WEST virginia legislature

2020 regular session

Introduced

House Bill 4122

By Delegates Jefferies, D., Porterfield, Azinger, Tomblin, Jeffries, J., Hott, Kump, Cadle, Sypolt, Barnhart and Hamrick

[Introduced; Referred

to the Committee on]

A BILL to amend and reenact §30-1-5 and §30-1-19 of the Code of West Virginia,1931, as amended; to repeal §30-2-1,§30-2-2,§30-2-3,§30-2-4, §30-2-5, §30-2-5a, §30-2-6,§30-2-7, §30-2-8, §30-3-9, §30-2-10, §30-2-11, §30-2-12, §30-2-13, §30-2-14, §30-2-15 and §30-2-16 of said code; to repeal §30-6-1, §30-6-2, §30-6-3, §30-6-4, §30-6-5, §30-6-6, §30-6-7, §30-6-8, §30-6-9, §30-6-10, §30-6-11, §30-6-12, §30-6-13, §30-6-14, §30-6-15, §30-6-16, §30-6-17, §30-6-18, §30-6-19, §30-6-20, §30-6-21, §30-6-22, §30-6-22a, §30-6-23, §30-6-24, §30-6-25, §30-6-26, §30-6-27, §30-6-28, §30-6-29, §30-6-30, and §30-6-31 of said code; to repeal §30-9-1, §30-9-2, §30-9-3, §30-9-4, §30-9-5, §30-9-6, §30-9-7, §30-9-8, §30-9-9, §30-9-10, §30-9-11, §30-9-12, §30-9-13, §30-9-14, §30-9-15, §30-9-16, §30-9-17, §30-9-18, §30-9-19, §30-9-20, §30-9-21, §30-9-22, §30-9-23, §30-9-24, §30-9-25, §30-9-26, §30-9-27, §30-9-28, §30-9-29, §30-9-30, §30-9-31, 30-9-33 and §30-9-34 of said code; to repeal §30-12-1, §30-12-2, §30-12-3, §30-12-4, §30-12-5, §30-12-6, §30-12-7, §30-12-8, §30-12-9, §30-12-10, §30-12-11, §30-12-11a, §30-12-12, §30-12-13, and §30-12-14 of said code; to repeal §30-13-1, §30-13-2, §30-13-3, §30-13-4, §30-13-5, §30-13-6, §30-13-7, §30-13-8, §30-13-9, §30-13-10, §30-13-11, §30-13-12, §30-13-13, §30-13-13a, §30-13-14, §30-13-15, §30-13-16, §30-13-17, §30-13-18, §30-13-19, §30-13-20, §30-13-21, §30-13-22, §30-13-23, and §30-13-24; to repeal §30-13A-1, §30-13A-2, §30-13A-3, §30-13A-4, §30-13A-5, §30-13A-6, §30-13A-7, §30-13A-8, §30-13A-9, §30-13A-10, §30-13A-11, §30-13A-12, §30-13A-13, §30-13A-14, §30-13A-15, §30-13A-16, §30-13A-17, §30-13A-18, §30-13A-19, §30-13A-20, §30-13A-21, §30-13A-22, §30-13A-23, §30-13A-24, and §30-13A-25 of said code; to repeal §30-17-1, §30-17-2, §30-17-3, §30-17-4, §30-17-5, §30-17-6, §30-17-7, §30-17-8, §30-17-9, §30-17-10, §30-17-11, §30-17-12, §30-17-13, §30-17-14, §30-17-15, §30-17-16, §30-17-17, §30-17-18, and §30-17-19 of said code; to repeal §30-18-1, §30-18-2, §30-18-3, §30-18-4, §30-18-5, §30-18-6, §30-18-7, §30-18-8, §30-18-9, §30-18-10, §30-18-11, §30-18-12, and §30-18-13 of said code; to repeal §30-19-1, §30-19-2, §30-19-3, §30-19-4, §30-19-5, §30-19-6, §30-19-7, §30-19-8, §30-19-9, §30-19-10, §30-19-11, §30-19-12, §30-19-13, §30-19-14, §30-19-15, §30-19-16 and §30-19-17 of said code; to repeal §30-22-1, §30-22-2, §30-22-3, §30-22-4, §30-22-5, §30-22-6, §30-22-7, §30-22-8, §30-22-9, §30-22-10, §30-22-11, §30-22-12, §30-22-13, §30-22-14, §30-22-15, §30-22-16, §30-22-17, §30-22-18, §30-22-19, §30-22-20, §30-22-21, §30-22-22, §30-22-23, §30-22-24, §30-22-25, §30-22-26, §30-22-27, and §30-22-28 of said code; to repeal §30-25-1, §30-25-2, §30-25-3, §30-25-4, §30-25-5, §30-25-6, §30-25-7, §30-25-8, §30-25-9, §30-25-10, §30-25-11, §30-25-12, §30-25-13, §30-25-14, §30-25-15, §30-25-16, §30-25-17, and §30-25-18 of said code; to repeal §30-27-1, §30-27-2, §30-27-3, §30-27-4, §30-27-5, §30-27-6, §30-27-7, §30-27-8, §30-27-8a, §30-27-8b, §30-27-9, §30-27-10, §30-27-11, §30-27-11a, §30-27-12, §30-27-13, §30-27-14, §30-27-15, §30-27-16, §30-27-17, §30-27-18, §30-27-19, §30-27-20, §30-27-21, §30-27-22, §30-27-23, and §30-27-24 of said code; to repeal §30-29-1, §30-29-2, §30-29-3, §30-29-4, §30-29-5, §30-29-6, §30-29-7, §30-29-8, §30-29-9, §30-29-10, §30-29-11, §30-29-12, and §30-29-13 of said code; to repeal §30-38-1, §30-38-2, §30-38-3, §30-38-4, §30-38-5, §30-38-6, §30-38-7, §30-38-8, §30-38-9, §30-38-10, §30-38-11, §30-38-12, §30-38-13, §30-38-14, §30-38-15, §30-38-16, §30-38-17, §30-38-18, and §30-38-19 of said code; to repeal §30-38A-1, §30-38A-2, §30-38A-3, §30-38A-4, §30-38A-5, §30-38A-6, §30-38A-7, §30-38A-8, §30-38A-9, §30-38A-10, §30-38A-11, §30-38A-12, §30-38A-13, §30-38A-14, §30-38A-15, §30-38A-16, and §30-38A-17 of said code; to repeal §30-39-1, §30-39-2, §30-39-3, §30-39-4, §30-39-5, §30-39-6, §30-39-7, §30-39-8, §30-39-9, §30-39-10, §30-39-11, §30-39-12, §30-39-13, §30-39-14, §30-39-15, §30-39-16, §30-39-17, §30-39-18, §30-39-19, §30-39-20, and 30-39-21 of said code; to repeal §30-40-1, §30-40-2, §30-40-3, §30-40-4, §30-40-5, §30-40-6, §30-40-7, §30-40-8, §30-40-9, §30-40-10, §30-40-11, §30-40-12, §30-40-13, §30-40-14, §30-40-15, §30-40-16, §30-40-17, §30-40-18, §30-40-19, §30-40-20, §30-40-21, §30-40-22, §30-40-23, §30-40-24, §30-40-25, §30-40-26, and §30-40-27 of said code; to amend said code by adding thereto a new article, designated §30A-1-1, §30A-1-2, §30A-1-3, §30A-1-4, §30A-1-5, §30A-1-6, §30A-1-7, §30A-1-8, §30A-1-9, §30A-1-10, §30A-1-11, §30A-1-12, §30A-1-13, §30A-1-14, §30A-1-15, §30A-1-16, §30A-1-17, §30A-1-18, §30A-1-19, §30A-1-20, §30A-1-21, §30A-1-22, §30A-1-23, §30A-1-24, §30A-1-25, §30A-1-26, §30A-1-27, §30A-1-28, and §30A-1-29; to amend said code by adding thereto a new article, designated §30A-2-1, §30A-2-2, §30A-2-3, §30A-2-4, §30A-2-5, §30A-2-6, §30A-2-7, §30A-2-8, §30A-2-9, §30A-2-10, §30A-2-11, §30A-2-12, §30A-2-13, §30A-2-14, §30A-2-15, §30A-2-16, §30A-2-17, §30A-2-18, §30A-2-19, §30A-2-20, §30A-2-21, §30A-2-22, §30A-2-23, §30A-2-24, §30A-2-25, §30A-2-26, §30A-2-27, §30A-2-28, §30A-2-29, §30A-2-30, §30A-2-31, §30A-2-32, and §30A-2-33; to amend said code by adding thereto a new article, designated §30A-3-1, §30A-3-2, §30A-3-3, §30A-3-4, §30A-3-5, §30A-3-6, §30A-3-7, §30A-3-8, §30A-3-9, §30A-3-10, §30A-3-11, §30A-3-11a, §30A-3-12, §30A-3-13, and §30A-3-14; to amend said code by adding thereto a new article, designated §30A-4-1, §30A-4-2, §30A-4-3, §30A-4-4, §30A-4-5, §30A-4-6, §30A-4-7, §30A-4-8, §30A-4-9, §30A-4-10, §30A-4-11, §30A-4-12, §30A-4-13, §30A-4-13a, §30A-4-14, §30A-4-15, §30A-4-16, §30A-4-17, §30A-4-18, §30A-4-19, §30A-4-20, §30A-4-21, §30A-4-22, §30A-4-23, and §30A-4-24; to amend said code by adding thereto a new article, designated §30A-5-1, §30A-5-2, §30A-5-3, §30A-5-4, §30A-5-5, §30A-5-6, §30A-5-7, §30A-5-8, §30A-5-9, §30A-5-10, §30A-5-11, §30A-5-12, §30A-5-13, §30A-5-14, §30A-5-15, §30A-5-16, and §30A-5-17, to amend said code by adding thereto a new article, designated §30A-6-1, §30A-6-2, §30A-6-3, §30A-6-4, §30A-6-5, §30A-6-6, §30A-6-7, §30A-6-8, §30A-6-9, §30A-6-10, §30A-6-11, §30A-6-12, §30A-6-13, §30A-6-14, §30A-6-15, §30A-6-16, §30A-6-17, §30A-6-18, §30A-6-19, §30A-6-20, §30A-6-21, §30A-6-22, §30A-6-23, §30A-6-24, and §30A-6-25; to amend said code by adding thereto a new article, designated §30A-7-1, §30A-7-2, §30A-7-3, §30A-7-4, §30A-7-5, §30A-7-6, §30A-7-7, §30A-7-8, §30A-7-9, §30A-7-10, §30A-7-11, §30A-7-12, §30A-7-13, §30A-7-14, §30A-7-15, §30A-7-16, §30A-7-17, §30A-7-18, §30A-7-19, §30A-7-20, §30A-7-21, §30A-7-22, §30A-7-23, §30A-7-24, §30A-7-25, §30A-7-26, §30A-7-27, and §30A-7-28; to amend said code by adding thereto a new article, designated §30A-8-1, §30A-8-2, §30A-8-3, §30A-8-4, §30A-8-5, §30A-8-6, §30A-8-7, §30A-8-8, §30A-8-9, §30A-8-10, §30A-8-11, §30A-8-12, §30A-8-13, §30A-8-14, §30A-8-15, §30A-8-16, §30A-8-17, §30A-8-18, and §30A-8-19; to amend said code by adding thereto a new article, designated §30A-9-1, §30A-9-2, §30A-9-3, §30A-9-4, §30A-9-5, §30A-9-6, §30A-9-7, §30A-9-8, §30A-9-9, §30A-9-10, §30A-9-11, §30A-9-12, §30A-9-13, §30A-9-14, §30A-9-15, §30A-9-16, §30A-9-17, and §30A-9-18; to amend said code by adding thereto a new article, designated §30A-10-1, §30A-10-2, §30A-10-3, §30A-10-4, §30A-10-5, §30A-10-6, §30A-10-7, §30A-10-8, §30A-10-9, §30A-10-10, §30A-10-11, §30A-10-12, §30A-10-13, §30A-10-14, §30A-10-15, §30A-10-16, §30A-10-17, §30A-10-18, §30A-10-19, §30A-10-20, §30A-10-21, §30A-10-22, §30A-10-22a, §30A-10-23, §30A-10-24, §30A-10-25, §30A-10-26, §30A-10-27, §30A-10-28, §30A-10-29, §30A-10-30, and §30A-10-31; to amend said code by adding thereto a new article, designated §30B-1-1, §30B-1-2, §30B-1-3, §30B-1-4, §30B-1-5, §30B-1-6, §30B-1-7, §30B-1-8, §30B-1-9, §30B-1-10, §30B-1-11, §30B-1-12, §30B-1-13, §30B-1-14, §30B-1-15, §30B-1-16, §30B-1-17, §30B-1-18, §30B-1-19, §30B-1-20, §30B-1-21, §30B-1-22, §30B-1-23, §30B-1-24, §30B-1-25, §30B-1-26, §30B-1-27, and §30B-1-28; to amend said code by adding thereto a new article, designated §30B-2-1, §30B-2-2, §30B-2-3, §30B-2-4, §30B-2-5, §30B-2-6, §30B-2-7, §30B-2-8, §30B-2-8a, §30B-2-8b, §30B-2-9, §30B-2-10, §30B-2-11, §30B-2-11a, §30B-2-12, §30B-2-13, §30B-2-14, §30B-2-15, §30B-2-16, §30B-2-17, §30B-2-18, §30B-2-19, §30B-2-20, §30B-2-21, §30B-2-22, §30B-2-23, and §30B-2-24; to amend said code by adding thereto a new article, designated §30B-3-1, §30B-3-2, §30B-3-3, §30B-3-4, §30B-3-5, §30B-3-6, §30B-3-7, §30B-3-8, §30B-3-9, §30B-3-10, §30B-3-11, §30B-3-12, and §30B-3-13; to amend said code by adding thereto a new article, designated §30B-4-1, §30B-4-2, §30B-4-3, §30B-4-4, §30B-4-5, §30B-4-6, §30B-4-7, §30B-4-8, §30B-4-9, §30B-4-10, §30B-4-11, §30B-4-12, and §30B-4-13; to amend said code by adding there to a new article, designated §30B-5-1, §30B-5-2, §30B-5-3, §30B-5-4, §30B-5-5, §30B-5-6, §30B-5-7, §30B-5-8, §30B-5-9, §30B-5-10, §30B-5-11, §30B-5-12, §30B-5-13, §30B-5-14, §30B-5-15, §30B-5-16, §30B-5-17, §30B-5-18, and§30B-5-19; to amend said code by adding thereto a new article, §30B-6-1, §30B-6-2, §30B-6-3, §30B-6-4, §30B-6-5, §30B-6-6, §30B-6-7, §30B-6-8, §30B-6-9, §30B-6-10, §30B-6-11, §30B-6-12, §30B-6-13, §30B-6-14, §30B-6-15, §30B-6-16, and §30B-6-17; to amend said code by adding thereto a new article, designated §30B-7-1, §30B-7-2, §30B-7-3, §30B-7-4, §30B-7-5, §30B-7-6, §30B-7-7, §30B-7-8, §30B-7-9, §30B-7-10, §30B-7-11, §30B-7-12, §30B-7-13, §30B-7-14, §30B-7-15, §30B-7-16, §30B-7-17, §30B-7-18, §30B-7-19, §30B-7-20, §30B-7-21, §30B-7-22, §30B-7-23, §30B-7-24, §30B-7-25, §30B-7-26, and §30B-7-27; and to amend said code by adding thereto a new article, designated §30B-8-1, §30B-8-2, §30B-8-3, §30B-8-4, §30B-8-5, §30B-8-6, §30B-8-7, §30B-8-8, §30B-8-9, §30B-8-10, §30B-8-11, §30B-8-12, §30B-8-13, §30B-8-14, §30B-8-15, §30B-8-16, §30B-8-17, §30B-8-18, §30B-8-19, §30B-8-20, and §30B-8-21, all relating to reorganizing various boards and authorities for the licensing and oversight of trades, occupations, and professions; dividing current articles and practice acts from one chapter into three chapters, organized by occupational subject matter, education criteria, and other common requirements; repealing provisions relating to administrative licensing of attorneys; retaining articles for the licensing authorities for all medically-related professions and occupations in Chapter 30; requiring any licensing board with knowledge of violations of the practice acts in any of the three chapters to report this information to the appropriate licensing authority; authorizing licensing authorities to combine administrative functions with any other licensing authority, regardless of the chapter of the code; placing articles for the licensing authorities for non-medical occupations that require a minimum of a baccalaureate degree in a new Chapter 30A and making no substantive changes in these relocated articles; adding a new article conforming the authorities, duties, restrictions, and procedural requirements of these articles with those in the original Chapter 30; placing articles for the licensing authorities for non-medical occupations that do not require a minimum of a baccalaureate degree in a new Chapter 30B and making no substantive changes in in these relocated articles; and adding a new article conforming the authorities, duties, restrictions, and procedural requirements of these articles with those in the original Chapter 30.

Be it enacted by the Legislature of West Virginia:

CHAPTER 30. HEALTH-RELATED PROFESSIONS AND OCCUPATIONS.

ARTICLE 1. GENERAL PROVISIONS APPLICABLE TO ALL STATE BOARDS OF EXAMINATION OR REGISTRATION REFERRED TO IN CHAPTER.

§30-1-5. Meetings; quorum; investigatory powers; duties.

(a) Every board referred to in this chapter shall hold at least one meeting each year, at such time and place as it may prescribe by rule, for the examination of applicants who desire to practice their respective professions or occupations in this state and to transact any other business which may legally come before it. The board may hold additional meetings as may be necessary, which shall be called by the secretary at the direction of the president or upon the written request of any three members. A majority of the members of the board constitutes a quorum for the transaction of its business.

(b) The board may compel the attendance of witnesses, to issue subpoenas, to conduct investigations and hire an investigator and to take testimony and other evidence concerning any matter within its jurisdiction. The president and secretary of the board may administer oaths for these purposes.

(c) Every board referred to in this chapter shall investigate and resolve complaints which it receives and shall, within six months of the complaint being filed, send a status report to the party filing the complaint and the respondent by certified mail with a signed return receipt and within one year of the status report’s return receipt date issue a final ruling, unless the party filing the complaint and the board agree in writing to extend the time for the final ruling. The time period for final ruling shall be tolled for any delay requested or caused by the respondent or by counsel for the respondent and in no event shall a complaint proceeding be dismissed for exceeding the time standards in this section when such overage is the result of procedural delay or obstructive action by the accused or his or her counsel or agents.

(d) Every board shall provide public access to the record of the disposition of the complaints which it receives in accordance with the provisions of Chapter 29B of this code, and shall provide public access on a website to all completed disciplinary actions in which discipline was ordered. If a board is unable to provide access, the Attorney General shall provide a link to this information on the consumer protection division website, together with a link to the website of all other boards subject to this chapter. Every board shall report violations of individual practice acts contained in this chapter, Chapter 30A, and Chapter 30B of this code to the board by which the individual may be licensed and shall do so in a timely manner upon receiving notice of the violations. Every person licensed or registered by a board shall report to the board which licenses or registers him or her a known or observed violation of the practice act or the board’s rules by any other person licensed or registered by the same board and shall do so in a timely manner. Law-enforcement agencies or their personnel and courts shall report in a timely manner to the appropriate board any violations of individual practice acts by any individual.

(e) Whenever a board referred to in this chapter obtains information that a person subject to its authority has engaged in, is engaging in or is about to engage in any act which constitutes or will constitute a violation of the provisions of this chapter which are administered and enforced by that board, it may apply to the circuit court for an order enjoining the act. Upon a showing that the person has engaged, is engaging or is about to engage in any such act, the court shall order an injunction, restraining order or other order as the court may deem appropriate.

§30-1-19. Combining board staff functions.

(a) Any board referred to in this chapter may combine administrative staff functions with any other board or boards referred to in this chapter, Chapter 30A or Chapter 30B of this code, pursuant to the provisions of subsection (b) of this section, to carry out the administrative duties of the boards as set forth in this article, the practice acts of each board set forth in this chapter and the legislative rules of each board: Provided, That each board retains responsibility for fulfilling its statutory duties.

(b) Before combining administrative staff functions pursuant to subsection (a) of this section, the boards shall, in consultation with the office of the Attorney General, enter into a memorandum of understanding with the following provisions:

(1) The names of the boards combining administrative staff functions;

(2) The administrative staff functions being combined, including the staffs' titles and duties relative to each board;

(3) The prorata share of expenses that each board will be responsible for paying, including salaries, office rent, office supplies, telephone, fax and computer services, travel expenses and any other expenses anticipated by the boards;

(4) A description of how decisions will be made by the boards, including employment of staff, the staff's functions and duties, and any other necessary decisions;

(5) A description of how modifications may be made to the terms of the agreement; and

(6) Any other provisions necessary to set forth the agreement of the boards.

(c) The boards that combine administrative staff functions pursuant to this section, may promulgate rules in accordance with the provisions of §29A-3-1 et seq. of this code, to make any necessary changes to facilitate the combining of administrative staff functions. The boards may also promulgate emergency rules pursuant to the provisions of §29A-3-15 of this code, to correct any conflicts with a board's current rules.

CHAPTER 30A. BACCALAUREATE-LEVEL PROFESSIONS.

ARTICLE 1. GENERAL PROVISIONS APPLICABLE TO ALL STATE BOARDS OF EXAMINATION OR REGISTRATION REFERRED TO IN CHAPTER.

§30A-1-1. Application of article.

Unless otherwise specifically provided, every board of examination or registration referred to in this chapter shall conform to the requirements prescribed in the following sections of this article.

§30A-1-2. Legislative findings and declaration.

The Legislature hereby finds and declares that as a matter of public policy the practice of the professions referred to in this chapter is a privilege and is not a natural right of individuals. The fundamental purpose of licensure and registration is to protect the public, and any license, registration, certificate or other authorization to practice issued pursuant to this chapter is a revocable privilege.

§30A-1-3. Oath.

Every person appointed as a member of any board referred to in this article, before proceeding to exercise the authority or discharge the duties of the office, shall take the oath prescribed by section five of article IV of the state Constitution, and shall file the certificate thereof with the Secretary of State.

§30A-1-4. Required orientation session.

(a) The Auditor shall provide at least one seminar each year for state licensing boards to inform the boards of the duties and requirements imposed by state law and rules. All state agencies shall cooperate with and assist in providing the seminar if the Auditor requests.

(b) The seminar may include the following topics:

(1) Powers and duties of the boards and board members;

(2) The financial procedures for boards;

(3) Purchasing requirements;

(4) Open meeting requirements;

(5) Ethics;

(6) Rule-making procedures;

(7) Procedures for the handling of complaints, investigations and administrative hearings;

(8) Disciplinary actions available to boards;

(9) Records management procedures;

(10) Annual reports; and

(11) Any other topics the Auditor determines necessary or informative.

(c) (1) The board members and the executive director or the chief financial officer of a board newly created under the provisions of this chapter shall attend a seminar provided under this section within one year of the creation of the board.

(2) The chairperson, the executive director, or the chief financial officer of the board shall annually attend a seminar provided under this section.

(3) Each board member shall attend at least one seminar provided under this section during each term of office.

(d) The Auditor may charge a registration fee for the seminar to cover the cost of providing the seminar. The fee may be paid from funds available to a board and a board may approve an expense reimbursement for the attendance of its members, executive director and the chief financial officer of the board.

(e) Prior to January 1 of each year, the Auditor shall provide to the chairs of the Joint Standing Committee on Government Organization a list of:

(1) The names and titles of the persons who attended the seminar;

(2) The boards represented; and

(3) The number and dates of the seminars offered by the Auditor during the previous year.

(f) Ex officio members who are elected or appointed state officers or employees and members of boards that have purely advisory functions with respect to a department or agency of the state are exempt from the requirements of this section.

§30A-1-5. Officers.

(a) Every board referred to in this chapter shall elect annually from its members a president and a secretary who shall hold their offices for one year, but shall continue to hold their offices until their successors are elected.

(b) The officers of the boards referred to in this chapter shall register annually with the Governor, the Legislative Auditor, and the Secretary of State.

§30A-1-6. Official seal; rules and regulations.

Every such board shall adopt an official seal which shall be affixed to all licenses or certificates of registration issued by it, and shall make such rules, not inconsistent with law, as are necessary to regulate its proceedings and to carry out the purposes and enforce the provisions of this chapter applicable to such board.

§30A-1-7. Lay members of professional boards.

(a) Notwithstanding any provisions of this code to the contrary, the Governor shall appoint at least one lay person to represent the interests of the public on every licensing board which is referred to in this chapter. If the total number of members on any of these boards after the appointment of one lay person is an even number, one additional lay person shall be appointed. Lay members shall serve in addition to any other members otherwise provided for by law or rule. Lay members shall be at least 18 years of age, shall be of good moral character, and shall be competent to represent and safeguard the interests of the public. Each lay member is empowered to participate in and vote on all transactions and business of the board, committee or group to which he or she is appointed.

(b) Any person whose addition to a board as a lay member under the provisions of this section results in the addition of an odd number of lay additions to the board shall serve for a term ending in an odd-numbered year on the date in that year on which terms of the professional members expire.

(c) Any person whose addition to a board as a lay member under the provisions of this section results in the addition of an even number of lay additions to the board shall serve for a term ending in an even-numbered year on the date in that year on which terms of the professional members expire.

§30A-1-8. Meetings; quorum; investigatory powers; duties.

(a) Every board referred to in this chapter shall hold at least one meeting each year, at such time and place as it may prescribe by rule, for the examination of applicants who desire to practice their respective occupations or trades in this state and to transact any other business which may legally come before it. The board may hold additional meetings as may be necessary, which shall be called by the secretary at the direction of the president or upon the written request of any three members. A majority of the appointed and qualified members of the board constitutes a quorum for the transaction of its business.

(d) Every board shall provide public access to the record of the disposition of the complaints which it receives in accordance with the provisions of Chapter 29B of this code, and shall provide public access on a website to all completed disciplinary actions in which discipline was ordered. If a board is unable to provide access, the Attorney General shall provide a link to this information on the consumer protection division website, together with a link to the website of all other boards subject to this chapter. Every board shall report violations of individual practice acts contained in this chapter, Chapter 30, and Chapter 30B of this code to the board by which the individual may be licensed and shall do so in a timely manner upon receiving notice of the violations. Every person licensed or registered by a board shall report to the board which licenses or registers him or her a known or observed violation of the practice act or the board’s rules by any other person licensed or registered by the same board and shall do so in a timely manner. Law-enforcement agencies or their personnel and courts shall report in a timely manner to the appropriate board any violations of individual practice acts by any individual.

§30A-1-9. Reporting of fraud and misappropriation of funds.

(a) Whenever a board referred to in this chapter obtains information that an employee, officer or member of the board may have misappropriated funds, engaged in fraud, or otherwise violated a law relating to the public trust, the board shall timely report such information or allegation in writing to the commission on special investigations, established in §4-5-1 et seq. of this code.

(b) The reporting of such information under subsection (a) of this section shall not prevent, relieve or replace a report to a law-enforcement agency, if appropriate or warranted.

§30A-1-10. Application for license or registration; examination fee; establishment of application deadline and fees by legislative rule; prohibiting discrimination.

(a) An applicant for an authorization to practice under the provisions of this chapter shall apply in writing to the proper board and submit the applicable fees.

(b) Each board may establish, by legislative rule, a deadline for an application for an examination.

(c) Notwithstanding the specific fees set forth in this chapter, each board may set fees by legislative rule that are sufficient to enable the board to effectively carry out its duties and responsibilities. At least 30 days prior to proposing a rule on fees, the board shall notify its membership of the proposed rule by:

(1) Mailing a copy of the proposed rule to its membership; or

(2) Posting the proposed rule on its website and notifying its membership of the website posting by:

(A) Mailing a postcard;

(B) Emailing a notice; or

(d) In addition to any other information required by the board, an applicant's social security number shall be recorded on an application: Provided, That the board shall redact the social security number on any copies provided to the public.

(e) A board may not discriminate against an applicant because of political or religious opinion or affiliation, marital status, race, color, gender, creed, age, national origin, disability or other protected group status.

(f) A board may deny an applicant an authorization to practice in this state if an applicant's authorization to practice in another jurisdiction has been revoked. The denial may be made by the board without a hearing unless the applicant requests a hearing within 30 days of the denial. A hearing must be conducted pursuant to the provisions of this article or the provisions contained in the rules of the board.

§30A-1-11. Contents of license or certificate of registration.

Every license or certificate of registration issued by each board shall bear a serial or license number, the full name of the applicant, the date of issuance, and the seal of the board: Provided, That licenses or certificates of registration issued or renewed on or after July 1, 2020, will indicate both the date of issuance and the date of expiration. The licenses or certificates of registration shall be signed by the board's president and secretary or executive secretary. No license or certificate of registration granted or issued under the provisions of this chapter may be assigned or transferred to another person.

§30A-1-12. Continuing education.

Each board referred to in this chapter shall establish continuing education requirements as a prerequisite to license renewal. A board shall develop continuing education criteria appropriate to its discipline, which shall include, but not be limited to, course content, course approval, hours required and reporting periods.

§30A-1-13. Denial, suspension or revocation of a license or registration; probation; proceedings; effect of suspension or revocation; transcript; report; judicial review.

(a) Every board referred to in this chapter may suspend or revoke the license of any person who has been convicted of a felony or who has been found to have engaged in conduct, practices, or acts constituting professional negligence or a willful departure from accepted standards of professional conduct. Where any person has been convicted of a felony or has been found to have engaged in such conduct, practices, or acts, every board referred to in this chapter may also enter into consent decrees, to reprimand, to enter into probation orders, to levy fines not to exceed $1,000 per day per violation, or any of these, singly or in combination. Each board may also assess administrative costs. Any costs which are assessed shall be placed in the special account of the board and any fine which is levied shall be deposited in the state Treasury's General Revenue Fund.

(b) For purposes of this section, the word "felony" means a felony or crime punishable as a felony under the laws of this state, any other state, or the United States.

(c) Every board referred to in this chapter may propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code to delineate conduct, practices or acts which, in the judgment of the board, constitute professional negligence, a willful departure from accepted standards of professional conduct, or which may render an individual unqualified or unfit for licensure, registration, or other authorization to practice.

(d) Every board referred to in this chapter may revoke the license or registration of an individual licensed or otherwise lawfully practicing within this state whose license or registration in any other state, territory, jurisdiction or foreign nation has been revoked by the licensing authority thereof.

(e) Notwithstanding any other provision of law to the contrary, no certificate, license, registration, or authority issued under the provisions of this chapter may be suspended or revoked without a prior hearing before the board or court which issued the certificate, license, registration or authority, except:

(1) A board is authorized to suspend or revoke a certificate, license, registration or authority prior to a hearing if the person's continuation in practice constitutes an immediate danger to the public; or

(2) After due diligence, if a board cannot locate a person licensed under the provisions of this chapter within 60 days of a complaint being filed against the licensee, then the board may suspend the license, certificate, registration, or authority of the person without holding a hearing. After due diligence, if a Board still cannot locate the person licensed under the provisions of this chapter 30 days after the suspension of the person's license, certificate, registration, or authority, then the board may revoke the license, certificate, registration or authority of the person without holding a hearing.

(f) In all proceedings before a board or court for the suspension or revocation of any certificate, license, registration, or authority issued under the provisions of this chapter, a statement of the charges against the holder of the certificate, license, registration, or authority and a notice of the time and place of hearing shall be served upon the person as a notice is served under §56-2-1 of this code at least 30 days prior to the hearing and he or she may appear with witnesses and be heard in person, by counsel, or both. The board may take oral or written proof, for or against the accused, as it may consider advisable. If upon hearing the board finds that the charges are true, it may suspend or revoke the certificate, license, registration or authority and suspension or revocation shall take from the person all rights and privileges acquired thereby.

(g) Pursuant to the provisions of §29A-5-1 of this code, informal disposition may also be made by the board of any contested case by stipulation, agreed settlement, consent order, or default. Further, the board may suspend its decision and place a licensee found by the board to be in violation of the applicable practice on probation.

(h) Any person denied a license, certificate, registration, or authority who believes the denial was in violation of this article or the article under which the license, certificate, registration, or authority is authorized shall be entitled to a hearing on the action denying the license, certificate, registration or authority. Hearings under this subsection are in accordance with the provisions for hearings which are set forth in this section.

(i) A stenographic report of each proceeding on the denial, suspension, or revocation of a certificate, license, registration, or authority shall be made at the expense of the board and a transcript of the hearing retained in its files. The board shall make a written report of its findings, which shall constitute part of the record.

(j) All proceedings under the provisions of this section are subject to review by the Supreme Court of Appeals.

(k) On or before July 1, 2020, every board referred to in this chapter shall adopt procedural rules in accordance with the provisions of §29A-3-1 et seq. of this code, which shall specify a procedure for the investigation and resolution of all complaints against persons licensed under this chapter.

§30A-1-14. Reinstatement of license.

(a) Every board referred to in this chapter is authorized to consider the reinstatement of any license or registration that has been suspended, revoked, or not renewed, upon a showing that the applicant can resume practicing with reasonable skill and safety.

(b) Each board may adopt a procedural rule in accordance with the provisions of §29A-3-1 et seq. of this code, specifying forms and procedures for application for reinstatement.

§30A-1-15. Mediation of complaints.

(a) Any board referred to in this chapter may, on its own motion or by stipulation of the parties, refer any complaints against persons licensed under this chapter to mediation.

(b) Any board may maintain a list of mediators with expertise in professional disciplinary matters or may obtain a list from the West Virginia center for dispute resolution or the West Virginia State Bar's mediator referral service. The board shall designate a mediator from the list by neutral rotation.

(c) The mediation is not considered a proceeding open to the public and any reports and records introduced at the mediation are not part of the public record. The mediator and all participants in the mediation shall maintain and preserve the confidentiality of all proceedings and records. The mediator may not be subpoenaed or called to testify or otherwise be subject to process requiring disclosure of confidential information in any proceeding relating to or arising out of the disciplinary or licensure matter mediated: Provided, That any confidentiality agreement and any written agreement made and signed by the parties as a result of mediation may be used in any proceedings subsequently instituted to enforce the written agreement. The agreements may be used in other proceedings if the parties agree to the use in writing.

(d) The mediation may not be used to delay any disciplinary proceeding.

§30A-1-16. Review by circuit court and supreme court of board's refusal to issue; suspension or revocation of license or registration.

A person, who has been refused a license or registration for any cause other than failure to pass the examination given by the board, or whose certificate, license, registration, or authority has been suspended or revoked, may, within 30 days after the decision of the board, present his or her petition in writing to the circuit court of the county in which such person resides, or to the judge of such court in vacation, praying for the review and reversal of such decision. Before presenting his or her petition to the court or judge, the petitioner shall mail copies thereof to the president and secretary, respectively, of the board. Upon receipt of such copy the secretary shall forthwith transmit to the clerk of such court the record of the proceeding before the board. The court or judge shall fix a time for the review of said proceeding at his or her earliest convenience. Notice in writing of the time and place of such hearing shall be given to the president and secretary of the board at least 10 days before the date set therefor. The court or judge shall, without a jury, hear and determine the case upon the record of the proceedings before the board. The court or judge may enter an order affirming, revising or reversing the decision of the board if it appears that the decision was clearly wrong. Prior to the entry of such order, no order shall be made or entered by the court to stay or supersede any suspension, revocation or cancellation of any such certificate, license, registration, or authority. The judgment of the circuit court may be reviewed upon appeal in the Supreme Court of Appeals.

§30A-1-17. Disposition of money fines; legislative audit; review of board’s fee structure.

(a) The secretary of every board referred to in this chapter shall receive and account for all money which it derives pursuant to the provisions of this chapter which are applicable to it. With the exception of money received as fines, each board shall pay all money which is collected into a separate special fund of the State Treasury which has been established for each board. This money shall be used exclusively by each board for purposes of administration and enforcement of its duties pursuant to this chapter. Any money received as fines shall be deposited into the General Revenue Fund of the State Treasury. When the special fund of any board accumulates to an amount which exceeds twice the annual budget of the board or $10,000, whichever is greater, the State Treasurer shall:

(1) Transfer the excess amount to the state General Revenue Fund; and

(2) Notify the Legislative Auditor that the transfer has been made.

(b) (1) Every licensing board which is authorized by the provisions of this chapter shall be subject to audit by the office of the Legislative Auditor.

(2) Within a reasonable time after the State Treasurer notifies the Legislative Auditor of a transfer required to be made under this section, the Legislative Auditor shall conduct a review of the fee structure of the applicable board to determine if the amount of the board’s fees generate excessive revenue, when compared to the board’s normal expenses. If the Legislative Auditor finds that excess revenue is generated, he or she shall report his or her findings to the Legislature’s Joint Standing Committee on Government Organization, along with recommendations on how the fees can be adjusted to generate only the amount the board reasonably needs to operate under this chapter.

§30A-1-18. Compensation of members; expenses.

(a) Each member of every board in this chapter is entitled to receive compensation for attending official meetings or engaging in official duties not to exceed the amount paid to members of the Legislature for their interim duties as recommended by the Citizens Legislative Compensation Commission and authorized by law. A board member may not receive compensation for travel days that are not on the same day as the official meeting or official duties.

(b) The limitations contained in this section do not apply if they conflict with provisions of this chapter relating to a particular board.

(c) A board may reimburse actual and necessary expenses incurred for each day or portion of a day engaged in the discharge of official duties in a manner consistent with guidelines of the Travel Management Office of the Department of Administration.

(d) No member of any board in this chapter may receive compensation as an employee of the board.

§30A-1-19. Record of proceedings; register of applicants; certified copies of records prima facie evidence; report to Governor and Legislature; public access.

(a) The secretary of every board shall keep a record of its proceedings and a register of all applicants for license or registration, showing for each the date of his or her application, his or her name, age, educational, and other qualifications, place of residence, whether an examination was required, whether the applicant was rejected or a certificate of license or registration granted, the date of this action, the license or registration number, all renewals of the license or registration, if required, and any suspension or revocation thereof. The books and register of the board shall be open to public inspection at all reasonable times, and the books and register, or a copy of any part thereof, certified by the secretary and attested by the seal of the board, shall be prima facie evidence of all matters recorded therein.

(b) On or before January 1, of each year in which the Legislature meets in regular session, the board shall submit to the Governor and to the Legislature a report of its activities for the preceding two years, containing the following information for that period:

(1) The total receipts and disbursements for each year;

(2) A list of amounts received in each year for the following categories of receipts:

(A) License applications, registrations and renewals;

(B) Examination fees, if applicable;

(D) Fines or penalties;

(E) Expense reimbursements from disciplinary actions; and

(F) Grants, special appropriations or other sources of revenue not from fees;

(3) A list of amounts spent in each year for the following categories of expenditures:

(A) Personal services;

(B) Board member per diem compensation;

(D) Professional contracts;

(E) Rent;

(F) Office supplies;

(G) Postage;

(H) Entertainment and hosting;

(I) Insurance; and

(J) Bank costs;

(4) A complete list of the names of all persons newly licensed or registered;

(5) A table or list showing numbers of licensees or registrants by West Virginia county of practice or, for out-of-state licensees or registrants, by state of residence, and by specialty, if appropriate to the particular profession;

(6) Complaints filed and investigations opened by the board, with a brief classification of the nature of the complaint, together with the dates of compliance with the time requirements of §30A-1-8(c) of this code, and the disposition, if any;

(7) In addition to complaints reported under the preceding subsection, complaints resolved and investigations closed by the board, with a brief classification of the nature of the complaint, together with the dates of compliance with the time requirements of §30A-1-8(c) of this code, and the disposition, if any; and

(8) Copies of the agendas for, and minutes of, board and committee or subcommittee meetings.

The report shall be certified by the president and the secretary of the board, and a copy of the report shall be filed with the Secretary of State and with the legislative librarian.

(c) To promote public access, the secretary of every board shall ensure that the address and telephone number of the board are included every year in the state government listings of the Charleston area telephone directory. Every board shall regularly evaluate the feasibility of adopting additional methods of providing public access, including, but not limited to, listings in additional telephone directories, toll-free telephone numbers, facsimile, and computer-based communications.

§30A-1-20. Roster of licensed or registered practitioners.

The secretary of every board shall prepare and maintain a complete roster of the names and office addresses of all persons licensed, or registered, and practicing in this state the profession or occupation to which such board relates, arranged alphabetically by name and also by the cities or counties in which their offices are situated. Each board shall make the roster available upon request to any member of the public.

§30A-1-21. Remission of certain fees.

Every board of examination or registration referred to in this chapter is hereby authorized, under such rules and regulations as may be adopted by each board, to remit all annual license or annual registration fees required to be paid by any licensee or registrant under its supervision during such time as such licensee or registrant is serving with the Armed Forces of the United States of America, and to retain the name of such licensee or registrant in good standing on the roster of said board during said time.

§30A-1-22. Liability limitations of peer review committees and professional standards review committees.

