Provides for the certification and training of persons employed in the manufacture, sale, installation and repair of modular homes; establishes dispute resolution procedures in the modular home industry.
STATE OF NEW YORK
________________________________________________________________________
2382
2011-2012 Regular Sessions
IN ASSEMBLY
January 18, 2011
___________
Introduced by M. of A. DESTITO -- read once and referred to the Commit-
tee on Governmental Operations
AN ACT to amend the executive law, in relation to providing for the
certification and training of persons employed in the manufacture,
sale, installation and repair of modular homes and establishing
dispute resolution procedures in the modular home industry
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Article 21-B of the executive law, as added by chapter 729
2 of the laws of 2005, is amended to read as follows:
3 ARTICLE 21-B
4 MANUFACTURED AND MODULAR HOMES
5 Section 600. Application.
6 601. Definitions.
7 602. Certification required.
8 603. Warranty seals; notice to the department.
9 604. Powers of the department.
10 605. Resolution of disputes regarding manufactured and modular
11 homes.
12 606. Training and continuing education.
13 607. Penalties for violation of this article.
14 608. Fees.
15 609. State administrative agency requirements.
16 610. State certified installers.
17 611. Manufactured and modular housing advisory council.
18 612. Powers and duties of the advisory council.
19 § 600. Application. This article shall be applicable to persons and
20 business entities engaged in the manufacture, sale, installation and
21 service of manufactured or modular homes and to purchasers thereof.
22 § 601. Definitions. For the purposes of this article the following
23 terms shall have the following meanings:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06150-01-1
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1 1. "Business entity" means a corporation, association, partnership,
2 limited liability company, limited liability partnership, or other legal
3 entity.
4 2. "Delivered condition" means the physical condition of the home
5 after delivery and installation at the home site has been completed.
6 3. "Department" means the department of state.
7 4. "Installation" means:
8 (a) the affixation of a manufactured or modular home to a foundation
9 or supports at a building site;
10 (b) the assembly and fastening of structural components of manufac-
11 tured or modular housing, including the completed roof system; and
12 (c) the connection to electrical, oil, water, gas, sewage and similar
13 systems that are necessary for the use of the manufactured or modular
14 home for dwelling purposes.
15 5. "Installer" means any person or business entity, including, but not
16 limited to, a retailer or mechanic, who installs or sets up a manufac-
17 tured or modular home for a buyer.
18 6. "Lending entity" means a financial institution, mortgage lender or
19 other individual or entity that holds a mortgage or other security
20 interest in a manufactured or modular home, such home being the subject
21 of a complaint filed with the department pursuant to the provisions of
22 this article.
23 7. "Manufactured home" means a structure, transportable in one or more
24 sections, which, in the traveling mode, is eight body feet or more in
25 width or forty body feet or more in length, or, when erected on site, is
26 three hundred twenty or more square feet, and which is built on a perma-
27 nent chassis and designed to be used as a dwelling with or without a
28 permanent foundation when connected to the required utilities, and
29 includes the plumbing, heating, air-conditioning, and electrical systems
30 contained therein. The term shall include any structure that meets all
31 of the requirements of this subdivision except the size requirements and
32 with respect to which the manufacturer voluntarily files a certification
33 required by the United States secretary of housing and urban development
34 and complies with the standards established under Title 42 of the United
35 States code; and except that such term shall not include any self-pro-
36 pelled recreational vehicle.
37 8. "Manufacturer" means any person or business entity engaged in manu-
38 facturing or producing manufactured or modular homes.
39 9. "Mechanic" means any person or business entity engaged in the busi-
40 ness of performing service on or installing manufactured or modular
41 housing.
42 10. "Retailer" means any person or business entity engaged in the
43 retail selling or offering for sale, brokering or distribution of manu-
44 factured or modular homes, primarily to a person who, in good faith,
45 purchases these homes for purposes other than resale.
46 11. "Secretary" means the secretary of state.
47 12. "Service" means the modification, alteration or repair of the
48 structural systems of a manufactured or modular home.
49 13. "State administrative agency" or "SAA" means the department of
50 state which has been approved to carry out the state plan and enforce
51 the national manufactured housing construction and safety standards act
52 (42 USC 5401, et seq.) within the state of New York, and that office
53 within the department of state that has been designated by the secretary
54 to perform such duties.
55 14. "Advisory council" shall mean the manufactured and modular housing
56 advisory council.
