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Bill Summary
S T A T E O F N E W Y O R K
________________________________________________________________________
7771
I N S E N A T E
October 27, 2004
___________
Introduced by Sen. VOLKER -- read twice and ordered printed, and when
printed to be committed to the Committee on Rules
AN ACT to amend the real property law, in relation to fees for home
inspection examinations, the membership of the state home inspector
council, and the powers and duties of the secretary of state in
relation to violations of article 12-B of such law and to amend a
chapter of the laws of 2004 amending the real property law relating to
establishing the home inspection professional licensing act, as
proposed in legislative bill number A.76-B, in relation to the effec-
tive date of such chapter
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Section 444-b of the real property law, as added by a chap-
2 ter of the laws of 2004 amending the real property law relating to
3 establishing the home inspection professional licensing act, as proposed
4 in legislative bill number A.76-B, is amended to read as follows:
5 S 444-b. Definitions. As used in this article, the following terms
6 shall have the following meanings:
7 1. "Council" means the state home inspection council established
8 pursuant to the provisions of section four hundred forty-four-c of this
9 article.
10 2. "Client" means any person who engages or seeks to engage the
11 services of a home inspector for the purpose of obtaining inspection of
12 and written report about the condition of a residential building.
13 3. "Department" means the department of state.
14 4. "Home inspector" means a person licensed as a home inspector pursu-
15 ant to the provisions of this article.
16 5. "Home inspection" means the process by which a home inspector
17 observes and provides a written report of the systems and components of
18 a residential building including but not limited to heating system,
19 cooling system, plumbing system, electrical system, structural compo-
20 nents, foundation, roof, masonry structure, exterior and interior compo-
21 nents or any other related residential building component as recommended
22 by the home inspection council and implemented by the department through
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
{ } is old law to be omitted.
LBD18797-03-4
S. 7771 2
1 regulation to provide a client with objective information about the
2 condition of the residential building. The home inspector shall clearly
3 identify in the written report which systems and components of the resi-
4 dential building were observed. A home inspection shall not include an
5 inspection for radon or pests.
6 6. "PERSON" MEANS AN INDIVIDUAL, FIRM, COMPANY, PARTNERSHIP, LIMITED
7 LIABILITY COMPANY, OR CORPORATION.
8 7. "Residential building" means a structure consisting of one to four
9 dwelling units and their garages and carport but shall not include any
10 such structure newly constructed or not previously occupied as a dwell-
11 ing unit.
12 {7.} 8. "Secretary" means the secretary of the department of state.
13 S 2. Subdivisions 1, 2 and 3 of section 444-c of the real property
14 law, as added by a chapter of the laws of 2004 amending the real proper-
15 ty law relating to establishing the home inspection professional licens-
16 ing act, as proposed in legislative bill number A.76-B, are amended to
17 read as follows:
18 1. There is hereby established a state home inspection council within
19 the department. The council shall consist of the secretary or the
20 secretary`s designee and six additional members who are residents of the
21 state, of whom {four} THREE shall be persons licensed and actively
22 engaged in the business of home inspection in the state of New York for
23 at least five years immediately preceding their appointment and {two}
24 THREE of whom shall be consumers who are the owners and principal resi-
25 dents of a residential building in the state of New York. Appointments
26 shall reflect the geographical diversity of the state.
27 2. For a period of one year after the effective date of this section,
28 and notwithstanding any other provisions of this section to the contra-
29 ry, the first {four} THREE home inspectors appointed as members of the
30 committee shall not be required, at the time of their first appointment,
31 to be licensed to practice home inspection, provided that such members
32 be licensed pursuant to this article within one year of appointment.
33 3. The governor shall appoint each member of the council for a term of
34 three years except that of the members first appointed, two shall serve
35 for terms of three years, two shall serve for terms of two years and two
36 shall serve for a term of one year. The governor shall appoint {two} ONE
37 home {inspectors} INSPECTOR and one consumer SOLELY IN HIS OR HER
38 DISCRETION, ONE HOME INSPECTOR AND ONE CONSUMER upon the recommendation
39 of the temporary president of the senate, and {two} ONE home {inspec-
40 tors} INSPECTOR and one consumer upon the recommendation of the speaker
41 of the assembly. Each member shall hold office until his or her succes-
42 sor has been qualified. Any vacancy in the membership of the council
43 shall be filled for the unexpired term in the manner provided for the
44 original appointment. No member of the council may serve more than two
45 successive terms in addition to any unexpired term to which he or she
46 has been appointed.
