Bill Text: NY A03272 | 2021-2022 | General Assembly | Introduced
Bill Title: Establishes the water-based fire protection licensure act, setting forth licensure requirements for contractors engaged in the business of the layout, installing, repairing, inspecting, testing, or maintaining of water-based fire protection systems and components.
Spectrum: Partisan Bill (Democrat 4-0)
Status: (Introduced) 2021-01-22 - referred to economic development [A03272 Detail]
Download: New_York-2021-A03272-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 3272 2021-2022 Regular Sessions IN ASSEMBLY January 22, 2021 ___________ Introduced by M. of A. FAHY, WALLACE, LUPARDO, STIRPE -- read once and referred to the Committee on Economic Development AN ACT to amend the general business law, in relation to establishment of the water-based fire protection licensure act, and providing for the repeal of certain provisions upon expiration thereof The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act shall be known and may be cited as the "water- 2 based fire protection licensure act". 3 § 2. Legislative intent. It is declared that there exists and may in 4 the future exist within the state of New York locations where water- 5 based fire protection systems are installed and improper installation 6 and improper inspection, testing, and maintenance of existing fire 7 protection systems may adversely affect the public health, safety and 8 general welfare. It is further acknowledged that fire protection systems 9 are critical life and property safety systems and such systems whose 10 layout, installing, repairing, inspecting, testing, or maintenance 11 require specialized knowledge and experience. Therefore the purpose of 12 this act is to protect, promote and preserve the public health, safety 13 and general welfare by providing for the establishment of minimum stand- 14 ards for licensure of water-based fire protection system installation 15 and inspecting contractors as well as designating and utilization of 16 responsible managing employees as qualifiers of said license with estab- 17 lishment of penalties for improper layout, installing, repairing, 18 inspecting, testing, or maintaining of water-based fire protection 19 systems and prohibit unlicensed activities. Furnishing and installing 20 underground water-supply and one-family and two-family residential 21 systems, unless a residential system in a "group home" are exempt from 22 this act. 23 § 3. The general business law is amended by adding a new article 35-G 24 to read as follows: EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07013-01-1A. 3272 2 1 ARTICLE 35-G 2 WATER-BASED FIRE PROTECTION 3 LICENSURE ACT 4 Section 759-g. Definitions. 5 759-h. License and RME requirements; scope of practice; penal- 6 ties for non-compliance. 7 759-i. Powers of the department and board. 8 759-j. New licensure requirements. 9 759-k. Licensure for existing contractors. 10 759-l. Licensure: application; insurance; display; duplicates. 11 759-m. License renewals and RMEs. 12 759-n. Inspection of water-based fire protection systems. 13 759-o. Fees. 14 759-p. Suspension and revocation of licenses. 15 759-q. Hearing on charges; decision. 16 759-r. Judicial review. 17 759-s. Violations and penalties. 18 759-t. Official acts used as evidence. 19 759-u. Disposition of moneys derived from operation of this 20 article. 21 759-v. Severability. 22 759-w. Applicability. 23 759-x. Contractual agreements. 24 § 759-g. Definitions. As used in this article, unless the context 25 requires otherwise: 26 1. "AFSA" means the American fire sprinkler association. 27 2. "Board" means the state fire protection advisory board under the 28 department. Such board shall be the advising body for all rules, 29 requirements, regulations, and future modifications affecting licensure, 30 certificates and certification, exams, training, and other topics 31 covered under this act. 32 3. "Business entity" means a firm, company, partnership, limited 33 liability company, or corporation. 34 4. "Department" means the department of state division of licensing 35 services. 36 5. "Engineer of record" means an education department-licensed profes- 37 sional engineer, qualified by experience and training to provide design 38 criteria for fire protection systems including: 39 (a) selection of system types and components; 40 (b) classification of potential hazards and commodities to be 41 protected; 42 (c) density, water flow, and pressure requirements for system designs; 43 (d) confirmation of available water supply data; 44 (e) preliminary hydraulic calculations verifying the adequacy of 45 proposed water supply arrangements; 46 (f) ability to identify water supplies that could lead to microbiolog- 47 ically influenced corrosion; and 48 (g) familiarity with seismic information and other items identified by 49 law or the uniform fire and building codes of the state. 50 6. "Fee" means any examination fee, license fee, registration fee, or 51 renewal fee accompanying an application or issuance of any license, 52 certification, or registration, including any temporaries or renewals, 53 pursuant to this article. Such fee shall be non-refundable. 54 7. "Fire control" or "fire suppression" means: 55 (a) the practices, or materials and equipment in or adjacent to a 56 building or premises, used in the installation, maintenance, extension,A. 3272 3 1 or alteration of all piping materials and equipment, as defined by the 2 state uniform fire prevention and building code, in connection with the 3 discharge of water and backflow prevention for the express purpose of 4 extinguishing and controlling fire; and 5 (b) the practice of installing, repairing, inspecting, testing, and 6 maintaining water-based fire protection systems as defined by the state 7 uniform fire prevention and building code. 8 8. "Fire sprinkler system" means any water-based fire protection 9 system, fire suppression system, or fire control system employing fire 10 sprinklers and consisting of underground and overhead piping, including 11 fire pumps and associated piping, fire standpipes that convey water with 12 or without other agents to dispersal openings or devices for the purpose 13 of extinguishing, controlling, suppressing, or containing fire, and 14 which provide protection from fire exposure or exposure to the products 15 of combustion, and are installed in accordance with the state uniform 16 fire prevention and building code and referenced standards and state-ap- 17 proved local standards. 18 9. "Full-time employee" means an employee of a business entity who is 19 expected to work at least one thousand five hundred sixty hours per 20 year. Earned, paid time for leave such as vacation, sick, or personal 21 days shall be inclusive within the one thousand five hundred sixty 22 hours. 23 10. "Inspection" means the visual examination of a building's water- 24 based fire protection system, or a portion thereof, to verify that such 25 system appears to be in operating condition and is free of physical 26 damage. 