Legislature(2017 - 2018)ADAMS ROOM 519
03/16/2018 01:30 PM House FINANCE
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| Audio | Topic |
|---|---|
| Start | |
| HB285 || HB286 | |
| HB346 | |
| HB255 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 346 | TELECONFERENCED | |
| + | HB 217 | TELECONFERENCED | |
| += | HB 216 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 285 | TELECONFERENCED | |
| += | HB 286 | TELECONFERENCED | |
| += | HB 255 | TELECONFERENCED | |
HOUSE BILL NO. 255
"An Act relating to individuals and employees who must
have certificates of fitness to perform certain
plumbing and electrical work; and relating to civil
penalties and violations for not having required
certificates of fitness."
2:29:55 PM
REPRESENTATIVE CHRIS TUCK, SPONSOR, introduced himself and
his staff.
KENDRA KLOSTER, STAFF, REPRESENTATIVE CHRIS TUCK, provided
detail on the bill. The bill would change the penalties for
performing plumbing and electrical work without a license,
which was called a certificate of fitness. The bill would
replace the existing criminal penalty with a nonviolent
penalty. Currently, the penalty was a $500 fine and a
misdemeanor. The bill would change the penalty to an
administrative fine and a violation. She explained that the
original bill made several changes to the way things
worked. She detailed that the bill would reduce the penalty
to $125 [for an individual] and $250 [for an employer] for
a first offense. A second offense would mean a fine of $250
for an individual and $500 for an employer.
Ms. Kloster addressed changes made in the House Labor and
Commerce Committee. There had been concerns about a
violation going on an employee's record; therefore, the
provision had been changed. She provided an example of an
employee without a certificate of fitness being instructed
by an employer to conduct plumbing or electrical work.
Under the circumstance, the sponsor wanted to ensure the
employee was not given a violation on their record;
however, the individual could be charged a fine by the
Department of Labor and Workforce Development (DLWD) for
conducting the work without the certificate. She elaborated
that the violation would show up on the record of the
employer if they continued to practice without a license.
The bill had been brought forward during work with DLWD to
provide the department with better enforcement tools. The
current penalties went through the Department of Law (DOL)
and the process was cumbersome. She explained they did not
necessarily want to charge individuals with misdemeanors.
The bill would provide the state with better enforcement
tools to ensure the law was effective.
2:32:44 PM
Representative Ortiz asked for verification that a
certificate of fitness was the lone license electricians
and plumbers had in Alaska.
Representative Tuck replied in the affirmative. He detailed
the term certificate of fitness meant an individual was fit
to perform the work once they had gone through an
apprenticeship program, passed a test, and had demonstrated
the required hours. He confirmed that the certificate
equated to a license.
Representative Ortiz asked about the need for the bill. He
wondered if there was significant work taking place that
was unlicensed. He asked if the perception was anecdotal or
based on statistics.
Representative Tuck answered that primarily there were
numerous people doing site jobs in people's places without
an electrical license. He explained it was difficult to
keep track of the occurrences and to enforce the law.
Currently, the offense was a misdemeanor and a fine up to
$500. It was costly to go to DOL to get a prosecutor to do
a cease and desist order and prosecute for a misdemeanor
conviction. The bill would allow a simple fine for DLWD to
enforce. Additionally, there was no ability to enforce when
people let their licenses expire and continued to work.
DEBORAH KELLY, DIRECTOR, DIVISION OF LABOR STANDARDS AND
SAFETY, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT,
pointed to the department's fiscal note [OMB Component
Number 346]. The department had used a three-year average
of its cease and desist orders for people found working
without a certificate of fitness [shown on page 2 of the
fiscal note]:
• 46 individuals engaging in work without a valid
certificate
• 5 individuals engaging in work without a valid
certificate
• 22 employers using workers without a valid
certificate
• 9 employers using workers without a valid
certificate
Ms. Kelly added that the bill would address repeat
offenders who realize the department gave cease and desist
orders but did not typically follow through on misdemeanors
because the court system district attorneys had other
priorities. Once an offender saw the piece of paper did not
have much force, some of the repeat offenders refused to
come into compliance.
Representative Ortiz asked for a brief overview of how
enforcement happened. He wondered how a person got caught
and cited for working without a certificate.
