliance with workers’ compensation

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insurance as required under chapter 29 of title 28. Failure to maintain insurance shall not preclude

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claims from being filed against a contractor.

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     (c) The contractor shall provide satisfactory evidence to the department of labor and

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training at the time of registration and renewal that the insurance required by subsections (a) and

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(b) of this section has been procured and is in effect. Failure to maintain insurance shall invalidate

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registration and may result in a fine to the registrant.

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     5-20.1-l1. Bond requirement. — Every applicant for a certificate of license as an

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underground utility contractor to carry on the business of installing, repairing or servicing

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alteration or replacement of sewer lines, storm drainage lines or water lines and related services in

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accordance with this chapter, shall furnish a bond, satisfactory to the board, in the sum of twenty

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thousand dollars ($20,000), conditioned substantially that the applicant indemnifies and holds

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harmless the several cities and towns of this state and their officers from all suits and actions of

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every name and description brought against any of those cities or towns or any of their officer or

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officers, for or on account of any injuries or damages received or sustained by any person in

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consequence of, or resulting from, any work performed by the applicant, or its employees,

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servants or agents, or of or from any improper materials used in the work, or of or from any

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negligence in guarding the work, or of or from any act or omission of the applicant, or its

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employees, servants or agents.

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     5-20.1-12. License not transferable or assignable. — Underground utility contractor’s

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licenses are not transferable or assignable and automatically become invalid upon a change of

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ownership or upon suspension or revocation of a license.

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     5-20.1-13. Denial suspension and revocation of licenses. — (a) The board of

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underground utility contractor licensing of the department of labor and training shall suspend or

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revoke the license of any underground utility contractor after a hearing when the weight of the

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evidence establishes any one or more of the following specific violations:

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     (1) Obtaining or conspiring with others to obtain a license by inducing the issuance of

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that license in consideration of the payment of money or any other thing of value, or by and

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through a willful or fraudulent misrepresentation of facts in the procurement of a license;

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     (2) Gross negligence or incompetence in the performance of any licensed work in

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accordance with any underground utility ordinance, or rules of any city or town, or any law of

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this state regulating the conduct of sewer drain and water work;

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     (3) Willfully and fraudulently loaning its license to any other underground utility

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contractor for the purpose of permitting that underground utility contractor to engage in any

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underground utility work in violation of the provisions of this chapter;

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     (4) Willfully violating any of the provisions of this chapter.

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     (b) When an application for a license is denied, a hearing shall be granted provided the

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aggrieved applicant requests a hearing in writing within ten (10) days of the denial with board.

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     5-20.1-14. Procedure for revocation of license. — (a) No proceeding to revoke a

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license, as provided in this section, shall be instituted unless filed with the board within one year

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immediately following the date or dates of violation.

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     (b) No license of an underground utility contractor shall be revoked or cancelled until

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after a full and impartial hearing is completed as provided in this section.

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     (c) No hearing for the purpose of revoking any license of an underground utility

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contractor shall be held unless there is first placed on file with the department a verified

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complaint, in writing, reciting in the complaint with reasonable particularity a statement of facts

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which if proved would be sufficient to constitute a violation of one or more of the specifications

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for revocation of license as prescribed in this chapter.

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     (d) Upon the filing of a verified complaint as provided in this section, the department

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shall promptly set a date for a hearing of the charges of the complaint. The department shall

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promptly, by registered or certified mail, forward to the licensee charged in the complaint a true

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and correct copy of the complaint and notification of the time and place when and where a

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hearing of those charges is to be held.

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      (e) At the time and place fixed in the notification, the department shall proceed to a

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hearing of the charges specified in the complaint. No hearing upon the charges of the complaint

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shall be held unless the records of the department contain evidence that the licensee charged in

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the complaint has been served with a copy of the complaint and notification at least twenty (20)

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days prior to the date of the hearing; provided, that the appearance of the charged licensee, either

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in its own behalf or by counsel, constitutes proof that sufficient notice of the hearing was served.

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     (f) A complaining party, individually or by counsel, may aid in the presentation of

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evidence toward sustaining the complaint. Ample opportunity shall be accorded for a hearing of

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all evidence and statement of counsel either in support of or against the charges of the complaint.

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Upon good cause shown, the date of the hearing on the complaint may be continued provided the

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licensee and other interested parties are reasonably notified about the date of continuance.

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     5-20.1-15. Subpoena of witness. — The board shall have the power to subpoena and

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bring before it, any witness to take testimony, either orally or by deposition, or both, in any

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proceeding authorized by law.

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     5-20.1-16. Administration of oaths. -- The board shall have the power to administer

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oaths to witnesses at a hearing which the board is authorized by law to conduct, and may

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administer other oaths authorized or administered by the board.