No member of a peer review committee or a professional standards review committee of a state or local professional organization, including, but not limited to, committees established to review the practices of real estate brokers, real estate agents, or real estate appraisers shall be deemed liable to any person for any action taken or recommendation made within the scope of the functions of the committee, if the committee member acts without malice and in the reasonable belief that such action or recommendation is warranted by the facts known to him or her after reasonable effort to obtain the facts of the matter as to which such action is taken or recommendation is made.

§30A-1-23. Annual reports.

(a) A licensing board, organized under the provisions of this chapter, may submit its annual report on electronic media to be filed in the same manner as a printed annual report, or transmitted electronically via the Internet. Any report filed in an electronic format shall be considered as having satisfied the filing requirements.

(b) If a board chooses to submit its annual report electronically, it shall transmit an electronic copy to the legislative manager.

§30A-1-24. Retired, volunteer and inactive status licenses.

(a) Every board referred to in this chapter may propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code, to establish licensure criteria and continuing education requirements for retired, volunteer and inactive licenses.

(b) If a board which establishes licensure criteria as authorized in this section does not establish specific continuing education requirements, the retired, volunteer or inactive licensees shall comply with the same continuing education requirements as established by the respective boards for an active license.

§30A-1-25. Combining board staff functions.

(a) Any board referred to in this chapter may combine administrative staff functions with any other board or boards referred to in this chapter, Chapter 30, or Chapter 30B of this code, pursuant to the provisions of subsection (b) of this section, to carry out the administrative duties of the boards as set forth in this article, the practice acts of each board set forth in this chapter and the legislative rules of each board: Provided, That each board retains responsibility for fulfilling its statutory duties.

(1) The names of the boards combining administrative staff functions;

(2) The administrative staff functions being combined, including the staffs' titles and duties relative to each board;

(4) A description of how decisions will be made by the boards, including employment of staff, the staff's functions and duties, and any other necessary decisions;

(5) A description of how modifications may be made to the terms of the agreement; and

(6) Any other provisions necessary to set forth the agreement of the boards.

(c) The boards that combine administrative staff functions pursuant to this section, may promulgate rules in accordance with the provisions of Chapter 29A of this code, to make any necessary changes to facilitate the combining of administrative staff functions. The boards may also promulgate emergency rules pursuant to the provisions of §29A-3-15 of this code, to correct any conflicts with a board's current rules.

§30A-1-26. Exemption from licensure for practice for a charitable function.

(a) A person holding an unrestricted license, certificate, registration or permit granted by another state or jurisdiction to practice a trade or occupation licensed under this chapter may serve as a volunteer without compensation for a charitable function for a period not to exceed 10 days, subject to the approval process described in this section: Provided, That a person who has received any completed disciplinary actions in which discipline was ordered in any of the three most recent years, or is the subject of any pending disciplinary actions is not eligible for this charitable exemption from licensure.

(b) The person shall notify the board of the nature of the volunteer charitable practice, the specific dates the person will participate in the charitable practice, and shall provide to the board a list of all professional and occupational licenses, registrations, permits or certificates held in each state or jurisdiction for the previous three years.

(c) Upon a review of the information required by this section, the board shall provide a temporary authorization to a qualified volunteer to participate in the volunteer activity for the duration not to exceed 10 days. Each board shall keep a record of each authorization issued pursuant to his section.

(d) The board may not charge a fee to authorize this charitable practice.

§30A-1-27. Lobbying.

No board may employ or contract with any person whose job functions or obligations include lobbying on behalf of the board: Provided, That the director, board counsel, and appointed board members may lobby on behalf of the board.

§30A-1-28. Waiver of initial licensing fees for certain individuals; definitions.

(a) As used in this section:

(1) “Initial” means obtaining a license in West Virginia for the occupation sought for the first time;

(2) “Low-income individuals” means individuals in the local labor market as defined in §21-1C-2 of this code whose household adjusted gross income is below 130 percent of the federal poverty line. This term also includes any person enrolled in a state or federal public assistance program including, but not limited to, the Temporary Assistance for Needy Families Program, Medicaid, or the Supplemental Nutrition Assistance Program; and

(3) “Military families” means any person who serves as an active member of the armed forces of the United States, the National Guard, or a reserve component as described in 38 U.S.C. § 101, honorably discharged veterans of those forces, and their spouses. This term also includes surviving spouses of deceased service members who have not remarried.

(b) Each board or licensing authority referred to in this chapter shall waive all initial occupational licensing fees for the following classes of individuals:

(1) Low-income individuals; and

(2) Military families.

(c) Individuals seeking a waiver of initial occupational licensing fees must apply to the appropriate board or licensing authority in a format prescribed by the board or licensing authority. The board or licensing authority shall process the application within 30 days of receiving it from the applicant.

(d) The board or licensing authority shall propose rules for legislative approval in accordance with §29A-3-1 et seq. of this code to implement the provisions of this section.

§30A-1-29. Use of criminal records as disqualification from authorization to practice.

(a) Definitions. — For the purposes of this section:

(1) “Board” means the board, authority, or other agency authorized by the provisions of this chapter to issue licenses, certifications, registrations, or other authorizations to engage in a particular profession or occupation.

(2) “License” or “licensure” means the official authorization to engage in a profession or occupation issued by a board, pursuant to the requirements of this chapter.

(3) “Unreversed”, as that term refers to a criminal conviction, means that a conviction has not been set aside, vacated, pardoned, or expunged.

(b) (1) Boards subject to the requirements of this section may not disqualify an applicant from initial licensure to engage in a profession or occupation because of a prior criminal conviction that remains unreversed unless that conviction is for a crime that bears a rational nexus to the profession or occupation requiring licensure. In determining whether a criminal conviction bears a rational nexus to a profession or occupation, the board shall consider at a minimum:

(A) The nature and seriousness of the crime for which the individual was convicted;

(B) The passage of time since the commission of the crime;

(C) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the profession or occupation; and

(D) Any evidence of rehabilitation or treatment undertaken by the individual.

(2) Because the term “moral turpitude” is vague and subject to inconsistent applications, boards subject to the requirements of this section may not rely upon the description of a crime for which an applicant has been convicted as one of “moral turpitude” as a basis for denying licensure: Provided, That if the prior conviction for the underlying crime bears a rational nexus to the profession or occupation requiring licensure, the board may consider the conviction according to the requirements of subdivision (1) of this subsection.

(3) Notwithstanding any other provision of this chapter to the contrary, if an applicant is disqualified from licensure because of a prior criminal conviction, a board shall permit the applicant to apply for initial licensure if:

(A) A period of five years has elapsed from the date of conviction or the date of release from incarceration, whichever is later;

(B) The individual has not been convicted of any other crime during the period of time following the disqualifying offense; and

(C) The conviction was not for an offense of a violent or sexual nature: Provided, That a conviction for an offense of a violent or sexual nature may subject an individual to a longer period of disqualification from licensure, to be determined by the individual board.

(4) An individual with a criminal record who has not previously applied for licensure may petition the appropriate board at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license. This petition shall include sufficient details about the individual’s criminal record to enable the board to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction. The board shall provide the determination within 60 days of receiving the petition from the applicant. The board may charge a fee to recoup its costs for each petition.

(5) The requirements of this section do not apply to the criteria that boards may consider when making determinations regarding relicensure or discipline of licensees.

(c) Every board subject to the provisions of this section shall propose rules or amendments to existing rules for legislative approval to comply with the provisions of this section. These rules or amendments to rules shall be proposed pursuant to the provisions of §29A-3-1 et seq. of this code within the applicable time limit to be considered by the Legislature during its regular session in the year 2020.

ARTICLE 2. ACCOUNTANTS.

§30A-2-1. License required to practice.

To protect the public interest in receiving accurate and reliable financial information and assurance, certified public accountants, public accountants, and accounting firms are required to be licensed as provided in this article.

§30A-2-2. Definitions.

As used in this article, the following words and terms have the following meanings, unless the context or associated language clearly indicates otherwise:

(1) “Affiliated entity” means an entity that controls, is controlled by, or is under common control with, a firm. For purposes of this definition, an entity controls another entity if the entity directly or indirectly or acting in concert with one or more other affiliated entities, or through one or more subsidiaries, owns, controls, holds with power to vote, or holds proxies representing, more than 50 percent of the voting interest in such entity.

(2) “Assurance” means any act or action, whether written or oral, expressing an opinion or conclusion about the reliability of a financial statement or about its conformity with any financial accounting standards.

(3) “Attest services” means providing the following services:

(A) Any audit or other engagement to be performed in accordance with the statements on Auditing Standards (SAS);

(B) Any review of a financial statement to be performed in accordance with the statements on Standards for Accounting and Review Services (SSARS);

(C) Any examination of prospective financial information to be performed in accordance with applicable Statements on Standards for Attestation Engagements (SSAE);

(D) Any engagement to be performed in accordance with the Auditing Standards of the Public Company Accounting Oversight Board (PCAOB); or

(E) Any examination, review or agreed upon procedures engagement to be performed in accordance with the statements on Standards for Attestation Engagements (SSAE), other than an examination described in paragraph (C) of this subdivision.

(4) “Audit” means expressing an opinion about the fairness of presentation of financial statements in accordance with the statements on Auditing Standards.

(5) “Authorization” means an authorization issued pursuant to this article that entitles a permit holder or an individual practitioner to perform attest or compilation services.

(6) “Board” means the West Virginia Board of Accountancy.

(7) “Business entity” means any corporation, partnership, limited partnership, limited liability partnership, professional limited liability partnership, limited liability company, professional limited liability company, joint venture, business trust or any other form of business organization. The term “business entity” includes a firm.

(8) “Certificate” means a certificate as a certified public accountant issued or renewed by the board pursuant to this article or corresponding provisions of prior law.

(9) “Certified public accountant” or “CPA” means the holder of a certificate.

(10) “Client” means a person or entity that agrees with a licensee or licensee’s employer to receive any professional service.

(11) “Commission” means compensation, except a referral fee, for recommending or referring any product or service to be supplied by another person.

(12) “Compilation services” means providing a service performed in accordance with the statements on Standards for Accounting and Review Services that presents, in the form of a financial statement, information that is the representation of management without an expression of assurance on the statement: Provided, That this definition does not apply to the use of the term “compilation” in §30A-2-31 of this code.

(13) “Contingent fee” means a fee established for the performance of any service pursuant to an arrangement in which no fee will be charged unless a specified finding or result is attained, or in which the amount of the fee is otherwise dependent upon the finding or result of the service. A fee fixed by a court, taxing authority or other public authority is not a contingent fee.

(14) “Examination”, when used with reference to prospective financial statements, means expressing an opinion about the fairness of presentation of financial information in accordance with the statements on Standards for Attestation Engagements.

(15) “Financial statement” means a writing or other presentation, including accompanying notes, which presents, in whole or in part, historical or prospective financial position, results of operations or changes in financial position of any person, corporation, partnership or other entity.

(16) “Firm” means any business entity, including, but not limited to, accounting corporations and professional limited liability companies, in which two or more certified public accountants or public accountants hold an ownership or membership interest, in terms of the financial interests and voting rights of all partners, officers, shareholders, members or managers, and the primary business activity of which is the provision of professional services to the public by certified public accountants or public accountants.

(17) “Firm ownership requirements” means, with respect to:

(A) Any professional limited liability company organized pursuant to §31B-13-1 et seq. of this code, consisting of one or more licensed certified public accountants or licensed public accountants;

(B) Any other firm where:

(i) A simple majority of ownership of the firm, in terms of financial interests and voting rights of all partners, officers, shareholders, members or managers, belongs either to:

(I) Certified public accountants holding a certificate under §30A-2-12 of this code or the equivalent provision of another state; or

(II) Public accountants who have met the continuing professional education requirements of §30A-2-12(b) of this code and who are not subject to the exemption or limitation set forth in therein or similar provisions of another state.

(ii) All owners of the firm who are not certified public accountants or public accountants are active participants in the firm or in affiliated entities.

(18) “Foreign” means any country other than the United States.

(19) “Good moral character” means lack of a history of dishonesty or felonious activity.

(20) “Home office” means the client’s office address.

(21) “Individual practitioner” means a certified public accountant or a public accountant who offers professional services to the public but who does not practice in a firm.

(22) “License” means a certificate, permit, registration or authorization.

(23) “Licensee” means the holder of a license.

(24) “Manager” means a manager of a professional limited liability company.

(25) “Member” means a member of a professional limited liability company.

(26) “Nonlicensee” means a person or business entity that does not hold a license.

(27) “Out-of-state certificate” means a valid certificate as a certified public accountant or equivalent designation issued or renewed under the laws of another state: Provided, That “out-of-state certificate” does not include any certificate as a certified public accountant or equivalent designation that was issued or renewed solely by virtue of a holder’s prior status as a public accountant or its equivalent in the state of issuance and not by virtue of the holder’s having met the certification requirements of the state of issuance.

(28) “Out-of-state permit” means a valid permit as a firm of certified public accountants or another designation equivalent to a permit issued or renewed by the board and that is issued or renewed under the laws of another state.

(29) “Peer Review” means a study, appraisal or review of one or more aspects of the professional work of a licensee by a person who holds a certificate or an out-of-state certificate and who is not affiliated with the licensee being reviewed.

(30) “Permit” means a permit issued to a firm pursuant to this article.

(31) “Principal place of business” means the licensee’s office location in the state where the licensee holds a certificate or registration.

(32) “Professional services” means those services that involve the specialized knowledge and skills of a certified public accountant or a public accountant delivered by any means, including but not limited to, in person, by mail, telephone or by electronic means.

(33) “Public accountant” means a person holding a registration who is not a certified public accountant.

(34) “Referral fee” means compensation for recommending or referring any service of a licensee to any person.

(35) “Registration” means a registration as a public accountant issued by the board pursuant to prior law governing the registration of public accountants and renewed by the board pursuant to this article.

(36) “Report”, when used with reference to financial statements, means an opinion or disclaimer of opinion or other form of language or representation which states or implies any form of assurance or denial of assurance.

(37) “Rule” means any rule proposed for legislative approval by the board pursuant to this article.

(38) “State” means any state of the United States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands or Guam.

(39) “Substantial equivalency” or “substantially equivalent” means or refers to a determination by the board or its designee that the education, examination and experience requirements contained in the statutes or rules of another state are comparable to or exceed the education, examination and experience requirements contained in the Uniform Accountancy Act, or that an individual certified public accountant’s education, examination and experience qualifications are comparable to or exceed the education, examination and experience requirements contained in the Uniform Accountancy Act.

(40) “Substantial equivalency practitioner” means any individual whose principal place of business is not in this state, who holds a certificate from another state and has complied with the provisions of §30A-2-16 of this code.

(41) “Uniform Accountancy Act” means the Uniform Accountancy Act, fifth edition, revised (July 2007), jointly published by the American Institute of Certified Public Accountants and the National Association of State Boards of Accountancy.

§30A-2-3. Board of accountancy; appointment; terms, qualifications of members; removal of members; compensation of members; civil liability protection for members.

(a) The West Virginia board of accountancy is hereby continued.

(b) (1) Commencing with the board terms beginning July 1, 2001, the board shall consist of seven members appointed for terms of three years by the Governor with the advice and consent of the Senate. Five members must be certified public accountants; one member must be a public accountant so long as 25 or more public accountants are registered by the board, but if there are fewer than 25 public accountants registered by the board, then the member may be either a public accountant or a certified public accountant; and one member must be a citizen member who is a resident of this state, who is not licensed under the provisions of this article and who also is not a bookkeeper, enrolled agent or a person who provides or offers to provide to the public any bookkeeping, tax preparation, financial advisory or insurance service: Provided, That the members of the board in office on July 1, 2001, shall continue to serve until their respective terms expire.

(2) Each licensed member of the board, at the time of his or her appointment, must have held a license in this state for a period of not less than five years immediately preceding the appointment and each member must be a resident of this state during the appointment term.

(3) Each appointment of a public accountant, whether for a full term or to fill a vacancy, must be made by the Governor from among three nominees selected by the West Virginia Public Accountants Association and each appointment of a certified public accountant, whether for a full term or to fill a vacancy, must be made by the Governor from among three nominees selected by the West Virginia Society of Certified Public Accountants: Provided, That when the appointment of a certified public accountant is to fill the seat held on July 1, 2001, by a public accountant, then the appointment, whether for a full term or to fill a vacancy, must be made by the Governor from among three nominees selected by the West Virginia Public Accountants Association. When the appointment is for a full term, the nominations must be submitted to the Governor not later than eight months prior to the date on which the appointment will become effective. When the appointment is to fill a vacancy, the nominations must be submitted to the Governor within 10 days after a request for the nominations has been made by the Governor to the president of the West Virginia Society of Certified Public Accountants or president of the West Virginia Public Accountants Association. If the society or the association fails to submit to the Governor nominations for an appointment in accordance with the requirements of this section, the Governor may make the appointment without the nominations.

(c) No member may serve more than two consecutive full terms, and any member having served two full terms may not be appointed for one year after completion of his or her second full term. A member shall continue to serve until his or her successor has been appointed and qualified.

(d) If a board member is unable to complete a term, the Governor shall appoint a person of similar qualifications to complete the unexpired term: Provided, That if the board member is a certified public accountant or public accountant, the Governor shall appoint a person from any nominees submitted pursuant to subdivision (3), subsection (b) of this section. Each vacancy occurring on the board must be filled by appointment within 60 days after the vacancy is created.

(e) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.

(f) Any member of the board shall immediately and automatically forfeit his or her membership if he or she has his or her certificate or registration suspended or revoked by the board, is convicted of a felony under the laws of any state or the United States, or becomes a nonresident of this state.

(g) Each member of the board shall receive compensation and expense reimbursement in accordance with §30A-1-18 of this code.

(h) Board members are exempt from civil liability for any decision made or any act done in good faith in the performance of any duty or the exercise of any power granted under this article.

§30A-2-4. Powers of the board.

The board has all the powers set forth in §30A-1-1 et seq. of this code, and in addition may:

(1) Sue and be sued in its official name as an agency of this state;

(2) Hire, fix the compensation of and discharge the employees necessary for the administration of this article;

(3) Examine and determine the qualifications of any applicant for a license;

(4) Issue, renew, deny, suspend, revoke or reinstate licenses and take disciplinary action against licensees;

(5) Investigate alleged violations of the provisions of this article, reasonable rules promulgated hereunder and orders and final decisions of the board;

(6) Conduct hearings upon charges calling for the revocation or suspension of a license or take disciplinary action against a licensee, firm or substantial equivalency practitioner;

(7) Cooperate with the appropriate authorities in other states in the investigation and enforcement of violations of this article or comparable acts of other states;

(8) Propose rules in accordance with the provisions of §29A-3-1 et seq. of this code; and

(9) Take all other actions necessary and proper to effectuate the purposes of this article.

§30A-2-5. Rule-making authority.

(a) The board shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code of this code to implement the provisions of this article, including, but not limited to, the following:

(1) The education required of an applicant;

(2) The experience required of an applicant;

(3) The examination administered under this article;

(4) Issuing or renewing a certificate, registration, permit or authorization;

(5) Denying, suspending, revoking, or reinstating a certificate, registration, permit or authorization;

(6) The conduct of investigations;

(7) Firm ownership requirements;

(8) Accounting corporations;

(9) Substantial equivalency requirements;

(10) Continuing professional education requirements for licensees, including exemptions;

(11) Peer review requirements;

(12) Professional conduct requirements;

(13) Identifying professional services required to be performed in accordance with the applicable statements on standards;

(14) Use of the titles “certified public accountant,” “CPA,” “public accountant” and “PA”;

(15) Use of commissions, referral fees and contingent fees;

(16) Fees for the issuance and renewal of a certificate, registration, permit or authorization and other fees authorized by this article; and

(17) Other rules the board considers necessary and proper for implementing the provisions of this article.

(b) All rules in effect on July 1, 2001, will remain in effect until they are superseded.

§30A-2-6. Fees; special fund; administrative fines.

(a) All fees and other moneys, except administrative fines, received by the board must be deposited in the separate special fund which has been established for the board in the State Treasury and must be used for the administration of this article. Except as may be provided in §30A-1-17 of this code, the board shall retain the amounts in the special fund from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.

(b) Any amounts received as administrative fines imposed pursuant to this article must be deposited into the General Revenue Fund of the State Treasury.

§30A-2-7. Issuance of certificate; certificates issued prior to the first day of July, 2001.

(a) The board shall issue an original certificate to an applicant who demonstrates that:

(1) He or she has met one of the following qualifications for a certificate:

(A) He or she meets the qualifications for a certificate set forth in §30A-2-8 of this code;

(B) He or she holds an out-of-state certificate and meets the requirements of §30A-2-9 of this code;

(C) He or she holds an out-of-state certificate, does not meet the requirements §30A-2-9 of this code, but does meet the requirements of §30A-2-10 of this code; or

(D) He or she holds a substantially equivalent foreign designation and meets the requirements of §30A-2-10 of this code; and

(2) He or she has submitted an application, in writing, on a form prescribed by the board: Provided, That the application must require an applicant to list all states in which he or she has applied for or holds an out-of-state certificate and any past denial, revocation or suspension of an out-of-state certificate;

(3) He or she is trustworthy and of good moral character;

(4) He or she has paid the appropriate fee prescribed by the board;

(5) He or she has submitted to a state and national criminal history record check, as set forth in this subdivision.

(A) This requirement is found not to be against public policy.

(B) The criminal history record check shall be based on fingerprints submitted to the West Virginia State Police or its assigned agent for forwarding to the Federal Bureau of Investigation.

(C) The applicant shall meet all requirements necessary to accomplish the state and national criminal history record check, including:

(i) Submitting fingerprints for the purposes set forth in this subsection; and

(ii) Authorizing the board, the West Virginia State Police and the Federal Bureau of Investigation to use all records submitted and produced for the purpose of screening the applicant for a certificate.

(D) The results of the state and national criminal history record check may not be released to or by a private entity except:

(i) To the individual who is the subject of the criminal history record check;

(ii) With the written authorization of the individual who is the subject of the criminal history record check; or

(iii) Pursuant to a court order.

(E) The criminal history record check and related records are not public records for the purposes of Chapter 29B of this code.

(F) The applicant shall pay the actual costs of the fingerprinting and criminal history record check.

(G) The board may propose rules to implement the provisions of this section for legislative approval in accordance with §29A-3-1 et seq.

of this code. The rules must be consistent with standards established by the Federal Bureau of Investigation and the National Crime Prevention and Privacy Compact as authorized by 42 U. S. C. § 14611, et seq.

(b) Certificates will initially be issued for a period to expire on June 30 following the date of issue.

(c) A certificate issued by the board prior to July 1, 2001, will for all purposes be considered a certificate issued under this section: Provided, That a person holding a certificate issued prior to July 1, 2001, must renew the certificate pursuant to §30A-1-12 of this code.

§30A-2-8. Education, examination and experience certificate requirements.

The board shall issue a certificate to an applicant of good moral character who meets the following requirements:

(1) At least 150 semester hours of college education including a baccalaureate or higher degree conferred by a college or university, the total education program to include an accounting concentration or equivalent, as determined by the board to be appropriate;

(2) Passage of the uniform certified public accountant examination published by the American institute of certified public accountants or its successor and any additional examination required by the board by rule that tests the applicant's knowledge of subjects related to the practice of accounting: Provided, That before applying for the examination required by this subsection, an applicant is required to have met the baccalaureate degree requirement but not the 150 semester hour requirement of subsection (1) of this section; and

(3) At least one year of experience in providing any type of service or advice involving the use of accounting, attest, compilation, management advisory, financial advisory, tax or consulting skills. The experience requirement may be satisfied by employment in private practice, government, industry, not-for-profit organization, academia or public practice. An applicant's experience must be verified by a licensee and must meet requirements specified by rule.

§30A-2-9. Substantial equivalency certificate requirements.

The board shall issue a certificate to an applicant who holds a valid out-of-state certificate if the state of issuance extends similar privileges to holders of certificates under circumstances similar to those described in this section and if the board determines that:

(1) The state of issuance of the out-of-state certificate has certified public accountant certification requirements that are substantially equivalent to the certified public accountant certification requirements of the uniform accountancy act; or

(2) The applicant has individual qualifications that are substantially equivalent to the certified public accountant certification requirements of the uniform accountancy act.

§30A-2-10. Not substantially equivalent certificate requirements.

The board shall issue a certificate to an applicant of good moral character who holds a valid out-of-state certificate but who does not qualify for a certificate under the provisions of §30A-2-9 of this code if the applicant meets the education, experience, examination and continuing education requirements specified by the board by rule.

§30A-2-11. Foreign designation certificate requirements.

The board shall issue a certificate to an applicant of good moral character who holds a foreign designation in public accountancy if:

(1) The foreign authority that granted the designation regulates the practice of public accountancy and allows a person holding a certificate issued by this state to obtain the foreign authority's comparable designation; and

(2) The applicant meets the education, examination, experience and continuing education requirements specified by the board by rule.

§30A-2-12. Certificate renewal; conditions of renewal.

(a) The board shall renew a certificate for a one-year period beginning on July 1, of each year after its issuance in accordance with renewal procedures and fees specified by rule: Provided, That an applicant for renewal of a certificate shall list on his or her application all states and foreign jurisdictions in which he or she has applied for or held an out-of-state certificate or foreign designation and any denial, revocation or suspension of an out-of-state certificate or foreign designation.

(b) The board shall require as a condition for the renewal of a certificate that each certified public accountant participate in continuing professional education in accordance with the requirements specified by rule, subject to the following exemptions and limitations:

(1) The board shall by rule exempt from the continuing professional education requirements set forth in this subsection any certified public accountant who does not perform or offer to perform any professional service to the public, either directly or indirectly through his or her employer.

(2) Any certified public accountant receiving the exemption from continuing professional education requirements must place the word “inactive” adjacent to his or her “CPA” title on any business card, telephone directory listing, letterhead or any other similar document or device, with the exception of the licensee's certificate on which the “CPA” title appears: Provided, That a certified public accountant receiving the exemption from continuing professional education requirements who has completely discontinued his or her performance of professional services, who has no active management or supervisory responsibilities in a firm, and who is at least 62 years of age is not required to place the word “inactive” or any other word adjacent to his or her “CPA” title on any business card, telephone directory listing, letterhead or any other similar document or device.

(3) The board may by rule phase in continuing professional education requirements over a period of three years for any certified public accountant who, as of July 1, 2001, has not been subject to continuing professional education requirements and who subsequently elects to perform or offers to perform any professional service to the public during a subsequent certificate renewal period within the three-year phase-in period.

§30A-2-13. Duty to inform board of denials, suspensions, revocations, limitations.

Each licensee must notify the board, within 30 days of its occurrence, of any denial, suspension or revocation of or any limitation placed on a license or out-of-state certificate.

§30A-2-14. Holder of out-of-state certificate establishing principal place of business in state.

A holder of an out-of-state certificate who intends to establish his or her principal place of business in this state must first apply for the issuance of a certificate.

§30A-2-15. Public accountants.

A person who on July 1, 2001, holds a registration as a public accountant issued under prior law is entitled to have the registration renewed under the same terms, upon fulfillment of the same continuing professional education requirements, on the same renewal schedule and subject to the same restrictions and the payment of the same fees that are required for the renewal of a certificate under §30A-2-12 of this code. Any registration not so renewed will expire on June 30, 2002.

§30A-2-16. Substantial equivalency practice privileges.

(a) An individual whose principal place of business is not in this state and who holds an out-of-state certificate has all the rights and privileges of a certificate holder of this state without the need to obtain a certificate if:

(1) The state that issued the out-of-state certificate has certification requirements that are substantially equivalent to the certification requirements of the Uniform Accountancy Act; or

(2) The individual holds a valid license as a certified public accountant from any state which the National Association of State Boards of Accountancy National Qualification Appraisal Service has not verified to be in substantial equivalence with the CPA licensure requirements of the Uniform Accountancy Act and the individual has obtained from the National Association of State Boards of Accountancy National Qualification Appraisal Service verification that his or her CPA qualifications are substantially equivalent to the CPA licensure requirements of the Uniform Accountancy Act. Any individual who qualifies for practice privileges pursuant to this subdivision before January 1, 2012, and who passed the uniform CPA examination and holds a valid license issued by any other state is exempt from the education requirement in the Uniform Accountancy Act for purposes of this section.

(b) An individual who offers or renders professional services under this section shall be granted practice privileges in this state, and no notice, fee, or other submission is required of any such individual. Such an individual is subject to the requirements in subsection (c) of this section.

(c) (1) Any individual performing or offering to perform any services in the state as a substantial equivalency practitioner and the firm which employs that out-of-state certificate holder are simultaneously subject to the jurisdiction of the board concerning all matters within the scope of this article and are required to comply with the provisions of this article and applicable rules.

(2) The state board of accountancy of the state of issuance of any substantial equivalency practitioner's certificate is appointed as his or her agent upon which process may be served in an action or proceeding by the board.

(d) In the event the certificate from the state of the individual's principal place of business is no longer valid, the individual will cease offering or rendering professional services in this state individually and on behalf of a firm.

(e) Subject to the provisions of subsection (f) of this section, an individual who qualifies for the practice privileges under this section may only perform any of the following services, for any entity with its home office in this state, through a firm which has obtained a permit issued under §30A-2-17 of this code and an authorization issued under §30A-2-19 of this code:

(1) A financial statement audit or other engagement to be performed in accordance with the statements on Auditing Standards;

(2) An examination of prospective financial information to be performed in accordance with the statements on Standards for Attestation Engagements; or

(3) An engagement to be performed in accordance with the Auditing Standards of the Public Company Accounting Oversight Board.

(f) An individual practitioner who is also a substantial equivalency practitioner may provide the services set out in subsection (e) of this section without obtaining a permit issued under §30A-2-17 of this code, but must obtain the authorization issued under §30A-2-19 of this code.

(g) A certificate holder of this state offering or rendering services or using their CPA title in another state is subject to disciplinary action in this state for an act committed in another state for which the certificate holder would be subject to discipline in that other state.

(h) The board shall investigate any complaint made by the board of accountancy of another state.

§30A-2-17. Issuance and renewal of permits.

(a) The board shall grant or renew permits to firm applicants that demonstrate their qualifications in accordance with this section.

(b) Firms meeting the following criteria must hold a permit issued under this section:

(1) Any firm with an office in this state performing attest or compilation services;

(2) Any firm with an office in this state that uses the title “CPA” or “CPA firm”; or

(3) Any firm that does not have an office in this state but performs attest services described in §30A-2-2(3)(A), (C), or (D) of this code for a client having its home office in this state.

(c) A firm that does not have an office in this state may perform services described in §30A-2-2(3)(B) or §30A-2-2(12) of this code, for a client having its home office in this state and may use the title “CPA” or “CPA firm” without a permit issued under this section only if it meets firm ownership requirements and is undergoing a peer review program that conforms with applicable rules, and performs the services through an individual with practice privileges under §30A-1-16 of this code.

(d) A firm that does not have an office in this state and does not perform attest services or compilation services for a client having its home office in this state may perform other professional services while using the title “CPA” or “CPA firm” in this state without a permit issued under this section only if it performs the services through an individual with practice privileges under §30A-2-16 of this code: Provided, That the firm may lawfully perform the services in the state where the individuals with practice privileges have their principal place of business.

(e) Applicants for a permit must demonstrate that:

(1) Each partner, officer, shareholder, member or manager of the firm whose principal place of business is in this state and who performs or offers to perform professional services in this state holds a certificate or a registration; and

(2) The firm meets firm ownership requirements.

(f) An application for the issuance of a permit must be made in the form specified by the board by rule and must include the following information:

(1) The names of all partners, officers, shareholders, members or managers of the firm whose principal place of business is in this state;

(2) The location of each office of the firm within this state and the name of the certified public accountant or public accountant in charge of each office; and

(3) Any issuance, denial, revocation or suspension of an out-of-state permit.

(g) Permits will initially be issued for a period to expire on June 30 following the date of issue.

(h) The board shall renew a permit for a one-year period beginning on July 1, of each year after initial issuance in accordance with the requirements for initial issuance of a permit in this section.

(i) The board shall charge an application fee for the initial issuance or renewal of a permit in an amount specified by rule.

§30A-2-18. Notification of changes in firm ownership; revocation of permit.

(a) A permit holder must notify the board in writing, within 30 days after its occurrence, of any change in the identities of partners, officers, shareholders, members or managers whose principal place of business is in this state, any change in the number or location of offices within this state, any change in the identity of the persons in charge of those offices, and any issuance, denial, revocation or suspension of a permit or equivalent designation by any other state.

(b) The board shall suspend or revoke the permit of any firm that ceases to meet firm ownership requirements due to changes in firm ownership or personnel due to the death or retirement of a partner, officer, shareholder, member or manager and that fails to take corrective action in the manner and during the time period specified by rule.

§30A-2-19. Issuance and renewal of authorizations.

(a) Commencing with July 1, 2001, no person or business entity may provide attest or compilation services without having first obtained an authorization issued by the board. An applicant may apply to provide attest services or compilation services or both. This requirement does not apply to individuals performing attest or compilation services based on the practice privilege under §30A-2-16 of this code except as required under subsection (e) of that section, or to business entities performing attest or compilation services that are not required to obtain a permit under §30A-2-16(c) or (d) of this code. Any substantial equivalency practitioner who issues a compilation report as an individual practitioner or on behalf of a business entity may do so without obtaining an authorization under this section so long as such individual does so in accordance with the requirements set out in subdivisions (1) and (2), subsection (f) of this section.

(b) Applications for the issuance of authorizations must be made in the form specified by the board by rule.

(d) The board shall issue an authorization to a permit holder that demonstrates that:

(1) Any certified public accountant, public accountant or substantial equivalency practitioner who signs or authorizes someone to sign an attest or compilation report on behalf of the permit holder meets the competency requirements set forth in the professional standards for those services specified by rule;

(2) All attest and compilation services rendered by the permit holder in this state are verified by a certified public accountant, substantial equivalency practitioner or a public accountant; and

(3) The permit holder is undergoing a peer review program that conforms with applicable rules.

(e) A firm may simultaneously apply for the issuance or renewal of a permit and the issuance or renewal of an authorization by demonstrating that the firm meets the requirements of §30A-2-17 of this code and subsection (d) of this section.

(f) The board shall issue an authorization to an individual practitioner who demonstrates that he or she:

(1) Signs an attest or compilation report as a certified public accountant, public accountant or substantial equivalency practitioner, as applicable and meets the competency requirements set forth in the professional standards for those services specified by rule; and

(2) Is undergoing a peer review program that conforms with applicable rules.

(g) The board shall renew an authorization for a one year period beginning on July 1, of each year after initial issuance in accordance with the requirements for initial issuance of an authorization in this section.

(h) The board shall charge an application fee for the initial issuance or renewal of an authorization in an amount specified by rule.

§30A-2-20. Refuse to issue or renew; suspension, revocation of license; disciplinary action.

(a) The board may refuse to issue, refuse to renew, suspend, revoke or limit any license or practice privilege of any licensee, substantial equivalency practitioner or firm and may take disciplinary action against a licensee or substantial equivalency practitioner practicing in this state who, after hearing, has been adjudged by the board as unqualified because of any of the following reasons:

(1) Fraud or deceit in obtaining or maintaining a license or substantial equivalency practice privilege;

(2) Cancellation, revocation, suspension or refusal to renew an out-of-state certificate, an out-of-state permit or substantial equivalency practice privilege for disciplinary reasons in any other state for any cause other than a failure to pay an annual fee for the renewal of an out-of-state certificate or out-of-state permit in the other state;

(3) Failure by any licensee to maintain compliance with requirements for issuance or renewal of a license or to timely notify the board as required under §30A-2-18 of this code;

(4) Revocation or suspension of the right of a licensee or substantial equivalency practitioner to practice before any state or federal agency;

(5) Dishonesty, fraud, professional negligence in the performance of services as a licensee or substantial equivalency practitioner or in the filing or failure to file the licensee's or substantial equivalency practitioner's own income tax returns, or a willful departure from accepted standards of professional conduct applicable to licensees and substantial equivalency practitioners;

(6) Violation of any provision of this article or any rule, including the violation of any professional standard or rule of professional conduct;

(7) Conviction of a felony or any crime an element of which is dishonesty or fraud under the laws of the United States or this state, or conviction of any similar crime under the laws of any other state if the underlying act or omission involved would have constituted a crime under the laws of this state;

(8) Performance of any fraudulent act by any licensee or substantial equivalency practitioner;

(9) Any conduct adversely reflecting upon the licensee's or substantial equivalency practitioner's fitness to perform professional services;

(10) Making any false or misleading statement or verification in support of an application for a license filed by another person or firm; or

(11) Engaging in the unlawful practice of law as defined by the West Virginia Supreme Court of Appeals.

(b) If the board suspends, revokes, refuses to issue, refuses to renew or limits any license or practice privilege, the board shall give written notice of the denial, including a statement of charges setting forth the reasons for the denial, and notice of the date, time and place for hearing. The hearing must be held in accordance with the provisions of §30A-2-22 of this code.

(c) Disciplinary action includes, but is not limited to, a reprimand, censure, probation, administrative fine not to exceed $1,000 per day per violation, and mandatory attendance at continuing professional education seminars.

§30A-2-21. Complaints; investigation.

(a) Upon receipt of a written complaint filed against any licensee, substantial equivalency practitioner or firm, the board shall provide a copy of the complaint to the licensee, substantial equivalency practitioner or firm.

(b) The board may investigate the complaint. If the board finds upon investigation that probable cause exists that the licensee, substantial equivalency practitioner or firm has violated any provision of this article or the rules, the board shall serve the licensee, substantial equivalency practitioner or firm with a written statement of charges and a notice specifying the date, time and place of hearing. The hearing must be held in accordance with §30A-2-22 of this code.

(c) The board may review the publicly available professional work of a licensee, substantial equivalency practitioner, or firm on a general and random basis, without any requirement of a formal complaint or suspicion of impropriety. If the board discovers reasonable grounds, the board may conduct an investigation and upon its own motion, may file a written statement of charges, including a notice specifying the date, time and place of hearing, against the licensee, firm or substantial equivalency practitioner.

§30A-2-22. Hearing; judicial review; notification to out-of-state board of accountancy; costs of proceedings.

(a) A hearing on a statement of charges must be held in accordance with the provisions for hearing set forth in §30A-1-13 of this code and procedures specified by rule.

(b) Any licensee, substantial equivalency practitioner or firm adversely affected by any decision of the board entered after a hearing may obtain judicial review of the decision in accordance with §29A-5-4 of this code, and may appeal any ruling resulting from judicial review in accordance with §29A-5-1 et seq. of this code.

(c) If the board renders a decision refusing to issue, refusing to renew, suspending or revoking a license, or the board takes disciplinary action, the board shall determine whether the licensee, substantial equivalency practitioner or firm holds an out-of-state certificate or permit, and if so, the board shall notify the board of accountancy of the state of issuance of its decision in the manner, under the circumstances and within the time specified by rule.

(d) In addition to other sanctions imposed, the board shall require a licensee, firm or substantial equivalency practitioner to pay the costs of the proceeding.

§30A-2-23. Reinstatement.

If the board has suspended, revoked or refused to renew a license or has revoked the practice privileges of a substantial equivalency practitioner, the licensee, firm or substantial equivalency practitioner against whom action has been taken under the provisions of this article, must be afforded an opportunity to demonstrate the qualifications to resume practice. The application for reinstatement must be in writing and is subject to the procedures specified by rule.

§30A-2-24. Licensees' working papers; clients' records.

(a) Any statement, record, schedule, working paper, and memorandum made by a licensee or a partner, shareholder, officer, director, member, manager or employee of a licensee incident to, or in the course of, rendering services to a client while a licensee, remains the property of the licensee in the absence of an express agreement between the licensee and the client to the contrary: Provided, That this subsection does not apply to a report submitted by the licensee to the client or to a statement, record, schedule, working paper or memorandum provided by the client to the licensee or to a partner, shareholder, officer, director, member, manager or employee of a licensee.

(b) No statement, record, schedule, working paper, or memorandum made by a licensee or a partner, shareholder, officer, director, member, manager or employee of a licensee incident to, or in the course of, rendering services to a client while a licensee may be sold, transferred or bequeathed, without the consent of the client or the client's personal representative or assignee, to anyone other than one or more surviving partners, stockholders, members or new partners, new stockholders, or new members of the licensee, or any combined or merged firm or successor in interest to the licensee.

(c) Nothing in this section may be construed to prohibit any temporary transfer of a workpaper or other material necessary in the course of carrying out a peer review or as otherwise interfering with the disclosure of information as authorized by rule.