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1 15. "Modular home" means any building or closed construction, regard-
2 less of type of construction or occupancy classification, other than a
3 mobile or manufactured home, constructed off-site in accordance with the
4 applicable codes, and transported to the point of use for installation
5 or erection.
6 § 602. Certification required. 1. On and after July first, two thou-
7 sand six, no person or business entity shall manufacture, including the
8 manufacture outside the state of New York for sale into the state of New
9 York, sell, install or service any manufactured home in the state of New
10 York, unless such person or business entity has obtained the appropriate
11 certification from the department pursuant to this article. On and
12 after July first next succeeding the effective date of the chapter of
13 the laws of two thousand eleven which amended this section, no person or
14 business entity shall manufacture, including the manufacture outside the
15 state of New York for sale into the state of New York, sell, install or
16 service any modular home in the state of New York, unless such person or
17 business entity has obtained the appropriate certification from the
18 department pursuant to this article.
19 2. On and after July first, two thousand six, no manufactured home
20 shall be installed or serviced unless at least one person certified by
21 the department to perform such work is present at the home site during
22 the installation or service. On and after July first next succeeding
23 the effective date of the chapter of the laws of two thousand eleven
24 which amended this section, no modular home shall be installed or
25 serviced unless at least one person certified by the department to
26 perform such work is present at the home site during the installation or
27 service.
28 3. a. Each manufacturing plant that delivers or sells manufactured or
29 modular homes in this state, each retail sales location and each busi-
30 ness entity selling, installing or performing service on manufactured or
31 modular homes must be separately certified.
32 b. Each manufacturer, retailer, installer and mechanic shall employ at
33 least one person who has been certified by the department.
34 4. Manufacturers approved to construct manufactured or modular homes
35 by the United States department of housing and urban development shall
36 be required to apply for, and obtain, certification pursuant to this
37 article. Any such manufacturer shall be deemed to meet the requirements
38 for certification under this article, except that the department may,
39 after a hearing, suspend or revoke the certification of any manufacturer
40 as provided in subdivision seven of section six hundred four of this
41 article.
42 § 603. Warranty seals; notice to the department. 1. Before a manufac-
43 tured or modular home may be installed in this state, the manufacturer
44 shall obtain from the department a New York state manufacturer's warran-
45 ty seal and attach the seal to the manufactured or modular home in the
46 manner to be prescribed by the department.
47 2. Before a manufactured or modular home may be installed in this
48 state, the installer shall obtain from the department a New York state
49 installer's warranty seal and attach the seal to the manufactured or
50 modular home in the manner prescribed by the department.
51 3. On a quarterly basis, every installer shall report to the depart-
52 ment all installations completed by that person or business entity
53 during the designated reporting period. The report shall be on a form
54 provided by the department and must include the location of each unit of
55 manufactured or modular housing, the owner of each unit at the time of
56 installation, the type or model of the unit, the manufacturer of the
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1 unit, written certification that the installation meets the standards of
2 the New York state uniform fire prevention and building code and the
3 name and address of the manufacturer, retailer, mechanic or installer
4 completing the notice.
5 § 604. Powers of the department. The department shall have the follow-
6 ing powers and duties with respect to manufactured and modular housing:
7 1. To create and maintain a registry accessible to the public which
8 shall include, but not be limited to the following information:
9 (a) a listing of certified manufacturers, retailers, installers and
10 mechanics of manufactured or modular homes; and
11 (b) records of all violations issued, disciplinary action taken and
12 penalties paid and levied pursuant to this article;
13 2. To retain records and all application materials submitted to it;
14 3. To receive complaints, conduct investigations and establish proce-
15 dures for the resolution of disputes relating to the construction,
16 installation, or servicing of manufactured or modular homes and to
17 resolve such complaints and disputes pursuant to section six hundred
18 five of this article;
19 4. To establish administrative procedures for processing applications
20 for certification of persons and business entities required to be certi-
21 fied pursuant to this article; to receive such applications; to approve
22 or disapprove applications for certifications; and to issue certif-
23 icates;
24 5. To promulgate rules and regulations relating to the provisions of
25 this article;
26 6. To conduct adjudicatory hearings, pursuant to the state administra-
27 tive procedure act to resolve violations of this article and the rules
28 and regulations promulgated thereunder;
29 7. To suspend and revoke certificates, and impose such other penalties
30 as may be authorized pursuant to this article. The department may revoke
31 or suspend the certification of a person or business entity certified
