2007 -- S 0297

=======

LC00885

=======

STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2007

____________

A N A C T

RELATING TO BUSINESSES AND PROFESSIONS - UNDERGROUND UTILITY

CONTRACTORS

     Introduced By: Senator Roger R. Badeau

     Date Introduced: February 07, 2007

     Referred To: Senate Labor

It is enacted by the General Assembly as follows:

1-1

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

1-2

PROFESSIONS" is hereby amended by adding thereto the following chapter:

1-3

     CHAPTER 20.1

1-4

UNDERGROUND UTILITY CONTRACTORS

1-5

     5-20.1-1. Purpose. – The purpose of this chapter is to establish provisions, qualifications

1-6

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

1-7

underground utilities.

1-8

     5-20.1-2. Definitions. – The following words and phrases shall have the meanings state

1-9

herein when used in this chapter:

1-10

     (1) “Underground utility contractor” means any corporation, association, individual

1-11

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

1-12

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

1-13

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

1-14

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

1-15

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

1-16

“underground utility contractor” shall include any agent, servant and/or employees of a licensed

1-17

underground utility contractor. The term “underground utility contractor” does not include

1-18

individuals licensed under chapter 20 of title 5, entitled “Rhode Island Plumbing License Law:”

2-1

     (2) The term “underground utility” means the installation, repair, alteration or

2-2

replacement of underground utilities which shall include, but are not limited to, sewer lines, storm

2-3

drainage lines or mains and laterals, laying drains and related services outside of buildings,

2-4

making connections with public and/or private underground utilities provided that such work is to

2-5

be done between the main, lateral related services and/or appurtenances to within five (5) feet of

2-6

the outer wall of a building or structure.

2-7

     (3) “Department” means the department of labor and training.

2-8

     (4) “Director” means the director of the department of labor and training.

2-9

     5-20.1-3. License required. – (a) It is unlawful for any underground utility contractor to

2-10

engage in the installation, repair, alteration or replacement of sewer lines, storm drainage lines

2-11

and services, located between the main or lateral services and/or appurtenances to within five (5)

2-12

feet of the outer walls of a building or structure without a valid annual license issued by the

2-13

director.

2-14

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

2-15

shall be exempt from the requirement to obtain both an underground utility contractor’s license as

2-16

required by chapter 20.1 of title 5 and an installers license as required by chapter 56 of title 5

2-17

provided that master plumbers are required to comply with the provisions of section 5-20.1-10

2-18

and 5-56-7.

2-19

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

2-20

be exempt from the provisions of this chapter.

2-21

     5-20.1-4. Conditions for obtaining an underground utility contractor’s license. – (a)

2-22

To obtain a license under chapter 20.1 of title 5, an underground utility contractor must submit to

2-23

the director an application for an underground utility contractor’s license completed in its

2-24

entirety, together with a fee of seventy-five dollars ($75.00). The application must also comply

2-25

with the following requirements:

2-26

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

2-27

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

2-28

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

2-29

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

2-30

director, intended to demonstrate an understanding of the rules and regulations, and an ability to

2-31

read and interpret approved plans and specifications. Any applicant who fails in an examination

2-32

for a license is permitted to take further examinations upon payment for each examination of the

2-33

prescribed fee.

2-34

     5-20.1-5. Expiration and renewal of licenses. – All licenses of underground utility

3-1

contractors issued by the division of professional regulation expire annually on the anniversary

3-2

date of the license’s issuance and may be renewed on or before that date for a period of one year,

3-3

upon payment of seventy-five dollars ($75.00) and compliance with section 5-20.1-10.

3-4

     5-20.1-6. Conduct of examinations. – The department, shall provide and conduct

3-5

examinations at least three (3) times each year. All examinations shall be conducted by the

3-6

department and shall be conducted at places designated by the department within the state,

3-7

consistent with the reasonable convenience of applicants.

3-8

     5-20.1-7. Issuance of license on examination – Notice to applicants. – (a) The director

3-9

of the department of labor and training shall approve or deny applications for an underground

3-10

utility contractor’s license upon the recommendation of the department, as soon after the

3-11

examination as is practicable. Each applicant who has successfully passed the examination and

3-12

has had an application approved for a license as an underground utility contractor shall have

3-13

issued and mailed to them, by the department, a certificate of license specifying that applicant as

3-14

an underground utility contractor.

3-15

     (b) All certificates of license are issued by the department.

3-16

     5-20.1-8. Duties of director. – The director of the department of labor shall:

3-17

     (1) Prepare, provide and conduct examinations;

3-18

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

3-19

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

3-20

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

3-21

licenses and shall be open to public inspection; and

3-22

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

3-23

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

3-24

     5-20.1-9. Licensing of underground utility contractors granted without examination.