(d) In addition to any statement, record, schedule, working paper, memorandum or report required to be furnished or returned to a client in accordance with subsection (a) of this section, a licensee shall furnish to a client or former client, upon request made within a reasonable time after original issuance of the document in question:

(1) A copy of the tax return of the client;

(2) A copy of any report or other document issued by the licensee to or for the client and not formally withdrawn or disavowed by the licensee prior to the request;

(3) A copy of any working paper, to the extent that it would ordinarily constitute part of the client's records and is not otherwise available to the client; and

(4) Any accounting or other record belonging to, or obtained from or on behalf of, a client that the licensee removed from the client's premises or received for the client's account: Provided, That a licensee may make and retain copies of the documents of the client when they form the basis for work done by the licensee.

(e) Nothing in this section requires a licensee to keep any workpaper beyond the period prescribed in any other applicable statute.

§30A-2-25. Commissions, referral fees and contingent fees.

(a) To the extent specified by rule, a licensee may for a contingent fee represent a client before a taxing authority within the scope of practice of public accounting: Provided, That this provision may not be construed either to limit or to expand the scope of practice of public accounting, and may not be construed to permit the unauthorized practice of law.

(b) All agreements or arrangements in which a licensee is to be paid a commission, referral fee or contingent fee must be in writing, state the method by which the fee is to be determined, must be signed by both the licensee and the client, and must be delivered to the client before the performance of any services or the delivery of any product to which the commission, referral fee or contingent fee relates. A contingent fee arrangement must state the method of calculation of the fee, including the percentage or percentages which accrue to the licensee in the event of all foreseeable outcomes, the expenses to be deducted from any recovery, collection or other amount on which the fee may be based, and whether the expenses are to be deducted before or after the contingent fee is calculated.

§30A-2-26. Unlawful acts.

(a) No authorization holder or substantial equivalency practitioner may perform attest or compilation services in a manner other than pursuant to the statements on standards relating to those services specified by rule.

(b) (1) No licensee or substantial equivalency practitioner or firm may, for a commission or referral fee, recommend or refer to a client any product or service or refer any product or service to be supplied by a client, or perform for a contingent fee any professional services for or receive a referral fee, commission or contingent fee from a client for whom the licensee, the substantial equivalency practitioner or firm works or associates or in which either of them owns an interest or who performs for that client:

(A) An audit or review of a financial statement;

(B) A compilation of a financial statement when the licensee or substantial equivalency practitioner expects, or reasonably might expect, that a third party will use the financial statement and the compilation report does not disclose a lack of independence; or

(2) The prohibition in subdivision one of this subsection applies only during the period in which the licensee or substantial equivalency practitioner is engaged to perform any of the services listed in subdivision (1) of this subsection and the period covered by any historical financial statements involved in any of those listed services.

(c) No licensee or substantial equivalency practitioner may for a contingent fee prepare an original or amended tax return or claim for a tax refund or serve as an expert witness.

(d) No licensee may use a professional or firm name or designation that: (1) Is deceptive or misleading about the legal form of the firm, or about the persons who are partners, officers, members, managers or shareholders of the firm, or about any other matter; or (2) contains a name or term other than past or present partners, officers, members, managers or shareholders of the firm or of a predecessor firm engaged in the practice of accounting.

(e) No person or firm that does not hold an authorization to perform attest services, or is not otherwise exempt from the authorization requirement, may perform or offer to perform attest services, and no person or firm that does not hold an authorization to perform compilation services, or is not otherwise exempt from the authorization requirement, may perform or offer to perform compilation services.

(f) No individual practitioner who holds an authorization may perform or offer to perform attest services for a client of his or her employer through or on behalf of his or her employer.

(g) No person who is not a certified public accountant, a public accountant or a substantial equivalency practitioner may:

(1) Issue a report on financial statements of any other person, business entity, or governmental unit or otherwise render or offer to render any attest or compilation service: Provided, That this subdivision does not prohibit any act of a public official or public employee in the performance of that person's duties or the performance by any person of other services involving the use of accounting skills, including the preparation of tax returns, management advisory services, and the preparation of financial statements without the issuance of reports thereon: Provided, however, That this subdivision does not prohibit any person who is not a certified public accountant, a public accountant or a substantial equivalency practitioner to prepare financial statements or issue nonattest transmittals of information thereon that do not purport to have been performed in accordance with the applicable statements on standards;

(2) Claim to hold a certificate, registration or authorization or make any other claim of licensure or approval related to the preparation of financial statements or the issuance of reports thereon that is false or misleading;

(3) Claim to have used “generally accepted accounting principles,” “generally accepted accounting standards,” “public accountancy standards,” “public accountancy principles,” “generally accepted auditing principles” or “generally accepted auditing standards” in connection with the preparation of any financial statement, or use any of these terms to describe any complete or partial variation from those standards or principles or to imply complete or partial conformity with those standards or principles;

(4) State or imply that he or she is tested, competent, qualified or proficient in financial standards established by the American institute of certified public accountants or any agency thereof, the governmental accounting standards board or any agency thereof, the securities and exchange commission or any agency thereof, the financial accounting standards board or any agency thereof, or any successor entity to any of these entities;

(5) Assume or use the titles “certified accountant,” “chartered accountant,” “enrolled accountant,” “licensed accountant,” “registered accountant,” “Auditor,” “independent Auditor” or any other title or designation that a reasonable person may confuse with the titles “certified public accountant” or “public accountant,” or assume or use the abbreviations “CA,” “LA,” “RA,” or similar abbreviation that a reasonable person may confuse with the abbreviations “CPA” or “PA”: Provided, That the title “Enrolled Agent” and the abbreviation “EA” may only be used by individuals so designated by the Internal Revenue Service;

(6) Use language in any statement relating to the financial affairs of a person or entity that is conventionally used by a licensee in a report on a financial statement;

(7) Use the words “audit,” “audit report,” “independent audit,” “examine,” “examination,” “opinion” or “review” in a report on a financial statement;

(8) Assume or use any title that includes the words “accountant,” “Auditor,” or “accounting” in connection with any other language (including the language of a report) that implies that the person or business entity holds a license or has special competence in accounting or auditing: Provided, That this subdivision does not prohibit any officer, partner, member, manager or employee of any business entity from affixing that person's own signature to any statement in reference to the financial affairs of the business entity with any wording designating the position, title, or office that the person holds therein, nor does it prohibit any act of a public official or employee in the performance of the person's duties;

(9) Use or assume the title “certified public accountant,” the abbreviation “CPA,” or any other title, designation, word, combination of letters, abbreviation, sign, card or device that may lead a reasonable person to believe that the person is a certified public accountant or the holder of an out-of-state certificate; or

(10) Assume or use the title “public accountant,” the abbreviation “PA,” or any other title, designation, word, combination of letters, abbreviation, sign, card or device that may lead a reasonable person to believe that the person is a public accountant.

(h) Only a business entity that holds a permit or is exempt from the permit requirement under §30A-2-17(c) or (d) of code, may assume or use the designations “certified public accountants,” “CPA firm,” “public accountants,” or “PA firm” or the abbreviations “CPAs,” or “PAs,” or any other title, designation, word, combination of letters, abbreviation, sign, card or device that may lead a reasonable person to believe that the business entity is a firm or holds a permit.

(i) The display or uttering by a person of any printed, engraved or written instrument, bearing the name of the person in conjunction with any of the claims, titles, words or phrases listed in this section is, for purposes of this section, prima facie evidence that the person has engaged in the acts.

(j) Notwithstanding any provision in this section to the contrary, it is not a violation of this section for a firm or business entity which does not hold a permit under §30A-2-17 of this code or an authorization under §30A-2-19 of this code and which does not have an office in this state to provide its professional services in this state so long as it complies with §30A-2-17(c) or (d) of this code, whichever is applicable, and with any applicable provision of §30A-2-19 of this code.

§30A-2-27. Injunctions against unlawful acts.

When, as a result of an investigation under this article or otherwise, the board or any other interested person believes that any person or business entity has engaged, is engaging, or is about to engage in any acts or practices that constitute or will constitute a violation of §30A-2-26 of this code, the board or any other interested person may make application to any court of competent jurisdiction for an order enjoining the acts or practices, and upon a showing that the person or business entity has engaged or is about to engage in any act or practice, an injunction, restraining order, or another appropriate order may be granted by the court without bond.

§30A-2-28. Criminal proceedings; penalties.

(a) When, by reason of an investigation under §30A-2-19 of this code or otherwise, the board has reason to believe that any person or firm has knowingly engaged in acts or practices that constitute a violation of §30A-2-26 of this code, the board may bring its information to the attention of the Attorney General or other appropriate law-enforcement officer who may cause appropriate criminal proceedings to be brought thereon.

(b) Any person or firm who knowingly violates any provision of §30A-2-26 of this code is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or imprisoned in the county or regional jail not more than one year, or both fined and imprisoned.

§30A-2-29. Single act evidence of practice.

In any action or proceeding brought under §30A-2-27 or §30A-2-28 of this code or any proceeding initiated under §30A-2-21 of this code, evidence of the commission of a single act prohibited by this article is sufficient to justify a penalty, injunction, restraining order or conviction, respectively, without evidence of a general course of conduct.

§30A-2-30. Accounting corporations.

(a) All accounting corporations created prior to July 1, 2001, are hereby continued.

(b) On or after July 1, 2001, one or more certified public accountants or public accountants may organize and become a shareholder or shareholders of an accounting corporation domiciled within this state under the terms and conditions and subject to the limitations and restrictions specified by rule.

(c) When the Secretary of State receives a certification of authorization to act as an accounting corporation, he or she shall attach the authorization to the corporation application and, upon compliance with the applicable provisions of Chapter 31 of this code, the Secretary of State shall issue to the incorporators a certificate of incorporation for the accounting corporation.

§30A-2-31. Inapplicability of article.

(a) Nothing contained in this article may be construed to prevent any person from describing himself or herself as an “accountant” or a “bookkeeper” or from stating that he or she practices accountancy or bookkeeping; nor, subject to certification and registration requirements herein imposed, may this article be construed to prevent any person from: (1) Performing services involving the use of accounting skills; (2) rendering tax services, management advisory or consulting services; (3) keeping of books of account and related accounting records; or (4) preparing, compiling or assembling financial statements without the expression of an assurance.

(b) The prohibitions of this section and the other provisions of this article may not be construed to preclude a person or business entity not holding a certificate or registration from using the following or substantially similar language: “I (We) have compiled the accompanying (financial statements) of (name of entity) as of (time period) for the (period) then ended. A compilation is limited to presenting in the form of financial statements information that is the representation of management (owners). I (We) have not audited or reviewed the accompanying financial statements and, accordingly, do not express an opinion or any other form of assurance on them. Management has elected to omit substantially all (or certain) required disclosures (and the statement of changes in financial position). If omitted disclosures were included in the financial statements, they might influence the user's conclusions about the (entity's) financial position, results of operations and changes in financial position. Accordingly, these financial statements are not designed for those who are not informed about these matters.”

(c)Nothing contained in this article may be construed to prohibit an employee from furnishing services to his or her employer.

(d) Nothing in this article prohibits a practicing attorney or group of attorneys from preparing or presenting records or documents customarily prepared by an attorney or group of attorneys in connection with the attorney's professional work in the practice of law.

§30A-2-32. Mandatory training in federal antitrust law and state action immunity.

It shall be required of the West Virginia Board of Accountancy, and their representatives from the Attorney General’s office, to obtain initial training on the subject of federal antitrust law and state action immunity by July 1, 2016, and thereafter on an annual basis. The purpose of the training is to provide those members with the knowledge to be able to identify the risks of any action that may be taken by the board that could be construed as possible antitrust violations.

§30A-2-33. Indemnification.

In the event that a lawsuit is filed alleging violation of federal antitrust laws, the board may indemnify its board members and current and former employees for expenses reasonably incurred in connection with judicial or administrative proceedings to which they are or may become parties by reason of the performance of their official duties

ARTICLE 3. ARCHITECTS.

§30A-3-1. Board of architects.

In order to safeguard the life, health, property and public welfare of the people of this state and to protect the people against the unauthorized, unqualified and improper practice of architecture, the West Virginia board of architects, heretofore created, shall continue in existence and shall consist of seven members, five of whom shall be architects, appointed by the Governor by and with the advice and consent of the Senate, and two of whom shall be lay members, not of the same political party affiliation, appointed by the Governor by and with the advice and consent of the Senate. Each member who is an architect shall have been engaged in the active practice of his or her profession in the State of West Virginia for not fewer than 10 years previous to his or her appointment. The members of the board in office on the date this article takes effect, in the year 2020, shall, unless sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and have qualified. Each member shall be appointed for a term of five years.

The board shall pay each member the same compensation and expense reimbursement as is paid to members of the Legislature for their interim duties as recommended by the citizens legislative compensation commission and authorized by law for each day or portion thereof engaged in the discharge of official duties.

Pursuant to the provisions of Chapter 29A of this code, the board, in addition to the authority, powers and duties granted to it by this article, has the authority to promulgate rules relating to the regulation of the practice of architecture and may include rules pertaining to the registration of architects. Any disciplinary proceedings held by the board shall be held in accordance with the provisions of the administrative procedures act for contested cases pursuant to the provisions of §29A-5-1 et seq. of this code.

§30A-3-2. Definitions.

The following words as used in this article, unless the context otherwise requires, have the following meanings:

(1) “Architect” means any person who engages in the practice of architecture as hereinafter defined.

(2) “Board” means the West Virginia board of architects established by §30A-3-1of this code.

(3) “Direct supervision” means that degree of supervision by a person overseeing the work of another person whereby the supervisor has both control over and detailed professional knowledge of the work prepared under his or her supervision.

(4) “Good moral character” means such character as will enable a person to discharge the fiduciary duties of an architect to his or her client and to the public for the protection of health, safety and welfare. Evidence of inability to discharge such duties include the commission of an offense justifying discipline under §30A-3-8 of this code.

(5) “Practice of architecture” means rendering or offering to render those services, hereinafter described, in connection with the design and construction, enlargement or alteration of a building or group of buildings and the space within and surrounding such buildings, which have as their principal purpose human occupancy or habitation; the services referred to include planning, providing preliminary studies, designs, drawings, specifications and other technical submissions and administration of construction contracts.

(6) “Registered architect” means an architect holding a current registration.

(7) “Registration” means the certificate of registration issued by board.

(8) “Technical submissions” means designs, drawings, specifications, studies and other technical reports prepared in the course of practicing architecture.

§30A-3-3. Fees.

(a) Notwithstanding any other provision of the law to the contrary, the board is authorized and empowered to establish by legislative rule in accordance with the provisions of §29A-3-1 et seq. of this code a schedule of fees to be charged to applicants. The board shall charge for: Examination, reexamination, renewal of certificates, restoration of expired certificates, reciprocal registration and for any other matters deemed appropriate by the board.

(b) Until such time as the board establishes otherwise, the fees previously set by legislative rule remain in effect.

§30A-3-4. Registration qualifications.

Every person applying to the board for initial registration shall submit an application accompanied by the fee established in accordance with §30A-3-3 this code with satisfactory evidence that such person holds an accredited professional degree in architecture or has completed such other education as the board considers equivalent to an accredited professional degree and with satisfactory evidence that such person has completed such practical training in architectural work as the board requires. If an applicant is qualified, the board shall, by means of a written examination, examine the applicant on such technical and professional subjects as prescribed by it. None of the examination materials are public records as defined in §29B-1-1 et seq. of this code. The board may exempt from such written examination an applicant who holds certification issued by the national council of architectural registration boards. The board may adopt as its own rules governing practical training and education those guidelines published from time to time by the national council of architectural registration boards. The board may also adopt the examinations and grading procedures of the national council of architectural registration board and the accreditation decisions of the national architectural accrediting board. The board shall issue its registration to each applicant who is found to be of good moral character and who satisfies the requirements set forth in this section. The registration is effective upon issuance.

§30A-3-5. Registration renewal.

The board shall mail each year to every registered architect an application for renewal of registration. The application, properly filled out and accompanied by the renewal fee established in accordance with §30A-3-3 of this code, shall be returned to the board on or before the date established by the board. After verification of the facts stated in the renewal application, the board shall issue a registration which is valid for one year, expiring on June 30 of each year. Any holder of a registration who fails to renew his or her application on or before the prescribed date, before again engaging in the practice of architecture within the state, is required to apply for reinstatement, pay the prescribed fee and, in circumstances considered appropriate by the board, may be required to be reexamined.

§30A-3-6. Certificate of registration.

Every registered architect having a place of business or employment within the state shall display his or her certificate of registration in a conspicuous place in such place of business or employment. A new certificate of registration, to replace a lost, destroyed or mutilated certificate, shall be issued by the board upon payment of a fee established in accordance with §30A-3-3 of this code and such certificate shall be stamped or marked “duplicate.”

§30A-3-7. Seal.

(a) Every registered architect shall have a seal of a design authorized by the board by rule. All technical submissions prepared by such architect, or under his or her direct supervision, shall be stamped with the impression of his or her seal. No architect holding a registration may impress his or her seal on any technical submissions unless they were prepared under his or her direct supervision: Provided, That in the case of the portions of such technical submissions prepared under the direct supervision of persons consulting with or employed by the architect, the architect may sign or seal those portions of the technical submission if the architect has reviewed such portions and has coordinated their preparation.

(b) No public official charged with the enforcement duties of a municipal building inspector may accept or approve any technical submissions involving the practice of architecture unless the technical submissions have been stamped as required by this section or by a registered engineer or the applicant has certified thereon the applicability of a specific exception under §30A-2-12 of this code permitting the preparation of such technical submissions by a person not registered thereunder. A building permit issued with respect to technical submissions which do not conform with the requirements of this section is invalid.

§30A-3-8. Disciplinary powers.

The board may revoke, suspend or annul a registration, or impose a civil penalty in an amount not more than $2,000 for each violation, upon satisfactory proof to the board that any person has violated the provisions of this article or any rules promulgated by the board under this article. In hearing matters arising under this section, the board may take into account suitable evidence of reform.

§30A-3-9. Disciplinary proceedings.

Charges against any person involving any matter coming within the jurisdiction of the board shall be in writing and shall be filed with the board. Such charges, at the discretion of the board, shall be heard within a reasonable time after being so filed. The accused person has the right at such hearing to appear personally, with or without counsel, to cross-examine adverse witnesses and to produce evidence and witnesses in his or her defense. The board shall set the time and place for such hearing and shall cause a copy of the charges, together with a notice of the time and place fixed for the hearing, to be sent by registered mail to the accused person, at his or her latest place or residence or business known to the board, at least 30 days before such date. If after such hearing the board finds the accused person has violated any of the provisions of this article or any of the rules promulgated by the board, it may issue any order described in §30A-3-8 of this code. If the board finds no such violation, then it shall enter an order dismissing the charges. If the order revokes, suspends or annuls an architect's registration, the board shall so notify, in writing, the Secretary of State and the clerk of the municipality in the state wherein such architect has a place of business, if any.

The board may reissue a registration to any person whose registration has been revoked. Application for the reissuance of the registration shall be made in such a manner as the board may direct and shall be accompanied by a fee established in accordance with §30A-3-3 of this code.

§30A-3-10. Registration; prima facie evidence.

Every registration issued and remaining in force is prima facie evidence in all courts of the state that the person named therein is legally registered as an architect for the period for which it is issued and of all other facts stated therein.

§30A-3-11. Prohibition.

Except as hereinafter set forth in §30A-3-12 of this code, no person may directly or indirectly engage in the practice of architecture in the state or use the title “architect,” “registered architect,” “architectural designer,” or display or use any words, letters, figures, titles, sign, card, advertisement or other symbol or device indicating that such person is an architect or is practicing architecture, unless he or she is registered under the provisions of this article. No person may aid or abet any person, not registered under the provisions of this chapter, in the practice of architecture.

§30A-3-11a. Construction administration services required.

(a) The owner of any real property who allows a project to be constructed on such real property shall be engaged in the practice of architecture unless such owner may have employed or may have caused others to have employed a registered architect or registered engineer to furnish “construction administration services” with respect to such project.

(b) For purposes of this section, the following terms shall have the following meanings:

(1) “Building official” means the person appointed by the municipality or state subdivision having jurisdiction over the project to have principal responsibility for the safety of the project as finally built.

(2) “Construction administration services” comprises at the following services: (A) Visiting the construction site on a regular basis as is necessary to determine that the work is proceeding generally in accordance with the technical submissions submitted to the building official at the time the building permit was issued; (B) processing shop drawings, samples, and other submittals required of the contractor by the terms of construction contract documents; and (C) notifying an owner and the building official of any code violations, changes which affect code compliance, the use of any materials, assemblies, components, or equipment prohibited by a code, major or substantial changes between such technical submissions which he or she identifies as constituting a hazard to the public, which he or she observes in the course of performing his or her duties.

(3) “Owner” means with respect to any real property and of the following persons: (A) The holder of a mortgage secured by such real property; (B) the holder, directly or indirectly, of an equity interest in such real property exceeding 10 percent of the aggregate equity interests in such real property; (C) the record owner of such real property; or (D) the lessee of all or any portion of such real property when the lease covers all of that portion of such real property upon which the project is being constructed, the lessee has significant approval rights with respect to the project, and the lease, at the time the construction of the project begins, has a remaining term of not less than 10 years.

(4) “Project” means the construction, enlargement, or alteration of a building, other than a building exempted by the provisions of §30A-3-12 of this code, which has as its principal purpose human occupancy or habitation.

(c) If the registered engineer or registered architect who sealed the technical submissions which were submitted to the building official at the time the building permit was issued has not been employed to furnish construction administration services at the time such registered architect or registered engineer issued such technical submissions, he or she shall note on such technical submissions that he or she has not been so employed. If he or she is not employed to furnish construction administration services when construction of the project begins, he or she shall file, not later than 30 days after such construction begins, with the board and with the building official, on a form prescribed by the board, a notice setting forth the names of the owner or owners known to him or her, the address of the project, and the name, if known to him or her, of the registered architect employed to perform construction administration services. If he or she believes that no registered architect or registered engineer has been so employed, he or she shall so state on the form. Any registered architect or registered engineer who fails to place the note on his or her technical submissions or to file such notice, as required by this paragraph, shall have violated the provisions of this chapter and shall be subject to discipline as set forth herein.

(d) If the board determines, with respect to a particular project or class of projects, that the public is adequately protected without the necessity of a registered architect or registered engineer performing construction administrative services, the board may waive the requirements of this section with respect to such project or class of projects.

§30A-3-12. Exceptions.

Nothing in this article may be construed to prevent:

(a) Any of the activities that, apart from this exemption, would constitute the practice of architecture, if performed in connection with any of the following:

(1) A detached single family dwelling and any sheds, storage buildings and garages incidental thereto;

(2) A multifamily residential structure not in excess of three stories excluding any basement area;

(3) Farm buildings, including barns, silos, sheds or housing for farm equipment and machinery, livestock, poultry or storage, if such structures are designed to be occupied by no more than 10 persons;

(4) Any alteration, renovation or remodeling of a building, if such alteration, renovation or remodeling does not affect structural or other safety features of the building or if the work contemplated by the design does not require the issuance of a permit under any applicable building code;

(5) Preengineered buildings, including mobile classrooms purchased by county school boards; and

(6) A commercial structure which is to contain not more than 7600 square feet and not in excess of one story excluding any basement area.

(b) The preparation of any detailed or shop drawings required to be furnished by a contractor, or the administration of construction contracts by persons customarily engaged in contracting work.

(c) The preparation of technical submissions or the administration of construction contracts by employees of a person or organization lawfully engaged in the practice of architecture when such employees are acting under the direct supervision of a registered architect.

(d) Officers and employees of the United States of America from engaging in the practice of architecture as employees of said United States of America.

(e) A partnership, corporation or other business entity from performing or holding itself out as able to perform any of the services involved in the practice of architecture, provided such practice is actually carried on under the direct supervision of architects registered in the State of West Virginia.

(f) A nonresident, who holds a certificate to practice architecture in the state in which he or she resides and in addition holds the certification issued by the national council of architectural registration boards, from agreeing to perform or holding herself or himself or herself out as able to perform any of the professional services involved in the practice of architecture: Provided, That he or she may not perform any of the professional services involved in the practice of architecture until registered as hereinbefore provided and he or she notifies the board in writing if, prior to registration, he or she engages in any of the activities permitted by this paragraph.

(g) The practice of landscape architecture as defined in §30A-7-4 of this code.

§30A-3-13. Enforcement.

The board shall enforce the provisions of this article and of the rules adopted hereunder. If any person refuses to obey any decision or order of the board, the board or, upon the request of the board, the Attorney General or the appropriate prosecuting attorney, may file an action for the enforcement of such decision or order, including injunctive relief, in the circuit court of the county of residence of such person. After due hearing, the court shall order the enforcement of such decision or order, or any part thereof, if legally and properly made by the board and, where appropriate, injunctive relief.

§30A-3-14. Penalties.

Whoever violates any provision of this article is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $1,000 or imprisoned in the county jail for not more than 12 months, or both fined and imprisoned.

ARTICLE 4. ENGINEERS.

§30A-4-1. Legislative findings; intent.

The Legislature hereby determines the need to regulate the practice of engineering; to provide for the registration of qualified persons as professional engineers and the certification of engineer interns; to define the terms “engineer”, “professional engineer”, “engineer intern” and “practice of engineering”; to create a state board of registration for professional engineers and provide for the appointment and compensation of its members; to fix the term of members of the board and define its powers and duties; to set forth the minimum qualifications and other requirements for registration as an engineer and certification as an engineer intern; to establish registration fees with expiration and renewal requirements; to impose certain duties upon the state and political subdivisions thereof in connection with public works; and to provide for the enforcement of this article and penalties for its violation.

§30A-4-2. General provisions.

In order to safeguard life, health and property and to promote the public welfare, the practice of engineering in this state is hereby declared to be subject to regulation in the public interest. It is unlawful for any person to practice or to offer to practice engineering in this state, as defined in the provisions of this article, or to use in connection with his or her name or otherwise assume or advertise any title or description tending to convey the impression that he or she is a registered or licensed engineer, unless the person has been duly registered or exempted under the provisions of this article. Engineering is hereby declared a learned profession and its practitioners are held accountable to the state and the public by professional standards in keeping with the ethics and practice of other learned professions in this state. The practice of engineering is a privilege granted by the state.

§30A-4-3. Definitions.

Unless the context in which used clearly requires a different meaning as used in this article:

(a) “Board” means the West Virginia state board of registration for professional engineers as provided for in this article.

(b) “Consulting engineer” means a professional engineer whose principal occupation is the independent practice of engineering; whose livelihood is obtained by offering engineering services to the public; who serves clients as an independent fiduciary; who is devoid of public, commercial and product affiliation that might tend to infer a conflict of interest; and who is cognizant of their public and legal responsibilities and is capable of discharging them.

(c) “Engineer” means a person who is qualified to practice engineering by reason of special knowledge and use of the mathematical, physical and engineering sciences and the principles and methods of engineering analysis and design, acquired by engineering education and engineering experience.

(d) “Engineer intern” means a person who has qualified for, taken and has passed an examination in the fundamental engineering subjects, as provided in this article.

(e) “Practice of engineering” means any service or creative work, the adequate performance of which requires engineering education, training and experience in the application of special knowledge of the mathematical, physical and engineering sciences to such services or creative work as consultation, investigation, evaluation, planning and design of engineering works and systems; planning the use of land and water; teaching of advanced engineering subjects, engineering surveys and studies; and the review of construction for the purpose of assuring compliance with drawings and specifications any of which embraces such services or work, either public or private, in connection with any utilities, structures, buildings, machines, equipment, processes, work systems, projects and industrial or consumer products or equipment of a mechanical, electrical, hydraulic, pneumatic or thermal nature, insofar as they involve safeguarding life, health or property, and including such other professional services as may be necessary to the planning, progress and completion of any engineering services. Engineering surveys include all survey activities required to support the sound conception, planning, design, construction, maintenance and operation of engineered projects.

Any person who practices any branch of the profession of engineering or who, by verbal claim, sign, advertisement, letterhead, card or in any other way represents himself or herself to be a professional engineer, or by using another title implies that he or she is a professional engineer or that he or she is registered under this article or who holds himself or herself out as able to perform, or who performs any engineering service or work or any other service designated by the practitioner which is recognized as engineering, is considered to practice or offer to practice engineering within the meaning and intent of this article.

(f) “Professional engineer” means a person who has been duly registered or licensed as a professional engineer by the board. The board may designate a professional engineer, on the basis of education, experience and examination, as being licensed in a specific discipline or branch of engineering signifying the area in which the engineer has demonstrated competence.

(g) “Responsible charge” means direct control and personal supervision of engineering work.

(h) “Rules of professional responsibility for professional engineers” means those rules, if any, promulgated by the West Virginia state board of registration for professional engineers as authorized by this article.

§30A-4-4. Board of registration for professional engineers; appointment and term.

There is hereby created the board of registration for professional engineers which shall hereafter be referred to as the board. The board shall be composed of five members appointed by the Governor, by and with the consent of the Senate, preferably from a list of names submitted by the West Virginia society of professional engineers. The members of the board shall be qualified and shall meet the requirements of §30A-4-5 of this code. The Governor shall present each board member with a certificate of appointment. Each board member shall make and file an oath or affirmation with the Secretary of State to faithfully execute the duties of a member of the board. Members of the board shall serve a term of five years. Of the members first appointed, one shall serve a term of one year, one shall serve a term of two years, one shall serve a term of three years, one shall serve a term of four years and one shall serve a term of five years. Members are eligible for reappointment but no member may be appointed for more than three full consecutive terms. Each member shall hold office until the expiration of the term for which appointed or until a successor has been duly appointed and has qualified. In the event of a vacancy on the board due to resignation, death or for any cause resulting in an unexpired term and if not filled within three months by the Governor, the board may appoint a member to serve in the vacancy until the Governor makes the appointment. Members of the former board whose terms have not expired shall fill the term on this board which corresponds with the length of the unexpired term of that member.

§30A-4-5. Board qualifications.

Each member of the board must be a citizen of the United States and a resident of this state. Each member shall have been engaged in the lawful practice of engineering as a professional engineer for at least 12 years; shall have been in responsible charge of engineering projects for at least five years; and shall be a registered professional engineer in this state.

§30A-4-6. Compensation and expenses.

Each member of the board shall receive compensation for time spent, and reimbursement for reasonable and necessary expenses incurred, in the performance of board-related duties pursuant to §30A-1-18 of this code.

§30A-4-7. Removal of members and vacancies.

The Governor may remove any member of the board for misconduct, incompetency, neglect of duty or for any reason prescribed by law for removal of state officials. Vacancies in the membership of the board shall be filled for the unexpired term.

§30A-4-8. Organization and meetings.

The board shall hold at least one regular meeting each year. Special meetings may be held as the bylaws of the board provide. Each year the board shall elect the following officers: A president, a vice president and a secretary, who shall serve at the will and pleasure of the board. A quorum of the board shall consist of not less than three professional engineer members.

§30A-4-9. Board powers.

(a) The board may adopt and amend bylaws not inconsistent with the Constitution and laws of this state. The board may promulgate and shall adopt “rules of professional responsibility for professional engineers”. These rules are binding to any person registered with the board under the provisions of this article. These rules are also applicable to firms holding a certificate of authorization as provided in §30A-4-17 of this code.

(b) The board may subpoena witnesses and compel their attendance and it may also subpoena books, papers, documents or other pertinent data in any disciplinary matters or in any case involving an allegation of a violation of the provisions of this article. The board may apply to the circuit court of Kanawha county to enforce compliance with any subpoena it issues.

(c) The board may seek an injunction in circuit court to enforce the provisions of this article or to restrain a person or entity from violating a provision of this article. In pursuing injunctive relief under this section, the board shall not be required to prove that an adequate remedy at law does not exist or that substantial or irreparable damage would result from the continued violation. The members of the board may not be personally liable for any decisions made in good faith in pursuing injunctive relief.

(d) The board may require all applicants for registration to take and successfully pass an examination of their fitness and qualifications to become registered.

(e) The board may require that a registered professional engineer demonstrate continuing professional competency in engineering as a condition of renewal or reregistration.

(f) Board members are exempt from civil liability for any decision made or any act done in good faith in the performance of any duty or the exercise of any power granted under this article.

§30A-4-10. Receipt of fees, fund established, disbursements.

There is hereby established within the State Treasury a “board of professional engineers fund”. The board shall deposit all fees and other moneys received by the board into the fund. The moneys in the fund shall be used for expenses of the board and shall be requisitioned on the signatures of the president and secretary of the board. The secretary of the board shall annually furnish an accounting of all funds received and expended by the board to the Governor and to each house of the Legislature. The board may use the moneys in the fund to employ necessary staff, pay for membership fees to the national council of examiners for engineering and surveying and for any other necessary and reasonable expense of the board: Provided, That the board may not issue warrants in excess of moneys in the fund.

§30A-4-11. Records and reports.

(a) The board shall keep a record of its proceedings and of all applications for registration. The record shall show: (1) The name, age and last known address of each applicant; (2) the date of application; (3) place of business of such applicant; (4) education, experience and other qualifications; (5) type of examination required; (6) whether or not the applicant was rejected; (7) whether or not a certificate of registration was granted; (8) the date of the action by the board; and (9) such information as may be deemed necessary by the board.

(b) The record of the board is prima facie evidence of the proceedings of the board and a transcript duly certified by the secretary shall be admissible as evidence with the same force and effect as if the original were produced.

(c) On July 1, of each year, the board shall submit to the Governor a report of its transactions of the preceding year and shall transmit to the Governor a complete statement of the receipts and expenditures of the board, attested to by affidavits of its chairman and secretary.

(d) Board records and papers of the following class are of a confidential nature and are not public records: Examination material for examinations not yet given, file records of examination problem solutions, letters of inquiry and reference concerning applicants, board inquiry forms concerning applicants, investigation files where any investigation is still pending and all other materials of like confidential nature.

§30A-4-12. Roster.

A complete roster with the names and the last known addresses of all registered professional engineers shall be published by the secretary of the board at intervals established by the board. Copies of this roster may be mailed to each person registered and shall be placed on file with the Secretary of State and may be distributed or sold to county and city officials and to the public.

§30A-4-13. Requirements for registration of professional engineers and certification of engineer interns.

(a) General requirements. – Every person who desires to be certified as an engineer intern or to be registered as a professional engineer in this state must comply with the following requirements:

(1) Submission of a completed application specified by the board and payment of the application fee specified by rule of the board;

(2) Be at least 18 years of age;

(3) Be of good moral character;

(4) Submit statements of reference as specified by rule of the board;

(5) Graduate from a four-year engineering curriculum accredited by the Engineering Accreditation Commission of the Accreditation Board for Engineering and Technology (EAC/ABET), or an equivalent as approved by the board as being of satisfactory standing; and

(6) Be free of any grounds for disqualification as set forth in §30A-4-21(a) of this code.

(b) Certification of an engineer intern. – In addition to the foregoing general requirements, an applicant must meet the following requirements to be certified as an engineer intern in this state:

(1) Satisfactorily complete the required examination on the fundamentals of engineering; and

(2) Complete each additional requirement that the board may specify by legislative rule.

(c) Registration of a professional engineer. – In addition to the general requirements specified in subsection (a) of this section, an applicant must meet the following requirements to be certified as a professional engineer in this state:

(1) Meet all the requirements for certification as an engineer intern;

(2) Submit a record of four years or more of progressive experience in engineering work of a grade and a character that indicates to the board that the applicant may be competent to practice engineering;

(3) Satisfactorily complete the required examination on the principles and practice of engineering;

(4) Complete each additional requirement that the board may specify by legislative rule.

(d) Registration of a professional engineer through comity or reciprocal registration. – Notwithstanding the requirements of the foregoing subsection of this section, the board may issue a license to an applicant who holds a valid license or other authorization to practice engineering from another state, if the applicant satisfies the general requirements of subsection (a) of this section, satisfies the additional requirements specified by rule of the board and meets one of the following requirements:

(1) Holds a license or other authorization to engage in the practice of engineering issued by a proper authority of any jurisdiction, based on requirements that do not conflict with the provisions of this article and possesses credentials that are, in the judgment of the board, of a standard equivalent to or not lower than that specified in the applicable licensure act and rules in effect in this state at the time such license was issued, upon application, which may include a council record with NCEES; or

(2) Holds a valid council record with NCEES, which is the compilation of documents maintained by NCEES of an applicant's qualifications as a professional engineer, including official transcripts, engineering examination results, employment verifications and references, which indicates that the applicant meets the requirements of this article.

(e) Certification or registration of qualified applicants. – The board shall issue a certification to a qualified applicant who meets the requirements for certification as an engineer intern and shall issue a professional engineer registration to a qualified applicant who meets the requirements for registration as a professional engineer.

(f) Continuation of existing registrations and certificates. – A registration or certificate issued by the board prior to July 1, 2013, shall for all purposes be considered a registration or certificate issued under this article: Provided, That a person registered or certified prior to July 1, 2013, must renew the registration or certification pursuant to the provisions of this article and the rules of the board.

§30A-4-13a. Designations of nonpracticing status.

The board may designate a professional engineer as ineligible to practice or offer to practice engineering in this state using one of the following terms:

(1) Professional engineer-retired. – A registrant may apply for retired status upon certification that he or she is no longer practicing or offering to practice engineering in this state for remuneration.

(2) Professional engineer-inactive. – A registrant may request inactive status upon affirmation that he or she is no longer practicing or offering to practice engineering in this state.

(3) Professional engineer-lapsed. – A registrant's license is lapsed when the registrant does not respond to renewal notices or pay the required fees.

(4) Professional engineer-invalidated. – A registrant's license is invalidated when he or she is unable to provide sufficient proof that any condition of renewal set forth in this article or by board rule has been met.

§30A-4-14. Application and registration fee.

Every person seeking to become registered as a professional engineer or seeking to become certified as an engineer intern shall file an application on forms provided by the board. The application shall be made under oath and shall include:

(a) The level of education of the applicant;

(b) A summary of the applicant's technical experience; and

Applicants may not use the names of board members as references.

In lieu of information required on the board's application forms, the board may accept the verified information contained in a valid council record issued by the national council of examiners for engineering and surveying for professional engineer applicants.

The board shall set fees for all applicants for registration and certification by promulgating legislative rules under the provisions of §29A-3-1 et seq. of this code.

Fees of unsuccessful applicants and the fees of applicants who have been refused registration or certification for any purpose shall be retained by the board to cover administrative costs.

§30A-4-15. Examinations.

(a) The board has the power to establish, by legislative rule, the requirements for examination for registration as a professional engineer and certification as an engineer intern including, but not limited to, the following criteria: subject matter, prerequisites for testing, passing score, examination sites and schedules, entities authorized to administer examinations, prerequisites for testing and form of testing, including examination by electronic or other means.

(b) The board's rules for examination shall include the following minimum requirements:

(1) An examination to qualify to be an engineer intern, to test the applicant's knowledge and understanding of the fundamentals of engineering; and

(2) An examination to qualify as a professional engineer, to test the applicant's knowledge and understanding of the principles and practice of engineering.

(c) If the board determines that the safe and ethical practice of engineering in this state requires examination of matters specific to the law and practice in this state, the board may also establish criteria, by legislative rule, for an examination of the applicant's knowledge and understanding of this state's statutes, rules, professional ethics and design requirements.

(d) A candidate for registration as a professional engineer who fails the examination of the principles and practice of engineering may retake the examination one time upon payment of the fee established by the board. In the event of a second failure, the candidate may not repeat the examination unless the examinee demonstrates to the board that he or she has pursued additional instruction or training to correct the candidate's deficit areas of knowledge.

(e) In the event that examination requirements, test administration procedures, scoring or testing methods are modified by a board-approved testing entity providing standard tests for use by the board, the board has the authority to promulgate emergency rules to adopt and reflect those changes.

§30A-4-16. Certificates and seals.

(a) The board shall issue a certificate of registration to any applicant who, in the opinion of the board, has met the requirements of this article. The certificate of registration shall carry the designation “professional engineer”. It shall give the full name of the registrant with their registration number and shall be signed by the chairman and the secretary under the seal of the board. The certificate of registration grants the recipient authority to practice in this state.

(b) An unexpired and unrevoked certificate is prima facie evidence that the person named on it is entitled to all rights, privileges and responsibilities of a professional engineer.

(c) Every registrant shall obtain a seal for use in identifying his or her official professional work. The design of the seal shall be determined by the board and shall bear the registrant's name, registrant's registration number, the legend “registered professional engineer, state of West Virginia” and such other words or figures as the board may prescribe. The seal may be a rubber stamp. Whenever the seal is applied, the registrant's written signature shall be adjacent to or across the seal. No further words or wording are required. A facsimile signature is not acceptable. Whenever presented to a client or any public or governmental agency, the seal, signature and date shall be placed on all specifications, reports, drawings, plans, design information and calculations in accordance with rules promulgated by the board. The seal and signature shall be used by registrants only when the work being stamped was under the registrant's complete direction and control.

In the case of a registrant of another state using a temporary permit issued by this state, the registrant shall use the state of permanent registration seal and shall affix his or her signature and temporary permit number to all work. In the case of a registrant checking the work of an out-of-state registrant, the state registrant shall completely check and have complete dominion and control of the design. The complete dominion and control includes possession of the sealed and signed reproducible construction drawings with complete signed and sealed design calculations indicating all changes in design.

