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Bill 237

Indicates Matter Stricken

Indicates New Matter

AMENDED

May 28, 2002

    S. 237

S. Printed 5/28/02--H.

Read the first time February 27, 2002.

TO AMEND TITLE 40, CHAPTER 59, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO RESIDENTIAL BUILDERS, SO AS TO CONFORM THIS CHAPTER TO THE STATUTORY ORGANIZATIONAL FRAMEWORK ESTABLISHED FOR PROFESSIONAL AND OCCUPATIONAL BOARDS UNDER THE ADMINISTRATION OF THE DEPARTMENT OF LABOR, LICENSING AND REGULATION, TO PROVIDE CITATION PENALTIES, AND TO FURTHER PROVIDE FOR THE LICENSURE AND REGULATION OF RESIDENTIAL BUILDERS, RESIDENTIAL SPECIALTY CONTRACTORS, AND HOME INSPECTORS.

    Amend Title To Conform

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Chapter 59, Title 40 of the 1976 Code is amended to read:

Section 40-59-10. For the purpose of this chapter, a "residential builder" is one who constructs a residential building or structure for sale or who, for a fixed price, commission, fee, or wage, undertakes or offers to undertake the construction or superintending of the construction of any building or structure which is not over three floors in height and which does not have more than sixteen units in the apartment complex, or the repair, improvement, or reimprovement thereof, to be used by another as a residence when the cost of the undertaking exceeds five thousand dollars. Nothing in this chapter prevents any person, or his agents, from performing these acts on his own residence or on his other real estate held for personal or rental, as opposed to speculative, purposes. Anyone who engages or offers to engage in such undertaking in this State is considered to have engaged in the business of residential building.

Section 40-59-15. A residential specialty contractor is an independent contractor who is not a licensed residential builder, who contracts with a licensed residential builder, general contractor, or individual property owner to do any construction work, repairs, improvement, or reimprovement which requires special skills and involves the use of specialized construction trades or craft, when the undertakings exceed two hundred dollars and are not regulated by the provisions of Chapter 11 of this title.

Residential specialty contractors is limited to:

    (a) plumbers;

    (b) electricians;

    (c) heating and air conditioning installers and repairers;

    (d) vinyl and aluminum siding installers;

    (e) insulation installers;

    (f) roofers;

    (g) floor covering installers;

    (h) masons;

    (i) dry wall installers;

    (j) carpenters;

    (k) wallpaperers;

    (l) painters.

    Section 40-59-20. There is hereby created the South Carolina Residential Builders Commission, hereinafter referred to as the commission. The commission must be composed of seven persons who shall have been residents of the State for at least five years and two of whom must be consumers not engaged in the business of residential building, four of whom have been actively engaged in residential building for a period of at least five years prior to the date of their appointment, and one of whom has been actively engaged in residential specialty contracting for a period of at least five years prior to the date of his appointment. One member must be appointed from each congressional district and one must be appointed from the State at large. Members of the commission must be appointed by the Governor with the advice and consent of the Senate for a term of four years or until their successors are appointed and qualify. Any vacancy occurring by reason of death, resignation, removal for cause, or otherwise must be filled for the remainder of the unexpired term in the same manner as provided for the original appointments. The Governor may remove any member of the commission for misconduct, incompetency, or neglect of duty.

Each member of the commission shall, before entering upon the discharge of the duties of his office, take and file with the Secretary of State, in writing, an oath to perform properly the duties of his office as a member of the commission and to uphold the Constitution of this State and the United States.

Section 40-59-30. The members of the Commission shall be compensated for their services at the regular per diem, mileage and subsistence rates as provided by law for members of State boards and commissions and shall be reimbursed for actual and necessary expenses incurred in connection with, and as a result of, their work on such Commission. All such compensation paid and costs and expenses incurred shall be paid only from the fees received by the Commission pursuant to the provisions of this chapter.

Section 40-59-40. The commission, at its first meeting after appointment, shall organize by electing a chairman and a vice-chairman who shall serve for a term of one year and until their successors are appointed and qualify. The commission shall adopt bylaws for the purpose of governing the proceedings of the commission and shall adopt a commission seal on which shall appear the words "South Carolina Residential Builders Commission".

Section 40-59-50. The Director of the Department of Labor, Licensing, and Regulation, pursuant to section 40-73-15, may employ an executive director to serve at the discretion of the Director of the Department of Labor, Licensing, and Regulation. The duties of the executive director must be prescribed by the Director of the Department of Labor, Licensing, and Regulation and shall include, but not be limited to, the following:

    (a) keep a record of the proceedings of the commission;

    (b) receive and account for all monies received by the commission;

    (c) keep a register of all applicants for licenses showing for each the date of application, name, qualifications, place of business, place of residence, and whether the license was granted or refused; and

    (d) keep a register of all residential specialty contractors doing business in this State showing for each the date of registration, name, place of business, place of residence, and office telephone number. A residential specialty contractor must notify the commission in writing within thirty days of any change in the information required to be on file with the commission.

    The executive director shall execute a bond, payable to the commission, for the proper performance of his duties in that sum as the director may require.

    The director may also employ clerical and stenographic assistance and other personnel as may be necessary to effectuate the provisions of this chapter. The compensation of all employees of the commission must be fixed by the Director of the Department of Labor, Licensing, and Regulation and paid from the fees received by the commission pursuant to the provisions of this chapter.

    Section 40-59-60. The commission shall meet quarterly and at such other times as the chairman may designate; provided, however, that the commission shall meet within thirty days after appointment for the purpose of organizing and transacting such business as may properly come before it. Four members of the commission shall constitute a quorum at all meetings. The executive director shall keep such records of each meeting as shall be required by the commission.

    Section 40-59-70. (A) All residential builders are required to be licensed by the commission annually under the provisions of this chapter.

    (B) The commission shall issue a license upon the applicant's payment of the examination fee and annual license fee, if the commission, as a result of examining the applicant, has determined that he is qualified to engage in residential building and has obtained an executed bond with a surety approved by the commission in the sum of fifteen thousand dollars, or proof of financial responsibility acceptable to the commission.

    (C) Unless otherwise provided under the provisions of this chapter, the commission shall renew all licenses upon the applicant's submission to the commission of the renewal application, proof of financial responsibility or bond, and payment of the annual license fee. The annual license fees for residential builders must be set by the commission based on its cost of operation. The annual fees may be increased or decreased by the commission but in no event may the commission set the annual fees at an amount which would not provide sufficient revenues to pay all the salaries, costs, and expenses incurred by the commission in enforcing the provisions of this chapter.

    (D) All fees must be set by regulation of the commission. Until regulations are promulgated by the commission and approved by the General Assembly, the following fee schedule is in effect:

        (1) Residential Builders:

            (a) an application/examination fee of one hundred dollars;

            (b) a special examination fee of two hundred dollars;

            (c) a license fee of one hundred dollars;

            (d) an annual renewal fee of one hundred dollars;

            (e) a late fee of fifty dollars for renewals received after July thirty-first;

            (f) an additional renewal fee of one hundred dollars will be required when a renewal is received more than twelve months after expiration of the license;

            (g) an oral examination fee of two hundred dollars.

        (2) Residential Specialty Contractors:

            (a) a registration fee of twenty dollars;

            (b) an annual renewal fee of twenty dollars;

            (c) a late fee of ten dollars for renewals received after July thirty-first;

            (d) an additional renewal fee of twenty dollars will be required when a renewal is received more than twelve months after expiration of the registration.

