16 TAC §§75.10, 75.20-75.23, 75.25, 75.30, 75.40, 75.60, 75.65, 75.70, 75.80, and 75.100
The Texas Department of Licensing and Regulation adopts amendments
§§75.10, 75.20-75.23, 75.25, 75.30, 75.40, 75.60, 75.65, 75.70,
75.80, and 75.100, concerning licensing for air conditioning and refrigeration
contractors. Sections 75.10, 75.20, 75.21, 75.25, 75.65, and 75.70 are adopted
with changes to the proposed text as published in the September 3, 1996,
issue of the
Texas Register
. Sections 75.22,
75.23, 75.30, 75.40, 75.60, 75.80, and 75.100 are adopted without changes
and will not be republished.
The changes in §75.10 redefine assumed name to match the definition
in the Business and Commerce Code, show the revised location of the Texas
Boiler Law in the Health and Safety Code, clarify the definition of a Permanent
Office, and add definitions of "contracting" and of "proper installation".
The changes in §75.20 make the language clearer and conform to changes
in other statutes. The changes in §75.21 make the language clearer,
changes the period that an exam grade provides eligibility for licensing
from two years to six months, and changes the period within which a rescheduled
or canceled exam must be taken from two years to one year.
The changes in §75.22 make it unlawful to advertise or use a license
number not assigned to the person or organization and delete grandfathering
language made unnecessary by the passage of time. The changes in §75.23
clarify the language in rules on temporary licenses, and the change in §75.25
corrects wording and changes eligibility to reissue an expired license from
two years to six months.
Section 75.30 is changed by adding subsection (c) exempting certain persons
holding appropriate certifications from work under the jurisdiction of the
Texas Boiler Law and by clarifying language pertaining to exemption for property
owners. The changes in §75.40 simplify the language and specify listing
and acceptability of exclusions from coverage. The change in §75.60
makes language on reference books more understandable and the change in §75.65
changes the title of the person who transmits recommendations from the Advisory
Board to the Commissioner.
The changes in §75.70 clarify meanings and language and add subsections
that explain responsibilities of subcontractors, the responsibility of a
license holder to report to each municipality in which work will be performed,
the responsibilities of license holders who are not owners or officers of
companies, a requirement that the Department name, address and phone number
be shown on every proposal and invoice given to consumers, and a requirement
that license holders identify themselves by use of their identification card
when requested by consumers or any governmental employee. The changes in
§75.80 substitute the term "application" for the term "registration".
The changes in §75.100 make the language in technical sections on boilers
and duct cleaning more understandable.
The justification for the added definitions is that municipalities, contractors,
and employees and subcontractors will have a clearer understanding of the
responsibilities and requirements of licensed contractors. The justification
for the amendment to the period of eligibility for a license after passing
an exam is that rapidly changing technology makes it less likely that an
applicant will still be minimally qualified to have a contractors license
two years after passing an exam, and the justification for requiring that
those canceling or rescheduling exams take the exam within a year is that
the Department has too long a period of liability for extra services under
the present time frame.
The justification for decreasing the time an expired license may be reissued
is that the Department will be able to find those who are continuing to work
illegally more quickly. The justification for making it clear that unauthorized
use of a license not assigned to a person is that the Department needs a
better tool to protect licensed contractors and the public from those who
fraudulently claim to be licensed. The justification for the added exemption
for companies holding certification for boiler work is that requirements
under the Texas Boiler Law are stringent enough that cross-licensing is not
considered necessary if work is performed solely on equipment within Texas
Boiler Law jurisdiction.
The justification for requiring a list of exclusions from insurance coverage
and disallowing certain exclusions is that this will give better protection
to the consumer. The justification for the changes and additions in requirements
of the contractor is that these changes will make it easier for contractors,
municipalities, and the consumer to understand who is responsible for work
performed. The justification for all other changes proposed is to make them
more readable and easier to understand. The amendments will function by increasing
program integrity.