(d) The board shall issue to any applicant who, in the opinion of the board, has met the requirements of this article, an enrollment card as engineer intern, which indicates that his or her name has been recorded in the board office. The engineer intern enrollment card does not authorize the holder to practice as a professional engineer. It is unlawful for a registrant to affix or to permit his or her seal and signature to be affixed to any document after the expiration of his or her certificate or for the purpose of aiding or abetting any other person to evade or attempt to evade any provisions of this article.

§30A-4-17. Certificates of authorization required; naming of engineering firms.

(a) No person or firm is authorized to practice or offer to practice engineering in this state until the person or firm has been issued a certificate of authorization by the board.

(b) A person or firm desiring a certificate of authorization must file all the required information with the board on an application form specified by the board. The required information shall include the sworn statement of the engineer in responsible charge who is a professional engineer registered in this state. The board shall issue a certificate of authorization to an applicant who has met all the requirements and paid the fees set forth in board rules.

(c) No person or firm is relieved of responsibility for the conduct or acts of its agents, employees, officers or partners due to compliance with the provisions of this article. No individual practicing engineering under the provisions of this article is relieved of responsibility for engineering services performed due to his or her employment or other relationship with a person or firm holding a certificate of authorization.

(d) An engineer who renders occasional, part-time or contract engineering services to or for a firm may not be designated as being in responsible charge for the professional activities of the firm unless that engineer is an owner or principal of the firm.

(e) The Secretary of State shall not issue a certificate of authority or business registration or license to an applicant whose business includes, among the objectives for which it is established, the words engineer, engineering or any modification or derivation thereof unless the board of registration for this profession has issued to the applicant a certificate of authorization or a letter indicating eligibility to receive the certificate. The certificate or letter from the board shall be filed with the application filed with the Secretary of State to do business in West Virginia.

(f) The Secretary of State shall decline to register a trade name or service mark which includes the words engineer, engineering or modifications or derivatives thereof in its business name or logotype except those businesses holding a certificate of authorization issued under the provisions of this article.

(g) The certificate of authorization may be renewed or reinstated in accordance with board rule and upon payment of the required fees.

(h) Every holder of a certificate of authorization has a duty to notify the board promptly of any change in information previously submitted to the board in an application for a certificate of authorization.

§30A-4-18. Renewals and reinstatement.

(a) Certificates of registration and certificates of authorization expire on the last day of December of the year indicated on the certificate, and the holder of any certificate that is not timely renewed is ineligible to practice or offer to practice engineering in this state until the certificate has been reinstated in accordance with rules promulgated by the board.

(b) Certificates may be renewed only in accordance with board rule, which may include payment of a late fee for renewals not postmarked by December 31 of the year in which renewal is required. The board shall notify every person or firm holding an active certificate under this article of the certificate renewal requirements at least one month prior to the renewal date. The notice shall be made by mail or electronic means using the contact information provided to the board.

(c) A certificate that was not timely renewed or for other reason was given a nonpracticing status may be reinstated under rules promulgated by the board and may require reexamination and payment of fees set forth in board rules.

(d) Effective July 1, 2015, the board may renew certificates on a biennial basis.

(e) The board shall promulgate emergency rules pursuant to §29A-3-15 of this code to implement the provisions of this section.

§30A-4-19. Reissuance of certificates.

A new certificate of registration or certificate of authorization to replace any certificate lost, destroyed or mutilated may be issued subject to the rules of the board. A charge established by rule shall be made for each new certificate.

§30A-4-20. Public works.

Government agencies, authorities, officials and employees may not engage in the practice of engineering involving either public or private property unless the provisions of this article are met.

§30A-4-21. Disciplinary action--Revocation, suspension, refusal to issue, restore or renew, probation, civil penalty, reprimand.

(a) The board may suspend or revoke or refuse to issue, restore or renew a certificate of registration of, or place on probation, impose a civil penalty or reprimand any professional engineer who has:

(1) Perpetrated any fraud or deceit in obtaining or attempting to obtain or renew a certificate of registration or certificate of authorization;

(2) Been negligent, incompetent or committed an act of misconduct in the practice of engineering;

(3) Been convicted of or has entered a plea of nolo contendere to any crime under the laws of the United States or any state or territory thereof, which is a felony whether related to practice or not; and conviction of or entry of a plea of nolo contendere to any crime, whether a felony, misdemeanor or otherwise, an essential element of which is dishonesty, or which is directly related to the practice of engineering;

(4) Failed to comply with any of the provisions of this article or any of the rules promulgated under it;

(5) Been disciplined by another state, territory, the District of Columbia, foreign country, the United States government or any other governmental agency, if at least one of the grounds for discipline is the same or substantially equivalent to those grounds for discipline contained in this article;

(6) Failed within 30 days to provide information requested by the board as a result of a formal or informal complaint to the board which would indicate a violation of this article;

(7) Knowingly made false statements or signed false statements, certificates or affidavits to induce payment;

(8) Aided or assisted another person in violating any provision of this article or the rules promulgated;

(9) Violated any terms of probation imposed by the board or using a seal or practicing engineering while the professional engineer's license is suspended, revoked, nonrenewed or inactive;

(10) Signed or affixed the professional engineer's seal or permitted the professional engineer's seal or signature to be affixed to any specifications, reports, drawings, plans, design information, construction documents or calculations or revisions which have not been prepared or completely checked by the professional engineer or under the professional engineer's direct supervision or control;

(11) Engaged in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public;

(12) Provided false testimony or information to the board; and

(13) Been habitually intoxicated or addicted to or by the use of drugs or alcohol.

(b) In addition to any other penalty provided in this article, the board may assess civil penalties against any person who violates any provision of this article or any rule promulgated by the board for each offense in an amount determined by the board.

(c) The board shall prepare and shall adopt “rules of professional responsibility for professional engineers”. The board may revise and amend these “rules of professional responsibility for professional engineers” from time to time and shall notify each registrant in writing of any revisions or amendments.

(d) The board may:

(1) Revoke a certificate of authorization;

(2) Suspend a certificate of authorization of any firm for a period of time not exceeding two years where one or more of its officers or directors of the firm have been found guilty of any conduct which would authorize a revocation or suspension of his or her certificate of registration under the provisions of this article;

(3) Place the person or firm on probation for a period of time and make the person or firm subject to conditions as the board may specify;

(4) Assess a civil penalty and related costs for each count or separate offense in an amount set by the board.

§30A-4-22. Disciplinary action — Procedures.

(a) Any person may file a complaint with the board that a person or firm subject to the provisions of this article has committed a fraud, been deceitful, been grossly negligent, incompetent, guilty of misconduct or has violated the “rules of professional responsibility for professional engineers”.

(b) All complaints, unless dismissed by the board as unfounded, trivial or unless settled informally, shall be heard by the board within six months after the date each complaint was received by the board.

(c) The board shall fix the time and place for hearings on complaints and a copy of all charges, together with a notice of the time and place of hearing on the complaint the person or firm complained against or mailed to the last known address of the person or firm at least 30 days prior to the hearing. At the hearing, the person or firm shall have the right to appear in person or by counsel, or both, to cross-examine witnesses and to produce evidence and witnesses in his or her, her or its defense. If the accused person or firm fails or refuses to appear, the board may proceed to hear the complaint and determine the validity of the charges.

(d) If after the hearing a majority of the board votes in favor of sustaining the charges, the board shall reprimand or assess a civil penalty against the person or firm complained against. The board may also suspend, revoke, refuse to issue or refuse to restore or renew an individual's certificate of registration or a firm's certificate of authorization. In addition, the board may place a registrant on probation.

(e) Any person or firm aggrieved by any action of the board in assessing a civil penalty, denying, suspending, refusing to issue, refusing to restore or renew or revoking a certificate of registration or a certificate of authorization, may appeal the board's decision to the circuit court.

(f) Any civil penalty assessed as a result of a hearing shall be paid within 50 days after the decision becomes final.

(g) The board may, upon petition of a person or firm, reissue a certificate of registration or authorization, provided that a majority of the members of the board votes in favor of such issuance.

§30A-4-23. Criminal offenses.

Any person who practices or offers to practice engineering in this state without being registered in accordance with the provisions of this article, or any person, firm, partnership, organization, association, corporation or other entity using or employing the words engineer, engineering or any modification or derivative thereof in its name or form of business activity except as authorized in this article, or any person presenting or attempting to use the certificate of registration or the seal of another, or any person who gives any false or forged evidence of any kind to the board or to any member thereof in obtaining or attempting to obtain a certificate of registration, or any person who falsely impersonates any other registrant of like or different name, or any person who attempts to use an expired, suspended or revoked or nonexistent certificate of registration, or who practices or offers to practice when not qualified, or any person who falsely claims that he or she is registered or authorized under this article, or any person who violates any of the provisions of this article is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $500, or imprisoned in the county jail not more than six months, or both fined and imprisoned.

Any person who commits a second or subsequent offense under this section is guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than 10 nor more than 20 years.

The Attorney General may act as legal adviser to the board and render any legal assistance as may be necessary in carrying out the provisions of this article. The board may employ counsel and necessary assistance to aid in the enforcement of this article and the compensation and expenses of the council shall be paid from the funds of the board.

§30A-4-24. Exemptions.

This article may not be construed to prevent the practice by:

(a) Other professions. -- The practice of any other legally recognized profession;

(b) Temporary permits. -- The practice or offer to practice engineering by a person not a resident of or having no established place of business in this state, provided the person is legally qualified by registration to practice engineering, as defined in this article, in their own state or country. The person shall make application to the board in writing and after payment of a fee established by the board may be granted a written permit for a definite period of time not to exceed one year to do a specific job: Provided, That no right to practice engineering shall accrue to the applicant with respect to any other works not set forth in the permit; and

(c) Employees and subordinates. -- The work of an employee or a subordinate of a person holding a certificate of registration under this article, or an employee of a person practicing lawfully: Provided, That the work does not include final engineering designs or decisions and is done under the direct supervision of and verified by a person holding a certificate of registration under this article or a person practicing lawfully. Any regular full-time employee of a person, partnership, corporation or other business entity who is engaged solely and exclusively in performing services for such person, partnership, corporation or other business entity, who is not required by any provision of the law other than this article to be a registered professional engineer and whose services are performed on, or in connection with, property owned or leased by such person, partnership, corporation or other business entity, or in which such person, partnership, corporation or other business entity has an interest, estate or possessory right, and are not offered or made available to the public. This exemption includes the use of job title and personal classification by such person, but no name, title or words may be used which tend to convey the impression that an unlicensed person is offering professional engineering services to the public.

ARTICLE 5. FORESTERS.

§30A-5-1. Use of descriptive title restricted.

(a) No person may use in connection with his or her name or otherwise assume, use or advertise any title or description tending to convey the impression that he or she is a registered forester or registered forestry technician unless he or she is certified in accordance with this article.

(b) Nothing contained in this article shall be construed as preventing any person, firm, partnership or corporation from practicing forestry, managing woodlands or forests, removing any products or planting trees on any land, in any manner desired.

§30A-5-2. Applicable law.

The practice of forestry and the state Board of Registration of Foresters are subject to §30A-1-1 et seq. of this chapter, this article, and any rules promulgated hereunder.

§30A-5-3. Definitions.

As used in this article, the following words and terms have the following meanings:

(a) “Board” means the state Board of Registration of Foresters.

(b) “Certificate” means a certificate issued to practice as a registered forester or registered forestry technician.

(d) “Certified” means a person holding a certification issued under the provisions of this article.

(e) “Forester” means a person who has acquired specialized forestry training by reason of his or her knowledge of the natural sciences, mathematics, silviculture, forest protection, forest management, forest economics and forest utilization, acquired by professional forestry education and practical experience.

(f) “Forester-in-training” or “Forestry technician-in- training” means a person who possesses the necessary educational qualifications as prescribed in this article for certification, but who has not completed the experience requirements in the field of forestry as required for certification.

(g) “Forestry” means the professional practice embracing the science, business, and the art of creating, conserving and managing forests and forestlands for the sustained use and enjoyment of their resources, material or other forest produce.

(h) “Practice of forestry” means professional forestry services, including the consultation, investigation, evaluation, planning or responsible supervision of any forestry activities when such professional service requires the application of forestry principles and techniques.

(i) “Permit” means a document issued as evidence of qualification to practice as a forester-in-training or forestry technician-in-training under this article.

(j) “Permittee” means a person holding a permit issued under the provisions of this article.

(k) “Registered Forester” means a forester certified under this article.

(l) “Registered Forestry Technician” means a forestry technician certified under this article.

§30A-5-4. State Board of Registration of Foresters.

(a) The State Board of Registration of Foresters is continued. The members of the board in office on July 1, 2009, shall, unless sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and qualified.

(b) To be effective on July 1, 2009, the Governor shall appoint, by and with the advise and consent of the Senate, a registered forestry technician to replace the board member whose term ends on June 30, 2009.

(1) Four registered foresters; and

(2) One registered forestry technician.

(d) Each member shall be appointed by the Governor, by and with the consent of the Senate, from five nominees recommended by the West Virginia Division of the Society of American Foresters. The term is for five years.

(e) A member may not serve more than two consecutive full terms. A member having served two consecutive full terms may not be appointed for one year after completion of his or her second full term. A member may continue to serve until a successor has been appointed and qualified.

(f) Each member of the board shall be a resident of West Virginia during the appointment term.

(g) Each member must have been certified in this state for a period of not less than three years prior to his or her appointment and must have engaged in the practice of forestry for at least 10 years.

(h) Each member shall maintain an active certification with the board.

(i) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.

(j) A member of the board immediately and automatically forfeits membership to the board if his or her certification has been suspended or revoked, is convicted of a felony under the laws of any jurisdiction, or becomes a nonresident of this state.

(k) The board shall elect annually one of its members as chairperson and one member as secretary who shall serve at the will and pleasure of the board.

(l) Each member of the board is entitled to compensation and expense reimbursement in accordance with §30A-1-1 et seq. of this code.

(m) A majority of the members serving on the board constitutes a quorum.

(n) The board shall hold at least two meetings annually. Other meetings shall be held at the call of the chairperson or upon the written request of two members, at such time and place as designated in the call or request.

(o) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state.

§30A-5-5. Powers and duties of the board.

(a) The board has all the powers and duties set forth in this article, by rule, in §30A-1-1 et seq. of this code, and elsewhere in law.

(b) The board shall:

(1) Hold meetings, conduct hearings and administer examinations;

(2) Establish requirements for a certification or permit;

(3) Establish procedures for submitting, approving and rejecting applications for a certification or permit;

(4) Determine the qualifications of any applicant for a certification or permit;

(5) Prepare, conduct, administer and grade written, oral or written and oral examinations for a certificate;

(6) Determine the passing grade for the examinations;

(7) Maintain records of the examinations the board or a third party administers, including the number of persons taking the examination and the pass and fail rate;

(8) Maintain an office, and hire, discharge, establish the job requirements and fix the compensation of employees and contracted employees necessary to enforce this article;

(9) Investigate alleged violations of this article, legislative rules, orders and final decisions of the board;

(10) Conduct disciplinary hearings of persons regulated by the board;

(11) Determine disciplinary action and issue orders;

(12) Institute appropriate legal action for the enforcement of this article;

(13) Maintain an accurate registry of names and addresses of all persons regulated by the board;

(14) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;

(15) Establish, by legislative rule, the continuing education requirements for certificate holders and permittees; and

(16) Propose rules in accordance with §29A-3-1 et seq. of this code to implement this article.

(1) Contract with third parties to administer the examinations required under this article;

(2) Define, by legislative rule, the fees charged under this article;

(3) Issue, renew, deny, suspend, revoke or reinstate a certification or permit;

(4) Sue and be sued in its official name as an agency of this state;

(5) Confer with the Attorney General or his or her assistant in connection with legal matters and questions; and

(6) Take all other actions proper to effectuate the purposes of this article.

§30A-5-6. Rulemaking.

(a) The board shall propose rules for legislative approval, in accordance with §29A-3-1 et seq. of this code, to implement this article, including:

(1) Standards and requirements for a certification and permit;

(2) Procedures for examinations and reexaminations;

(3) Requirements for third parties to prepare and/or administer examinations and reexaminations;

(4) Educational and experience requirements, and the passing grade on the examination;

(5) Standards for ethical conduct;

(6) Procedures for the issuance and renewal of a certification and permit;

(7) A fee schedule;

(8) Continuing education requirements for a certificate holder and permittee;

(9) Procedures for denying, suspending, revoking, reinstating or limiting the practice of a certificate holder or permittee;

(10) Requirements for inactive or revoked certificate and permit; and

(11) Any other rules necessary to effectuate the provisions of this article.

(b) All of the board's rules in effect on the effective date of this article shall remain in effect until amended or repealed, and references to former enactments of this act are interpreted to mean this article.

§30A-5-7. Fees; special revenue account; administrative fines.

(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the state Treasury designated the “Board of Foresters Fund”, which fund is continued. The fund shall be used by the board for the administration of this article. Except as provided in §30A-1-1 et seq. of this code, the board shall retain the amounts in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.

(b) Any amounts received as administrative fines imposed pursuant to this article shall be deposited into the General Revenue Fund of the state Treasury.

§30A-5-8. General requirements to be certified as a registered forester.

(a) To be eligible to be certified as a registered forester, the applicant must:

(1) Be of good moral character;

(2) Have a high school diploma or its equivalent;

(3) Have obtained either:

(A) Completion of a four-year degree program or masters degree program in forest management, accredited by the Society of American Foresters, or other accrediting body as determined by the board, and have two years related experience in the field of forestry; or

(B) Completion of a two-year technical forestry program in a program accredited or recognized by the Society of American Foresters, completion of a bachelor's degree in a field used in the practice of forestry as approved by the board and four years related experience in the field of forestry;

(4) Successfully pass an examination approved by the board.

(b) Those persons licensed by the board as a forester as of the effective date of this section are not required to take the examination.

§30A-5-9. General requirements to be registered forestry technician.

To be eligible to be certified as a registered forestry technician, the applicant must:

(1) Be of good moral character;

(2) Have a high school diploma or its equivalent;

(3) Graduate from a two-year technical forestry program accredited or recognized by the Society of American Foresters;

(4) Complete four years of related experience in the field of forestry.

§30A-5-10. Qualifications for permit as a forester-in-training or a forestry technician-in-training.

(a) The board may issue a permit to practice as a forester-in-training or a forestry technician-in-training to an applicant who meets all the requirements for certification, except the experience requirements of paragraph (A) or (B), subdivision three, subsection (a), section eight or subdivision four, section nine.

(b) A permit to practice as a forester-in-training or forestry technician-in-training may be renewed annually for a period not to exceed five years. The board may extend the five year limitation if the board finds the applicant experienced an undue hardship which prevented the attainment of the required experience.

§30A-5-11. License from another state.

The board may issue a certification to a person as a registered forester in this state, without requiring an examination, to an applicant from another jurisdiction who:

(1) Is not a resident of this state;

(2) Is of good moral character;

(3) Holds a valid forestry license or other authorization to practice forestry in another jurisdiction which meets requirements that are substantially equivalent to the certification requirements set forth in this article;

(4) Is not currently being investigated by a disciplinary authority of this state or another jurisdiction, does not have charges pending against his or her authorization, and has never had his or her authorization revoked;

(5) Has not previously failed an examination for certification in this state;

(6) Has paid all the applicable fees; and

(7) Has completed such other action as required by the board.

§30A-5-12. Renewal requirements.

(a) All persons regulated under the provisions of this article shall annually before January 1, renew his or her certification or permit by completing a form prescribed by the board and submit any other information required by the board.

(b) At least 30 days prior to July 1 of each year, the board shall mail to every person regulated under the provisions of this article an application for renewal.

(c) The board shall charge a fee for each renewal of a certification or permit and may charge a late fee for any renewal not paid in a timely manner.

(d) The board shall require as a condition for the renewal of a certification or permit that each person regulated under the provisions of this article complete continuing education.

(e) The board may deny an application for renewal for any reason which would justify the denial of an original application for a certification or permit.

§30A-5-13. Complaints; investigations; due process procedure; grounds for disciplinary action.

(a) The board may upon its own motion based on credible information, and shall upon the written complaint of any person, cause an investigation to be made to determine whether grounds exist for disciplinary action under this article or the legislative rules of the board.

(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the complaint to the certificate holder or permittee.

(c) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the certificate holder or permittee has violated subsection (g) of this section or rules promulgated pursuant to this article.

(d) Upon a finding that probable cause exists that the certificate holder or permittee has violated subsection (g) of this section or rules promulgated pursuant to this article, the board may enter into a consent decree or hold a hearing for the suspension or revocation of the certification or permit or the imposition of sanctions against the certificate holder or permittee. Any hearing shall be held in accordance with the provisions of this article.

(e) Any member of the board or the executive director of the board may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations against any person regulated by the article.

(f) Any member of the board or its executive director may sign a consent decree or other legal document on behalf of the board.

(g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend or revoke the certification or permit of, impose probationary conditions upon or take disciplinary action against, any certificate holder or permittee for any of the following reasons once a violation has been proven by a preponderance of the evidence:

(1) Obtaining a certification or permit by fraud, misrepresentation or concealment of material facts;

(2) Being convicted of a felony or other crime involving moral turpitude;

(3) Being guilty of unprofessional conduct as defined by legislative rule of the board;

(4) Violating this article or lawful order or rule of the board;

(5) Having had a certificate or permit revoked or suspended, other disciplinary action taken, or an application for certification or permit or other authorization refused, revoked or suspended by the proper authorities of another jurisdiction; or

(6) Engaging in any act which has endangered or is likely to endanger the health, welfare or safety of the public.

(h) For the purposes of subsection (g) of this section, disciplinary action may include:

(1) Reprimand;

(2) Probation;

(3) Administrative fine, not to exceed $1,000 per day per violation;

(4) Mandatory attendance at continuing education seminars or other training;

(5) Practicing under supervision or other restriction;

(6) Requiring the certificate holder or permittee to report to the board for periodic interviews for a specified period of time; or

(7) Other corrective action considered by the board to be necessary to protect the public, including advising other parties whose legitimate interests may be at risk.

§30A-5-14. Procedures for hearing; right of appeal.

(a) Hearings shall be governed by §30A-1-13 of this code.

(b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.

(c) If the hearing is conducted by an administrative law judge, at the conclusion of a hearing he or she shall prepare a proposed written order containing findings of fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the board so directs. The board may accept, reject or modify the decision of the administrative law judge.

(d) Any member or the executive director of the board has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.

(e) If, after a hearing, the board determines the certificate holder or permittee has violated this article or the board's rules, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.

§30A-5-15. Judicial review; appeal to Supreme Court of Appeals.

Any certificate holder or permittee adversely affected by a decision of the board entered after a hearing may obtain judicial review of the decision in accordance with §29A-5-4 of this code, and may appeal any ruling resulting from judicial review in accordance with §29A-6-1 of this code.

§30A-5-16. Criminal proceedings; penalties.

(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a certificate holder or permittee has committed a criminal offense under this article, the board may bring the information to the attention of an appropriate law-enforcement official.

(b) Effective July 15, 2009, a person violating a provision of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000 or confined in jail not more than six months, or both fined and confined.

§30A-5-17. Single act evidence of practice.

In any action brought or in any proceeding initiated under this article, evidence of the commission of a single act prohibited by this article is sufficient to justify a penalty, injunction, restraining order or conviction without evidence of a general course of conduct.

ARTICLE 6. LAND SURVEYORS.

§30A-6-1. Unlawful acts.

(a) It is unlawful for any person to practice or offer to practice surveying in this state without a license issued under the provisions of this article, or advertise or use any title or description tending to convey the impression that they are a surveyor, unless such person has been licensed under the provisions of this article.

(b) It is unlawful for any firm to practice or offer to practice surveying in this state without a certificate of authorization issued under the provisions of this article, or advertise or use any title or description tending to convey the impression that it is a surveying firm, unless such firm has been issued a certificate of authorization under the provisions of this article.

§30A-6-2. Applicable law.

The practice of surveying and the West Virginia Board of Professional Surveyors are subject to the provisions of §30A-1-1 et seq. of this code, the provisions of this article and the board's rules.

§30A-6-3. Definitions.

As used in this article, the following words and terms have the following meanings:

(a) “Applicant” means a person making application for a license or a firm making application for a certificate of authorization, under the provisions of this article.

(b) “Board” means the West Virginia Board of Professional Surveyors.

(c) “Boundary survey” means a survey, in which property lines and corners of a parcel of land have been established by a survey and a description of survey has been written and a plat has been prepared for the property.

(d) “Cadastral survey” means a survey representing the ownership, relative positions and dimensions of land, objects and estates.

(e) “Certificate holder” means a firm holding a certificate of authorization issued by the board.

(f) “Certificate of authorization” means a certificate issued under the provisions of this article to a firm providing surveying services.

(g) “Construction survey” means the laying of stakes for a construction project.

(h) “Direct supervision” means the responsible licensee is in direct control of all field and office surveying operations. Direct control does not necessarily require the actual physical presence of the responsible licensee at the site of the survey, nor prohibit the responsible licensee from maintaining simultaneous direct supervision of more than one survey.

(i) “Endorsee” means a person holding an endorsement to practice in a specialized field of surveying issued by the board under the provisions of this article.

(j) “Endorsement” means an authorization, in addition to a professional surveyor license, to practice in a specialized field of surveying issued by the board.

(k) “Firm” means any nongovernmental business entity, including an individual, association, partnership or corporation, providing surveying services.

(l) “Geodetic control survey” means a survey involving the precise measurement of points on the earth's surface which form the framework or control for a large map or project.

(m) “Geographic information system (GIS)” means a system of hardware, software and procedures designed to support the capture and management of spatially referenced information.

(n) “Hydrographic survey” means a survey that measures and determines the topographic features of water bodies and the adjacent land areas, including the width, depth and course of water bodies and other relative features.

(o) “Inactive” means the status granted by the board to a licensee or endorsee.

(p) “Land information system (LIS)” means a system of hardware, software and procedures designed to support the capture and management of spatially referenced information.

(q) “License” means a surveying license issued under the provisions of this article.

(r) “Licensee” means a person holding a surveying license issued under the provisions of this article.

(s) “Metes and bounds” means a description where the land or the associated effects on the land have been measured by starting at a known point and describing, in sequence, the lines by direction and distance forming the boundaries of the land or a defined area relative to the physical land features, associated effects or structural improvements on the land.

(t) “Monument” means a permanent marker, either boundary or nonboundary, used to establish corners or mark boundary lines of a parcel of land or reference the geospatial relationship of other objects.

(u) “Mortgage/loan inspection survey” means a survey in which property lines and corners have not been established.

(v) “Oil or gas well survey” means a survey and plat of a proposed oil or gas well, including the location of the well, the surface or mineral tract on which the well is located, the physical features surrounding the well, all creeks or streams near the well and any other identifying characteristics of the land to specify the location of the well. An oil or gas well survey must be performed in accordance with other provisions of this code affecting oil and gas well surveys.

(w) “Partition survey” means a survey where the boundary lines of a newly created parcel of land are established and the new corners are monumented.

(x) “Photogrammetry” means the use of aerial photography, other imagery and surveying principles to prepare scaled maps or other survey products reflecting the contours, features and fixed works of the earth's surface.

(y) “Practice of surveying” means providing professional surveying services, including consulting, investigating, expert testimony, evaluating, planning, mapping and surveying.

(z) “Responsible charge” means direct control of surveying work under the direct supervision of a licensee or person authorized in another state or country to engage in the practice of surveying.

(aa) “Retracement survey” means a survey where the boundary lines and corners of a parcel of land are reestablished from an existing legal or deed description.

(bb) “Strip” means a description of an area by reference to an alignment, usually a right-of-way or an easement, stating the number of feet on each side of the alignment, the relative position of the alignment, a reference to the measurements and monuments where the alignment crosses a parcel of land and the source of title for each parcel of land the alignment crosses.

(cc) “Subdivision” means the division of a lot, tract or parcel of land into two or more lots, tracts or parcels of land.

(dd) “Surface mine survey” means a survey of the surface mine permit area, including the location of the surface mine, the surface or mineral tracts on which the surface mine is located, the physical features surrounding the surface mine, all creeks or streams near the surface mine and any other identifying characteristics of the land to specify the location of the surface mine permit area. A surface mine survey must be performed in accordance with other provisions of this code affecting surface mine surveys.

(ee) “Survey” or “land survey” means to measure a parcel of land and ascertain its boundaries, corners and contents or make any other authoritative measurements.

(ff) “Surveying” or “land surveying” means providing, or offering to provide, professional services using such sciences as mathematics, geodesy, and photogrammetry, and involving both:

(1) The making of geometric measurements and gathering related information pertaining to the physical or legal features of the earth, improvements on the earth, the space above, on or below the earth; and

(2) Providing, utilizing or developing the same into survey products such as graphics, data, maps, plans, reports, descriptions or projects. Professional services include acts of consultation, investigation, testimony evaluation, expert technical testimony, planning, mapping, assembling and interpreting gathered measurements and information related to any one or more of the following:

(A) Determining by measurement the configuration or contour of the earth's surface or the position of fixed objects thereon.

(B) Determining by performing geodetic surveys the size and shape of the earth or the position of any point on the earth.

(D) Creating, preparing or modifying electronic, computerized or other data relative to the performance of the activities in the above-described paragraphs (A) through (C), inclusive, of this subdivision.

(E) Locating, relocating, establishing, reestablishing or retracing property lines or boundaries of any tract of land, road, right-of-way or easement.

(F) Making any survey for the division, subdivision, or consolidation of any tract or tracts of land.

(G) Locating or laying out alignments, positions or elevations for the construction of fixed works.

(H) Determining, by the use of principles of surveying, the position for any boundary or nonboundary survey monument or reference point, or establishing or replacing any such monument or reference point.

(I) Creating, preparing or modifying electronic or computerized or other data relative to the performance of the activities in the above-described paragraphs (E) through (H), inclusive, of this subdivision.

(3) Any person who engages in surveying, who by verbal claim, sign, advertisement, letterhead, card or in any other way represents themselves to be a professional surveyor, or who implies through the use of some other title that they are able to perform, or who does perform, any surveying service or work or any other service designated by the practitioner which is recognized as surveying, is practicing, or offering to practice, surveying within the meaning and intent of this article.

(gg) “Surveyor”, “professional surveyor” or “land surveyor” means a person licensed to practice surveying under the provisions of this article.

(hh) “Surveyor, retired”, “professional surveyor, retired” or “land surveyor, retired” means a licensed surveyor no longer practicing surveying, who has chosen to retire and has been granted the honorific title of “Professional Surveyor, Retired”.

(ii) “Surveyor-in-charge” means a licensee designated by a firm to oversee the surveying activities and practices of the firm.

(jj) “Surveyor intern” means a person who has passed an examination covering the fundamentals of land surveying.

(kk) “Underground survey” means a survey that includes the measurement of underground mine workings and surface features relevant to the underground mine, the placing of survey points (spads) for mining direction, the performance of horizontal and vertical control surveys to determine the contours of a mine, the horizontal and vertical location of mine features, and the preparation of maps, reports and documents, including mine progress maps and mine ventilation maps. An underground mine survey must be performed in accordance with other provisions of this code affecting underground mine surveys.

§30A-6-4. Board of Professional Surveyors.

(a) The “West Virginia Board of Professional Surveyors” is continued. Any member of the board, except the endorsed underground surveyor member, in office on July 1, 2010, may continue to serve until his or her successor has been appointed and qualified.

(b) Prior to July 1, 2010, the Governor, by and with the advice and consent of the Senate, shall appoint one licensed professional surveyor with at least 10 years of experience in land surveying to replace the endorsed underground surveyor.

(1) Three licensed professional surveyors with at least 10 years of experience in land surveying;

(2) One person who has a license in another field of practice other than surveying and also who has a surveyor license by examination and has practiced surveying for at least 10 years; and

(3) One citizen member who is not regulated under the provisions of this article and does not perform any services related to the practice of surveying under the provisions of this article.

(d) Each licensed member of the board, at the time of his or her appointment, must have held a license in this state for a period of not less than three years immediately preceding the appointment.

(e) Each member must be appointed by the Governor, by and with the advice and consent of the Senate, and must be a resident of this state during the appointment term.

(f) The term of each board member is four years.

(g) No member may serve more than two consecutive full terms and any member having served two full terms may not be appointed for one year after completion of his or her second full term. A member shall continue to serve until his or her successor has been appointed and qualified.

(h) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.

(i) A licensed member of the board immediately and automatically forfeits membership to the board if his or her license to practice is suspended or revoked.

(j) A member of the board immediately and automatically forfeits membership to the board if he or she is convicted of a felony under the laws of any jurisdiction or becomes a nonresident of this state.

(k) The board shall designate one of its members as chairperson and one member as secretary-treasurer.

(l) Each member of the board is entitled to receive compensation and expense reimbursement in accordance with §30A-1-18 of this code.

(m) A majority of the members of the board shall constitute a quorum.

(n) The board shall hold at least one annual meeting. Other meetings shall be held at the call of the chairperson, or upon the written request of two members, at such time and place as designated in the call or request.

§30A-6-5. Powers and duties of the board.

The board has all the powers and duties set forth in §30A-1-1 et seq. of this code and also the following powers and duties:

(1) Hold meetings, conduct hearings and administer examinations and reexaminations;

(2) Set the requirements for a license, endorsement, surveyor-in-charge and certificate of authorization;

(3) Establish qualifications for licensure and procedures for submitting, approving and disapproving applications for a license, endorsement and certificate of authorization;

(4) Examine the qualifications of any applicant for a license and endorsement;

(5) Prepare, conduct, administer and grade examinations and reexaminations required under the provisions of this article;

(6) Determine the passing grade for the examinations and reexaminations required under the provisions of this article;

(7) Administer, or contract with third parties to administer, the examinations and reexaminations required under the provisions of this article;

(8) Maintain records of the examinations and reexaminations the board or a third party administers, including the number of persons taking the examination or reexamination and the pass and fail rate;

(9) Maintain an accurate registry of names and addresses of all licensees and endorsees;

(10) Maintain an accurate registry of names and addresses of firms holding a certificate of authorization;

(11) Establish the standards for surveys;

(12) Define the fees charged under the provisions of this article;

(13) Issue, renew, deny, suspend, revoke or reinstate licenses and endorsements, and discipline such persons;

(14) Issue, renew, deny, suspend, revoke or reinstate certificates of authorization and discipline such firms;

(15) Establish and implement the continuing education requirements for licensees and endorsees;

(16) Sue and be sued in its official name as an agency of this state;

(17) Hire, set the job requirements for, fix the compensation of and discharge investigators and the employees necessary to enforce the provisions of this article;

(18) Investigate alleged violations of the provisions of this article, the rules promulgated hereunder, and orders and final decisions of the board;

(19) Conduct hearings upon charges calling for discipline of a licensee, endorsee or certificate holder, or revocation or suspension of a license, endorsement or certificate of authorization;

(20) Set disciplinary action and issue orders;

(21) Propose rules in accordance with the provisions of §29A-3-1 et seq. of this code to implement the provisions of this article; and

(22) Take all other actions necessary and proper to effectuate the purposes of this article.

§30A-6-6. Rule-making authority.

(a) The board shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code to implement the provisions of this article, including:

(1) Setting the standards and requirements for licensure, endorsement, surveyor-in-charge and certificate of authorization;

(2) Setting the procedure for examinations and reexaminations;

(3) Establishing requirements for third parties to administer examinations and reexaminations;

(4) Establishing procedures for the issuance and renewal of a license, endorsement and certificate of authorization;

(5) Setting a schedule of fees;

(6) Establishing and implementing requirements for continuing education for licensees and endorsees;

(7) Evaluating the curriculum, experience and the instructional hours required for a license and endorsement;

(8) Denying, suspending, revoking, reinstating or limiting the practice of a licensee, endorsee or certificate holder;

(9) Establishing electronic signature requirements;

(10) Establishing minimum standards for surveys;

(11) Establishing a process to record plats;

(12) Establishing seal and document certification standards; and

(13) Proposing any other rules or taking other action necessary to effectuate the provisions of this article.

(b) All rules in effect on July 1, 2010, shall remain in effect until they are amended, modified, repealed or replaced.

§30A-6-7. Fees; special revenue account; administrative fines.

(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the State Treasury designated the “Board of Professional Surveyors Fund” which fund is continued. The fund shall be used by the board for the administration of this article. Except as may be provided in §30A-1-17 of this code, the board shall retain the amounts in the special revenue fund from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.

(b) Any amounts received as fines imposed pursuant to this article shall be deposited into the General Revenue Fund of the State Treasury.

§30A-6-8. Education, experience and examination requirements for a surveying license.

(a) Before a person may apply for a surveying license, the person must have completed one of the following educational, experience and examination requirements:

(1) Has a four-year degree or a bachelor degree in surveying approved by the board, which degree must include a minimum of 30 hours of surveying or surveying-related courses, has passed an examination in the fundamentals of land surveying, has two years or more of experience in surveying in responsible charge, has passed an examination in the principles and practice of land surveying and has passed the West Virginia examination;

(2) Has a four-year degree or a bachelor degree, has completed a minimum of 30 hours of surveying or surveying-related courses, has passed an examination in the fundamentals of land surveying, has four years or more of experience in surveying, including two years of experience in responsible charge under the direct supervision of a licensee or a person authorized in another jurisdiction to engage in the practice of surveying, has passed an examination in the principles and practice of land surveying and has passed the West Virginia examination; or

(3) Has a two-year degree or an associate degree in surveying or a related field approved by the board, which degree must include a minimum of 30 hours of surveying or surveying-related courses, has passed an examination in the fundamentals of land surveying, has four years or more of experience in surveying, including two years of experience in responsible charge under the direct supervision of a licensee or a person authorized in another state or country to engage in the practice of surveying, has passed an examination in the principles and practice of land surveying and has passed the West Virginia examination.

(b) A person graduating from a two-year or four-year approved surveying degree program with a grade point average of 3.0 or higher is permitted to take the examination in the fundamentals of land surveying during his or her final semester.

(c) A person must pass the examination in the fundamentals of land surveying and complete the work experience before he or she is allowed to take the examination in the principles and practice of land surveying and the West Virginia examination.

(d) The examination in the fundamentals of land surveying, the examination in the principles and practice of land surveying and the West Virginia examination shall each be held at least once each year at the time and place determined by the board. A person who fails to pass all or any part of an examination may apply for reexamination, as prescribed by the board, and shall furnish additional information and fees as required by the board.

(e) A person who began the education, experience or examination requirements and were approved by the board prior to December 31, 2004, have until December 31, 2012, to complete such requirements for licensure.

§30A-6-9. Surveying license requirements.

(a) The board shall issue a surveying license to an applicant who meets the following requirements:

(1) Is of good moral character;

(2) Is at least 18 years of age;

(3) Is a citizen of the United States or is eligible for employment in the United States;

(4) Holds a high school diploma or its equivalent; and

(5) Has completed all of one of the education, experience and examination requirements set out in §30A-6-8 of this code.

(b) An application for a surveying license shall be made on forms provided by the board and include the following:

(1) Name and address of the applicant;

(2) Applicant's education and experience;

(3) Location and date of passage of all the examinations;

(4) Names of five persons for reference, at least three of whom shall be licensees or persons authorized in another jurisdiction to engage in the practice of surveying, and who have knowledge of the applicant's work; and

(5) Any other information the board prescribes.

(d) A license to practice surveying issued by the board prior to July 1, 2010, shall for all purposes be considered a license issued under this article: Provided, That a person holding a license to practice surveying issued by the board prior to July 1, 2010, must renew the license pursuant to the provisions of this article.

§30A-6-10. Scope of Practice.

(a) A licensee may measure a parcel of land and ascertain its boundaries, corners and contents or make any other authoritative measurements. The practice of surveying can be any of the following, but not limited to:

(1) The performance of a boundary, cadastral, construction, geodetic control, hydrographic, land, mortgage/loan inspection, oil or gas well, partition, photogrammetry, retracement, subdivision or surface mine survey; or

(2) The location, relocation, establishment, reestablishment, laying out or retracement of any property line or boundary of any parcel of land or of any road or utility right-of-way, easement, strip or alignment or elevation of any fixed works by a licensed surveyor.