3-25

– (a) After enactment of this chapter and at any time prior to the expiration of twelve (12) months

3-26

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

3-27

the fees required in this chapter, issue through the department of labor and training division of

3-28

professional regulation, a license to any applicant who shall present satisfactory evidence as

3-29

described in subsection (b) of this section that the applicant has the qualifications for issuance of

3-30

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

3-31

contractor license after the initial “grandfather” window, any eligible underground utility

3-32

contractor shall be required to pass a written examination and show the aforementioned proof of

3-33

eligibility.

3-34

     (b) Satisfactory evidence shall be any of the following that is applicable:

4-1

     (1) The owner(s) of an enterprise must have been active as a sewer/drain layer installer

4-2

for the previous three (3) year;

4-3

     (2) The contractor has been incorporated or has been registered to do business as a

4-4

sewer/drain layer installer;

4-5

     (3) Notarized conformation by three (3) sewer/drain layer installers of his, his or its

4-6

active standing as a sewer/drain layer installer; or

4-7

     (4) The contractor or licensee shall provide satisfactory evidence that they have been

4-8

granted a license as a sewer/drain layer installer by three (3) or more Rhode Island cities or towns

4-9

granting or issuing such a license.

4-10

     5-20.1-10. Responsibilities, performance and conduct. – A licensed underground

4-11

utility contractor shall adhere to the following:

4-12

     (1) Perform all work in compliance with plans and specification approved by the

4-13

appropriate authority having jurisdiction over the utility.

4-14

     (2) Perform all work in compliance with all federal, state and local health and safety

4-15

requirements.

4-16

     5-20.1-11. Bond requirement. – Every applicant for a certificate of license as an

4-17

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

4-18

alteration or replacement of sewer lines, storm drainage lines or water lines and related services in

4-19

accordance with this chapter, shall furnish a bond, in the sum of ten-thousand dollars

4-20

($10,000.00) with one or more sureties, satisfactory to the department of labor and training,

4-21

conditioned substantially that the applicant indemnifies and holds harmless the several cities and

4-22

towns of this state and their officers from all suits and actions of every name and descriptions

4-23

brought against any of those cities or towns or any of their officer and officers, for or on account

4-24

of any injuries or damages received or sustained by any person in consequence of or resulting

4-25

from any work performed by the applicant, or its employees, servants or agents, or of or from any

4-26

improper materials used in the work, or of or from any negligence in guarding the work, or of or

4-27

from any act or omission of the applicant, or its employees, servants or agents.

4-28

     5-20.1-12. License not transferable or assignable. – Underground utility contractor’s

4-29

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

4-30

ownership or upon suspension or revocation.

4-31

     5-20.1-13. Denial, suspension and revocation of licenses. – (a) The director of labor

4-32

and training may suspend or revoke the license of any underground utility contractor after a

4-33

hearing when the weight of the evidence establishes any one or more of the following specific

4-34

violations:

5-1

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

5-2

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

5-3

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

5-4

     (2) Willfully violating any underground utility ordinance, or rules of any city or town, or

5-5

any law of this state regulating the conduct of sewer and drain work;

5-6

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

5-7

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

5-8

underground utility work in violation of the provisions of this chapter;

5-9

     (4) Committing a felony; or

5-10

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

5-11

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

5-12

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

5-13

     5-20.1-14. Procedure for revocation of license. – (a) No proceeding to revoke a license,

5-14

as provided in this section, shall be instituted unless filed with the department of labor and

5-15

training within one year immediately following the date or dates of violation.

5-16

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

5-17

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

5-18

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

5-19

contractor shall be held unless there is first placed on file with the department a verified

5-20

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

5-21

which if proved would be sufficient to constitute a violation of one or more of the specification

5-22

for revocation of license as prescribed in chapter 5-20.1.

5-23

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

5-24

shall promptly set a date for a hearing of the charges of the complaint. The department shall

5-25

promptly, by registered or certified mail, forward to the licensee charged in the complaint a true

5-26

and correct copy of the complaint and notification of the time and place when and where a

5-27

hearing of those charges is to be held.

5-28

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

5-29

hearing of the charges specified in the complaint. No hearing upon the charges of the complaint

5-30

shall be held unless the records of the department contain evidence that the licensee charged in

5-31

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

5-32

days prior to the date of the hearing; provided, that the appearance of the charged licensee, either

5-33

in its own behalf or by counsel, constitutes proof that sufficient notice of the hearing was served.

5-34

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

6-1

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

6-2

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

6-3

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

6-4

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

6-5

     5-20.1-15. Subpoena of witnesses. – The department of labor and training shall have the

6-6

power to subpoena and bring before it, any witness to take testimony, either orally or by

6-7

deposition, or both, in any proceeding authorized by law.

6-8

     5-20.1-16. Administration of oaths. – The director of the department of labor and

6-9

training shall have power to administer oaths to witnesses at a hearing, which the department is

6-10

authorized by law to conduct, and any other oaths authorized or administered by the department.