27 11. "Inspection, testing, and maintenance" means a program provided by 28 a state-licensed water-based fire protection contractor who has 29 contracted with a property or building owner, or such property or build- 30 ing owner's representative, in which all components unique to such prop- 31 erty or buildings' systems are inspected and tested at required frequen- 32 cies and in which necessary maintenance is provided. Such programs shall 33 include logging and retention of relevant records and reporting of defi- 34 ciencies and malfunctions to the property or building owner or his or 35 her authorized representative, and the appropriate authorities as 36 required. 37 12. "Inspector" means a person who is employed by a state-licensed 38 water-based fire protection contractor, who performs inspection and 39 testing on a water-based fire protection system, as per the state 40 uniform fire prevention and building code, and a program provided by a 41 state-licensed water-based fire protection contractor. 42 13. "Install" or "installation" means the initial placement of a 43 water-based fire protection system, or its extension or alteration after 44 the initial placement. 45 14. "Layout" means the placement of risers, cross mains, branch lines, 46 fire sprinklers, and hanger locations, and sizing of pipe and supple- 47 mental hydraulic calculations in accordance with the provisions of 48 water-based fire protection design standards and design criteria as 49 provided by the engineer of record. 50 15. "License holder" means a business entity as defined by this 51 section and as licensed by the department to engage in the business of 52 the layout, installing, repairing, inspecting, testing, or maintaining 53 of water-based fire protection systems. A single license may name no 54 more than one business entity.A. 3272 4 1 16. "Limited maintenance" means adjustment of or replacement of system 2 components like and kind, inclusive of maintenance requirements per NFPA 3 25, as defined in this section. 4 17. "Maintenance" means work performed by a licensed water-based fire 5 protection contractor to keep water-based fire protection equipment 6 operable including repairs. 7 18. "NCCI" means the national council on compensation insurance. 8 19. "NFPA" means the national fire protection association, inc. 9 20. "NFPA 25" means the NFPA's most recent state referenced publica- 10 tion, which establishes the minimum requirements for the periodic 11 inspection, testing, and maintenance of water-based fire protection 12 systems and the actions to undertake when changes in occupancy, use, 13 process, materials, hazard, or water supply that potentially impact the 14 performance of such water-based system are planned or identified. 15 21. "NFSA" means the national fire sprinkler association, inc. 16 22. "NICET" means the national institute for certification in engi- 17 neering technologies or other entities recognized as being equal to or 18 better than NICET, as determined by the department. 19 23. "OFPC" means the state office of fire prevention and control. 20 24. "Repair" means any work on a system after the initial installation 21 to replace, correct or maintain such system. 22 25. "Responsible managing employee" or "RME" means an individual with 23 appropriate NICET certification or state-approved equivalent who is a 24 full-time employee of a water-based fire protection contractor, and who 25 is designated as such water-based fire protection contractor's qualifier 26 to do business as a water-based fire protection contractor. A RME may 27 serve to qualify no more than two water-based fire protection contractor 28 under this article in the state. Where an RME qualifies multiple busi- 29 ness entities, the entities must be shown to have common ownership or 30 controlling interest and the RME must be a full-time employee. 31 26. "Supervise" or "supervision" means the direction, management, and 32 oversight by the RME named on a contractor's business license of the 33 activities of personnel in the layout, installing, repairing, inspect- 34 ing, testing, or maintaining repair of any water-based fire protection 35 system. Notwithstanding this subdivision, supervision shall not require 36 such RME to be at the site of each layout, install, repair, inspection, 37 test, or maintenance of water-based fire protection systems at all 38 times. 39 27. "Testing" means testing water-based fire protection systems as 40 defined by the state uniform fire prevention and building code. 41 28. "Water-based fire protection contractor" or "contractor" means any 42 of the following classes: 43 (a) "Contractor I" or "water-based fire protection contractor" means a 44 business entity that offers to undertake, represents itself as being 45 able to undertake, or does undertake the layout, installing, repairing, 46 inspecting, testing, or maintaining of all types of water-based fire 47 protection systems and components. 48 (b) "Contractor II" or "water-based fire protection systems inspection 49 contractor" means a business entity that is limited to the execution of 50 contracts requiring the inspection and testing along with limited main- 51 tenance of fire protection systems. Contractor II businesses shall have 52 an RME certified NICET II or better or state equivalent in inspection 53 and testing of water-based systems. 54 29. "Water-based fire protection contractor business license" or 55 "license" means a license issued by the department to a business entity 56 to operate as a water-based fire protection contractor.A. 3272 5 1 30. "Water-based fire protection system" means a commercial or resi- 2 dential system individually designed to protect the interior or exterior 3 of a specific building, structure, or other potential hazard from fire, 4 or to promote life safety. Such systems include, but are not limited to, 5 water fire-sprinkler systems, water spray systems, foam-water sprinkler 6 systems, foam-water spray systems, and foam extinguishing systems used 7 for fire protection. 8 § 759-h. License and RME requirements; scope of practice; penalties 9 for non-compliance. 1. (a) It is unlawful for any organization, busi- 10 ness entity, or individual to engage in the business of layout, install- 11 ing, repairing, inspecting, testing, or maintaining water-based fire 12 protection systems, to act in the capacity of a water-based fire 13 protection contractor, or to advertise itself as being a water-based 14 fire protection contractor without having been duly licensed and without 15 holding a valid license, except as otherwise provided in this section. 16 The RME named to qualify an organization or business entity under this 17 article must be a full-time employee of such organization or business 18 entity. 19 (b) The department shall revoke, for a period of time determined by 20 the department, the RME as a qualifier for all water-based fire 21 protection contractors if such RME makes use of or allows the use of 22 NICET or equivalent certification to qualify a contractor of which such 23 RME is not a full-time employee. 