(b) Activities that must be performed under the responsible charge of a professional surveyor, unless specifically exempted in subsection (c) of this section, include, but are not limited to, the following:

(1) The creation of maps and georeferenced databases representing authoritative locations for boundaries, the location of fixed works, or topography;

(2) Maps and georeferenced databases prepared by any person, firm, or government agency where that data is provided to the public as a survey product;

(3) Original data acquisition, or the resolution of conflicts between multiple data sources, when used for the authoritative location of features within the following data themes: Geodetic control, orthoimagery, elevation and hydrographic, fixed works, private and public boundaries, and cadastral information;

(4) Certification of positional accuracy of maps or measured survey data;

(5) Adjustment or authoritative interpretation of raw survey data;

(6) Geographic Information System (GIS) - based parcel or cadastral mapping used for authoritative boundary definition purposes wherein land title or development rights for individual parcels are, or may be, affected;

(7) Authoritative interpretation of maps, deeds, or other land title documents to resolve conflicting data elements;

(8) Acquisition of field data required to authoritatively position fixed works or cadastral data relative to geodetic control; and

(9) Analysis, adjustment or transformation of cadastral data of the parcel layer(s) with respect to the geodetic control layer within a GIS resulting in the affirmation of positional accuracy.

(1) The creation of general maps:

(A) Prepared by private firms or government agencies for use as guides to motorists, boaters, aviators, or pedestrians;

(B) Prepared for publication in a gazetteer or atlas as an educational tool or reference publication;

(D) Produced by any electronic or print media firm as an illustrative guide to the geographic location of any event; or

(E) Prepared by laypersons for conversational or illustrative purposes. This includes advertising material and users guides.

(2) The transcription of previously georeferenced data into a GIS or LIS by manual or electronic means, and the maintenance thereof, provided the data are clearly not intended to indicate the authoritative location of property boundaries, the precise definition of the shape or contour of the earth, and/or the precise location of fixed works of humans.

(3) The transcription of public record data, without modification except for graphical purposes, into a GIS- or LIS-based cadastre (tax maps and associated records) by manual or electronic means, and the maintenance of that cadastre, provided the data are clearly not intended to authoritatively represent property boundaries. This includes tax maps and zoning maps.

(4) The preparation of any document by any federal government agency that does not define real property boundaries. This includes civilian and military versions of quadrangle topographic maps, military maps, satellite imagery, and other such documents.

(5) The incorporation or use of documents or databases prepared by any federal agency into a GIS/LIS, including but not limited to federal census and demographic data, quadrangle topographic maps, and military maps.

(6) Inventory maps and databases created by any organization, in either hard-copy or electronic form, of physical features, facilities, or infrastructure that are wholly contained within properties to which they have rights or for which they have management responsibility. The distribution of these maps and/or databases outside the organization must contain appropriate metadata describing, at a minimum, the accuracy, method of compilation, data source(s) and date(s), and disclaimers of use clearly indicating that the data are not intended to be used as a survey product.

(7) Maps and databases depicting the distribution of natural resources or phenomena prepared by foresters, geologists, soil scientists, geophysicists, biologists, archeologists, historians, or other persons qualified to document such data.

(8) Maps and georeferenced databases depicting physical features and events prepared by any government agency where the access to that data is restricted by statute. This includes georeferenced data generated by law enforcement agencies involving crime statistics and criminal activities.

§30A-6-11. Exemptions from licensing.

(a) The following persons are exempt from licensure under the provisions of this article:

(1) Any employee of a person or firm, when such employee is engaged in the practice of land surveying exclusively for the person or firm, by which employed, or, if a corporation, its parents, affiliates or subsidiaries, and such person, firm, association or corporation does not hold himself, herself or itself out to the public as being engaged in the business of land surveying.

(2) Any employee or officer of the United States, this state or any political subdivision thereof, or their agents, when such employee is engaged in the practice of land surveying exclusively for such governmental unit: Provided, That each county surveyor of lands first elected or first appointed after January 1, 2013, pursuant to section 1, article IX of the West Virginia Constitution, shall be a surveyor licensed pursuant to the provisions of this article and such licensee shall be in good standing.

(b) The minimum standards for surveys, established by the board, apply notwithstanding the exemptions provided by this section.

§30A-6-12. Surveyor intern requirements.

(a) To be recognized as a surveyor intern by the board, a person must meet the following requirements:

(1) Is of good moral character;

(2) Is at least 18 years of age;

(3) Is a citizen of the United States or is eligible for employment in the United States;

(4) Holds a high school diploma or its equivalent;

(5) Has completed one of the education requirements set out in §30A-6-8 of this code; and

(6) Has passed an examination in the fundamentals of land surveying.

(b) A surveyor intern must pass the principles and practice of land surveying examination and the West Virginia examination within 10 years of passing the fundamentals of land surveying examination. If the examinations are not passed within 10 years, then the surveyor intern must retake the fundamentals of land surveying examination.

§30A-6-13. License from another state.

The board may issue a license to practice surveying in this state to an applicant of good moral character who holds a valid license or other authorization to practice surveying from another state if the applicant demonstrates that:

(1) He or she or she holds a license or other authorization to practice surveying in another state which was granted after completion of educational, experience and examinations requirements substantially equivalent to those required in this state;

(2) He or she is not currently being investigated by a disciplinary authority of another state, does not have charges pending against his or her license or other authorization to practice surveying and has never had a license or other authorization to practice surveying revoked;

(3) He or she has not previously failed an examination for licensure in this state;

(4) He or she has paid all the applicable fees; and

(5) Has completed such other action as required by the board.

§30A-6-14. License, endorsement and certificate of authorization renewal requirements.

(a) A licensee or endorsee wanting to continue in active practice shall, annually or biennially, on or before July 1, renew his or her license or endorsement and pay a renewal fee.

(b) A certificate holder wanting to continue in active practice shall, annually or biennially, on or before January 1, renew the certificate and pay a renewal fee.

(d) The board shall require as a condition of renewal that each licensee or endorsee complete continuing education.

(e) The board may deny an application for renewal for any reason which would justify the denial of an original application for a license, endorsement or certificate of authorization.

(f) The board may authorize the waiving of the renewal fee of a licensee or endorsee during the period when he or she is on active duty with any branch of the armed services.

§30A-6-15. Inactive license requirements.

(a) A licensee who does not want to continue in active practice shall notify the board in writing and be granted inactive status.

(b) A person granted inactive status shall pay an inactive fee and is exempt from the continuing education requirements and cannot practice in this state.

(c) When an inactive licensee wants to return to active practice, he or she must complete all the continuing education requirements and pay all the applicable fees as determined by the board.

§30A-6-16. Delinquent and expired license requirements.

(a) If a license is not renewed when due, then the board shall automatically place the licensee on delinquent status.

(b) The fee for a person on delinquent status shall increase at a rate, determined by the board, for each month or fraction thereof that the renewal fee is not paid, up to a maximum of 36 months.

(c) Within 36 months of being placed on delinquent status, if a licensee wants to return to active practice, he or she must complete all the continuing education requirements and pay all the applicable fees as determined by the board.

(d) After 36 months of being placed on delinquent status, a license is automatically placed on expired status and cannot be renewed. A person whose license has expired must reapply for a new license.

§30A-6-17. Retired license requirements.

(a) A licensee who does not want to continue practicing surveying and who has chosen to retire shall notify the board in writing and may be granted retired status.

(b) A person granted retired status shall be given the honorific title of “Professional Surveyor, Retired” and cannot practice in this state.

§30A-6-18. Requirements for when a person fails an examination.

(a) Any person failing any of the examinations for surveying is not permitted to work as a licensed surveyor under the provisions of this article until the person has passed all the examinations.

(b) A person failing the fundamentals of land surveying examination may still gain experience as required in §30A-6-8 of this code until he or she passes the examination.

(c) A person who has passed the fundamentals of land surveying examination, but failed the principles and practice examination or West Virginia examination may only work as a surveyor intern under the direct supervision of a licensee or a person authorized in another jurisdiction to engage in the practice of surveying until he or she passes all of the examinations.

§30A-6-19. Display of license, endorsement and certificate of authorization.

(a) The board shall prescribe the form for a license, endorsement and certificate of authorization and may issue a duplicate license, endorsement and certificate of authorization upon payment of a fee.

(b) A licensee, endorsee and certificate holder shall conspicuously display his or her license, endorsement or certificate of authorization at his or her principal place of practice.

§30A-6-20. Certificate of authorization requirements.

(a) Each firm practicing surveying in West Virginia shall have a certificate of authorization.

(b) The board shall issue a certificate of authorization to a firm that:

(1) Practices surveying in West Virginia;

(2) Provides proof that the firm has employed a surveyor-in-charge;

(3) Has paid all applicable fees; and

(4) Completes such other requirements as specified by the board.

§30A-6-21. Surveyor-in-charge requirements.

(a) A firm practicing surveying must operate all surveying activities under the supervision and management of a surveyor-in-charge who shall be a licensee who is licensed in this state.

(b) The designated surveyor-in-charge is responsible for the surveying work in this state provided by the firm.

(d) A licensee who performs part-time or consulting surveying services for a firm cannot be designated as a surveyor-in-charge for that firm unless the licensee is an officer, a majority interest holder or owner of the firm.

(e) The responsibilities of a surveyor-in-charge include:

(1) Renewal of the certificate of authorization;

(2) Notification to the board of any change in the surveyor-in-charge;

(3) Supervising the firm's employees, including licensees, and other personnel providing surveying services in this state; and

(4) Ensuring that the policies of the firm adhere to the provisions of this article.

(f) The board may authorize a licensee to supervise the work of an individual that is not an employee of the licensee, nor is employed by the same firm as the licensee. The potential supervisor must apply to the board for this authorization.

§30A-6-22. Complaints; investigations; due process procedure; grounds for disciplinary action.

(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the complaint to the licensee or certificate holder.

(c) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the licensee or certificate holder has violated this article.

(d) Upon a finding that probable cause exists that the licensee or certificate holder has violated this article, the board may enter into a consent decree or hold a hearing for the suspension or revocation of the license or certificate of authorization or the imposition of sanctions against the licensee or certificate holder. Any hearing shall be held in accordance with the provisions of this article.

(e) Any member of the board or the executive secretary of the board may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations against any person regulated by the article.

(f) Any member of the board or its executive secretary may sign a consent decree or other legal document on behalf of the board.

(g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend, restrict or revoke the license or certificate of authorization of, or impose probationary conditions upon or take disciplinary action against, any licensee or certificate holder for any of the following reasons once a violation has been proven by a preponderance of the evidence:

(1) Obtaining a license or certificate of authorization by fraud, misrepresentation or concealment of material facts;

(2) Being convicted of a felony or other crime involving moral turpitude;

(3) Being guilty of unprofessional conduct which placed the public at risk;

(4) Intentional violation of a lawful order or legislative rule of the board;

(5) Having had a license or other authorization to practice revoked or suspended, or other disciplinary action taken by the proper authorities of another jurisdiction;

(6) Aiding or abetting unlicensed practice; or

(7) Engaging in an act while acting in a professional capacity which has endangered or is likely to endanger the health, welfare or safety of the public.

(h) For the purposes of subsection (g) of this section, disciplinary action may include:

(1) Reprimand;

(2) Probation;

(3) Restrictions;

(4) Administrative fine, not to exceed $1,000 per day per violation;

(5) Mandatory attendance at continuing education seminars or other training;

(6) Practicing under supervision or other restriction; or

(7) Requiring the licensee or certificate holder to report to the board for periodic interviews for a specified period of time.

(i) In addition to any other sanction imposed, the board may require a licensee or certificate holder to pay the costs of the proceeding.

§30A-6-23. Procedures for hearing.

(a) Hearings are governed by the provisions of §30A-1-13 of this code.

(b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.

(d) Any member or the executive secretary of the board has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.

(e) If, after a hearing, the board determines the licensee or certificate holder has violated provisions of this article, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.

§30A-6-24. Judicial review.

Any licensee or certificate holder adversely affected by a decision of the board entered after a hearing may obtain judicial review of the decision in accordance §29A-5-4 of this code, and may appeal any ruling resulting from judicial review in accordance with §29A-6-1 of this code.

§30A-6-25. Criminal proceedings; penalties.

(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a person has knowingly violated the provisions of this article, the board may bring its information to the attention of the appropriate law-enforcement officer who may cause appropriate criminal proceedings to be brought.

(b) If a court of law finds that a person knowingly violated this article, any order of the board or any final decision of the board, then the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined no less than $100 and no more than $1,000 for each violation, confinement in a regional correctional facility for up to 30 days for each violation, or both fined and confined.

ARTICLE 7. LANDSCAPE ARCHITECTS.

§30A-7-1. License required to practice.

The practice of landscape architecture requires education, training and experience and should only be practiced by a licensed landscape architect. Therefore, the Legislature finds that in order to protect the health, safety, interest and welfare of the public and to provide for the regulation of landscape architecture in this state, a person must have a license, as provided in this article, to practice as a landscape architect.

§30A-7-2. Unlawful acts.

(a) It is unlawful for any person to practice or offer to practice landscape architecture in this state without a license issued under the provisions of this article, or advertise or use any title or description tending to convey the impression that the person is a licensed landscape architect, unless such person has been duly licensed under the provisions of this article.

(b) It is unlawful for any firm to practice or offer to practice landscape architecture in this state without a certificate of authorization issued under the provisions of this article, or advertise or use any title or description tending to convey the impression that it is a landscape architectural firm, unless such firm has been issued a certificate of authorization under the provisions of this article.

§30A-7-3. Applicable law.

The practice of landscape architecture and the board of Landscape Architects are subject to the provisions of §30A-1-1 et seq., the provisions of this article, and any rules promulgated thereunder.

§30A-7-4. Definitions.

As used in this article, the following words and terms have the following meanings, unless the context clearly indicates otherwise:

(a) “Accredited” means a school, college or university accredited by the Landscape Architectural Accreditation Board (LAAB) or any other accrediting body recognized by the board.

(b) “Applicant” means a person making application for a license or a permit, or a firm making application for a certificate of authorization, under the provisions of this article.

(d) “Certificate of authorization” means a certificate issued under the provisions of this article to a firm providing landscape architectural services.

(e) “Certificate of authorization holder” means a firm certified under the provisions of this article to provide landscape architectural services.

(f) “Examination” means the examination in landscape architecture required for licensure.

(g) “Firm” means any business entity, partnership, association, company, corporation, limited partnership, limited liability company or other entity providing landscape architectural services.

(h) “Landscape architect” means a person licensed under the provisions of this article to practice landscape architecture.

(i) “Landscape architecture” means the analysis, planning, design, management and stewardship of the natural and built environments.

(j) “License” means a landscape architecture license issued under the provisions of this article.

(k) “Licensee” means a person holding a landscape architecture license issued under the provisions of this article.

(l) “Permittee” means a person holding a temporary permit.

(m) “Practice of landscape architecture” means the performance of professional services, including but not limited to, analysis, consultations, evaluations, research, planning, design, management or responsible supervision of projects principally directed at the functional, aesthetic use, preservation and stewardship of the land and natural and built environments, including:

(1) Investigation, selection and allocation of land and water resources for appropriate uses;

(2) Formulation of feasibility studies and graphic and written criteria to govern the planning, design and management of land and water resources;

(3) Preparation, review and analysis of those aspects of land use master plans, subdivision plans and preliminary plats as are related to landscape architecture;

(4) Determination of the location and siting of improvements, including buildings and other features, as well as the access and environs for those improvements associated with the practice of landscape architecture;

(5) Design of land forms, soil conservation and erosion control methods, site lighting, water features, irrigation systems, plantings, pedestrian and vehicular circulation systems and related construction details, and natural drainage, surface and ground water drainage systems: Provided, That such systems do not require structural design of system components or a hydraulic analysis of the receiving storm water conveyance system; and

(6) Preparation, filing and administration of plans, drawings, specifications and other related construction documents.

(n) “Temporary permit” means a permit to practice landscape architecture issued by the board for a period of time not to exceed one year.

§30A-7-5. Board of Landscape Architects.

(a) The West Virginia Board of Landscape Architects is hereby continued and shall be composed of three members, two of whom must be licensed landscape architects, appointed by the Governor by and with the advice and consent of the Senate, for staggered terms of three years.

(b) Each licensed member of the board, at the time of his or her appointment, must have held a license in this state for a period of not less than three years and must have been a resident of this state for a period of not less than one year immediately preceding the appointment.

(d) No member may serve more than three consecutive full terms and any member having served three consecutive full terms may not be appointed for one year after completion of his or her third full term. A member shall continue to serve until his or her successor has been appointed and qualified. Any member currently serving on the board on the effective date of this article may be reappointed in accordance with the provisions of this section.

(e) A vacancy on the board shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant.

(f) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.

(g) Any member of the board immediately and automatically forfeits his or her membership if he or she has his or her license to practice suspended or revoked by the board, is convicted of a felony under the laws of any state or the United States, or becomes a nonresident of this state.

(h) The board shall designate one of its members as chairperson and one member as secretary-treasurer who shall serve at the will of the board.

(i) Each member of the board is entitled to receive compensation and expense reimbursement in accordance with §30A-1-1 et seq. of this code.

(j) A majority of the members of the board shall constitute a quorum.

(k) The board shall hold at least one annual meeting. Other meetings shall be held at the call of the chairperson or upon the written request of two members, at such time and place as designated in the call or request.

§30A-7-6. Powers and duties of the board.

(a) The board has all the powers and duties set forth in this article, by rule, in §30A-1-1 et seq. of this code, and elsewhere in law.

(b) The board's powers and duties include:

(1) Holding meetings, conducting hearings and administering examinations and reexaminations;

(2) Setting the requirements for a license, temporary permit and certificate of authorization;

(3) Establishing procedures for submitting, approving and rejecting applications for a license, temporary permit and certificate of authorization;

(4) Determining the qualifications of any applicant for a license, temporary permit and certificate of authorization;

(5) Preparing, conducting, administering and grading written, oral or written and oral examinations and reexaminations for a license;

(6) Contracting with third parties to prepare and/or administer the examinations and reexaminations required under the provisions of this article;

(7) Determining the passing grade for the examinations;

(8) Maintaining records of the examinations and reexaminations the board or a third party administers, including the number of persons taking the examination or reexamination and the pass and fail rate;

(9) Maintaining an accurate registry of names and addresses of all persons and firms regulated by the board;

(10) Defining, by legislative rule, the fees charged under the provisions of this article;

(11) Issuing, renewing, denying, suspending, revoking or reinstating licenses, temporary permits and certificates of authorization;

(12) Establishing, by legislative rule, the continuing education requirements for licensees;

(13) Suing and being sued in its official name as an agency of this state;

(14) Maintaining an office, and hiring, discharging, setting the job requirements and fixing the compensation of employees and investigators necessary to enforce the provisions of this article;

(15) Investigating alleged violations of the provisions of this article, the rules promulgated hereunder, and orders and final decisions of the board;

(16) Conducting disciplinary hearings of all persons and business entities regulated by the board;

(17) Setting disciplinary action and issuing orders;

(18) Instituting appropriate legal action for the enforcement of the provisions of this article;

(19) Keeping accurate and complete records of its proceedings, and certifying the same as may be appropriate;

(20) Proposing rules in accordance with the provisions of §29A-3-1 et seq. of this code to implement the provisions of this article; and

(21) Taking all other actions necessary and proper to effectuate the purposes of this article.

§30A-7-7. Rule-making authority.

(a) The board shall propose rules for legislative approval, in accordance with the provisions of §29A-3-1 et seq. of this code, to implement the provisions of this article, including the establishment of:

(1) Standards and requirements for licensure, temporary permits and certificates of authorization;

(2) Procedures for examinations and reexaminations;

(3) Requirements for third parties to prepare and/or administer examinations and reexaminations;

(4) Educational and experience requirements, and the passing grade on the examination for licensure;

(5) Procedures for the issuance and renewal of a license, temporary permit and certificate of authorization;

(6) A fee schedule: Provided, That the fee schedule in effect as of July 1, 2005, will remain in effect until amended, modified, repealed or replaced by the legislative rule promulgated pursuant to this subsection;

(7) Continuing education requirements for licensees;

(8) The procedures for denying, suspending, revoking, reinstating or limiting the practice of a licensee, permittee or certificate of authorization holder;

(9) Requirements for inactive or revoked licenses, temporary permits or certificates of authorization; and

(10) Any other rules necessary to effectuate the provisions of this article.

(b) All rules in effect on the effective date of this article shall remain in effect until they are amended, modified, repealed or replaced.

§30A-7-8. Fees; special revenue account; administrative fines.

(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the state Treasury designated the “Board of Landscape Architects Fund,” which fund is hereby continued. The fund shall be used by the board for the administration of this article. Except as may be provided in §30A-1-1 et seq. of this code, the board shall retain the amounts in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.

(b) Any amounts received as fines imposed pursuant to this article shall be deposited into the General Revenue Fund of the state Treasury.

§30A-7-9. Education, experience and examination requirements for licensure.

(a) An applicant for licensure under this article must have completed one of the following educational and/or experience requirements:

(1) Has a bachelor degree in landscape architecture from an accredited college or university and at least two years of experience in landscape architecture under the supervision of a landscape architect or a person having qualifications acceptable to the board and similar to the qualifications of a landscape architect;

(2) Has a graduate degree in landscape architecture from an accredited college or university and at least one year of experience in landscape architecture under the supervision of a landscape architect or a person having qualifications acceptable to the board and similar to the qualifications of a landscape architect; or

(3) (A) Prior to December 31, 2006, has completed at least 10 years of experience in landscape architecture, including at least six years of experience in landscape architecture under the supervision of a landscape architect or a person having qualifications acceptable to the board and similar to the qualifications of a landscape architect; or

(B) Prior to December 31, 2006, has begun the 10 years of experience in landscape architecture set out in subdivision (3) (A) of this subsection, and has not completed the experience requirements prior to December 31, 2006, then the person must notify the board that he or she will be making application under this subdivision and comply with the procedures prescribed by the board; or

(C) On and after January 1, 2007, has completed at least 10 years of experience in landscape architecture under the supervision of a landscape architect or a person having qualifications acceptable to the board and similar to the qualifications of a landscape architect.

(b) An applicant for licensure under this article must pass the examination prescribed by the board.

§30A-7-10. License requirements.

(a) The board shall issue a license to practice under the provisions of this article to an applicant who meets the following requirements:

(1) Is of good moral character;

(2) Is at least 18 years of age;

(3) Is a citizen of the United States or is eligible for employment in the United States;

(4) Has not had his or her application for a license to practice as a landscape architect refused in any state of the United States;

(5) Has not had his or her license to practice landscape architecture suspended or revoked in any state of the United States; and

(6) Has completed the licensure requirements set out in this article and the rules promulgated hereunder.

(b) The board may issue a license to practice under the provisions of this article to an applicant who does not meet the licensure requirements set out in subdivisions (5) or (6) of subsection (a) of this section, but who does meet the licensure requirements established by rule by the board.

(d) An applicant shall pay all the applicable fees.

(e) A license to practice landscape architecture issued by the board prior to July 1, 2006, shall for all purposes be considered a license issued under this article: Provided, That a person holding a license to practice landscape architecture issued prior to July 1, 2006, must renew the license pursuant to the provisions of this article.

§30A-7-11. License from another jurisdiction; license to practice in this state.

The board may issue a license to practice landscape architecture in this state, without requiring an examination, to an applicant of good moral character who holds a valid license or other authorization to practice landscape architecture from another jurisdiction, if the applicant:

(1) Holds a license or other authorization to practice landscape architecture in another jurisdiction and meets requirements which are substantially equivalent to the licensure requirements set forth in this article;

(2) Is not currently being investigated by a disciplinary authority of this state or another jurisdiction, does not have charges pending against his or her license or other authorization to practice landscape architecture, and has never had a license or other authorization to practice landscape architecture revoked;

(3) Has not previously failed an examination for licensure in this state;

(4) Has paid all the applicable fees; and

(5) Has completed such other action as required by the board.

§30A-7-12. License renewal requirements.

(a) A licensee shall, annually or biennially upon or before July 1, renew his or her license by completing a form prescribed by the board and paying a renewal fee.

(b) At least 30 days prior to July 1, either annually or biennially, the secretary-treasurer of the board shall mail to every licensee a notice of renewal, an application for renewal and a statement for the renewal fee.

(c) The board shall charge a fee for each renewal of a license and a late fee for any renewal not paid in a timely manner.

(d) The board shall require as a condition for the renewal of a license that each licensee complete continuing education requirements.

(e) The board may deny an application for renewal for any reason which would justify the denial of an original application for a license.

§30A-7-13. Inactive license requirements.

(a) A licensee who chooses not to continue in active practice and notifies the board in writing, may be granted inactive status.

(b) A person granted inactive status shall pay an inactive fee, is exempt from the continuing education requirements and cannot practice in this state.

(c) When an inactive licensee wants to return to active practice, he or she must complete all the continuing education requirements, pay all the applicable fees and meet all the other requirements prescribed by the board.

§30A-7-14. Retired license requirements.

(a) A licensee who chooses to retire and notifies the board in writing, may be granted retired status.

(b) A person granted retired status cannot practice landscape architecture in this state.

§30A-7-15. Reinstatement.

The board may reinstate a license upon a showing that the applicant is qualified to resume practice. The applicant shall pay all applicable fees and shall meet all the requirements prescribed by the board.

§30A-7-16. Temporary permits.

(a) Upon proper application and payment of the applicable fees, the board may issue a temporary permit, for a period of time not to exceed one year, to an applicant who has completed the educational and/or experience requirements set out in this article, but who has not taken the examination.

(b) The temporary permit expires 30 days after the board gives written notice to the permittee of the results of the first examination held following the issuance of the temporary permit.

(d) The temporary permit may be revoked for any reason which would justify the suspension, revocation, limitation or denial of a license.

§30A-7-17. Display of license.

(a) The board shall prescribe the form for a license and may issue a duplicate license, upon payment of a fee.

(b) A licensee shall conspicuously display his or her license at his or her principal place of practice.

§30A-7-18. Seal requirements.

(a) Each licensee must have a seal, authorized by the board, which seal shall include the licensee's name and the words: “Professional Landscape Architect, State of West Virginia,” and any other words or figures prescribed by the board.

(b) All working drawings and specifications prepared by a licensee shall be signed and stamped with the licensee's seal: Provided, That nothing contained in this article shall be construed to permit the seal of a landscape architect to serve as a substitute for the seal of an architect, an engineer or a professional surveyor whenever the seal of such architect, engineer or professional surveyor is required by law.

§30A-7-19. Certificate of authorization requirements.

(a) After July 1, 2006, a firm practicing landscape architecture in West Virginia shall have a certificate of authorization.

(b) The board shall issue a certificate of authorization to a firm that:

(1) Wants to practice landscape architecture in West Virginia;

(2) Provides proof that the firm employs a West Virginia licensed landscape architect;

(3) Has paid all applicable fees; and

(4) Completes such other requirements as specified by the board.

(c) The name of the employed licensee in direct control or having personal supervision of the practice of the firm shall appear as the landscape architect on all plans, drawings, specifications, reports or other instruments of service rendered or submitted by the firm.

§30A-7-20. Certificate of authorization renewal requirements.

(a) A firm wanting to continue in active practice shall, annually or biennially upon or before July 1, renew its certificate of authorization and pay a renewal fee.

(b) At least 30 days prior to July 1, either annually or biennially, the secretary-treasurer of the board shall mail to every certificate of authorization holder a notice of renewal, an application for renewal and a statement for the renewal fee.

(c) The board shall charge a fee for each renewal of a certificate of authorization and a late fee for any renewal not paid in a timely manner.

§30A-7-21. Display of certificate of authorization.

(a) The board shall prescribe the form for a certificate of authorization, and may issue a duplicate certificate of authorization upon payment of a fee.

(b) A firm shall conspicuously display its certificate of authorization at its principal place of practice.

§30A-7-22. Exemptions from article.

(a) Nothing in this article shall prohibit any professional engineer, professional surveyor, or forester licensed or registered under the provisions of this code from providing services for which they are licensed or registered.

(b) Nothing in this article shall prohibit any architect licensed or registered under the provisions of this code from performing any of the services included within the definition of the practice of landscape architecture as set forth in §30A-4-4 (m) of this code when incidental to the practice of architecture as defined in §30A-3-1 et seq. of this code.

(c) Nothing in this article shall prohibit a nursery person, agriculturist, horticulturist, gardener, landscape designer, landscape contractor, grader, cultivator of land, garden or lawn caretaker from engaging in the occupation of growing or marketing nursery stock, preparing planting plans, installing plant material, providing drawings or graphic diagrams necessary for the proper layout of goods or materials, or arranging for the installation of goods or materials on private or public land.

(d) Nothing in this article shall prohibit state, county, city or other municipal, urban or regional planners and designers from preparing plans or diagrams necessary to the planning, design and management of communities or regions.

(e) Nothing in this article shall prohibit an individual from making landscape plans, drawings or specifications for property owned, leased or rented by the individual for his or her personal use.

(f) Only licensed landscape architects shall use the title, “Landscape Architect”, or other similar words or titles which implies licensure.

§30A-7-23. Refusal to issue or renew, suspension or revocation; disciplinary action.

(a) The board may refuse to issue, refuse to renew, suspend, revoke or limit any license, temporary permit, certificate of authorization or practice privilege and may take disciplinary action against a licensee, permittee or certificate of authorization holder who, after notice and a hearing, has been adjudged by the board as unqualified for any of the following reasons:

(1) Fraud, misrepresentation or deceit in obtaining or maintaining a license, temporary permit or certificate of authorization;

(2) Failure by any licensee, permittee or certificate of authorization holder to maintain compliance with the requirements for the issuance or renewal of a license, temporary permit or certificate of authorization;

(3) Dishonesty, fraud, professional negligence in the performance of landscape architectural services, or a willful departure from the accepted standards of landscape architecture and the professional conduct of landscape architects;

(4) Violation of any provision of this article or any rule promulgated hereunder;

(5) Violation of any professional standard or rule of professional conduct;

(6) Failure to comply with the provisions of this article or any rule promulgated hereunder;

(7) Failure to comply with any order or final decision of the board;

(8) Failure to respond to a request or action of the board;

(9) Conviction of a crime involving moral turpitude;

(10) Conviction of a felony or a crime involving dishonesty or fraud or any similar crime under the laws of the United States, this state or another jurisdiction, if the underlying act or omission involved would have constituted a crime under the laws of this state;

(11) Any conduct adversely affecting the licensee's, permittee's or certificate of authorization holder's fitness to perform landscape architectural services; or

(12) Knowingly using any false or deceptive statements in advertising.

(b) If the board suspends, revokes, refuses to issue, refuses to renew or limits any license, temporary permit, certificate of authorization or practice privilege, the board shall make and enter an order to that effect and give written notice of the order to the person by certified mail, return receipt requested, which order shall include a statement of the charges setting forth the reasons for the action, and notice of the date, time and place of the hearing. If a license, temporary permit, certificate of authorization is ordered suspended or revoked, then the licensee, permittee or certificate of authorization holder shall, within 20 days after receipt of the order, return the license, temporary permit, certificate of authorization to the board. The hearing shall be held in accordance with the provisions of this article.

(c) Disciplinary action includes, but is not limited to, a reprimand, censure, probation, administrative fines, and mandatory attendance at continuing education seminars.

§30A-7-24. Complaints; investigations; notice.

(a) The board may, on its own motion, conduct an investigation to determine whether there are any grounds for disciplinary action against a licensee, permittee or certificate of authorization holder. The board shall, upon the verified written complaint of any person, conduct an investigation to determine whether there are any grounds for disciplinary action against a licensee, permittee or certificate of authorization holder.

(b) Upon receipt of a written complaint filed against any licensee, permittee or certificate of authorization holder, the board shall provide a copy of the complaint to the licensee, permittee or certificate of authorization holder.

(c) If the board finds, upon investigation, that probable cause exists that the licensee, permittee or certificate of authorization holder has violated any provision of this article or the rules promulgated hereunder, then the board shall serve the licensee, permittee or certificate of authorization holder with a written statement of charges and a notice specifying the date, time and place of the hearing. The hearing shall be held in accordance with the provisions of this article.

§30A-7-25. Hearing and judicial review.

(a) Any person adversely affected by an order entered by the board is entitled to a hearing. A hearing on a statement of the charges shall be held in accordance with the provisions for hearings set forth in §30A-1-1 et seq. of this code and the procedures specified by the board by rule.

(b) Any licensee, permittee or certificate of authorization holder, adversely affected by any decision of the board entered after a hearing, may obtain judicial review of the decision in accordance with §29A-5-4 of this code, and may appeal any ruling resulting from judicial review in accordance with §29A-6-1 of this code.

§30A-7-26. Injunctions.

(a) When, by reason of an investigation under this article or otherwise, the board or any other interested person believes that a person has violated or is about to violate any provision of this article, any rule promulgated hereunder, any order of the board or any final decision of the board, the board or any other interested person may apply to any court of competent jurisdiction for an injunction against such person enjoining such person from the violation. Upon a showing that the person has engaged in or is about to engage in any prohibited act or practice, an injunction, restraining order or other appropriate order may be granted by the court without bond.

(b) A cause of action by the board may be brought in the circuit court of the county where the cause of action took place.

§30A-7-27. Criminal proceedings; penalties.

(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a person has knowingly violated the provisions of this article, the board may bring its information to the attention of the Attorney General or other appropriate law-enforcement officer who may cause appropriate criminal proceedings to be brought.

(b) If a court of law finds that a person knowingly violated any provision of this article, any rule promulgated hereunder, any order of the board or any final decision of the board, then the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 and no more than $1,000 for each violation, imprisoned for up to 30 days for each violation, or both fined and imprisoned.

§30A-7-28. Single act evidence of practice.

ARTICLE 8. SANITARIANS.

§30A-8-1. Unlawful acts.

It is unlawful for any person to practice or offer to practice environmental health science and public health sanitation in this state without being licensed, certified or permitted under the provisions of this article, or to advertise or use any title or description tending to convey the impression that the person is a registered sanitarian, sanitarian or sanitarian-in-training unless he or she has been duly authorized under the provisions of this article, and the license, certification or permit has not expired or been suspended or revoked.

§30A-8-2. Applicable law.

The practice of environmental health science and public health sanitation, and the board are subject to the provisions of §30A-1-1 et seq. of this code, the provisions of this article and any rules promulgated hereunder.

§30A-8-3. Definitions.

As used in this article, the following words and terms have the following meanings:

(a) "Board" means the State Board of Sanitarians.

(b) "Bureau" means the Bureau for Public Health.

(d) "Certificate" means a document issued to a sanitarian under the provisions of this article.

(e) "Environmental health science" means public health science that includes, but is not limited to, the following bodies of knowledge: air quality, food quality and protection, hazardous and toxic substances, consumer product safety, housing, institutional health and safety, community noise control, radiation protection, recreational facilities, solid and liquid waste management, vector control, drinking water quality, milk sanitation and rabies control.

(f) "License" means a document issued to a registered sanitarian under the provisions of this article.

(g) "Licensee" means a person holding a license issued by the board.

(h) "Permit" means a document issued to a sanitarian-in-training under the provisions of this article.

(i) "Permittee" means a person holding a permit issued by the board.

(j) "Practice of public health sanitation" means the consultation, instruction, investigation, inspection or evaluation by an employee of the bureau, or a municipal or county health department with the primary purpose of improving or conducting administration of enforcement of state laws and rules.

(k) "Registered sanitarian" means a person who is licensed by the board and is uniquely qualified by education, specialized training, experience and examination to assist in the enforcement of public health sanitation laws and environmental sanitation regulations, and to effectively plan, organize, manage, evaluate and execute one or more of the many diverse disciplines comprising the field of public health sanitation.

(l) "Sanitarian" means a person who is certified by the board and is uniquely qualified by education in the arts and sciences, specialized training and credible field experience to assist in the enforcement of public health sanitation laws and environmental sanitation regulations, and to effectively plan, organize, manage, evaluate and execute one or more of the many diverse disciplines comprising the field of public health sanitation.

(m) "Sanitarian-in-training" means a person who is permitted by the board and possesses the necessary educational qualifications for certificate as a sanitarian, but who has not completed the experience requirements in the fields of public health sanitation and environmental health science as required for certificate.

§30A-8-4. State Board of Sanitarians.

(a) The Board of Registration for Sanitarians is continued and commencing July 1, 2010, shall be known as the State Board of Sanitarians. Any member of the board, except one registered sanitarian, in office on July 1, 2010, may continue to serve until his or her successor has been appointed and qualified.

(b) Prior to July 1, 2010, the Governor, by and with the advice and consent of the Senate, shall appoint one certified sanitarian to replace one registered sanitarian.

(1) Four members who are registered sanitarians;

(2) One member who has a certificate as a sanitarian at the time of the appointment: Provided, That if the member becomes a registered sanitarian during his or her appointment term, then the person may not be reappointed as the certified sanitarian member, but may be reappointed as a registered sanitarian member; and

(3) Two citizen members who are not licensed, certified, or permitted under the provisions of this article, and who do not perform any services related to the practice of the professions regulated under the provisions of this article.

(d) Each member must be appointed by the Governor, by and with the advice and consent of the Senate and must be a resident of this state during the appointment term.

(e) The term of each board member is five years.

(f) No member may serve more than two consecutive full terms and any member having served two full terms may not be appointed for one year after completion of his or her second full term. A member shall continue to serve until his or her successor has been appointed and qualified.

(g) Each licensed or certified member shall have been engaged in the practice of environmental health science or public health sanitation for at least five years immediately preceding the appointment.

(h) Each licensed or certified member shall maintain an active license or certificate with the board during his or her term.

(i) The Governor may remove any member from the board for neglect of duty, incompetency, or official misconduct.

(j) A licensed or certified member of the board immediately and automatically forfeits membership to the board if his or her license or certificate to practice is suspended or revoked.

(k) A member of the board immediately and automatically forfeits membership to the board if he or she is convicted of a felony under the laws of any jurisdiction or becomes a nonresident of this state.

(l) The board shall designate one of its members as chairperson who serves at the will of the board.

(m) Each member of the board is entitled to receive compensation and expense reimbursement in accordance with §30-1-11 of this code.

(n) A majority of the members of the board shall constitute a quorum.

(o) The board shall hold at least two annual meetings. Other meetings may be held at the call of the chairperson, or upon the written request of two members, at such time and place as designated in the call or request.

(p) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article IV of the Constitution of this state.

§30A-8-5. Powers and duties of the board.

The board has all the powers and duties set forth in §30A-1-1 et seq. of this code and also the following powers and duties:

(1) Hold meetings, conduct hearings and administer examinations;

(2) Set the requirements for a license, permit and certificate;

(3) Establish procedures for submitting, approving and rejecting applications for a license, permit and certificate;

(4) Determine the qualifications of any applicant for a license, permit and certificate;

(5) Prepare, conduct, administer and grade written, oral or written and oral examinations for a license;

(6) Determine the passing grade for the examinations;

(7) Contract with third parties to administer the examinations required under the provisions of this article;

(8) Maintain records of the examinations the board or a third party administers, including the number of persons taking the examination and the pass and fail rate;

(9) Maintain an office, and hire, discharge, establish the job requirements and fix the compensation of employees and contracted employees necessary to enforce the provisions of this article;

(10) Define the fees charged under the provisions of this article;

(11) Issue, renew, deny, suspend, revoke or reinstate a license, permit and certificate;

(12) Investigate alleged violations of the provisions of this article, legislative rules, orders and final decisions of the board;

(13) Conduct disciplinary hearings of persons regulated by the board;

(14) Determine disciplinary action and issue orders;

(15) Institute appropriate legal action for the enforcement of the provisions of this article;

(16) Maintain an accurate registry of names and addresses of all persons regulated by the board;

(17) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;

(18) Establish the continuing education requirements for licensees, permittees and certificate holders;

(19) Propose rules in accordance with the provisions of §29A-3-1 et seq. of this code to implement the provisions of this article;

(20) Sue and be sued in its official name as an agency of this state;

(21) Confer with the Attorney General or his or her assistant in connection with legal matters and questions; and

(22) Take all other actions necessary and proper to effectuate the purposes of this article.

§30A-8-6. Rulemaking.

(a) The board shall propose rules for legislative approval, in accordance with the provisions of §29A-3-1 et seq. of this code, to implement the provisions of this article, including:

(1) Standards and requirements for a license, permit or certificate;

(2) Procedures for examinations and reexaminations;

(3) Requirements for third parties to prepare and/or administer examinations and reexaminations;

(4) Educational, experience and training requirements, and the passing grade on the examination;

(5) Standards for approval of courses;

(6) Procedures for the issuance and renewal of a license, permit or certificate;

(7) A fee schedule;

(8) The continuing education requirements;

(9) The procedures for denying, suspending, revoking, reinstating or limiting the practice of a licensee, permittee or certificate holder;

(10) Requirements for an inactive or revoked license, permit or certificate; and

(11) Any other rules necessary to effectuate the provisions of this article.

(b) All of the board's rules in effect on July 1, 2010, shall remain in effect until they are amended or repealed, and references to provisions of former enactments of this article are interpreted to mean provisions of this article.

(c) The board is authorized to promulgate emergency rules pursuant to the provisions of §29A-3-15 of this code, to set fees for the issuance and renewal of licenses, certificates and permits for an 18-month period commencing July 1, 2010, and ending December 31, 2011.

§30A-8-7. Fees; special revenue account; administrative fines.