6-11

     5-20.1-17. Recommendations of board – Order of director – Rehearing -- Review. –

6-12

Any applicant or licensee aggrieved by any decision or ruling of the department may appeal that

6-13

decision to the director of the department of labor and training who shall review the decision or

6-14

ruling. Upon review, the director shall order that the license of the licensee charged in the

6-15

complaint be revoked or the complaint shall be dismissed. A copy of that order is immediately

6-16

served upon the licensee either personally or by registered or certified mail. The order of the

6-17

department is final unless the charged licensee, the division or complainant, within twenty (20)

6-18

days after receipt of that order files with the director his or her motion, in writing, for a review of

6-19

the order by the director, specifying in the motion the points and reasons for the order. The filing

6-20

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

6-21

motion for a review by the director shall be immediately scheduled for a hearing by the director.

6-22

The decision of the director of the department after his or her review is final upon questions of

6-23

fact.

6-24

     5-20.1-18. Penalties for violations. – Violation of any provision of this chapter shall be

6-25

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

6-26

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

6-27

organization licensed or unlicensed by the department of labor and training, division of

6-28

professional regulation, shall be subject to a fine of five hundred dollars ($500.00) for the first

6-29

offense and for the second and subsequent violations of this chapter is subject to a fine of not less

6-30

than nine hundred fifty dollars ($950.00)

6-31

     5-20.1-19. Enforcement. – (a) It is the duty of the director of labor and training to

6-32

enforce the provisions of this chapter. The appropriate local municipal authority involved in the

6-33

day-to-day inspection of sewer or drain installations, shall assist the department in enforcing the

6-34

provisions of this chapter. The appropriate local municipality shall have the authority to demand

7-1

the production of the licenses required by this chapter on any site where underground utility

7-2

contractor work is being installed and have the authority to investigate, and where appropriate,

7-3

make complaints, pursuant to section 5-20.1-13, where sufficient evidence has been obtained to

7-4

sustain a reasonable belief that a violation of this chapter has occurred.

7-5

     5-20.1-20. Prosecution of violations and penalties. – It is the duty of the director of the

7-6

department of labor and training to fine any corporation, association, individual proprietorship,

7-7

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

7-8

organization violating any of the provisions of this chapter upon complaint being made whether

7-9

brought pursuant to section 5-20.1-13 and/or section 5-20.1-17.

7-10

     5-20.1-21. Injunctions. – Violations of this chapter may be enjoined upon bill of

7-11

complaint being filed in the superior court for the county in which those violations have been

7-12

committed, by the department or by any appropriate local municipal authority. An injunction

7-13

may be granted by the superior court after hearing in open court against any corporation,

7-14

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

7-15

liability partnership or other business organization which has violated any of the provisions of

7-16

this chapter, without regard to whether proceedings have been or may be instituted before the

7-17

department or whether criminal proceedings have been or may be instituted. No ex parte

7-18

restraining orders shall be issued in suits brought pursuant to this section.

7-19

     5-20.1-22. Investigation and prosecution of violations. – The chief of the section shall

7-20

act as an investigator with respect to the enforcement of all provisions of law relative to the

7-21

licensing of underground utility contractors, and to this effect whenever a complaint is made to

7-22

the director of the department of labor and training, or his or her designee, that provisions of this

7-23

chapter are being violated, the director, or his or her designee, may issue an order to cease and

7-24

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

7-25

contractors.

7-26

     5-20.1-23. Judicial review of proceedings. – Any further appeal from the actions of the

7-27

director of the department of labor and training is in accordance with the provisions of the

7-28

administrative procedures act, chapter 35 of title 42.

7-29

     5-20.1-24. Licensing authority. –The department of labor and training, acting through

7-30

its director and referred to as the “licensing authority,” carries out the functions and duties

7-31

conferred upon it by this chapter. The licensing authority adopts standards, rules and regulations

7-32

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

7-33

under this chapter and related activities.

7-34

     5-20.1-25. Municipal inspectors and installation permits. – Nothing contained in this

8-1

chapter prohibits any city or town from requiring permits for the installation, maintenance and

8-2

repair of underground utility systems and collecting fees for the installation and repair of

8-3

underground utility.

8-4

     5-20.1-26. Severability. – If any provision or part of this chapter, or its application to any

8-5

entity or circumstances, is held unconstitutional or otherwise invalid, the remaining provisions of

8-6

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

8-7

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

8-8

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

8-9

and Irrigators" is hereby repealed.

8-10

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

8-11

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

8-12

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

8-13

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

8-14

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

8-15

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

8-16

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

8-17

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

8-18

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

8-19

     SECTION 3. This act shall take effect upon passage.

=======

LC00885

=======

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO BUSINESSES AND PROFESSIONS - UNDERGROUND UTILITY

CONTRACTORS

***

9-1

     This act would establish guidelines for licensing underground utility contractors, and

9-2

regular licensing of individuals who install, repair or alter underground utilities.

9-3

     This act shall take effect upon passage.

=======

LC00885

=======