SENATE BILL 479
50th legislature - STATE OF NEW MEXICO - first session, 2011
INTRODUCED BY
Kent L. Cravens
AN ACT
RELATING TO MANUFACTURED HOUSING; CHANGING THE ROLE OF THE MANUFACTURED HOUSING COMMITTEE; GRANTING RULEMAKING TO THE MANUFACTURED HOUSING DIVISION OF THE REGULATION AND LICENSING DEPARTMENT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 60-14-4 NMSA 1978 (being Laws 1978, Chapter 80, Section 1, as amended) is amended to read:
"60-14-4. POWERS AND DUTIES OF DIVISION.--The division shall:
A. prepare, administer and grade examinations for licensure under the classification sought by each applicant;
B. issue licenses and certificates of qualification in accordance with the provisions of the Manufactured Housing Act;
C. establish and collect fees authorized to be collected by the division pursuant to the Manufactured Housing Act;
D. [subject to the approval of the committee] adopt rules [and regulations] relating to the construction, repair, modification, installation, tie-down, hookup and sale of all manufactured homes, which [regulations] rules shall be uniform throughout the state and shall be enforced by inspectors for the division to [insure] ensure minimum standards of safety within the state and any of its political subdivisions, and to carry out the provisions of the Manufactured Housing Act. Ordinances of any political subdivision of New Mexico relating to gas, including natural gas, liquefied petroleum gas or synthetic natural gas; electricity; sanitary plumbing; and installation or sale of manufactured homes shall not be inconsistent with any rules, [regulations] codes or standards adopted by the division pursuant to the Manufactured Housing Act;
[E. adopt a budget and submit it to the regulation and licensing department for approval;
F. make an annual report to the superintendent of regulation and licensing concerning the operations of the division. The report shall contain the division's recommendations for legislation that it deems necessary to improve the licensing and the ethical and technical practices of the manufactured housing industry and to protect the public welfare;
G. subject to the approval of the committee, adopt such rules, regulations, codes and standards as are necessary to carry out the provisions of the Manufactured Housing Act;
H.] E. prepare a uniform manufacturer's warranty and require its adoption as a condition of licensure by all manufacturers of manufactured homes doing business in New Mexico;
[I. subject to the approval of the committee]
F. adopt by [regulation] rule the mobile home construction and safety standards contained in the National Mobile Home Construction and Safety Standards Act of 1974, 42 U.S.C. 5401 et seq., as amended;
[J. subject to the approval of the committee]
G. adopt by [regulation] rule the mobile home procedural and enforcement regulations, 24 C.F.R. 3282, as amended, promulgated by the department of housing and urban development pursuant to the National Mobile Home Construction and Safety Standards Act of 1974, 42 U.S.C. 5401 et seq., as amended;
[K.] H. issue permits and provide for a single inspection of every installation in New Mexico, regardless of the location;
[L. subject to the approval of the committee]
I. adopt [regulations] rules prescribing standards for the installation or use of electrical wiring; the installation of all fixtures, plumbing, consumer's gas pipe, including natural gas, liquefied petroleum gas and synthetic natural gas, appliances and materials installed in the course of mechanical installation; and the construction, alteration, installation and repair of all manufactured homes intended for use in flood or mudslide areas designated pursuant to Section 3-18-7 NMSA 1978. The [regulations] rules shall give due regard to standards prescribed by the federal insurance administration pursuant to regulation 1910, Subsection 7(d), 79 Stat. 670, Section 1361, 82 Stat. 587 and 82 Stat. 5757, all as amended, and shall give due regard to physical, climatic and other conditions peculiar to New Mexico;
[M.] J. conduct "inspector schools" so that each inspector under the division's jurisdiction is capable of giving a complete one-time inspection for the sufficiency of unit installation, construction and mechanical and electrical systems;
[N.] K. enter into cooperative agreements with federal agencies relating to manufactured housing and accept and use federal grants, matching funds or other financial assistance to further the purposes of the Manufactured Housing Act. The division may enter into agreements with municipalities and counties to provide for the inspection of manufactured homes by employees of municipalities and counties, to be performed under the supervision and control of the division. The division may allow all or a portion of the inspection fee collected by a local public body to be retained by the local public body. The portion of the fee retained shall be determined by the division and shall be related to the completeness of the inspection performed;