24 (c) All entities performing layout of drawings, installing, repairing, 25 inspecting, testing, or maintaining water-based fire protection systems 26 within the state (exempting systems within the jurisdictions of the five 27 boroughs of New York city, Nassau county, and Suffolk county) must have 28 in their employ one or more RMEs with appropriate certification for the 29 layout of water-based fire protection system shop drawings to be 30 performed, or for the practice of inspection, testing, and maintenance 31 of water-based fire protection systems. This includes contractors based 32 in other states, New York city, Nassau county, and Suffolk county, or 33 any other location work covered under this article is to be performed. 34 (d) Nothing in this subdivision shall prohibit an employee acting on 35 behalf of any government entity or insurance provider from inspecting 36 and enforcing the state uniform fire prevention and building code and 37 local laws, provided such employee is acting solely on behalf of such 38 government entity or insurance provider. All fire protection cards, 39 registrations, certificates, and licenses required by this article and 40 issued by the department shall have statewide application (exempting the 41 jurisdictions of the five boroughs of New York city, Nassau county, and 42 Suffolk county). Local governments (exempting the jurisdictions of the 43 five boroughs of New York city, Nassau county, and Suffolk county) shall 44 not establish or impose any further standards, licensing, certification, 45 or registration upon state-licensed water-based fire protection contrac- 46 tors or their employees. 47 (e) Local governments (exempting the jurisdictions of the five 48 boroughs of New York city, Nassau county, and Suffolk county) shall not 49 require any type of additional licensing, certification, or registration 50 of a water-based fire protection contractor, its RME, or its employees 51 that are licensed, certified, or registered by the department of state 52 unless such contractor maintains a physical office within such local 53 government's jurisdiction. 54 2. As of eighteen months after the effective date of this article, no 55 person or business entity shall engage in the business of layout, 56 installing, repairing, inspecting, testing, or maintaining water-basedA. 3272 6 1 fire protection systems beginning at the point of fire protection 2 service to the most remote parts of the system, or hold himself or 3 herself out as being able so to do unless he or she is licensed pursuant 4 to this article. 5 3. Retrofitting of a backflow prevention device: It is the responsi- 6 bility of the building or property owner, commercial or residential to 7 obtain a state licensed professional engineer to become engineer of 8 record to evaluate any water-based fire protection system, supply docu- 9 mented findings to the water-based fire protection contractor, and 10 approve the installation of any backflow prevention device, in order to 11 avoid the introduction or addition of a backflow prevention device to an 12 existing water-based fire protection system, that causes a reduction in 13 available water pressure and may create a system malfunction. 14 4. A water-based fire protection contractor licensed under this arti- 15 cle shall not: 16 (a) enter into a written or oral agreement to authorize, subcontract, 17 or otherwise knowingly allow any individual or entity who is not 18 licensed under this article to engage in the business of, or act in the 19 capacity of, a water-based fire protection contractor; or 20 (b) apply for or obtain a construction permit for water-based fire 21 protection work unless such water-based fire protection contractor or a 22 business entity qualified by such contractor has contracted to conduct 23 the work specified in his or her application for the required permit. 24 5. Any person who violates any provision of this article or commits 25 any of the acts constituting a cause for disciplinary action as set 26 forth by this article shall be guilty of a class B misdemeanor, punisha- 27 ble as provided by this article, and the laws of the state. 28 6. In addition to the penalties provided in subdivision five of this 29 section, a water-based fire protection contractor licensed under this 30 article who violates any provision of this section or who commits any 31 act constituting cause for disciplinary action is subject to the suspen- 32 sion or revocation of his or her license and such administrative fines 33 as prescribed by this article. 34 7. A license holder has an affirmative duty to provide supervision of 35 employees and all business activities. Such supervision shall consist of 36 regular, frequent personal guidance, instruction, oversight, and super- 37 intendence by the qualifying RME or RMEs with respect to the general 38 business conducted by a firm, and all matters relating thereto. 39 8. Nothing in this article shall prohibit a principal of a given busi- 40 ness entity from qualifying as such business entity's RME as long as 41 such principal meets the qualifications of this article. 42 9. Licenses issued to contractors shall clearly identify the level of 43 such license for ease of identification by field staff of the department 44 and OFPC, local code enforcement officials, the public, and any other 45 interested parties. 46 10. License applicability shall be in accordance with the following 47 table: 48 FUNCTION CLASS I CLASS II 49 Inspect All All 50 Test All All 51 Maintain All Limited 52 Install All N/A 53 Repair All N/A 54 § 759-i. Powers of the department and board. 1. In addition to the 55 powers and duties elsewhere prescribed in this article, the department 56 and board shall have the following powers:A. 3272 7 1 (a) To prescribe the duties of, fix the compensation of, and appoint 2 an adequate number of assistants, field inspectors, and other employees 3 as may be necessary to carry out the provisions of this article. 4 (b) To examine the qualifications of applicants for licenses or regis- 5 trations under this article. 6 (c) To keep records of all licenses, certifications, and registrations 7 issued, suspended, or revoked, and to publish such information on a 8 website accessible to the public. 9 (d) To prepare a manual of rules and regulations for the licensure 10 process of water-based fire protection contractors and to publish such 11 information on a website accessible to the public. 12 (e) To promulgate such rules and regulations as may be necessary 13 prescribing the form, content, and reception of applications for 14 licenses and registrations, the manner of investigation and examination 15 of applicants and their qualifications, and any other matters incidental 16 or appropriate to the powers and duties as prescribed by this article 17 and for the proper administration and enforcement of the provisions of 18 this article, and to make recommendations to add, amend, or repeal any 19 of such rules and regulations. 