Bill Text: MN HF1076 | 2011-2012 | 87th Legislature | Introduced
Bill Title: Administrative, rulemaking, enforcement, and safety and health provisions modified.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2011-03-14 - Introduction and first reading, referred to Jobs and Economic Development Finance [HF1076 Detail]
Download: Minnesota-2011-HF1076-Introduced.html
1.2relating to labor and industry; modifying certain administrative, rulemaking,
1.3enforcement, and safety and health provisions;amending Minnesota Statutes
1.42010, sections 181.723, subdivision 5; 182.6553, subdivision 6; 326B.13,
1.5subdivision 8; 326B.89, subdivisions 6, 8.
1.6BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.7 Section 1. Minnesota Statutes 2010, section 181.723, subdivision 5, is amended to read:
1.8 Subd. 5. Application. To obtain an independent contractor exemption certificate,
1.9the individual must submit, in the manner prescribed by the commissioner, a complete
1.10application and the certificate fee required under subdivision 14.
1.11 (a) A complete application must include all of the following information:
1.12 (1) the individual's full name;
1.13 (2) the individual's residence address and telephone number;
1.14 (3) the individual's business name, address, and telephone number;
1.15 (4) the services for which the individual is seeking an independent contractor
1.16exemption certificate;
1.17 (5) the individual's Social Security number;
1.18 (6) the individual's or the individual's business federal employer identification
1.19number, if a number has been issued to the individual or the individual's business;
1.20 (7) any information or documentation that the commissioner requires by rule that
1.21will assist the department in determining whether to grant or deny the individual's
1.22application; and
1.23 (8) the individual's sworn statement that the individual meets all of the following
1.24conditions:
2.1 (i) maintains a separate business with the individual's own office, equipment,
2.2materials, and other facilities;
2.3 (ii) holds or has applied for a federal employer identification number or has filed
2.4business or self-employment income tax returns with the federal Internal Revenue Service
2.5if the person has performed services in the previous year for which the individual is
2.6seeking the independent contractor exemption certificate;
2.7 (iii) operates under contracts to perform specific services for specific amounts of
2.8money and under which the individual controls the means of performing the services;
2.9 (iv) incurs the main expenses related to the service that the individual performs
2.10under contract;
2.11 (v) is responsible for the satisfactory completion of services that the individual
2.12contracts to perform and is liable for a failure to complete the service;
2.13 (vi) receives compensation for service performed under a contract on a commission
2.14or per-job or competitive bid basis and not on any other basis;
2.15 (vii) may realize a profit or suffer a loss under contracts to perform service;
2.16 (viii) has continuing or recurring business liabilities or obligations; and
2.17 (ix) the success or failure of the individual's business depends on the relationship of
2.18business receipts to expenditures.
2.19 (b) Individuals who are applying for or renewing a residential building contractor or
2.20residential remodeler license under sections326B.197, 326B.802, 326B.805, 326B.81,
2.21326B.815, 326B.821 to
326B.86, 326B.87 to
326B.885 , and
327B.041 , and any rules
2.22promulgated pursuant thereto, may simultaneously apply for or renew an independent
2.23contractor exemption certificate. The commissioner shall create an application form
2.24that allows for the simultaneous application for both a residential building contractor
2.25or residential remodeler license and an independent contractor exemption certificate.
2.26If individuals simultaneously apply for or renew a residential building contractor or
2.27residential remodeler license and an independent contractor exemption certificate using
2.28the form created by the commissioner, individuals shall only be required to provide, in
2.29addition to the information required by section326B.83 and rules promulgated pursuant
2.30thereto, the sworn statement required by paragraph (a), clause (8), and any additional
2.31information required by this subdivision that is not also required by section326B.83
2.32and any rules promulgated thereto.When individuals submit a simultaneous application
2.33on the form created by the commissioner for both a residential building contractor or
2.34residential remodeler license and an independent contractor exemption certificate, the
2.35application fee shall be $150. An independent contractor exemption certificate that is in
3.1effect before March 1, 2009, shall remain in effect until March 1, 2013, unless revoked by
3.2the commissioner or canceled by the individual.
