H-4163

AN ACT Relating to manufactured housing installation; amending RCW 18.27.117; adding a new chapter to Title 18 RCW; recodifying RCW 18.27.117; prescribing penalties; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The purpose of this chapter is to ensure that purchasers of manufactured homes have their homes installed in accordance with the state installation code, chapter 296-150B WAC. This chapter requires that all manufactured homes are installed by a certified manufactured home installer.

NEW SECTION. Sec. 2. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Advisory committee" means the committee appointed by the director to advise the department on the training and certification of manufactured home installers.

(2) "Authorized representative" means an employee of a state agency, city, or county acting on behalf of such a unit of government.

(3) "Certified manufactured home installer" means a person who has been issued a certificate by the department of community development as provided in this chapter.

(4) "Department" means the department of community development.

(5) "Director" means the director of the department of community development.

(6) "Manufactured home" includes mobile homes.

(7) "Manufactured home installation" includes all work necessary for the installation of a manufactured home, including: The construction of the support piers and foundation system; required connections to the support piers and foundation system; the installation of on-site water, gas, electrical, and sewer systems; and required connections to the on-site water, gas, electrical, and sewer systems that are necessary for the normal operation of the manufactured home. This definition does not include specialty trades that are responsible for: Constructing accessory structures such as garages, carports, and deck and storage buildings; pouring concrete into forms; painting and drywall finishing; carpet installation; or specialty work performed by licensed plumbers or electricians.

(8) "Manufactured home standards" means the manufactured home construction and safety standards as promulgated by the United States department of housing and urban development.

(9) "Training course" means the education program administered by the department as a prerequisite to taking the examination for certification.

NEW SECTION. Sec. 3. (1) After July 1, 1993, a manufactured home may not be installed without a certified manufactured home installer providing on-site supervision whenever installation work is being performed. The certified manufactured home installer is responsible for the performance of noncertified workers engaged in the installation of the manufactured home. There shall be at least one certified manufactured home installer for each two noncertified workers on the installation site whenever installation work is being performed.

(2) A certified manufactured home installer is not required to be a registered contractor under chapter 18.27 RCW.

(3) Violation of subsection (1) of this section is an infraction.

NEW SECTION. Sec. 4. A person desiring to be issued a certificate of mobile home installation as provided in this chapter shall make application to the department, including the bond required in section 11 of this act, in such a form as required by the department. The applicant must demonstrate that he or she has had sufficient experience in, as well as demonstrated general knowledge of manufactured housing installation so as to qualify the applicant to make an application for a certificate of manufactured home installation.

NEW SECTION. Sec. 5. Upon receipt of the application and evidence required in this chapter, the director shall review the information and make a determination as to whether the applicant is eligible to take the training course and examination for the certificate of manufactured home installation. An applicant must furnish written evidence of twelve months of experience under the direct supervision of a certified manufactured home installer in order to be eligible to take the training course and examination. The director shall establish reasonable rules for the training course and examinations to be given to applicants for certificates of manufactured home installation. Upon determining that the applicant is eligible to take the training course and examination, the director shall notify the applicant, indicating the time and place for taking the training course and examination.

The requirement that an applicant must be under the direct supervision of a certified manufactured home installer for one year only applies to applications made on or after July 1, 1995. For applications made before July 1, 1995, the department shall require evidence of experience to satisfy this requirement.

NEW SECTION. Sec. 6. The department shall prepare a written training course and examination to be administered to applicants for certificates to be certified manufactured home installers. The examination shall be constructed to determine:

(1) Whether the applicant possesses general knowledge of the technical information and practical procedures that are necessary for manufactured home installations.

(2) Whether the applicant is familiar with the applicable federal and state codes and administrative rules pertaining to manufactured homes.

(3) Whether the applicant is familiar with local government regulations as related to manufactured home installations.

The department shall administer the training course and examination to eligible persons and shall charge reasonable fees to cover the costs to administer the certification program.

The department shall certify the results of the examination and shall notify the applicant in writing whether the applicant has passed or failed the examination. An applicant who failed the examination may retake the training course and examination. The director may not limit the number of times that a person may take the training course and examination.

NEW SECTION. Sec. 7. (1) The department shall issue a certificate of manufactured home installation to all applicants who have taken the training course, passed the examination, paid the fee for the certificate, and in all other respects meets the qualifications. The certificate shall bear the date of issuance and is renewable every three years upon application and completion of a continuing education program as determined by the department. A renewal fee shall be assessed for each certificate. If a person fails to renew a certificate by the renewal date, the person must retake the examination and pay the examination fee.

