CHAPTER 185

FORMERLY

HOUSE BILL NO. 200

AN ACT TO AMEND TITLES 16, 24, AND 29 OF THE DELAWARE CODE RELATING TO OCCUPATIONS AND PROFESSIONS AND TRANSFERRING RESPONSIBILITY FOR THE LICENSURE OF PLUMBERS FROM THE DIVISION OF PUBLIC HEALTH TO THE DIVISION OF PROFESSIONAL REGULATION.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (three-fifths of all members elected to each house thereof concurring therein):

Section 1. Amend Title 24 of the Delaware Code by adding thereto a new chapter to

read:

"CHAPTER 18. BOARD OF PLUMBING EXAMINERS

§ 1801. Objectives of the Board of Plumbing Examiners.

The primary objective of the Board of Plumbing Examiners, to which all other objectives and purposes are secondary, is to protect the general public, specifically those persons who are direct recipients of services regulated by this chapter, from unsafe practices and from occupational practices which tend to reduce competition or fix the price of services rendered. The secondary objectives of the Board are to maintain minimum standards of practitioner competency and to maintain certain standards in the delivery of services to the public. In meeting its objectives, the Board shall develop standards assuring professional competence; shall monitor complaints brought against practitioners regulated by the Board; shall adjudicate at formal complaint hearings; shall promulgate rules and regulations; and shall impose sanctions, where necessary, against practitioners.

§ 1802. Definitions.

The following words, terms, and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

(1) 'Board' means the State Board of Plumbing Examiners.

(2) 'License' means a document issued by the Division of Professional Regulation which indicates that a person is currently qualified by the Board of Plumbing Examiners to engage in the practice of plumbing.

(3) 'Licensed plumber' means a person holding a current license issued pursuant to this chapter.

(4) 'Plumber' means an individual who provides plumbing services.

(5) 'Plumbing services' means the art of installing in buildings the pipes, fixtures, and other apparatus for bringing in the water supply and removing liquid and water- carried wastes.

§ 1803. Board of Plumbing Examiners: appointment; composition; qualifications; term of office; suspension or removal; compensation.

(a) Appointment. The Board shall consist of 9 members who are residents of this State. Members shall be appointed by the Governor. Members of the initial Board shall be appointed so that the terms of 3 members shall expire 1 year after the initial appointment; the terms of 3 members shall expire 2 years after the initial appointment; and the terms of the remaining 3 members shall expire 3 years after the initial appointment. Thereafter, appointments shall be made for a term of 3 years. A member of the Board shall be eligible for reappointment, but a member shall not be appointed to serve more than 2 consecutive terms. Each term of office shall expire on a date specified in the appointment, except that each member shall serve until his or her successor is duly appointed. A member who was initially appointed to fill a vacancy may succeed himself or herself for only one additional full term.

(b) Composition and provision. Six members shall be plumbers licensed in this State. The remaining 3 members shall be persons from the general public who are not now nor ever have been licensed plumbers and are not in any way connected to the provision of plumbing services, whether monetarily or through business activity or through educational activity or by their immediate family relations. The 3 public members shall be accessible to inquires, comments, and suggestions from the general public.

No member of the Board, while serving on the Board, shall be a president, chairperson, or other elected official of a professional association for plumbers. The provisions of Chapter 58, Title 29, of the Delaware Code shall apply to all members of the Board, and to all agents appointed by or otherwise employed by the Board.

(c) Suspension or removal. A member of the Board shall be suspended or removed by the Governor for misfeasance, nonfeasance, malfeasance, misconduct, incompetency, or neglect of duty. A member of the Board subject to disciplinary proceedings shall be disqualified from Board business until the charge is adjudicated or until the matter is otherwise concluded.

(d) Compensation. Each member of the Board shall receive not more than $50 for each meeting attended and not more than $500 in any calendar year for his or her services as a member of the Board.

§ 1804. Officers; meetings; quorum.

(a) The Board shall elect annually from its membership a chair, vice-chair, and secretary.

