HB0037

HOUSE BILL 37

53rd legislature - STATE OF NEW MEXICO - second session, 2018

INTRODUCED BY

Harry Garcia and Jane E. Powdrell-Culbert

and Roberto “Bobby” J. Gonzales

AN ACT

RELATING TO PROFESSIONAL STANDARDS; ENACTING THE ELEVATOR SAFETY ACT; PROVIDING FOR LICENSURE OF ELEVATOR MECHANICS, CONTRACTORS AND INSPECTORS; PROVIDING FOR FEES FOR LICENSURE AND PERMITTING; CREATING A FUND; PROVIDING PENALTIES; MAKING AN APPROPRIATION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Elevator Safety Act".

SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Elevator Safety Act:

A. "commission" means the construction industries commission;

B. "contractor" means a sole proprietor, firm or corporation that possesses an elevator contractor's license pursuant to the Elevator Safety Act and is engaged in the business of erecting, constructing, installing, altering, servicing, repairing or maintaining conveyances;

C. "conveyance" means:

(1) any hoisting and lowering mechanism equipped with a car or platform that moves between two or more landings, including elevators, escalators, moving sidewalks, platform lifts or stairway chairlifts for carrying persons between landings; and

(2) hoisting and lowering mechanisms that are equipped with a car, that serve two or more landings and that are restricted to carrying materials by their limited size and limited access;

D. "director" means the director of the construction industries division of the regulation and licensing department;

E. "inspector" means a person who possesses an elevator inspector's certificate pursuant to the Elevator Safety Act;

F. "mechanic" means a person who possesses an elevator mechanic's license pursuant to the provisions of the Elevator Safety Act and who is engaged in erecting, constructing, installing, altering, servicing, testing, repairing or maintaining and performing electrical work on related conveyances covered by that act;

G. "standards" means the American society of civil engineers' safety code for elevators and escalators, the performance-based safety standard for elevators and escalators, the safety code for existing elevators and escalators, the standard for the qualification of elevator inspectors, the safety standard for platform lifts and stairway chairlifts and the standard for elevator suspension, compensation and governor systems. The latest editions of each of the standards shall be adopted within six months of their publication; and

H. "temporarily dormant" means that a conveyance whose power supply has been disconnected by removing fuses and placing a padlock on the mainline disconnect switch in the off position is parked and the hoistway doors are in the closed and latched position with a wire seal installed on the mainline disconnect switch by an inspector.

SECTION 3. [NEW MATERIAL] EXEMPTIONS.--The following are exempted from the provisions of the Elevator Safety Act:

A. material hoists;

B. manlifts;

C. mobile scaffolds, towers and platforms;

D. powered platforms and equipment for exterior and interior maintenance;

E. conveyors and related equipment;

F. cranes, derricks, hoists, hooks, jacks and slings;

G. industrial trucks;

H. portable equipment, except for portable escalators that are covered by the standards;

I. tiering or piling machines that are used to move materials to and from storage and that are located and operating entirely within one story;

J. equipment for feeding or positioning materials at machine tools, printing presses and similar equipment;

K. skip or furnace hoists;

L. wharf ramps;

M. railroad car lifts or dumpers; and

N. line jacks, false cars, shafters, moving platforms and similar equipment used for installing an elevator by a contractor licensed in this state.

SECTION 4. [NEW MATERIAL] COMMISSION DUTIES--RULES.--

A. The commission shall adopt rules for the equipment regulated by the Elevator Safety Act, including the latest editions of:

(1) a safety code for elevators and escalators;

(2) a safety code for existing elevators and escalators;

(3) a performance-based safety standard for elevators and escalators;

(4) a safety standard for platform lifts and stairway chairlifts;

(5) a standard for the qualification of elevator inspectors developed by the American society of civil engineers; and

(6) the automated people mover standards promulgated by the American society of civil engineers.

B. The commission shall adopt the latest editions of the standards provided for in Subsection A of this section within six months of their effective date. Any modifications to those standards that the commission deems necessary shall be justified in writing. The commission shall grant exceptions and variances to its rules only where such exceptions and variances will not jeopardize the public safety and welfare.