One comment opposing the change in the definition of "Permanent Office"
in §75.10 was received from a large corporation that is a general contractor
as well as an air conditioning and heating contractor. The change as published,
in conjunction with published changes in §75.70, subsections (e) and
(f), would pose undue expenses for such corporations and other such companies.
The Department has amended the language proposed in the definition of "Permanent
Office" and withdrawn the proposed changes in 75.70, subsections (e) and
(f) so that such corporations and companies are not penalized while other
contractors' requirements are left intact. The Department learned after publication
of the proposed rule §75.20 that changes in other statutes made the
language obsolete, and the adopted rule section reflects current law.
The Department received four comments opposing changes to §75.21 and
§75.25 on the grounds that 90 days was too short a period to allow for
obtaining a license after passing an examination and for renewing an expired
license without retaking an examination and suggested changing the time period
to one year or a more reasonable length of time. The Department, with a
recommendation from the Air Conditioning and Refrigeration Contractors Advisory
Board, is changing the proposed 90 day time period to six months.
The Department received one comment on §75.70, subsections (d) and
(i) which relate to the proposed change in the definition of "Permanent Office".
The Department believes that the changed language in the definition also
answers the opposition to the published proposed changes in these two subparagraphs.
The Department received one comment in opposition to the proposed new subsection
(o), now numbered (n), in §75.50. The opposition was based on undue
expense to large companies operating as both a general contractor and an
air conditioning and refrigeration contractor to show the name, address,
and phone number of the Department on all proposals and invoices, since this
would require the use of separate forms for services requiring a license
under the Act. The Department is adding another way to comply for such companies.
The amendments are adopted under Texas Civil Statutes, Article
8861 which authorizes the department to license and regulate air conditioning
and refrigeration contractors.
The Article that is affected by the amendment is Article 8861 as follows.
Rule 75.10-Article 8861, Section 2
Rule 75.20-Article 8861, Section 4
Rule 75.21-Article 8861, Section 4
Rule 75.22-Article 8861, Section 4
Rule 75.23-Article 8861, Section 4D
Rule 75.25-Article 8861, Section 4
Rule 75.30-Article 8861, Section 6
Rule 75.40-Article 8861, Section 3
Rule 75.60-Article 8861, Section 3
Rule 75.65-Article 8861, Section 3A
Rule 75.70-Article 8861, Section 3
Rule 75.80-Article 9100, Section 12
Rule 75.100-Article 8861, Section 3
§75.10. Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise.
Assumed name
-As defined in the Business and Commerce Code,
Title 4, Chapter 36, Subchapter A, §6.02.
Boiler
- As defined in the Health and Safety Code, Title 9,
Subtitle A, Chapter 755.Boilers.
Contracting
- Agreeing to perform work, either verbally or
in writing, either personally or by having an employee or subcontractor perform
the work.
Permanent office
- Any office, branch office, or location
which is authorized to enter into contractual obligations to perform air
conditioning and/or refrigeration contracting work and/or has control or
supervisory responsibility over these contracts. A temporary construction
site or field office from which a job is being supervised is exempt. A location
at which employees of a licensed contractor work under contract to provide
service, maintenance and repair work for a large facility is exempt.
Proper installation
- installing equipment in accordance with:
(A)
municipal ordinances, including pulling all required
permits, complying with all codes adopted by a municipality;
(B)
current Uniform Mechanical Codes or Standard Mechanical
and Standard Gas Codes in areas where no code has been adopted;
(C)
manufacturer's instructions; and
(D)
requirements for safety and the proper performance
of the function for which it was designed.
§75.20. Licensing Requirements - Applications.