(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the State Treasury designated the "Sanitarians Operating Fund", which fund is continued. The fund shall be used by the board for the administration of this article. Except as may be provided in §30A-1-1 et seq. of this code, the board shall retain the amounts in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.

(b) Any amounts received as fines imposed, pursuant to this article, shall be deposited into the General Revenue Fund of the State Treasury.

§30A-8-8. Qualifications for licensure as a registered sanitarian.

(a) To be eligible to be licensed as a registered sanitarian, the applicant must:

(1) Be of good moral character;

(2) Have a bachelor's or higher degree from an accredited college or university;

(3) Successfully complete a sanitarian's training course of a minimum of 300 hours, as approved by the board;

(4) Have at least two years of experience in the field of public health sanitation and environmental health science; and

(5) Pass an examination, as required by the board.

(b) An applicant may substitute a successfully completed master's or higher degree in public health, environmental science, sanitary science, community hygiene or other science field, as approved by the board, for one of the required years of experience.

(c) A registration issued by the board prior to July 1, 2010, shall for all purposes be considered a license issued under this article: Provided, That a person holding a registration issued prior to July 1, 2010, must renew pursuant to the provisions of this article.

§30A-8-9. Qualifications for certificate as a sanitarian.

(a) To be eligible to be certified as a sanitarian, the applicant must:

(1) Be of good moral character;

(2) Have a bachelor's or higher degree from an accredited college or university;

(3) Successfully complete a sanitarian's training course of a minimum of 300 hours, as approved by the board; and

(4) Have at least two years of experience in the field of public health sanitation and environmental health science.

(b) An applicant may substitute a successfully completed master's or higher degree in public health, environmental science, sanitary science, community hygiene or other science field as approved by the board for one of the required years of experience.

(c) A person who is registered as a sanitarian-in-training by the board and on or before July 1, 2010, has two or more years of experience in the field of public health sanitation and environmental health science, as approved by the board, shall for all purposes be considered certified under this article: Provided, That such a person must renew pursuant to the provisions of this article.

§30A-8-10. Qualifications for permit as a sanitarian-in-training.

(a) To be eligible to be permitted as a sanitarian-in-training, the applicant must:

(1) Be of good moral character;

(2) Have a bachelor's or higher degree from an accredited college or university; and

(3) Successfully complete a sanitarian's training course of a minimum of 300 hours within 12 months of being hired as a sanitarian-in-training.

(b) A person may practice as a sanitarian-in-training for a period not to exceed three years.

(c) The board may waive the requirements of subdivision (3) of subsection (a) and subsection (b) of this section, for a person who experiences an undue hardship, as determined by the board.

§30A-8-11. Persons exempted from licensure.

The activities and services of qualified members of other recognized professions practicing environmental health science consistent with the laws of this state, their training and any code of ethics of their professions so long as such person does not represent themselves as a registered sanitarian, sanitarian or sanitarian-in-training as defined by this article.

§30A-8-12. License from another state.

The board may issue a license or a certificate to practice environmental health science or public health sanitation in this state, without requiring an examination, to an applicant from another jurisdiction who:

(1) Is of good moral character;

(2) Holds a valid sanitarian license or other authorization to practice environmental health science or public health sanitation in another jurisdiction and meets requirements which are substantially equivalent to the requirements set forth in this article;

(3) Is not currently being investigated by a disciplinary authority of this state or another jurisdiction, does not have charges pending against his or her license or other authorization to practice environmental health science or public health sanitation, and has never had a license or other authorization to practice environmental health science or public health sanitation revoked;

(4) Has not previously failed an examination for licensure in this state;

(5) Has paid all the applicable fees;

(6) Completes any additional training as determined by the board; and

(7) Completes such other action as required by the board.

§30A-8-13. Renewal requirements.

(a) The board may issue, renew and charge fees for licenses, certificates and permits for an 18-month period commencing July 1, 2010, and ending December 31, 2011.

(b) Commencing January 1, 2012, and annually or biennially thereafter, a person regulated by this article shall renew his or her license, permit or certificate by completing a form prescribed by the board, paying the applicable fees and submitting any other information required by the board.

(c) The board shall charge a fee for each renewal of a license, permit or certificate and may charge a late fee for any renewal not paid by the due date.

(d) The board shall require as a condition for the renewal of a license, permit or certificate that each person regulated by this article complete continuing education.

(e) The board may deny an application for renewal for any reason which would justify the denial of an original application for a license, permit or certificate.

§30A-8-14. Display of license, permit or certificate.

(a) The board shall prescribe the form for a license, permit and certificate and may issue a duplicate upon payment of a fee.

(b) Any person, not employed by the bureau or a municipal or county health department, shall conspicuously display his or her license, permit or certificate at his or her principal place of practice.

(c) A person regulated by the board shall carry valid proof of licensure, permit or certificate on his or her person during the performance of his or her duties.

§30A-8-15. Complaints; investigations; due process procedure; grounds for disciplinary action.

(a) The board may upon its own motion and shall upon the written complaint of any person cause an investigation to be made to determine whether grounds exist for disciplinary action under this article.

(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the complaint to the licensee, permittee or certificate holder.

(d) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the licensee, permittee or certificate holder has violated this article.

(e) Upon a finding that probable cause exists that the licensee, permittee or certificate holder has violated this article, the board may enter into a consent decree or hold a hearing for the suspension or revocation of the license, certificate or permit or the imposition of sanctions against the licensee, permittee or certificate holder. The hearing shall be held in accordance with the provisions of this article.

(f) Any member of the board or the executive director of the board may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations against any person regulated by this article.

(g) Any member of the board or its executive director may sign a consent decree or other legal document on behalf of the board.

(h) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend or revoke the license, permit or certificate of, impose probationary conditions upon or take disciplinary action against, any licensee, permittee or certificate holder for any of the following reasons:

(1) Obtaining a license, permit or certificate by fraud, misrepresentation or concealment of material facts;

(2) Being convicted of a felony or other crime involving moral turpitude;

(3) Being guilty of unprofessional conduct which placed the public at risk;

(4) Violating this article or lawful order of the board that placed the public at risk;

(5) Having had a license or other authorization revoked or suspended, other disciplinary action taken, or an application for licensure or other authorization denied by the proper authorities of another jurisdiction, irrespective of intervening appeals and stays; or

(6) Engaging in any act which has endangered or is likely to endanger the health, welfare or safety of the public.

(i) For the purposes of subsection (h) of this section, disciplinary action may include:

(1) Reprimand;

(2) Probation;

(3) Administrative fine, not to exceed $1,000 per day per violation;

(4) Mandatory attendance at continuing education seminars or other training;

(5) Practicing under supervision or other restriction;

(6) Requiring the licensee, permittee or certificate holder to report to the board for periodic interviews for a specified period of time; or

(7) Other corrective action considered by the board to be necessary to protect the public, including advising other parties whose legitimate interests may be at risk.

§30A-8-16. Procedures for hearing; right of appeal.

(a) Hearings are governed by the provisions of §30A-1-13 of this code.

(b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.

(d) Any member or the executive director of the board has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.

(e) If, after a hearing, the board determines the licensee, permittee or certificate holder has violated this article, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.

§30A-8-17. Judicial review; appeal to Supreme Court of Appeals.

Any licensee, permittee or certificate holder adversely affected by a decision of the board entered after a hearing may obtain judicial review of the decision in accordance with §29A-5-4 of this code, and may appeal any ruling resulting from judicial review in accordance with §29A-6-1 of this code.

§30A-8-18. Criminal proceedings; penalties.

(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a licensee, permittee or certificate holder has knowingly violated this article, the board may bring its information to the attention of an appropriate law-enforcement official who may cause criminal proceedings to be brought.

(b) If a court finds that a person violating this article, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000 or confined in jail not more than six months, or both fined and confined.

§30A-8-19. Single act evidence of practice.

ARTICLE 9. NURSING HOME ADMINISTRATORS.

§30A-9-1. Unlawful acts.

(a) It is unlawful for any person to practice or offer to practice nursing home administration in this state without a license or permit issued under the provisions of this article, or advertise or use any title or description tending to convey the impression that they are a nursing home administrator unless the person has been duly licensed or permitted under the provisions of this article.

(b) A business entity may not render any service or engage in any activity which, if rendered or engaged in by an individual, would constitute the practice of nursing home administration, except through a licensee or permittee.

§30A-9-2. Applicable law.

The practice licensed under the provisions of this article and the West Virginia Nursing Home Administrators Licensing Board is subject to §30A-1-1 et seq. of this code, the provisions of this article, and any rules promulgated hereunder.

§30A-9-3. Definitions.

As used in this article:

(1) “Applicant” means any person making application for an original or renewal license or a temporary or emergency permit under the provisions of this article.

(2) “Board” means the West Virginia Nursing Home Administrators Licensing Board created by this article.

(3) “License” means a license to practice nursing home administration under the provisions of this article.

(4) “Licensee” means a nursing home administrator licensed under this article.

(5) “Nursing home” means a nursing home as that term is defined in §16-5C-2(c) of this code.

(6) “Nursing home administrator” means a person who performs or is responsible for planning, organizing, directing and controlling a nursing home, whether or not such the person has an ownership interest in the nursing home or shares the functions.

(7) “Permit” means a temporary permit or emergency permit issued under the provisions of this article.

(8) “Permittee” means any person holding a permit issued pursuant to the provisions of this article.

(9) “Practice of nursing home administration” means any service requiring nursing home administration education, training, or experience and applying such to planning, organizing, staffing, directing, and controlling of the total management of a nursing home.

§30A-9-4. West Virginia Nursing Home Administrators Licensing Board.

(a) The West Virginia Nursing Home Administrators Licensing Board terminates on June 30, 2010. The terms of the members of the board serving on June 1, 2010, terminate on June 30, 2010.

(b) Prior to July 1, 2010, the Governor shall appoint, by and with advice and consent of the Senate:

(1) Two persons who are licensed nursing home administrators, each for a term of five years;

(2) One person who is licensed as a nursing home administrator for a term of four years;

(3) One person who is licensed as a nursing home administrator for a term of three years;

(4) One person who is licensed as a nursing home administrator for a term of two years; and

(5) Two citizen members, who are not licensed under the provisions of this article and who do not perform any services related to the practice of the profession regulated under the provisions of this article, one for a term of four years, and one for a term of three years.

(c) After the initial appointment, the term shall be for five years. All appointments to the board shall be made by the Governor by and with the advice and consent of the Senate.

(d) Commencing July 1, 2010, the board is created and shall consist of the following seven voting members and one ex-officio nonvoting member:

(1) Five members who are licensed nursing home administrators;

(2) Two citizen members, who are not licensed under the provisions of this article and who do not perform any services related to the practice of the professions regulated under the provisions of this article, for a term of three years; and

(3) The Commissioner of the Bureau for Public Health or his or her designee is an ex-officio nonvoting member.

(e) Each licensed member of the board, at the time of his or her appointment, must have held a license in this state for a period of not less than five years immediately preceding the appointment.

(f) Each member of the board must be a resident of this state during the appointment term.

(g) A member may not serve more than two consecutive full terms. A member may continue to serve until a successor has been appointed and has qualified.

(h) A vacancy on the board shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant and the appointment shall be made within 60 days of the vacancy.

(i) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.

(j) A member of the board immediately and automatically forfeits membership to the board if his or her license to practice is suspended or revoked, he or she is convicted of a felony under the laws of any jurisdiction, or he or she becomes a nonresident of this state.

(k) The board shall elect annually one of its members as a chairperson and one of its members as a secretary who serve at the will of the board.

(l) Each member of the board is entitled to compensation and expense reimbursement in accordance with §30A-1-1 et seq. of this code.

(m) A majority of the members of the board constitutes a quorum.

(n) The board shall hold at least two meetings each year. Other meetings may be held at the call of the chairperson or upon the written request of two members, at the time and place as designated in the call or request.

(o) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state.

§30A-9-5. Powers and duties of the board.

(a) The board has all the powers and duties set forth in this article, by rule, in §30A-1-1 et seq. of this code, and elsewhere in law.

(b) The board shall:

(1) Hold meetings, conduct hearings and administer examinations;

(2) Establish requirements for licenses and permits;

(3) Establish procedures for submitting, approving and rejecting applications for licenses and permits;

(4) Determine the qualifications of any applicant for licenses and permits;

(5) Prepare, conduct, administer and grade examinations for licenses;

(6) Determine the passing grade for the examinations;

(7) Maintain records of the examinations the board or a third party administers, including the number of persons taking the examinations and the pass and fail rate;

(8) Hire, discharge, establish the job requirements and fix the compensation of the executive director;

(9) Maintain an office, and hire, discharge, establish the job requirements and fix the compensation of employees, investigators and contracted employees necessary to enforce the provisions of this article;

(10) Investigate alleged violations of the provisions of this article, legislative rules, orders and final decisions of the board;

(11) Conduct disciplinary hearings of persons regulated by the board;

(12) Determine disciplinary action and issue orders;

(13) Institute appropriate legal action for the enforcement of the provisions of this article;

(14) Maintain an accurate registry of names and addresses of all persons regulated by the board;

(15) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;

(16) Establish the continuing education requirements for licensees;

(17) Issue, renew, combine, deny, restrict, suspend, restrict, revoke or reinstate licenses and permits;

(18) Establish a fee schedule;

(19) Propose rules in accordance with the provisions of §29A-3-1 et seq. of this code to implement the provisions of this article; and

(20) Take all other actions necessary and proper to effectuate the purposes of this article.

(1) Contract with third parties to administer examinations required under the provisions of this article;

(2) Sue and be sued in its official name as an agency of this state; and

(3) Confer with the Attorney General or his or her assistant in connection with legal matters and questions.

§30A-9-6. Rulemaking.

(a) The board shall propose rules for legislative approval, in accordance with the provisions of §29A-3-1 et seq. of this code, to implement the provisions of this article, including:

(1) Standards and requirements for licenses and permits;

(2) Procedures for examinations and reexaminations;

(3) Requirements for third parties to prepare and/or administer examinations and reexaminations;

(4) Educational and experience requirements;

(5) The passing grade on the examinations;

(6) Standards for approval of courses and curriculum;

(7) Procedures for the issuance and renewal of licenses and permits;

(8) Procedures to address substandard quality of care notices from the West Virginia Office of Health Facility Licensure;

(9) A fee schedule;

(10) Procedure to publish a notice of a disciplinary hearing against a licensee;

(11) Continuing education requirements for licensees;

(12) The procedures for denying, suspending, restricting, revoking, reinstating or limiting the practice of licensees and permittees;

(13) Adoption of a standard for ethics;

(14) Requirements for inactive or revoked licenses or permits; and

(15) Any other rules necessary to effectuate the provisions of this article.

§30A-9-7. Fees; special revenue account; administrative fines.

(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the State Treasury designated the West Virginia Nursing Home Administrators Licensing Board Fund”, which is continued. The fund is used by the board for the administration of this article. Except as may be provided in §30A-1-1 et seq. of this code, the board retains the amount in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.

(b) Any amount received as fines, imposed pursuant to this article, shall be deposited into the General Revenue Fund of the State Treasury.

§30A-9-8. Qualifications for license; exceptions; application; fees.

(a) To be eligible for a license to engage in the practice of nursing home administration, the applicant must:

(1) Submit an application to the board;

(2) Be of good moral character;

(3) Obtain a baccalaureate degree;

(4) Pass a state and national examination as approved by the board;

(5) Complete the required experience as prescribed by the board;

(6) Successfully complete a criminal background check, through the West Virginia State Police and the National Criminal Investigative Center;

(7) Successfully complete a Health Integrity Protection Data Bank check;

(8) Not be an alcohol or drug abuser as these terms are defined in §27-1A-11 of this code: Provided, That an applicant in an active recovery process, which may, in the discretion of the board, be evidenced by participation in a twelve-step program or other similar group or process, may be considered;

(9) Not have been convicted of a felony in any jurisdiction within 10 years preceding the date of application for license which conviction remains unreversed;

(10) Not have been convicted of a misdemeanor or felony in any jurisdiction if the offense for which he or she was convicted related to the practice of nursing home administration, which conviction remains unreversed: Provided, That any consideration of prior criminal convictions shall be governed by the provisions of W.Va. Code §30A-1-29; and

(11) Has fulfilled any other requirement specified by the board.

(b) A license issued by the board prior to July 1, 2010, shall for all purposes be considered a license issued under this article: Provided, That a person holding a license issued prior to July 1, 2010, must renew the license pursuant to the provisions of this article.

§30A-9-9. License to practice nursing home administration from another jurisdiction.

The board may issue a license to practice to an applicant of good moral character who holds a valid license or other authorization to practice nursing home administration from another state, if the applicant:

(1) Holds a license or other authorization to practice in another state which was granted after the completion of educational requirements substantially equivalent to those required in this state and passed examinations that are substantially equivalent to the examinations required in this state;

(2) Does not have charges pending against his or her license or other authorization to practice, and has never had a license or other authorization to practice revoked;

(3) Has not previously failed an examination for licensure in this state;

(4) Has paid the applicable fee;

(5) Is a citizen of the United States or is eligible for employment in the United States; and

(6) Has fulfilled any other requirement specified by the board.

§30A-9-10. Temporary and Emergency Permits.

(a) The board may issue a temporary permit for a period of 90 days, to an applicant seeking licensure pursuant to §30A-9-9 of this code who has accepted employment in West Virginia, but who must wait for the board to meet to act on his or her application. The temporary permit may be renewed at the discretion of the board.

(b) The board may issue an emergency permit to a person who is designated as an acting nursing home administrator, if a licensed nursing home administrator dies or is unable to continue due to an unexpected cause. The board may issue the emergency permit to the owner, governing body or other appropriate authority in charge of the nursing home, if it finds the appointment will not endanger the safety of the occupants of the nursing home. A emergency permit is valid for a period determined by the board not to exceed six months and shall not be renewed.

§30A-9-11. Renewal requirements.

(a) All persons regulated by the article shall annually before June 30, renew his or her license by completing a form prescribed by the board and submitting any other information required by the board.

(b) The board shall charge a fee for each renewal of a license or permit and shall charge a late fee for any renewal not properly completed and received with the appropriate fee by the board before June 30.

(d) The board may deny an application for renewal for any reason which would justify the denial of an original application for a license.

§30A-9-12. Inactive license requirements.

(a) A licensee who does not want to continue in active practice shall notify the board in writing and be granted inactive status.

(b) A person granted inactive status is exempt from fee requirements and continuing education requirements, and cannot practice in this state.

(c) When an inactive licensee wants to return to active practice, he or she must complete all the continuing education requirements for every licensure year the licensee was on inactive status and pay all the applicable fees as determined by the board.

§30A-9-13. Display of license.

(a) The board shall prescribe the form for a license and permit, and may issue a duplicate upon payment of a fee.

(b) Any person regulated by the article shall conspicuously display his or her license or permit at his or her principal business location.

§30A-9-14. Complaints; investigations; due process procedure; grounds for disciplinary action.

(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the complaint to the licensee or permittee.

(c) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the licensee or permittee has violated subsection (g) of this section or rules promulgated pursuant to this article.

(d) Upon a finding that probable cause exists that the licensee or permittee has violated subsection (g) of this section or rules promulgated pursuant to this article, the board may enter into a consent decree or hold a hearing for the suspension or revocation of the license or permit or the imposition of sanctions against the licensee or permittee. Any hearing shall be held in accordance with the provisions of this article.

(f) Any member of the board or its executive director may sign a consent decree or other legal document on behalf of the board.

(g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend or revoke the license or permit of, impose probationary conditions upon or take disciplinary action against, any licensee or permittee for any of the following reasons once a violation has been proven by a preponderance of the evidence:

(1) Obtaining a license or permit by fraud, misrepresentation or concealment of material facts;

(2) Being convicted of a felony or other crime involving moral turpitude;

(3) Being guilty of unprofessional conduct which placed the public at risk, as defined by legislative rule of the board;

(4) Intentional violation of a lawful order or legislative rule of the board;

(5) Having had a license or other authorization revoked or suspended, other disciplinary action taken, or an application for licensure or other authorization revoked or suspended by the proper authorities of another jurisdiction;

(6) Aiding or abetting unlicensed practice; or

(7) Engaging in an act while acting in a professional capacity which has endangered or is likely to endanger the health, welfare or safety of the public.

(h) For the purposes of subsection (g) of this section, disciplinary action may include:

(1) Reprimand;

(2) Probation;

(3) Administrative fine, not to exceed $1,000 per day per violation;

(4) Mandatory attendance at continuing education seminars or other training;

(5) Practicing under supervision or other restriction;

(6) Requiring the licensee or permittee to report to the board for periodic interviews for a specified period of time; or

(7) Other corrective action considered by the board to be necessary to protect the public, including advising other parties whose legitimate interests may be at risk.

§30A-9-15. Procedures for hearing; right of appeal.

(a) Hearings shall be governed by the provisions of §30A-1-13 of this code.

(b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.

(d) Any member or the executive director of the board has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.

(e) If, after a hearing, the board determines the licensee, or permittee has violated any provision of this article or the board's rules, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.

§30A-9-16. Judicial review.

Any licensee or permittee adversely affected by a decision of the board entered after a hearing may obtain judicial review of the decision in accordance with §29A-5-4 of this code, and may appeal any ruling resulting from judicial review in accordance with §29A-6-1 of this code.

§30A-9-17. Criminal proceedings; penalties.

(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a licensee has committed a criminal offense under this article, the board may bring its information to the attention of an appropriate law-enforcement official.

(b) A person violating §30A-9-1 of this code is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 not more than $1,000 or confined in jail not more than six months, or both fined and confined.

§30A-9-18. Single act evidence of practice.

ARTICLE 10. BOARD OF FUNERAL SERVICE EXAMINERS.

§30A-10-1. License required to practice.

The practice of preparing dead human bodies for burial or cremation and the subsequent burial or cremation thereof has serious public health and safety considerations and should only be practiced by a person who has specific training in those fields.

Therefore, the Legislature hereby finds that to protect the public interest a person must have a license, as provided in this article, to practice embalming, funeral directing and cremation and to operate a funeral establishment and crematory in the State of West Virginia.

§30A-10-2. Short title.

This article shall be known and may be cited as the “West Virginia Funeral Service Examiners Act”.

§30A-10-3. Definitions.

As used in this article, the following words and terms have the following meanings, unless the context clearly indicates otherwise:

(a) “Apprentice” means a person who is preparing to become a licensed funeral director and embalmer and is learning the practice of embalming, funeral directing or cremation under the direct supervision and personal instruction of a duly licensed embalmer or funeral director.

(b) “Authorized representative” means a person legally authorized or entitled to order the cremation of the deceased, as established by rule. An authorized representative may include in the following order of precedence:

(1) The deceased, who has expressed his or her wishes regarding the disposal of their remains through a last will and testament, an advance directive or preneed funeral contract, as defined in §47-14-2 of this code;

(2) The surviving spouse of the deceased, unless a petition to dissolve the marriage was pending at the time of decedent's death;

(3) An individual previously designated by the deceased as the person with the right to control disposition of the deceased's remains in a writing signed and notarized by the deceased: Provided, That no person may be designated to serve in such capacity for more than one nonrelative at any one time;

(4) The deceased's next of kin;

(5) A court order;

(6) A public official who is charged with arranging the final disposition of an indigent deceased; or

(7) A representative of an institution who is charged with arranging the final disposition of a deceased who donated his or her body to science.

(d) “Certificate” means a certification by the board to be a crematory operator.

(e) “Courtesy card holder” means a person who only practices funeral directing periodically in West Virginia and is a licensed embalmer and funeral director in a state which borders West Virginia.

(f) “Cremated remains” or “cremains” means all human remains, including foreign matter cremated with the human, recovered after the completion of cremation.

(g) “Cremation” means the mechanical or thermal process whereby a dead human body is reduced to ashes and bone fragments and then further reduced by additional pulverization, burning or recremating when necessary.

(h) “Crematory” means a licensed place of business where a deceased human body is reduced to ashes and bone fragments and includes a crematory that stands alone or is part of or associated with a funeral establishment.

(i) “Crematory operator” means a person certified by the board to operate a crematory.

(j) “Crematory operator in charge” means a certified crematory operator who accepts responsibility for the operation of a crematory.

(k) “Deceased” means a dead human being for which a death certificate is required.

(l) “Embalmer” means a person licensed to practice embalming.

(m) “Embalming” means the practice of introducing chemical substances, fluids or gases used for the purpose of preservation or disinfection into the vascular system or hollow organs of a dead human body by arterial or hypodermic injection for the restoration of the physical appearance of a deceased.

(n) “Funeral” means a service, ceremony or rites performed for the deceased with a body present.

(o) “Funeral directing” means the business of engaging in the following:

(1) The shelter, custody or care of a deceased;

(2) The preparation of a deceased for burial or other disposition;

(3) The arranging or supervising of a funeral or memorial service for a deceased; and

(4) The maintenance of a funeral establishment for the preparation, care or disposition of a deceased.

(p) “Funeral director” means a person licensed to practice funeral directing.

(q) “Funeral establishment” means a licensed place of business devoted to: the care, preparation and arrangements for the transporting, embalming, funeral, burial or other disposition of a deceased. A funeral establishment can include a licensed crematory.

(r) “Funeral service licensee” means a person licensed after July 1, 2003, to practice embalming and funeral directing.

(s) “License” means a license, which is not transferable or assignable, to:

(1) Practice embalming and funeral directing;

(2) Operate a crematory or a funeral establishment.

(t) “Licensee” means a person holding a license issued under the provisions of this article.

(u) “Licensee in charge” means a licensed embalmer and funeral director who accepts responsibility for the operation of a funeral establishment.

(v) “Memorial service” means a service, ceremony or rites performed for the deceased without a body present.

(w) “Mortuary” means a licensed place of business devoted solely to the shelter, care and embalming of the deceased.

(x) “Person” means an individual, partnership, association, corporation, not-for-profit organization or any other organization.

(y) “Registration” means a registration issued by the board to be an apprentice to learn the practice of embalming, funeral directing or cremation.

(z) “State” means the State of West Virginia.

§30A-10-4. Board of funeral service examiners.

(a) The “West Virginia Board of Embalmers and Funeral Directors” is hereby continued and shall, after June 30, 2002, be known as the “West Virginia Board of Funeral Service Examiners”. The members of the board in office on July 1, 2002 shall, unless sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and qualified.

(b) Commencing with the board terms beginning July 1, 2002, the board shall consist of seven members appointed for terms of four years by the Governor, by and with the advice and consent of the Senate. Five members must be licensed embalmers and funeral directors, and one member must be a citizen member who is not licensed, certified or registered under the provisions of this article and who is not a person who performs any services related to the practice of embalming or funeral directing. Commencing with the board terms beginning July 1, 2002, the Governor shall appoint, by and with the advice and consent of the Senate, one person who operates a crematory in West Virginia which person shall replace the current board member whose term ended on June 30, 2002. The crematory operator who is appointed for the term commencing July 1, 2002, shall register and be certified, pursuant to the provisions of this article. Any crematory operator appointed thereafter shall be certified, pursuant to the provisions of this article.

(c) Each licensed member of the board, at the time of his or her appointment, must have held a license in this state for a period of not less than five years immediately preceding the appointment and each member must be a resident of this state during the appointment term. Each certified member must abide by the provisions of subsection (b) of this section. Board members must represent at least four different geographic regions of the state.

(d) No member may serve more than two consecutive full terms and any member having served two full terms may not be appointed for one year after completion of his or her second full term. A member shall continue to serve until his or her successor has been appointed and qualified.

(e) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.

(f) Any member of the board immediately and automatically forfeits his or her membership if he or she has his or her license or certificate to practice suspended or revoked by the board, is convicted of a felony under the laws of any state or the United States or becomes a nonresident of this state.

(g) The board shall annually elect one of its members as president and one of its members as secretary.

(h) Each member of the board shall receive compensation and expense reimbursement in accordance with §30A-1-18 of this code.

§30A-10-5. Powers of the board.

The board has all the powers set forth in §30A-1-1 et seq. of this code and in addition may:

(1) Sue and be sued in its official name as an agency of this state;

(2) Hire, fix the compensation of and discharge an executive director;

(3) Hire, fix the compensation of and discharge the employees necessary to enforce the provisions of this article;

(4) Set the requirements to be an inspector;

(5) Examine and determine the qualifications of any applicant for a license;

(6) Determine the qualifications of any applicant for a certificate;

(7) Set cremation procedures and requirements;

(8) Set the fees charged under the provisions of this article;

(9) Set the fines assessed under the provisions of this article;

(10) Issue, renew, deny, suspend, revoke or reinstate licenses and certificates and discipline licensees and certificate holders;

(11) Set the continuing education requirements for licensees and certificate holders;

(12) Investigate alleged violations of the provisions of this article and the rules promulgated hereunder, and orders and final decisions of the board;

(13) Conduct hearings upon charges calling for discipline of a licensee or revocation or suspension of a license;

(14) Propose rules in accordance with the provisions of §29A-3-1 et seq. of this code to implement the provisions of this article; and

(15) Take all other actions necessary and proper to effectuate the purposes of this article.

§30A-10-6. Rule-making authority.

(a) The board shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code to implement the provisions of this article including, but not limited to, the following:

(1) The general practice of embalming, funeral directing and cremating, and operating a funeral establishment and crematory: Provided, That the board cannot require that an applicant for a license to operate a funeral establishment or crematory have either an embalmer's or funeral director's license, or a certificate to operate a crematory.

(2) The examinations administered under this article;

(3) The issuing and renewing of licenses, certificates and courtesy cards, including establishing a staggered biennial renewal schedule;

(4) The requirements for inactive licensees;

(5) The registration and regulation of apprentices;

(6) Establish a cremation procedure and crematory requirements;

(7) Establish inspection requirements for funeral establishments and crematories, including an inspection of a new facility and annual inspections of existing facilities;

(8) Establish inspector and investigator requirements;

(9) Setting the fees charged under the provisions of this article;

(10) Setting the fines assessed under the provisions of this article;

(11) Implementing requirements for continuing education for licensees;

(12) Denying, suspending, revoking, reinstating or limiting the practice of a licensee or certificate of qualification;

(13) The investigation and resolution of complaints against persons licensed, certified or registered under this article;

(14) Establish advertising standards; and

(15) Propose any other rules necessary to effectuate the provisions of this article.

(b) All rules in effect on the effective date of this article shall remain in effect until they are withdrawn, revoked or amended.

§30A-10-7. Fees; special revenue account; administrative fines.

(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the state Treasury and be used for the administration of this article. Except as may be provided in §30-1-17 of this code, the board shall retain the amounts in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.

(b) Any amounts received as administrative fines imposed pursuant to this article shall be deposited into the General Revenue Fund of the state Treasury.

§30A-10-8. Embalmer license requirements.

(a) The board shall issue a license to practice embalming to an applicant who:

(1) Is of good moral character;

(2) Is 18 years of age or over;

(3) Is a citizen of the United States or is eligible for employment in the United States;

(4) Has a high school diploma or its equivalent;

(5) Has completed one of the following education requirements, as evidenced by a transcript submitted to the board for evaluation:

(A) (i) Has an associate degree from an accredited college or university; or

(ii) Has successfully completed at least 60 semester hours or 90 quarter hours of academic work in an accredited college or university toward a baccalaureate degree with a declared major field of study; and (iii) Has graduated from a school of mortuary science, accredited by the American Board of Funeral Service Education, Inc., which requires as a prerequisite to graduation the completion of a course of study of not less than 12 months; or

(B) Has a bachelor degree in mortuary science from an accredited college or university;

(6) Has completed a one-year apprenticeship, under the supervision of a licensed embalmer and funeral director actively and lawfully engaged in the practice of embalming and funeral directing in this state, which apprenticeship consisted of:

(A) Diligent attention to the work in the course of regular and steady employment and not as a side issue to another employment; and

(B) The apprentice taking an active part in:

(i) The operation of embalming not less than 35 dead human bodies; and

(ii) Conducting not less than 35 funeral services;

(7) Passes, with an average score of not less than 75 percent, the following examinations:

(A) The National Conference of Funeral Services examination at a testing site provided by the national conference, which passage is a condition precedent to taking the state law examination;

(B) The state law examination administered by the board, which examination must be offered at least twice each year; and

(8) Has paid all the appropriate fees.

(b) A license to practice embalming issued by the board prior to July 1, 2012, shall for all purposes be considered a license issued under this section: Provided, That a person holding a license issued prior to July 1, 2012, must renew the license pursuant to the provisions of this article.

§30A-10-9. Funeral director license requirements.

(a) The board shall issue a license to practice funeral directing to an applicant who meets the following requirements:

(1) Holds an embalmer's license issued by the board; and

(2) Has paid all the appropriate fees.

(b) A license to practice funeral directing issued by the board prior to July 1, 2002, shall for all purposes be considered a license issued under this section: Provided, That a person holding a license issued prior to July 1, 2002, must renew the license pursuant to the provisions of this article.

§30A-10-10. Funeral service license requirements.

(a) Commencing July 1, 2003, the board shall issue a license to practice embalming and funeral directing, which license shall be known as a funeral service license, to an applicant who meets the following requirements:

(1) Is of good moral character;

(2) Is 18 years of age or over;

(3) Is a citizen of the United States or is eligible for employment in the United States;

(4) Holds a high school diploma or its equivalent;

(5) Has completed one of the education requirements for an embalmer's license, set out in §30A-10-8(a)(5) of this code; and

(6) Has paid all the appropriate fees.

(b) A license to practice embalming and funeral directing issued by the board prior to July 1, 2003, shall for all purposes be considered a license issued under this section.

(c) A person holding a license to practice embalming and funeral directing issued prior to July 1, 2003, must after July 1, 2003, renew his or her license pursuant to the provisions of this section.

(d) After July 1, 2003, wherever the terms “license to practice embalming and funeral directing” or “embalming and funeral directing license” are used in the code, the term “funeral service license” shall apply.

§30A-10-11. Crematory operator certificate requirements.

(a) All crematory operators shall be certified by the board. The board shall issue a certificate to be a crematory operator to an applicant who meets the following requirements:

(1) Has completed a class, authorized by the board, on cremation and operating a crematory;

(2) Has paid all the appropriate fees; and

(3) Has completed such other requirements as prescribed by the board.

(b) All persons currently operating crematories shall by January 1, 2003, register with the board. By July 1, 2003, all persons currently operating crematories shall obtain a certificate to operate a crematory, pursuant to the provisions of this section.

(d) After July 1, 2003, all licensed crematories must have a certified crematory operator in charge.

§30A-10-12. Licenses or equivalent from another state; license or certificate to practice in this state.

The board may issue a license to practice embalming and funeral directing or a certificate to be a crematory operator to an applicant of good moral character who holds a valid license or its equivalent to practice from another state if the applicant demonstrates that:

(1) He or she holds a license or its equivalent to practice in another state which was granted after completion of educational requirements substantially equivalent to those required in this state;

(2) He or she holds a license or its equivalent to practice in another state which was granted after passing, in that or another state, an examination that is substantially equivalent to the examination required in this state;

(3) Reciprocal rights are provided by such other state to holders of funeral director's or embalmer's licenses granted in this state. Such reciprocal licenses may be renewed biennially upon payment of the renewal license fee;

(4) He or she is not currently being investigated by a disciplinary authority of another state, does not have charges pending against his or her license or something equivalent to practice and has never had a license or something equivalent to practice revoked;

(5) He or she has not previously failed an examination for licensure as an embalmer or funeral director in this state;

(6) He or she has paid the application fee specified by rule; and

(7) Has completed such other action as required by the board.

§30A-10-13. Courtesy cards.

(a) The board may issue biennial courtesy cards, on July 1, to licensed funeral directors and licensed embalmers in the states bordering on West Virginia, after the:

(1) Application for a courtesy card is made on a form prescribed by the board;

(2) Payment of a fee; and

(3) Adherence to such other requirements as specified by the board.

(b) A courtesy card may be issued under the following conditions:

(1) Holders of courtesy cards shall not be permitted to open or operate a place of business for the purpose of conducting funerals, embalming bodies or cremating in the State of West Virginia; and

(2) Holders of courtesy cards shall not be permitted to maintain an office or agency in this state for the purpose of conducting funerals, embalming bodies or cremating in the State of West Virginia.

(c) A violation of this section shall be sufficient cause for the board to immediately revoke or cancel the courtesy card of the violator.

§30A-10-14. License and certificate renewal; conditions of renewal.

(a) The board shall biennially on July 1, and pursuant to a staggered schedule, renew a license to practice embalming and funeral directing or a certificate to be a crematory operator to every licensee or certificate holder desiring to continue in active practice or service.

(b) The board shall charge a fee for each renewal and a late fee for nonrenewal of a license or certificate.

(c) The board shall require as a condition for the renewal of a license to practice embalming and funeral directing or a certificate to be a crematory operator that each licensee participate in continuing education: Provided, That any licensed embalmer or funeral director 65 years or older with at least 10 years experience as a licensed embalmer or licensed funeral director, is entitled to be issued, after payment of a fee, a license as an embalmer emeritus or funeral director emeritus and is exempt from all continuing education requirements. The emeritus license shall entitle the holder to all the rights and privileges of the license previously held by the licensee.

(d) Any person licensed to practice embalming and funeral directing or certified to be a crematory operator who does not desire to continue in active practice shall notify the board, in a manner specified by the board, and pay a fee, and shall, during such period, be listed by the board as being inactive. At such time a person desires to return to active practice, he or she must notify the board, in a manner specified by the board, and complete all the continuing education requirements.

§30A-10-15. Continuing education.

(a) The board shall conduct annually a school of instruction to apprize funeral directors and embalmers of the most recent scientific knowledge and developments affecting their profession. This school shall qualify as continuing education and shall fulfill as many continuing education required hours as the board specifies. Qualified lecturers and demonstrators may be employed by the board for this purpose. The board shall give notice of the time and place at which the school will be held for all licensed funeral directors and embalmers: Provided, That the location of any school of continuing education shall accommodate the geographic diversity of the embalmers and funeral directors of this state.

(b) Hours of continuing education may be obtained by attending and participating in board-approved programs, meetings, seminars or activities. It is the responsibility of each licensee to finance his or her costs of continuing education.

(c) Compliance with the requirements of continuing education, as specified by the board, is a prerequisite for license renewal.

§30A-10-16. Inspector and inspection requirements.

(a) All inspectors employed by the board to inspect funeral establishments and crematories, pursuant to the provisions of this article, shall have a West Virginia embalmer's license and a West Virginia funeral director's license.

(b) Each inspector shall inspect a specific region, as designated by the board. Any person being employed as an inspector is prohibited from inspecting in the region in which he or she practices. If there is only one inspector, a board member, who is not from the region where the inspector practices, is authorized to inspect the facilities in the region where the inspector practices.

(c) All inspections shall be conducted in a manner so as not to interfere with the conduct of business within the funeral establishment or crematory. The board has the authority to enter, at all reasonable hours, for the purpose of inspecting the premises in which the business of embalming, funeral directing or cremating is conducted.

(d) All of an inspector's expenses, per diem and compensation shall be paid out of the receipts of the board, but the allowances shall at no time exceed the receipts of the board.

(e) The board is authorized to set fees for inspections: Provided, That there shall be no fee for an annual inspection.

§30A-10-17. Apprenticeship.

(a) After January 1, 2003, the board shall issue a registration to be an apprentice funeral director or apprentice embalmer to an applicant who meets the following requirements:

(1) Is of good moral character and temperate habits;

(2) Is 18 years of age or over;

(3) A citizen of the United States or be eligible for employment in the United States;

(4) Has a high school diploma or its equivalent;

(5) Has completed one of the education requirements for an embalmer's license, as set out in §30A-10-8(a)(5) of this code;

(6) Is not attending school and will not be attending school during the apprenticeship period; and

(7) Has paid the appropriate fees.

(b) Any person that commences an apprenticeship prior to January 1, 2003, may continue to serve such apprenticeship and is not subject to the requirements set forth in this section, but is subject to board approval.

(c) The board may set the requirements for an apprenticeship, including the manner in which it shall be served and the length of time, which shall not be more than one year.

(d) No licensed funeral director or licensed embalmer shall be permitted to register or have registered more than five apprentices under his or her license at the same time.

§30A-10-18. Funeral establishment license requirements.

(a) Every funeral establishment in West Virginia shall be licensed prior to opening a funeral establishment for business to the public. The board shall issue a license to operate a funeral establishment to an applicant who meets the following requirements:

(1) The place of business has been approved by the board as having met all the requirements and qualifications to be a funeral establishment as are required by this article;

(2) Notify the board, in writing, at least 30 days before the proposed opening date, so there can be an inspection of the funeral establishment;

(3) Show proof that the funeral establishment passed the inspection;

(4) Show that the funeral establishment has employed a licensee in charge;

(5) Show that the licensee in charge is a licensed funeral director;

(6) Show that the licensee in charge will manage the funeral establishment and be responsible for all business conducted and services performed therein;

(7) Pay all the appropriate fees; and

(8) Complete such other requirements as specified by the board.