C. The commission shall hear an appeal and hold hearings and issue a decision on an appeal within thirty days of the submission of an appeal.

D. The commission shall establish fee schedules for licenses, permits, certificates and inspections. The fees shall reflect the actual costs and expenses to carry out the provisions of the Elevator Safety Act.

SECTION 5. [NEW MATERIAL] ELEVATOR MECHANICS, CONTRACTORS AND INSPECTORS--LICENSE REQUIREMENTS.--

A. No person shall erect, construct, alter, replace, maintain, remove or dismantle any conveyance contained within buildings or structures unless the person is a mechanic licensed pursuant to the Elevator Safety Act who is working under the direct supervision of a contractor pursuant to that act. No person shall wire any conveyance from the mainline feeder terminals on the controller unless the person is licensed as a mechanic pursuant to the Elevator Safety Act and is working as an employee of a contractor pursuant to that act. No other license shall be required for this work.

B. A licensed elevator contractor is not required for removing or dismantling conveyances that are destroyed as a result of a complete demolition of a secured building or structure or where the hoistway or wellway is demolished back to the basic support structure whereby no access is permitted therein to endanger the safety and welfare of any person.

C. No person shall inspect any conveyance within buildings or structures, including residences, unless the person is certified as an inspector pursuant to the Elevator Safety Act.

SECTION 6. [NEW MATERIAL] ELEVATOR MECHANIC'S AND ELEVATOR CONTRACTOR'S LICENSES AND INSPECTOR'S CERTIFICATES.--

A. A person wishing to engage in the business or practice of installing, altering, servicing, replacing, maintaining or inspecting conveyances shall apply for the appropriate license or certificate with the construction industries division of the regulation and licensing department on established forms from the division.

B. Applications shall contain:

(1) if the applicant is an individual, the name, residence and business address of the applicant;

(2) if the applicant is a partnership, the name, residence and business address of each partner;

(3) if the applicant is a domestic corporation, the name and business address of the corporation and the name and residence address of the principal officer of the corporation;

(4) if the applicant is a corporation other than a domestic corporation, the name and address of an agent located locally who shall be authorized to accept service of process or official notices;

(5) the number of years that the applicant has engaged in the business of installing, inspecting, maintaining or servicing conveyances;

(6) the approximate number of persons, if any, to be employed by a contractor applicant and, if applicable, satisfactory evidence that those employees are or will be covered by workers' compensation insurance;

(7) satisfactory evidence that the applicant is or will be covered by general liability, personal injury and property damage insurance;

(8) any record of criminal convictions, as verified by the department of public safety; and

(9) any other information that the director may require.

C. No license or certificate shall be granted to a person who has not fulfilled the requirements of this section.

D. Elevator mechanics employed by licensed contractors shall:

(1) demonstrate an acceptable combination of documented experience and education credits, including not less than three years of work experience in the elevator industry or in construction, maintenance, service or repair or any combination thereof, as verified by current and previous employers licensed to do business and complete a written examination approved by the director on the most recent referenced codes and standards;

(2) be entitled to receive a license without an examination if the person furnishes the commission with acceptable proof that the person has worked in elevator construction, maintenance or repair and the work was without direct and immediate supervision, was for an elevator contractor and was not less than four years prior to the effective date of the Elevator Safety Act. The person shall make application within one year of the effective date of that act;

(3) provide a certificate of completion of and successful passing of the mechanic's examination of a nationally recognized training program for the elevator industry, such as the national elevator industry educational program or its equivalent;

(4) provide a certificate of completion of an apprenticeship program for elevator mechanics that has standards substantially equal to those of the Elevator Safety Act and is registered with the office of apprenticeship of the United States department of labor or the apprenticeship council; or

(5) provide a valid license issued to the person by a state having standards substantially equal to those of the Elevator Safety Act.

E. No inspector's certificate shall be granted to a person unless the person demonstrates to the satisfaction of the director that current standards for the qualifications of elevator inspectors have been met.