47 S 3. Paragraphs (b) and (c) of subdivision 1 and subdivision 3 of
48 section 444-e of the real property law, as added by a chapter of the
49 laws of 2004 amending the real property law relating to establishing the
50 home inspection professional licensing act, as proposed in legislative
51 bill number A.76-B, are amended to read as follows:
52 (b) (i) have successfully completed a course of study of not less than
53 one hundred forty hours approved by the SECRETARY, IN CONSULTATION WITH
54 THE council, of which at least forty hours shall have been in the form
55 of unpaid field based inspections in the presence of and under the
56 direct supervision of a home inspector licensed by the state of New York
S. 7771 3
1 or a professional engineer or architect regulated by the state of New
2 York who oversees and takes full responsibility for the inspection and
3 any report {produced} PROVIDED TO A CLIENT; or
4 (ii) have performed not less than one hundred home inspections in the
5 presence of and under the direct supervision of a home inspector
6 licensed by the state of New York or a professional engineer or archi-
7 tect regulated by the state of New York who oversees and takes full
8 responsibility for the inspection and any report {produced} PROVIDED TO
9 A CLIENT; and
10 (c) have passed a written or electronic examination approved by the
11 SECRETARY, IN CONSULTATION WITH THE council, and designed to test compe-
12 tence in home inspection practice as determined by a recognized role
13 definition methodology and developed and administered to the extent
14 practicable in a manner consistent with the American Educational
15 Research Association`s "Standards for Educational and Psychological
16 Testing." An applicant {may have} WHO HAS passed an existing nationally
17 recognized examination, as approved by the {council} SECRETARY, prior to
18 the effective date of this article SHALL BE IN COMPLIANCE WITH THIS
19 PARAGRAPH; and
20 3. Upon submission of an application and payment of the application
21 and licensure {fees} FEE to the secretary, the secretary shall issue a
22 home inspector`s license to a person who holds a valid license as a home
23 inspector issued by another state or possession of the United States or
24 the District of Columbia which has standards substantially equivalent to
25 those of this state as determined by the SECRETARY, IN CONSULTATION WITH
26 THE council.
27 S 4. Section 444-f of the real property law, as added by a chapter of
28 the laws of 2004 amending the real property law relating to establishing
29 the home inspection professional licensing act, as proposed in legisla-
30 tive bill number A. 76-B, is amended to read as follows:
31 S 444-f. License periods, renewals and fees. 1. Home inspector
32 licenses and renewals thereof shall be issued for a period of two years,
33 except that the secretary may, in order to stagger the expiration date
34 thereof, provide that those licenses first issued or renewed after the
35 effective date of this section shall expire or become void on a date
36 fixed by the secretary, not sooner than six months nor later than twen-
37 ty-nine months after the date of issue. No renewal of a license shall
38 be issued unless the applicant has successfully completed a course of
39 continuing education approved by the SECRETARY, IN CONSULTATION WITH THE
40 council.
41 2. The secretary shall collect a fee of two hundred fifty dollars for
42 the first application for a license and the license as a home inspector.
43 The secretary shall collect a fee of one hundred dollars to renew a home
44 inspector license. THE SECRETARY SHALL COLLECT AN EXAMINATION FEE OF
45 FIFTY DOLLARS. All fees and any fines imposed by the secretary pursuant
46 to this article shall be {paid to the department of state and shall
47 first be dedicated to all proper expenses incurred by the secretary and
48 the council to administer this article. Funds in excess of expenses
49 shall be forwarded to the state treasurer and become part of the general
50 fund} DEPOSITED IN THE BUSINESS AND LICENSING SERVICES ACCOUNT ESTAB-
51 LISHED PURSUANT TO SECTION NINETY-SEVEN-Y OF THE STATE FINANCE LAW.
52 S 5. Subdivision 3 of section 444-g of the real property law, as added
53 by a chapter of the laws of 2004 amending the real property law relating
54 to establishing the home inspection professional licensing act, as
55 proposed in legislative bill number A. 76-B, is amended to read as
56 follows:
S. 7771 4
1 3. {After} NO LATER THAN FIVE BUSINESS DAYS AFTER the completion of a
2 home inspection on behalf of a client, each home inspector shall provide
3 such client with a written report of the findings of such inspection.