3.3 (c) Within 30 days of receiving a complete application and the certificate fee, the
3.4commissioner must either grant or deny the application. The commissioner may deny
3.5an application for an independent contractor exemption certificate if the individual has
3.6not submitted a complete application and certificate fee or if the individual does not
3.7meet all of the conditions for holding the independent contractor exemption certificate.
3.8The commissioner may revoke an independent contractor exemption certificate if the
3.9commissioner determines that the individual no longer meets all of the conditions for
3.10holding the independent contractor exemption certificate, commits any of the actions
3.11set out in subdivision 7, or fails to cooperate with a department investigation into the
3.12continued validity of the individual's certificate. Once issued, an independent contractor
3.13exemption certificate remains in effect for four years unless:
3.14 (1) revoked by the commissioner; or
3.15 (2) canceled by the individual.
3.16 (d) If the department denies an individual's original or renewal application for
3.17an independent contractor exemption certificate or revokes an independent contractor
3.18exemption certificate, the commissioner shall issue to the individual an order denying or
3.19revoking the certificate. The commissioner may issue an administrative penalty order to
3.20an individual or person who commits any of the actions set out in subdivision 7. The
3.21commissioner may file and enforce the unpaid portion of a penalty as a judgment in
3.22district court without further notice or additional proceedings.
3.23 (e) An individual or person to whom the commissioner issues an order under
3.24paragraph (d) shall have 30 days after service of the order to request a hearing. The
3.25request for hearing must be in writing and must be served on or faxed to the commissioner
3.26at the address or facsimile number specified in the order by the 30th day after service of
3.27the order. If the individual does not request a hearing or if the individual's request for a
3.28hearing is not served on or faxed to the commissioner by the 30th day after service of the
3.29order, the order shall become a final order of the commissioner and will not be subject to
3.30review by any court or agency. The date on which a request for hearing is served by mail
3.31shall be the postmark date on the envelope in which the request for hearing is mailed. If
3.32the individual serves or faxes a timely request for hearing, the hearing shall be a contested
3.33case hearing and shall be held in accordance with chapter 14.
3.34 Sec. 2. Minnesota Statutes 2010, section 182.6553, subdivision 6, is amended to read:
4.1 Subd. 6. Enforcement. This section shall be enforced by the commissioner under
4.2section sections 182.66 and
182.661 . A violation of this section is subject to the penalties
4.3provided under section182.666 .
4.4 Sec. 3. Minnesota Statutes 2010, section 326B.13, subdivision 8, is amended to read:
4.5 Subd. 8. Effective date of rules. A rule to adopt or amend the State Building Code
4.6is effective 180 days afterthe filing of the rule with the secretary of state under section
4.714.16 or
14.26
4.8may provide for a later effective date. The rule may provide for an earlier effective date
4.9if the commissioner or board proposing the rule finds that an earlier effective date is
4.10necessary to protect public health and safety after considering, among other things, the
4.11need for time for training of individuals to comply with and enforce the rule.