(b) All funeral establishment licenses must be renewed biennially, by a staggered schedule, upon or before July 1, and pay a renewal fee.

(c) Each funeral establishment license shall be valid for only one funeral establishment to be located at a specific street address. There shall be a separate license issued and a separate fee assessed to operate additional funeral establishments by the same applicant.

(d) A holder of a funeral establishment license that fails to pay fees for either the principal establishment or additional establishments by July 1, of the renewal year is subject to a penalty, a reinstatement fee for each establishment and the required renewal fee.

(e) The holder of a funeral establishment license who ceases to operate the funeral establishment at the location specified in the application shall, within 20 days thereafter, surrender the funeral establishment license to the board and the license shall be canceled by the board. In the event of the death of an individual who was the holder of a funeral establishment license, it shall be the duty of the holder's personal representative to surrender the funeral establishment license within 120 days of qualifying as the personal representative.

(f) If a licensee in charge ceases to be employed by a funeral establishment, then the holder of the funeral establishment license shall notify the board within 30 days of the cessation. Within 30 days after such notification, the holder of a funeral establishment license shall execute a new application for a funeral establishment license specifying the name of the new licensee in charge. A funeral establishment is prohibited from operating more than 30 days without a licensee in charge.

(g) A licensee whose embalmer's or funeral director's license has been revoked or a holder of a license to operate a funeral establishment whose license to operate has been revoked shall not operate, either directly or indirectly, or hold any interest in any funeral establishment or crematory: Provided, That a holder of a license to operate a funeral establishment whose license to operate has been revoked is not prohibited from leasing any property owned by him or her for use as a funeral establishment, so long as the property owner does not participate in the control or profit of the funeral establishment except as lessor of the premises for a fixed rental not dependent upon earnings.

(h) Failure to comply with any of these provisions shall be grounds for revocation of a funeral establishment license.

(i) A license to operate a funeral establishment issued by the board prior to July 1, 2002, shall for all purposes be considered a license issued under this section: Provided, That a funeral establishment holding a license issued prior to July 1, 2002, must renew the license pursuant to this section.

§30A-10-19. Funeral establishment to be managed by a licensee in charge; license displayed.

(a) Every separate funeral establishment in this state offering the services set forth in this article shall be operated under the supervision and management of a licensee in charge who is licensed as a funeral director in this state.

(b) Each separate funeral establishment in this state offering the services set forth in this article shall have its own license, which license shall be prominently displayed within the funeral establishment.

(d) All funeral establishments shall prominently display within the funeral establishment the license of the licensee in charge.

(e) A licensee in charge shall supervise each separate establishment.

§30A-10-20. Crematory license requirements.

(a) Every crematory shall be licensed in West Virginia. The board shall issue a crematory license to an applicant who meets the following requirements:

(1) The place of business has been approved by the board as having met all the requirements and qualifications to be a crematory as are required by this article;

(2) The crematory conforms with all local building codes;

(3) The crematory meets all applicable environmental standards;

(4) Notify the board, in writing, at least 30 days before the proposed opening date so there can be an inspection of the crematory;

(5) Show proof that the crematory passed the inspection;

(6) Have a certified crematory operator in charge;

(7) Pay all the appropriate fees; and

(8) Complete such other requirements as specified by the board.

(b) All crematory licenses must be renewed biennially, by a staggered schedule, upon or before July 1, and pay a renewal fee.

(c) Each crematory license shall be valid for only one crematory to be located at a specific street address. There shall be a separate license issued and a separate fee assessed to operate additional crematories by the same applicant.

(d) A holder of a crematory license that fails to pay fees for either the principal crematory or additional crematories by July 1, of the renewal year is subject to a penalty, a reinstatement fee for each crematory and the required renewal fee.

(e) The holder of a crematory license who ceases to operate the crematory at the location specified in the application shall, within 20 days thereafter, surrender the crematory license to the board and the license shall be canceled by the board. In the event of the death of an individual who was the holder of a crematory license, it shall be the duty of the holder's personal representative to surrender the crematory license within 120 days of qualifying as the personal representative.

(f) A holder of a certificate to operate a crematory whose certificate to operate has been revoked or a holder of a crematory license whose license has been revoked shall not operate, either directly or indirectly, or hold any interest in any crematory or funeral establishment: Provided, That a holder of a crematory license whose license has been revoked is not prohibited from leasing any property owned by him or her for use as a crematory, so long as the property owner does not participate in the control or profit of the crematory except as lessor of the premises for a fixed rental not dependent upon earnings.

(g) Failure to comply with any of these provisions shall be grounds for revocation of a crematory license.

(h) All persons that operate crematories shall by January 1, 2003, register with the board. By July 1, 2003, all persons that operate crematories shall obtain a crematory license, pursuant to the provisions of this section.

(i) All crematory licenses must be renewed biennially upon or before July 1.

(j) After July 1, 2003, all licensed crematories must have a certified crematory operator in charge.

(k) If a certified crematory operator in charge ceases to be employed by a crematory, then the holder of the crematory license shall notify the board within 30 days of the cessation. Within 30 days after such notification, the holder of a crematory license shall execute a new application for a crematory license specifying the name of the new certified crematory operator in charge. A crematory is prohibited from operating more than 30 days without a certified crematory operator in charge.

§30A-10-21. Requirements for cremating.

(a) A crematory shall obtain written permission prior to cremating a dead human body. The written permission shall be obtained from persons authorized by the board as specified in rules.

(b) The written permission shall be on a standard form, prescribed by the board, and shall contain the following information:

(1) The identity of the deceased;

(2) The name of the person authorizing the cremation and the relationship, if any, to the deceased;

(3) Permission for the crematory to perform the cremation;

(4) The name of the person who will claim the cremains from the crematory; and

(5) Any other information required by the board.

(c) A crematory shall obtain a permit or authorization for cremation from the county medical examiner, the assistant county medical examiner or the county coroner of the county wherein the death occurred and do such other acts as required by §61-12-9 of this code: Provided, That a crematory may obtain a permit or authorization for cremation from the chief medical examiner if:

(1) The crematory is unable to obtain a permit from the county medical examiner, the assistant county medical examiner or the county coroner of the county wherein the death occurred; or

(2) The crematory has concerns following authorization by county personnel regarding the identity or cause of death of the deceased.

(d) The permit or authorization for cremation shall be on forms prescribed by the chief medical examiner. A permit or authorization for cremation may be done by facsimile.

(e) All crematories shall implement a cremation procedure. The board, by rules, shall establish the cremation procedure which shall include:

(1) An identification process for bodies;

(2) A tracking process for bodies from the time a body is delivered to a crematory through the time the cremains are claimed by the authorized person;

(3) Obtaining all the required signatures, as specified by the board, on the written permission for cremation;

(4) Only cremating one human body at a time and prohibiting comingling of cremains;

(5) The specified time period a crematory is required to keep unclaimed cremains;

(6) How to dispose of unclaimed cremains;

(7) A record-keeping process for cremations; and

(8) Any other requirements necessary to effectuate the provisions of this article.

(f) The board shall establish requirements for:

(1) The equipment needed to complete the cremation process; and

(2) The containers needed to store the cremains.

§30A-10-22. Disposition of body of deceased person; penalty.

(a) No public officer, employee, physician or surgeon, or other person having a professional relationship with the deceased, shall send, or cause to be sent to an embalmer, funeral director or crematory operator the body of a deceased without first inquiring the desires of the deceased who has designated his or her wishes regarding the disposal of their remains through a last will and testament, an advance directive or preneed funeral contract, as defined in §47-14-2 of this code; the surviving spouse of the deceased, unless a petition to dissolve the marriage was pending at the time of decedent's death; and, an individual previously designated by the deceased as the person with the right to control disposition of the deceased's remains in a writing signed and notarized by the deceased: Provided, That no person may be designated to serve in such capacity for more than one nonrelative at any one time. If there is no last will and testament, advance directive or preneed funeral contract, surviving spouse, or designated person, then the authority and direction of any next of kin or person who may be chargeable with the funeral expenses of the deceased shall be used as to the disposal of the body of the deceased. The provisions of this subsection are not applicable if the remains of the decedent are subject to disposition pursuant to subsection (b) of this section.

(b) Notwithstanding any provision of this code to the contrary, a United States Department of Defense Record of Emergency Data Form (DD Form 93) executed by a declarant who dies while serving in a branch of the United States Military as defined in 10 U. S. C. § 1481 constitutes a valid form of declaration instrument and governs the disposition of the declarant's remains. The person named in the form as the person authorized to direct disposition of the remains may arrange for the final disposition of the declarant's last remains.

(c) Any person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500, nor more than $1,000, or imprisoned not less than 10 days nor more than 90 days, or both.

§30A-10-22a. Right of disposition; preneed contract; affidavit on disposition of remains; role of county commission; liability of funeral home.

(a) Notwithstanding §30A-10-22 of this code, a person who is 18 years of age or older and of sound mind, by entering into a preneed funeral contract, as defined in §47-14-2 of this code, may direct the location, manner and conditions of the disposition of the person's remains and the arrangements for funeral goods and services to be provided upon the person's death. The disposition directions and funeral prearrangements that are contained in a preneed funeral contract are not subject to cancellation to revision unless any resources set aside to fund the preneed funeral contract are insufficient under the terms of the preneed funeral contract to carry out the disposition directions and funeral prearrangements contained in the contract.

(b) As to any matter not addressed in a preneed funeral contract as described in subsection (a) of this section and except as provided in subsection (c) of this section, the right to control the disposition of the remains of a deceased person, the location, manner and conditions of disposition, and arrangements for funeral goods and services to be provided vests in the following, in the order named, provided that the person is 18 years or older and is of sound mind:

(1) (A) A person designated by the decedent as the person with the right to control the disposition in an affidavit executed in accordance with paragraph (B) of this subdivision; and

(B) A person who is 18 years of age or older and of sound mind wishing to authorize another person to control the disposition of his or her remains may execute an affidavit before a notary public in substantially the following form:

“I, ________________, do hereby designate ___________________ with the right to control the disposition of my remains upon my death. I ___ have/ ____ have not attached specific directions concerning the disposition of my remains with which the designee shall substantially comply, provided that these directions are lawful and there are sufficient resources in my estate to carry out the directions.

______________________________

Signed

State of _______________

County of ______________

I, _________________________, a Notary Public of said County, do certify that _____________________________________, as principal whose name is signed to the writing above bearing date on the ______ day of _________, 20____, has this day acknowledged the same before me.

Given under my hand this ______ day of ______, 20__.

My commission expires: _______________________________

____________________________

Notary Public”;

(2) The surviving spouse of the decedent;

(3) The sole surviving child of the decedent or, if there is more than one child of the decedent, the majority of the surviving children. However, less than one half of the surviving children shall be vested with the rights under this section if they have used reasonable efforts to notify all other surviving children of their instructions and are not aware of any opposition to those instructions on the part of more than one half of all surviving children;

(4) The surviving parent or parents of the decedent. If one of the surviving parents is absent, the remaining parent shall be vested with the rights and duties under this section after reasonable efforts have been unsuccessful in locating the absent surviving parent;

(5) The surviving brother or sister of the decedent or, if there is more than one sibling of the decedent, the majority of the surviving siblings. However, less than the majority of surviving siblings shall be vested with the rights and duties under this section if they have used reasonable efforts to notify all other surviving siblings of their instructions and are not aware of any opposition to those instructions on the part of more than one half of all surviving siblings;

(6) The surviving grandparent of the decedent or, if there is more than one surviving grandparent, the majority of the grandparents. However, less than the majority of the surviving grandparents shall be vested with the rights and duties under this section if they have used reasonable efforts to notify all other surviving grandparents of their instructions and are not aware of any opposition to those instructions on the part of more than one half of all surviving grandparents;

(7) The guardian of the person of the decedent at the time of the decedent's death if one had been appointed;

(8) The personal representative of the estate of the decedent;

(9) The person in the classes of the next degree of kinship, in descending order, under the laws of descent and distribution to inherit the estate of the decedent. If there is more than one person of the same degree, any person of that degree may exercise the right of disposition;

(10) If the disposition of the remains of the decedent is the responsibility of the state or a political subdivision of the state, the public officer, administrator or employee responsible for arranging the final disposition of decedent's remains; or

(11) In the absence of any person under subdivisions (1) through (10) of this subsection, any other person willing to assume the responsibilities to act and arrange the final disposition of the decedent's remains, including the funeral director with custody of the body, after attesting in writing that a good-faith effort has been made to no avail to contact the individuals under subdivisions (1) through (10) of this subsection.

(c) A person entitled under law to the right of disposition forfeits that right, and the right is passed on to the next qualifying person as listed in subsection (b) of this section, in the following circumstances:

(1) Any person charged with murder or voluntary manslaughter in connection with the decedent's death and whose charges are known to the funeral director. However, if the charges against that person are dismissed or if the person is acquitted of the charges, the right of disposition is returned to the person;

(2) Any person who does not exercise his or her right of disposition within two days of notification of the death of decedent or within three days of decedent's death, whichever is earlier;

(3) If the person and the decedent are spouses and a petition to dissolve the marriage was pending at the time of decedent's death.

(d) Any person signing a funeral service agreement, cremation authorization form or any other authorization for disposition shall be deemed to warrant the truthfulness of any facts set forth therein, including the identity of the decedent whose remains are to be buried, cremated or otherwise disposed of, and the party's authority to order the disposition. A funeral home has the right to rely on that funeral service agreement or authorization and shall have the authority to carry out the instructions of the person or persons the funeral home reasonably believes holds the right of disposition. The funeral home has no responsibility to independently investigate the existence of any next of kin or relative of the decedent where a means of disposition is fully set forth in a preneed funeral contract or other written directive of the deceased in accordance with this section. If there is more than one person in a class who are equal in priority and the funeral home has no knowledge of any objection by other members of that class, the funeral home may rely on and act according to the instructions of the first person in the class to make funeral and disposition arrangements, if no other person in that class provides written objections to the funeral home.

(e) No funeral establishment or funeral director who relies in good faith upon the instructions of a preneed funeral contract, written directive of the deceased, or an individual claiming the right of disposition in accordance with this section shall be subject to criminal or civil liability or subject to disciplinary action under this section for carrying out the disposition of the remains in accordance with those instructions.

§30A-10-23. Refusal to issue or renew, suspension or revocation of license; disciplinary action.

(a) The board may refuse to renew, suspend, revoke or limit any license, certificate or registration or practice privilege of a licensee, or certificate or registration holder and may take disciplinary action against a licensee, or certificate or registration holder after a hearing. The board may refuse to issue, refuse to renew, suspend, revoke or limit any license, certificate or registration or practice privilege of a licensee, or certificate or registration holder for any of the following reasons:

(1) Fraud or deceit in obtaining or maintaining a license;

(2) Failure by any licensee, or certificate or registration holder to maintain compliance with requirements for issuance or renewal of a license, certificate or registration or to timely notify the board as required in this article;

(3) Dishonesty, fraud, professional negligence in the performance of services, or a willful departure from accepted standards and professional conduct;

(4) Violation of any provision of this article or any rule, including the violation of any professional standard or rule of professional conduct, or public health laws;

(5) Conviction of a felony or any crime of which dishonesty or fraud under the laws of the United States or this state, or conviction of any similar crime under the laws of any other state if the underlying act or omission involved would have constituted a crime under the laws of this state;

(6) Any conduct adversely affecting upon the licensee's, or certificate or registration holder's fitness to perform professional services;

(7) The use of false, misleading or unethical advertising by any licensee, or certificate or registration holder, or applicant for a license or certificate of registration;

(8) Upon satisfactory proof that a licensed embalmer, a licensed funeral director, or a certified crematory operator has taken undue advantage of his or her patrons or has committed a fraudulent act in the conduct of business;

(9) Solicitation of business by the licensee, or certificate or registration holder, or any agents, assistants or employees, whether such solicitation occurs after death or while death is impending, as specified by the board: Provided, That this subdivision does not prohibit proper advertising;

(10) If a licensee, or certificate or registration holder, knowingly permits a person not licensed, not certified, or not registered to engage in the profession of embalming, funeral directing or cremation;

(11) If a licensee, or certificate or registration holder, knowingly permits a person not licensed, not certified, or not registered to use his or her license number or numbers for the purpose of practicing, or discharging any of the duties of, the professions of embalming, funeral directing or cremation;

(12) Employment by the licensee of persons as “cappers”, “steerers” or “solicitors”, or other such persons to obtain funeral or cremation business;

(13) Employment, directly or indirectly, of any apprentice, agent, assistant, embalmer, employee or other person, on part or full time, or on commission, for the purpose of calling upon individuals or institutions by whose influence dead human bodies may be turned over to a particular funeral director, funeral establishment or crematory;

(14) The buying of business by the licensee, or certificate or registration holder, or any agents, assistants or employees, or the direct or indirect payment or offer of payment of a commission by the licensee, or certificate or registration holder, or any agent, assistants or employees, for the purpose of securing business;

(15) Gross immorality; and

(16) Chronic or persistent inebriety or addiction to alcohol, narcotics or other substance.

(b) If the board suspends, revokes, refuses to renew or limits any license, certificate or registration or practice privilege, the board shall give written notice of the action, including a statement of charges setting forth the reasons for the action, and notice of the date, time and place for a hearing. The hearing shall be held in accordance with the provisions of this article.

(c) Disciplinary action includes, but is not limited to, a reprimand, censure, probation, suspension of license, administrative fine not to exceed $1,000 per day per violation and mandatory attendance at continuing education seminars.

§30A-10-24. Complaints; investigations.

(a) Upon receipt of a written complaint filed against any licensee, or certificate or registration holder, the board shall provide a copy of the complaint to the licensee, or certificate or registration holder.

(b) The board may investigate the complaint. If the board finds upon investigation that probable cause exists that the licensee, or certificate or registration holder, has violated any provision of this article or the rules promulgated hereunder, then the board shall serve the licensee, or certificate or registration holder, with a written statement of charges and a notice specifying the date, time and place of the hearing. The hearing shall be held in accordance with the provisions of this article.

(c) In addition to other sanctions imposed, the board may require a licensee, or certificate or registration holder to pay the costs of the proceeding if the licensee, or certificate or registration holder is in violation of any provision of this article or the rules promulgated hereunder.

§30A-10-25. Hearing and judicial review.

(a) A hearing on a statement of charges shall be held in accordance with the provisions for hearing set forth in §30A-1-13 of this code and procedures specified by rule by the board.

(b) Any licensee, or certificate or registration holder, adversely affected by any decision of the board entered after a hearing, may obtain judicial review of the decision in accordance with §29A-5-4 of this code and may appeal any ruling resulting from judicial review in accordance §29A-6-1 of this code.

§30A-10-26. Reinstatement.

If the board has suspended, revoked or refused to renew a license, certificate or registration, the licensee, or certificate or registration holder, shall be afforded an opportunity to demonstrate the qualifications to resume practice. The application for reinstatement shall be in writing and subject to the procedures specified by the board.

§30A-10-27. Unlawful acts.

It is unlawful for any person not licensed or certified under the provisions of this article to practice or offer to practice embalming, funeral directing or cremation, or to operate a funeral establishment or crematory in this state.

§30A-10-28. Injunctions.

When, as a result of an investigation under this article or otherwise, the board or any other interested person believes that any person: (1) Has engaged, is engaging or is about to engage in the practice of embalming, funeral directing or cremating without a license or certificate; (2) has operated, is operating or is about to operate a funeral establishment or crematory; or (3) is in violation of any of the provisions of this article, the board or any other interested person may make application to any court of competent jurisdiction for an order enjoining the acts or practices and upon a showing that the person has engaged or is about to engage in any act or practice, an injunction, restraining order or another appropriate order may be granted by the court without bond.

§30A-10-29. Criminal proceedings; penalties.

(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a person has knowingly violated the provisions of this article, the board may bring its information to the attention of the Attorney General or other appropriate law-enforcement officer who may cause appropriate criminal proceedings to be brought.

(b) Any person who knowingly violates any provision of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $2,500 or confined in the county or regional jail not more than one year, or both fined and imprisoned.

§30A-10-30. Single act evidence of practice.

In any action brought or any proceeding initiated under this article, evidence of the commission of a single act prohibited by this article is sufficient to justify a penalty, injunction, restraining order or conviction without evidence of a general course of conduct.

§30A-10-31. Inapplicability of article.

The provisions of this article do not apply to or interfere with:

(1) The duties of an officer of any local or state board of health who, in compliance with local or state board of health rules, may be charged with the duty of preparation for burial of a human body when death was caused by a virulent, communicable disease;

(2) The duties of an officer of a medical college, county medical society, anatomical association or other recognized person carrying out his or her responsibilities of dealing with indigent dead human bodies who are held subject for anatomical study; or

(3) The customs or rites of any religious sect in the burial of its dead: Provided, That embalming shall only be performed by a licensed embalmer.

CHAPTER 30B. LICENSED OCCUPATIONS AND TRADES.

ARTICLE 1. GENERAL PROVISIONS APPLICABLE TO ALL STATE BOARDS OF EXAMINATION OR REGISTRATION REFERRED TO IN CHAPTER.

§30B-1-1. Application of article.

Unless otherwise specifically provided, every board of examination or registration referred to in this chapter shall conform to the requirements prescribed in the following sections of this article.

§30B-1-2. Legislative findings and declaration.

§30B-1-3. Oath.

Every person appointed as a member of any board referred to in this article, before proceeding to exercise the authority or discharge the duties of the office, shall take the oath prescribed by section 5 of article IV of the state Constitution, and shall file the certificate thereof with the Secretary of State.

§30B-1-4. Required orientation session.

(b) The seminar may include the following topics:

(1) Powers and duties of the boards and board members;

(2) The financial procedures for boards;

(3) Purchasing requirements;

(4) Open meeting requirements;

(5) Ethics;

(6) Rule-making procedures;

(7) Procedures for the handling of complaints, investigations and administrative hearings;

(8) Disciplinary actions available to boards;

(9) Records management procedures;

(10) Annual reports; and

(11) Any other topics the Auditor determines necessary or informative.

(2) The chairperson, the executive director, or the chief financial officer of the board shall annually attend a seminar provided under this section.

(3) Each board member shall attend at least one seminar provided under this section during each term of office.

(e) Prior to January 1 of each year, the Auditor shall provide to the chairs of the Joint Standing Committee on Government Organization a list of:

(1) The names and titles of the persons who attended the seminar;

(2) The boards represented; and

(3) The number and dates of the seminars offered by the Auditor during the previous year.

§30B-1-5. Officers.

(b) The officers of the boards referred to in this chapter shall register annually with the Governor, the Legislative Auditor, and the Secretary of State.

§30B-1-6. Official seal; rules and regulations.

§30B-1-7. Lay members of professional boards.

§30B-1-8. Meetings; quorum; investigatory powers; duties.

(a) Every board referred to in this chapter shall hold at least one meeting each year, at such time and place as it may prescribe by rule, for the examination of applicants who desire to practice their respective occupations or trades in this state and to transact any other business which may legally come before it. The board may hold additional meetings as may be necessary, which shall be called by the secretary at the direction of the president or upon the written request of any three members. A majority of the appointed and qualified members of the board constitutes a quorum for the transaction of its business.

(d) Every board shall provide public access to the record of the disposition of the complaints which it receives in accordance with the provisions of Chapter 29B of this code, and shall provide public access on a website to all completed disciplinary actions in which discipline was ordered. If a board is unable to provide access, the Attorney General shall provide a link to this information on the consumer protection division website, together with a link to the website of all other boards subject to this chapter. Every board shall report violations of individual practice acts contained in this chapter, Chapter 30, and Chapter 30B of this code to the board by which the individual may be licensed and shall do so in a timely manner upon receiving notice of the violations. Every person licensed or registered by a board shall report to the board which licenses or registers him or her a known or observed violation of the practice act or the board’s rules by any other person licensed or registered by the same board and shall do so in a timely manner. Law-enforcement agencies or their personnel and courts shall report in a timely manner to the appropriate board any violations of individual practice acts by any individual.

§30B-1-9. Reporting of fraud and misappropriation of funds.

(b) The reporting of such information under subsection (a) of this section shall not prevent, relieve or replace a report to a law-enforcement agency, if appropriate or warranted.

§30B-1-10. Application for license or registration; examination fee; establishment of application deadline and fees by legislative rule; prohibiting discrimination.

(a) An applicant for an authorization to practice under the provisions of this chapter shall apply in writing to the proper board and submit the applicable fees.

(b) Each board may establish, by legislative rule, a deadline for an application for an examination.

(1) Mailing a copy of the proposed rule to its membership; or

(2) Posting the proposed rule on its website and notifying its membership of the website posting by:

(A) Mailing a postcard;

(B) Emailing a notice; or

§30B-1-11. Contents of license or certificate of registration.

§30B-1-12. Denial, suspension or revocation of a license or registration; probation; proceedings; effect of suspension or revocation; transcript; report; judicial review.

(b) For purposes of this section, the word "felony" means a felony or crime punishable as a felony under the laws of this state, any other state, or the United States.

(j) All proceedings under the provisions of this section are subject to review by the Supreme Court of Appeals.

§30B-1-13. Reinstatement of license.

(b) Each board may adopt a procedural rule in accordance with the provisions of §29A-3-1 et seq. of this code, specifying forms and procedures for application for reinstatement.

§30B-1-14. Mediation of complaints.

(a) Any board referred to in this chapter may, on its own motion or by stipulation of the parties, refer any complaints against persons licensed under this chapter to mediation.

(d) The mediation may not be used to delay any disciplinary proceeding.

§30B-1-15. Review by circuit court and supreme court of board's refusal to issue; suspension or revocation of license or registration.

§30B-1-16. Disposition of money fines; legislative audit; review of board’s fee structure.

(1) Transfer the excess amount to the state General Revenue Fund; and

(2) Notify the Legislative Auditor that the transfer has been made.

(b) (1) Every licensing board which is authorized by the provisions of this chapter shall be subject to audit by the office of the Legislative Auditor.

§30B-1-17. Compensation of members; expenses.

(b) The limitations contained in this section do not apply if they conflict with provisions of this chapter relating to a particular board.

(d) No member of any board in this chapter may receive compensation as an employee of the board.

§30B-1-18. Record of proceedings; register of applicants; certified copies of records prima facie evidence; report to Governor and Legislature; public access.

(1) The total receipts and disbursements for each year;

(2) A list of amounts received in each year for the following categories of receipts:

(A) License applications, registrations and renewals;

(B) Examination fees, if applicable;

(D) Fines or penalties;

(E) Expense reimbursements from disciplinary actions; and

(F) Grants, special appropriations or other sources of revenue not from fees;

(3) A list of amounts spent in each year for the following categories of expenditures:

(A) Personal services;

(B) Board member per diem compensation;

(D) Professional contracts;

(E) Rent;

(F) Office supplies;

(G) Postage;

(H) Entertainment and hosting;

(I) Insurance; and

(J) Bank costs;

(4) A complete list of the names of all persons newly licensed or registered;

(7) In addition to complaints reported under the preceding subsection, complaints resolved and investigations closed by the board, with a brief classification of the nature of the complaint, together with the dates of compliance with the time requirements of §30B-18(c) of this code, and the disposition, if any; and

(8) Copies of the agendas for, and minutes of, board and committee or subcommittee meetings.

The report shall be certified by the president and the secretary of the board, and a copy of the report shall be filed with the Secretary of State and with the legislative librarian.

§30B-1-19. Roster of licensed or registered practitioners.

§30B-1-20. Remission of certain fees.

§30B-1-21. Liability limitations of peer review committees and professional standards review committees.

§30B-1-22. Annual reports.

(b) If a board chooses to submit its annual report electronically, it shall transmit an electronic copy to the legislative manager.

§30B-1-23. Retired, volunteer and inactive status licenses.

(a) Every board referred to in this chapter may propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code, to establish licensure criteria and other requirements for retired, volunteer, and inactive licenses.

§30B-1-24. Combining board staff functions.

(a) Any board referred to in this chapter may combine administrative staff functions with any other board or boards referred to in this chapter, Chapter 30, or Chapter 30A of this code, pursuant to the provisions of subsection (b) of this section, to carry out the administrative duties of the boards as set forth in this article, the practice acts of each board set forth in this chapter and the legislative rules of each board: Provided, That each board retains responsibility for fulfilling its statutory duties.

(1) The names of the boards combining administrative staff functions;

(2) The administrative staff functions being combined, including the staffs' titles and duties relative to each board;

(4) A description of how decisions will be made by the boards, including employment of staff, the staff's functions and duties, and any other necessary decisions;

(5) A description of how modifications may be made to the terms of the agreement; and

(6) Any other provisions necessary to set forth the agreement of the boards.

§30B-1-25. Exemption from licensure for practice for a charitable function.

(d) The board may not charge a fee to authorize this charitable practice.

§30B-1-26. Lobbying.

§30B-1-27. Waiver of initial licensing fees for certain individuals; definitions.

(a) As used in this section:

(1) “Initial” means obtaining a license in West Virginia for the occupation sought for the first time;

(b) Each board or licensing authority referred to in this chapter shall waive all initial occupational licensing fees for the following classes of individuals:

(1) Low-income individuals; and

(2) Military families.

(d) The board or licensing authority shall propose rules for legislative approval in accordance with §29A-3-1 et seq. of this code to implement the provisions of this section.

§30B-1-28. Use of criminal records as disqualification from authorization to practice.

(a) Definitions. — For the purposes of this section:

(2) “License” or “licensure” means the official authorization to engage in a profession or occupation issued by a board, pursuant to the requirements of this chapter.

(3) “Unreversed”, as that term refers to a criminal conviction, means that a conviction has not been set aside, vacated, pardoned, or expunged.

(A) The nature and seriousness of the crime for which the individual was convicted;

(B) The passage of time since the commission of the crime;

(C) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the profession or occupation; and

(D) Any evidence of rehabilitation or treatment undertaken by the individual.

(A) A period of five years has elapsed from the date of conviction or the date of release from incarceration, whichever is later;

(B) The individual has not been convicted of any other crime during the period of time following the disqualifying offense; and

(5) The requirements of this section do not apply to the criteria that boards may consider when making determinations regarding relicensure or discipline of licensees.

ARTICLE 2. BOARD OF BARBERS AND COSMETOLOGISTS.

§30B-2-1. Unlawful acts.

(a) It is unlawful for any person to practice or offer to practice barbering, barber permanent waving, cosmetology, hairstyling, waxing, shampoo assisting, aesthetics or nail care in this state without a license or certification issued under the provisions of this article, or advertise or use any title or description tending to convey the impression that the person is a licensed or certified aesthetician, barber, barber crossover, barber permanent wavist, cosmetologist, cosmetologist crossover, hairstylist, shampoo assistant, waxing specialist or nail technician unless the person has been licensed or obtained certification under the provisions of this article and the license or certification has not expired, been suspended or revoked.

(b) No salon, except through a licensee or certification, may render any service or engage in any activity which, if rendered or engaged in by an individual, would constitute the practices licensed or certified under the provisions of this article.

(c) No school, except through a certified instructor, may instruct, render any service or engage in any activity which, if taught, rendered or engaged in by an individual, would constitute the practices licensed under the provisions of this article.

§30B-2-2. Applicable law.

The practices licensed under the provisions of this article and the board of Barbers and Cosmetologists are subject to the provisions of §30B-1-1 et seq. of this code, the provisions of this article, and any rules promulgated hereunder.

§30B-2-3. Definitions.

As used in this article, the following words and terms have the following meanings, unless the context clearly indicates otherwise:

(a) “Aesthetics” or “esthetics” means any one or any combination of the following acts when done on the human body for compensation and not for the treatment of disease:

(1) Administering cosmetic treatments to enhance or improve the appearance of the skin, including cleansing, toning, performing effleurage or other related movements, stimulating, exfoliating or performing any other similar procedure on the skin of the human body or scalp;

(2) Applying, by hand or with a mechanical or electrical apparatus, any cosmetics, makeups, oils, powders, clays, antiseptics, tonics, lotions, creams or chemical preparations necessary for the practice of aesthetics to another person’s face, neck, back, shoulders, hands, elbows and feet up to and including the knee;

(3) The rubbing, cleansing, exercising, beautifying or grooming of another person’s face, neck, back, shoulders, hands, elbows and feet up to and including the knee;

(4) The waxing and tweezing of hair on another person’s body;

(5) The wrapping of another person’s body in a body wrap;

(6) Applying artificial eyelashes and eyebrows; and

(7) The lightening of hair on the body except the scalp.

(b) “Aesthetician” or “esthetician” means a person licensed under the provisions of this article who engages in the practice of aesthetics and has completed 600 clock hours of training.

(c) “Applicant” means a person making application for a professional license, license, certificate, registration, permit or renewal under the provisions of this article.

(d) “Barber” means a person licensed under the provisions of this article who engages in the practice of barbering and has completed a 1200 clock-hour barber training program without chemical services or a 1500 clock-hour barber training program with chemical services, or has successfully completed the barber apprenticeship program.

(e) “Barbering” means any one or any combination of the following acts when done on the head and neck for compensation and not for the treatment of disease:

(1) Shaving, shaping and trimming the beard, or both;

(2) Cutting, singeing, shampooing, arranging, dressing, tinting, bleaching, or applying lotions or tonics on human hair, or a wig or hairpiece; and

(3) Applications, treatments or rubs of the scalp, face, or neck with oils, creams, lotions, cosmetics, antiseptics, powders, or other preparations in connection with the shaving, cutting or trimming of the hair or beard.

(f) “Barber crossover” “ is a person who has completed 1200 or 1500 clock hours of training, is licensed as a barber, and completed additional hours of training in nails, aesthetics and/or chemical services, to the total amount of 2100 hours, to perform cosmetology.

(g) “Barber permanent waving” means the following acts performed on the head and neck for compensation and not for the treatment of disease:

(1) The bleaching or tinting of hair; and

(2) The permanent waving of hair.

(h) “Barber permanent wavist” means a person who has completed 2000 clock hours of training and was licensed to perform barbering and barber permanent waiving enrolled by August 28, 2012.

(i) “Board” means the West Virginia Board of Barbers and Cosmetologists.

(j) “Certificate” means an instructor certificate to teach in a school under the provisions of this article or a document issued by the board for certification obtained pursuant to §30B-2-8b of this code.

(k) “Certificate holder” means a person certified as an instructor to teach in a school under the provisions of this article or who has obtained a certification pursuant to §30B-2-8b of this code.

(l) “Cosmetologist” means a person licensed under the provisions of this article who engages in the practice of cosmetology and who has completed 1800 clock hours of training.

(m) “Cosmetology” means any one or any combination of the following acts when done on the human body for compensation and not for the treatment of disease:

(1) Cutting, styling, shaping, arranging, braiding, weaving, dressing, adding extensions, curling, waving, permanent waving, relaxing, straightening, shampooing, cleansing, singeing, bleaching, tinting, coloring, waxing, tweezing, or similarly work on human hair, or a wig or hairpiece, by any means, including hands, mechanical or electrical devices or appliances;

(2) Nail care;

(3) Applying by hand or with a mechanical or electrical device or appliance, any cosmetics, makeups, oils, powders, clays, antiseptics, tonics, lotions, creams or chemical preparations necessary for the practice of aesthetics to another person’s face, neck, shoulders, hands, elbows and feet up to and including the knee;

(4) The rubbing, cleansing, exercising, beautifying or grooming of another person’s face, neck, shoulders, hands, elbows and feet up to and including the knee;

(5) The wrapping of another person’s body in a body wrap; and

(6) Performing aesthetics.

(n) “Cosmetology crossover” is a person who has completed 1800 clock hours of training, is licensed as a cosmetologist and completes an additional 300 hours of training in clipper cuts and face shaving to perform barbering, for a total of 2100 hours.

(o) “General supervision” means:

(1) For schools, a master or certified instructor is on the premises and is quickly and easily available; or

(2) For salons, a professional licensee is on the premises and is quickly and easily available.

(p) “Hair styling” means any one or any combination of the following acts when done on the head and neck for compensation and not for the treatment of disease:

Cutting, styling, shaping, arranging, braiding, weaving, dressing, adding extensions, curling, facial hair trimming, scalp treatments, waving, permanent waving, relaxing, straightening, shampooing, singeing, bleaching, tinting, coloring, or similarly work on human hair, or a wig or hairpiece, by any means, including hands, mechanical or electrical devices or appliances.

(q) “Hair stylist” means a person licensed under the provisions of this article who engages in the practice of hair styling and who has completed 1000 clock hours of training, effective July 1, 2016.

(r) “License” means a professional license, a salon license or a school license.

(s) “Licensed school” means a facility which has been approved by the West Virginia Council for Community and Technical College Education (CCTCE), Department of Education in conjunction with CCTCE or Department of Education in conjunction with the Department of Corrections pursuant to §18B-2B-9 of this code to educate persons to be licensed or issued certain permits under the provisions of this article.

(t) “Licensee” means a person, corporation or firm holding a license issued under the provisions of this article.

(u) “Nail care” means any one or any combination of the following acts when done on the human body for compensation and not for the treatment of disease:

(1) The cleansing, dressing, or polishing of nails of a person;

(2) Performing artificial nail service; and

(3) The cosmetic treatment of the feet up to the knee and the hands up to the elbow.

(v) “Nail technician” or “manicurist” means a person licensed under the provisions of this article who engages in the practice of nail care and has completed 400 clock hours of training.

(w) “Permit” means a work permit.

(x) “Permittee” means a person holding a work permit.

(y) “Professional license” means a license to practice as an aesthetician, barber, barber crossover, barber permanent wavist, cosmetologist, cosmetologist crossover, hairstylist or nail technician.

(z) “Registration” means a registration issued by the board to a person who rents or leases a booth or chair from a licensed salon owner and operator, or both, or a registration issued by the board to a person who is a student in a school.

(aa) “Registrant” means a person who holds a registration under the provisions of this article.

(bb) “Salon” means a shop or other facility where a person practices under a professional license.

(cc) “Salon license” means a license to own and operate a salon.

(dd) “Student registration” means a registration issued by the board to a student to study at a school licensed under the provisions of this article.

(ee) “Waxing specialist” means a person certified under the provisions of this article who engages in the practice of waxing and tweezing of hair on another person’s body.

(ff) “Shampoo assistant” means a person certified under the provisions of this article who engages in the practice of shampooing and rinsing hair; removing rollers or permanent rods and cleansing or other sink-related functions not requiring the skill of a license. They must work at all times under the direct supervision of a licensed barber, hairstylist or cosmetologist.

(gg) Hair braiding, threading and any other item not spelled out are not regulated by the West Virginia Board of Barbers and Cosmetologists.

§30B-2-4. Board of Barbers and Cosmetologists.

(a) The West Virginia Board of Barbers and Cosmetologists is continued. The members of the board in office on July 1, 2016, shall, unless sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and qualified.

(b) The Governor, by and with the advice and consent of the Senate, shall appoint:

(1) One licensed cosmetologist;

(2) One licensed barber or barber permanent wavist;

(3) One licensed aesthetician who is not a cosmetologist;

(4) One licensed nail technician who is not a cosmetologist;

(5) One representative from a privately owned beauty school licensed by the West Virginia Council for Community and Technical College Education (CCTCE), Department of Education in conjunction with CCTCE or Department of Education with the Department of Corrections; and

(6) Four citizen members representing the public;

(c) After the initial appointment term, the term shall be for five years. All appointments to the board shall be made by the Governor by and with the advice and consent of the Senate.

(d) Each licensed member of the board, at the time of his or her appointment, must have held a professional license in this state for a period of not less than three years immediately preceding the appointment.

(e) Each member of the board must be a resident of this state during the appointment term.

(f) A member may not serve more than two consecutive full terms. A member may continue to serve until a successor has been appointed and has qualified. A member serving on the board on June 30, 2016, may be reappointed in accordance with the provisions of this section.

(g) A vacancy on the board shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant and the appointment shall be made within 60 days of the vacancy.

(h) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.

(i) A member of the board immediately and automatically forfeits membership to the board if his or her license to practice is suspended or revoked, is convicted of a felony under the laws of any jurisdiction or becomes a nonresident of this state.

(j) The board shall elect annually one of its members as chairperson who serves at the will of the board.

(k) Each member of the board is entitled to compensation and expense reimbursement in accordance with §30B-1-1 et seq. of this code.

(l) A majority of the members of the board constitutes a quorum.

(m) The board shall hold at least two annual meetings. Other meetings may be held at the call of the chairperson or upon the written request of two members, at the time and place as designated in the call or request.

(n) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article IV of the constitution of this state.

§30B-2-5. Powers and duties of the board.

(a) The board has all the powers and duties set forth in this article, by rule, provided such rule does not contradict the provisions of this article and does not exceed the authorities granted in this article, in §30B-1-1 et seq. of this code and elsewhere in law.

