FIRST REGULAR SESSION
94TH GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVE PARSON.
Read 1st time February 26, 2007 and copies ordered printed.
D. ADAM CRUMBLISS, Chief Clerk
AN ACT
To amend chapter 339, RSMo, by adding thereto ten new sections relating to licensing home inspectors, with penalty provisions and an effective date.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Chapter 339, RSMo, is amended by adding thereto ten new sections, to be known as sections 339.900, 339.903, 339.906, 339.909, 339.912, 339.924, 339.930, 339.933, 339.934, and 339.936, to read as follows:
339.900. As used in sections 339.900 to 339.936, the following terms mean:
(1) "Commission", the Missouri home inspectors commission;
(2) "Component", a part of a system;
(3) "Home inspection", the process by which an inspector, for payment or other compensation, visually examines the readily accessible systems and components of a residential building and describes such systems in writing in accordance with the standards of practice established by the commission. The inspection is not intended to be technically exhaustive or intrusive, nor shall it predict life expectancies of efficiencies of structural or mechanical components;
(4) "Home inspection report", a written opinion prepared for compensation and issued for a home inspection. The report shall clearly describe and identify the inspected systems, structures, or components of the residential building, identify any visible major defects found to be in need of immediate major repair, and include any recommendations for further evaluation;
(5) "Home inspector", an individual who performs an independent, objective home inspection for compensation;
(6) "Readily accessible", available for visual inspection without requiring the movement of personal property, dismantling, destructive measures, or any action that would likely involve risk to persons or property;
(7) "Residential building", a structure of one to four family dwelling units;
(8) "System", a combination of interacting or interdependent components assembled to carry out one or more functions.
339.903. 1. No person shall act as a home inspector, or directly or indirectly engage or assume to engage in the business of home inspection, or advertise or hold himself or herself out as engaging in or conducting such business without first obtaining a license issued by the Missouri home inspectors commission as provided in sections 339.900 to 339.936.
2. No license shall be issued under sections 339.900 to 339.936 to a partnership, association, corporation, firm, or group.
3. Any person who is not state licensed under sections 339.900 to 339.936 may assist a state-licensed home inspector in the performance of an inspection provided that the person is personally supervised by a state-licensed inspector and any inspection report rendered in connection with the inspection is reviewed and signed by the state-licensed home inspector.
4. The provisions of sections 339.900 to 339.936 shall not be construed to require a license for:
(1) Any person, partnership, association, or corporation who as owner performs inspections of property owned by such person, partnership, association, or corporation;
(2) Any employee of a local, state, or federal agency who performs inspection services within the scope of his or her employment;
(3) Any individual or business, which is a residential or general contractor, electrician, plumber, mechanical contractor, or any other individual acting within the scope of their trade, profession, or business, who may as an element of its business, perform a noninvasive and visual examination for compensation of one or more of the readily accessible systems or components of a residential building for payment or other compensation, but which is not a home inspector required to be registered under the requirements of sections 339.880 to 339.894;
(4) A real estate broker, real estate salesperson, or real estate appraiser acting within the scope of his or her license;
(5) Any person employed by or acting on behalf of a licensed insurance company doing business in this state.
339.906. 1. There is hereby created within the division of professional registration of the department of insurance, financial institutions and professional registration the "Missouri Home Inspectors Commission", which shall consist of nine members appointed by the governor with the advice and consent of the senate, six of whom shall be licensed home inspectors, one who shall be a licensed real estate broker, one who shall be a representative of a third class county, and one who shall be a public member. Each member shall be a resident of this state and a registered voter for a period of one year prior to the person's appointment. The public member shall have never been engaged in the businesses of real estate appraisal, real estate sales, or making loans secured by real estate. The board shall elect from its membership a president, vice president, and secretary-treasurer, each of whom shall be elected at the times and serve for the terms as are determined by the commission, and each of whose duties shall be prescribed by the commission.
2. The home inspector members initially appointed by the governor shall have home inspection experience in the state of Missouri for not less than five years preceding their initial appointment, have completed at least two hundred fifty home inspections for compensation, and be members in good standing of a nationally recognized home inspector association requiring written examination. Successor home inspector members of the commission shall be appointed from the registry of state-licensed home inspectors. The governor shall not exclude a state-licensed home inspector from appointment as a successor inspector member of the commission by virtue of membership or lack of membership of the state-licensed home inspector in any particular home inspector association.