4.12 Sec. 4. Minnesota Statutes 2010, section 326B.89, subdivision 6, is amended to read:
4.13 Subd. 6. Verified application. To be eligible for compensation from the fund, an
4.14owner or lessee shall serve on the commissioner a verified application for compensation
4.15on a form approved by the commissioner. The application shall verify the following
4.16information:
4.17 (1) the specific grounds upon which the owner or lessee seeks to recover from
4.18the fund:
4.19 (2) that the owner or the lessee has obtained a final judgment in a court of competent
4.20jurisdiction against a licensee licensed under section326B.83 ;
4.21 (3) that the final judgment was obtained against the licensee on the grounds
4.22of fraudulent, deceptive, or dishonest practices, conversion of funds, or failure of
4.23performance that arose directly out of a contract directly between the licensee and the
4.24homeowner or lessee that was entered into prior to the cause of action and that occurred
4.25when the licensee was licensed and performing any of the special skills enumerated under
4.26section326B.802, subdivision 15 ;
4.27 (4) the amount of the owner's or the lessee's actual and direct out-of-pocket loss on
4.28the owner's residential real estate, on residential real estate leased by the lessee, or on new
4.29residential real estate that has never been occupied or that was occupied by the licensee
4.30for less than one year prior to purchase by the owner;
4.31 (5) that the residential real estate is located in Minnesota;
4.32 (6) that the owner or the lessee is not the spouse of the licensee or the personal
4.33representative of the licensee;
5.1 (7) the amount of the final judgment, any amount paid in satisfaction of the final
5.2judgment, and the amount owing on the final judgment as of the date of the verified
5.3application;
5.4 (8) that the owner or lessee has diligently pursued remedies against all the judgment
5.5debtors and all other persons liable to the judgment debtor in the contract for which the
5.6owner or lessee seeks recovery from the fund; and
5.7 (9) that the verified application is being served within two years after the judgment
5.8became final.
5.9 The verified application must include documents evidencing the amount of the
5.10owner's or the lessee's actual and direct out-of-pocket loss. The owner's and the lessee's
5.11actual and direct out-of-pocket loss shall not include any attorney fees, litigation costs
5.12or fees, interest on the loss, and interest on the final judgment obtained as a result of the
5.13loss or any costs not directly related to the value difference between what was contracted
5.14for and what was provided. Any amount paid in satisfaction of the final judgment shall
5.15be applied to the owner's or lessee's actual and direct out-of-pocket loss. An owner or
5.16lessee may serve a verified application regardless of whether the final judgment has been
5.17discharged by a bankruptcy court. A judgment issued by a court is final if all proceedings
5.18on the judgment have either been pursued and concluded or been forgone, including all
5.19reviews and appeals. For purposes of this section, owners who are joint tenants or tenants
5.20in common are deemed to be a single owner. For purposes of this section, owners and
5.21lessees eligible for payment of compensation from the fund shall not include government
5.22agencies, political subdivisions, financial institutions, and any other entity that purchases,
5.23guarantees, or insures a loan secured by real estate.
5.24 Sec. 5. Minnesota Statutes 2010, section 326B.89, subdivision 8, is amended to read:
5.25 Subd. 8. Administrative hearing. If an owner or a lessee timely serves a request
5.26for hearing under subdivision 7, the commissioner shall request that an administrative law
5.27judge be assigned and that a hearing be conducted under the contested case provisions of
5.28chapter 14 within 45 days after the commissioner received the request for hearing, unless
5.29the parties agree to a later date. The commissioner must notify the owner or lessee of the
5.30time and place of the hearing at least 15 days before the hearing. Upon petition of the
5.31commissioner, the administrative law judge shall continue the hearing up to 60 days and
5.32upon a showing of good cause may continue the hearing for such additional period as the
5.33administrative law judge deems appropriate.
5.34At the hearing the owner or the lessee shall have the burden of proving by substantial
5.35evidence under subdivision 6, clauses (1) to (8). Whenever an applicant's judgment
6.1is by default, stipulation, or consent, or whenever the action against the licensee was
6.2defended by a trustee in bankruptcy, the applicant shall have the burden of proving the
6.3cause of action for fraudulent, deceptive, or dishonest practices, conversion of funds, or
6.4failure of performance. Otherwise, the judgment shall create a rebuttable presumption
6.5of the fraudulent, deceptive, or dishonest practices, conversion of funds, or failure of
6.6performance. This presumption affects the burden of producing evidence.