(a)
An applicant who wishes to use credit for air conditioning
and refrigeration courses to fulfill up to two years of the required 36
months of experience with the tools of the trade must furnish transcripts
showing:
(1)
a degree in air conditioning engineering, refrigeration
engineering, or mechanical engineering;
(2)
a certificate or diploma in a course emphasizing hands-on
training with the tools of the trade; or
(3)
courses taken without earning a certificate or diploma
emphasizing hands-on training with the tools of the trade. These transcripts
must be from schools authorized or approved by the Texas Workforce Commission,
the U.S. Department of Education, the Coordinating Board of the Texas College
& University System, or other organizations recognized by the Department.
Credit will be allowed at the rate of one month's credit for each two months
of successfully completed training. Thirty semester hours per year is equivalent
to six months credit for experience.
(b)
(No change.)
(c)
The application and examination fees must accompany the
application. The application must be complete and meet all requirements
and must be postmarked not less than 45 days prior to the examination date.
Those received later will be scheduled for the next quarterly examination
period.
§75.21. Licensing Requirements - Examinations.
(a)
A passing grade on all exams shall be 70%. Eligibility
for a license shall last not more than six months from the date of examination
result notification.
(b)
An applicant who does not make a passing grade shall be
eligible for re-examination without reapplying for no more than two years
after the date of the exam, provided the applicant requests reexamination
in writing and pays the reexamination fee. The notice and fees must be received
by the department not less than 45 days prior to the date of the reexamination.
(c)
The department shall notify the applicant of the time and
place the applicant is scheduled for examination(s) at least three weeks
before the examination. Applicants who are scheduled for an examination
but do not appear, and do not request rescheduling must reapply and pay
the application and examination fees.
(d)
An applicant who wishes to be rescheduled must send a rescheduling
fee and a written request to reschedule, postmarked no later than five days
before the examination. An applicant may reschedule each exam only two times
without paying the registration and exam fees.
(e)
An applicant may cancel an examination one time for an
unforeseen emergency without paying reschedule, application, or exam fees
without using a reschedule. The circumstances are subject to approval by
the department. The reason for emergency cancellation must be submitted
in writing no later than ten working days after the exam for which the applicant
was scheduled.
(f)
Rescheduled and canceled exams must be used within one
year after the date of the rescheduled or canceled exam.
(g)
An analysis of performance on an exam will consist of a
statement of the number of questions missed, the general subject of questions
missed, and may include references in each category. No actual questions
will be sent to the applicant.
(h)-(j)
(No change)
§75.25. Licensing Requirements - Reissuance.
(a)
A license that has expired for a period of less than six
months may be reissued upon submission of:
(1)-(4)
(No change.)
(b)
A license that has expired for a period of more than six
months may not be reissued. The former license holder may obtain a new license
in the same manner as a new applicant, including taking the applicable exam
and payment of all required fees.
(c)
If an applicant has violated the Act or rules, the department
may deny the reissuance of the license in accordance with the Act, §5.
§75.65. Advisory Boards.
(a)
(No change.)
(b)
Recommendations of the Board will be transmitted to the
commissioner through the general counsel.
(c)-(g)
(No change.)
§75.70. Responsibilities of the Licensee.
(a)
The license holder shall choose the business affiliation
that will use the license holder's license. The license can be used by only
one business affiliation at one permanent office at a time. The license
holder shall furnish the department with his or her permanent mailing address
and the name, address, and phone number of the business affiliation. A physical
address is required. If the business affiliation uses an assumed name(s),
the name(s) must be legally registered as being owned by the business affiliation.
The company name and assumed name(s) must be shown on the license and on
the certificate of insurance.
(b)
If the license holder for the business, whether the owner
or an employee, also works as an employee for another air conditioning or
refrigeration contracting company, the license holder must work under the
license of that other company.
(c)
(No change.)
(d)
A licensed contractor who works as a subcontractor for
another air conditioning and refrigeration company must work under the license
of the other air conditioning and refrigeration business. The work must
be scheduled and billed by the other air conditioning and refrigeration
company, and the license holder working as a subcontractor must be paid
by the other company. The licensed contractor who is acting as contractor,
not subcontractor, is responsible for all subcontracted work.