32 pursuant to this article for a substantial violation of this article, or
33 for a material misstatement in the application for such certification,
34 or if such person or business entity is guilty of fraud or fraudulent
35 practices, or of dishonest or misleading advertising, or has demon-
36 strated untrustworthiness or incompetency to conduct the certified
37 activity or fails to comply with a decision issued pursuant to section
38 six hundred five of this article;
39 8. To seek injunctive relief in the supreme court in the county where
40 the complainant resides;
41 9. To promulgate rules and regulations establishing the standards for
42 certification of manufacturers, retailers, installers and mechanics
43 pursuant to this article. In establishing such standards, the department
44 shall provide for minimum requirements of experience and education as
45 may be necessary to protect the public interest. Such standards shall
46 also include a requirement for initial training of installers and
47 mechanics seeking certification by the department. In establishing stan-
48 dards, the department shall recognize certifications or licenses
49 obtained in other states without requiring additional initial educa-
50 tional testing, provided that the requirements for certification or
51 licensing in such other states are comparable to the requirements for
52 certification in the state of New York and provided further, that the
53 individual or entity seeking certification otherwise meets the quali-
54 fications for certification in the state of New York;
55 10. To promulgate rules and regulations to require bonding, minimum
56 capital requirements or other reasonable methods to ensure that manufac-
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1 turers, retailers, installers and mechanics are financially responsible
2 to fully comply with this article and have the financial resources to
3 meet their warranty, contractual and other obligations. In connection
4 therewith, the department may require the posting of surety bonds to
5 ensure the satisfactory completion of the installation or service; and
6 11. a. To promulgate rules and regulations regarding the development
7 and approval of courses and seminars required for original certification
8 and to establish requirements for continuing education for persons
9 certified pursuant to this article. Such regulations shall at a minimum
10 require that certified installers and mechanics attend courses and semi-
11 nars relating to the proper methods of installation and servicing manu-
12 factured or modular homes not less than once every three years.
13 b. Instructional services for courses leading to original certif-
14 ication or qualifying for continuing education may be provided either by
15 the department, a private trade association or other entity which has
16 been approved as an instructional provider by the department and has
17 paid the appropriate fee prescribed by rules and regulations promulgated
18 under this section. Approved instructional providers shall be permitted
19 to charge a fee for such services, not to exceed the maximum amount
20 prescribed by the rules and regulations. Persons electing to have the
21 continuing education instructional services provided by the department,
22 shall pay for such services in accordance with fee schedules established
23 by the department.
24 c. Fees charged by the department for approving or providing instruc-
25 tional services shall be deposited in the department account established
26 pursuant to section six hundred eight of this article.
27 12. To create and maintain a consumer awareness pamphlet, in conjunc-
28 tion with the advisory council, to include, but not be limited to,
29 detailing the certification process, installer selection rights, the
30 dispute resolution process, the differences between the types of hous-
31 ing, and other consumer protection issues. Such pamphlet shall be avail-
32 able to the public, and published on the department's website.
33 § 605. Resolution of disputes regarding manufactured and modular
34 homes. 1. Any homeowner, retailer, manufacturer, installer, mechanic or
35 lending entity may file a complaint with the department as a state
36 administrative agency seeking resolution of an allegation that a
37 substantial defect exists in the delivered condition, installation,
38 service or construction of a manufactured or modular home. The depart-
39 ment shall promulgate forms for such complaints which forms shall also
40 be available on the department's [web-site] website. For the purpose of
41 this article, a substantial defect shall be a defect or a number of
42 defects or other conditions which collectively can reasonably be
43 expected to cost five hundred dollars or more to cure.
44 2. Complaints relating to the delivered condition, installation,
45 service or construction of a manufactured or modular home shall be made
46 within one year and ten days after the date of the service, installation
47 or issuance of a certificate of occupancy, or the expiration of any
48 applicable provision of a contract or warranty, whichever is later.
49 3. (a) Upon the department's determination that a complaint, on its
50 face, alleges a substantial defect in the delivered condition, installa-
51 tion, service, or construction of a manufactured or modular home, the
52 department shall notify the homeowner, manufacturer, retailer, mechanic
53 and installer, as appropriate.
54 (b) Initially, the department may attempt to informally resolve the
55 complaint. If informal resolution of the complaint is unsuccessful, the
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1 department shall resolve such complaints and disputes by administrative
2 hearing, pursuant to the state administrative procedure act.
