2014 -- S 2391 SUBSTITUTE A

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2014

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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: February 12, 2014

     Referred To: Senate Labor

     It is enacted by the General Assembly as follows:

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

is hereby amended by adding thereto the following chapter:

CHAPTER 65.3

UNDERGROUND UTILITY CONTRACTORS

     5-65.3-1. Purpose. -- The purpose of this chapter is to establish provisions, qualifications

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

underground utilities.

     5-65.3-2. Definitions. -- When used in this chapter:

     (1) "Board" means the contractors registration and licensing board as defined in § 5-65-1.

     (2) "Underground utility" means the installation, repair, alteration or replacement of

underground utilities, sewer lines, storm drainage lines or water lines, water service and laterals,

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

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

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

structure and specifically excluding gas and telecommunications work and any work defined in §

28-27-28.

     (3) "Underground utility contractor" means any corporation, association, sole

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

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

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

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

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

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

underground utility contractor. The term "underground utility contractor" does not include

individuals licensed under chapter 5-20 entitled "Plumbers and Irrigators."

     5-65.3-3. License required. -- (a) It is unlawful for any underground utility contractor to

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

this chapter without a valid license issued by the board.

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

master pipefitter under the provisions of chapter 28-27 shall be exempt from the requirement to

obtain both an underground utility contractor's license as required by chapter 5-65.3 and an

installer's license as required by chapter 5-56 provided that such master plumber or master

pipefitter shall be required to comply with the provisions of §§ 5-65.2-3 and 5-56-7.

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

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

     5-65.3-4. Conditions for obtaining an underground utility contractor's license. -- (a)

To obtain a license under chapter 5-65.3, an underground utility contractor must submit to the

contractors' registration and licensing board an application for an underground utility contractor's

license completed in its entirety, together with a fee of two hundred dollars ($200). The

application must also comply with the following requirements:

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

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

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

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

third-party approved by the board, intended to demonstrate an understanding of the rules and

regulations, and ability to read and interpret approved plans and specifications. Any applicant

who fails an examination for a license is permitted to take further examinations upon payment of

the prescribed fee for each examination. The board shall assure that these services are provided

and conduct examinations at least three (3) times each year. All examinations shall be conducted

at places designated by the board.

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

license as soon after the examination as is practicable. Each applicant who has successfully

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passed the examination and has had an application approved for a license as an underground

utility contractor shall have issued and mailed to them, by the board, a certificate of license

specifying that applicant as an underground utility contractor.

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

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

underground utility work.

     5-65.3-5. Expiration and renewal of licenses.-- All licenses of underground utility

contractors issued by the board expire every two (2) years on the anniversary date of the license's

issuance and may be renewed on or before that date for a period of two (2) years, upon payment

of a two hundred dollar ($200) fee.

     5-65.3-6. Duties of the contractor's registration and licensing board.-- The

contractors' registration and licensing board shall:

     (1) Prepare, provide and conduct examinations in conjunction with a third-party provider;

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

rules and regulations;

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

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

licenses and shall be open to public inspection; and

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

those complaints, dates of complaints and any final orders made based on the complaints.

     5-65.3-7. Licensing of underground utility contractors granted without examination.

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

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

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

license to any applicant who shall present satisfactory evidence as described in subsection (b) of

this section that the applicant has the qualification for issuance of an underground utility

contractor license. Thereafter, in order to qualify for an underground utility contractor license

after the initial "grandfather" window, said licensee may renew the license pursuant to § 5-65.3-5.

     (b) The owner(s) of a business entity as defined in § 5-65.3-2(3) shall meet the

requirements of this section for issuance of a license, without examination, by presenting

evidence of either of one of the following:

     (1) Provided, that any city or town that has previously granted a contractor or licensee a

license within the last five (5) years shall continue to grant such license for work specifically

related to the license and where work is to be performed in that city or town only, provided the

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contractor continues to meet all other local requirements for licensure, and shall not require the

contractor or licensee to take and pass the statewide licensing examination.