(e)
Each air conditioning and refrigeration company shall have
a license holder employed full time in each permanent office operated in
Texas. All work requiring a license under the Act shall be under the direct
personal supervision of the license holder for that office. The license
holder's license number shall appear in all proposals and invoices for that
office.
(f)
Each license holder must register his/her license with
the municipality in which work is to be performed in the manner prescribed
by the municipality, including appearing in person if required by the municipality.
(g)
If a license holder is employed by a company as the license
holder for the company or a permanent office of that company, the license
holder is responsible for work done under his supervision. If the owners,
officers, or managers of the company do not allow authority to supervise,
train, or otherwise control compliance with the Act, the license holder is
still responsible under the Act.
(h)
If an air conditioning and refrigeration company uses locations
other than a permanent office, these locations shall only be used to receive
instructions from the permanent office on scheduling of work, to store parts
and supplies, and to park vehicles. These locations may not receive calls
from customers or schedule work. The air conditioning and refrigeration
company shall provide address(es) of these other locations to the department
no later than 30 days after the locations are established.
(i)
A license holder may not permit any person or company to
use his or her license for any purpose unless the person is a bona fide
employee or subcontractor in accordance with subsections (b) and (c) of
this section.
(j)
Each license shall be displayed at the contractor's place
of business as listed with the department.
(k)
Each licensed contractor shall display the license number
and company name in letters not less than two inches high on both sides
of all vehicles used in conjunction with air conditioning and refrigeration
contracting. Job sites not identified by a marked vehicle shall be identified
by a posted sign visible and readable from the nearest public street, containing
the Texas air conditioning and refrigeration license number and company
name.
(l)
All advertising by contractors licensed under the Act designed
to solicit business shall include the contractor's license number. Advertising
which requires the license number shall include:
(1)
printed material;
(2)
television ads, except that in nationally placed television
advertising, a statement indicating that license numbers are available upon
request may be used in lieu of the contractor's license number;
(3)
newspaper ads;
(4)
yellow page ads, except that yellow page listings
that contain only the name, address, and telephone number are not required
to contain the license number;
(5)
business cards;
(6)
billboards;
(7)
telephone solicitations, except that the statement
that the company is licensed by the state may be substituted unless the
consumer requests the number; and
(8)
proposals, quotations, and invoices.
(m)
Items intended to attract business, other than promotional
items of nominal value such as ball caps, tee shirts, and other gifts, must
include the license number. Letterheads and printed forms for office use
are not required to have the license number included. Signs located outside
the contractor's permanent business location are not required to have the
license number displayed.
(n)
A license holder must have the following information on
all proposals and invoices given to consumers: Regulated by The Texas Department
of Licensing and Regulation, P. O. Box 12157, Austin, Texas 78711, 1-800-803-9202,
512-463-6599 A licensed contractor that also acts as a general contractor
may provide a one-time notice stating the information above to customers
for whom they provide services requiring a license under the Act.
(o)
A license holder is required to notify the department in
writing within 30 days of any change in permanent mailing address, business
affiliation, change of business location, or business telephone number.
A license revision is required for any change to information printed on the
license. The permanent address shall be considered the license holder's
permanent mailing address. All correspondence will be mailed to that address.
(p)
A license holder wishing to revise a license shall:
(1)
make the request in writing;
(2)
return the current original license;
(3)
pay the appropriate fee required in §75.80 of
this title (relating to Fees); and
(4)
provide a revised insurance certificate if the business
affiliation name or address has changed.
(q)
A license holder must identify him or herself by showing
the identification card issued by the Department when requested by a consumer
or any local, state, or federal employee.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on December 20, 1996.
TRD-9618536
Tommy V. Smith
Executive Director
Texas Department of Licensing and Regulation
Effective date: January 10, 1997
Proposal publication date: September 3, 1996
For further information, please call: (512) 463-7348