6.7The administrative law judge shall issue findings of fact, conclusions of law, and
6.8order. If the administrative law judge finds that compensation should be paid to the owner
6.9or the lessee, the administrative law judge shall order the commissioner to make payment
6.10from the fund of the amount it finds to be payable pursuant to the provisions of and in
6.11accordance with the limitations contained in this section. The order of the administrative
6.12law judge shall constitute the final decision of the agency in the contested case. The
6.13commissioner or the owner or lessee may seek judicial review of the administrative law
6.14judge's findings of fact, conclusions of law, and ordershall be in accordance with sections
6.1514.63
to
14.69 .
1.3enforcement, and safety and health provisions;amending Minnesota Statutes
1.42010, sections 181.723, subdivision 5; 182.6553, subdivision 6; 326B.13,
1.5subdivision 8; 326B.89, subdivisions 6, 8.
1.6BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.7 Section 1. Minnesota Statutes 2010, section 181.723, subdivision 5, is amended to read:
1.8 Subd. 5. Application. To obtain an independent contractor exemption certificate,
1.9the individual must submit, in the manner prescribed by the commissioner, a complete
1.10application and the certificate fee required under subdivision 14.
1.11 (a) A complete application must include all of the following information:
1.12 (1) the individual's full name;
1.13 (2) the individual's residence address and telephone number;
1.14 (3) the individual's business name, address, and telephone number;
1.15 (4) the services for which the individual is seeking an independent contractor
1.16exemption certificate;
1.17 (5) the individual's Social Security number;
1.18 (6) the individual's or the individual's business federal employer identification
1.19number, if a number has been issued to the individual or the individual's business;
1.20 (7) any information or documentation that the commissioner requires by rule that
1.21will assist the department in determining whether to grant or deny the individual's
1.22application; and
1.23 (8) the individual's sworn statement that the individual meets all of the following
1.24conditions:
2.1 (i) maintains a separate business with the individual's own office, equipment,
2.2materials, and other facilities;
2.3 (ii) holds or has applied for a federal employer identification number or has filed
2.4business or self-employment income tax returns with the federal Internal Revenue Service
2.5if the person has performed services in the previous year for which the individual is
2.6seeking the independent contractor exemption certificate;
2.7 (iii) operates under contracts to perform specific services for specific amounts of
2.8money and under which the individual controls the means of performing the services;
2.9 (iv) incurs the main expenses related to the service that the individual performs
2.10under contract;
2.11 (v) is responsible for the satisfactory completion of services that the individual
2.12contracts to perform and is liable for a failure to complete the service;
2.13 (vi) receives compensation for service performed under a contract on a commission
2.14or per-job or competitive bid basis and not on any other basis;
2.15 (vii) may realize a profit or suffer a loss under contracts to perform service;
2.16 (viii) has continuing or recurring business liabilities or obligations; and
2.17 (ix) the success or failure of the individual's business depends on the relationship of
2.18business receipts to expenditures.
2.19 (b) Individuals who are applying for or renewing a residential building contractor or
2.20residential remodeler license under sections
2.21326B.815, 326B.821
2.22promulgated pursuant thereto, may simultaneously apply for or renew an independent
2.23contractor exemption certificate. The commissioner shall create an application form
2.24that allows for the simultaneous application for both a residential building contractor
2.25or residential remodeler license and an independent contractor exemption certificate.
2.26If individuals simultaneously apply for or renew a residential building contractor or
2.27residential remodeler license and an independent contractor exemption certificate using
2.28the form created by the commissioner, individuals shall only be required to provide, in
2.29addition to the information required by section
2.30thereto, the sworn statement required by paragraph (a), clause (8), and any additional
2.31information required by this subdivision that is not also required by section
2.32and any rules promulgated thereto.
2.33
2.34
2.35
3.1effect before March 1, 2009, shall remain in effect until March 1, 2013, unless revoked by
3.2the commissioner or canceled by the individual.