(b) The Board shall hold a regularly scheduled business meeting at least once each quarter and at such other times as the Chair deems necessary, or at the request of a majority of Board members. A majority of members shall constitute a quorum; however, no disciplinary action against a plumber shall be taken without the affirmative vote of at least 6 members.

() Any member who fails to attend 3 consecutive meetings or who fails to attend at least half of all regular business meetings during any calendar year shall automatically, upon such occurrence, be deemed to have resigned from office and a replacement shall be appointed.

(a) Minutes of all meetings shall be recorded, and copies of the minutes shall be maintained by the Division of Professional Regulation. At any hearing in which evidence is presented, a record shall be made from which a verbatim transcript can be prepared upon request. The expense of preparing any transcript shall be incurred by the person requesting it.

§ 1805. Powers and duties.

The Board shall have the authority to:

(1) Enforce the provisions of the State Plumbing Code as adopted by the Department of Health and Social Services;

(2) Promulgate rules and regulations governing the licensure of plumbers, including rules and regulations relating to requirements for continuing education. Each rule or regulation shall implement or clarify a specific section of this chapter;

(0) Designate a written examination prepared by either a national professional association or by a recognized, legitimate national testing service;

(1) Provide for the administration of all examinations, subject to the approval of the Division of Professional Regulation, including notice and information to applicants;

(2) Evaluate certified records to determine whether an applicant for a license to practice, who has been previously licensed or registered in another jurisdiction, has engaged in any act or offense that would be grounds for disciplinary action under this chapter and whether there are disciplinary proceedings or unresolved complaints pending against such applicant for such acts or offenses;

(3) Grant or deny licensure to an applicant in accordance with the qualifications criteria set forth in this chapter;

(0) Refer all complaints from practitioners and from the public concerning practitioners to the Division of Professional Regulation for investigation pursuant to § 8810 of Title 29. The Division of Public Health shall assist the Division of Professional Regulation, upon request, in the investigation of complaints requiring field inspections;

(1) Hold hearings and take such actions as are permitted under the provisions of Chapter 101 of Title 29;

(0) Designate and impose appropriate disciplinary action after time for appeal has lapsed where it has been determined after a disciplinary hearing that disciplinary action should be imposed; and

(10) Prepare and maintain a registry of licensed plumbers.

§ 1806. Qualifications of applicants to sit for examination.

(a) Prior to applying for a plumbing license in the State of Delaware, each applicant must, after receiving a Journeyman's Certificate issued by a plumbing apprenticeship program which meets or exceeds the Federal Bureau of Apprenticeship and Training Standards, perform plumbing services for at least 2 years under the supervision of a licensed plumber. In lieu of a Journeyman's Certificate, an applicant must have performed plumbing services for at least 7 years under the supervision of a licensed plumber and have completed the State of Delaware approved series of tests offered by Delaware apprenticeship schools.

(b) Each applicant shall provide such information as may be required on an application form designed and furnished by the Board and approved by the Division of Professional Regulation. No application form shall require a picture of the applicant; information relating to citizenship, place of birth, or length of State residency; or personal references.

() An applicant shall not have engaged in any of the acts or offenses that would be grounds for disciplinary action under this chapter, and shall not have any disciplinary proceedings or unresolved complaints pending against him or her in any jurisdiction where the applicant has previously been or currently is licensed or certified as a plumber.

(a) Examination by the Board of Plumbing Examiners shall be at least quarterly. An applicant failing to qualify upon examination may submit for re-examination in accordance with the rules of the Board of Plumbing Examiners.

(e) Where the Board finds to its satisfaction that an application is intentionally fraudulent, or that false information has been intentionally supplied, it shall report its findings to the Attorney General for further action.

(f) Where the Board refuses or rejects an application and the applicant believes that the Board acted without justification, imposed higher or different standards for him or her than for other applicants, or in some other manner contributed to or caused the failure of such application, the applicant may appeal to the Superior Court.

§ 1807 Reciprocity.