        (3) Other Fees and Penalties:

            (a) a replacement fee of ten dollars for replacing any lost, destroyed, or mutilated licenses or registration cards;

            (b) a fee of five dollars for furnishing an examinee with a certified copy of the record of his examination grades;

            (c) a fee of twenty dollars for a duplicate copy of a license when any change is requested by the licensee to the information printed on the license;

            (d) a fee of ten dollars for a duplicate copy of a registration card when any change is requested by the holder to the information printed on the card.

    (E) The annual license fees are for the period of twelve months beginning July first of each year. All license fees collected by the commission must be paid into the State Treasury as provided by law for payment into the State Treasury of other taxes.

    Section 40-59-75. (A) Any person who engages in residential specialty contracting within the meaning of this chapter must register with the commission and pay an annual registration fee. It is unlawful for any person to engage in residential specialty contracting without being registered with the commission.

    (B) When the cost of an undertaking performed by a residential specialty contractor for an individual property owner exceeds five thousand dollars, the residential specialty contractor must obtain an executed bond with a surety in an amount approved by the commission.

    (C) All assessments and registration fees must be set by regulation of the commission.

    Section 40-59-77. (A) The commission shall, by regulation, classify residential specialty contractors in a manner consistent with established usage and procedure in the construction business, and may limit the field and scope of the operations of a residential specialty contractor to those in which he is to be registered. All residential specialty contractor registrations issued by the commission must be for one or more of the classifications adopted pursuant to this chapter.

    (B) Residential specialty contractors must be qualified and experienced in the particular branches or fields of the contracting vocation in which they intend to, and do, engage.

    Residential specialty contractors are not exempt from complying with county and municipal business license ordinances or other regulatory ordinances. Any county or municipality may require a residential specialty contractor to be examined and licensed in accordance with standards adopted by the county or municipality. However, a county or municipality may not adopt requirements that would require that a residential specialty contractor abide by commercial construction licensing requirements unless he is engaged in commercial construction.

    Section 40-59-80.    Any residential builder who desires to be licensed under the provisions of this chapter shall make and file with the commission thirty days prior to the next meeting of the commission a written application on such form as may be prescribed by the commission. The application must be accompanied by the payment of the annual license fee required by the commission and an examination fee as set by the commission. A prerequisite for the taking of an examination for a residential builder's license is a minimum of one year of actual experience under the supervision of a licensed residential builder who is engaged in residential building construction involving the trades or crafts for which the license is desired. The commission, in examining an applicant, shall consider the following qualifications of the applicant:

    (a) experience;

    (b) ability;

    (c) character;

    (d) financial condition;

    (e) equipment;

    (f) ability and willingness to conserve the public health and safety; and

    (g) other pertinent information the commission may require.

If, as a result of the examination, the commission finds that the applicant is qualified to engage in residential building in South Carolina, and if the applicant submits an executed bond in the form and with a surety approved by the commission, or proof of financial responsibility acceptable to the commission, the commission shall issue the license for which the applicant is qualified. Any applicant rejected by the commission must be given the opportunity to be reexamined after he has paid an additional examination fee, except that if the applicant fails the examination three times he shall wait twelve months before being examined again.

    A residential builder's license may be granted without examination to those builders who are licensed in good standing in other states which are deemed by the commission to have comparable exams.

A record must be made and preserved by the commission of each examination of an applicant and the findings of the commission pertaining to the examination. A certified copy of the record shall be furnished to any applicant requesting the record upon the payment of a fee to the commission that reasonably reflects the cost of furnishing the record to the applicant.

Section 40-59-85.    (A) Any person making an initial application to the commission for licensure as a residential builder or registration as a residential specialty contractor shall first submit to a credit report. In addition to the information provided by the credit report, the commission may determine from the written application, the personal references provided by the applicant, written communications or complaints to the commission, and from any other reliable, documented sources whether an applicant for licensure as a residential builder or an applicant for registration as a residential specialty contractor has a reputation for the prompt payment of his labor or material bills and for the timely completion of other contracts into which the applicant may have entered.

    (B) The application and renewal forms for all licenses and registrations issued by the commission shall require the applicant to list any outstanding judgments issued against him for the past five years.

    (C) The term "misconduct" as used in Section 40-59-90 includes a pattern of repeated failure by a residential builder or residential specialty contractor to pay his labor or material bills.

    Section 40-59-90. The commission may revoke, suspend, or restrict for a period not to exceed one year the license of a residential builder or registration of a residential specialty contractor who, in the opinion of the commission, has committed fraud or deceit in obtaining a license or in registering as required by the provisions of this chapter or has been guilty of gross negligence, incompetence, or misconduct in the practice of home building or residential specialty contracting. A person, including the commission, may prefer charges of fraud, deceit, negligence, incompetence, or misconduct against a residential builder licensed under this chapter or a residential specialty contractor registered under this chapter. The charges must be made to the commission in writing and sworn to by the person so charging and must be submitted to the director of the commission.

    The charges, unless dismissed without hearing by the commission as unfounded or trivial, must be heard by the commission in an open hearing within three months after the date on which they were preferred. A copy of the charges, together with notice of the time and place of the hearing, must be served legally on the residential builder or residential specialty contractor charged at least thirty days before the fixed date for the hearing. At the hearing the residential builder or residential specialty contractor charged may appear personally or be represented by counsel and may cross-examine witnesses against him and produce evidence and witnesses in his defense. If, after the hearing, a majority of the commission votes in favor of revoking, suspending, or restricting for a period not to exceed one year, the license of the residential builder or registration of the residential specialty contractor charged on the basis of fraud or deceit in obtaining his license or in registering with the commission or gross negligence, incompetence, or misconduct in the performance of home building or residential specialty contracting, the commission shall order the license of the residential builder or the registration of the residential specialty contractor revoked, suspended, or restricted for a period not to exceed one year. After the commission revokes, suspends, or restricts for a period not to exceed one year the license of the residential builder or the registration of the residential specialty contractor, he has ten days to file with the commission written notice of his intention to appeal to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 from the order of the commission. All appeals from the order of the commission are governed by the provisions of Article 3, Chapter 23 of Title 1 (the Administrative Procedures Act).

    The commission may reissue a license to a residential builder of a residential specialty contractor whose license was previously revoked if a majority of the members of the commission vote in favor of the reissuance.

    Section 40-59-95. (A) In addition to all other remedies provided by law, when it appears to the director, either upon complaint or otherwise, that any person or combination of persons has engaged, or is engaging, in any act of contracting, practice, or transaction which constitutes a violation of this chapter or any regulation or order of the commission, whether or not the person is properly licensed or registered with the commission, the director may either:

    (1) serve upon the person not licensed or registered under the chapter, by certified mail or by personal service, a cease and desist order requiring the person to cease and desist immediately, upon receipt of the notice, from engaging in the act, practice, or transaction. If the person fails to comply with the order, the director may file an action with an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for enforcement of the cease and desist order or file an action pursuant to item (2) of this subsection in the court of common pleas to restrain and enjoin the person from engaging in the act, practice, or transaction and for wilful violation of the order. If the administrative law judge finds that the person wilfully failed to obey a valid cease and desist order, the court shall impose a civil penalty of not less than two hundred fifty dollars nor more than two thousand dollars for each violation. Any amount collected as a civil penalty must be remitted pursuant to subsection (B) of this section;

    (2) apply through the Attorney General, the administrator of the Department of Consumer Affairs, the county attorney, or solicitor of the county in which the act, practice, or transaction is alleged to have been committed, to the court of common pleas of that county for an injunction restraining the person from engaging in the act, practice, or transaction or doing any act in furtherance of the act, practice, or transaction. Upon a proper showing, a temporary restraining order, a preliminary injunction, or a permanent injunction may be granted without bond. Process in the action may be served upon the defendant in any county of this State where he transacts business or is found.