(2) The certificate of manufactured home installation provided for in this chapter grants the holder the right to engage in manufactured home installation throughout the state and within any city or county, without any other license, permit, or fee.

NEW SECTION. Sec. 8. (1) The department may revoke a certificate of manufactured home installation upon the following grounds:

(a) The certificate was obtained through error or fraud.

(b) The holder of the certificate is judged to be incompetent as a result of multiple violations of the state installation code, WAC 296-150B-200 through 296-150B-255.

(d) The holder has violated a provision of this chapter or a rule adopted to implement this chapter.

(2) Before a certificate of manufactured home installation is revoked, the holder must be given written notice of the department's intention to revoke the certificate, sent by registered mail, return receipt requested, to the holder's last known address. The notice shall enumerate the allegations against the holder, and shall give the holder the opportunity to request a hearing. At the hearing, the department and the holder may produce witnesses and give testimony. The hearing shall be conducted in accordance with the provisions of chapter 34.05 RCW.

NEW SECTION. Sec. 9. The department shall charge fees for the issuance, renewal, and reinstatement of all certificates, and for training courses and examinations required under this chapter. The amount of each fee shall be established by the department in rule. All fees collected under this chapter shall be used only for the purposes specified in this chapter.

The fees shall be limited to covering the full cost of issuing the certificates, devising and administering the examinations, and administering and enforcing this chapter. The costs shall include necessary travel, per diem, and administrative support costs.

NEW SECTION. Sec. 10. An authorized representative may investigate alleged or apparent violations of this chapter. An authorized representative, including a local government building official upon presentation of credentials, may inspect sites at which manufactured home installation work is undertaken to determine whether such work is in compliance with this chapter. Upon request of the authorized representative, a person performing manufactured home installation work shall identify the persons holding the certificate issued by the department in accordance with this chapter.

NEW SECTION. Sec. 11. (1) An applicant or the applicant's employer shall, at the time of applying for or renewing a certificate of manufactured home installation, file with the department a surety bond issued by a surety insurer who meets the requirements of chapter 48.28 RCW, in a form acceptable to the department and running to the state of Washington in the sum of six thousand dollars. The bond shall be conditioned that the applicant shall pay all persons performing labor, including employee benefits, for the installer, shall pay all taxes and contributions due to the state of Washington, and shall pay all persons furnishing labor or material or renting or supplying equipment to the installer, and shall pay all amounts that may be adjudged against the installer by reason of negligent or improper work or breach of contract in the conduct of the installation business. A change in the name of the business or a change in the type of business entity shall not impair a bond for the purposes of this section so long as one of the original applicants for such bond maintains partial ownership in the business covered by the bond.

(2) A person, firm, or corporation having a claim against the installer for any of the items referred to in this section may bring suit upon such bond or deposit in the superior court of the county in which the work was done or of a county in which jurisdiction of the installer may be had. The surety issuing the bond shall be named as a party to a suit upon the bond. Action upon such a bond or deposit shall be commenced by filing the summons and complaint with the clerk of the appropriate superior court within one year from the date of expiration of the certificate in force at the time the claimed labor was performed and benefits accrued, taxes and contributions owing the state of Washington became due, materials and equipment were furnished, or the claimed work was completed. Service of process in an action against the installer, the installer's bond, or the deposit shall be exclusively by service upon the department. Three copies of the summons and complaint and a fee of ten dollars to cover the handling costs shall be served by registered or certified mail upon the department at the time suit is started and the department shall maintain a record, available for public inspection, of all suits so commenced. Service is not complete until the department receives the fee and three copies of the summons and complaint. The service constitutes service on the installer and the surety for suit upon the bond or deposit and the department shall transmit the summons and complaint or a copy thereof to the installer at the address listed in the application and to the surety within forty-eight hours after it has been received.

(3) The surety upon the bond is not liable in an aggregate amount in excess of the amount named in the bond nor for a monetary penalty assessed under this chapter for an infraction. The liability of the surety may not cumulate where the bond has been renewed, continued, reinstated, reissued or otherwise extended. The surety upon the bond may, upon notice to the department and the parties, tender to the clerk of the court having jurisdiction of the action an amount equal to the claims thereunder or the amount of the bond less the amount of judgments, if any, previously satisfied therefrom and to the extent of such tender the surety upon the bond shall be exonerated. If the actions commenced and pending at any one time exceed the amount of the bond then unimpaired, claims shall be satisfied from the bond in the following order:

(a) Labor, including employee benefits;

(b) Claims for breach of contract by a party to the installation contract;

(d) Taxes and contributions due the state of Washington;

(e) Court costs, interest, and attorneys' fees plaintiff may be entitled to recover.

