This chapter shall be known as "An Ordinance to Require the
Licensing of Building Contractors Performing Work in the City of Mount
Vernon."
It is hereby declared to be the policy of the City of Mount
Vernon, in order to protect the safety and welfare of its inhabitants
and for the protection and security of their property, that all home
improvement and building contractors performing work in the City of
Mount Vernon shall hereinafter be licensed. The provisions and prohibitions
hereinafter contained and enacted are for the above-mentioned purpose.
As used in this chapter, the following terms shall have the
meanings indicated:
BUILDING
Any structure containing no more than four residence or dwelling
units.
CONTRACTOR
Any person or salesman, other than a bona fide employee of
the owner, who owns, operates, maintains, conducts, controls or transacts
a home improvement business and who undertakes or offers to undertake
or agrees to perform any home improvement or solicits any contract
therefor, whether or not such person is licensed or subject to the
licensing requirements of this chapter and whether or not such person
is a prime contractor or subcontractor with respect to the owner.
HOME IMPROVEMENT
The construction, repair, replacement, remodeling, alteration,
conversion, rehabilitation, renovation, modernization, improvement
or addition to any land or building or that portion thereof which
is used or designed to be used as a residence or dwelling place and
shall include, but not be limited to, the construction, erection,
replacement or improvement of driveways, swimming pools, terraces,
patios, landscaping, fences, porches, garages, fallout shelters, basements
and other improvements to structures or upon land which is adjacent
to a dwelling house. "Home improvement" shall not include the construction
of a new home building or work done by a contractor in compliance
with a guaranty of completion of a new building project; or 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;
or residences owned by or controlled by the state or any municipal
subdivision thereof; or the painting or decorating of a building,
residence, home or apartment, when not incidental or related to "home
improvement" work as herein defined. Without regard to the extent
of affixation, "home improvement" shall also include the installation
of central-heating or air-conditioning systems, central vacuum-cleaning
systems, storm windows, awnings or fire or burglar alarms or communication
systems.
HOME IMPROVEMENT CONTRACT
An agreement, whether oral or written or contained in one
or more documents, between a contractor and an owner, or contractor
and a tenant, regardless of the number of residence or dwelling units
contained in the building in which the tenant resides, provided that
said work is to be performed in, to or upon the residence or dwelling
unit of such tenant for the performance of a home improvement and
includes all labor, services and materials to be furnished and performed
thereunder.
LICENSEE
A person permitted to engage in the home improvement business
under the provisions of this chapter.
OWNER
Any homeowner, cooperative or condominium unit owner, tenant
or any other person who orders contracts for or purchases the home
improvement services of a contractor or the person entitled to the
performance of the work of a contractor pursuant to a home improvement
contract.
PERSON
An individual, firm, company, salesman, partnership or corporation,
trade group or association.
SALESMAN
Any individual who negotiates or offers to negotiate a home
improvement contract with an owner or solicits or otherwise endeavors
to procure in person a home improvement contract from an owner on
behalf of a contractor, or for himself should the salesman be also
the contractor, whether or not such person is licensed or subject
to the licensing requirements of this chapter.
The Commissioner may make such rules and regulations not inconsistent
with the provisions of this chapter as may be necessary with respect
to the form and content of applications for licenses, the reception
thereof, the investigation and examination of applicants and their
qualifications and the other matters incidental or appropriate to
his powers and duties, as prescribed by this chapter, and for the
proper administration and enforcement of the provisions of this chapter
and to amend or repeal any such rules and obligations.
The Commissioner shall have the power to suspend or revoke a
license or deny an application for the renewal of a license for any
one or more of the following causes:
A. Fraud, misrepresentation, bribery in securing a license.
B. The making of any false statement as to a material matter in any
application for a license.
C. The person or the management personnel of the contractor are untrustworthy
and not of good character.
D. The business transactions of the contractor have been or are marked
by a practice of failure to timely perform or complete its contracts
or by the manipulation of assets or accounts or by fraud or bad faith
or are marked by an unwholesome method of practice of solicitation
of business from owners.
E. Failure to display the license as provided in this chapter.
F. Failure to comply with any demand or requirement lawfully made by
the Commissioner.
G. When an agent or employee of a licensee has been guilty of an act
or omission, fraud, misrepresentation and the licensee has approved
or had knowledge thereof.
H. Violation of any provision of this chapter or any rule or regulation
adopted hereunder or for performing or attempting to perform any act
prohibited by this chapter.
The following acts are prohibited:
A. Abandonment or willful failure to perform, without justification,
any home improvement contract or project engaged in or undertaken
by a contractor; or willful deviation from or disregard of plans or
specifications in any material respect without the consent of the
owner.
B. Making any substantial misrepresentation in the solicitation or procurement
of a home improvement contract or making any false promise of character
likely to influence, persuade or induce.
C. Any fraud in the execution of or in the material alteration of any
contract, mortgage, promissory note or other document incident to
a home improvement transaction.
D. Willful failure to comply with any order, demand, rule, regulation
or requirement made by the Commissioner pursuant to provisions of
this chapter.
No contractor's license shall be required in the following
instances:
A. An individual who performs labor or services for a contractor for
wages or salary.
B. A plumber, electrician, architect, professional engineer or any other
such person who is required by state or City law to attain standards
of competency or experience as a prerequisite to engaging in such
craft or profession and who is acting exclusively within the scope
of the craft or profession for which he is currently licensed pursuant
to such other law.
C. Any retail Clerk, clerical, administrative or other employee of a
licensed contractor, as to a transaction on the premises of the contractor.
D. This chapter shall not apply to or affect the validity of a home
improvement contract, otherwise within the purview of this chapter,
which is made prior to the effective date of the respective provisions
of this chapter governing such contracts.
E. Any home improvement where the aggregate contract price for all labor
materials and other items is less than $200. This exemption does not
apply where the work is only part of a larger or major operation,
whether undertaken by the same or a different contractor, or in which
a division of the operation is made in contracts of amounts less than
$200 for the purpose of evasion of this provision or otherwise.
The Commissioner, if, upon reasonable cause, he should believe
that any licensee or any other person has violated any of the provisions
of this chapter or any other law relating to home improvement business,
shall have the power to make such investigation as he shall deem necessary,
and to the extent necessary for this purpose, he may examine such
licensee or any other persons and shall have the power to compel the
production of all relevant books, records, accounts, documents or
other records.
The officers and inspectors of the Mount Vernon Building Department
and the Office of Consumer Protection are authorized to issue and
serve appearance tickets for any violation of this chapter.
No license shall be suspended or revoked nor fine imposed until
after a hearing had before an officer or employee of the department
designated for such purpose by the Commissioner upon notice to the
licensee of at least 10 days. The notice shall be served either personally
or by registered mail and shall state the date and place of hearing
and set forth the ground or grounds constituting the charges against
the licensee. The licensee or registrant shall be heard in his defense,
either in person or by counsel, and may produce witnesses and testify
in his behalf. A record of the hearing shall be taken and preserved.
The hearing may be adjourned from time to time. The person conducting
the hearing shall make a written report of his findings and a recommendation
to the Commissioner for decision. The Commissioner shall review such
findings and the recommendation and, after due deliberation, shall
issue an order accepting, modifying or rejecting such recommendation
and dismissing the charges or suspending or revoking the license.
For the purpose of this chapter, the Commissioner or his designee
may administer oaths, take testimony, subpoena witnesses and compel
the production of books, papers, records and documents deemed pertinent
to the subject of investigation.
The action of the Commissioner in suspending, revoking or refusing
to issue or renew a license may be reviewed by a proceeding brought
under and pursuant to Article 78 of the Civil Practice Law and Rules.
The official acts of the Commissioner and the department shall
be prima facie evidence of the facts therein and shall be entitled
to be received in evidence in all actions at law and other legal proceedings
in any court or before any agency, board, body or officer.
If any part or provision of this chapter for the application
thereof to any person or circumstances be ajudged invalid by any court
of competent jurisdiction, such judgment shall be confined in its
operation to the part, provision or application directly involved
in the controversy in which such judgment shall have been rendered
and shall not affect or impair the validity of the remainder of this
chapter or the application thereof to other persons or circumstances,
and the Council hereby declares that it would have enacted this chapter
or the remainder thereof had the invalidity of such provision or application
thereof been apparent.
This chapter shall take effect on August 15, 1984.