    (B) In actions brought under item (2) of subsection (A), each violation of this chapter or regulation or order of the director constitutes a separate offense and the court may impose a civil penalty not to exceed two thousand dollars for each violation which is in addition to all other penalties provided by law. Fifty percent of the penalty must be remitted to the general fund of the county where the case was tried and fifty percent must be deposited in the state general fund if the violation is prosecuted by the county attorney or solicitor. Seventy-five percent of the penalty must be deposited in the state general fund if the violation is prosecuted by the Attorney General or the administrator of the Department of Consumer Affairs, and twenty-five percent must be remitted to the prosecuting agency for expenses in trying the case.

    Section 40-59-100. A complete roster that shows all the names and places of business of the residential builders and residential specialty contractors licensed or registered by the commission during the preceding year must be prepared annually by the commission and forwarded to and filed with the clerks of court for the several counties.

    Section 40-59-110. The commission shall annually submit to the Governor and the General Assembly a report of its transactions for the preceding year, including a complete statement of the receipts and expenditures of the commission, a roster of all the residential builders licensed for that year, all the residential specialty contractors registered for that year, and a list of the residential builders and residential specialty contractors whose license was revoked, suspended, or restricted by the commission during the preceding year. The commission shall also annually file with the Secretary of State a certified copy of the report at the same time the report is submitted to the Governor and the General Assembly.

    Section 40-59-120. The commission may promulgate reasonable regulations as may be necessary to effectuate the provisions of this chapter.

    Section 40-59-130. Any residential builder or residential specialty contractor who undertakes or attempts to undertake the business of residential building or residential specialty contracting without first having procured a valid license or registered with the commission as required in Section 40-59-50 which has neither expired nor been revoked, or who knowingly presents to, or files with, the commission false information for the purpose of obtaining a license or becoming registered is guilty of a misdemeanor and, upon conviction, must be fined not less than one hundred dollars or imprisoned for not less than thirty days.

    A residential builder who does not have a license or residential specialty contractor who is not registered as required may not bring any action either at law or in equity to enforce the provisions of any contract for residential building or residential specialty contracting which he entered into in violation of this chapter.

Whenever it appears to the commission that any residential builder or residential specialty contractor has violated, or is about to violate, the provisions of this chapter, the commission may in its own name petition an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 to issue a temporary restraining order enjoining the violation of this chapter, pending a full hearing to determine whether or not the injunction must be made permanent.

    Section 40-59-140. The provisions of this chapter do not apply to any person licensed as a general contractor under the provisions of Chapter 11 of Title 40 for the purpose of undertaking the construction, or superintending of construction, of any building, or the improvement, reimprovement, or repair of any building. No residential builder who is licensed pursuant to the provisions of this chapter is also required to be licensed as a general contractor or mechanical contractor under the provisions of Chapter 11 of Title 40 in order to engage in residential building as defined in Section 40-59-10. A mechanical contractor is exempt from the provisions of this chapter relating to residential specialty contractors when engaged in contracting in the classification in which he is licensed to perform mechanical contracting. The Residential Builders Commission is the sole licensing and registration board for persons who engage solely in residential building as defined in Section 40-59-10 and in residential specialty contracting as defined in Section 40-59-15.

    Section 40-59-150. The provisions of this chapter shall not apply to agricultural buildings or buildings used for agricultural purposes or buildings constructed as a community effort.

    Section 40-59-160. It is the duty of the building official, or other authority charged with the duty of issuing building or similar permits, of any incorporated municipality or subdivision of the municipality or county to refuse to issue a permit for any undertaking which would classify the applicant as a residential builder or residential specialty contractor under the provisions of this chapter unless the applicant has furnished evidence that he is either licensed or registered as required by this chapter or exempt from the requirements of this chapter. It is also the duty of the building official, or other authority charged with the duty of issuing building or similar permits, to report to the state licensing board the name and address of any person who, in his opinion, has violated this chapter by accepting or contracting to accomplish work which would classify the person as a residential builder or residential specialty contractor under the provisions of this chapter.

    Section 40-59-200. When used in this article:

    (1) "Administrator" means the executive director for the South Carolina Residential Builders Commission provided for under Section 40-59-50.

    (2) "Commission" means the South Carolina Residential Builders Commission.

    (3) "Director" means the Director of the Department of Labor, Licensing, and Regulation.

    (4) "Home Inspection" means the rendering of a written or oral report in exchange for compensation of any sort, regarding the condition of the construction or improvements to a residence, including, but not limited to, structural problems or conditions, damage, safety problems or deterioration, equipment, and systems that are visible and readily accessible. Home inspection does not include a contract or proposal for repair, renovation, or remodeling of the improvements to a residence. The parties to a home inspection may limit or expand the scope of the inspection by agreement.

    (5) "Home inspector" means a natural person who, for compensation of any sort, engages in the business of home inspection.

    (6) "Residence" means a structure, including, but not limited to, condominiums and town houses, intended to be used or in fact used primarily for living quarters which is not over three floors in height and which does not have more than sixteen units.

    Section 40-59-210. The administrator is authorized to administer the provisions of this article. The administrator shall keep a register of all applicants for a license, including the date of application, the name, qualifications, place of business, and place of residence of the applicant, and the status of the license application. The administrator also shall maintain a roster listing the name, place of business, residence, and business telephone number of each licensed home inspector. A copy of the roster must be available to anyone upon a written request to the commission. The commission may charge a reasonable fee for complying with a request for a roster. The amount of the fee must be established by regulation of the commission.

    Section 40-59-220. (A) No person may engage in or transact any home inspection business, or hold himself out to the public as a home inspector, or offer to engage in or transact any home inspection business in this State unless the person is licensed by the commission.

    (B) A person already engaged in the business of performing home inspections on the date this article becomes effective is allowed ninety days from such effective date to comply with the provisions of this article for the purpose of qualifying to perform home inspections.

    (C) No license shall be issued under the provisions of this article to a partnership, association, corporation, firm, or group. However, nothing in this article precludes a licensed home inspector from performing home inspections for or on behalf of a partnership, association, corporation, firm, or group or from entering into contracts or enforcing contracts as a partnership, association, corporation, firm, or group.

    Section 40-59-230. The provisions of this article do not apply to:

    (A) a person employed by the State of South Carolina or any political subdivision of the State as a code enforcement official when acting within the scope of that employment;

    (B) a person inspecting a home exclusively for the use of a bank, savings and loan association, or credit union, unless otherwise required by federal law or regulation;

    (C) a person duly licensed, registered, or certified pursuant to Chapter 3 of this title or a person duly licensed as a general contractor pursuant to Chapter 11 of this title or a person duly licensed pursuant to Article 1 of Chapter 59 of this title or a person duly licensed or registered as a professional engineer pursuant to Chapter 22 of this title. Notwithstanding the exemption from licensure under this article, the provisions of this article relating to the conduct of the person in the performance of a home inspection shall apply to such person. Any violation of this article is considered a violation against the person's license and subjects the person to disciplinary action by the licensing board under which the person is duly licensed.

    Section 40-59-240. (A) A person desiring to be licensed as a home inspector shall make a written application to the commission on forms as the commission prescribes. Upon the submission of a completed application form and the payment of the fee required by the commission, the applicant is entitled to take the home inspector licensing examination as prescribed by the commission. Upon successful completion of the examination, the commission shall issue the applicant a license authorizing the applicant to engage in the business of home inspection in this State. The issuance of a license is evidence that the person named therein is entitled to all the rights and privileges of a licensed home inspector while the license remains active.