Reciprocity will be provided for licensed plumbers from other states provided that the standards for licensure in that state are equivalent to those set forth in § 1806 of this chapter. The applicant is responsible for contacting each state or jurisdiction where the applicant is currently or has been licensed to request a certified statement to verify (1) whether or not there are disciplinary proceedings or unresolved complaints pending against the applicant and (2) whether the applicant has engaged in any of the acts or offenses that would be grounds for disciplinary action under this chapter. In the event that a disciplinary proceeding or unresolved complaint is pending, the applicant shall not be licensed until the proceeding or complaint has been resolved. Applicants for licensure to practice plumbing in this State shall be deemed to have given consent to the release of such information and to have waived all objections to the admissibility of such evidence. Reciprocity applicants must follow the rules and regulations for application established under § 1808 of this chapter.

§ 1808. Licensure.

(a) Application. A person who desires to be licensed as a plumber shall apply to the Board in writing on a form furnished by the Board, and with the application shall submit payment of the application fees set by Division of Professional Regulation. In addition, the applicant shall submit proof that he or she has fulfilled the requirements of § 1806 of this chapter. The Board shall issue a license to each applicant who has met the requirements of the chapter.

(b) Renewal or reinstatement.

(1) A license shall be renewed every 2 years in a manner determined by the Division of Professional Regulation, which manner shall include completion of the renewal form and payment of the required fee established by the Division of Professional Regulation pursuant to 29 Del. C § 8810(d).

(2) A licensee who fails to renew a plumbing license by its expiration date may renew the license within 12 months after its expiration date by paying the license fee and a late fee as established by the Division of Professional Regulation. A licensee may reinstate a license within 36 months after its expiration by paying the license fee and a late fee as established by the Division of Professional Regulation, and a reactivation fee in the same amount as the license fee. A license which has been expired for more than 36 months shall be deemed lapsed and may be renewed only by filing a new application for licensure and by fulfilling the qualifications for licensure, including taking and achieving a passing score on any required examination.

§ 1809. License required.

No person shall represent himself or herself as a licensed plumber or use the title 'Licensed Plumber' or provide plumbing services in this State unless that person is licensed under this chapter and holds a current and valid license, not expired, suspended, or revoked, or unless that person is exempt under the provisions of Section 1813 of this chapter.

(1) Where the Board determines that a person has provided plumbing services within this State without having a current and valid license to do so, the Board shall make a formal complaint to the Attorney General. The complaint shall include all evidence known to, or in the possession of, the Board.

(2) Where the Board has placed a licensed plumber on probationary status under certain restrictions or conditions and the Board determines that such restrictions or conditions are being or have been violated by the plumber, it may, after a hearing on the matter, suspend or revoke the plumber's license.

(3) A person not currently licensed as a plumber who is convicted of practicing plumbing in violation of this chapter shall, upon the first offense, be fined not less than $100 nor more than $1000 and shall pay all costs; provided, however, that where it is alleged that such violation has resulted in injury to any person, the offender may also be charged and tried under the applicable provisions of Title 11 of the Delaware Code.

(4) Where a person previously convicted of practicing plumbing in violation of this chapter is convicted of a similar violation subsequent to the first offense, the fine assessed against that person shall be increased by up to $1,000 for each subsequent offense.

(5) Any criminal prosecution under this section for a violation of this chapter shall lie within the exclusive jurisdiction of the Superior Court.

§ 1810. Grounds for discipline.

(a) The following conditions and actions may result in disciplinary sanctions as set forth in § 1811 of this chapter if, after a hearing, the Board finds that a licensed plumber:

(1) has engaged or knowingly cooperated in fraud or material deception in order to be licensed;

(2) has engaged in illegal, incompetent, or negligent conduct in the provision of plumbing services;

(3) has been convicted of a felony, or, as a plumber or otherwise, in the practice of his or her profession has knowingly engaged in an act of consumer fraud or deception, engaged in the restraint of competition, or participated in price-fixing activities;

(4) has violated a provision of this chapter or any rule or regulation established hereunder;

(5) has had his or her license as a plumber suspended or revoked, or has had other disciplinary action taken against him or her by the appropriate licensing authority in another jurisdiction, provided, however, that the underlying grounds for such action in another jurisdiction have been presented to the Board by certified record and the Board has determined that the facts found by the appropriate licensing authority in the other jurisdiction constitute one or more of the acts defined in this chapter. Every person licensed as a plumber in this State shall be deemed to have given consent to the release of this information by the Board of Plumbers or other comparable agency in all other jurisdictions and to have waived all objections to the admissibility of previously adjudicated evidence of such acts or offenses; or

(6) has failed to notify the Board that, as a plumber in another state he or she has been subject to discipline, or that his or her license has been surrendered, suspended, or revoked. A certified copy of the record of the disciplinary action, surrender, suspension, or revocation shall be conclusive evidence thereof.