(4) In the event that a final judgment impairs the liability of the surety upon the bond so furnished that there is not in effect a bond undertaking in the full amount prescribed in this section, the department shall suspend the certification of the installer until the bond liability in the required amount unimpaired by unsatisfied judgment claims has been furnished. If the bond becomes fully impaired, a new bond must be furnished at the increased rates prescribed under this section.

(5) In lieu of the surety bond required under this section the installer may file with the department a deposit consisting of cash or other security acceptable to the department.

(6) A person having filed and served a summons and complaint as required under this section having an unsatisfied final judgment against the installer for any items referred to in this section may execute a certified copy of the unsatisfied final judgment by registered or certified mail upon the department within one year of the date of entry of such judgment. Upon the receipt of service of the certified copy the department shall pay or order paid from the deposit, through the registry of the superior court that rendered judgment, towards the amount of the unsatisfied judgment. The priority of payment by the department is the order of receipt by the department, but the department has no liability for payment in excess of the amount of the deposit.

(7) The director may adopt rules necessary for the proper administration of the security in accordance with chapter 34.05 RCW.

NEW SECTION. Sec. 12. There is hereby created a manufactured home installation advisory committee consisting of ten members appointed by the director. The committee shall advise the director on all matters pertaining to the enforcement of this chapter including all aspects of manufactured home installation. The committee shall periodically review the rules adopted to effect this chapter, and shall recommend changes of the rules to the department as it deems advisable.

The members of the committee shall consist of two representatives of consumers, manufactured home installers, manufactured home dealers, manufacturers, and local building officials. The term of each member shall be four years, except that the director may appoint the initial members of the advisory board to staggered terms not exceeding four years.

NEW SECTION. Sec. 13. An authorized representative of the department may issue a notice of infraction if: (1) The person responsible for the manufactured home installation work fails to produce evidence of having a certificate issued by the department in accordance with this chapter; or (2) the installation is not in compliance with this chapter. A notice of infraction issued under this chapter shall be personally served on or sent by certified mail to the person named in the notice by the authorized representative.

NEW SECTION. Sec. 14. (1) The department shall prescribe the form of the notice of infraction issued under this chapter.

(2) The notice of infraction shall include the following:

(a) A statement that the notice represents a determination that the infraction has been committed by the person named in the notice and that the determination is final unless contested as provided in this chapter.

(b) A statement that the infraction is a noncriminal offense for which imprisonment may not be imposed as a sanction.

(d) A statement of a monetary penalty that has been established for the infraction.

(e) A statement of the options provided in this chapter for responding to the notice and the procedures necessary to exercise these options.

(f) A statement that, at a hearing to contest the determination, the state has the burden of proving, by a preponderance of the evidence, that the infraction was committed, and that the person may subpoena witnesses including the authorized representative who issued and served the notice of the infraction.

(g) A statement, that the person shall sign, that the person promises to respond to the notice of infraction in one of the ways provided in this chapter.

(h) A statement that refusal to sign the infraction as directed in (g) of this subsection is a misdemeanor.

(i) A statement that failure to respond to a notice of infraction as promised is a misdemeanor and may be punished by a fine or imprisonment in jail.

NEW SECTION. Sec. 15. Each day in which a person engages in the installation of manufactured homes in violation of this chapter is a separate infraction. Each worksite at which a person engages in the trade of manufactured home installation in violation of this chapter is a separate infraction.

NEW SECTION. Sec. 16. It is a violation of this chapter for any manufactured home dealer, manufacturer, or home dealer's or manufacturer's agent to engage any person to install a manufactured home who is not certified in accordance with this chapter.

NEW SECTION. Sec. 17. A district court shall hear and determine a violation designated as an infraction under this chapter. A notice of infraction shall be filed in the district court in which the infraction is alleged to have occurred. If a notice of infraction is filed in a court that is not the proper venue, the notice shall be dismissed without prejudice on motion of either party.

NEW SECTION. Sec. 18. Unless contested in accordance with this chapter, the notice of infraction represents a determination that the person to whom the notice was issued committed the infraction.

NEW SECTION. Sec. 19. (1) A person who receives a notice of infraction shall respond to the notice as provided in this section within fourteen days of the date the notice was served.

(2) If the person named in the notice of infraction does not wish to contest the determination, the person shall respond by completing the appropriate portion of the notice of infraction and submitting it, either by mail or in person, to the court specified on the notice. A check or money order in the amount of the penalty prescribed for the infraction must be submitted with the response. When a response that does not contest the determination is received, an appropriate order shall be entered in the court's records, and a record of the response and order shall be furnished to the department.