    (B) The commission shall promulgate regulations to establish the minimum qualifications and uniform criteria for the granting of a home inspector license.

    Section 40-59-250. (A) The licensee shall display the license in the manner prescribed by the commission.

    (B) The licensee shall inform the commission of any change in his business or home address.

    (C) The license must be renewed before July first of each year for a period of one year upon payment of the renewal fee and upon compliance with the provisions of this article. If the home inspector has not complied with any provisions of this article during the year, the licensee shall make a new application as in the case of the issuance of an original license.

    (D) The commission may provide for the late renewal of a license upon payment of a late fee in an amount established by regulation of the commission.

    (E) A licensee who does not intend to engage in the business of home inspection for at least one year may request upon written notice to the commission that his license be placed in inactive status. While in inactive status, the person is not subject to payment of any renewal fees and shall not perform home inspections in this State. When the person desires to resume the performance of home inspections, he shall file an application for license renewal, pay the renewal fee, and demonstrate continuing competence as defined by regulation of the commission. If a license has been in inactive status for more than three years, the person is required to make a new application as in the case of the issuance of an original license and is required to take and successfully complete the examination.

    Section 40-59-255. (A) An inspection report issued by a licensed home inspector under this chapter must be on a form approved by the commission. For purposes of this section, a form that contains the same information as the commission-approved form is considered to have met the requirements of this section.

    (B) Nothing in this section may require a home inspector to inspect every item contained in the commission-approved form, nor may it limit a home inspector from performing a home inspection whose scope goes beyond the information contained in the commission-approved form. A home inspector shall indicate on the inspection report which items, if any, were not inspected.

    (C) A home inspector shall disclose the scope and limitations, if any, of each inspection before performing a home inspection.

    Section 40-59-257. "Advertisement" means any form of public notice, however disseminated. An advertisement by a licensed home inspector shall include the name, business name, address, and license number of the licensee. The use of any false, misleading, unfair, or deceptive practice in any advertisement is grounds for disciplinary action as provided for under this chapter.

    Section 40-59-260. (A) The commission may deny, refuse to renew, or temporarily suspend or revoke a license, or issue a civil penalty under this section, if the licensee or applicant for licensure engages in any of the following conduct:

        (1) making a false or misleading statement in that portion of a written report that deals with professional qualification or in any testimony concerning professional qualifications;

        (2) any act or omission involving dishonesty, fraud, or misrepresentation with the intent to substantially benefit a home inspector or other person or with the intent to substantially injure another person;

        (3) any act of fraud, misrepresentation, or deceit in the making of a home inspection;

        (4) payment of a finder's fee or a referral fee to any person in connection with an inspection of a residence;

        (5) failure or refusal without good cause to exercise reasonable diligence in developing a home inspection report, preparing a report, or communicating a report;

        (6) accepting a home inspection assignment when the employment itself is contingent upon the home inspector reporting a predetermined estimate, analysis, or opinion or when the fee to be paid is contingent upon the opinion, the conclusions, analysis, or report reached or upon the consequences resulting from such assignment;

        (7) the performing of any work or improvement to a residence upon which the home inspector performed a home inspection within the previous twelve months;

        (8) employment of fraud, deceit, or misrepresentation in obtaining or attempting to obtain a license, or renewal of it;

        (9) committing an act or acts of malpractice, gross negligence, or incompetence in the performance of home inspections;

        (10) practicing as a licensed home inspector without a current license;

        (11) engaging in conduct that could result in harm or injury to the public;

        (12) engaging in any act or practice violative of any of the provisions of this article or any regulation promulgated by the commission under this article, or aiding, abetting, or assisting a person in such violation.

    (B) The commission may impose a civil penalty for violations of any provision of this article, or the regulations promulgated by the board, as follows: for a first violation, a penalty in an amount not to exceed one hundred dollars; for a second violation, a penalty in an amount not to exceed two hundred dollars; and for a third and any subsequent violation, a penalty in an amount not to exceed one thousand dollars. Any civil penalties collected by the commission must be remitted to the State Treasurer for deposit by him in the State's general fund.

    (C) The denial, refusal to renew, or temporary suspension or revocation of a license, or the issuance of a civil penalty under this section, may be ordered by a decision of a majority of the commission after a hearing held in accordance with Article 3, Chapter 23, of Title 1, the Administrative Procedures Act. A decision of the commission to deny, refuse to renew, temporarily suspend a license, revoke a license, or impose a civil penalty is subject to review by an administrative law judge as provided under Article 5, Chapter 23, of Title 1.

    (D) An application may be made to the commission for reinstatement of a revoked license if the revocation has been in effect for at least one year. The license may be granted upon an affirmative vote by a majority of the commission.

    Section 40-59-265. A home inspector is prohibited from engaging in real estate appraisal activity unless the inspector meets the requirements of Chapter 60 of this title. Further, a home inspector is prohibited from engaging in any real estate activity regulated under Chapter 57 of this title unless the inspector meets the requirements of that chapter.

    Section 40-59-270. The administrator is authorized to use the powers granted to him pursuant to this chapter to enforce the provisions of this article. A home inspector who is not otherwise exempt from this article who undertakes or attempts to undertake the business of home inspection without first obtaining a valid license or who knowingly presents to, or files with, the commission false information for the purpose of obtaining a license is guilty of a misdemeanor and for the first offense, upon conviction, must be fined not more than one hundred dollars or imprisoned for not more than thirty days, or both. For a second offense, the person, upon conviction, must be fined not more than two hundred dollars or imprisoned for not more than ninety days, or both. For a third and subsequent offense, upon conviction, the person must be fined not more than one thousand dollars or imprisoned not more than one hundred eighty days, or both.

    A home inspector who does not have a license as required by this article may not bring any action either at law or in equity to enforce the provisions of any contract for home inspection which he entered into in violation of this article.

    Whenever it appears to the commission that any home inspector has violated, or is about to violate, the provisions of this article, the commission may in its own name petition an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 to issue a temporary restraining order enjoining the violation of this article, pending a full hearing to determine whether or not the injunction must be made permanent.

    Section 40-59-280. The commission is authorized to promulgate regulations to administer the provisions of this article and to establish fees reasonably necessary to cover the costs of administering this article.

    Section 40-59-290. When an inspection report includes a deficiency that is alleged to be a building codes violation, the inspector is responsible for determining the construction dates and building codes in effect at the time of construction and must conduct the inspection using the building codes in effect at the time of construction.

    Section 40-59-5.    Unless otherwise provided for in this chapter, Article 1, Chapter 1 of Title 40 applies to any entities or individuals regulated by the Department of Labor, Licensing and Regulation. If there is a conflict between this chapter and Article 1, Chapter 1 of Title 40, the provisions of this chapter control.

    Section 40-59-10.    (A) There is created the South Carolina Residential Builders Commission which must be composed of seven persons who shall have been residents of the State for at least five years and two of whom must be consumers not engaged in the business of residential building, four of whom have been actively engaged in residential building for a period of at least five years before the date of their appointment, and who must be recommended to the Governor by the South Carolina Home Builders Associations and one of whom has been actively engaged in residential specialty contracting for a period of at least five years before the date of appointment. One member must be appointed from each congressional district, and one must be appointed from the State at large. Members of the commission must be appointed by the Governor with the advice and consent of the Senate for a term of four years or until their successors are appointed and qualify. A vacancy occurring by reason of death, resignation, removal for cause, or otherwise must be filled for the remainder of the unexpired term in the manner of the original appointment. The Governor may remove any member of the commission in accordance with Section 1-3-240.