20 2. The secretary of state shall create a state fire protection advi- 21 sory board and have the first meeting within ninety days of the effec- 22 tive date of this article. Such board shall be composed of the following 23 members: 24 (a) one position for the secretary of state or his or her designee; 25 (b) one position for the state fire administrator or his or her desig- 26 nee; 27 (c) one position for the state department of state division of build- 28 ing standards and codes or his or her designee; 29 (d) three persons appointed by the president of the NFSA who shall be 30 of New York state, and whose businesses must have been actively engaged 31 in the business of layout, installing, inspecting, testing, altering, or 32 maintaining water-based fire protection systems for at least five years 33 immediately prior to their appointment; 34 (e) three persons appointed by the president of AFSA who shall be of 35 New York state and whose businesses must have been actively engaged in 36 the business of layout, installing, inspecting, testing, altering or 37 maintaining water-based fire protection systems for at least five years 38 immediately prior to their appointment; 39 (f) one position for the NFSA staff person or designee; 40 (g) one position for the AFSA staff person or designee; and 41 (h) one state education department licensed professional engineer with 42 experience in water-based fire protection. 43 3. The chair of the board shall be the secretary of state or his or 44 her designee. The state fire administrator or his or her designee, or 45 the director of building standards and codes division or his or her 46 designee, may serve as chair in the chair's absence so as to conduct 47 business. The chair of the board shall serve as the deciding vote where 48 there are tie votes. 49 4. The board shall advise the department in the administration of the 50 requirements established by this article and all other future fire 51 protection system licensing. 52 5. The board shall be the author of water-based fire protection 53 certification exams for RMEs in the state of New York. 54 6. The board shall meet at least once quarterly. The board shall have 55 the authority to review complaints and disputed administrative action 56 and to make non-binding recommendations for disciplinary action to theA. 3272 8 1 department at the request of a certificate holder, license holder, or 2 the department. The board shall make decisions and supply in writing to 3 the department rules, codes, standards, interpretations, and training. 4 The board members' terms shall expire on the thirtieth day of June 5 following the effective date of this article and biennially thereafter. 6 Term limits shall be limited to four consecutive terms. No member of the 7 board shall be paid a salary as such member, but each shall receive 8 necessary expenses for attending board meetings and reimbursement, 9 including travel for performance of his or her board duties. 10 7. The board shall review and advise the department regarding all new 11 applications and the department shall administer new licenses following 12 board approval and renewals with proper documentation. 13 8. Members of the board shall exercise due diligence to participate in 14 all scheduled and special meetings as required. The department shall 15 take minutes and make minutes available as soon as reasonably possible 16 to board members that are absent. 17 9. The majority of the board with at least one fire protection 18 contractor board member must be present to constitute a quorum. 19 10. Motions shall not move forward without a minimum of two fire 20 protection contractor board members in support of the motion. 21 11. Proxy votes shall be allowed. 22 12. Remote electronic audio or audio and visual participation shall be 23 allowed. 24 § 759-j. New licensure requirements. 1. As a prerequisite for licen- 25 sure as a contractor I, a RME qualifier must be at least twenty-three 26 years of age, be of good moral character so as not to adversely impact 27 his or her ability to perform the duties and responsibilities of a 28 licensed contractor, and shall possess five years of proven experience 29 and progressive training in the employment of a water-based fire 30 protection system contractor I or a combination of equivalent education 31 and experience. It is the intent that the contractor I RME meet the 32 criteria of NICET III certification requirements or state equivalent set 33 forth by the advisory board in the specific technical discipline of 34 water-based layout, or equivalent criteria accepted by the board and the 35 department as a prerequisite, along with NICET special hazards 36 suppression systems or equivalent criteria accepted by the board and 37 department. Two RMEs are permitted, with one in each discipline. More 38 than one RME may be permitted per company. 39 2. As a prerequisite for licensure as a contractor II, a RME qualifier 40 must be at least eighteen years of age and shall be certified NICET II 41 for inspection and testing of water-based systems or equivalent certif- 42 ication accepted by the board and the department. 43 3. A state professional engineer license along with education and 44 documented experience in water-based fire protection system engineering 45 may be substituted for the RME requirements in this section. 46 § 759-k. Licensure for existing contractors. Each existing contractor 47 shall file for a license as an existing contractor by presenting to the 48 department satisfactory evidence that such contractor has been actively 49 engaged in the proper class of contracting in the scope of the license 50 applied for in layout, installing, repairing, inspecting, testing, or 51 maintaining of water-based fire protection systems, as a contractor I or 52 contractor II and shall show proof of proper insurance as a water-based 53 fire protection contractor. Such evidence shall include proof of insur- 54 ance which includes the latest NCCI rating sheet for workers compen- 55 sation showing the appropriate code for fire sprinkler fitters. AllA. 3272 9 1 existing contractors shall file for a license pursuant to this section 2 within eighteen months of the effective date of this article. 3 § 759-l. Licensure: application; insurance; display; duplicates. 1. 4 Once a representative RME meets the provisions of this act to be a qual- 5 ifier, any business entity desiring a license to engage in the business 6 of layout, installing, inspecting, altering, or maintaining of water- 7 based fire protection systems under this article, may make an applica- 8 tion to the department. The RME shall be subscribed by the license 9 applicant and affirmed by him or her as true under the penalties of 10 perjury. The license application shall be in such form and shall contain 11 the RME's NICET certification number, category of discipline, and level 12 of discipline. Each license application shall be accompanied by a copy 13 of required certifications as established in this article, proving the 14 level of certification for inspection by the department. 15 2. All licenses shall be valid for a period of two years and shall not 16 be based on certification obligations. 17 3. No license shall be assignable or transferable except as otherwise 18 provided by this section. 19 4. If a RME, who has met the requirements of this article, ceases to 20 act in the capacity of RME, the license holder shall notify the depart- 21 ment in writing within thirty business days from such termination or 22 cessation. The license holder may continue to conduct the business of 23 layout, installing, repairing, inspecting, testing, or maintaining 24 water-based fire protection systems for a period not to exceed one 25 hundred eighty days from the date of such termination or cessation, 26 except that such period may be extended upon an application to the 27 department with good cause for an additional period not to exceed one 28 hundred twenty days. By the end of such period a new RME must be desig- 29 nated who has met the certification requirements of this article. 