4 The home inspection shall clearly identify in the written report which
5 systems and components of the residential building were observed. Every
6 such written report and the information contained therein shall be
7 deemed confidential and shall not be disclosed without the express
8 consent of the client; PROVIDED, HOWEVER, THAT DEPARTMENT REPRESEN-
9 TATIVES, CONDUCTING AN INVESTIGATION OR OTHER OFFICIAL BUSINESS FOR THE
10 PURPOSE OF ENFORCING THIS ARTICLE, SHALL HAVE ACCESS TO SUCH REPORTS AND
11 THE INFORMATION CONTAINED THEREIN.
12 S 6. Subdivision 1 of section 444-h of the real property law, as added
13 by a chapter of the laws of 2004 amending the real property law relating
14 to establishing the home inspection professional licensing act, as
15 proposed in legislative bill number A. 76-B, is amended to read as
16 follows:
17 1. The secretary may refuse to grant or may suspend or revoke a home
18 inspector license, {or in lieu thereof} AND MAY impose a civil penalty
19 not to exceed one thousand dollars per violation, upon proof to the
20 satisfaction of the secretary that the holder thereof has:
21 (a) Violated the provisions of subdivision four of section four
22 hundred forty-four-g of this article;
23 (b) Disclosed any information concerning the results of the home
24 inspection without the approval of the client or the client`s represen-
25 tatives;
26 (c) Accepted compensation from more than one interested party for the
27 same service without the consent of all interested parties;
28 (d) Accepted commissions or allowances, directly or indirectly, from
29 other parties dealing with the client in connection with work for which
30 the licensee is responsible;
31 (e) Failed to disclose promptly to a client information about any
32 business interest of the licensee which may reasonably affect the client
33 in connection with the home inspection; {or}
34 (f) Been convicted of a felony involving fraud, theft, perjury or
35 bribery{.};
36 (G) FAILED TO PAY A FINE OR RESTITUTION ORDERED BY THE SECRETARY WITH-
37 IN A REASONABLE TIME; OR
38 (H) MADE A WILLFULLY FALSE STATEMENT IN THE CONTEXT OF HOME INSPECTION
39 ACTIVITIES OR AN APPLICATION FOR LICENSURE PURSUANT TO THIS ARTICLE.
40 S 7. Section 444-i of the real property law, as added by a chapter of
41 the laws of 2004 amending the real property law relating to establishing
42 the home inspection professional licensing act, as proposed in legisla-
43 tive bill number A. 76-B, is amended to read as follows:
44 S 444-i. Denial of license; complaints; notice of hearing. {1. Denial
45 of license.} The department shall, before making a final determination
46 to deny an application for a license, REVOKE A LICENSE, SUSPEND A
47 LICENSE, ISSUE A REPRIMAND, OR IMPOSE A CIVIL PENALTY FOR VIOLATION OF
48 THIS ARTICLE, notify the applicant OR LICENSEE in writing of the reasons
49 for such proposed denial, REVOCATION, SUSPENSION, REPRIMAND, OR IMPOSI-
50 TION OF A CIVIL PENALTY and {shall} afford the applicant OR LICENSEE an
51 opportunity to be heard in person or by counsel {prior to denial of the
52 application}. Such notification shall be served personally or by certi-
53 fied mail or in any manner authorized by the civil practice law and
54 rules for service of a summons. If a hearing is requested, such hearing
55 shall be held at such time and place as the department shall prescribe
56 AND SHALL BE CONDUCTED IN ACCORDANCE WITH THE PROVISIONS OF THE STATE
S. 7771 5
1 ADMINISTRATIVE PROCEDURE ACT. If the applicant OR LICENSEE fails to make
2 a written request for a hearing within thirty days after receipt of such
3 notification, then the notification {of denial} shall become the final
4 determination of the department. The department, acting by such officer
5 or person in the department as the secretary may designate, shall have
6 the power to subpoena and bring before the officer or person so desig-
7 nated any person in this state and administer an oath to and take testi-
8 mony of any person or cause his or her deposition to be taken. A subpoe-
9 na issued under this section shall be regulated by the civil practice
10 law and rules. If, after such hearing, the {application} LICENSE is
11 denied, REVOKED, OR SUSPENDED, A REPRIMAND IS ISSUED, OR A CIVIL PENALTY
12 IS IMPOSED, written notice of such {denial} DETERMINATION shall be
13 served upon the applicant OR LICENSEE personally or by certified mail or
14 in any manner authorized by the civil practice law and rules for the
15 service of a summons.
16 {2. Revocation, suspension, reprimands, fines; unlicensed activities.
17 The department shall, before revoking or suspending any license or
18 imposing any fine or reprimand on the holder thereof, or before issuing
19 any order directing the cessation of unlicensed activities, and at least
20 ten days prior to the date set for the hearing, notify in writing the
21 holder of such license, or the person alleged to have engaged in unli-
22 censed activities, of any charges made and shall afford such person an
23 opportunity to be heard in person or by counsel in reference thereto.
24 Such written notice may be served by delivery thereof personally to the
25 licensee or person charged, or by mailing the same by certified mail to
26 the last known business address of such person, or by any method author-
27 ized by the civil practice law and rules for the service of a summons.