F. A contractor's license may be issued to an applicant that holds a valid license from a state having standards substantially equal to those of the Elevator Safety Act.

SECTION 7. [NEW MATERIAL] ISSUANCE AND RENEWAL OF LICENSES AND CERTIFICATES--FEES--CONTINUING EDUCATION.--

A. The director may issue a license or certificate pursuant to the Elevator Safety Act, renewable every three years, upon payment of a fee set by the director.

B. The renewal of a license or certificate shall be conditioned upon the submission of a certificate of completion of a course designed to ensure the continuing education of licensees or certificate holders on new and existing provisions of the rules of the commission, including not less than eight hours of instruction completed within one year immediately preceding the date of license or certificate renewal.

C. Continuing education courses shall be taught by instructors through continuing education providers and may include association seminars or labor training programs approved by the commission; except that an instructor may be exempt from the requirements for license or certificate renewal if the instructor was qualified at any time during the year immediately preceding the scheduled date for renewal.

D. Training providers shall be subject to approval by the director. Training providers shall keep uniform records for ten years of attendance of licensees or certificate holders and shall follow a format approved by the director. The records shall be available for inspection by the director. Training providers shall be responsible for the security of all attendance records and certificates of completion. Falsifying or knowingly allowing another to falsify attendance records or certificates of completion constitutes grounds for suspension or revocation of the training provider's approval.

SECTION 8. [NEW MATERIAL] EMERGENCY AND TEMPORARY LICENSES.--

A. If the governor has declared an emergency due to a disaster, act of God or work stoppage and the number of persons in the state holding licenses granted by the director is insufficient to cope with the emergency, contractors may respond as necessary to ensure the safety of the public. A person certified by a licensed contractor to have an acceptable combination of documented experience and education to perform elevator work without direct and immediate supervision shall seek an emergency mechanic's license from the director within five business days after commencing work that otherwise requires a license. The director shall issue emergency mechanic's licenses. The contractor shall furnish such proof of competency as the director may require. Each emergency license shall be valid for no more than forty-five days from the date of its issuance and for such particular elevators or geographical areas as the director designates. The director shall renew an emergency mechanic's license if the emergency continues beyond forty-five days. No fee shall be charged for an emergency mechanic's license or its renewal.

B. A contractor shall notify the director when there are no licensed personnel available to perform elevator work. The contractor may request that the director issue temporary elevator mechanic's licenses to persons certified by the contractor to have an acceptable combination of documented experience and education to perform elevator work without direct and immediate supervision. Any person certified by a contractor to have an acceptable combination of documented experience and education to perform elevator work without direct and immediate supervision shall immediately seek a temporary elevator mechanic's license from the director and shall pay a fee as determined by the director. Each temporary elevator mechanic's license shall state that it is valid for the term of the employing contractor's license, and renewable biennially, as long as the shortage of licensed personnel continues.

SECTION 9. [NEW MATERIAL] TEMPORARILY DORMANT CONVEYANCES.--A temporarily dormant conveyance shall not be used again until it has been put in safe running order and is in condition for use, and annual inspections shall continue for the duration of the temporarily dormant status by an inspector. Temporarily dormant status shall be renewable on an annual basis and shall not exceed five years. The inspector shall file a report with the director describing the current conditions. The wire seal and padlock shall not be removed for any purpose without permission from the inspector.

SECTION 10. [NEW MATERIAL] REGISTRATION OF EXISTING CONVEYANCES.--By January 1, 2019, the owner or lessee of every existing conveyance shall register with the director each conveyance owned and operated by the owner or lessee and provide the type of conveyance, its rated load and speed, the name of the manufacturer, its location, the purpose for which it is used and any additional information that the director requires. After July 1, 2018, all conveyances shall be registered at the time they are completed and placed in service.

SECTION 11. [NEW MATERIAL] COMPLIANCE WITH STATE FIRE PREVENTION AND BUILDING CODES.--Persons licensed or certified pursuant to the Elevator Safety Act shall ensure that installation or service and maintenance of conveyances be performed in compliance with all laws, ordinances and rules, including fire and building codes.

