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HB-4937, As Passed House, October 11, 2007

SUBSTITUTE FOR

HOUSE BILL NO. 4937

A bill to amend 1980 PA 299, entitled

"Occupational code,"

by amending section 601 (MCL 339.601), as amended by 2005 PA 278,

and by adding section 2006.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 601. (1) A person shall not engage in or attempt to

engage in the practice of an occupation regulated under this act or

use a title designated in this act unless the person possesses a

license or registration issued by the department for the

occupation.

(2) A school, institution, or person shall not operate or

attempt to operate a barber college, school of cosmetology, or real

estate school unless the school, institution, or person is licensed

or approved by the department.

House Bill No. 4937 (H-1) as amended October 11, 2007

(3) A person, school, or institution that violates subsection

(1) or (2) is guilty of a misdemeanor , punishable by a fine of not

more than $500.00 , or imprisonment for not more than 90 days, or

both.

(4) A person, school, or institution that violates subsection

(1) or (2) a second or any subsequent time is guilty of a

misdemeanor , punishable, except as provided in section 735, by a

fine of not more than $1,000.00 , or imprisonment for not more than

1 year, or both.

(5) Notwithstanding subsections (3) and (4), a person not

licensed under article 20 as an architect, professional engineer,

or professional land surveyor who violates subsection (1) or (2) is

guilty as follows:

(a) In the case of a first offense, a misdemeanor punishable

by a fine of not less than $5,000.00 or more than $25,000.00 or

imprisonment for not more than 93 days, or both.

(b) In the case of a second [or subsequent] offense, a misdemeanor

punishable

by a fine of not less than $5,000.00 or more than $25,000.00 or

imprisonment for not more than 1 year, or both.

injury], a felony

punishable by a fine of not less than $5,000.00 or more than

$25,000.00 or imprisonment for not more than 4 years, or both.

(6) Any violation of this act shall include a requirement that

restitution be made, based upon proofs submitted to and findings

made by the trier of fact as provided by law.

(7) ~~(5)~~ Notwithstanding the existence and pursuit of any other

remedy, an affected person may maintain injunctive action in a

court of competent jurisdiction to restrain or prevent a person

from violating subsection (1) or (2). If successful in obtaining

injunctive relief, the affected person ~~shall be~~ is entitled to

actual costs and attorney fees.

(8) ~~(6)~~ This act does not apply to a person engaging in or

practicing the following:

(a) Interior design.

(b) ~~Building~~ Residential building design. As used in this

subdivision, "residential building design" means the rendering of

residential design services for a detached 1- and 2-family

residence building by a person exempted from the requirements of

section 2012.

state plumbing act, 2002 PA 733, MCL 338.3511 to 338.3569.

(d) Any activity for which the person is licensed under the

Forbes mechanical contractors act, 1984 PA 192, MCL 338.971 to

338.988.

(e) Any activity for which the person is licensed under the

electrical administrative act, 1956 PA 217, MCL 338.881 to 338.892.

(9) ~~(7)~~ As used in subsection ~~(5)~~ (7), "affected person" means

a person directly affected by the actions of a person suspected of

violating subsection (1) or (2) and includes, but is not limited

to, a licensee or registrant, a board established pursuant to this

act, a person who has utilized the services of the person engaging

in or attempting to engage in an occupation regulated under this

act or using a title designated by this act without being licensed

or registered by the department, or a private association composed

primarily of members of the occupation in which the person is

engaging in or attempting to engage in or in which the person is

using a title designated under this act without being registered or

licensed by the department.

(10) ~~(8)~~ An investigation may be conducted under article 5 to

enforce this section. A person who violates this section shall be

subject to this section and section 506.

(11) ~~(9)~~ The remedies under this section are independent and

cumulative. The use of 1 remedy by a person ~~shall~~ does not bar the

use of other lawful remedies by that person or the use of a lawful

remedy by another person.

(12) ~~(10)~~ An interior designer may perform services in

connection with the design of interior spaces including preparation

of documents relative to finishes, systems furniture, furnishings,

fixtures, equipment, and interior partitions that do not affect the

building mechanical, structural, electrical, or fire safety

systems.

Sec. 2006. (1) A person, a qualifying officer, a licensee, or

an agent for a licensee under this article shall not bring or

maintain an action in a court of this state for the collection of

compensation for the performance of an act or contract for which

licensure is required under this article without alleging and

proving that the person, qualifying officer, licensee, or agent was

licensed under this article during the performance of the act or

contract. A person who has utilized the services of a person

engaging in or attempting to engage in an occupation regulated

under this article or using a title designated by this article

without being licensed by the department may bring an action in a

court of competent jurisdiction, or offer as a counterclaim to an

action brought by an unlicensed person, for a refund of

compensation after deducting the value of the goods or services

retained by the person.

(2) If the department suspends a license for failure to make

restitution, in whole or in part, the restitution in the form of

repair or remedial corrective work shall be performed by a person

appropriately licensed under this article and shall be paid for by

the licensee.