Originally Posted By: myoung
This post was automatically imported from our archived forum.
Okay, so I found this on the NYS assembly web site but I don’t see any grandfathering language or E&O insurance…I will attempt to talk to someone there this week.
Later,
Mark
S T A T E O F N E W Y O R K
________________________________________________________________________
160
2005-2006 Regular Sessions
I N S E N A T E
January 7, 2005
___________
Introduced by Sen. VOLKER -- read twice and ordered printed, and when
printed to be committed to the Committee on Judiciary
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 chap-
ter 461 of the laws of 2004 amending the real property law relating to
establishing the home inspection professional licensing act, in
relation to the effective 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 chapter
2 461 of the laws of 2004, is amended to read as follows:
3 S 444-b. Definitions. As used in this article, the following terms
4 shall have the following meanings:
5 1. "Council" means the state home inspection council established
6 pursuant to the provisions of section four hundred forty-four-c of this
7 article.
8 2. "Client" means any person who engages or seeks to engage the
9 services of a home inspector for the purpose of obtaining inspection of
10 and written report about the condition of a residential building.
11 3. "Department" means the department of state.
12 4. "Home inspector" means a person licensed as a home inspector pursu-
13 ant to the provisions of this article.
14 5. "Home inspection" means the process by which a home inspector
15 observes and provides a written report of the systems and components of
16 a residential building including but not limited to heating system,
17 cooling system, plumbing system, electrical system, structural compo-
18 nents, foundation, roof, masonry structure, exterior and interior compo-
19 nents or any other related residential building component as recommended
20 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.
LBD03717-01-5
S. 160 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 chapter 461 of the laws of 2004, are amended to read as
15 follows:
16 1. There is hereby established a state home inspection council within
17 the department. The council shall consist of the secretary or the
18 secretary`s designee and six additional members who are residents of the
19 state, of whom {four} THREE shall be persons licensed and actively
20 engaged in the business of home inspection in the state of New York for
21 at least five years immediately preceding their appointment and {two}
22 THREE of whom shall be consumers who are the owners and principal resi-
23 dents of a residential building in the state of New York. Appointments
24 shall reflect the geographical diversity of the state.
25 2. For a period of one year after the effective date of this section,
26 and notwithstanding any other provisions of this section to the contra-
27 ry, the first {four} THREE home inspectors appointed as members of the
28 committee shall not be required, at the time of their first appointment,
29 to be licensed to practice home inspection, provided that such members
30 be licensed pursuant to this article within one year of appointment.
31 3. The governor shall appoint each member of the council for a term of
32 three years except that of the members first appointed, two shall serve
33 for terms of three years, two shall serve for terms of two years and two
34 shall serve for a term of one year. The governor shall appoint {two} ONE
35 home {inspectors} INSPECTOR and one consumer SOLELY IN HIS OR HER
36 DISCRETION, ONE HOME INSPECTOR AND ONE CONSUMER upon the recommendation
37 of the temporary president of the senate, and {two} ONE home {inspec-
38 tors} INSPECTOR and one consumer upon the recommendation of the speaker
39 of the assembly. Each member shall hold office until his or her succes-
40 sor has been qualified. Any vacancy in the membership of the council
41 shall be filled for the unexpired term in the manner provided for the
42 original appointment. No member of the council may serve more than two
43 successive terms in addition to any unexpired term to which he or she
44 has been appointed.