     5-65.3-8. Responsibilities, performance and conduct. -- A licensed underground utility

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

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

to be performed.

     5-65.3-9. Insurance required of underground utility contractors. -- (a) Throughout

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

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

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

and property damage.

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

insurance as required under chapter 28-29. Failure to maintain insurance shall not preclude claims

from being filed against a contractor.

     (c) The contractor shall provide satisfactory evidence to the board at the time of license

and renewal that the insurance required by subsections (a) and (b) of this section has been

procured and is in effect. Failure to maintain insurance shall invalidate registration and may result

in a fine to the licensee.

     5-65.3-10. Bond requirement.-- Every applicant for a certificate of license as an

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

altering or replacing of sewer lines, storm drainage lines or water lines and related services in

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

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

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

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

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

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

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

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

employees, servants or agents.

     5-65.3-11. License not transferable or assignable. -- Underground utility contractor's

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

ownership or upon suspension or revocation of a license.

     5-65.3-12. Denial, suspension and revocation of licenses. -- (a) The board may suspend

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

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

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

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

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

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

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

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

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

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

underground utility work in violation of the provision of this chapter; and

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

     (5) For any violation to § 5-65-10.

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

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

board.

     5-65.3-13. Procedure for revocation of license. -- (a) No proceeding to revoke a license,

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

immediately following the date or dates of violation.

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

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

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

contractor shall be held unless there is first placed on file with the board a verified complaint, in

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

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

revocation of license as prescribed in this chapter.

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

promptly set a date for a hearing of the charges of the complaint. The board shall promptly, by

registered or certified mail, forward to the licensee charged in the complaint a true and correct

copy of the complaint and notification of the time and place when and where a hearing of those

charges is to be held.

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

the charges specified in the complaint. No hearing upon the charges of the complaint shall be held

unless the records of the board contain evidence that the licensee charged in the complaint has

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

date of the hearing; provided, that the appearance of the charged licensee, either on its own behalf

or by counsel, constitutes proof that sufficient notice of the hearing was served.

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

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

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

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

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

     5-65.3-14. Subpoena of witness. -- The board shall have the power to subpoena and

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

proceeding authorized by law.

     5-65.3-15. Administration of oaths. -- The board shall have the power to administer

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

oaths authorized or administered by the board.

     5-65.3-16. Recommendations of board - Order - Rehearing - Review. -- Any applicant

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

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

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

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

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

complainant, within twenty (20) days after receipt of that order, files his or her motion, in writing,

for a review of the order specifying in the motion the points and reasons for the order. The filing

of a motion for a review stays the operation of the order pending final decision on that motion. A

motion for a review shall be immediately scheduled for a hearing. The decision review shall be

issued in writing to the licensee.

     5-65.3-17. Penalties for violations. -- Violations of any provision of this chapter shall be

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

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

organization licensed by the board shall be subject to a fine up to five thousand dollars ($5,000)

for the first offense and up to ten thousand dollars ($10,000) for the second and subsequent

violations of this chapter.

     5-65-18. Enforcement. -- (a) It shall be the duty of the board to enforce the provisions of

this chapter. The appropriate local municipality authority; involved in the day-to-day inspection

of sewer or drain installations, shall assist the board in enforcing the provision of this chapter.

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The appropriate local municipality shall have the authority to demand the production of the

licenses required by this chapter on any site where underground utility contractor work is being

installed and have the authority to investigate, and where appropriate, make complaints, pursuant

to § 5-65.3-12, where sufficient evidence has been obtained to sustain a reasonable belief that a

violation of this chapter has occurred.

     5-65.3-19. Prosecution of violations and penalties. -- It is the duty of the board to fine

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

corporation, limited liability partnership or other business organization violating any of the

provisions of this chapter upon complaint being made whether brought pursuant to §§ 5-65.3-12

and/or 5-65-18.