3.3 (c) Within 30 days of receiving a complete application and the certificate fee, the
3.4commissioner must either grant or deny the application. The commissioner may deny
3.5an application for an independent contractor exemption certificate if the individual has
3.6not submitted a complete application and certificate fee or if the individual does not
3.7meet all of the conditions for holding the independent contractor exemption certificate.
3.8The commissioner may revoke an independent contractor exemption certificate if the
3.9commissioner determines that the individual no longer meets all of the conditions for
3.10holding the independent contractor exemption certificate, commits any of the actions
3.11set out in subdivision 7, or fails to cooperate with a department investigation into the
3.12continued validity of the individual's certificate. Once issued, an independent contractor
3.13exemption certificate remains in effect for four years unless:
3.14 (1) revoked by the commissioner; or
3.15 (2) canceled by the individual.
3.16 (d) If the department denies an individual's original or renewal application for
3.17an independent contractor exemption certificate or revokes an independent contractor
3.18exemption certificate, the commissioner shall issue to the individual an order denying or
3.19revoking the certificate. The commissioner may issue an administrative penalty order to
3.20an individual or person who commits any of the actions set out in subdivision 7. The
3.21commissioner may file and enforce the unpaid portion of a penalty as a judgment in
3.22district court without further notice or additional proceedings.
3.23 (e) An individual or person to whom the commissioner issues an order under
3.24paragraph (d) shall have 30 days after service of the order to request a hearing. The
3.25request for hearing must be in writing and must be served on or faxed to the commissioner
3.26at the address or facsimile number specified in the order by the 30th day after service of
3.27the order. If the individual does not request a hearing or if the individual's request for a
3.28hearing is not served on or faxed to the commissioner by the 30th day after service of the
3.29order, the order shall become a final order of the commissioner and will not be subject to
3.30review by any court or agency. The date on which a request for hearing is served by mail
3.31shall be the postmark date on the envelope in which the request for hearing is mailed. If
3.32the individual serves or faxes a timely request for hearing, the hearing shall be a contested
3.33case hearing and shall be held in accordance with chapter 14.
3.34 Sec. 2. Minnesota Statutes 2010, section 182.6553, subdivision 6, is amended to read:
4.1 Subd. 6. Enforcement. This section shall be enforced by the commissioner under
4.2
4.3provided under section
4.4 Sec. 3. Minnesota Statutes 2010, section 326B.13, subdivision 8, is amended to read:
4.5 Subd. 8. Effective date of rules. A rule to adopt or amend the State Building Code
4.6is effective 180 days after
4.7
4.8may provide for a later effective date. The rule may provide for an earlier effective date
4.9if the commissioner or board proposing the rule finds that an earlier effective date is
4.10necessary to protect public health and safety after considering, among other things, the
4.11need for time for training of individuals to comply with and enforce the rule.
4.12 Sec. 4. Minnesota Statutes 2010, section 326B.89, subdivision 6, is amended to read:
4.13 Subd. 6. Verified application. To be eligible for compensation from the fund, an
4.14owner or lessee shall serve on the commissioner a verified application for compensation
4.15on a form approved by the commissioner. The application shall verify the following
4.16information:
4.17 (1) the specific grounds upon which the owner or lessee seeks to recover from
4.18the fund:
4.19 (2) that the owner or the lessee has obtained a final judgment in a court of competent
4.20jurisdiction against a licensee licensed under section
4.21 (3) that the final judgment was obtained against the licensee on the grounds
4.22of fraudulent, deceptive, or dishonest practices, conversion of funds, or failure of
4.23performance that arose directly out of a contract directly between the licensee and the
4.24homeowner or lessee that was entered into prior to the cause of action and that occurred
4.25when the licensee was licensed and performing any of the special skills enumerated under
4.26section
4.27 (4) the amount of the owner's or the lessee's actual and direct out-of-pocket loss on
4.28the owner's residential real estate, on residential real estate leased by the lessee, or on new
4.29residential real estate that has never been occupied or that was occupied by the licensee
4.30for less than one year prior to purchase by the owner;
4.31 (5) that the residential real estate is located in Minnesota;
4.32 (6) that the owner or the lessee is not the spouse of the licensee or the personal
4.33representative of the licensee;
5.1 (7) the amount of the final judgment, any amount paid in satisfaction of the final
5.2judgment, and the amount owing on the final judgment as of the date of the verified
5.3application;
5.4 (8) that the owner or lessee has diligently pursued remedies against all the judgment
5.5debtors and all other persons liable to the judgment debtor in the contract for which the
5.6owner or lessee seeks recovery from the fund; and
5.7 (9) that the verified application is being served within two years after the judgment
5.8became final.
