H. B. 2801
(By Delegates Tucker, Staton, Marshall,
Varner, Caputo, Kuhn and Hubbard)
[Introduced March 8, 2001; referred to the
Committee on Industry and Labor, Economic Development and
Small Business then Government Organization.]
A BILL to amend and reenact section fourteen, article eleven,
chapter twenty-one of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to knowingly
employing aliens.
Be it enacted by the Legislature of West Virginia:
That section fourteen, article eleven, chapter twenty-one of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 11. WEST VIRGINIA CONTRACTOR LICENSING ACT.
§21-11-14. Disciplinary powers of the board.
(a) The board has the power and authority to impose the
following disciplinary actions:
(1) Permanently revoke a license;
(2) Suspend a license for a specified period;
(3) Censure or reprimand a licensee;
(4) Impose limitations or conditions on the professional
practice of a licensee;
(5) Impose requirements for remedial professional education to
correct deficiencies in the education, training and skill of a
licensee; and
(6) Impose a probationary period requiring a licensee to
report regularly to the board on matters related to the grounds for
probation; the board may withdraw probationary status if the
deficiencies that require the sanction are remedied.
(b) The board may summarily suspend a licensee pending a
hearing or pending an appeal after hearing upon a determination
that the licensee poses a clear, significant and immediate danger
to the public health and safety.
(c) The board may reinstate the suspended or revoked license
of a person, if, upon a hearing, the board finds and determines
that such the person is able to practice with skill and safety.
(d) The board may accept the voluntary surrender of a license:
Provided, That such the license may not be reissued unless the
board determines that the licensee is competent to resume practice
and the licensee pays the appropriate renewal fee.
(e) A person or contractor adversely affected by disciplinary
action may appeal to the board within sixty days of the date such
the disciplinary action is taken. The board shall hear the appeal
within thirty days from receipt of notice of appeal in accordance with the provisions of chapter twenty-nine-a of this code.
Hearings shall be held in Charleston. The board may retain a
hearing examiner to conduct the hearings and present proposed
findings of fact and conclusions of law to the board for its
action.
(f) Any party adversely affected by any action of the board
may appeal such the action pursuant to the provisions of chapter
twenty-nine-a of this code.
(g) The following are causes for disciplinary action:
(1) Abandonment, without legal excuse, of any construction
project or operation engaged in or undertaken by the licensee;
(2) Willful failure or refusal to complete a construction
project or operation with reasonable diligence, thereby causing
material injury to another;
(3) Willful departure from or disregard of plans or
specifications in any material respect without the consent of the
parties to the contract;
(4) Willful or deliberate violation of the building laws or
regulations of the state or of any political subdivision thereof;
(5) Willful or deliberate failure to pay any moneys when due
for any materials free from defect, or services rendered in
connection with such the person's operations as a contractor when
such the person has the capacity to pay or when such the person has
received sufficient funds under the contract as payment for the particular construction work for which the services or materials
were rendered or purchased, or the fraudulent denial of any amount
with intent to injure, delay or defraud the person to whom the debt
is owed;
(6) Willful or deliberate misrepresentation of a material fact
by an applicant or licensee in obtaining a license, or in
connection with official licensing matters;
(7) Willful or deliberate failure to comply in any material
respect with the provisions of this article or the rules of the
board;
(8) Willfully or deliberately acting in the capacity of a
contractor when not licensed, or as a contractor by a person other
than the person to whom the license is issued except as an employee
of the licensee;
(9) Willfully or deliberately acting with the intent to evade
the provisions of this article by: (i) Aiding or abetting an
unlicensed person to evade the provisions of this article; (ii)
combining or conspiring with an unlicensed person to perform an
unauthorized act; (iii) allowing a license to be used by an
unlicensed person; or (iv) attempting to assign, transfer or
otherwise dispose of a license or permitting the unauthorized use
thereof;
(10) Engaging in any willful, fraudulent or deceitful act in
the capacity as a contractor whereby substantial injury is sustained by another; or
(11) Performing work which is not commensurate with a general
standard of the specific classification of contractor or which is
below a building or construction code adopted by the municipality
or county in which the work is performed; or
(12) Knowingly employing a person or persons who do not have
the legal right to be employed in the United States.
(h) In all disciplinary hearings the board has the burden of
proof as to all matters in contention. No disciplinary action
shall be taken by the board except on the affirmative vote of at
least six members thereof. Except for violations of section
thirteen of this article, no disciplinary action shall be taken by
the board for any such cause as is set out herein unless the
licensee has been finally adjudicated as having perpetrated such
the act in a court of record: Provided, That after the effective
date of the legislative rules required by subsection (i) of this
section, no disciplinary action may be taken by the board for any
cause except under the same procedures applicable to all other
state boards of examination or registration set forth in section
eight, article one, chapter thirty of this code. Other than as
specifically set out herein, the board shall have no power or
authority to impose or assess damages.
(i) On or before the first day of January, two thousand one,
the board shall propose rules for legislative approval in accordance with the provisions of article three, chapter
twenty-nine-a of this code, which shall specify a procedure for the
investigation and resolution of all complaints against persons
licensed under this chapter.
NOTE: The purpose of this bill is to subject licensed
contractors to discipline by the West Virginia contractor licensing
board for employing aliens who are not authorized to be employed.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.