SECTION 12. [NEW MATERIAL] PERMITS.--

A. No conveyance shall be erected, constructed, installed or altered within buildings or structures unless a permit has been obtained from the director before the work is commenced and the device conforms to all applicable requirements of the Elevator Safety Act. No permit shall be issued except to a licensee pursuant to the Elevator Safety Act. A copy of the permit shall be kept at the construction site at all times while the work is in progress.

B. A permit fee to be deposited into the elevator safety fund shall be set by the director and shall not be refundable.

C. Each application for a permit shall be accompanied by copies of specifications and accurately scaled and fully dimensioned plans and shall include:

(1) the location of the installation in relation to the plans and elevation of the building;

(2) the location of the machinery room and the equipment to be installed, relocated or altered;

(3) all structural supporting members, including foundations; and

(4) all materials to be employed and all loads to be supported or conveyed.

D. Permits may be revoked for:

(1) false statements or misrepresentations as to the material facts in the application, plans or specifications on which the permit was based;

(2) violation of the Elevator Safety Act or any other law, code, ordinance or rule;

(3) work detailed under the permit that is not being performed in accordance with the provisions of the application, plans or specifications or the Elevator Safety Act; or

(4) failure or refusal of the permittee to comply with a stop work order.

E. The term of the permit shall expire no later than six months after the date of issuance of the permit or if the work is suspended or abandoned for a period of sixty days. The director may provide a six-month extension of the term of the permit.

SECTION 13. [NEW MATERIAL] ELEVATOR SAFETY FUND-- CREATED.--The "elevator safety fund" is created in the state treasury. The fund consists of permit, license and certificate fees collected by the director, income from investment of the fund and money otherwise accruing to the fund. Money in the fund shall not revert to any other fund at the end of a fiscal year. The director shall administer the fund, and money in the fund is appropriated to the construction industries division of the regulation and licensing department to administer the provisions of the Elevator Safety Act. Money in the fund shall be disbursed on warrants signed by the secretary of finance and administration pursuant to vouchers signed by the director or the director's authorized representative.

SECTION 14. [NEW MATERIAL] CERTIFICATES OF OPERATION-- ANNUAL INSPECTIONS--REGISTRATIONS--WAIVER FOR PRIVATE RESIDENCES.--

A. All new conveyance installations shall be performed by a contractor licensed pursuant to the Elevator Safety Act. Subsequent to installation, a contractor shall certify compliance with the Elevator Safety Act. Prior to any conveyance being used, a property owner or lessee must obtain a certificate of operation from the director with a fee set by the director. The contractor shall complete the certificate of operation for new installations. The certificate of operation and the fee for newly installed platform lifts and stairway chairlifts for residences shall be subsequent to an inspection by an inspector, who may be a third-party inspector.

B. The director or the director's designee shall inspect all newly installed and existing platform lifts and stairway chairlifts for residences subsequent to an inspection by a private inspector. The director shall provide notice to the owner of the residence where the conveyance is located with relevant information about conveyance safety requirements, including the requirement that the owner contact the director in order to ensure that the conveyance is periodically inspected and made safe before the permit for the conveyance expires. The inspection shall only be done at the request and consent of a private residence owner.

C. Certificates of operation shall be renewed annually, except that certificates issued for platform and stairway chairlifts for residences shall be valid for a period of three years. Certificates of operation shall be clearly displayed on or in each conveyance or in the machine room for the benefit of code enforcement staff.

SECTION 15. [NEW MATERIAL] INSURANCE REQUIRED.--

A. Contractors shall submit to the director an insurance policy or a certified copy of an insurance policy issued by an insurance company to provide general liability coverage of at least one million dollars ($1,000,000) for injury or death of any number of persons in any one occurrence; with coverage of at least five hundred thousand dollars ($500,000) for property damage in any one occurrence; and statutory workers' compensation insurance coverage.

B. Inspectors not employed by the director shall submit to the director an insurance policy or a certified copy issued by an insurance company to provide general liability coverage of at least one million dollars ($1,000,000) for injury or death of any number of persons in any one occurrence; with coverage of at least five hundred thousand dollars ($500,000) for property damage in any one occurrence; and statutory workers' compensation insurance coverage.