45 S 3. Paragraphs (b) and (c) of subdivision 1 and subdivision 3 of
46 section 444-e of the real property law, as added by chapter 461 of the
47 laws of 2004, are amended to read as follows:
48 (b) (i) have successfully completed a course of study of not less than
49 one hundred forty hours approved by the SECRETARY, IN CONSULTATION WITH
50 THE council, of which at least forty hours shall have been in the form
51 of unpaid field based inspections in the presence of and under the
52 direct supervision of a home inspector licensed by the state of New York
53 or a professional engineer or architect regulated by the state of New
54 York who oversees and takes full responsibility for the inspection and
55 any report {produced} PROVIDED TO A CLIENT; or
S. 160 3
1 (ii) have performed not less than one hundred home inspections in the
2 presence of and under the direct supervision of a home inspector
3 licensed by the state of New York or a professional engineer or archi-
4 tect regulated by the state of New York who oversees and takes full
5 responsibility for the inspection and any report {produced} PROVIDED TO
6 A CLIENT; and
7 (c) have passed a written or electronic examination approved by the
8 SECRETARY, IN CONSULTATION WITH THE council, and designed to test compe-
9 tence in home inspection practice as determined by a recognized role
10 definition methodology and developed and administered to the extent
11 practicable in a manner consistent with the American Educational
12 Research Association`s "Standards for Educational and Psychological
13 Testing." An applicant {may have} WHO HAS passed an existing nationally
14 recognized examination, as approved by the {council} SECRETARY, prior to
15 the effective date of this article SHALL BE IN COMPLIANCE WITH THIS
16 PARAGRAPH; and
17 3. Upon submission of an application and payment of the application
18 and licensure {fees} FEE to the secretary, the secretary shall issue a
19 home inspector`s license to a person who holds a valid license as a home
20 inspector issued by another state or possession of the United States or
21 the District of Columbia which has standards substantially equivalent to
22 those of this state as determined by the SECRETARY, IN CONSULTATION WITH
23 THE council.
24 S 4. Section 444-f of the real property law, as added by chapter 461
25 of the laws of 2004, is amended to read as follows:
26 S 444-f. License periods, renewals and fees. 1. Home inspector
27 licenses and renewals thereof shall be issued for a period of two years,
28 except that the secretary may, in order to stagger the expiration date
29 thereof, provide that those licenses first issued or renewed after the
30 effective date of this section shall expire or become void on a date
31 fixed by the secretary, not sooner than six months nor later than twen-
32 ty-nine months after the date of issue. No renewal of a license shall
33 be issued unless the applicant has successfully completed a course of
34 continuing education approved by the SECRETARY, IN CONSULTATION WITH THE
35 council.
36 2. The secretary shall collect a fee of two hundred fifty dollars for
37 the first application for a license and the license as a home inspector.
38 The secretary shall collect a fee of one hundred dollars to renew a home
39 inspector license. THE SECRETARY SHALL COLLECT AN EXAMINATION FEE OF
40 FIFTY DOLLARS. All fees and any fines imposed by the secretary pursuant
41 to this article shall be {paid to the department of state and shall
42 first be dedicated to all proper expenses incurred by the secretary and
43 the council to administer this article. Funds in excess of expenses
44 shall be forwarded to the state treasurer and become part of the general
45 fund} DEPOSITED IN THE BUSINESS AND LICENSING SERVICES ACCOUNT ESTAB-
46 LISHED PURSUANT TO SECTION NINETY-SEVEN-Y OF THE STATE FINANCE LAW.
47 S 5. Subdivision 3 of section 444-g of the real property law, as added
48 by chapter 461 of the laws of 2004, is amended to read as follows:
49 3. {After} NO LATER THAN FIVE BUSINESS DAYS AFTER the completion of a
50 home inspection on behalf of a client, each home inspector shall provide
51 such client with a written report of the findings of such inspection.