3. Of the initial members appointed, three members shall be appointed for one-year terms, three members for two-year terms, and three members for three-year terms. All successor members shall be appointed for three-year terms. All members shall serve until their successors have been appointed and qualified. Vacancies occurring in the membership of the commission for any reason shall be filled by appointment by the governor for the unexpired term. Upon expiration of their terms, members of the commission shall continue to hold office until the appointment and qualification of their successors. The governor may remove a member for cause. The executive director of the commission shall be employed by the division of professional registration.
4. The commission shall meet at least once each calendar year to conduct its business. The executive director shall give each member notice of the time and place of each meeting of the commission at least ten days before the scheduled date of the meeting, and notice of any special meeting shall state the specific matters to be considered in the special meeting which is not a regular meeting. A quorum of the commission shall consist of a majority of the number on the commission.
5. Each member of the commission shall be entitled to a per diem allowance of up to seventy dollars for each meeting day or part of a day of the commission at which the member is present and shall be entitled to reimbursement of the member's actual and necessary expenses incurred in the discharge of the member's official duties. Each member of the commission shall be entitled to reimbursement of travel expenses necessarily incurred in attending meetings of the commission.
339.909. 1. The commission shall have the following powers and duties:
(1) To adopt rules in accordance with the provisions of chapter 536, RSMo, to:
(a) Establish the qualifications for the licensing of home inspectors as the commission deems necessary for the public interest;
(b) Establish an application process for persons seeking a license as a home inspector;
(c) Establish and publish standards of professional and ethical conduct for home inspectors that will meet or exceed those set by recognized national home inspector associations; and
(d) Establish such reasonable rules as deemed necessary or desirable by the commission to carry out and enforce the provisions of sections 339.900 to 339.936;
(2) To establish rules regarding hearings on any matter under the provisions of sections 339.900 to 339.936;
(3) To establish administrative procedures for processing applications and issuing licenses of state-licensed home inspectors and for conducting disciplinary proceedings under the provisions of sections 339.900 to 339.936. The commission shall have authority to determine who meets the criteria for licensure and shall have authority to renew, censure, suspend, or revoke licenses;
(4) To maintain and publish a registry of names and addresses of state-licensed home inspectors;
(5) To adopt rules for establishing approved courses of instruction that prescribe and define the subjects related to home inspection that will satisfy the qualification requirements for licensure. The commission shall establish and publish a list of approved education program providers;
(6) To prescribe the form and content of examinations to determine the qualifications of persons who apply for licenses to engage in home inspection. The commission may contract with a testing service to provide and conduct such examinations;
(7) To define by rule the continuing education requirements for the renewal of licensure that will meet the requirements of sections 339.900 to 339.936;
(8) To set the amount of fees authorized by sections 339.900 to 339.936 and required by rules promulgated under section 536.021, RSMo. The fees shall be set at a level to produce revenue that does not substantially exceed the cost and expense of administering this chapter;
(9) To establish rules by which the commission may issue a license on a reciprocal basis with other states without examination to a nonresident who is licensed or certified, and in good standing in another state under standards that are substantially equal to those established by the commission and in sections 339.900 to 339.936. Fees collected shall be the same as those required for state licensure of resident home inspectors;
(10) To perform such other functions and duties as may be necessary to carry out the provisions of sections 339.900 to 339.936.
2. Any rule or portion of a rule, as that term is defined in section 536.010, RSMo, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536, RSMo, and, if applicable, section 536.028, RSMo. This section and chapter 536, RSMo, are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536, RSMo, to review, to delay the effective date, or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2007, shall be invalid and void.
339.912. 1. Any person desiring to obtain licensure as a state-licensed home inspector shall make written application to the commission on such forms as are prescribed by the commission setting forth the applicant's qualifications for licensure and present to the commission satisfactory proof that the person is of good moral character and bears a good reputation for honesty, integrity, and fair dealing.
2. There is hereby created in the state treasury the "Missouri Home Inspectors Fund", which shall consist of moneys collected under sections 339.900 to 339.936. The fund shall be administered by the division of professional registration, which shall collect and transfer the fees authorized in sections 339.900 to 339.936 to the director of revenue for deposit in the fund. Moneys in the fund shall be used solely for the purposes of the Missouri home inspectors commission as authorized in sections 339.900 to 339.936.
3. Notwithstanding the provisions of section 33.080, RSMo, to the contrary, any moneys remaining in the fund at the end of the biennium shall not revert to the credit of the general revenue fund until the amount in the fund at the end of the biennium exceeds two times the amount of the appropriation from the board's funds for the preceding fiscal year or, if the board requires by rule permit renewal less frequently than yearly, then three times the appropriation from the board's fund for the preceding fiscal year. The amount, if any, in the fund which shall lapse is that amount in the fund which exceeds the appropriate multiple of the appropriations from the board's funds for the preceding fiscal year.