    (B)    Before entering upon the discharge of the duties of his office, each member of the commission shall take and file with the Secretary of State, in writing, an oath to perform properly the duties of his office as a member of the commission and to uphold the Constitution of this State and the United States.

    (C)    Commission members from the general public may be nominated by an individual, group, or association and must be appointed by the Governor in accordance with Section 40-1- 45.

    Section 40-59-20.    As used in this chapter unless the context clearly indicates otherwise:

    (1)    'Commission' means the South Carolina Residential Builders Commission.

    (2)    'Department' means the Department of Labor, Licensing and Regulation.

    (3)    'Director' means the director of the Department of Labor, Licensing and regulation.

    (4)    'Firm' means a business entity functioning as a sole proprietorship, partnership, limited liability partnership, professional association, professional corporation, business corporation, limited liability company, joint venture or other legally constituted organization which practices or offers to practice residential building or residential specialty contracting.

    (5)    'License' means a license, registration or certification issued in accordance with this chapter.

    (6)    'Residential builder' means one who constructs, superintends, or offers to construct or superintend the construction, repair, improvement, or reimprovement of a residential building or structure which is not over three floors in height and which does not have more than sixteen units in any single apartment building, when the cost of the undertaking exceeds five thousand dollars. Anyone who engages or offers to engage in such undertaking in this State is considered to have engaged in the business of residential building.

    (7)    'Residential specialty contractor' means an independent contractor who is not a licensed residential builder, who contracts with a licensed residential builder, general contractor, or individual property owner to do construction work, repairs, improvement, or reimprovement which requires special skills and involves the use of specialized construction trades or craft, when the undertakings exceed two hundred dollars and are not regulated by the provisions of Chapter 11. Residential specialty contracting includes the following areas of contracting and other areas as the commission may recognize by regulation:

        (a)    plumbers;

        (b)    electricians;

        (c)    heating and air conditioning installers and repairers;

        (d)    vinyl and aluminum siding installers;

        (e)    insulation installers;

        (f)    roofers;

        (g)    floor covering installers;

        (h)    masons;

        (i)     dry wall installers;

        (j)     carpenters;

        (k)    stucco installers;

        (l)     painters/ wall paperers.

    (8)    As used in this chapter, the terms defined in Section 40-1-20 have the same meaning as stated in that section.

    Section 40-59-30.    (A)    A person or firm who engages or offers to engage in the business of residential building or residential specialty contracting without first having procured a license from the commission, which has not expired or been revoked, suspended, or restricted or who knowingly presents to, or files with, the commission false information for the purpose of obtaining a license is guilty of a misdemeanor and, upon conviction, must be fined not less than five hundred dollars or more than ten thousand dollars or imprisoned for not less than thirty days, or both.

    (B)    A person or firm who has not first procured a license may not bring an action at law or in equity to enforce the provisions of a contract for residential building or residential specialty contracting which the person or firm entered into in violation of this chapter.

    (C)    If it appears to the commission that a person or firm has violated, or is about to violate, a provision of this chapter, the commission may in its own name petition an administrative law judge, as provided under Article 5 of Chapter 23 of Title 1, to issue a temporary restraining order enjoining the violation of this chapter, pending a full hearing to determine whether or not the injunction must be made permanent.

    Section 40-59-50.    (A)    The members of the commission must be compensated for their services at the regular per diem, mileage, and subsistence rates as provided by law for members of state boards, committees, and commissions and must be reimbursed for actual and necessary expenses incurred in connection with, and as a result of, their work on the commission. Compensation paid and costs and expenses incurred must be paid only from the fees received by the commission pursuant to the provisions of this chapter.

    (B)    The commission, at its first meeting after appointment, shall organize by electing a chairman and a vice-chairman and other officers as the commission considers appropriate who shall serve for a term of one year and until their successors are appointed and qualify. The commission shall adopt bylaws for the governance of its proceedings and shall adopt a commission seal on which shall appear the words 'South Carolina Residential Builders Commission'.

    (C)    The director of the Department of Labor, Licensing and Regulation, pursuant to Section 40-1-50, may employ an administrator to serve at the discretion of the director of the department. The duties of the administrator must be prescribed by the director.

    (D)    The director may also employ clerical and stenographic assistance and other personnel as may be necessary to effectuate the provisions of this chapter. The compensation of all employees of the commission must be fixed by the director and paid from the fees received by the commission pursuant to the provisions of this chapter.

    (E)    The Department of Labor, Licensing and Regulation shall administer the commission as a revenue funded commission in accordance with Section 40-1-50.

    (F)    The commission shall meet quarterly and at other times as the chairman may designate; however, the commission shall meet within thirty days after appointment for the purpose of organizing and transacting business. Four members of the commission constitute a quorum at all meetings. The administrator shall keep records of each meeting as required by the commission.

    (G)    A roster including the names and places of business of the residential builders and residential specialty contractors licensed or registered by the commission during the preceding year must be prepared annually by the commission and forwarded to and filed with the clerk of court for each county.

    Section 40-59-60.    In addition to the commission operations provided in this chapter, the commission may act in accordance with those set forth in Section 40-1-60.

    Section 40-59-70.    The commission may promulgate regulations as may be necessary to effectuate the provisions of this chapter.

    Section 40-59-80.    The Department of Labor, Licensing and Regulation shall investigate complaints and violations of this chapter as provided for in Section 40-1-80. A person, including the commission, may file an initial complaint against a licensee or registrant. The complaint must be in writing and sworn to by the person filing the complaint.

    Section 40-59-90.     Charges, unless dismissed without hearing by the commission as unfounded or trivial, must be heard by the commission in an open hearing. A copy of the charges and a notice of the time and place of the hearing must be served on the respondent at least thirty days before the fixed date for the hearing. At the hearing the respondent may appear personally or be represented by counsel and may cross-examine witnesses against him and produce evidence and witnesses in his defense. After the commission issues its order, the respondent has thirty days to file with the commission written notice of his intention to appeal to an administrative law judge from the order of the commission. An appeal from an order of the commission is governed by the provisions of Article 3, Chapter 23 of Title 1, the Administrative Procedures Act.

    Section 40-59-100.    In addition to other remedies provided for in this chapter or Chapter 1, Title 40, the commission in accordance with Section 40-1-100 may issue a cease and desist order or may petition an administrative law judge for a temporary restraining order or other equitable relief to enjoin a violation of this chapter.

    Section 40-59-105.    (A)    The department may refer reports of violations of this chapter and Article 1, Chapter 1 or any reports of violations of regulations promulgated under this chapter directly to the commission or may issue administrative citations and cease and desist orders in person or by certified mail and may assess administrative penalties against an entity or individual, including unlicensed persons, for violations of this chapter as specified by the commission.

    (B)    Separate citations may be issued and separate administrative penalties may be assessed for each violation, however, no more than two thousand five hundred dollars in administrative penalties may be assessed against an entity or an individual per day.

    (C)    Administrative penalties authorized under this section are separate from and in addition to all other remedies, either civil or criminal, and these penalties may not exceed the following limits:

        (1)    for a first offense, not more than a five-hundred dollar penalty;

        (2)    for a second offense in a five-year period, the citation must be referred to the commission for action in accordance with Sections 40-59-90 and 40-59-110.

    (D)    An entity or individual assessed administrative penalties may appeal those penalties to the commission within ten days of receipt of the citation. If an appeal is filed, the department shall schedule a hearing before the commission, which shall make a determination in the matter. If no appeal is filed, the citation is deemed a final order and the administrative penalties must be paid within thirty days of receipt of the citation or other written demand.