30 5. (a) As a prerequisite to issuance of a license, the department 31 shall require a business entity to submit satisfactory evidence that 32 such business entity has obtained appropriate water-based fire 33 protection contracting commercial general liability insurance, showing 34 proof of appropriate coverage amounts for the appropriate contractor 35 level being applied for, with a minimum of one million dollars for 36 contractor I or, contractor II. Said evidence shall show appropriate 37 coverage for comprehensive general liability for bodily injury and prop- 38 erty damages, products liability, completed operations, contractual 39 liability, and workers' compensation. The board may adopt rules provid- 40 ing for the minimal amount of insurance for all contractor classes. 41 (b) Water-based fire protection contractor certificates of insurance 42 shall provide that such insurance shall not be modified, that there 43 shall be no material changes in coverage or any termination, non-rene- 44 wal, or cancellation unless thirty days' notice is given to the depart- 45 ment. 46 (c) Water-based fire protection contractor certificates of insurance 47 must include the policy number, date of expiration, and physical address 48 of each contractor location. Each contractor's operation of business 49 must be noted in the description part of such contractor's certificate. 50 (d) The "State of New York" shall be named as the certificate holder. 51 (e) An insurer who fails to so notify the department shall be subject 52 to the penalties provided within this article. 53 6. A license shall be issued upon satisfaction of the requirements of 54 this section. No license shall remain in effect if, after issuance, the 55 license holder fails to maintain insurance coverage required by this 56 article.A. 3272 10 1 7. The department may, at any time subsequent to the issuance of a 2 license or renewal, require, upon demand and within thirty days of 3 notice of such demand, the license holder to provide proof of insurance 4 coverage on a form provided by the department, containing confirmation 5 of insurance coverage as required by this article. Failure to provide 6 proof of insurance coverage as required, for any length of time, shall 7 result in the immediate suspension of the license until proof of insur- 8 ance is provided to, and accepted by, the department. 9 8. A license issued to conduct the business of layout, installing, 10 repairing, inspecting, testing, or maintaining of water-based fire 11 protection systems shall be conspicuously posted upon the premises where 12 the license holder is engaged in such business of layout, installing, 13 repairing, inspecting, testing, or maintaining of water-based fire 14 protection systems. 15 9. Upon obtaining a license, all documents or receipts issued by or on 16 behalf of a contractor licensed pursuant to this article shall contain 17 the license identification number issued to such contractor. 18 10. A duplicate license may be issued for one lost, destroyed, or 19 mutilated upon an application for such duplicate license on a form 20 prescribed by the department and upon payment of the fee prescribed by 21 this article. Each such duplicate license shall have the word "dupli- 22 cate" clearly stamped or watermarked across its face and shall bear the 23 same number as the original license. All information from the original 24 license shall be transposed identically. 25 11. Notice in writing shall be given to the department by a license 26 holder of any change in address of such license holder together with the 27 return of such holder's license, whereupon a properly signed endorsement 28 shall be made on the face of such license as to such change, and such 29 license shall then be returned to the license holder. 30 12. Each license to conduct the business of layout, installing, 31 repairing, inspecting, testing, or maintaining of water-based fire 32 protection systems issued to a business entity may be used after the 33 death of the RME for a period of not more than one hundred eighty days 34 from the date of such RME's death. Such one hundred eighty-day period 35 may be extended upon an application to the department and for good cause 36 shown for an additional period not to exceed one hundred twenty days 37 total. 38 § 759-m. License renewals and RMEs. The contractor shall submit an 39 application and fees for license renewal along with all required 40 documentation including RME qualifications to the department. 41 § 759-n. Inspection of water-based fire protection systems. 1. The 42 department and OFPC shall have the right to inspect any water-based fire 43 protection system during and after construction to determine whether 44 such system meets the standards set forth in the laws and rules of the 45 state. This does not diminish the capacity and duties of the local code 46 enforcement office having jurisdiction. 47 2. A building owner who has water-based fire protection systems 48 installed in public or private properties, including group homes, but 49 not including private one-family or two-family dwellings or manufactured 50 housing, shall cause such building to be inspected in compliance with 51 the procedures set forth in NFPA 25 by a state licensed water-based fire 52 protection contractor. This section does not prohibit governmental enti- 53 ties and code enforcement officials in the performance of their duties 54 from inspecting and enforcing state uniform fire prevention and building 55 code and local laws.A. 3272 11 1 3. A building owner shall cause to be corrected all deficiencies 2 discovered during inspection. 3 4. A building owner or building owner's authorized representative 4 shall contract with a state-licensed contractor for scheduled inspection 5 and testing before any certificate of occupancy is issued and does not 6 detract liability of the building owner and the building owner's respon- 7 sibilities. The inspecting contractor shall provide to such building 8 owner a copy of the inspection report detailing applicable state code 9 requirements and NFPA 25 standard inspection, testing, and maintenance 10 criteria. The maintenance of water-based fire protection systems as well 11 as corrective actions on deficient systems is the responsibility of the 12 owner of the water-based fire protection system connected thereto. It is 13 recognized that the inspecting contractor and the installing contractor 14 may or may not be one and the same. The limit of liability of inspecting 15 contractors shall be that of the dollar value of the inspection, test- 16 ing, and maintenance contract. The installing water-based fire 17 protection contractor shall be reposed and may not be sued for latent 18 construction defects, more than ten years after substantial completion 19 of a project. 