3 (c) The decision shall provide compensation to the aggrieved party in
4 an amount which shall include, but not be limited to:
5 (i) Filing and recording fees, inspection fees and other required
6 costs that the aggrieved party would not have incurred had the home met
7 applicable standards; and
8 (ii) The cost of conforming repairs or replacements.
9 (d) The department may apportion liability between two or more parties
10 or business entities where appropriate.
11 (e) The decision resolving the complaint shall be in writing and shall
12 provide the reason therefor, a copy of the decision shall be provided to
13 all interested parties.
14 (f) The department may require, as a condition of receiving and
15 retaining any certification pursuant to this article, that an applicant
16 agrees to submit to the jurisdiction of the department in connection
17 with the resolution of complaints and disputes and agrees to be bound by
18 the department's determination subject to any administrative and judi-
19 cial review provided for in this article.
20 (g) Any party may seek judicial review of the administrative determi-
21 nation pursuant to article seventy-eight of the civil practice law and
22 rules.
23 § 606. Training and continuing education. 1. Beginning January first,
24 two thousand six, all persons certified as an installer or mechanic,
25 must obtain initial training, including, but not limited to the stand-
26 ards for proper installation of a manufactured home. Beginning January
27 first next succeeding the effective date of the chapter of the laws of
28 two thousand eleven which amended this section, all persons certified as
29 an installer or mechanic, must obtain initial training, including, but
30 not limited to the standards for proper installation of a modular home.
31 Such training shall be provided in courses and seminars approved pursu-
32 ant to this article.
33 2. All persons certified under this article shall be required to
34 attend continuing education courses and seminars not less than once
35 every three years.
36 § 607. Penalties for violation of this article. Any person or business
37 entity found guilty, after a hearing, of a violation of this article,
38 except for the provisions of section six hundred nine of this article,
39 may be required to pay a civil penalty of not more than one thousand
40 dollars for each such violation, but not more than five thousand dollars
41 for more than one violation relating to each home. Such fine shall be
42 collected and deposited in the state's general fund. In addition to the
43 penalties set forth in this section, the secretary shall also have the
44 power to suspend or revoke licenses pursuant to section six hundred four
45 of this article.
46 § 608. Fees. The department shall, by regulation, establish reasonable
47 fees for obtaining certification, obtaining warranty and installation
48 seals and for instructional services, training and continuing education
49 pursuant to this article. Such fees shall be paid and deposited into a
50 segregated account established within the department which shall be used
51 exclusively to defray the administrative expenses associated with carry-
52 ing out the provisions of this article.
53 § 609. State administrative agency requirements. 1. In carrying out
54 its responsibilities and obligations pursuant to 42 USC 5401, et seq.,
55 the department, by authorized representatives, may enter, at reasonable
56 times, any factory, warehouse or establishment in which manufactured or
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1 modular housing is manufactured, stored, or held for sale for the
2 purpose of ascertaining whether the requirements of the federal manufac-
3 tured housing construction and safety standards act, the provisions of
4 this article and the rules of the department are being met. The depart-
5 ment's authority to enter and inspect shall be no less than the authori-
6 ty provided in 42 USC 5413.
7 2. Each manufacturer and retailer of manufactured or modular housing
8 constructed under the federal standards and any other party or entity
9 covered by chapter 10 of title 42 of the United States Code shall be
10 subject to and comply with all applicable provisions of said laws any
11 violation of which shall be deemed a violation of this section.
12 3. The department by authorized representative, shall have all of the
13 powers granted to the secretary of housing and urban development as
14 provided in chapter 10 of title 42 of the United States Code with
15 respect to the enforcement of manufactured home safety and construction
16 standards promulgated under 42 USC 5403.
17 4. The department is authorized to impose and collect fees to be paid
18 by manufacturers in amounts adequate to cover the costs of inspections
19 conducted pursuant to the provisions of this article. Such fees shall be
20 deposited in the department account established pursuant to section six
21 hundred eight of this article.
22 5. (a) A manufacturer or retailer of manufactured or modular housing
23 who violates any of the provisions set forth in this section relating to
24 manufactured or modular housing or rules adopted by the department,
25 including provisions of the New York state uniform fire prevention and
26 building code relating to manufactured or modular housing, is subject to
27 a civil penalty not to exceed one thousand one hundred dollars for each
28 violation. Each violation constitutes a separate violation with respect
29 to each manufactured or modular housing unit, except that the maximum
30 penalty may not exceed one million one hundred thousand dollars for any
31 related series of violations occurring within one year from the date of
32 the first violation.