(3) If the person named in the notice of infraction wishes to contest the determination, the person shall respond by completing the portion of the notice of infraction requesting a hearing and submitting it, either by mail or in person, to the court specified on the notice. The court shall notify the person in writing of the time, place, and date of the hearing, and that date shall not be sooner than fourteen days from the date of the notice, except by agreement of the parties.

(4) If a person issued a notice of infraction:

(a) Fails to respond to the notice of infraction as provided in subsection (2) of this section; or

(b) Fails to appear at a hearing requested under subsection (3) of this section; the court shall enter an appropriate order assessing the monetary penalty prescribed for the infraction and shall notify the department of the failure to respond to the notice of infraction or to appear at a requested hearing.

(5) An order entered by a court under subsection (4) of this section may, for good cause shown and upon such terms as the court deems just, be set aside for the same grounds a default judgment may be set aside in civil actions in courts of limited jurisdiction.

NEW SECTION. Sec. 20. It is a misdemeanor for a person who has been served with a notice of infraction:

(1) To refuse to sign a written promise to respond to a notice; or

(2) To willfully violate the written promise to respond to a notice of infraction as provided in this chapter, regardless of the ultimate disposition of the infraction.

NEW SECTION. Sec. 21. A person subject to proceedings under this chapter may appear or be represented by counsel. The attorney general shall represent the department in a proceeding under this chapter.

NEW SECTION. Sec. 22. (1) A hearing held for the purpose of contesting the determination that an infraction has been committed shall be without a jury.

(2) The court may consider the notice of infraction and any other written report made under oath, submitted by the department's authorized representative who issued and served the notice, and has the right to present evidence and examine witnesses present in court.

(3) The burden of proof is on the department to establish the commission of the infraction by a preponderance of the evidence. The notice of infraction shall be dismissed if the defendant establishes that, at the time the notice was issued, the defendant held a certificate issued by the department or was exempt from holding a certificate.

(4) After consideration of the evidence and argument, the court shall determine whether the infraction was committed. If it has not been established that the infraction was committed, an order dismissing the notice shall be entered in the court's records and the defendant shall be reimbursed all reasonable expenses. If it has been established that the infraction was committed, an appropriate order shall be entered in the court's records. A record of the court's determination and order shall be furnished to the department.

(5) An appeal from the court's determination or order shall be to the superior court. The decision of the superior court is subject only to discretionary review under Rule 2.3 of the rules of appellate procedure.

NEW SECTION. Sec. 23. The court shall, within thirty days after entry of an order under this chapter, forward a record of the court's order to the department on a form prescribed by the department.

NEW SECTION. Sec. 24. (1) A person found to have committed an infraction under this chapter shall be assessed a monetary penalty of one thousand dollars.

(2) Three violations within a twelve-month period shall cause a review and may subject the installer to a suspension of certification in addition to the monetary penalty. Manufactured home dealers or manufacturers in violation of this chapter may be subject to suspension of their business license.

(3) The court may waive, reduce, or suspend the monetary penalty imposed for the infraction.

(4) Monetary penalties collected under this chapter shall be remitted as provided in chapter 3.62 RCW.

NEW SECTION. Sec. 25. The director may adopt rules in accordance with chapter 34.05 RCW, make specific decisions, orders, and rulings, include demands and findings within the decisions, orders, and rulings, and take other necessary action for the implementation and enforcement of duties under this chapter.

Sec. 26. RCW 18.27.117 and 1987 c 313 s 2 are each amended to read as follows:

The legislature finds that setting up and siting mobile/manufactured homes must be done properly for the health, safety, and enjoyment of the occupants. Therefore, when any of the following cause a health and safety risk to the occupants of a mobile/manufactured home, or severely hinder the use and enjoyment of the mobile/manufactured home, a violation of RCW 19.86.020 shall have occurred:

(1) The mobile/manufactured home has been improperly installed by a contractor ((~~licensed under chapter 18.27 RCW,~~)) or a mobile/manufactured dealer or manufacturer ((~~licensed under chapter 46.70 RCW~~)) who is a certified manufactured home installer;

(2) A warranty given under chapter 18.27 RCW or chapter 46.70 RCW has not been fulfilled by the person or business giving the warranty; and

(3) A bonding company that issues a bond under chapter 18.27 RCW or chapter 46.70 RCW does not reasonably and professionally investigate and resolve claims made by injured parties.

NEW SECTION. Sec. 27. RCW 18.27.117 is recodified as a section in chapter 18.‑‑ RCW (sections 1 through 25 of this act).

NEW SECTION. Sec. 28. Sections 1 through 25 of this act shall constitute a new chapter in Title 18 RCW.

NEW SECTION. Sec. 29. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 30. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately.