The Home Improvement Contractor Licensing Law

ARTICLE XVI.  LICENSING OF PERSONS ENGAGED IN THE HOME IMPROVEMENT BUSINESS

Section 863.311.  Legislative Findings.

It is hereby declared and found that because of the increase in complaints by residential dwellers in the County of Westchester about abuses on the part of home improvement contractors, it has become desirable to safeguard and protect such residents by regulating the home improvement, remodeling and repair business and by licensing persons engaged in such business.  Such licensing will protect and promote the health, safety and welfare of the residents of the County of Westchester.

Section 863.312.  Definitions.

Unless the context otherwise specifically requires, the following terms, when used in this Article, shall have the following meanings:

1. "Contractor" means any person who owns, operates, maintains, controls, transacts or conducts a home improvement business or who undertakes or advertises a home improvement service or offers to undertake or agrees to perform any home improvement.

2. "Home improvement" means a repair, replacement, remodeling, installation, construction, alteration, conversion, modernization made to, in or upon a private residence, apartment or dwelling place of not more than three units, including, but not limited to the following:

a. waterproofing;
b. exterior siding, awnings, leaders and gutters;
c. decks, patios, garages, carports and additional rooms;
d. storm and/or replacement windows and doors;
e. roofs;

f. driveways and walkways;
g. kitchens and bathrooms;

h. masonry;
i. fence installations;

j. chimney maintenance;

k. exterior painting;
l. landscaping and gardening;
m. arboriculture;

n.  tile setters;
o.  swimming pools; and
p.  other similar improvements.

3.  "Home improvement business" means the business of providing for a profit, a home improvement to an owner, provided, however, the term shall not include labor or services performed by an employee for a contractor.

4.  "Home improvement contract" means an agreement between a contractor and an owner for the performance of a home improvement,  and  includes  all  labor, services  and  materials  to  be  furnished  and  performed thereunder,  either directly by the contractor or by another person under separate  agreement  with the contractor.

5.  "Licensee" means a person licensed to engage in the home improvement  business under the provisions of this Article.

6.  "Owner" means a homeowner, tenant, or any other residential dweller who orders, contracts for, or purchases a home improvement.

7.  "Person" means an individual, firm, company, partnership, association, corporation or other business entity.

Section 863.313.  License Required; Home Improvement Business.

    1.  No person shall maintain, conduct, advertise, operate, or engage in the home improvement business within the county of Westchester, or hold himself or herself out as being able to do so, unless such person is licensed pursuant to this Article.

    2.  Upon issuance of a home improvement license to a landscaper and a gardener under the provisions of this chapter, the Sealer shall issue a vehicle decal for each vehicle identified by the licensee as a vehicle which will be used in connection with the licensed activities.  Such vehicle decals shall be conspicuously displayed in the vehicle(s) used in connection with the licensed activities during the term of the license.

     Section 863.314.  Application for License or Renewal.

     An application for a license under this Article, or a renewal thereof, shall be made  in  writing to the Sealer in accordance with such procedures,  providing such information and on such forms as the Sealer may from time to time require. The application shall be signed by the applicant and shall be accompanied by a check, cash or money order in the amount of the fee required under Section 863.315 of this Article.

Section 863.315.  Fees.

     The bi-annual fee for a license to conduct a home improvement business shall be three hundred dollars ($300.) and for each renewal thereof the fee shall be three hundred dollars ($300.)  The license to conduct a home improvement business shall be for a period of two (2) years and each renewal thereof shall be for two (2) years. The Sealer may impose a penalty of twenty-five ($25.) dollars upon a renewal application received by the Sealer later than fifteen (15) days prior to the expiration date of the license sought to be renewed.  The fee for issuing a duplicate license for one lost, destroyed or mutilated shall be twenty-five dollars ($25.).

Section 863.316.  Grant or Denial of License or Renewal.

1.  Within ninety (90) days after receipt of a complete application in proper form, the Sealer shall grant or deny a license, or renewal thereof, under this Article.  The Sealer shall grant the license or renewal unless the Sealer determines that the applicant:                                                         

a.  is not financially responsible;  
b.  is unqualified to engage in the home improvement business;  
c. has made a false statement of a material fact in the application for a license under this Article;  
d.  has outstanding against it on a recurrent basis unsatisfied home improvement business-related judgments.  

e.  has against it an unacceptable amount of home improvement complaints as determined by the Sealer.  

A denial of a license or renewal shall be made by the Sealer in writing and shall set forth a statement of the reason or reasons therefor and shall be subject to administrative and judicial review in accordance with Subdivision two of this Section.