Ms. Kelly replied that DLWD had multiple employees in the
field including a full-time contractor licensing
investigator, several plumbing inspectors, and several
electrical inspectors. The employees were on construction
sites constantly as part of their job. The department also
had wage and hour investigators who were able to detect
people doing unlicensed work. The employees knew how to
identify the work and what was subject to the code and they
performed enforcement.
Representative Ortiz asked how the bill gave DLWD more
ability to enforce the certificate requirement.
Ms. Kelly answered that the bill enabled DLWD the ability
to issue an administrative fine and violation for first and
subsequent offenses. Currently, the department could issue
a cease and desist on a piece of paper. She explained that
if a person continued to violate the law, the misdemeanor
penalty was "pretty toothless" because DLWD had to request
a district attorney to prosecute.
2:38:12 PM
Representative Wilson asked if there was one certificate
for a plumber and one for an electrician. Alternatively,
she asked if there were multiple certificates for some
trades.
Representative Tuck replied there was a certificate for
electricians, linemen, and plumbing code. For example, an
electrician could be an "inside wireman" with a full
commercial license that required an 8,000-hour
apprenticeship program. There were also residential
electricians that were required to complete a 4000-hour
program. An apprentice could also get a certificate of
fitness in one of the two categories. Additionally, there
was a certificate of fitness for power linemen and another
for plumbers.
Representative Wilson asked if the state had always been
able to impose a misdemeanor penalty on employees and
employers.
Representative Tuck responded in the affirmative and cited
AS 18.62.080. The definition in statute referred to "a
person" who could be an employer and employee or anyone
performing work under the jurisdictions. He read from
statute:
A person, either an employer or employee, who violates
a provision of this chapter or of a regulation adopted
under this chapter is guilty of a misdemeanor and,
upon conviction, is punishable by a fine of not more
than $500.
Representative Wilson thought it appeared that Section 3 of
the bill opened it up more than in the past. She pointed to
page 2, lines 14 through 17, pertaining to penalties. She
observed that the bill would remove employer [from line 14]
and would add the words "other than" to read as follows: "A
person, other than an employee, who violates a provision of
this chapter..." She asked about the reason for the
language change. She wondered who else would be included.
Representative Tuck answered that within the provision, the
bill would separate the difference between an employer and
someone other than an employer because the bill would split
up the fines. He did not believe an employee should receive
the same fine as an employer. He explained that a first
offense for an employer was $250 and each following offense
was $500. Whereas, the first offense for an employee is
$125 and each following offense was $250. He elaborated
that the section recognized that a person, other than an
employee, who violated the provision was guilty of a
violation rather than a misdemeanor. He cited that the
person would be punished as prescribed under AS 12.55 by a
fine of not more than $500.
2:41:44 PM
Representative Wilson provided a scenario where an employee
with a certificate of fitness was asked to do a job by
their employer that the employee believed was covered by
their certificate. She used an example of installing and
covering up conduit. She wondered if there was a chance
DLWD may claim the employee was doing work not covered by
the certificate and could subsequently fine the employee.
Representative Tuck replied that as long as an employee had
a certificate of fitness they could do all provisions of
the electrical code, which included back fillings (as in
Representative Wilson's example).
Representative Wilson asked for verification there would
never be a situation where an employee would have to check
their certificate of fitness to ensure the employer was not
asking them to do something that could be a violation. She
had no problem with the [bill's provision pertaining to
the] employer. She believed an employer should know all of
the rules associated with a job. She considered that
perhaps there were nuances where one union could do one
thing, and another could do something else. She wanted to
avoid someone being fired because they were uncertain they
could do the work legally or being fined for doing was what
their boss asked.
Representative Tuck clarified that a certificate of fitness
was not a document that gave an employer the ability or
jurisdiction to do the work. A certificate of fitness was a
license for and owned by the individual. Typically, people
licensed in a field knew what they could and could not do.
An employer was required to have an administrator's license
to do the work. He explained that contractors could not all
perform electrical work. He elaborated that a contractor
was required to have an administrator's license. Before a
contractor could obtain the license, they were required to
have a certificate of fitness for a designated amount of
time. They were also required to get three people with an
administrator's license to sponsor them to be able to take
the test to become a contractor.
Representative Tuck confirmed that under current law an
employee and employer would get in trouble if a contractor
who was or was not an administrator instructed an employee
without a certificate of fitness to perform work. He
detailed both individuals could be charged with a
misdemeanor under current law. He believed the employee
should not be punished as severely as the employer. He
explained it was no different than an employer telling an
employee without a commercial driver's license to drive a
tractor and trailer across town to deliver materials. He
reiterated his understanding of Representative Wilson's
question.