[O.] L. administer oaths through any member of the division, the director or a hearing officer;
[P. subject to the approval of the committee]
M. adopt rules [and regulations] for the conducting of hearings and the presentation of views, consistent with the regulations promulgated by the department of housing and urban development, 24 C.F.R. 3282.151 through 3282.156, as amended;
[Q. subject to the approval of the committee]
N. adopt by [regulation] rule a requirement that dealers, repairmen and installers provide to consumers warranties on their product and work and prescribe by [regulation] rule minimum requirements of such warranties;
[R.] O. coordinate with and qualify inspectors for any multiple inspection program provided by the construction industries division of the regulation and licensing department for inspection of manufactured homes;
[S. subject to the approval of the committee]
P. adopt [regulations] rules, codes and standards for manufactured homes used for nonresidential purposes; provided such manufactured homes being used for nonresidential purposes on May 18, 1988 shall not be required to meet Uniform Building Code standards, except as to requirements for access to the handicapped, but manufactured homes being used for nonresidential purposes after May 18, 1988 shall be required to meet Uniform Building Code standards. None of the provisions contained in this subsection shall apply to retailers licensed by the motor vehicle division of the taxation and revenue department; and
[T.] Q. with the approval of the superintendent of regulation and licensing, employ such personnel as the director deems necessary for the exclusive purposes of investigating violations of the Manufactured Housing Act, enforcing Section 60-14-17 NMSA 1978 and instituting legal action in the name of the division to enforce the provisions of Section 60-14-19 NMSA 1978."
SECTION 2. Section 60-14-5 NMSA 1978 (being Laws 1977, Chapter 245, Section 220, as amended) is amended to read:
"60-14-5. MANUFACTURED HOUSING COMMITTEE CREATED--MEMBERSHIP--COMPENSATION--DUTIES.--
A. [There is created within the division] The "manufactured housing committee" is created and is administratively attached to the division. It shall be composed of seven members who are residents of New Mexico and who shall serve at the pleasure of the governor and be appointed by [him] the governor as follows:
(1) one member who is or is the designated representative of a manufacturer licensed under the Manufactured Housing Act;
(2) one member who is or is the qualifying party of a dealer licensed under the Manufactured Housing Act;
(3) one member who is or is the qualifying party of an installer licensed under the Manufactured Housing Act;
(4) one member who is a broker licensed under the Manufactured Housing Act; and
(5) three members who are manufactured housing unit owners not subject to licensure under the Manufactured Housing Act.
The term of office of each member of the committee is four years; provided that members shall be appointed for staggered terms beginning July 1, 1983 so that two terms end on June 30, 1985, two terms end on June 30, 1986 and three terms end on June 30, 1987. Thereafter, all members shall be appointed to four-year terms. Members shall be appointed to provide adequate representation of all geographic areas of the state.
B. Each member of the committee [shall] is entitled to receive per diem and mileage as provided in the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance.
C. The committee shall annually elect a [chairman] chair and vice [chairman] chair from its membership. The director of the division shall serve as the executive secretary of the committee.
D. The committee shall meet at least bimonthly at the call of the [chairman] chair.
E. The committee shall provide technical and policy advice to the division, review [and approve or disapprove all] rules, [regulations] standards and codes [subject to its approval under the provisions of the Manufactured Housing Act] of the division and
[(1) establish by regulation classifications of licenses issued by the division and qualifications and examinations necessary for licensure under the Manufactured Housing Act; and
(2)] suspend or revoke for cause any license or certificate of qualification issued by the division."