2.  Within thirty (30) days after a denial of an application for a license or a renewal thereof, the applicant shall be entitled to demand a hearing before the Sealer by making a written demand therefor.  Following receipt of such written demand, a hearing shall be held by the Sealer, or by a deputy designated by the Sealer, or by such other person or persons designated by the Sealer.  A record of such hearing shall be made.  At such hearing the applicant may be represented by counsel and may offer evidence in his or her behalf to demonstrate that a license or renewal should be granted.  Compliance with technical rules of evidence shall not be required.  If a deputy or other person or persons is designated to hold the hearing, such deputy or other designated person or persons shall refer the record and recommendations to the Sealer for determination.  The determination made by the Sealer shall be subject to judicial review in accordance with Article 78 of the Civil Practice Law and Rules in a proceeding brought within four (4) months after the determination is rendered.
                           

Section 863.317.  Revocation or Suspension of License.

1.  In accordance with the procedure set forth in Subdivision two of this Section, the Sealer may revoke, or upon such conditions as the Sealer deems appropriate, suspend for a period of time, a license issued under this Article, provided, however, that no revocation or suspension imposed hereunder shall be construed to impair or preclude a licensee's obligation to complete home improvement contracts in existence on the date such revocation or suspension otherwise becomes effective.  On the effective date of such revocation or suspension the licensee shall furnish the Sealer with a written list of such home improvement contracts with respect to which licensee is under a legal obligation to perform, in accordance with procedures authorized by Section 863.324 (5) of this Article.

2.  Grounds for suspension or revocation shall include:

(a) grounds to deny a license or renewal under Section 863.316;

(b) failure by the licensee to fully and satisfactorily perform or furnish any labor, services or materials included under a home improvement contract.

(c) the commission by a licensee of an act or acts in violation of Section 863.319 of this Article.

3.  The licensee shall be given written notice by the Sealer of the commencement of the revocation or suspension proceeding and a copy of the charges upon which the proceeding is brought.  Service may be made by ordinary mail to the address given in the application made by the licensee for a license under this Article.  The licensee shall answer the charges in writing within ten (10) days.  A hearing on such charges shall be held by the Sealer or a deputy designated by the Sealer, or by such other person or persons designated by the Sealer.  A record of such hearing shall be made.  At such hearing the licensee may be represented by counsel and may offer evidence in his or her behalf.  Compliance with technical rules of evidence shall not be required.  The burden of proving the charges by substantial evidence shall be upon the Sealer.  If a deputy or other person or persons is designated to hold the hearing, such deputy or other designated person or persons shall refer the record and recommendations to the Sealer for determination.  The determination made by the Sealer shall be subject to judicial review in accordance with Article 78 of the Civil Practice Law and Rules in a proceeding brought within four (4) months after the determination is rendered.

Section 863.318.  License, Assignment.

Any license issued by the Sealer under this Article shall not be assigned or transferred by the licensee.

Section 863.319.  Violations.

1. It shall be a violation to:

a.  Abandon or fail to perform, or furnish, without justification, any labor, services or materials included under a home improvement contract, or willfully deviate from the plans or specifications of a home improvement contract in any material respect without the consent of the owner;
b.  Conduct a home improvement business in any name other than the one in which the person is licensed;

c.  Fail to agree that the owner may cancel by written notice the home improvement contract without penalty at any time prior to midnight on the third business day after the date such contract is made;

d. Make a false statement or provide false information in making application for a license, including a renewal or duplicate license;
e.  Fail to notify the Sealer, in writing, of any change of control in the ownership, management or business name or location of a home improvement business within ten (10) days thereof;
f.  Fail to disclose on all advertising for a home improvement business and in all contracts with an owner for a home improvement the number of the license issued under this Article; 
g. Fail to comply with the provisions of Section 863.325 of this Article; 
h. Fail to comply with the provisions of Section 863.326 of this Article;

2.  The foregoing acts are unlawful when committed by a person engaged in the home improvement business within the County of Westchester and violations of the provisions of this Section proscribing certain acts shall be enforced in accordance with and shall be subject to the penalties provided in the Laws of Westchester County, including but not limited to Chapter 182, Article VIII of Chapter 277 and Article I of Chapter 863 thereof.

Section 863.320.  Criminal Penalties.

Any person who shall maintain, conduct, operate or engage in a home improvement business within the County of Westchester without a license as required under this Article or who continues to conduct a home improvement business after such license has been denied, suspended, revoked or has expired shall be guilty of a Class A misdemeanor.

Section 863.321.  Other Licenses.

1.  A license issued pursuant to this Article shall not be construed to authorize the licensee to perform any particular type of work or kind of business that is reserved to qualified licensees under separate provisions of State or Local Law.

2.  Nothing in this Article shall be construed to limit or restrict the power of a city, town or village to regulate the quality, performance, or character of the work of contractors including a system of permits and inspections that are designed to secure compliance with and aid in the enforcement of applicable State and local building laws, or to enforce other laws necessary for the protection of the public health and safety.  Nothing in this Article shall be construed to limit or restrict the power of a city, town or village to adopt any system of permits requiring submission to and approval by the city, town or village of plans and specifications for an installation prior to the commencement of construction of the installation of or inspection of work done.

3.  Notwithstanding any provision of this Article to the contrary, this Article shall relate only to the area of the County of Westchester outside any city, village or area of any town outside the village or villages therein during such time as such city, village or town is regulating or licensing the home improvement business.