2:45:47 PM
Representative Wilson explained that her question was about
someone with a certificate of fitness who performed work
they believed to be covered by their certificate, but it
was not. She referenced Representative Tuck's example and
noted there was a project administrator, employee, and
perhaps the administrator's boss overseeing the whole
project. She asked if all three individuals would get in
trouble if one person was doing the wrong thing.
Representative Tuck replied that only the employer and the
person who performed the work [would get in trouble].
Representative Wilson asked if the administrator had no
responsibility.
Representative Tuck answered that the administrator had the
authority to do the work; therefore, they would not receive
a violation.
Ms. Kelly elucidated that an electrical administrator could
be the employer, employee, or could hire the employer. She
clarified that being an administrator required an extra
license. She explained that the administrator's job was to
ensure the electrical work or plumbing work had integrity.
The administrator was not necessarily telling people what
to do or directing the work. She elaborated they could be
conducting site inspections or reviewing plans to ensure
the work was sound. Administrators were generally
journeymen certificate holders who took an additional step
to pass additional qualifications, which were administered
by the Department of Commerce, Community and Economic
Development (DCCED). She added that DLWD would not look at
the administrator when conducting certificate of fitness
enforcement.
2:47:56 PM
Representative Grenn asked for detail on what happened to
an employee when a violation was discovered.
Representative Tuck agreed and noted the process was the
same for hairdressers and other individuals when they were
found to be working outside their license.
Ms. Kelly deferred to a colleague.
WILL HARLAN, SECTION CHIEF, MECHANICAL INSPECTION SECTION,
DIVISION OF LABOR STANDARDS AND SAFETY, DEPARTMENT OF LABOR
AND WORKFORCE DEVELOPMENT (via teleconference), asked
Representative Grenn to restate the question.
Representative Grenn asked what happened to an employee
when a violation was discovered. He wondered about the
citation procedure and the civil penalty.
Mr. Harlan replied that it was similar to the current
contractor licensing enforcement programs. He explained
there were a couple of things that happen including
administrative fines, which had already been discussed. He
detailed that when an inspector visited a job site and saw
someone performing code work requiring a certificate of
fitness, they would ask to see the license. If the
individual did not have a license, under HB 255, DLWD would
have the ability to write an administrative fine of $125 to
the person performing the work. Additionally, the
department would seek out and fine the employer. Both of
the fines would go through the same due process that any
other administrative fine went through. The individuals
would have the chance to appeal the fine, a hearing officer
could be appointed, and the individuals could choose to
appeal the decision. The individuals could pay the fine or
appeal. He noted there were some other legal things that
would take place.
Mr. Harlan explained that the violation was the same
process as a traffic ticket. He provided an example where a
person performing the work was known to the department and
had ignored previous administrative fines. At that point,
the inspector could write an Alaska uniform citation to be
filed with the court system in traffic court; the company
would also receive a citation. The individual would then
proceed through traffic court and would have the same kind
of hearing that took place for a speeding ticket. If
convicted, the judge would set the fine up to a maximum of
$500.
Representative Grenn referenced Mr. Harlan's example of a
person committing the offense multiple times. He asked if
the offenses went on their record.
Mr. Harlan replied that a violation appeared on CourtView.
He elaborated that a citation issued to an employee or
employer also appeared on CourtView like any other traffic
citation. The administrative fine did not appear on any
permanent record. He detailed that the document was not
published on a website, but it was public and was
retrievable under the public records request system.
2:53:00 PM
Ms. Kelly corrected that under HB 255 an employee would not
be subject to a citation and violation; therefore, the
offense would not go on a record in CourtView under any
circumstances (if they were an employee).
Representative Tuck explained the reason for the provision
identifying "a person, other than an employee." He detailed
there were individuals performing work who were not
necessarily employed by someone else. Those individuals
would receive a violation, which would enable someone to
look up whether the person was reputable. Someone would
have the ability to determine whether the employer or any
individual performing work on their own was adhering to the
law. The bill changed the provision, so the employee would
not have the record.
Representative Grenn spoke to how the process was handled
for an employee. He referenced a letter in members' packets
from the International Union of Operating Engineers in
opposition to the bill (copy on file). Pertaining to an
employee, the letter suggested a stern warning for the
first violation and a $50 citation for the second
violation. He asked for comment from the bill sponsor.