33 (b) An individual or a director, officer, or agent of a corporation or
34 a principal [on] of a business entity who knowingly and willfully
35 violates 42 USC 5409 in a manner which threatens the health or safety of
36 any purchaser shall be fined not more than one thousand dollars or
37 imprisoned not more than one year or both.
38 (c)(i) The department may enforce the provisions of this article and
39 may impose civil penalties administratively;
40 (ii) Nothing in this article shall limit the powers and duties of the
41 attorney general, as defined in section sixty-three of this chapter; and
42 (iii) Nothing in this article shall diminish or limit any other right
43 or cause of action existing under any other provision of law.
44 § 610. State certified installers. Manufacturers and retailers may as
45 a condition of the sale of a manufactured or modular home require that
46 the home be installed by a state certified installer and may recommend a
47 particular installer or installers. Manufacturers shall not void a
48 warranty for a manufactured or modular home if the [home buyer] homebuy-
49 er utilizes a state certified installer. It shall be a violation of this
50 article to restrict a homebuyer from using any state certified installer
51 chosen by the homebuyer, or to void a warranty for a manufactured or
52 modular home if the homebuyer utilizes a state certified installer.
53 § 611. Manufactured and modular housing advisory council. 1. There is
54 hereby established within the department a manufactured and modular
55 housing advisory council. The advisory council shall consist of fifteen
56 members to be appointed as follows:
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1 a. Four members shall be appointed by the governor; one of whom shall
2 be a member, officer, or employee of an installer, one of whom shall be
3 a member, officer, or employee of a park residence advocacy association,
4 one of whom shall be a member, officer, or employee of a retailer, and
5 one of whom shall be a member, officer, or employee of a trade associ-
6 ation representing the manufactured or modular home industry.
7 b. Four members shall be appointed by the temporary president of the
8 senate; one of whom shall be a member, officer, or employee of a
9 manufacturer, one of whom shall be a member, officer, or employee of the
10 engineering industry involved in manufactured or modular housing issues,
11 one of whom shall be a member, officer, or employee of a consumer advo-
12 cacy association involved in manufactured or modular housing issues, and
13 one of whom shall be a manufactured or modular housing resident owner.
14 c. Four members shall be appointed by the speaker of the assembly; one
15 of whom shall be a member, officer, or employee of a manufacturer, one
16 of whom shall be a member, officer, or employee of the banking industry
17 involved in manufactured or modular housing issues, one of whom shall be
18 a member, officer, or employee of a consumer advocacy association
19 involved in manufactured or modular housing issues, and one of whom
20 shall be a manufactured or modular housing resident owner.
21 d. One member shall be appointed by the minority leader of the senate;
22 who shall be a manufactured or modular home resident owner.
23 e. One member shall be appointed by the minority leader of the assem-
24 bly; who shall be a manufactured or modular home resident owner.
25 2. The secretary shall be a member of the advisory council and shall
26 serve as chair to the council.
27 § 612. Powers and duties of the advisory council. The advisory council
28 shall have the following functions, powers, and duties:
29 1. To assist in the development of certification requirements and
30 fees, warranty seal requirements and fees, and warranty standards for
31 manufacturers and installers;
32 2. To assist in the development of training and continuing education
33 requirements;
34 3. To assist in the creation of a consumer awareness pamphlet detail-
35 ing the certification process and resolution of dispute process. The
36 pamphlet shall also explain the differences between types of houses
37 (mobile, modular and manufactured);
38 4. To examine consumer protection issues, including but not limited
39 to, manufactured and modular housing financing and sales practices;
40 5. To examine the differences of manufactured and modular housing
41 regulations and make recommendations to the department and the legisla-
42 ture on an annual basis; and
43 6. To submit annual reports by December thirty-first, two thousand six
44 and each year thereafter, to the governor, the temporary president of
45 the senate and the speaker of the assembly that details the recommenda-
46 tions of the advisory council regarding manufactured and modular housing
47 in New York state. The advisory council shall, as part of its report,
48 detail the number of complaints received by the department and the
49 number of disputes resolved through the department.
50 § 2. This act shall take effect January 1 next succeeding the date on
51 which it shall have become a law, provided that the department of state
52 shall immediately be authorized and empowered to take such steps,
53 including the promulgation of rules and regulations, as may be necessary
54 for the proper implementation of this act on such effective date.
