HB27 Alabama 2021 Session

Under existing law, on a first conviction for home repair fraud, a person is guilty of a Class A misdemeanor, and on a second or subsequent conviction for home repair fraud, a person is guilty of a Class C felony

This bill would establish the Alabama State of Emergency Consumer Protection Act to create the crime of aggravated home repair fraud to provide enhanced criminal penalties for home repair fraud committed for the repair of a residential structure that was damaged as a result of an event which was declared a state of emergency by the Governor

Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, prohibits a general law whose purpose or effect would be to require a new or increased expenditure of local funds from becoming effective with regard to a local governmental entity without enactment by a 2/3 vote unless: it comes within one of a number of specified exceptions; it is approved by the affected entity; or the Legislature appropriates funds, or provides a local source of revenue, to the entity for the purpose

The purpose or effect of this bill would be to require a new or increased expenditure of local funds within the meaning of the amendment. However, the bill does not require approval of a local governmental entity or enactment by a 2/3 vote to become effective because it comes within one of the specified exceptions contained in the amendment

Relating to consumer protection; to establish the Alabama State of Emergency Consumer Protection Act; to add Section 13A-9-111.1 to the Code of Alabama 1975, to create the crime of aggravated home repair fraud and to provide criminal penalties; to amend Sections 13A-9-114, 34-14A-14, 34-31-32, 34-36-16, and 34-37-17, Code of Alabama 1975, to provide further for criminal penalties; and in connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local funds within the meaning of Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended.

Section 1

Section 13A-9-111.1 is added to the Code of Alabama 1975, to read as follows: §13A-9-111.1. (a) This section shall be known and may be cited as the Alabama State of Emergency Consumer Protection Act. (b) A person commits the offense of aggravated home repair fraud when the person intentionally and knowingly does any of the following: (1) Enters into an agreement or contract for consideration, written or oral, with another person for home repair of a residential structure that is damaged, destroyed, or otherwise in need of repair or services as a result of an event for which the Governor has declared a state of emergency, as defined in Section 31-9-3, and the offending person knowingly does any one or more of the following: a. Knowingly misrepresents a material fact relating to the terms of the contract or agreement or the preexisting or existing condition of any portion of the property involved. b. Knowingly creates or confirms another person's impression which is false and which he or she does not believe to be true. c. Promises performance which he or she does not intend to perform or knows will not be performed. d. Knowingly uses or employs any deception, false pretense, or false promises in order to induce, encourage, or solicit another person to enter into any contract or agreement. e. Knowingly misrepresents or conceals either his or her real name or the name of his or her business or business address. f. Knowingly uses deception, coercion, or force to obtain another person's consent to modification of the terms of the original contract or agreement. g. After having previously been convicted of a violation of Sections 34-14A-14, 34-31-32, 34-36-16, or 34-37-17 for noncompliance with a state occupational license requirement, violates Sections 34-14A-14, 34-31-32, 34-36-16, or 34-37-17. h. Is in violation of Sections 34-14A-14, 34-31-32, 34-36-16, or 34-37-17 by knowingly misrepresenting or concealing his or her noncompliance with a state occupational license requirement. (2) Damages the property of another person with the intent to enter into an agreement or contract for home repair of a residential structure that is damaged, destroyed, or otherwise in need of repair or services as a result of an event for which the Governor has declared a state of emergency, as defined in Section 31-9-3. (3) Misrepresents himself or herself or another person as being an employee or agent of any unit of federal, state, or municipal government or any other governmental unit, or an employee or agent of any public utility, with the intent to cause another person to enter into a contract or agreement for home repair of a residential structure that does not belong to the offending person and that is damaged, destroyed, or otherwise in need of repair or services as a result of an event for which the Governor has declared a state of emergency, as defined in Section 31-9-3. (c) A violation of this section is a Class C felony.

Section 2

Sections 13A-9-114, 34-14A-14, 34-31-32, 34-36-16, and 34-37-17, Code of Alabama 1975, are amended to read as follows:

§13A-9-114.

Violations Except as provided in Section 13A-9-111.1, violations of this article shall be punished as follows:

(1) A first conviction shall be a Class A misdemeanor.

(2) A second or subsequent conviction shall be a Class C felony."

§34-14A-14.

(a) Any Except as provided in Section 13A-9-111.1, any person who undertakes or attempts to undertake the business of residential home building without holding a current and valid residential home builders license, issued by the Home Builders Licensure Board, as required by this chapter, or who knowingly presents to, or files false information with the board for the purpose of obtaining the license or who violates any law or code adopted by a county commission under this chapter shall be deemed guilty of a Class A misdemeanor.

(b) Upon notice from the board, any person who undertakes or attempts to undertake the business of residential home building without holding a current and valid residential home builders license, as required by the provisions of this chapter, shall immediately cease. Such notice shall be in writing and shall be given to the owner of the property, or to his or her agent, or to the residential home builder, or to the person doing the work, and shall state the conditions under which work may be resumed.

(c) The board may invoke a complaint procedure against any person who violates this chapter by undertaking or attempting to undertake the business of home building without holding a current and valid residential home builders license issued by the board. Whenever it appears to the board that any residential home builder has violated or is about to violate this chapter, the board may resolve the violation by agreement with the residential home builder, may initiate a complaint against the residential home builder, and may levy and collect administrative fines for violations of this chapter or the rules of the board in an amount not to exceed five thousand dollars ($5,000) for each violation.