SECTION 3. Section 60-14-6 NMSA 1978 (being Laws 1978, Chapter 81, Section 1, as amended) is amended to read:
"60-14-6. BONDING REQUIREMENTS--DEALERS, BROKERS, SALESPERSONS, MANUFACTURERS, REPAIRMEN AND INSTALLERS.--
A. The division [with the approval of the committee] may by [regulation] rule require each dealer, broker, salesperson, manufacturer, repairman and installer to furnish and maintain with the division a consumer protection bond underwritten by a corporate surety authorized to transact business in New Mexico, in a sum to be determined by [regulation] rule and in such form, and with either unit or blanket coverage, as required by [regulation] rule, to be conditioned upon the dealer, broker, salesperson, manufacturer, repairman or installer complying with the provisions of the Manufactured Housing Act and any other law applying to the licensee, and also as indemnity for any loss sustained by any person damaged:
(1) as a result of a violation by the licensee of any provision of the Manufactured Housing Act or of any [regulation] rule of the division adopted pursuant to that act;
(2) as a result of a violation of any [regulation] rule adopted by the division;
(3) by fraud of a licensee in the execution or performance of a contract; or
(4) by misrepresentation or the making of false promises through the advertising or the agents of a licensee.
B. The consumer protection bond may include provisions for the indemnification for any loss sustained by any consumer as the result of the refusal, failure or inability to transfer good and sufficient legal title to the consumer by the transferor or any other party claiming title.
C. The committee may attach and disburse for cause any consumer protection bond furnished to the division pursuant to this section. The division [subject to the approval of the committee] shall adopt the necessary rules [and regulations] to administer the provisions of this section."
SECTION 4. Section 60-14-7 NMSA 1978 (being Laws 1975, Chapter 331, Section 8, as amended) is amended to read:
"60-14-7. LICENSE REQUIRED--CLASSIFICATION--EXAMINATION.--
A. No person shall engage in business as a manufacturer, dealer, broker, repairman, installer or salesperson unless licensed as provided in the Manufactured Housing Act.
B. The [committee] division shall adopt [regulations] rules creating a system of license classifications covering the occupations of dealer, broker, manufacturer, repairman, installer and salesperson and providing for the qualifications and examination for each class of license.
C. No person shall import for sale or exchange, or engage in the business of selling, leasing or exchanging or offering for sale, lease or exchange, any manufactured home manufactured by any person who is not licensed as a manufacturer under the Manufactured Housing Act."
SECTION 5. Section 60-14-9 NMSA 1978 (being Laws 1975, Chapter 331, Section 9, as amended) is amended to read:
"60-14-9. LICENSE--APPLICATION--ISSUANCE.--
A. Application for a license required under Section 60-14-7 NMSA 1978 for one of the classified occupations, or for a certificate of qualification of a qualifying party of a licensee other than an individual licensee, shall be submitted to the division on forms prescribed and furnished by the division. The application shall contain such information and be accompanied by such attachments as are required by [regulations] rules of the division. The forms shall be accompanied by the prescribed fee.
B. No license shall be issued by the division to [any] a person unless the division is satisfied that [he] the person is or has in [his] the person's employ a qualifying party who is qualified for the classification for which the application is made and who has satisfied the requirements of Subsection C of this section.
C. An applicant for licensure shall:
(1) demonstrate financial responsibility as required by [regulations] rules of the [committee] division;
(2) be of good reputation;
(3) not have engaged illegally in the licensed classification that [he] the applicant is applying for within one year prior to making the application;
(4) demonstrate familiarity with the rules [and regulations] adopted by the [committee] division concerning the classification for which application is made;
(5) if a corporation, have complied with the laws of New Mexico regarding qualifications for doing business in this state or have been incorporated in New Mexico and have and maintain a registered agent and a registered office in this state;
(6) if an individual or partnership, have maintained a residence or street address in New Mexico for at least thirty days preceding the date of application;
(7) submit proof of registration with the [revenue division of the] taxation and revenue department and submit a current tax identification number; and
(8) personally or through the applicant's qualifying party successfully pass an examination administered by the division in the license classification for which application is made."
SECTION 6. Section 60-14-10 NMSA 1978 (being Laws 1975, Chapter 331, Section 10, as amended) is amended to read:
"60-14-10. QUALIFYING PARTY--EXAMINATION--CERTIFICATE.--
A. Except as provided in Subsection C of this section, no certificate of qualification shall be issued to [any individual] a person desiring to be a qualifying party until [he] the person has passed with a satisfactory score an examination prepared, administered and graded by the division.