(b) Subject to the provisions of this chapter and Chapter 101 of Title 29 of the Delaware Code, no license shall be restricted, suspended, or revoked by the Board, and no practitioner's right to practice plumbing shall be limited by the Board until such practitioner has been given notice and an opportunity to be heard in accordance with the Administrative Procedures Act.

§ 1811. Disciplinary sanctions.

A person regulated under this chapter who has been determined to be in violation of this chapter or of a rule or regulation promulgated under this chapter shall be subject to one or more of the following disciplinary sanctions by the Board:

(1) Issuance of a letter of reprimand;

(2) Censure;

(3) Placement on probationary status;

(4) Imposition of a fine not to exceed $100 for a first offense or $1,000 for each subsequent offense;

(5) Suspension of license;

(6) Revocation of license.

§ 1812. Administrative procedures.

All administrative procedures under this chapter shall be governed by the Delaware Administrative Procedures Act, Chapter 101, Title 29 of the Delaware Code.

§ 1813. Exceptions.

(a) No license shall be required of a person who installs his or her own plumbing work, service, or equipment in or about his or her own home that is not for sale or any part for rent or lease, except that such person shall be required to obtain a permit from the Division of Public Health or from the proper plumbing inspection authority. Nothing in this paragraph shall be construed to prohibit a person from obtaining free assistance in installing his or her own plumbing work, service, or equipment in his or her own home that is not for sale or any part for rent or lease.

(b) Any person who is employed by a plumber licensed under this chapter and who is providing plumbing services in this State under the direct supervision of State- licensed plumber shall not be required to obtain a license while under such direct supervision.

(c) Property used exclusively for agricultural purposes is excluded from all provisions of this section, except for the necessity to obtain a permit from the Division of Public Health or from the proper plumbing inspection authority."

Section 2. Amend Section 8810(a), Title 29 of the Delaware Code, by adding thereto a new paragraph to read:

"(31) Board of Plumbing Examiners, as set forth in Chapter 18 of Title 24."

Section 3. Amend Section 10161 (a), Chapter 101, Title 29 of the Delaware Code, by adding thereto a new paragraph to read:

"(45) Board of Plumbing Examiners."

Section 4. Amend Section 7906 of Title 16 of the Delaware Code by deleting Section 7906 in its entirety and by substituting in lieu thereof the following:

"§ 7906. Rules and regulations for installation of plumbing; registration of plumbers; application for inspection.

(a) The Division of Public Health, in order to provide for the health of the citizens of the State, shall adopt and promulgate suitable rules and regulations for the construction, alteration, repair, modification, or renovation of water and sewer systems and of building and house drainage systems; shall enforce those rules and regulations; and shall make provisions under this section and Chapter 18 of Title 24 of the Delaware Code for the punishment of any person who violates or assists in the violation of or refuses to comply with such rules and regulations.

Registration and licensure of plumbers and persons engaged in the practice of plumbing in this State shall be in accordance with Chapter 18 of Title 24 of the Delaware Code.

No license shall be required of a person who installs his or her own plumbing work, service, or equipment in or about his or her own home that is not for sale or any part for rent or lease, except that such person shall be required to obtain a permit from the Division of Public Health or from the proper plumbing inspection authority. Nothing in this paragraph shall be construed to prohibit a person from obtaining free assistance in installing his or her own plumbing work, service, or equipment in his or her own home that is not for sale or any part for rent or lease.

(d) Property used exclusively for agricultural purposes is excluded from all provisions of this section, except for the necessity to obtain a permit from the Division of Public Health or from the proper plumbing inspection authority."

Section 5. Severability clause.

If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.

Approved July 16, 1997