    Section 40-59-110.    In addition to the grounds provided for in Section 40-1-110, the commission, upon a majority vote, may revoke, suspend, or restrict the license or registration of a licensee or registrant who the commission finds has committed fraud or deceit in obtaining a license or registration under this chapter or has engaged in misconduct in the practice of residential building or residential specialty contracting. For purposes of this section, misconduct includes a pattern of repeated failure by a residential builder or residential specialty contractor to pay labor or material bills. For purposes of disciplinary matters, or otherwise, compliance with the construction standards adopted by the commission is prima facie evidence of compliance with applicable professional standards.

    Section 40-59-115.    The commission has jurisdiction over the actions of licensees and former licensees as provided for in Section 40-1-115.

    Section 40-59-120.    Upon a determination by the commission that one or more of the grounds for discipline of a licensee exists, as provided in Section 40-59-110 or 40-1-110, the commission, in addition to the actions provided for in Section 40-1-120, may impose a fine of not more than two thousand five hundred dollars per offense.

    Section 40-59-130.    As provided for in Section 40-1-130, the commission may deny licensure to an applicant based on the same grounds for which the commission may take disciplinary action against a licensee.

    Section 40-59-140.    A person may be denied licensure or registration based on a person's prior criminal record only as provided for in Section 40-1-140.

    Section 40-59-150.    A licensee under investigation for a violation of this chapter or a regulation promulgated under this chapter may voluntarily surrender the license in accordance with Section 40-1-150.

    Section 40-59-160.    A person aggrieved by a final action of the commission may seek review of the decision in accordance with Section 40-1-160.

    Section 40-59-170.    A person found in violation of this chapter or regulations promulgated under this chapter may be required to pay costs associated with the investigation and prosecution of the case in accordance with Section 40-1-170.

    Section 40-59-180.    All costs and fines imposed pursuant to this chapter must be paid in accordance with and are subject to the collection and enforcement provisions of Section 40-1-180.

    Section 40-59-190.    Investigations and proceedings conducted under the provisions of this chapter are confidential and all communications are privileged as provided for in Section 40-1-190.

    Section 40-59-200.    A person who knowingly violates the provisions of this article or regulations promulgated pursuant to this chapter is guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand dollars or imprisoned for not more than two years, or both.

    Section 40-59-210.    (A)    In addition to all other remedies provided by law, when it appears to the commission, either upon complaint or otherwise, that a person or combination of persons has engaged, or is engaging, in an act of contracting, practice, or transaction which constitutes a violation of this chapter or any regulation or order of the commission, whether or not the person is properly licensed or registered with the commission, the commission may:

        (1)    serve upon the person not licensed or registered under the chapter, by certified mail or by personal service, a cease and desist order requiring the person to cease and desist from engaging in the act, practice, or transaction immediately upon receipt of the order. If the person fails to comply with the order, the director or a designee may file an action with an administrative law judge for enforcement of the cease and desist order or file an action pursuant to item (2) for wilful violation of the order. If the administrative law judge finds that the person wilfully failed to obey a valid cease and desist order, the court shall impose a civil penalty of not less than two hundred fifty dollars and not more than two thousand dollars for each violation. Any amount collected as a civil penalty must be remitted pursuant to subsection (B);

        (2)    apply, on its behalf, through the Attorney General, the director of the Department of Consumer Affairs, the county attorney, or solicitor of the county in which the violation is alleged to have been committed, to the court of common pleas of that county for an injunction restraining the person from further violation. Upon a proper showing, a temporary restraining order, a preliminary injunction, or a permanent injunction may be granted without bond. Process in the action may be served upon the defendant in any county of this State where the defendant transacts business or is found.

    (B)    In actions brought under item (2) of subsection (A), each violation of this chapter or regulation or order of the commission constitutes a separate offense, and the court may impose a civil penalty not to exceed two thousand dollars for each violation which is in addition to all other penalties provided by law.

    Section 40-59-220.    (A)    All residential builders must be licensed, and all residential specialty contractors must be registered, by the commission for a period established by the commission in regulation. Licensees and registrants must pay an annual fee established by the department and based upon the department's costs in carrying out the provisions of this chapter.

    (B)    An applicant for a license or certificate shall file with the commission a written application on a form as may be prescribed by the commission. The application must be accompanied by the payment of all applicable fees required by the commission. A prerequisite for taking the examination for a residential builder's license is a minimum of one year of actual experience under the supervision of a licensed residential builder, or other appropriately licensed professional who is engaged in residential building construction involving the trades or crafts for which the license is desired, or other education or experience or a combination of these as may be approved by the commission. The commission, in examining an applicant, may consider the following qualifications of the applicant:

        (1)    experience;

        (2)    ability;

        (3)    character;

        (4)    financial condition;

        (5)    equipment;

        (6)    workers' compensation insurance; and

        (7)    other pertinent information the commission may require.

    (C)    The commission shall issue a residential builder's license if, as a result of examination, the commission finds that the applicant is qualified to engage in residential building in South Carolina, and the applicant submits an executed bond in the form and with a surety approved by the commission in the sum of not less than fifteen thousand dollars.

    (D)    The commission shall issue a residential specialty contractor's license for which the applicant is qualified if, as a result of examination, the commission finds that the applicant is qualified to engage in residential specialty contracting in South Carolina. When the cost of an undertaking performed by a residential specialty contractor for an individual property owner exceeds five thousand dollars, the residential specialty contractor must obtain an executed bond with a surety in an amount approved by the commission.

    (E)    An applicant who fails the examination must be given the opportunity to be reexamined after payment of an additional examination fee; however, if the applicant fails the examination three times, the applicant shall wait twelve months before being examined again. A record must be made and preserved by the commission of each examination of an applicant and the findings of the commission pertaining to the examination. A certified copy of the record must be furnished to an applicant requesting the record upon the payment of a fee to the commission that reasonably reflects the cost of furnishing the record to the applicant.

    (F)    A license may be granted by the commission without examination to those applicants who are licensed in good standing in other states which are determined by the commission to have comparable examinations.

    (G)    Notwithstanding any other provision of this chapter, the commission shall issue a residential builders license or residential specialty license without examination to an individual who is sixty years of age or older, who has for thirty years or more been performing work that is regulated under this chapter, and who is currently employed in this State to perform work that is regulated under this chapter. Proof of employment must be submitted to the commission in the manner and form prescribed by the commission. A license issued pursuant to this subsection is entitled to all the rights and privileges of licenses in the same classifications issued pursuant to this chapter.

    Section 40-59-230.    (A)    Unless otherwise provided under the provisions of this chapter, the commission shall annually renew all licenses upon the applicant's submission to the commission of the completed renewal application, proof of financial responsibility or bond, acceptable to the commission and payment of all applicable fees. If a license has been in inactive status for more than three years, the person shall file a new application as in the case of the issuance of an original license and is required to take and successfully complete the examination.

    (B)    As a condition of license renewal, the commission may require by regulation a licensee to satisfactorily complete continuing education through a program approved by the commission.

    (C)    A licensee must notify the commission in writing within thirty days of any change in the information required to be on file with the commission including, but not limited to, the licensee's current mailing address.

    Section 40-59-240.    (A)    The commission by regulation shall classify residential specialty contractors in a manner consistent with established usage and procedure in the construction business, and may limit the field and scope of the operations of a residential specialty contractor to those in which he is to be registered or certified. Residential specialty contractor registrations and certificates issued by the commission may not be for more than three of the classifications recognized by the commission. Residential specialty contractors registered or certified or wishing to be registered or certified for more than three classifications must be examined and licensed as residential builders.

    (B)    Residential specialty contractors must be qualified and experienced in the particular areas of the contracting vocation in which they intend to, and do, engage. The commission, may by regulation, require examination in these areas.