Representative Tuck replied the bill would reduce the fine
[for an employee] from $500 and a misdemeanor to $125 and
no record. The bill also encapsulated people with an
expired certificate of fitness who were continuing to work.
Representative Grenn surmised that given the bill would
drop the fine from $500 to $125, the suggestion in the
letter would be a further drop and would perhaps fail to
act as a deterrent.
Representative Tuck answered that if the committee wanted
to eliminate any violations it would be up to the will of
the committee, but it was not his desire. He wanted to
allow DLWD to enforce and issue quick fines due to numerous
repeat offenders. He referenced other professional licenses
issued by the state. He detailed that the penalty was a was
a Class B misdemeanor and a fine of up to $2,000 for an
individual practicing hairdressing, aesthetics, tattooing,
or body piercing. He referred to the provision in HB 255
and did not know how much looser it could get. Electrical
work was in Article 18 of the state's code, pertaining to
health, safety, and housing. Chapter 60 pertained to safety
and its Articles 6 through 8 dealt with electricians,
linemen, and plumbing codes. The bill did not pertain to
those sections of law; it only pertained to Chapter 62
related to the need for a certificate of fitness to perform
work.
2:56:25 PM
Vice-Chair Gara reviewed his understanding of the bill. He
discussed that the bill addressed contractors working for
themselves without a certificate of fitness and employees
who were told by an employer to do work beyond their
license skills. He asked for verification that contractors
working for themselves would receive a fine and violation,
which would be visible on CourtView.
Representative Tuck answered in the affirmative.
Vice-Chair Gara remarked that the bill would eliminate the
misdemeanor penalty for both types of workers [highlighted
in his previous question] without proper licensing. He
asked for verification that the initial and any subsequent
fines for an independent contractor was a maximum of $500.
Representative Tuck agreed but corrected that the first
offense was a fine of $250.
Vice-Chair Gara asked for verification that the first
offense for an independent contractor was $250 and any
subsequent offenses were $500.
Representative Tuck replied in the affirmative.
Vice-Chair Gara asked for verification that the first
offense for an employee was a fine of $125 and any
subsequent offenses were $250.
Representative Tuck responded in the affirmative.
Vice-Chair Gara spoke to his one concern. He agreed the
offense should not be a misdemeanor. He was concerned that
a $500 fine would not be a sufficient incentive to deter a
contractor from operating without a license. He asked if he
was assuming something wrong.
Representative Tuck answered that the bill addressed the
issue. He deferred the question to Ms. Kelly for detail.
Ms. Kelly pointed out that an independent contractor
operating without the proper certifications would be
subject to a violation and contractor licensing fines. She
noted that Mr. Harlan could answer detailed questions about
contractor licensing. She added that the penalties were
quite a bit higher.
Vice-Chair Gara stated that his primary concern was not
about punishing an employee for doing work outside their
purview when they were instructed to do so by their
employer. His real concern was the extent of the fine for a
person who advertised themselves as an electrician when
they did not have the training and repeatedly violated the
law.
Mr. Harlan addressed the example of a person representing
themselves as an electrician and working in people's homes
without a license. He stated aside from the certificate of
fitness, there would be a violation for contractor
licensing, which began at a $1,000 administrative fine. The
fine for the second offense was $1,500. The fines also
triggered the withholding of the issuance of a contractor's
license until they were paid. Additionally, there were
citations, which capped out at $500 per citation ($500 was
the statutory limit on minor offense citations). However,
the fines began at $25,000 when the offender was a
corporation or incorporated business potentially for a
contractor business. He noted the fine would be set by a
judge at the time of sentencing.
3:02:00 PM
Representative Guttenberg stated that if a person was
working on a commercial contract, they were in violation if
they were working without an electrical contractor's
license. He continued that in order to do the work, an
administrator's license was needed. He wondered why an
administrator would hire people without a certificate of
fitness to work as electricians.
Representative Tuck responded that under the scenario
provided by Representative Guttenberg a contractor would
probably not hire employees without a license. However,
sometimes there may be a material handler or yard hand
fabricating and doing things that were against the law.
Under the scenario, the employer would be in violation. He
spoke to the need for employers to ensure employees
continued with their education. Employees were required to
complete 16 hours of continued education every two years to
maintain their license. He detailed that if someone did not
maintain their continued education it could be a violation.