20 5. A building owner shall ensure that inspections, testing, and main- 21 tenance of water-based fire protection systems for detached one-family 22 dwellings, detached two-family dwellings, and manufactured housing, meet 23 the standards set forth in NFPA 13D. Group homes shall be subject to the 24 standards set forth in NFPA 25 and shall be governed by this article. 25 6. Maintenance of water-based fire protection systems as well as 26 corrective actions on deficient systems is the responsibility of the 27 owner of the system. Notwithstanding inspection contracts with 28 conflicting language, the owner of the water-based fire protection 29 system shall indemnify and hold harmless the other party to the 30 contract, and their officers and employees, from liabilities, damages, 31 losses and costs, including, but not limited to, reasonable attorney's 32 fees, to the extent caused by the negligence, recklessness, or inten- 33 tional failure of the system owner to maintain or take corrective action 34 to maintain a water-based fire protection system. 35 7. Effective thirty-six months from the effective date of this arti- 36 cle, the department shall require NICET III inspection and testing of 37 water-based fire protection systems or equivalent training and education 38 as determined by the department for the RME or RMEs qualifying a 39 contractor II as proof that they are knowledgeable in nationally 40 accepted standards for the inspection of water-based fire protection 41 systems. 42 8. It is the responsibility of the contractor II RME to maintain NICET 43 III inspection and testing of water-based fire protection systems 44 certification or equivalent state certification as a condition of 45 license renewal after thirty-six months of the effective date of this 46 article. 47 9. No jurisdiction through local law or code enforcement office policy 48 shall require any forms or documents for water-based fire protection 49 system inspections, testing, or maintenance beyond what is in the scope 50 of the fire code of the state and NFPA 25. All inspection, testing, and 51 maintenance reporting forms and documentation required shall come from 52 the building owner or such owner's legal representative unless local law 53 requires otherwise. 54 § 759-o. Fees. 1. The fee for a license to engage in the business of 55 layout, installing, repairing, inspecting, testing, or maintaining ofA. 3272 12 1 water-based fire protection systems shall be two hundred dollars. For 2 each renewal thereof, the fee shall be one hundred dollars. 3 2. The fee for issuing a duplicate certificate or license in substi- 4 tution for one lost, destroyed, or mutilated shall be twenty-five 5 dollars. 6 3. The fee for changing a name or address on a license shall be ten 7 dollars. 8 4. The fees set forth in this section shall be for registrations, 9 certificates, and licenses issued for the period of two years or a frac- 10 tion of such period. 11 5. Fees collected shall be deposited for the department's adminis- 12 tration of this article. Excess fees shall assist in providing education 13 for state certified code enforcement officials, building safety inspec- 14 tors, and firefighters. 15 § 759-p. Suspension and revocation of licenses. 1. A license to engage 16 in the business of layout, installing, repairing, inspecting, testing, 17 or maintaining of water-based fire protection systems may be suspended 18 or revoked, or in lieu thereof a fine not exceeding one thousand dollars 19 per violation payable to the department may be imposed, or a penalty may 20 be issued by the department or board, for any of the following causes: 21 (a) fraud or bribery in securing a license; 22 (b) making any false statement as to a material matter in an applica- 23 tion or other statement or certificate required by or pursuant to this 24 article; 25 (c) incompetence; 26 (d) failure to display the license as provided in this article; 27 (e) violation of any provision of this article, or of any rule or 28 regulation adopted pursuant to this article; 29 (f) conviction of a felony involving fraud, theft, perjury or bribery 30 or any other cause which would permit disqualifications from receiving a 31 license upon the original application; 32 (g) failure to supervise the installation of a fire protection system 33 covered by a building permit signed by a RME; 34 (h) a RME or license holder's violation of any provision of this arti- 35 cle or any rule or regulation adopted and promulgated pursuant to this 36 article or the failure or refusal to comply with any notice or order to 37 correct a violation or any cease and desist order; 38 (i) improper layout, installing, repairing, inspecting, testing, or 39 maintaining a water-based fire protection system; 40 (j) having rendered inoperative a water-based fire protection system 41 except during such time as the system is being inspected, tested, 42 repaired, altered, or maintained, using impairment procedures as per 43 state uniformed code, or except pursuant to a court order; 44 (k) while holding a certificate or license allowing another person to 45 use such certificate or license number, or using a certificate or 46 license number other than the valid certificate or license number; 47 (l) failure to provide proof of insurance to the department or failure 48 to maintain insurance coverage required by this article; or 49 (m) loss of a RME for more than one hundred twenty consecutive days. 50 2. An order of suspension shall state the length of such suspension, 51 which may not exceed two years from the date of such order. Such orders 52 shall affect suspension or revocation of a RME qualifier or licenses 53 held by a contractor and during such period of time no license shall be 54 issued to such contractor. During the period of suspension or revocation 55 of any license, the former license holder shall not engage in or attempt 56 or profess to engage in any transaction or business for which a licenseA. 3272 13 1 is required under this chapter, or directly or indirectly own, control, 2 or be employed in any manner by any business entity for which a license 3 under this chapter is required. If, during the period between the 4 beginning of proceedings and the entry of an order of suspension or 5 revocation by the department, a new license has been issued to the busi- 6 ness entity so charged, the order of suspension or revocation shall 7 operate to suspend or revoke such new license held by such business 8 entity. 9 3. So long as a revocation or suspension remains in effect, the 10 department shall not grant any new license for the establishment of any 11 new business entity to any person, business entity, or qualifier that 12 has or will have the same or similar management, ownership, control, 13 employees, or license holders, or will use the same or similar name as 14 such previously revoked or suspended business entity, person, or qual- 15 ifier. In addition, the department shall not issue a new license if it 16 finds that the circumstances for which such license was previously 17 revoked or suspended still exist or are likely to recur. 18 4. Whenever a license to engage in the business of layout, installing, 19 inspecting, testing, repairing, or maintaining of water-based fire 20 protection systems is revoked, such license shall not be reinstated or 21 reissued until five years from the date of such revocation. 