    (C)    Residential specialty contractors are not exempt from complying with county and municipal business license ordinances or other regulatory ordinances. A county or municipality may require a residential specialty contractor to be examined and licensed in accordance with standards adopted by the county or municipality; however, if a residential specialty contractor has passed an examination in his area of contracting and approved by the commission, no additional examination may be required by a county or municipality.

    (D)    When the total cost of materials and labor for an undertaking performed by a residential specialty contractor for an individual property owner exceeds five thousand dollars, the residential specialty contractor shall obtain an executed bond with a surety in an amount approved by the commission and shall furnish a signed original to the commission.

    Section 40-59-250.    (A)    A person applying to the commission for licensure as a residential builder or registration as a residential specialty contractor must submit to a credit report. In addition to the information provided by the credit report, the commission may determine from the written application, the personal references provided by the applicant, written communications or complaints to the commission, and from any other reliable, documented sources whether an applicant for licensure as a residential builder or an applicant for registration as a residential specialty contractor has a reputation for the prompt payment of labor and material bills and for the timely completion of other contracts into which the applicant may have entered.

    (B)    The commission shall require the applicant to list on application and renewal forms any outstanding judgments issued against him or any entities with whom the applicant was associated for the past five years.

    Section 40-59-260.    (A)    This chapter does not apply to an owner of residential property who improves the property or who builds or improves structures or appurtenances on the property if:

        (1)    the owner does the work himself, with his own employees, or with licensed contractors or registered entities or individuals;

        (2)    the structure, group of structures, or appurtenances, including the improvements, are intended for the owner's sole occupancy or occupancy by the owner's family and are not intended for sale or rent; and

        (3)    the general public does not have access to this structure.     (B)    In an action brought under this chapter, proof of the sale or rent or the offering for sale or rent of the structure by the owner-builder within two years after completion or issuance of a certificate or occupancy is prima facie evidence that the project was undertaken for the purpose of sale or rent, unless otherwise approved by the commission, and is subject to the penalties provided in this chapter. As used in this section, 'sale' or 'rent' includes an arrangement by which an owner receives compensation in money, provisions, chattel, or labor from the occupancy, or the transfer of the property or the structures on the property. This section does not exempt a person who is employed by the owner and who acts in the capacity of a builder or a specialty contractor of any kind.

    (C)    To qualify for exemption under this section, an owner must personally appear and sign the building permit application. The local permitting agency shall provide the person with a disclosure statement, provided by the department, in substantially the following form:

State law requires residential construction to be done by licensed residential builders and specialty contractors. You have applied for a permit under an exemption to that law. The exemption allows you, as the owner of your property, to act as your own builder even though you do not have a license. You must supervise the construction yourself. You may build or improve a one-family or two-family residence. The building must be for your own use and occupancy. It may not be built for sale or rent. If you sell or rent a building you have built yourself within two years after the construction is complete, the law will presume that you built it for sale or rent, which is a violation of this exemption. You may not hire an unlicensed person as your residential builder or specialty contractor. It is your responsibility to make sure that people employed by you have licenses required by state law and by county or municipal licensing ordinances. Your construction must comply with all applicable laws, ordinances, building codes, and zoning regulations.'

    (D) At the time an owner personally appears and signs the building permit application as required by subsection (C) of this section, the local permitting agency shall provide the owner with all forms necessary to comply with subsection (E) of this section.

    (D)    (E)    If a residential building or structure has been constructed by an owner under the exemption provided for in this section, the owner of the residential building or structure must promptly file as a matter of public record a notice with the register of deeds, indexed under the owner's name in the grantor's index, stating that the residential building or structure was constructed by the owner as an unlicensed builder. Failure to do so revokes the statutory exemption.

    (E)    (F)    Nothing in this chapter may be construed to authorize an owner of a residential building or structure to hire a person or entity that is not licensed or registered in accordance with this chapter.

    Section 40-59-270.    This chapter does not apply to a person licensed under Chapter 11 for the purpose of undertaking the construction, or superintending of construction, of a building or the improvement, reimprovement, or repair of any building. A residential builder who is licensed pursuant to this chapter is not required to be licensed as a general contractor or mechanical contractor under Chapter 11 in order to engage in residential building as defined in Section 40-59-10. A mechanical contractor is exempt from this chapter relating to residential specialty contractors when engaged in contracting in the classification in which he is licensed to perform mechanical contracting. The commission is the exclusive licensing and registration entity for persons who engage solely in residential building and in residential specialty contracting.

    Section 40-59-280.    The building official, or other authority charged with the duty of issuing building or similar permits, of any incorporated municipality or subdivision of the municipality or county shall refuse to issue a permit for an undertaking which requires licensure or registration under this chapter unless the applicant has furnished evidence that he is either licensed or registered in accordance with this chapter or exempt from the requirements of this chapter. The building official, or other authority charged with the duty of issuing building or similar permits, also shall report to the commission the name and address of an person who, in his opinion, has violated this chapter by accepting or contracting to accomplish work requiring licensure or registration under this chapter when the person has not produced evidence of licensure or registration or exemption from this chapter.

    Section 40-59-290.    If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this chapter is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this chapter, the General Assembly hereby declaring that it would have passed this chapter, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

    Section 40-59-500.    As used in this article:

    (1)    'Administrator' means the executive director for the South Carolina Residential Builders Commission provided for under Section 40-59-50.

    (2)    'Commission' means the South Carolina Residential Builders Commission.

    (3)    'Director' means the director of the Department of Labor, Licensing and Regulation.

    (4)    'Home Inspection' means the rendering of a written or oral report in exchange for compensation of any sort, regarding the condition of the construction or improvements to a residence including, but not limited to, structural problems or conditions, damage, safety problems, deterioration, equipment, and systems that are visible and readily accessible. Home inspection does not include a contract or proposal for repair, renovation, or remodeling of the improvements to a residence. The parties to a home inspection may limit or expand the scope of the inspection by agreement.

    (5)    'Home inspector' means an individual who, for compensation of any sort, engages in the business of home inspection.

    (6)    'Residence' means a structure including, but not limited to, condominiums and townhouses intended to be used or in fact used primarily for living quarters which is not over three floors in height and which does not have more than sixteen units.

    Section 40-59-510.    The administrator is authorized to administer the provisions of this article. The administrator shall keep a register of all applicants for licensure, including the date of application and the name, qualifications, place of business, and place of residence of the applicant and the status of the license application. The administrator also shall maintain a roster including the name, place of business, residence, and business telephone number of each licensed home inspector. A copy of the roster must be available to anyone upon a written request to the commission. The commission may charge a reasonable fee for complying with a request for a roster. The amount of the fee must be established by the commission in regulation.

    Section 40-59-520.    (A)    No person may engage in or transact any home inspection business or hold himself out to the public as a home inspector or offer to engage in or transact any home inspection business in this State unless the person is licensed by the commission.

    (B)    No license may be issued under this article to a partnership, association, corporation, firm, or group. However, nothing in this article precludes a licensed home inspector from performing home inspections for or on behalf of a partnership, association, corporation, firm, or group or from entering into contracts or enforcing contracts as a partnership, association, corporation, firm, or group.

    Section 40-59-530.    This article does not apply to a person:

    (1)    employed by the State or any political subdivision of the State as a code enforcement official when acting within the scope of that employment;

    (2)    inspecting a home exclusively for the use of a bank, savings and loan association, or credit union unless otherwise required by federal law or regulation;

    (3)    licensed, registered, or certified pursuant to Chapter 3 or a person duly licensed as a general contractor pursuant to Chapter 11 or a person duly licensed pursuant to Article 1 of Chapter 59 or a person duly licensed or registered as a professional engineer pursuant to Chapter 22. Notwithstanding the exemption from licensure under this article, the provisions of this article relating to the conduct of a person in the performance of a home inspection shall apply to that person. A violation of this article is considered a violation against the person's license and subjects the person to disciplinary action by the licensing board under which the person is licensed.