He stated a person could have initially been hired with a
license and may no longer have a license.
Representative Guttenberg spoke about doing electrical work
(including working with hot wires and ensuring the
connections were correct in order to avoid a fire or
damage), which required an administrator to sign off on.
Provided a hypothetical scenario where an argument took
place over whose jurisdiction specific work fell under. He
asked who set the parameters to determine whose work it
was.
Representative Tuck replied that the bill did not address
the subject. He elaborated that the issue was addressed in
different sections of statute and was defined in Article
18, Sections 6 through 8. The bill only pertained to fines.
3:06:16 PM
Ms. Kelly replied that jurisdiction was determined through
plumbing and electrical statutes that adopt the state's
minimum plumbing and electrical code. She explained that
the codes had been adopted for a public safety mission. The
department began with the code and considered what was
important to the safety and integrity of the installations
made under the code. There were some exceptions. The
department did not draw a hard line on classifying
something as certificate of fitness work if it was under
the code. There may be exceptions made if something
presented a minimal public safety risk or minimal risk to
the integrity of the installation. Ultimately, in gray
areas, the department decided where something lay.
Representative Guttenberg disagreed and stated that was not
where it was decided. He stated there was a large gray area
in the work field. He believed that part of the problem was
put on the material handler who may work for a general
contractor. He elaborated on the scenario.
Ms. Kelly understood there were many jurisdictional battles
that took place. She clarified that the scenario provided
by Representative Guttenberg related to the handling of
materials, was not certificate of fitness work. The
department tried its best to stay out of jurisdictional
battles, but because of the nature of the certificate of
fitness being a certification for certain types of work,
DLWD ended up in the middle sometimes. The department tried
to look at what installation work was subject to the code
and comported with the public safety mission of the
statutes.
Representative Guttenberg continued with the scenario and
discussed associated fines. He had a problem with the gray
area related to the jurisdiction of the handling of
materials.
Representative Tuck replied that the issue did not pertain
to the bill or statute. He underscored that the statutes in
the bill dealt with installations, not moving material. He
stated there may be a dispute between contractors on whose
work something was, but that pertained to whatever was
written in someone's contract. Nothing in statute specified
that a worker could not move material around. There was no
way for anyone to be fined in the scenario provided by
Representative Guttenberg because the code and statutes
dealt with installations. However, someone would get in
trouble if the scenario involved mounting something on a
wall.
3:11:17 PM
Representative Guttenberg shared that he was trying to get
the Department of Transportation and Public Facilities
(DOT) to put conduit in every time it opened a road. He
stated that at some point someone may string some
fiberoptic cable. He wondered why they should open the road
twice. He provided a hypothetical scenario where a person
could not do something because they did not have a
certificate of fitness. He wondered about the relevance of
his example in terms of the bill.
Representative Tuck answered that most electrical
installations were dealing with vertical construction for
high voltage power alignment, including hospitals,
residential housing, and commercial buildings. He noted the
importance of maintaining the integrity of the systems. He
reasoned there may be a unique situation where there may be
a dispute between two contractors on whose work it was.
However, the bill did not address the issue. He was happy
to work with Representative Guttenberg on the topic later
on. The bill would change a penalty from a misdemeanor to a
citation [for working without a certificate of fitness].
3:12:54 PM
Co-Chair Seaton wanted to make sure the bill did not
contain anything that would change the ability of a private
property owner to do their own work.
Representative Tuck replied that the bill did not address
any jurisdiction at all or current statutes allowing people
to perform or not perform work. The bill only dealt with
offenses.
Representative Tilton referenced the analysis on page 2 of
the fiscal note that specified FY 13 to FY 17 data had been
used. She was trying to gage the size of the challenge. She
asked how many inspections the department did and what
triggered the inspection.
Ms. Kelly responded that the checks by DLWD were in the
thousands per year and were done primarily by the
contractor licensing investigator, the three plumbing
inspectors, and the three electrical inspectors. She
deferred to Mr. Harlan for information on how staff
determined where to do an inspection.
Mr. Harlan answered that in FY 17 his office conducted 797
electrical inspections, 734 plumbing inspections, and
performed well over 1,000 individual construction site
visits statewide. The department identified individuals
working without a certificate or with an expired
certificate through its inspections and site visits. The
department also responded to complaints statewide from
owners who had encountered unlicensed individuals.
3:15:47 PM
Representative Tilton surmised that responding to
complaints triggered inspections. She asked if Mr. Harlan
had stated that the department also looked at an expired
list of licenses.