52 The home inspection shall clearly identify in the written report which
53 systems and components of the residential building were observed. Every
54 such written report and the information contained therein shall be
55 deemed confidential and shall not be disclosed without the express
56 consent of the client; PROVIDED, HOWEVER, THAT DEPARTMENT REPRESEN-
S. 160 4
1 TATIVES, CONDUCTING AN INVESTIGATION OR OTHER OFFICIAL BUSINESS FOR THE
2 PURPOSE OF ENFORCING THIS ARTICLE, SHALL HAVE ACCESS TO SUCH REPORTS AND
3 THE INFORMATION CONTAINED THEREIN.
4 S 6. Subdivision 1 of section 444-h of the real property law, as added
5 by chapter 461 of the laws of 2004, is amended to read as follows:
6 1. The secretary may refuse to grant or may suspend or revoke a home
7 inspector license, {or in lieu thereof} AND MAY impose a civil penalty
8 not to exceed one thousand dollars per violation, upon proof to the
9 satisfaction of the secretary that the holder thereof has:
10 (a) Violated the provisions of subdivision four of section four
11 hundred forty-four-g of this article;
12 (b) Disclosed any information concerning the results of the home
13 inspection without the approval of the client or the client`s represen-
14 tatives;
15 (c) Accepted compensation from more than one interested party for the
16 same service without the consent of all interested parties;
17 (d) Accepted commissions or allowances, directly or indirectly, from
18 other parties dealing with the client in connection with work for which
19 the licensee is responsible;
20 (e) Failed to disclose promptly to a client information about any
21 business interest of the licensee which may reasonably affect the client
22 in connection with the home inspection; {or}
23 (f) Been convicted of a felony involving fraud, theft, perjury or
24 bribery{.};
25 (G) FAILED TO PAY A FINE OR RESTITUTION ORDERED BY THE SECRETARY WITH-
26 IN A REASONABLE TIME; OR
27 (H) MADE A WILLFULLY FALSE STATEMENT IN THE CONTEXT OF HOME INSPECTION
28 ACTIVITIES OR AN APPLICATION FOR LICENSURE PURSUANT TO THIS ARTICLE.
29 S 7. Section 444-i of the real property law, as added by chapter 461
30 of the laws of 2004, is amended to read as follows:
31 S 444-i. Denial of license; complaints; notice of hearing. {1. Denial
32 of license.} The department shall, before making a final determination
33 to deny an application for a license, REVOKE A LICENSE, SUSPEND A
34 LICENSE, ISSUE A REPRIMAND, OR IMPOSE A CIVIL PENALTY FOR VIOLATION OF
35 THIS ARTICLE, notify the applicant OR LICENSEE in writing of the reasons
36 for such proposed denial, REVOCATION, SUSPENSION, REPRIMAND, OR IMPOSI-
37 TION OF A CIVIL PENALTY and {shall} afford the applicant OR LICENSEE an
38 opportunity to be heard in person or by counsel {prior to denial of the
39 application}. Such notification shall be served personally or by certi-
40 fied mail or in any manner authorized by the civil practice law and
41 rules for service of a summons. If a hearing is requested, such hearing
42 shall be held at such time and place as the department shall prescribe
43 AND SHALL BE CONDUCTED IN ACCORDANCE WITH THE PROVISIONS OF THE STATE
44 ADMINISTRATIVE PROCEDURE ACT. If the applicant OR LICENSEE fails to make
45 a written request for a hearing within thirty days after receipt of such
46 notification, then the notification {of denial} shall become the final
47 determination of the department. The department, acting by such officer
48 or person in the department as the secretary may designate, shall have
49 the power to subpoena and bring before the officer or person so desig-
50 nated any person in this state and administer an oath to and take testi-
51 mony of any person or cause his or her deposition to be taken. A subpoe-
52 na issued under this section shall be regulated by the civil practice
53 law and rules. If, after such hearing, the {application} LICENSE is
54 denied, REVOKED, OR SUSPENDED, A REPRIMAND IS ISSUED, OR A CIVIL PENALTY
55 IS IMPOSED, written notice of such {denial} DETERMINATION shall be
56 served upon the applicant OR LICENSEE personally or by certified mail or
S. 160 5
1 in any manner authorized by the civil practice law and rules for the
2 service of a summons.
3 {2. Revocation, suspension, reprimands, fines; unlicensed activities.
4 The department shall, before revoking or suspending any license or
5 imposing any fine or reprimand on the holder thereof, or before issuing
6 any order directing the cessation of unlicensed activities, and at least
7 ten days prior to the date set for the hearing, notify in writing the
8 holder of such license, or the person alleged to have engaged in unli-
9 censed activities, of any charges made and shall afford such person an
10 opportunity to be heard in person or by counsel in reference thereto.
11 Such written notice may be served by delivery thereof personally to the
12 licensee or person charged, or by mailing the same by certified mail to
13 the last known business address of such person, or by any method author-
14 ized by the civil practice law and rules for the service of a summons.