(d) A residential home builder, who does not have the license required, shall not bring or maintain any action to enforce the provisions of any contract for residential home building which he or she entered into in violation of this chapter.

(e) Whenever it appears to the board that any residential home builder has violated or is about to violate this chapter, the board may in its own name petition the circuit court of the county where the violation occurred or is about to occur to issue a temporary restraining order or other appropriate injunctive relief enjoining the violation.

§34-31-32.

(a) Any Except as provided in Section 13A-9-111.1, any person engaged in business as a certified contractor or performing the functions of a certified contractor in violation of this chapter shall be guilty of a Class A misdemeanor, as defined by the state criminal code.

(b) The board may, at its discretion, impose late penalties on those certified contractors who fail to renew certificates by December 31 of each year. The board may also remove certification from any certified person who fails to renew his or her certificate by the first day of March and require the person to apply for a new certificate. Furthermore, the board may at its discretion, remove, revoke, or suspend the certification from any certified contractor who provides substandard or dangerous service, repair, or installation, or who otherwise violates this chapter, and may require such person to apply for a new certification. The board may, in its discretion, also require the successful re-testing of any such person who applies for a new certification.

(c) The board may reprimand, in writing, any certified contractor who provides substandard or dangerous service, repair, or installation, or who otherwise violates this chapter.

(d) The board may levy and collect administrative fines for serious violations of this chapter or the rules and regulations of the board of not more than two thousand dollars ($2,000) for each violation.

(e) In addition to or in lieu of the criminal penalties and administrative sanctions provided in this chapter, the board may issue an order to any person, firm, or corporation engaged in any activity, conduct, or practice constituting a violation of this chapter, directing the person, firm, or corporation to forthwith cease and desist from the activity, conduct, practice, or performance of any work then being done or about to be commenced. The order shall be issued in the name of the State of Alabama under the authority of the board. If the person, firm, or corporation to whom the board directs a cease and desist order does not cease or desist the proscribed activity, conduct, practice, or performance of work immediately, the board shall cause to issue in any court of competent jurisdiction and proper venue, a writ of injunction enjoining the person, firm, or corporation from engaging in any activity, conduct, practice, or performance of work prohibited by this chapter. Upon showing by the board that the person, firm, or corporation has engaged or is engaged in any activity, conduct, practice, or performance of work prohibited by this chapter, the courts shall issue a temporary restraining order restraining the person, firm, or corporation from engaging in such unlawful activity, conduct, practice, or performance of work pending the hearing on a preliminary injunction, and in due course a permanent injunction shall issue after the hearing, commanding the cessation of the unlawful activity, conduct, practice, or performance of work complained of, all without the necessity of the board having to give bond. A temporary restraining order, preliminary injunction, or permanent injunction issued pursuant to this subsection shall not be subject to being released on bond. In the suit for an injunction, the board may demand of the defendant a fine of up to two thousand dollars ($2,000) plus costs for each offense. Anyone violating this chapter who fails to cease work, after a hearing and notification from the board, shall not be eligible to apply for a certified contractor's license for a period not to exceed one year from the date of official notification to cease work. The board may withhold approval, for up to six months, of any application from anyone who prior to the application has been found in violation of this chapter.

§34-36-16.

(a) It Except as provided in Section 13A-9-111.1, it shall be unlawful for any person to violate any provision of this chapter regulating electrical contracting, and any person convicted of such violation shall be punished as prescribed for a Class A misdemeanor.

(b) It shall be unlawful, except as otherwise provided, on or after December 31, 2011, for a person not licensed as an electrical contractor to solicit, represent, seek to perform, or perform those tasks and functions that can only be performed by a licensed electrical contractor in accordance with this chapter.

(c) Subsection (b) shall not apply to an electrical contractor who has taken an examination offered by the board within the preceding 12 months, who holds a license or permit issued by a county or municipal government to perform the tasks and functions that can only be performed by a licensed electrical contractor, and who performs those tasks and functions within the boundaries of the county or municipality that issued the license or permit.

§34-37-17.

(a) The board shall have the administrative authority to discipline or require a certificate holder to attend training specific to violations. The board has the authority to levy civil fines or penalties to any registered apprentice, certificate holder, or legal entity registered by the board for a violation of any provision of this chapter regulating plumbers, gas fitters, or medical gas pipe fitters up to two thousand dollars ($2,000) per violation and actual hearing cost.

(b) In addition to or in lieu of the criminal penalties and administrative sanctions provided in this chapter, the board may issue an order to any person or legal entity engaged in any activity, conduct, or practice constituting a violation of this chapter, directing the person or legal entity to forthwith cease and desist from the activity, conduct, practice, or performance of any work then being performed or about to be commenced.

(c) It Except as provided in Section 13A-9-111.1, it shall be unlawful for any person or legal entity to violate any provision of this chapter regulating plumbers, gas fitters, or medical gas piping fitters. Any person convicted of such violation shall be punished as prescribed for a Class A misdemeanor."

Section 3

Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Amendment 621, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, because the bill defines a new crime or amends the definition of an existing crime.

Section 4

This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.