B. The examination where applicable shall consist of:
(1) general business knowledge, the rules [and regulations] of the division [and committee] and the provisions of the Manufactured Housing Act;
(2) technical knowledge and familiarity with the prescribed codes and minimum standards, which may be prepared and administered by an employee of the division who is expert in the particular classification for which certification is sought; and
(3) general knowledge of the statutes of this state relating to the sale, exchange or lease of manufactured homes, contracts of sale, agency and brokerage.
C. If a licensee is subject to suspension by the committee for failure of the licensee to have a qualifying party in [his] the licensee's employ, and the employment of the qualifying party is terminated without fault of the licensee, then an employee of the licensee who is experienced in the classification for which the certificate of qualification was issued and who has been employed two or more years by the licensee shall be issued without examination a temporary certificate of qualification in the classification for which the licensee is licensed. The temporary qualifying party shall be subject to passing the examination as set forth in this section within one year from the date of the temporary certificate's issuance.
D. A certificate of qualification is not transferable."
SECTION 7. Section 60-14-12 NMSA 1978 (being Laws 1975, Chapter 331, Section 12, as amended) is amended to read:
"60-14-12. SUSPENSION AND REVOCATION.--Any license or certificate of qualification issued by the division shall be suspended for a definite period or revoked under the procedures of the Uniform Licensing Act by the committee for any of the following causes:
A. if a licensee or a qualifying party of a licensee violates any provision of the Manufactured Housing Act or any [regulations] rules adopted by the division [or committee] pursuant to that act;
B. false, misleading or deceptive advertising;
C. knowingly contracting or performing a service beyond the scope of the license;
D. misrepresentation of a material fact by the applicant in obtaining a license or certificate;
E. misrepresentation or omission of a material fact in any manufactured home transaction;
F. failure to comply with the warranty requirements of the Manufactured Housing Act or any [regulation] rule of the [committee] division pursuant to those requirements;
G. failure by a manufacturer or dealer to transfer good and sufficient title to the purchaser of a manufactured home;
H. failure by a broker or dealer to provide the buyer and the seller of a pre-owned manufactured home with a closing statement as required by [regulation] rule of the [committee] division;
I. conviction of a licensee or a qualifying party of a licensee in any court of competent jurisdiction of a felony or any offense involving moral turpitude; or
J. failure by a dealer or broker in the transfer of a pre-owned manufactured home not owned at the time of the transaction by the dealer or broker to comply with title transfer provisions set forth by [regulation] rule of the division."
SECTION 8. Section 60-14-15 NMSA 1978 (being Laws 1975, Chapter 331, Section 23, as amended) is amended to read:
"60-14-15. [COMMITTEE AND DIVISION] CONSUMER COMPLAINTS--ORDERS--SUSPENSION--REVOCATION.--In addition to the other duties imposed on the [committee and] division under the Manufactured Housing Act, the [committee and] division shall receive complaints from any consumer who claims to be harmed by [any] a licensee and shall attempt to have the complaints adjusted to the reasonable satisfaction of the consumer. If the [committee or] division cannot secure a proper adjustment, the [committee or] division shall prepare a formal complaint for the consumer, and, pursuant to the provisions of the Uniform Licensing Act, the committee shall determine whether the licensee is in violation of the Manufactured Housing Act or of rules [and regulations] promulgated under that act. If the licensee is in violation of the Manufactured Housing Act or of the rules [and regulations] promulgated under that act, the committee may order [him] the licensee to comply, may suspend [his] the licensee's license until such time as the licensee complies with the order of the committee or may revoke [his] the license."
SECTION 9. Section 60-14-18 NMSA 1978 (being Laws 1979, Chapter 400, Section 2, as amended) is amended to read:
"60-14-18. [COMMITTEE OR] DIVISION--POWERS OF INJUNCTIONS--MANDAMUS.--The division [or committee] may enforce the provisions of the Manufactured Housing Act by injunction, mandamus or any proper legal proceeding in the district court of the county in which the offense was committed."
SECTION 10. TEMPORARY PROVISION--RULES.--The rules of the manufactured housing committee shall be deemed to be the rules of the manufactured housing division of the regulation and licensing department until amended or repealed by the division.
SECTION 11. REPEAL.--Section 9-16-13 NMSA 1978 (being Laws 1983, Chapter 297, Section 29) is repealed.
SECTION 12. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2011.
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