15 The hearing on such charges shall be conducted at such time and place as
16 the department shall prescribe and shall be conducted in accordance with
17 the provisions of the state administrative procedure act.
18 3. The department, acting by such officer or person in the department
19 as the secretary may designate, shall have the power to subpoena and
20 bring before the officer or person so designated any person in this
21 state and administer an oath to and take testimony of any person or
22 cause his or her deposition to be taken. A subpoena issued under this
23 section shall be regulated by the civil practice law and rules.}
24 S 8. Section 444-j of the real property law, as added by chapter 461
25 of the laws of 2004, is amended to read as follows:
26 S 444-j. Practice of architecture and professional engineering. A
27 person regulated by the state of New York to engage in the practice of
28 architecture when acting within the scope of {the} THAT practice, a
29 person licensed in the state of New York to practice professional engi-
30 neering when acting within the scope of that practice or a person who is
31 employed as a code enforcement official by the state or a political
32 subdivision thereof when acting within the scope of that government
33 employment may perform home inspections without need of licensure pursu-
34 ant to this article.
35 S 9. Section 444-n of the real property law, as added by chapter 461
36 of the laws of 2004, is amended to read as follows:
37 S 444-n. Unlicensed activities. The secretary may issue an order
38 REQUIRING RESTITUTION AND/OR directing the cessation of any activity for
39 which a license is required by this article upon a determination that a
40 person has engaged in or followed the business or occupation of, or held
41 himself, herself, or itself out as or acted as, temporarily or other-
42 wise, a home inspector within this state without a valid license {being
43 in effect}. The department shall, before making such determination and
44 order, GIVE SUCH PERSON NOTICE AS PROVIDED IN SECTION FOUR HUNDRED
45 FORTY-FOUR-I OF THIS ARTICLE AND afford such person an opportunity to be
46 heard in person or by counsel in reference thereto in an adjudicatory
47 proceeding held pursuant to this article.
48 S 10. Section 444-o of the real property law, as added by chapter 461
49 of the laws of 2004, is amended to read as follows:
50 S 444-o. Violations and penalties FOR UNLICENSED ACTIVITIES. Any
51 person SUBJECT TO AN ADMINISTRATIVE ORDER ISSUED BY THE SECRETARY
52 DIRECTING THE CESSATION OF ANY ACTIVITY FOR WHICH A LICENSE IS REQUIRED
53 AND/OR SUSPENDING OR REVOKING A LICENSE PREVIOUSLY ISSUED who directly
54 or indirectly engages in the business of home inspection, holds himself
55 {or}, herself, OR ITSELF out to the public as being able to engage in
56 the business of home inspection without a license therefor, engages in
S. 160 6
1 the business of home inspection after having his or her license revoked
2 or suspended, or without a license to engage in the business of home
3 inspection, directly or indirectly employs, permits or authorizes an
4 unlicensed person to engage in the business of home inspection {in
5 violation of an order directing the cessation of unlicensed activity
6 issued by the secretary pursuant to section four hundred forty-four-n of
7 this article} shall be guilty of a misdemeanor and upon the first
8 conviction thereof shall be sentenced to a fine of not more than one
9 thousand dollars; upon a second or subsequent conviction thereof shall
10 be sentenced to a fine of not less than one thousand dollars nor more
11 than five thousand dollars. Each violation of this article shall be
12 deemed a separate offense.
13 S 11. Section 2 of chapter 461 of the laws of 2004 amending the real
14 property law relating to establishing the home inspection professional
15 licensing act, is amended to read as follows:
16 S 2. This act shall take effect {on the three hundred sixty-fifth day
17 after it shall have become a law} DECEMBER 31, 2005; provided that the
18 secretary of state is authorized to promulgate any and all rules and
19 regulations and take any other measures necessary to implement this act
20 on its effective date on or before such date.
21 S 12. This act shall take effect immediately; provided that sections
22 one through ten of this act shall take effect on the same date and in
23 the same manner as chapter 461 of the laws of 2004 takes effect.
.SO DOC S 160 *END* BTXT 2005
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