4. At the time of filing an application for licensure, each applicant shall sign a pledge to comply with the standards set forth by the commission in sections 339.900 to 339.936. The applicant shall state that the applicant understands the types of misconduct for which disciplinary proceedings may be initiated against a state-licensed home inspector.
5. Each applicant for licensure must demonstrate the knowledge and competence necessary to perform inspections of residential and business real estate as the commission may prescribe by rule and as required by sections 339.900 to 339.936. The commission shall issue state licensure as a state-licensed home inspector upon assurance that an applicant:
(1) Is of good moral character;
(2) Has successfully completed a commission approved classroom training program of not less than one hundred twenty classroom hours or has completed at least eighty home inspections under the direct supervision of a licensed home inspector;
(3) Has passed a proctored examination offered or approved by the commission or as provided for in sections 339.900 to 339.936; and
(4) Has paid the appropriate fee set by the commission.
6. If an applicant is not licensed within three years after passing an examination given under sections 339.900 to 339.936, the applicant shall be required to retake the examination prior to state licensure.
7. An applicant who fails an examination taken under sections 339.900 to 339.936 may apply for reexamination by submitting an application with the appropriate examination fee during the time frame defined by rule regarding procedures for reexamination.
8. The commission shall also make such investigation as required to verify such qualifications. If the results of the investigation are satisfactory to the commission and the applicant is otherwise qualified, the commission shall issue to the applicant a license authorizing the applicant to act as a state-licensed home inspector in Missouri. If the results of the investigation are unsatisfactory, action on the application may be deferred pending a hearing before the commission.
9. An action to recover damages for any act or omission of a home inspector relating to a home inspection that he or she conducts can only be commenced within one year after the date that a home inspection is completed. Only a client and no other party shall have an action to recover damages arising from a home inspection or a home inspection report. Home inspectors shall maintain general liability insurance coverage while in the business of performing home inspections.
339.924. 1. The commission shall promulgate and adopt rules which prescribe and define the subjects related to home inspection that will satisfy the qualification requirements for licensure. The commission shall establish a list of approved education program providers and may approve courses of instruction in an accredited college or university related to the inspection of homes and such other areas deemed relevant by the commission. Each provider shall submit application for approval each calendar year, and shall maintain a record of all attendance and satisfactory results for each program attendee.
2. In adopting rules under this section, the commission may give favorable consideration to courses of instruction, seminars, and other home inspection education courses and programs previously or hereafter developed by, or under the auspices of, professional home inspection associations and utilized by those associations for purposes of designation, licensure, or renewal of licensure of members of the association.
3. For purposes of licensure or renewal of licensure, the commission may establish or approve credit for any of the following: courses of instruction, programs, teaching, program development, and preparation of textbooks, articles, or other instructional materials.
339.930. 1. The commission may refuse to issue or renew any license issued under sections 339.900 to 339.936 for one or any combination of causes stated in subsection 2 of this section. The commission shall notify the applicant in writing of the reasons for the refusal and shall advise the applicant of the right to file a complaint with the administrative hearing commission as provided by chapter 621, RSMo.