    (4) who is duly licensed under the provisions of Section 46-13-55 for the purpose of issuing CL100 Wood Infestation Reports, provided such inspection is limited solely to the requirement of the CL100 report.

    Section 40-59-540.    (A)    A person desiring to be licensed as a home inspector shall submit written application to the commission on forms as the commission prescribes. Upon the submission of a completed application form and the payment of the fee required by the commission, the applicant is entitled to take the home inspector licensing examination as prescribed by the commission. Upon successful completion of the examination, the commission shall issue the applicant a license authorizing the applicant to engage in the business of home inspection in this State. The issuance of a license is evidence that the licensee is entitled to all the rights and privileges of a licensed home inspector while the license remains active.

    (B)    The commission shall promulgate regulations to establish the minimum qualifications and uniform criteria for the granting of a home inspector license.

    Section 40-59-550.    (A)    The licensee shall display the license in the manner prescribed by the commission.

    (B)    The licensee shall inform the commission of any change in his business or home address.

    (C)    A license must be renewed before July first of each year for a period of one year upon payment of the renewal fee and upon compliance with this article. If the home inspector has not complied with any provision of this article during the year, the licensee shall submit a new application as in the case of the issuance of an original license.

    (D)    The commission may provide for the late renewal of a license upon payment of a late fee in an amount established by the commission in regulation.

    (E)    A licensee who does not intend to engage in the business of home inspection for at least one year may request upon written notice to the commission that his license be placed in inactive status. While in inactive status, the person is not subject to payment of any renewal fees and may not perform home inspections in this State. When the person desires to resume the performance of home inspections, he shall file an application for license renewal, pay the renewal fee, and demonstrate continuing competence as defined by the commission in regulation. If a license has been in inactive status for more than three years, the person shall submit a new application as in the case of the issuance of an original license and shall take and successfully complete the examination.

    Section 40-59-560.    (A)    An inspection report issued by a licensed home inspector under this chapter must be on a form approved by the commission. For purposes of this section, a form that contains the same information as the commission-approved form is considered to have met the requirements of this section.

    (B)    Nothing in this section may require a home inspector to inspect every item contained in the commission-approved form, and nothing in this section may limit a home inspector from performing a home inspection beyond the scope of information contained in the commission-approved form. A home inspector shall indicate on the inspection report which items, if any, were not inspected.

    (C)    A home inspector shall disclose the scope and limitations, if any, of each inspection before performing a home inspection.

    Section 40-59-570.    'Advertisement' means any form of public notice, however disseminated. An advertisement by a licensed home inspector shall include the name, business name, address, and license number of the licensee. The use of any false, misleading, unfair, or deceptive practice in any advertisement is grounds for disciplinary action as provided for under this chapter.

    Section 40-59-580.    (A)    The commission may deny, refuse to renew, temporarily suspend, or revoke a license or issue a civil penalty under this section if the licensee or applicant for licensure:

        (1)    makes a false or misleading statement in that portion of a written report that deals with professional qualification or in any testimony concerning professional qualifications;

        (2)    engages in an act or omission involving dishonesty, fraud, or misrepresentation with the intent to substantially benefit a home inspector or other person or with the intent to substantially injure another person;

        (3)    engages in an act of fraud, misrepresentation, or deceit in the making of a home inspection;

        (4)    pays a finder's fee or a referral fee to a person in connection with an inspection of a residence;

        (5)    fails or refuses without good cause to exercise reasonable diligence in developing a home inspection report, preparing a report, or communicating a report;

        (6)    accepts a home inspection assignment when the employment itself is contingent upon the home inspector reporting a predetermined estimate, analysis, or opinion or when the fee to be paid is contingent upon the opinion, the conclusions, analysis, or report reached or upon the consequences resulting from the assignment;

        (7)    performs work or improvement to a residence upon which the home inspector performed a home inspection within the previous twelve months;

        (8)    employs fraud, deceit, or misrepresentation in obtaining or attempting to obtain a license or renewal of a license;

        (9)    commits an act or acts of malpractice, gross negligence, or incompetence in the performance of home inspections;

        (10)    practices as a licensed home inspector without a current license;

        (11)    engages in conduct that could result in harm or injury to the public;

        (12)    engages in an act or practice violative of any of the provisions of this article or a regulation promulgated by the commission under this article or aids, abets, or assists a person in such violation.

    (B)    The commission may impose a civil penalty for violations of any provision of this article or a regulation promulgated by the commission, as follows:

        (1)    for a first violation, a penalty in an amount not to exceed one hundred dollars;

        (2)    for a second violation, a penalty in an amount not to exceed two hundred dollars; and

        (3)    for a third and any subsequent violation, a penalty in an amount not to exceed one thousand dollars.

    Civil penalties collected by the commission must be remitted to the State Treasurer for deposit in the state's general fund.

    (C)    The denial, refusal to renew, temporary suspension or revocation of a license or the issuance of a civil penalty under this section, may be ordered by a decision of a majority of the commission after a hearing held in accordance with Article 3, Chapter 23, of Title 1, the Administrative Procedures Act. A decision of the commission to deny, refuse to renew, temporarily suspend or revoke a license or impose a civil penalty is subject to review by an administrative law judge as provided under Article 5, Chapter 23, of Title 1.

    (D)    An individual may apply to the commission for reinstatement of a revoked license if the revocation has been in effect for at least one year. The license may be granted upon an affirmative vote by a majority of the commission.

    Section 40-59-590.    A home inspector is prohibited from engaging in real estate appraisal activity unless the inspector meets the requirements of Chapter 60. Further, a home inspector is prohibited from engaging in any real estate activity regulated under Chapter 57 unless the inspector meets the requirements of that chapter.

    Section 40-59-600.    (A)    The administrator is authorized to use the powers granted to him pursuant to this chapter to enforce the provisions of this article.

    (B)    A home inspector who is not otherwise exempt from this article who undertakes or attempts to undertake the business of home inspection without first obtaining a license or who knowingly presents, or files with, the commission false information for the purpose of obtaining a license is guilty of a misdemeanor and:

        (1)    for the first offense, upon conviction, must be fined not more than one hundred dollars or imprisoned for not more than thirty days, or both;

        (2)    for a second offense, upon conviction, must be fined not more than two hundred dollars or imprisoned for not more than ninety days, or both.

        (3)    for a third and subsequent offense, upon conviction, the person must be fined not more than one thousand dollars or imprisoned not more than one hundred eighty days, or both.

    (C)    A home inspector who does not have a license as required by this article may not bring an action either at law or in equity to enforce the provisions of a contract for home inspection which he entered into in violation of this article.

    (D)    If it appears to the commission that a home inspector has violated, or is about to violate, a provision of this article, the commission may in its own name petition an administrative law judge to issue a temporary restraining order enjoining the violation of this article, pending a full hearing to determine whether or not the injunction must be made permanent.

    Section 40-59-610.    The commission is authorized to promulgate regulations to administer the provisions of this article.

    Section 40-59-620.    When an inspection report includes a deficiency that is alleged to be a building codes violation, the inspector is responsible for determining the construction dates and building codes in effect at the time of construction and must conduct the inspection using the building codes in effect at the time of construction."

SECTION    2.    This act takes effect upon approval by the Governor.

This web page was last updated on Thursday, June 25, 2009 at 2:08 P.M.