Section 863.322.  No Waiver.

The provisions of this Article are intended for the protection of an owner and shall not be subject to waiver by an owner in a home improvement contract or otherwise.

Section 863.323.  Severability.

If any clause, sentence, paragraph or part of this Article shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, section or part thereof directly involved in the controversy and in which such judgment shall have been rendered.

Section 863.324.  Miscellaneous.

1.  Nothing set forth in this Article shall subject the County of Westchester or its officials, agents or employees to liability for damages or otherwise arising out of or related to the conduct of any home improvement business by a licensee.

2.  The provisions of this Article shall not apply to any home improvement to be performed under a home improvement contract made prior to the effective date of this Article.

3.  Persons engaged in the home improvement business in Westchester County on the effective date of this Article who have applied for licenses hereunder may continue to engage in such business while their license applications are processed.  Persons not engaged in the home improvement business in Westchester County on the effective date of this Article may commence such business upon filing a license application in accordance with Section 863.314 of this Article.

4.  Notwithstanding any provisions of this Article to the contrary, this Article shall not apply to:

a.  plumbing work;
b.  electrical work;
c.  architectural services;

d.  work or services performed by a person within the scope of an occupation, craft or profession in which such  person  has met standards of competency or experience established by State law as a condition to engaging in the occupation, craft or profession;
e.  full-time students under the age of twenty-two (22) engaged in seasonal or part-time employment;
f.   the construction of a new home building;

g.  the sale of goods or materials by a seller who neither arranges to perform  nor performs directly or indirectly any work or labor in connection with the installation of or application of the goods or materials;

h.  work performed upon a residence or building owned by or controlled by the State or any municipality;
i.   the sale, leasing, maintaining, installing, repairing, altering, moving, replacing,  or servicing of an alarm device or system by a County-licensed alarm business or alarm agent.

5.  The Sealer is empowered to establish administrative procedures to carry out the provisions of this Article in conformity with the provisions thereof.  The Sealer shall require proof of personal liability and property damage insurance set by the Sealer in an amount not to exceed three-hundred thousand dollars ($300,000.).

6.  The Sealer may require an application for a license to be accompanied by a bond, approved as to form by the  County Attorney, executed by a bonding or surety company authorized to do business in the State of New York or cash security in an amount to be set by the Sealer not to exceed fifty thousand dollars ($50,000.), conditioned upon the assurance that during the term of such license, the contractor will continue to comply with the provisions of this Article, to assure that upon default in the performance of any contract, the advance payment made thereon, less the reasonable value of services actually rendered to the date of the contract in the event of noncompletion thereof, will be refunded to the consumer, owner, or lessee with whom such contract was made.  Such bond shall run to the County of Westchester for the use and benefit of any person or persons intended to be protected thereby. The required bond, after the aforementioned approval by the County Attorney, shall be filed in the Office of the Sealer.  The Sealer may require a bond at any time during the term of the license based on the licensee's performance during such term.

7.  Any licensee using chemicals regulated or controlled by the New York State Department of Environmental Conservation shall show proof of certification for use of said chemicals.

Section 863.325.  Disclosures required of certain home improvement contractors; penalties.

1. If a licensee or an affiliate directly or indirectly arranges or facilitates the financing of a home improvement contract, then prior to executing the home improvement contract, said licensee must:

a.  Disclose to the owner, in writing, any payments made or received by the licensee in connection with the financing, including the amount of such payments, on forms provided by the sealer;
b.  Provide an appropriate Consumers' Bill of Rights, prepared by the sealer; and
c.  Obtain the owner's written acknowledgement of receipt of the written disclosure of any payments and the appropriate Consumers' Bill of Rights on forms provided by the sealer.

2.  Within five (5) business days of executing a home improvement contract, any licensee of required to comply with the provisions of subdivision 1, must also file with the sealer:

a.  A copy of the home improvement contract;
b.  A copy of the owner's Acknowledgement of Receipt of the written disclosure and the appropriate Consumers' Bill of Rights.

3.  In addition to the penalties set forth in sections 277.171, 277.181 and 863.52, the sealer may, after providing notice and an opportunity to be heard, revoke the license or deny the application for a license renewal that fails to comply with any of the requirements of this section.

Section 863.326. Vehicles to display name and address of landscaper or gardner.

1. All motor vehicles which are used in the normal course of business by landscapers or gardeners or their employees to deliver tools, materials or workers to a job site in Westchester County shall, while such vehicle is parked at a job site, display on both sides of the vehicle the name and address of the landscaper or gardener in letters and numerals readily legible from a distance of fifty during daylight hours and while the motor vehicle is stationary.

2. The requirements of this Section may be complied with by permanently affixing the landscaper or gardener's name and address to the motor vehicle or by affixing removable signs to the motor vehicle to be displayed while such vehicle is parked at a job site and the landscapers or gardeners or their employees are engaged in the normal course of business in Westchester County.

(westchestergov.com/consumer)