22 5. The filing of a petition in bankruptcy, either voluntary or invol- 23 untary, or the making of a composition of creditors or the appointment 24 of a receiver for a business entity's license may be considered by the 25 department as just cause for suspension of such license. 26 6. The lapse or suspension of a license by operation of law or by 27 order of the department or a court or the voluntary surrender of such 28 license by its license holder does not deprive the department of its 29 authority to investigate or act in disciplinary proceedings against the 30 license holder. 31 7. A contractor filing an application for a water-based fire 32 protection license following the revocation of a previous license in any 33 category shall follow all procedures for obtaining a new license. 34 § 759-q. Hearing on charges; decision. No certificate or license shall 35 be suspended or revoked nor shall any fine or penalty be imposed until 36 after a hearing is held before an officer or employee of the department 37 designated for such purpose by the department, upon notice to the 38 certificate or license holder of at least ten days. The department 39 shall consider the recommendations of the board. The notice shall be 40 served either personally or by registered mail and shall state the date 41 and place of the hearing and set forth the ground or grounds constitut- 42 ing the charges against the certificate or license holder. Such certif- 43 icate or license holder shall have the opportunity to be heard either in 44 person or by counsel and may produce witnesses and testify on his or her 45 own behalf. A stenographic record of the hearing shall be taken and 46 preserved. The hearing may be adjourned from time to time. The person 47 conducting the hearing shall make a written report including his or her 48 findings and a recommendation to the department for decision. The 49 department shall review such findings and recommendation and, after due 50 deliberation, shall issue an order accepting, modifying, or rejecting 51 such recommendation and dismissing the charges or suspending or revoking 52 the certificate or license, or in lieu thereof, imposing a fine or 53 penalty upon the certificate or license holder. For the purposes of this 54 article, the department or any officer or employee of the department 55 designated by the secretary of state, may administer oaths, take testi- 56 mony, subpoena witnesses, and compel the production of books, papers,A. 3272 14 1 records, photographs, and documents deemed pertinent to the subject of 2 investigation. 3 § 759-r. Judicial review. The action of the department in suspending, 4 revoking or refusing to issue or renew a certificate or license, or 5 imposing a fine or penalty upon the holder of such license may be 6 reviewed in a proceeding brought under and pursuant to article seventy- 7 eight of the civil practice law and rules. 8 § 759-s. Violations and penalties. Any person or business entity who 9 directly or indirectly engages in the business of layout, installing, 10 repairing, inspecting, testing, or maintaining water-based fire 11 protection systems or holds oneself out to the public as being able to 12 perform such work and is without a license, or who shall violate any of 13 the provisions of this article, or having had a license suspended or 14 revoked, continues to engage in the business of layout, installing, 15 repairing, inspecting, testing, or maintaining water-based fire 16 protection systems or who, without a license to engage in the business 17 of layout, installing, repairing, inspecting, testing, or maintaining 18 water-based fire protection systems, directly or indirectly employs, 19 permits or authorizes an uncertified person to engage in the business of 20 layout, installing, repairing, inspecting, testing, or maintaining 21 water-based fire protection systems, shall be guilty of a misdemeanor 22 and, upon conviction, shall be punishable by imprisonment of not more 23 than six months, or by a fine of not more than one thousand dollars or 24 both upon the first conviction, and by imprisonment of not more than one 25 year or by a fine of not less than one thousand dollars or more than 26 five thousand dollars or both upon a subsequent conviction. Each 27 violation of this article shall be deemed a separate offense. 28 § 759-t. Official acts used as evidence. The official acts of the 29 secretary of state and the department shall be prima facie evidence of 30 the facts therein and shall be entitled to be received in evidence in 31 all actions at law and other legal proceedings in any court or before 32 any board, body, or officer. 33 § 759-u. Disposition of moneys derived from operation of this article. 34 Fees collected pursuant to this article shall be paid into the appropri- 35 ate account for the department pursuant to the state finance law, for 36 administration of this article. All remaining moneys derived from the 37 operation of this article shall on or before the tenth day of each month 38 be paid into a fund of the state treasury to the credit of the depart- 39 ment's account to assist in providing education for state certificated 40 code enforcement officials, building safety inspectors, and firefight- 41 ers. 42 § 759-v. Severability. If any part or provision of this article or the 43 application thereof to any person or circumstance be adjudged invalid by 44 any court of competent jurisdiction, such judgment shall be confined in 45 its operation to the part, provision or application directly involved in 46 the controversy in which such judgment shall have been rendered and 47 shall not affect or impair the validity of the remainder of this article 48 or the application thereof to other persons or circumstances, and the 49 legislature hereby declares that it would have enacted this article or 50 the remainder thereof had the invalidity of such provision or applica- 51 tion thereof been apparent. 52 § 759-w. Applicability. 1. This article shall not apply to water-based 53 fire protection work performed under the jurisdiction of the five 54 boroughs of New York city, Nassau county, or Suffolk county. Any munici- 55 pality or local government agency located in New York city, Nassau coun- 56 ty, or Suffolk county may require other licenses or evidence of aA. 3272 15 1 person's competence to layout, install, repair, inspect, test, or main- 2 tain all types of water-based fire protection systems and components. 3 Nothing in this section shall be construed to imply that a holder of a 4 New York city, Nassau county, or Suffolk county license shall have any 5 standing outside the boundaries of the jurisdiction issuing such 6 license. 7 2. This article shall not apply to: 8 (a) a person who performs water-based fire protection work with 9 respect to any one-family or two-family dwelling owned or leased by such 10 person unless otherwise specified; 11 (b) a person who, while employed by a public utility or its affiliate, 12 performs water-based fire protection work in connection with the 13 furnishing of such public utility service; 14 (c) any work covered by any national, state, or municipal electrical 15 code including but not limited to pull stations, strobes, heat detec- 16 tors, smoke detectors, fire alarms or bells, and any electrical wiring 17 including conduit connected to raceway control cabinets; or 18 (d) underground water supply for fire protection up to the floor 19 flange where the water-based fire protection system above ground begins. 