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     5-20.1-17. Recommendations of board — Order - Rehearing — Review. -- Any

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applicant or licensee aggrieved by any decision or ruling of the board may appeal that decision to

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the board which shall review the decision or ruling. Upon review, the board shall order that the

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license of the licensee charged in the complaint be revoked or the complaint shall be dismissed. A

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copy of the order shall be immediately served upon the licensee either personally or by registered

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or certified mail. The order of the board is final unless the charged licensee, the division or

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complainant, within twenty (20) days after receipt of that order, files with the director his or her

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motion, in writing, for a review of the order by the director, specifying in the motion the points

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and reasons for the order. The filing of a motion for a review stays the operation of the order

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pending final decision on that motion. A motion for a review by the director shall be immediately

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scheduled for a hearing by the director. The decision of the director after his or her review shall

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be issued in writing to the licensee.

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     5-20.1-18. Penalties for violations. — Violation of any provision of this chapter shall be

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subject to the penalties as follows: any corporation, association, sole proprietorship, firm,

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partnership, limited liability corporation, limited liability partnership or other business

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organization licenses by the board shall be subject to a fine of five hundred dollars ($500) for the

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first offense and for the second and subsequent violations of this chapter subject to a fine of not

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less than nine hundred fifty dollars ($950).

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     5-20.1-19. Enforcement. — (a) It is the duty of the director of the department of labor

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and training to enforce the provisions of this chapter. The appropriate local municipality

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authority, involved in the day-to-day inspection of sewer or drain installations, shall assist the

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department in enforcing the provision of this chapter. The appropriate local municipality shall

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have the authority to demand the production of the licenses required by this chapter on any site

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where underground utility contractor work is being installed and have the authority to investigate,

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and where appropriate, make complaints, pursuant to section 5-20.1-13, where sufficient evidence

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has been obtained to sustain a reasonable belief that a violation of this chapter has occurred.

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     5-20.1-20. Prosecution of violations and penalties. — It is the duty of the director of the

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department of labor and training to fine any corporation, association, individual proprietorship

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firm, partnership, limited liability corporation, limited liability partnership or other business

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organization violating any of the provisions of this chapter upon complaint being made whether

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brought pursuant to section 5-20.1-13 and/or section 5-20.1-17.

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     5-20.1-21. Injunctions. - Violations of this chapter may be enjoined upon a bill of

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complaint being filed in the superior court for the county in which those violations have been

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committed, by the department or by any appropriate local municipal authority. An injunction may

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be granted by the superior court after hearing in open court against any corporation, association,

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individual proprietorship, firm, partnership, limited liability corporation, limited liability

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partnership or other business organization which has violated any of the provision of this chapter

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without regard to whether proceedings have been or may be instituted before the department or

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whether criminal proceedings have been or may be instituted. No ex parte restraining orders shall

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be issued in suits brought pursuant to this section.

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     5-20.1-22. Investigation and prosecution of violations. — The director of the

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department of labor and training or his/her designee shall act as an investigator with respect to the

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enforcement of all sections of the department, relative to the licensing of underground utility

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contractors, and to this effect whenever a complaint is made to the director of the department of

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labor and training, or his or her designee, the provisions of this chapter are being violated, the

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director, or his or her designee, may issue an order to cease and desist from that violation and

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may impose penalties against the violator, and against the contractors.

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     5-20.1-23. Judicial review of proceedings. — Any further appeal from the actions of the

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board or the director is in accordance with the provisions of the administrative procedures act,

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chapter 35 of title 42.

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     5-20.1-24. Licensing authority. — The board shall carry out the functions and duties

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conferred upon it by this chapter. The licensing authority adopts standards, rules and regulations,

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pursuant to chapter 35 of title 42, for the administration of the licensing program established

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under this chapter and related activities.

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     5-20.1-25. Municipal inspectors and installation permits. — Nothing contained in this

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chapter prohibits any city or town from requiring permits for the installation, maintenance and

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repair of underground utility systems and collecting fees for the installation and repair of an

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underground utility system.

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     5-20.1-26. Severability. — If any provision or part of this chapter, or its application to

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any entity or circumstances is held unconstitutional or otherwise invalid, the remaining provision

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of this chapter and the application of the provisions to the other entities or circumstances other

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than those to which it is held invalid shall not be affected by the invalidity.

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     SECTION 2. Section 5-20-11 of the General Laws in Chapter 5-20 entitled "Plumbers

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and Irrigators" is hereby repealed.

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     5-20-11. Licensing of drainlayers and installers. -- (a) Nothing in this chapter prohibits

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any city or town from granting a license to any person as a drainlayer to engage in the laying of

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drains outside of buildings, making connections with the public sewers, private drains and

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cesspools; provided, that the holder of a certificate or license issued by the department of labor

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and training in conformity with this chapter is not required by any city or town to obtain any other

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license for the installation, maintenance, or repair of plumbing or the laying of drains.

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      (b) Persons licensed as master plumbers under the provisions of this chapter are not

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required to obtain an installer's license as required by chapter 56 of title 5; provided, that master

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plumbers are required to comply with the provisions of section 5-56-7.

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     SECTION 3. This act shall take effect on January 1, 2013.

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LC01560

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO BUSINESSES AND PROFESSIONS - UNDERGROUND UTILITY

CONTRACTORS

***

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     This act would establish provisions, qualifications and procedures for licensing

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underground utility contractors engaged in the laying or repairing of underground utilities.

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     This act would take effect on January 12, 2013.

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LC01560

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