00 Enrolled HB 81 01 Establishing an administrative fine and procedure for construction contractors in certain 02 circumstances; increasing the amount of a civil penalty for persons acting in the capacity of 03 contractors or home inspectors; modifying the elements of a crime involving contractor 04 registration and residential contractors; modifying the exemptions from regulation under 05 AS 08.18 for contractors; and exempting the administrative hearings for imposing an 06 administrative fine on construction contractors from the hearings conducted by the office of 07 administrative hearings in the Department of Administration. 08 _______________ 09 * Section 1. AS 08.18.117 is amended to read: 10 Sec. 08.18.117. Issuance of citations. Except as provided in AS 08.18.125, 11 either [EITHER] the Department of Commerce, Community, and Economic 01 Development or the Department of Labor and Workforce Development may issue a 02 citation for a violation if there is probable cause to believe a person has violated this 03 chapter with respect to contractor activities. The Department of Commerce, 04 Community, and Economic Development may issue a citation for a violation if there is 05 probable cause to believe a person has violated this chapter with respect to home 06 inspection activities. Each day a violation continues after a citation for the violation 07 has been issued constitutes a separate violation. 08 * Sec. 2. AS 08.18 is amended by adding a new section to read: 09 Sec. 08.18.125. Administrative fine and procedure. (a) Notwithstanding 10 any other remedy available under this chapter and except as provided in (e) of this 11 section, the department may impose an administrative fine of not more than $1,000 for 12 the first violation and not more than $1,500 for a second or subsequent violation of 13 either AS 08.18.011 or 08.18.025. 14 (b) The department shall issue a written notice of an administrative fine 15 imposed under (a) of this section, together with a statement of the reason for the fine, a 16 copy of the applicable procedures, and notice of an opportunity to request a hearing, 17 including the contact information for making the request, within 30 days after the date 18 of the notice of the fine. 19 (c) If a person who is issued a notice of an administrative fine under (b) of this 20 section fails to request a hearing within 30 days after the date of the notice, the right to 21 a hearing is waived, and the administrative fine is not subject to judicial review. A 22 hearing request must be in writing and must clearly state the issues to be raised at the 23 hearing. The department shall schedule a hearing before a hearing officer not earlier 24 than 10 days after receiving the request for a hearing. 25 (d) A decision of a hearing officer under this section is a final administrative 26 decision subject to review by a superior court under AS 44.62 (Administrative 27 Procedure Act). 28 (e) The department may not impose an administrative fine on a person who is 29 acting as a contractor or home inspector in an area with a population of 1,000 or less 30 that is not connected by road or rail to Anchorage or Fairbanks. 31 * Sec. 3. AS 08.18.131 is amended to read: 01 Sec. 08.18.131. Injunction; civil penalty. In an action instituted in the 02 superior court by the Department of Commerce, Community, and Economic 03 Development or the Department of Labor and Workforce Development, the court may 04 enjoin a person from acting in the capacity of a contractor in violation of this chapter. 05 In an action instituted in the superior court by the Department of Commerce, 06 Community, and Economic Development, the court may enjoin a person from acting 07 in the capacity of a home inspector in violation of this chapter. In addition to other 08 relief, the court may impose a civil penalty of not more than $1,000 [$250] for each 09 violation. Each day that an unlawful act continues constitutes a separate violation. 10 * Sec. 4. AS 08.18.141 is repealed and reenacted to read: 11 Sec. 08.18.141. Violations. (a) A contractor, a home inspector, or a person 12 acting in the capacity of a contractor or home inspector is guilty of a class B 13 misdemeanor if the person 14 (1) knowingly violates AS 08.18.011 or 08.18.025; and 15 (2) has been previously 16 (A) convicted of violating AS 08.18.011 or 08.18.025; 17 (B) found guilty of a violation under AS 08.18.117 if the 18 violation involved AS 08.18.011 or 08.18.025; or 19 (C) fined under AS 08.18.125. 20 (b) A contractor, a home inspector, or a person acting in the capacity of a 21 contractor or home inspector who violates a provision of this chapter, other than a 22 violation under (a) of this section, is guilty of a violation punishable under AS 12. 