Mr. Harlan replied that the department did not know where
individuals were working at any given time - there was not
a state plumbing and electrical permit system actively in
place. Some inspections were found through random chance.
Additionally, the department reviewed building permits
published by local jurisdictions to discover new
installation work. A great deal of time was spent driving
around looking for construction. The department was also
directed to construction sites by complaints. He explained
that because the department did not know where specific
contractors were working at any given time, the process did
not involve identifying someone beforehand and going to get
them. He stated that when the department found an offender
it was a matter of stumbling across them.
3:17:06 PM
Representative Pruitt returned to Representative
Guttenberg's earlier questions. He asked if the tasks
assigned to an electrician, an operator, or other, were in
black and white.
Representative Tuck answered that it depended on the
project. Title 36 related to work being performed under
state contracts was pretty black and white. He stated that
it was usually spelled out for a private contractor.
Additionally, subcontractors who bid work usually spelled
out exclusions or inclusions on their scope of work. He
explained what a contractor was responsible for was usually
defined in a contract. Often times a when a person was
doing electrical or plumbing work it was spelled off to the
side because a general contractor did not have an
administrator's license to be able to do the work.
Representative Pruitt surmised the contractor had the
ability to determine certain things that may fall within a
gray area.
Representative Tuck thought Representative Pruitt had been
referring to a scenario provided by Representative
Guttenberg. Material handling was not under the
jurisdiction of DLWD - there was nothing in statute. The
issue was between the general contractor and the contractor
because a license was not required.
Representative Pruitt replied that his question was
primarily related to the tone of Representative
Guttenberg's scenario and not specific examples. He stated
that the bill had obviously arisen from something. The
committee had heard earlier that the department would play
a role in determining jurisdiction. He did not see there
was any way the department did not play a role if the goal
was to go in and fine people and enforce the law. He did
not know how the department would not get in the middle of
determining jurisdiction. If some of the things were
potentially determined by the contract or the contractor,
he wondered if the state was interjecting itself into
something that may become complex and problematic. He
considered that bureaucrats could be determining the
particular things as opposed to the experts or those out in
the field doing the work.
Representative Tuck answered that all of the work performed
in the electrical industry by commercial electricians was
under the jurisdiction of the National Fire Protection
Association (NFPA), Section 70. There were 19 panels that
reviewed the code, which was updated every three years.
Alaska was currently under the 2014 code; the 2017 code had
not yet been adopted. The 2017 code would be the
jurisdiction once adopted. He relayed it was based on
national standards.
3:20:55 PM
Ms. Kelly responded that DLWD had been conducting the
enforcement for over 30 years. She relayed that the
enforcement tools were not what the department would like
them to be, but they had been determining how to best
enforce the codes and where to draw the lines for requiring
a certificate of fitness for many years. The department did
not want to get involved in jurisdictional battles, but it
sometimes ended up there by the nature of the occupational
licenses. She stated that just like contractor licensing
enforcement or wage and hour law enforcement, DLWD could
just happen to get into the blurry lines that could
sometimes happen between an independent contractor and an
employee. The department did its best to draw lines well,
follow the statutes, and follow its public safety mission.
The department had not interest in getting involved in
jurisdictional contractor or other labor disputes.
Representative Pruitt stated that changing from a
misdemeanor approach to citations would mean all it would
take was the department's time to write down a citation
compared to going through a process of filing a
misdemeanor. He thought changing the process meant DLWD
would be more active and engaged in determining and
separating what was what. He believed it meant there would
be more people concerned with the decision made by the
department.
Ms. Kelly answered that she would love for people to be
more concerned with the decisions made by the department
and for it to be more of a process in the future. She
explained that when DLWD went into jurisdictional battles,
individuals involved followed the department's cease and
desist orders. She understood the concern, but stressed it
was not an area the department saw repeat offenders. The
repeat violators were generally people operating as
plumbers or electricians with the knowledge they did not
have the training or licensure. She added the issue
typically occurred in residential and small commercial
operations.