28 The hearing on such charges shall be conducted at such time and place as
29 the department shall prescribe and shall be conducted in accordance with
30 the provisions of the state administrative procedure act.
31 3. The department, acting by such officer or person in the department
32 as the secretary may designate, shall have the power to subpoena and
33 bring before the officer or person so designated any person in this
34 state and administer an oath to and take testimony of any person or
35 cause his or her deposition to be taken. A subpoena issued under this
36 section shall be regulated by the civil practice law and rules.}
37 S 8. Section 444-j of the real property law, as added by a chapter of
38 the laws of 2004 amending the real property law relating to establishing
39 the home inspection professional licensing act, as proposed in legisla-
40 tive bill number A.76-B, is amended to read as follows:
41 S 444-j. Practice of architecture and professional engineering. A
42 person regulated by the state of New York to engage in the practice of
43 architecture when acting within the scope of {the} THAT practice, a
44 person licensed in the state of New York to practice professional engi-
45 neering when acting within the scope of that practice or a person who is
46 employed as a code enforcement official by the state or a political
47 subdivision thereof when acting within the scope of that government
48 employment may perform home inspections without need of licensure pursu-
49 ant to this article.
50 S 9. Section 444-n of the real property law, as added by a chapter of
51 the laws of 2004 amending the real property law relating to establishing
52 the home inspection professional licensing act, as proposed in legisla-
53 tive bill number A.76-B, is amended to read as follows:
54 S 444-n. Unlicensed activities. The secretary may issue an order
55 REQUIRING RESTITUTION AND/OR directing the cessation of any activity for
56 which a license is required by this article upon a determination that a
S. 7771 6
1 person has engaged in or followed the business or occupation of, or held
2 himself, herself, or itself out as or acted as, temporarily or other-
3 wise, a home inspector within this state without a valid license {being
4 in effect}. The department shall, before making such determination and
5 order, GIVE SUCH PERSON NOTICE AS PROVIDED IN SECTION FOUR HUNDRED
6 FORTY-FOUR-I OF THIS ARTICLE AND afford such person an opportunity to be
7 heard in person or by counsel in reference thereto in an adjudicatory
8 proceeding held pursuant to this article.
9 S 10. Section 444-o of the real property law, as added by a chapter of
10 the laws of 2004 amending the real property law relating to establishing
11 the home inspection professional licensing act, as proposed in legisla-
12 tive bill number A.76-B, is amended to read as follows:
13 S 444-o. Violations and penalties FOR UNLICENSED ACTIVITIES. Any
14 person SUBJECT TO AN ADMINISTRATIVE ORDER ISSUED BY THE SECRETARY
15 DIRECTING THE CESSATION OF ANY ACTIVITY FOR WHICH A LICENSE IS REQUIRED
16 AND/OR SUSPENDING OR REVOKING A LICENSE PREVIOUSLY ISSUED who directly
17 or indirectly engages in the business of home inspection, holds himself
18 {or}, herself, OR ITSELF out to the public as being able to engage in
19 the business of home inspection without a license therefor, engages in
20 the business of home inspection after having his or her license revoked
21 or suspended, or without a license to engage in the business of home
22 inspection, directly or indirectly employs, permits or authorizes an
23 unlicensed person to engage in the business of home inspection {in
24 violation of an order directing the cessation of unlicensed activity
25 issued by the secretary pursuant to section four hundred forty-four-n of
26 this article} shall be guilty of a misdemeanor and upon the first
27 conviction thereof shall be sentenced to a fine of not more than one
28 thousand dollars; upon a second or subsequent conviction thereof shall
29 be sentenced to a fine of not less than one thousand dollars nor more
30 than five thousand dollars. Each violation of this article shall be
31 deemed a separate offense.
32 S 11. Section 2 of a chapter of the laws of 2004 amending the real
33 property law relating to establishing the home inspection professional
34 licensing act, as proposed in legislative bill number A.76-B, is amended
35 to read as follows:
36 S 2. This act shall take effect {on the three hundred sixty-fifth day
37 after it shall have become a law} DECEMBER 31, 2005; provided that the
38 secretary of state is authorized to promulgate any and all rules and
39 regulations and take any other measures necessary to implement this act
40 on its effective date on or before such date.
41 S 12. This act shall take effect immediately; provided that sections
42 one through ten of this act shall take effect on the same date and in
43 the same manner as a chapter of the laws of 2004 amending the real prop-
44 erty law relating to establishing the home inspection professional
45 licensing act, as proposed in legislative bill number A.76-B, takes
46 effect.
.SO DOC S 7771 *END* BTXT 2003
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