C. The policies, certified copies or appropriate certificates of insurance approved by the director shall be delivered to the director before or at the time of the issuance of a license. In the event of any material alteration or cancellation of any policy, at least ten days' notice thereof shall be given to the director.

SECTION 16. [NEW MATERIAL] ENFORCEMENT.--

A. The director shall ensure annual inspection and testing of all conveyances. The owner of a new or existing conveyance located in any building or structure shall have the conveyance inspected annually by an inspector.

B. Subsequent to inspection, the inspector shall supply a property owner or lessee and the director with a written inspection report describing all code violations, if any. The director shall ensure code compliance.

C. Property owners shall, within thirty days from the date of the published inspection report, achieve full compliance with the standards and correct any violations.

D. The owner of any conveyance shall ensure that the required tests are performed at intervals in compliance with the American society of civil engineers' standards.

E. All tests shall be performed by a licensed mechanic pursuant to the provisions of the Elevator Safety Act.

F. Any person may make a request for an investigation into alleged violations of the Elevator Safety Act by giving notice to the director of an alleged violation or danger. The notice shall be in writing, shall set forth with reasonable particularity the grounds for the notice and shall be signed by the person making the request. Upon the request of any person signing the notice, the person's name shall not appear on any copy of the notice or any record published, released or made available.

G. If the director determines that there are reasonable grounds to believe that a violation or danger exists, the director shall cause to be made an investigation and inspection pursuant to the Elevator Safety Act as soon as practicable to determine if a violation or danger exists. If the director determines that there are no reasonable grounds to believe that a violation or danger exists, the director shall notify concerned parties in writing of the determination.

H. After July 1, 2018 and upon the inspection of any conveyance, if the equipment is found to be in dangerous condition, if there is an immediate hazard to those riding or using the conveyance or if the design or the method of operation in combination with devices used is considered inherently dangerous, in the opinion of the director, the director shall notify the owner of the condition and shall order alterations or additions that are deemed necessary to eliminate the dangerous condition.

SECTION 17. [NEW MATERIAL] LIABILITY.--The Elevator Safety Act shall not be construed to relieve or lessen the responsibility or liability of any licensee owning, operating, controlling, maintaining, erecting, constructing, installing, altering, inspecting, testing or repairing any conveyance covered by the Elevator Safety Act for damages to persons or property caused by any defect.

SECTION 18. [NEW MATERIAL] CIVIL PENALTIES--SUSPENSION OR REVOCATION OF LICENSES OR CERTIFICATES.--

A. A license or certificate issued pursuant to the Elevator Safety Act may be suspended, revoked or subject to civil penalty by the director if:

(1) a false statement was made as to a material matter in the application;

(2) there is evidence of fraud, misrepresentation or bribery in securing a license; or

(3) there was a failure to notify the director and the owner or lessee of a conveyance or a related mechanism of any condition not in compliance with that act.

B. No license or certificate shall be suspended, revoked or subject to civil penalty until after a hearing before the director upon notice to the licensee or certificate holder of at least ten days at the last known address appearing on the license or certificate, served personally or by registered mail. The notice shall state the date, hour and place of hearing and set forth a statement of facts constituting the grounds for the charges against the licensee or certificate holder. The director shall suspend or revoke the license or certificate or dismiss the proceeding.

C. A person whose license or certificate is revoked, suspended or subject to civil penalty may appeal the determination of the director, who shall within thirty days hold a hearing, for which at least fifteen days' written notice shall be given to all interested parties. The director shall, within thirty days after the hearing, issue a final decision.

D. An owner or lessee of a conveyance who is found to be in violation of a provision of the Elevator Safety Act shall be fined in an amount not to exceed one thousand five hundred dollars ($1,500) or be imprisoned for a period not exceeding thirty days, or both.

SECTION 19. SEVERABILITY.--If any part or application of the Elevator Safety Act is held invalid, the remainder or its application to other situations or persons shall not be affected.

SECTION 20. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2018.

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