3:23:46 PM
Representative Tuck cited ophthalmologists and optometrists
as an example of another field where there was probably a
blending of some work performances. He believed enforcement
probably went back to code licensing requirements. The bill
did not interfere with requirements to obtain a certificate
of fitness under existing statute. The bill only pertained
to a citation. He understood that Representative Pruitt was
concerned with the process. He believed the committee would
have to determine whether it wanted an administrative
process or a court process. He referenced public testimony
from the House Labor and Commerce Committee where the
committee had heard from a contractor who had come from
Texas to retrofit numerous Walmart stores and had used
electricians who were not licensed in Alaska. The
individuals had performed all of the work and there was
nothing the state could do. The bill aimed to provide
opportunities to get after illegitimate businesses that
were repeat offenders.
Representative Pruitt pointed to a letter from the
Association of General Contractors of Alaska in members'
packets (copy on file). The letter highlighted that the
department had made some determination of what equipment
operators were able to do compared to licensed
electricians. It seemed to him it may be the department
making a determination beyond what the code may be and
injecting itself in a jurisdictional discussion. He
reasoned that if the department was more active in the
engagement, it could potentially be determining a
jurisdictional decision five times per day as opposed to
one time per day. He thought it would mean the department
would have to start considering certain regulations and
write new things that could start to blur the lines and pit
certain people against each other. Whereas, previously, the
gray area had been determined by the contractor.
Ms. Kelly replied that contractors and workers were
passionate about their jurisdiction. However, DLWD would
not increase the number of checks of the number of
sanctions placed. The nature would change, referenced the
letter highlighted by Representative Pruitt and reiterated
that those individuals followed cease and desist orders and
did not repeat violations. The department was already
having to take those things into consideration on a daily
basis. The bill would not change jurisdiction or how the
department addressed jurisdiction.
Representative Pruitt asked for the purpose of the bill.
Ms. Kelly responded that the problem was not the
contractors and the other contractors deciding who was
doing the work. The problem was the "fly by night"
individuals who were operating illegitimate businesses who
were presenting themselves as licensed plumbers and
electricians and refusing to come into compliance with the
law.
Representative Pruitt thought the state would want to send
the individuals to the court system. Ms. Kelly answered
that it would be great, but in the past the district
attorney did not have the resources to dedicate to
something as small as a minor misdemeanor.
Representative Pruitt referenced a man in a criminal case,
(who was unrelated to the current issue) who owed $3
million in fines to the court system. If the concern was an
unlicensed individual, he wondered what would stop a person
from racking up thousands of dollars in fines if they did
not have to go to court.
Ms. Kelly replied that if a misdemeanor was not effective,
she was not sure that a violation would be any more or less
effective. The department believed the violation would be a
tool to fit the vast majority of cases.
3:28:32 PM
Representative Wilson read from page 2, lines 20 to 21 of
the bill related to issues of citations: "If the department
has probable cause to believe that a person has violated a
provision of this chapter or a regulation adopted..." She
remarked that the bill involved setting regulation. She
wondered why the language read "probable cause to believe."
She thought that based on the scenario provided by
Representative Tuck that when the department asked to see
someone's license, the individual either had it or did not.
She thought the language on page 2 was much broader. She
thought the language meant the department did not have to
ask for the person's license and could write a citation.
Representative Tuck answered that a person was supposed to
carry their license, but they may have left it at home. He
stated that if a person was not carrying their license it
was probable cause that they did not have a license.
Representative Wilson asked who a certificate of fitness
was recorded with when an individual obtained the license.
Representative Tuck answered that DLWD kept track of who
did or did not have a certificate of fitness.
Representative Wilson asked whether the DLWD staff in the
field checking the license could call DLWD to determine
whether a person had a license instead of writing them a
ticket.
Representative Tuck answered that he imagined the answer
was yes if the department had the resources available to do
so.
Representative Wilson hoped the resources were there before
a ticket was issued. She was concerned about what kind of
regulation the department expected to go on top of statute.
She stated the statute was clear that a person had or did
not have a certificate.
Ms. Kelly replied that the language had been taken from
current statute and had been moved around to add a new
section. The regulations defined the scope of each type of
certificate of fitness (e.g. trainee plumber, journeyman
plumber, and plumber utility). The department was not
intending to pass new regulations. The language ensured the
department could hold people accountable for holding the
correct certificate. She explained that if a person was
doing electrical work and held a plumbing certificate, it
was in regulation, not statute.
Representative Wilson thought it seemed odd. She was
concerned the bill did not appear to do just one thing. She
did not want [the state] to get involved in a fight between
trade unions.
HB 255 was HEARD and HELD in committee for further
consideration.
Co-Chair Foster reviewed the schedule for the following
week.