2. The commission may cause a complaint to be filed with the administrative hearing commission as provided by chapter 621, RSMo, against any state-licensed home inspector or any person who has failed to renew or had surrendered his or her license for any one or any combination of the following causes:
(1) Procuring or attempting to procure a license under section 339.912 by knowingly making a false statement, submitting false information, refusing to provide complete information in response to a question in an application for licensure, or through any form of fraud or misrepresentation;
(2) Failing to meet the minimum qualifications for licensure or renewal established by sections 339.900 to 339.936;
(3) Paying money or other valuable consideration, other than as provided for by section 339.912, to any member or employee of the commission to procure a license under sections 339.900 to 339.936;
(4) The person has been finally adjudicated and found guilty, or entered a plea of guilty or nolo contendere, in a criminal prosecution under the laws of any state or the United States for any offense reasonably related to the qualifications, functions, or duties of any profession licensed or regulated under sections 339.900 to 339.936, for any offense of which an essential element is fraud, dishonesty, or an act of violence, regardless of the imposition of sentence;
(5) Incompetency, misconduct, gross negligence, dishonesty, fraud, or misrepresentation in the performance of the functions or duties of any profession licensed or regulated by sections 339.900 to 339.936;
(6) Violation of any of the standards for the development or communication of home inspections as provided in sections 339.900 to 339.936;
(7) Failure or refusal without good cause to exercise reasonable diligence in developing an inspection, preparing an inspection report, or communicating an inspection;
(8) Negligence or incompetence in developing an inspection, in preparing an inspection report, or in communicating an inspection;
(9) Violating, assisting, or enabling any person to willfully disregard any of the provisions of sections 339.900 to 339.936 or the rules of the commission for the administration and enforcement of the provisions of sections 339.900 to 339.936;
(10) Accepting an inspection assignment when the employment itself is contingent upon the inspector's reporting a predetermined analysis or opinion or where the fee to be paid for the performance of the inspection assignment is contingent upon the opinion, conclusion, or valuation reached or upon the consequences resulting from the inspection assignment;
(11) Violating the confidential nature of governmental records to which the person gained access through employment or engagement to perform an inspection assignment or specialized inspection services for a governmental agency;
(12) Violating any term or condition of a license issued by the commission under the authority of sections 339.900 to 339.936;
(13) Violation of any professional trust or confidence;
(14) Obtaining or attempting to obtain any fee, charge, tuition, or other compensation by fraud, deception, or misrepresentation;
(15) Assisting or enabling any person to practice or offer to practice any profession licensed or regulated by sections 339.900 to 339.936 who is not licensed and currently eligible to practice under sections 339.900 to 339.936;
(16) Use of any advertisement or solicitation which is false, misleading, or deceptive to the general public or persons to whom the advertisement or solicitation is primarily directed;
(17) Disciplinary action against the holder of a license or other right to practice any profession regulated under sections 339.900 to 339.936, imposed by another state, territory, federal agency, or country upon grounds for which revocation or suspension is authorized in this state.
3. After the filing of such complaint, the proceedings shall be conducted in accordance with the provisions of chapter 621, RSMo. Upon a finding by the administrative hearing commission that the grounds provided in subsection 2 of this section for disciplinary action are met, the commission may, singly or in combination, publicly censure or place the person named in the compliant on probation on such terms and conditions as the commission deems appropriate for a period not to exceed five years, or may suspend for a period not to exceed three years, or revoke the license. The holder of a license revoked under this section shall not obtain licensure as a state-licensed home inspector for at least five years after the date of revocation.
4. Applicants for relicensure or reinstatement shall be required to successfully complete the examination for original licensure required by section 339.921 as a condition to reinstatement of licensure or relicensure subsequent to revocation.
339.933. State-licensed home inspectors shall retain originals or true copies of contracts engaging an inspector's services for inspector assignments, specialized inspection services, inspection reports, and supporting data assembled and formulated in preparing inspection reports for three years and a day. In the event of a court action, state-licensed home inspectors shall retain an original or true copy of the contract engaging an inspector's service for inspector assignment, specialized inspection service, inspection report, and supporting data assembled and formulated in preparing an inspection report named in a court action for five years and a day. The service period for retention of the records applicable to each engagement of the services of the state-licensed home inspector shall run from the date of the inspection report. Such records shall be made available by the state-licensed home inspector for inspection and copying by the commission on reasonable notice to the state-licensed home inspector.
339.934. 1. Except as provided in subsection 2 of this section, sections 339.900 to 339.936 shall preempt any rule, regulation, or order adopted by a political subdivision of the state relating to the licensing or regulation of home inspectors or home inspection businesses.
2. Sections 339.900 to 339.936 shall not affect:
(1) Local regulations relating to zoning requirements or occupational license taxes pertaining to home inspectors or home inspection businesses; or
(2) Local regulations that do not relate to home inspections as performed by a Missouri state-licensed home inspector, including the regulations of those professionals who perform duties with a state-licensed home inspector.
339.936. Any person or corporation who knowingly violates any provision of sections 339.900 to 339.936 is guilty of a class B misdemeanor. Any officer or agent of a corporation, or member or agent of a partnership or association, who knowingly and personally participates in or is an accessory to any violation of sections 339.900 to 339.936 is guilty of a class B misdemeanor. This section shall not be construed to release any person from civil liability or criminal prosecution under any other law of this state. The commission may cause a complaint to be filed for a violation of section 339.903 in any court of competent jurisdiction, and perform such other acts as may be necessary to enforce the provisions of sections 339.900 to 339.936.
Section B. Section A shall become effective January 1, 2008.
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