23 (c) Criminal prosecution for a violation of this chapter does not preclude the 24 Department of Commerce, Community, and Economic Development or the 25 Department of Labor and Workforce Development from seeking available civil or 26 administrative remedies. 27 * Sec. 5. AS 08.18.161 is amended to read: 28 Sec. 08.18.161. Exemptions. To the extent that this chapter governs 29 contractors, this chapter does not apply to 30 (1) an authorized representative of the United States government, the 31 State of Alaska, or a political subdivision or agency of the state; 01 (2) an officer of a court when acting within the scope of office; 02 (3) a public utility operating under the regulations of the public service 03 commission in construction, maintenance, or development work incidental to its own 04 business; 05 (4) a construction, repair, or operation incidental to the discovering or 06 producing of petroleum or gas, or the drilling, testing, abandoning, or other operation 07 of a petroleum or gas well or a surface or underground mine or mineral deposit when 08 performed by an owner or lessee; 09 (5) the sale or installation of finished products, materials, or articles of 10 merchandise that are not actually fabricated into and do not become a permanent, 11 fixed part of a structure; 12 (6) construction, alteration, or repair of personal property; 13 (7) a person who only furnished materials, supplies, or equipment 14 without fabricating them into, or consuming them in the performance of, the work of 15 the contractor; 16 (8) work on one project under one or more contracts, the aggregate 17 contract price of which for labor and materials and all other items is less than $10,000 18 [$5,000]; this exemption does not apply when the work is only a part of a larger or 19 major operation, whether undertaken by the same or a different contractor, or when the 20 work is divided into contracts of amounts less than $10,000 [$5,000] for the purpose 21 of evasion of this chapter or otherwise; this exemption does not apply to a person who 22 advertises or puts out a sign or card or other device that might indicate to the public 23 that the person is a contractor, or that the person is qualified to engage in the 24 contracting business; a contractor who performs work priced at $2,500 or more, under 25 this exemption, shall nevertheless keep in force public liability and property damage 26 insurance with coverage in at least the amounts set out in AS 08.18.101; 27 (9) an owner who contracts for a project with a registered contractor; 28 (10) a person working on that person's own property, whether occupied 29 by the person or not, and a person working on that person's own residence, whether 30 owned by the person or not; 31 (11) an owner or tenant of commercial property who uses the owner's 01 or tenant's own employees to do maintenance, repair, and alteration work upon that 02 property; 03 (12) an owner who acts as the owner's own contractor and in doing so 04 hires workers on an hourly basis, hires subcontractors, purchases materials and, as 05 such, sees to the paying for all labor, subcontractors, and materials; in this case, the 06 owner shall be limited to construction of one home, duplex, triplex, four-plex, or 07 [ONE] commercial building every two years [A YEAR]; 08 (13) a person performing construction work incidental to farming, 09 dairying, agriculture, horticulture, stock or poultry raising, mining, logging, fishing, 10 clearing, or other work upon the land in rural districts for fire prevention purposes, or 11 access road building, unless the person is a licensee. 12 * Sec. 6. AS 44.64.030(a)(6) is amended to read: 13 (6) AS 08 (occupational licensing), other than AS 08.08, 14 AS 08.18.125, and AS 08.62.046; 15 * Sec. 7. The uncodified law of the State of Alaska is amended by adding a new section to 16 read: 17 APPLICABILITY. (a) AS 08.18.125, 08.18.131, and 08.18.141, as added or 18 amended by secs. 2 - 4 of this Act, apply to a violation occurring on or after the effective date 19 of this Act. However, for the purposes of AS 08.18.141, a previous conviction or fine may 20 have occurred before, on, or after the effective date of this Act. 21 (b) AS 08.18.161(12), as amended by sec. 5 of this Act, applies to contract work 22 begun on or after the effective date of this Act. 23 * Sec. 8. The uncodified law of the State of Alaska is amended by adding a new section to 24 read: 25 REVISOR'S INSTRUCTION. The amendment to AS 44.64.030(a)(6) by sec. 6 of this 26 Act is to be reconciled with secs. 82 and 96, ch. 163, SLA 2004, so that both are given effect.