20 3. This act shall not be held to invalidate any provision of the laws 21 of this state or any subdivision thereof unless there is a direct 22 conflict between the provision of this article and the provision of such 23 law or unless such law is duplicative of this article, in which case 24 this article shall prevail. No local law shall require any fee, license, 25 or certificate for the layout, installing, repairing, inspecting, test- 26 ing, or maintaining of water-based fire protection systems, except when 27 the water-based fire protection contractor business is located within a 28 political jurisdiction. Any jurisdiction may apply business licensure 29 criteria and fees consistent with other businesses in such jurisdiction. 30 4. Nothing in this article shall limit the power of a municipality or 31 county to regulate the quality and character of work performed by 32 water-based fire protection contractors through a system of permits, 33 fees, and inspections which are designed to secure compliance with, and 34 aid in the implementation of, state and local laws or to enforce other 35 local laws for the protection of the public health and safety. 36 5. Nothing in this article shall limit the power of a municipality or 37 county to adopt any system of permits requiring submission to and 38 approval by such municipality or county of plans and specifications for 39 work to be performed by contractors before commencement of such work, 40 except that no municipality or county shall require a water-based fire 41 protection contractor's shop drawings to be stamped or sealed by a 42 professional engineer or registered architect. 43 6. Any elected or appointed official authorized to issue a building, 44 fire protection, or other related permit for a project that includes 45 water-based fire protection shall ascertain that the applicant contrac- 46 tor or subcontractor is appropriately licensed before issuing such 47 permit. The evidence shall consist only of the presentation to the offi- 48 cial of evidence of the current contractor license I. If the water-based 49 fire protection contractor is not known at time of permit request by a 50 general contractor or other party applying for permit, the required 51 information above shall be supplied before any water-based fire 52 protection work commences. Any permits for the layout, installing, 53 repairing, inspecting, testing, or maintaining of a water-based fire 54 protection system may only be issued to a licensed water-based fire 55 protection contractor of the appropriate classification to conduct the 56 work.A. 3272 16 1 § 759-x. Contractual agreements. 1. Any portion of any agreement or 2 contract for or in connection with, or any guarantee of or in connection 3 with any layout, installing, repairing, inspecting, testing, maintain- 4 ing, or demolition of a water-based fire protection system between an 5 owner of real property or general contractor and the water-based fire 6 protection contractor wherein any party promises to indemnify or hold 7 harmless the other party to the agreement, contract, or guarantee for 8 liability for damages to persons or property caused in part by any act, 9 omission, or default of the indemnitee arising from the contract or its 10 performance, shall be void and unenforceable unless the contract 11 contains a monetary limitation on the extent of the indemnification that 12 bears a reasonable commercial relationship to the contract and is part 13 of the project specifications or bid documents, if any. Notwithstanding 14 the foregoing, the monetary limitation on the extent of the indemnifica- 15 tion provided to the owner of real property by any party in privity of 16 contract with such owner shall not be less than one million dollars per 17 occurrence, unless otherwise agreed by the parties. Indemnification 18 provisions in any such agreements, contracts, or guarantees may not 19 require that the indemnitor indemnify the indemnitee for damages to 20 persons or property caused by the sole negligence of another party, or 21 in whole or in part by any act, omission, or default of a party other 22 than: 23 (a) the indemnitor; 24 (b) any of the indemnitor's contractors, subcontractors, sub-subcon- 25 tractors, materialsperson, or agents of any tier or their respective 26 employees; or 27 (c) the indemnitee or its officers, directors, agents, or employees. 28 However, such indemnification shall not include claims of, or damages 29 resulting from gross negligence, or willful, wanton or intentional 30 misconduct of the indemnitee or its officers, directors, agents or 31 employees, or for statutory violation or punitive damages except and to 32 the extent the statutory violation or punitive damages are caused by or 33 result from the acts or omissions of the indemnitor or any of the 34 indemnitor's contractors, subcontractors, sub-subcontractors, material- 35 spersons, or agents of any tier or their respective employees. 36 2. A construction contract for a public agency or in connection with a 37 public agency's project may not require one party to indemnify, defend, 38 or hold harmless the other party, its employees, officers, directors, or 39 agents from any liability, damage, loss, claim, action, or proceeding, 40 and any such contract provision is void as against public policy of this 41 state. 42 3. This section does not affect any contracts, agreements, or guaran- 43 tees entered into before the effective date of this article but affects 44 renewals thereof when such renewal takes place after the effective date 45 of this article. 46 4. Water-based fire protection contractors shall be granted sufficient 47 time to inspect any perceived construction defect in a building that 48 they may disprove or accept as in their purview before any legal actions 49 or suits are brought forth. If such contractor takes responsibility for 50 such defect, reasonable time shall be allowed for such contractor or his 51 or her representative to correct such defect without fear of any legal 52 actions or suit. A water-based fire protection contractor shall not be 53 held liable for economic damages caused by others. 54 5. An owner has an obligation to install fire protection systems in 55 compliance with adopted fire protection system standards.A. 3272 17 1 § 4. This act shall take effect one year after it shall have become a 2 law, provided, however that the provisions of section 759-k of the 3 general business law as added by section three of this act shall expire 4 eighteen months after the effective date of this act when upon such date 5 the provisions of such section shall be deemed repealed. Effective imme- 6 diately, the addition, amendment and/or repeal of any rule or regulation 7 necessary for the implementation of this act on its effective date are 8 authorized to be made and completed on or before such effective date.