5.9 The verified application must include documents evidencing the amount of the
5.10owner's or the lessee's actual and direct out-of-pocket loss. The owner's and the lessee's
5.11actual and direct out-of-pocket loss shall not include any attorney fees, litigation costs
5.12or fees, interest on the loss, and interest on the final judgment obtained as a result of the
5.13loss or any costs not directly related to the value difference between what was contracted
5.14for and what was provided. Any amount paid in satisfaction of the final judgment shall
5.15be applied to the owner's or lessee's actual and direct out-of-pocket loss. An owner or
5.16lessee may serve a verified application regardless of whether the final judgment has been
5.17discharged by a bankruptcy court. A judgment issued by a court is final if all proceedings
5.18on the judgment have either been pursued and concluded or been forgone, including all
5.19reviews and appeals. For purposes of this section, owners who are joint tenants or tenants
5.20in common are deemed to be a single owner. For purposes of this section, owners and
5.21lessees eligible for payment of compensation from the fund shall not include government
5.22agencies, political subdivisions, financial institutions, and any other entity that purchases,
5.23guarantees, or insures a loan secured by real estate.
5.24 Sec. 5. Minnesota Statutes 2010, section 326B.89, subdivision 8, is amended to read:
5.25 Subd. 8. Administrative hearing. If an owner or a lessee timely serves a request
5.26for hearing under subdivision 7, the commissioner shall request that an administrative law
5.27judge be assigned and that a hearing be conducted under the contested case provisions of
5.28chapter 14 within 45 days after the commissioner received the request for hearing, unless
5.29the parties agree to a later date. The commissioner must notify the owner or lessee of the
5.30time and place of the hearing at least 15 days before the hearing. Upon petition of the
5.31commissioner, the administrative law judge shall continue the hearing up to 60 days and
5.32upon a showing of good cause may continue the hearing for such additional period as the
5.33administrative law judge deems appropriate.
5.34At the hearing the owner or the lessee shall have the burden of proving by substantial
5.35evidence under subdivision 6, clauses (1) to (8). Whenever an applicant's judgment
6.1is by default, stipulation, or consent, or whenever the action against the licensee was
6.2defended by a trustee in bankruptcy, the applicant shall have the burden of proving the
6.3cause of action for fraudulent, deceptive, or dishonest practices, conversion of funds, or
6.4failure of performance. Otherwise, the judgment shall create a rebuttable presumption
6.5of the fraudulent, deceptive, or dishonest practices, conversion of funds, or failure of
6.6performance. This presumption affects the burden of producing evidence.
6.7The administrative law judge shall issue findings of fact, conclusions of law, and
6.8order. If the administrative law judge finds that compensation should be paid to the owner
6.9or the lessee, the administrative law judge shall order the commissioner to make payment
6.10from the fund of the amount it finds to be payable pursuant to the provisions of and in
6.11accordance with the limitations contained in this section. The order of the administrative
6.12law judge shall constitute the final decision of the agency in the contested case. The
6.13commissioner or the owner or lessee may seek judicial review of the administrative law
6.14judge's findings of fact, conclusions of law, and order