     5-65.3-20. Injunctions. -- Violations of this chapter may be enjoined upon a complaint

being filed in the superior court for the county in which those violations have been committed, by

the board or by any appropriate local municipal authority. An injunction may be granted by the

superior court after hearing in open court against any corporation, association, individual

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

business organization which has violated any of the provision of this chapter without regard to

whether proceedings have been or may be instituted before the board or whether criminal

proceedings have been or may be instituted. No ex parte restraining orders shall be issued in suits

brought pursuant to this section.

     5-65.3-21. Investigation and prosecution of violations. -- The board shall act as an

investigator with respect to the enforcement of all sections of this statute, shall act as an

investigator with respect to the enforcement of all provisions of laws relative to the licensing of

underground utility contractors, and to this effect whenever a complaint is made to the board, or

its designee, that provisions of this chapter are being violated, the board, may issue an order to

cease and desist from that violation and may impose penalties against the violator, and against the

contractors.

     5-65.3-22. Judicial review of proceedings. -- Any further appeal from the actions of the

board is in accordance with the provisions of the administrative procedures act, chapter 42-35.

     5-65.3-23. Licensing authority. -- The board shall carry out the functions and duties

conferred upon it by this chapter. The licensing authority shall adopt standards, rules and

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

under this chapter and related activities.

     5-65.3-24. Municipal inspectors and installation permits. -- Nothing contained in this

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

underground utility system.

     5-65.3-25. Severability. -- If any provision or part of this chapter, or its application to

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

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

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

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

and Irrigators" is hereby repealed.

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

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

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

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

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

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

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

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

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

     SECTION 3. Section 5-65-14 of the General Laws in Chapter 5-65 entitled "Contractors

Registration and Licensing Board" is hereby amended to read as follows:

     5-65-14. Builder board - Member - Terms - Confirmation - Vacancies -

Qualification. -- (a) The board shall consist of fifteen (15) seventeen (17) members appointed by

the governor, eight (8) ten (10) of whom shall be registered contractors, of which two (2) shall be

licensed roofers; one shall be a current member of the building codes standards committee

pursuant to section 23-27.3-100.1.4; one shall be a representative of the general public; one shall

be a licensed and practicing architect; and two (2) shall be licensed home inspectors; one who

shall be the president of the Rhode Island Builders Association or designee; one shall be the

executive director of the Utility Contractors Association of Rhode Island, or designee; one shall

be the executive director of the Rhode Island Independent Contractors and Associates, or

designee; and one who shall be the executive director of the Rhode Island Association of General

Contractors or designee. The building code standards committee member shall be designated by

the state building commissioner, and shall be appointed as provided in subsection (b) of this

section.

     (b) Except for the commissioner's designee the governor shall appoint seven (7) members

for a term of three (3) years and five (5) members for a term of two (2) years. The governor shall

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appoint the member designated by the state building commissioner for a term of two (2) years.

Each member reappointed by the governor shall serve for the term of his or her original

appointment. Before the expiration of the term of a member, the governor shall appoint a

successor. A member is eligible for reappointment. If there is a vacancy for any cause, the

governor shall make an appointment immediately effective for the unexpired term. At the

expiration of their terms, members shall remain and shall continue in their official capacity until a

new member is appointed and confirmed.

     (c) In order to be eligible for board membership, the six(6) eight (8) contractor members

of the board must be registered and/or licensed under this chapter and maintain their registrations

and/or licenses in good standing during their term of office. In order to be eligible for board

membership, the two (2) home inspector members shall be licensed pursuant to chapter 65.1 of

this title and shall maintain their license in good order during their terms of office.

     SECTION 4. This act shall take effect on January 1, 2015.

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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 qualifications and procedures to license underground utility

contractors. It would also enlarge the contractor's registration and licensing board from fifteen

(15) to seventeen (17) members to administer and to oversee the licensees.

     This act would take effect on January 1, 2015.

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