(b) The board shall:

(1) Hold meetings, conduct hearings and administer examinations;

(2) Establish requirements for licenses, permits, certificates and registrations;

(3) Establish procedures for submitting, approving and rejecting applications for licenses, permits, certificates and registrations;

(4) Determine the qualifications of any applicant for licenses, permits, certificates and registrations;

(5) Prepare, conduct, administer and grade examinations for professional licenses and certificates: Provided, That the examinations must meet national standards;

(6) Determine the passing grade for the examinations;

(7) Maintain records of the examinations the board or a third party administers, including the number of persons taking the examinations and the pass and fail rate;

(8) Set operational standards and requirements for licensed schools: Provided, That a licensed school shall have a minimum of one chair per student available during practical instruction;

(9) Hire, discharge, establish the job requirements and fix the compensation of the executive director;

(10) Maintain an office and hire, discharge, establish the job requirements and fix the compensation of employees, investigators/inspectors and contracted employees necessary to enforce the provisions of this article: Provided, That any investigator/inspector employed by the board on July 1, 2009, shall retain their coverage under the classified service, including job classification, job tenure and salary, until that person retires or is dismissed: Provided, however, That nothing may prohibit the disciplining or dismissal of any investigator/inspector for cause;

(11) Investigate alleged violations of the provisions of this article, legislative rules, orders and final decisions of the board;

(12) Establish the criteria for the training of investigators/inspectors;

(13) Set the requirements for investigations and inspections;

(14) Conduct disciplinary hearings of persons regulated by the board;

(15) Determine disciplinary action and issue orders;

(16) Institute appropriate legal action for the enforcement of the provisions of this article;

(17) Report violations of the provisions of this article, and legislative rules promulgated pursuant to this article, alleged to have been committed by a licensed school to the West Virginia Council for Community and Technical College Education or the Department of Education. If the board determines that probable cause exists that a violation occurred, the board immediately shall advise and provide its investigation file to the West Virginia Council for Community and Technical College Education or the Department of Education;

(18) Maintain an accurate registry of names and addresses of all persons regulated by the board;

(19) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;

(20) Establish the continuing education requirements for professional licensees and certificate holders;

(21) Issue, renew, combine, deny, suspend, revoke or reinstate licenses, permits, certificates and registrations;

(22) Establish a fee schedule;

(23) Propose rules in accordance with the provisions of §29A-3-1 et seq. of this code to implement the provisions of this article; and

(24) Take all other actions necessary and proper to effectuate the purposes of this article.

(1) Establish joint licenses;

(2) Contract with third parties to administer the examinations required under the provisions of this article;

(3) Sue and be sued in its official name as an agency of this state;

(4) Confer with the Attorney General or his or her assistant in connection with legal matters and questions.

(d) Notwithstanding any other provision of this code, the board may not restrict a certificate holder or licensee from practicing his or her licensed craft at temporary on-site events in connection with, but not limited to: Fairs, carnivals, weddings, pageants or photographs: Provided, That the certificate holder or licensee is compliant with all other prescribed requirements and rules under this code. If an out-of-state licensee works in a temporary capacity, less than five days, in connection with an event or temporary commercial enterprise, he or she may be granted a temporary permit to work after submitting his or her current license certification to this state and paying the applicable fee: Provided, however, That the licensee shall display or have immediately available their license for the duration of his or her practice at a temporary event.

§30B-2-6. Rulemaking.

The board shall propose rules for legislative approval, in accordance with §29A-3-1 et seq. of this code, to implement the provisions of this article, including:

(1) Standards and requirements for licenses, permits, certificates and registrations;

(2) Procedures for examinations and reexaminations: Provided, That the board shall offer examinations in all languages other than English if available to the board and requested by the applicant;

(3) Requirements for third parties to prepare and/or administer examinations and reexaminations;

(4) Educational and experience requirements;

(5) The passing grade on the examinations;

(6) Standards for approval of courses and curriculum;

(7) Procedures for the issuance and renewal of licenses, permits, certificates and registrations;

(8) A fee schedule;

(9) Continuing education requirements for professional licensees and certificate holders;

(10) The procedures for denying, suspending, revoking, reinstating or limiting the practice of licensees, permittees, certificate holders and registrants;

(11) Designating the regions for investigators/inspectors;

(12) Criteria for the training of investigators/inspectors;

(13) Requirements for investigations and inspections;

(14) Requirements for inactive or revoked licenses, permits, certificates and registrations;

(15) Establishing the training program and requirements for instructors for schools licensed under this article;

(16) Establishing operating procedures for salons; and

(17) Any other rules necessary to effectuate the provisions of this article.

§30B-2-7. Fees; special revenue account; administrative fines.

(a) All fees in effect on January 1, 2009, shall remain in effect until they are amended or repealed by legislative rule or statute.

(b) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the state Treasury designated the “Barbers and Beauticians Special Fund”, which is continued and shall be known as the “Board of Barbers and Cosmetologists Special Fund”. The fund is used by the board for the administration of this article. Except as may be provided in §30B-1-1 et seq. of this code, the board retains the amount in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.

(c) Any amount received as fines, imposed pursuant to this article, shall be deposited into the General Revenue Fund of the state Treasury.

§30B-2-8. Professional license requirements.

(a) An applicant for a professional license to practice as an aesthetician, barber, barber crossover, cosmetologist, hair stylist, cosmetologist crossover or nail technician shall present satisfactory evidence that he or she:

(1) Is at least 18 years of age;

(2) Is of good moral character;

(3) Has a high school diploma, a GED, or has passed the “ability to benefit test” approved by the United States Department of Education;

(4) Has graduated from a licensed school which has been approved by the West Virginia Council for Community and Technical College Education (CCTCE), Department of Education in conjunction with CCTCE or Department of Education with the Department of Corrections or has completed education requirements in another state and meets the licensure provisions of the board;

(5) Has passed an examination that tests the applicant’s knowledge of subjects specified by the board: Provided, That the board may recognize a certificate or similar license in lieu of the examination or part of the examination that the board requires: Provided, however, That any examination meets national standards;

(6) Has paid the applicable fee;

(7) Presents a certificate of health from a licensed physician;

(8) Is a citizen of the United States or is eligible for employment in the United States; and

(9) Has fulfilled any other requirement specified by the board.

(b) A license to practice issued by the board prior to July 1, 2016, shall for all purposes be considered a professional license issued under this article: Provided, That a person holding a license issued prior to July 1, 2016, must renew the license pursuant to the provisions of this article.

(c) A person, who by education and experience qualifies to be a barber and a cosmetologist or a barber crossover or cosmetologist crossover, may elect at any time to practice solely as a barber and, after notice and application to the board, may be licensed as a barber without other designation.

§30B-2-8a. Barber apprentice.

(a) The board may establish an apprenticeship program to become a barber. A barber apprentice shall work at all times under the direct supervision of a licensed barber and any permit issued by the board to work as a barber apprentice does not allow a person to practice individually as a barber.

(b) An applicant for a barber apprenticeship shall present satisfactory evidence that he or she:

(1) Is at least 16 years of age;

(2) Is of good moral character;

(3) Is in high school or has a high school diploma, a GED, or has passed the “ability to benefit test” approved by the United States Department of Education;

(4) Has paid the applicable fee;

(5) Has a certificate of health from a licensed physician;

(6) Is a citizen of the United States or is eligible for employment in the United States; and

(7) Has fulfilled any other requirement specified by the board.

(1) Is licensed as a barber under the provisions of this article;

(2) Has paid the applicable fee; and

(3) Has fulfilled any other requirement specified by the board.

(d) A sponsor of a barber apprentice shall be a current licensed barber with at least five years’ experience and has worked in a shop for the last five years.

(e) The board may propose emergency rules and rules for legislative approval, in accordance with the provisions of §29A-3-1 et seq. of this code, to implement the provisions of this section, including:

(1) The requirements for:

(A) The barber apprenticeship program;

(B) The barber apprentice permit; and

(2) Procedures for an examination;

(3) A fee schedule; and

(4) Any other rules necessary to effectuate the provisions of this section.

§30B-2-8b. Certifications.

(a) The board shall issue a certification to an applicant who obtains training at a licensed school or continuing education provider, in West Virginia, in the following area:

Waxing Specialist.—

An applicant for a waxing specialist shall present satisfactory evidence that he or she:

(A) Is at least 18 years of age;

(B) Is of good moral character;

(C) Has a high school diploma, a GED, or has passed the “ability to benefit test” approved by the United States Department of Education;

(D) Has paid the applicable fee;

(E) Has a certificate of health from a licensed physician;

(F) Is a citizen of the United States or is eligible for employment in the United States;

(G) Has completed a 100-hour class that consists of: Professional requirements, safety and health, skin structure, disorders and diseases, removal of superfluous hair and 25 hours on the clinic floor, supervised, for a total of 125 hours;

(H) If not currently licensed, must take the West Virginia state law test; and

(I) Has fulfilled any other requirement specified by the board.

(b) The board shall issue to any barber the 1500 clock-hour level licensure who has previously completed a 1200 clock-hour training program, and who subsequently completes a 300 clock-hour certification program in chemical services.

§30B-2-9. Professional license from another state; license to practice in this state.

(a) The board may issue a professional license to practice to an applicant of good moral character who holds a valid license or other authorization to practice in that particular field from another state, if the applicant demonstrates that he or she:

(1) Holds a license or other authorization to practice in another state which was granted after completion of educational requirements substantially equivalent to those required in this state and passed an examination that is substantially equivalent to the examination required in this state;

(2) Does not have charges pending against his or her license or other authorization to practice and has never had a license or other authorization to practice revoked;

(3) Has not previously failed an examination for professional licensure in this state;

(4) Has paid the applicable fee;

(5) Is at least 18 years of age;

(6) Has a high school diploma, a GED, or has passed the “ability to benefit test” approved by the United States Department of Education;

(7) Is a citizen of the United States or is eligible for employment in the United States;

(8) Has presented a certificate of health issued by a licensed physician; and

(9) Has fulfilled any other requirement specified by the board.

(b) In its discretion, the board may examine a person by a written, oral or skills test for licensing under this section, and may enter into agreements for reciprocal licensing with other jurisdictions having substantially similar requirements for licensure.

§30B-2-10. Professional license and certificate renewal requirements.

(a) A professional licensee and certificate holder shall annually on or before January 1, renew his or her professional license or certificate by completing a form prescribed by the board, paying the renewal fee and submitting any other information required by the board.

(b) The board shall charge a fee for each renewal of a license or certificate, and a late fee for any renewal not paid by the due date.

(c) The board shall require as a condition of renewal of a professional license or certificate that each licensee or certificate holder complete continuing education: subject to the following exceptions:

(1) When a barber or cosmetologist has been licensed and in practice for 10 years, that barber or cosmetologist will not be required to complete any continuing education other than a three-hour sanitation class every other year for a period of 10 years; and

(2) A person, who by education and experience qualifies to be a barber and a cosmetologist or a barber crossover or cosmetologist crossover, may elect to be licensed solely as a barber and shall not be required to attend or participate in continuing education programs that are not required of licensed barbers.

(d) The board may approve for continuing education credit any education course providing instruction in any curriculum, subject matter or discipline included in the education required for licensure that is submitted to the board or offered by:

(1) A licensed school or instructor, outside of school instruction;

(2) A manufacturer or distributor of barbering, aesthetics, nail technology or cosmetology products;

(3) A barber or cosmetology trade organization; or

(4) Any course offered at an accredited private or public university, college or community college in this state that relates to the profession or a general business class.

(e) The board may deny an application for renewal for any reason which would justify the denial of an original application for a license or certificate.

(f) The board shall recognize reciprocity for military barbers for the purpose of the state examination for barbers.

§30B-2-11. Work permit.

(a) The board may issue a work permit to practice to an applicant who meets the following conditions:

(1) Has graduated from a licensed school approved by the West Virginia Council for Community and Technical College Education (CCTCE), Department of Education in conjunction with CCTCE or Department of Education with the Department of Corrections or has completed education requirements in another state and meets the licensure provisions of the board;

(2) Is waiting to take the examination;

(3) Has employment in the field in which he or she applied to take the examination and is working under the general supervision of a professional licensee;

(4) Has paid the work permit fee;

(5) Has presented a certificate of health issued by a licensed physician;

(6) Is a citizen of the United States or is eligible for employment in the United States; and

(7) Meets all the other requirements specified by the board.

(b) A work permit expires at the end of the month after issuance following the next examination in the specific field. A work permit may be renewed once.

§30B-2-11a. Shampoo assistant.

(a) The board may establish a shampoo assistant permit. A shampoo assistant shall work at all times under the direct supervision of a licensed barber or cosmetologist and any permit issued by the board to work as a shampoo assistant does not allow a person to practice individually as a shampoo assistant.

(b) A shampoo assistant is only authorized to perform the following services:

(1) Shampooing and rinsing hair;

(2) Removing rollers or permanent rods; and

(3) Cleansing or other sink-related functions not requiring the skill of a licensee.

(1) Is at least 16 years of age;

(2) Is of good moral character;

(3) Is in high school or has a high school diploma, a GED, or has passed the “ability to benefit test” approved by the United States Department of Education;

(4) Has paid the applicable fee;

(5) Has a certificate of health from a licensed physician;

(6) Is a citizen of the United States or is eligible for employment in the United States; and

(7) Has fulfilled any other requirement specified by the board.

(d) The board may propose rules for legislative approval, in accordance with the provisions of §29A-3-1 et seq. of this code, to implement the provisions of this section, including:

(1) The requirements and procedures for a shampoo assistant permit:

(2) A fee schedule; and

(3) Any other rules necessary to effectuate the provisions of this section.

§30B-2-12. Student registration; classes.

(a) Prior to commencing studies in a licensed school, a student shall acquire a student registration issued by the board.

(b) An applicant for a student registration shall present satisfactory evidence that he or she meets the following conditions:

(1) Is enrolled as a student in a licensed school;

(2) Is of good moral character;

(3) Has paid the required fee;

(4) Has presented a certificate of health issued by a licensed physician; and

(5) Is a citizen of the United States or is eligible for employment in the United States.

(d) The student may perform acts constituting barbering, hairstyling, cosmetology, aesthetics or nail care in a school under the general supervision of a master or certified instructor.

(e) The student is not required to take class hours that are consecutive.

§30B-2-13. Display of professional license and permits.

(a) The board shall prescribe the form for a professional license and work and student permits, including a photograph, and may issue a duplicate license or permit upon payment of a fee.

(b) Every professional licensee and work permittee shall display his or her license or permit in a conspicuous place at his or her work station.

(d) Every professional licensee, work permittee, or certificate holder must present such license, permit, certification or registration to an investigator/inspector or a board member upon request.

§30B-2-14. Health certificate requirements.

(a) It is unlawful for a person to practice as a professional licensee, certificate holder or be a permittee or be a certified instructor while having an infectious, contagious or communicable disease.

(b) The board may, with cause, require a professional licensee, permittee, certificate holder or certified instructor to submit to a physical examination and file a certificate of health.

§30B-2-15. Schools may provide certain classes at different locations.

A licensed school may provide clinical instruction and theory instruction in separate locations. Any school authorized under this article cannot be established within the same physical structure as a salon, spa or similar business licensed under W. Va. Code §30B-2-7.

§30B-2-16. Certification requirements to be an instructor in a school.

(a) The board may issue a certificate to be an instructor in a school to an applicant who meets the following requirements:

(1) Meets the educational requirements established by the board;

(2) Has completed and passed a course in teaching techniques at a post-secondary educational level;

(3) Has passed the instructor examination;

(4) Has paid the appropriate fees;

(5) Presents a certificate of health from a licensed physician;

(6) Is a citizen of the United States or is eligible for employment in the United States; and

(7) Has fulfilled any other requirement specified by the board.

(b) All instructor certifications must be renewed annually or biennially on or before January 1 and pay a renewal fee.

(c) A certification to be an instructor issued by the board prior to January 1, 2009, shall for all purposes be considered a certification issued under this article: Provided, That a person holding a certification issued prior to January 1, 2009, must renew the certification pursuant to the provisions of this article.

(d) An instructor with an expired certificate must comply with the following to renew his or her certificate:

(1) Notify the board that he or she wants to be placed on inactive status; or

(2) Pay all lapsed renewal fees;

(3) Present a new certificate of health; and

(4) Meet the qualifications for certification set out in this article.

(e) A certified instructor is not required to have an active professional license, unless the instructor is in fact practicing outside the scope of his or her employment as an instructor.

§30B-2-17. Salon license requirements.

(a) Prior to opening a salon, any person, firm or corporation owning and/or operating a salon, and any person, firm or corporation practicing in a field authorized by this article, shall meet the following requirements to acquire a salon license to do business:

(1) The salon has been approved by the board as having met all the requirements and qualifications for the place of business as are required by this article;

(2) Notify the board, in writing, at least 20 days before the proposed opening date, so there can be an inspection of the salon: Provided, That if an inspection is not made within 10 days of the opening of the salon, or a salon license to open has not been granted or refused, then the salon may open provisionally subject to a later inspection and to all other provisions and rules provided in this article;

(3) Pay all applicable fees;

(4) All rooms, facilities, bathrooms, toilets and adjoining rooms used in the place of business are kept clean, sanitary, well lighted and ventilated at all times. The use of chunk alum, powder puffs and styptic pencils in any shop is prohibited;

(5) Every professional licensee, certificate holder, or permittee in the place of business thoroughly cleans his or her hands with soap and water immediately before serving any patron; and

(6) Every patron is served with clean, freshly laundered linen that is kept in a closed cabinet used for that purpose only. All linens, immediately after being used, must be placed in a receptacle used for that purpose only.

(b) All rules shall be kept posted in a conspicuous place in each place of business.

(d) A license to operate a salon issued by the board prior to July 1, 2009, shall for all purposes be considered a salon license issued under this article: Provided, That a person holding a license issued prior to July 1, 2009, must renew the license pursuant to the provisions of this article.

(e) The salon license shall be permanently displayed in the salon and a suitable sign shall be displayed at the main entrance of the salon which shall plainly indicate what type of salon is being operated.

§30B-2-18. Salon management requirements.

(a) Every salon in this state offering the services set forth in this article shall be operated under the supervision and management of a professional licensee or certificate holder licensed under this article.

(b) Any services set forth in this article may be conducted within the same salon. A suitable sign shall be displayed at the main entrance of all salons plainly indicating the business conducted therein.

§30B-2-19. Booth or chair rental registration requirements.

(a) Any professional licensee or certificate holder who elects to rent or lease a booth or chair from a licensed salon owner and/or operator must comply with the following to receive a registration from the board:

(1) Register with the board;

(2) Register with the state Tax Division and present the registration to the board;

(3) Pay a registration fee;

(4) Notify the board of the length of any rental or lease agreement;

(5) State the name of the person or salon from which a chair or booth is being rented or leased; and

(6) State the effective date of the rental or lease.

(b) If a person registered with the board pursuant to this section elects to move from one salon to rent or lease a chair or booth from another salon, then he or she must register again with the board and pay a fee.

(c) Each licensed salon owner and/or operator who elects to rent or lease chairs or booths shall notify the board in writing of such rental or lease within 10 days of the effective date of the rental or lease.

(d) The board shall quarterly notify the state Tax Commissioner of all persons registered pursuant to this section during the previous quarter. Such notice shall be in writing and shall include the following:

(1) The names of all the registered professional licensees or certificate holders;

(2) The names of the salons where space is being rented or leased; and

(3) The length of time of each rental or lease agreement.

(e) All registrations must be renewed annually on or before July 1 and pay a renewal fee.

(f) A registration to rent or lease a booth or chair issued by the board prior to July 1, 2009, shall for all purposes be considered a registration issued under this article: Provided, That a person holding a registration to rent or lease a booth or chair issued prior to July 1, 2009, must renew the registration pursuant to the provisions of this article.

§30B-2-20. Complaints; investigations; due process procedure; grounds for disciplinary action.

(a) The board may upon its own motion based on credible information, and shall upon the written complaint of any person cause an investigation to be made to determine whether grounds exist for disciplinary action under this article or the legislative rules of the board.

(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the complaint to the licensee, permittee, registrant or certificate holder.

(c) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the licensee, permittee, registrant or certificate holder has violated subsection (g) of this section or rules promulgated pursuant to this article.

(d) Upon a finding that probable cause exists that the licensee, permittee, registrant or certificate holder has violated subsection (g) of this section or rules promulgated pursuant to this article, the board may enter into a consent decree or hold a hearing for the suspension or revocation of the license, permit, registration or certification or the imposition of sanctions against the licensee, permittee, registrant or certificate holder. Any hearing shall be held in accordance with the provisions of this article.

(f) Any member of the board or its executive director may sign a consent decree or other legal document on behalf of the board.

(g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend or revoke the license, permit, registration or certification of, impose probationary conditions upon or take disciplinary action against, any licensee, permittee, registrant or certificate holder for any of the following reasons once a violation has been proven by a preponderance of the evidence:

(1) Obtaining a license, permit, registration or certification by fraud, misrepresentation or concealment of material facts;

(2) Being convicted of a felony or other crime involving moral turpitude;

(3) Being guilty of unprofessional conduct which placed the public at risk, as defined by legislative rule of the board;

(4) Intentional violation of a lawful order or legislative rule of the board;

(6) Aiding or abetting unlicensed practice; or

(7) Engaging in an act while acting in a professional capacity which has endangered or is likely to endanger the health, welfare or safety of the public.

(h) For the purposes of subsection (g) of this section, effective July 15, 2009, disciplinary action may include:

(1) Reprimand;

(2) Probation;

(3) Administrative fine, not to exceed $1,000 per day per violation;

(4) Mandatory attendance at continuing education seminars or other training;

(5) Practicing under supervision or other restriction;

(6) Requiring the licensee, permittee, registrant or certificate holder to report to the board for periodic interviews for a specified period of time; or

(7) Other corrective action considered by the board to be necessary to protect the public, including advising other parties whose legitimate interests may be at risk.

§30B-2-21. Procedures for hearing; right of appeal.

(a) Hearings shall be governed by the provisions of §30B-1-12 of this code.

(b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.

(d) Any member or the executive director of the board has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.

(e) If, after a hearing, the board determines the licensee, permittee, registrant or certificate holder has violated subsection (g) of this section or the board's rules, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.

§30B-2-22. Judicial review.

Any licensee, permittee, registrant or certificate holder adversely affected by a decision of the board entered after a hearing may obtain judicial review of the decision in accordance with §29A-5-4 of this code, and may appeal any ruling resulting from judicial review in accordance with §29A-6-1 of this code.

§30B-2-23. Criminal proceedings; penalties.

(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a licensee, permittee, registrant or certificate holder has committed a criminal offense under this article, the board may bring its information to the attention of an appropriate law-enforcement official.

§30B-2-24. Single act evidence of practice.

ARTICLE 3. LAW-ENFORCEMENT TRAINING AND CERTIFICATION.

§30B-3-1. Definitions.

For the purposes of this article, unless a different meaning clearly appears in the context:

(1) “Approved law-enforcement training academy” means any training facility which is approved and authorized to conduct law-enforcement training as provided in this article;

(2) “Chief executive” means the Superintendent of the State Police; the chief natural resources police officer of the Division of Natural Resources; the sheriff of any West Virginia county; any administrative deputy appointed by the chief natural resources police officer of the Division of Natural Resources; or the chief of any West Virginia municipal law-enforcement agency;

(3) “County” means the 55 major political subdivisions of the state;

(4) “Exempt rank” means any noncommissioned or commissioned rank of sergeant or above;

(5) “Governor’s Committee on Crime, Delinquency, and Correction” or “Governor’s committee” means the Governor’s Committee on Crime, Delinquency, and Correction established as a state planning agency pursuant to §15-3-1 of this code;

(6) “Law-enforcement officer” means any duly authorized member of a law-enforcement agency who is authorized to maintain public peace and order, prevent and detect crime, make arrests, and enforce the laws of the state or any county or municipality thereof, other than parking ordinances, and includes those persons employed as campus police officers at state institutions of higher education in accordance with the provisions of §8B-4-5 of this code, and persons employed by the Public Service Commission as motor carrier inspectors and weight-enforcement officers charged with enforcing commercial motor vehicle safety and weight restriction laws, although those institutions and agencies may not be considered law-enforcement agencies. The term also includes those persons employed as county litter control officers charged with enforcing litter laws: Provided, That those persons have been trained and certified as law-enforcement officers and that certification is currently active. The term also includes those persons employed as rangers by resort area districts in accordance with the provisions of §7-11-23 of this code, although no resort area district may be considered a law-enforcement agency: Provided, however, That the subject rangers shall pay the tuition and costs of training. As used in this article, the term “law-enforcement officer” does not apply to the chief executive of any West Virginia law-enforcement agency or any watchman or special natural resources police officer;

(7) “Law-enforcement official” means the duly appointed chief administrator of a designated law-enforcement agency or a duly authorized designee;

(8) “Municipality” means any incorporated town or city whose boundaries lie within the geographic boundaries of the state;

(9) “Subcommittee” or “law-enforcement professional standards subcommittee” means the subcommittee of the Governor’s Committee on Crime, Delinquency, and Correction created by §30B-13-2 of this code; and

(10) “West Virginia law-enforcement agency” means any duly authorized state, county, or municipal organization employing one or more persons whose responsibility is the enforcement of laws of the state or any county or municipality thereof: Provided, That neither the Public Service Commission nor any state institution of higher education nor any resort area district is a law-enforcement agency.

§30B-3-2. Law-enforcement professional standards subcommittee.

(a) The Law-Enforcement Professional Standards Subcommittee is continued as a subcommittee of the Governor's Committee on Crime, Delinquency and Correction. The subcommittee has the following responsibilities:

(1) Review and administer programs for qualification, training and certification of law-enforcement officers in the state; and

(2) Consider applications by law-enforcement officers whose certification is deemed inactive as a result of his or her separation from employment with a law-enforcement agency.

(b) The subcommittee shall be comprised of 11 members, including one representative of each of the following:

(1) West Virginia State Police;

(2) Law-enforcement section of the Department of Natural Resources;

(3) West Virginia Sheriffs' Association;

(4) West Virginia Association of Chiefs of Police;

(5) West Virginia Deputy Sheriffs' Association;

(6) West Virginia State Lodge Fraternal Order of Police;

(7) West Virginia Municipal League;

(8) West Virginia Association of County Officials;

(9) Human Rights Commission;

(10) West Virginia Troopers Association; and

(11) The public at large.

(c) The subcommittee shall elect a chairperson and a vice chairperson. Special meetings may be held upon the call of the chairperson, vice chairperson or a majority of the members of the subcommittee. A majority of the members of the subcommittee who are present in person, by proxy or designation, or by electronic means constitutes a quorum. Any member appointed to the subcommittee who is a written designated representative has the full rights of a member, including the right to vote, serve on subcommittees or perform any other function.

§30B-3-3. Duties of the subcommittee.

(a) The subcommittee shall, by or pursuant to rules proposed for legislative approval in accordance with §29A-3-1 et seq. of this code:

(1) Provide funding for the establishment and support of law- enforcement training academies in the state;

(2) Establish standards governing the establishment and operation of the law-enforcement training academies, including regional locations throughout the state, in order to provide access to each law-enforcement agency in the state in accordance with available funds;

(3) Establish minimum law-enforcement instructor qualifications;

(4) Certify qualified law-enforcement instructors;

(5) Maintain a list of approved law-enforcement instructors;

(6) Promulgate standards governing the training, firearms qualification and initial and ongoing professional certification of law-enforcement officers and the entry-level law-enforcement training curricula. These standards shall require satisfactory completion of a minimum of 400 classroom hours as promulgated by legislative rule, shall provide for credit to be given for relevant classroom hours earned pursuant to training other than training at an established law-enforcement training academy if earned within five years immediately preceding the date of application for certification, and shall provide that the required classroom hours can be accumulated on the basis of a part-time curricula spanning no more than 12 months or a full- time curricula;

(7) Establish standards governing in-service law-enforcement officer training curricula and in-service supervisory level training curricula;

(8) Certify organized criminal enterprise investigation techniques with a qualified anti-racial profiling training course or module;

(9) Establish standards governing mandatory training to effectively investigate organized criminal enterprises as defined in §61-13-1 et seq. of this code while preventing racial profiling, as defined in §30B-3-10 of this code, for entry level training curricula and for law-enforcement officers who have not received such training as certified by the subcommittee as required in this section;

(10) Establish procedures for implementation of a course in investigation of organized criminal enterprises which includes an anti-racial training module to be available on the Internet or otherwise to all law-enforcement officers. The procedures shall include the frequency with which a law-enforcement officer shall receive training in investigation of organized criminal enterprises and anti-racial profiling and a time frame for which all law-enforcement officers must receive such training: Provided, That all law-enforcement officers in this state shall receive such training no later than July 1, 2012. In order to implement and carry out the intent of this section, the subcommittee may promulgate emergency rules pursuant to §29A-3-15 of this code;

(11) Certify or decertify or reactivate law-enforcement officers, as provided in §30B-3-15 and §30B-3-11 of this code;

(12) Establish standards and procedures for the reporting of complaints and certain disciplinary matters concerning law-enforcement officers and for reviewing the certification of law- enforcement officers. These standards and procedures shall provide for preservation of records and access to records by law-enforcement agencies and conditions as to how the information in those records is to be used regarding an officer's law-enforcement employment by another law-enforcement agency;

(A) The subcommittee shall establish and manage a database that is available to all law-enforcement agencies in the state concerning the status of any person's certification.

(B) Personnel or personal information not resulting in a criminal conviction is exempt from disclosure pursuant to the provisions of Chapter 29B of this code.

(13) Seek supplemental funding for law-enforcement training academies from sources other than the fees collected pursuant to §30B-3-4 of this code;

(14) Any responsibilities and duties as the Legislature may, from time to time, see fit to direct to the subcommittee; and

(15) Submit, on or before September 30 of each year, to the Governor, the Speaker of the House, the President of the Senate and, upon request, to any individual member of the Legislature a report on its activities during the previous year and an accounting of funds paid into and disbursed from the special revenue account established pursuant to §30B-3-4 of this code.

(16) Develop and promulgate rules for state, county and municipal law-enforcement officers, law-enforcement agencies, and communications and emergency operations centers that dispatch law- enforcement officers with regard to the identification, investigation, reporting and prosecution of suspected child abuse and neglect: Provided, That such rules and procedures must be consistent with the priority criteria prescribed by generally applicable department procedures.

(17) Make recommendations to the Governor's Committee on Crime, Delinquency and Correction for legislation related to the subcommittee's duties and responsibilities, or for research or studies by the Division of Justice and Community Services on topics related to the subcommittee's duties and responsibilities.

(b) In addition to the duties authorized and established by this section, the subcommittee may:

(1) Establish training to effectively investigate human trafficking offenses as defined in §61-14-1 et seq. of this code for entry level training curricula and for law-enforcement officers who have not received such training as certified by the committee as required by this section; and

(2) Establish procedures for the implementation of a course in investigation of human trafficking offenses. The course may include methods of identifying and investigating human trafficking and methods for assisting trafficking victims. In order to implement and carry out the intent of this subdivision, the committee may promulgate emergency rules pursuant to section §29A-3-15 of this code.

§30B-3-4. Special revenue account -- Collections; disbursements; administrative expenses.

(a) A $2 fee shall be added to the usual court costs of all criminal court proceedings involving violation of any criminal law of the state or any county or municipality thereof, excluding violations of municipal parking ordinances, unless such fee is later modified pursuant to legislative rule.

(b) A $2 fee shall be added to the amount of any cash or property bond posted for violation of any criminal law of the state or any county or municipality thereof, excluding bonds posted solely for violation of municipal parking ordinances, unless such fee is later modified pursuant to legislative rule. Upon forfeiture of such bond, the $2 fee shall be deposited as provided in subsection (c) of this section.

(c) All fees collected pursuant to subsections (a) and (b) of this section shall be deposited in a separate account by the collecting agency. Within 10 calendar days following the beginning of each calendar month, the collecting agency shall forward the amount deposited to the State Treasurer. The Treasurer shall deposit all fees so received to a special revenue account. Funds in the account shall be disbursed by the subcommittee for the funding of law-enforcement entry level training programs, professional development programs, the certification of law-enforcement officers and to pay expenses of the Governor's Committee on Crime, Delinquency and Correction or the subcommittee in administering the provisions of this article, which expenses may not in any fiscal year exceed 15 percent of the funds deposited to said special revenue account during that fiscal year.

(d) The fees established by this section may be modified by legislative rule as provided in §30B-3-3 of this code.

§30B-3-5. Certification requirements and power to decertify or reinstate.

(a) Except as provided in subsections (b) and (g) of this section, a person may not be employed as a law-enforcement officer by any West Virginia law-enforcement agency or by any state institution of higher education or by the Public Service Commission of West Virginia on or after the effective date of this article unless the person is certified, or is certifiable in one of the manners specified in subsections (c) through (e), inclusive, of this section, by the subcommittee as having met the minimum entry level law-enforcement qualification and training program requirements promulgated pursuant to this article: Provided, That the provisions of this section do not apply to persons hired by the Public Service Commission as motor carrier inspectors and weight enforcement officers before July 1, 2007.

(b) Except as provided in subsection (g) of this section, a person who is not certified, or certifiable in one of the manners specified in subsections (c) through (e), inclusive, of this section, may be conditionally employed as a law-enforcement officer until certified: Provided, That within 90 calendar days of the commencement of employment or the effective date of this article if the person is already employed on the effective date, he or she makes a written application to attend an approved law-enforcement training academy. The person's employer shall provide notice, in writing, of the 90-day deadline to file a written application to the academy within 30 calendar days of that person's commencement of employment. The employer shall provide full disclosure as to the consequences of failing to file a timely written application. The academy shall notify the applicant in writing of the receipt of the application and of the tentative date of the applicant's enrollment. Any applicant who, as the result of extenuating circumstances acceptable to his or her law-enforcement official, is unable to attend the scheduled training program to which he or she was admitted may reapply and shall be admitted to the next regularly scheduled training program. An applicant who satisfactorily completes the program shall, within 30 days of completion, make written application to the subcommittee requesting certification as having met the minimum entry level law-enforcement qualification and training program requirements. Upon determining that an applicant has met the requirements for certification, the subcommittee shall forward to the applicant documentation of certification. An applicant who fails to complete the training program to which he or she is first admitted, or was admitted upon reapplication, may not be certified by the subcommittee: Provided, however, That an applicant who has completed the minimum training required by the subcommittee may be certified as a law-enforcement officer, notwithstanding the applicant's failure to complete additional training hours required in the training program to which he or she originally applied.

(c) Any person who is employed as a law-enforcement officer on the effective date of this article and is a graduate of the West Virginia basic police training course, the West Virginia State Police cadet training program, or other approved law-enforcement training academy, is certifiable as having met the minimum entry level law-enforcement training program requirements and is exempt from the requirement of attending a law-enforcement training academy. To receive certification, the person shall make written application within 90 calendar days of the effective date of this article to the subcommittee requesting certification. The subcommittee shall review the applicant’s relevant scholastic records and, upon determining that the applicant has met the requirements for certification, shall forward to the applicant documentation of certification.

(d) Any person who is employed as a law-enforcement officer on the effective date of this article and is not a graduate of the West Virginia basic police training course, the West Virginia State Police Cadet Training Program or other approved law-enforcement training academy, is certifiable as having met the minimum entry level law-enforcement training program requirements and is exempt from the requirement of attending a law-enforcement training academy if the person has been employed as a law-enforcement officer for a period of not less than five consecutive years immediately preceding the date of application for certification. To receive certification, the person shall make written application within 90 calendar days following the effective date of this article to the subcommittee requesting certification. The application shall include notarized statements as to the applicant's years of employment as a law-enforcement officer. The subcommittee shall review the application and, upon determining that the applicant has met the requirements for certification, shall forward to the applicant documentation of certification.

(e) Any person who begins employment on or after the effective date of this article as a law-enforcement officer is certifiable as having met the minimum entry level law-enforcement training program requirements and is exempt from attending a law-enforcement training academy if the person has satisfactorily completed a course of instruction in law enforcement equivalent to or exceeding the minimum applicable law-enforcement training curricula promulgated by the subcommittee. To receive certification, the person shall make written application within 90 calendar days following the commencement of employment to the subcommittee requesting certification. The application shall include a notarized statement of the applicant's satisfactory completion of the course of instruction in law enforcement, a notarized transcript of the applicant's relevant scholastic records and a notarized copy of the curriculum of the completed course of instruction. The subcommittee shall review the application and, if it finds the applicant has met the requirements for certification, shall forward to the applicant documentation of certification. The subcommittee may set the standards for required records to be provided by or on behalf of the applicant officer to verify his or her training, status, or certification as a law-enforcement officer. The subcommittee may allow an applicant officer to participate in the approved equivalent certification program to gain certification as a law-enforcement officer in this state.

(f) Except as provided in subdivisions (1) through (3), inclusive, of this subsection, any person who is employed as a law-enforcement officer on or after the effective date of this article and fails to be certified shall be automatically terminated and no further emoluments shall be paid to such officer by his or her employer. Any person terminated shall be entitled to reapply, as a private citizen, to the subcommittee for training and certification, and upon being certified may again be employed as a law-enforcement officer in this state: Provided, That if a person is terminated under this subsection because an application was not timely filed to the academy, and the person's employer failed to provide notice or disclosure to that person as set forth in subsection (b) of this section, the employer shall pay the full cost of attending the academy if the person's application to the subcommittee as a private citizen is subsequently approved.

(1) Any person who is employed as a law-enforcement officer on or after the effective date of this article and fails to be certified as a result of hardship and/or circumstance beyond his or her control may apply to the director of a training academy for reentry to the next available academy.

(2) Any person who is employed as a law-enforcement officer on or after the effective date of this article and fails to be certified as a result of voluntary separation from an academy program shall be automatically terminated and no further emoluments may be paid to such officer by his or her employer. Any person terminated as a result of voluntary separation from an academy program may not be conditionally employed as a law-enforcement officer for a period of two years from the date of voluntary separation.

(3) Any person who is employed as a law-enforcement officer on or after the effective date of this article and fails to be certified as a result of dismissal from an academy program shall be automatically terminated and no further emoluments may be paid to such officer by his or her employer. Any person terminated as a result of dismissal from an academy program may not be conditionally employed as a law-enforcement officer for a period of five years from the date of dismissal and receiving approval from the subcommittee.

(g) Nothing in this article may be construed as prohibiting any governing body, Civil Service Commission or chief executive of any West Virginia law-enforcement agency from requiring their law-enforcement officers to meet qualifications and satisfactorily complete a course of law-enforcement instruction which exceeds the minimum entry level law-enforcement qualification and training curricula promulgated by the subcommittee.

(h) The subcommittee, or its designee, may decertify or reactivate a law-enforcement officer pursuant to the procedure contained in this article and legislative rules promulgated by the subcommittee.

(i) Any person aggrieved by a decision of the subcommittee made pursuant to this article may contest the decision in accordance with the provisions of §29A-5-4 of this code.

(j) The subcommittee may issue subpoenas for the attendance of witnesses and the production of necessary evidence or documents in any proceeding, review or investigation relating to certification or hearing before the subcommittee.

§30B-3-6. Review of certification.

Certification of each West Virginia law-enforcement officer shall be reviewed annually following the first certification and until such time as the officer may achieve exempt rank. Certification may be revoked, suspended or not renewed if any law-enforcement officer fails to attend annually an in-service approved law-enforcement training program, or if a law-enforcement officer achieving exempt rank fails to attend biennially an approved in-service supervisory level training program. When a law-enforcement officer is a member of the United States Air Force, Army, Coast Guard, Marines or Navy, or a member of the national guard or reserve military forces of any such armed forces, and has been called to active duty, resulting in separation from a law-enforcement agency for more than 12 months but less than 24 months, he or she shall attend and complete the mandated in-service training for the period and rank and qualify with his or her firearm within 90 days from his or her reappointment as a law-enforcement officer by a law-enforcement agency.

§30B-3-7. Compliance.

The subcommittee and the executive of each West Virginia law-enforcement agency shall ensure employee compliance with this article.

§30B-3-8. Compensation for employees attending law-enforcement training academy; limitations; agreements to reimburse employers for wages and expenses of employees trained but not continuing employment.

(a) A West Virginia law-enforcement agency shall, and a governing board may, pay compensation to employees, including wages, salaries, benefits, tuition and expenses, for the employees' attendance at a law-enforcement training academy. The compensation paid to the employees for such attendance may not include overtime compensation under the provisions of §21-5C-3 of this code and shall be at the regular rate to which each employee would be entitled for a workweek of 40 hours in regular employment with the employer.

(b) In consideration for such compensation, the governing board, county commission or municipal government may require each employee to enter into a written agreement in advance of such attendance that obligates the employee to repay the employer if he or she voluntarily discontinues employment within one year immediately following completion of the training curriculum. The amount of repayment shall be a pro rata portion of the total compensation which is equal to the portion of the year which the employee chose not to remain employed.

§30B-3-9. Special railroad police permitted to attend law-enforcement training academies.

Special railroad police officers shall be permitted to attend law-enforcement training academies for law-enforcement officers: Provided, That the railroad companies shall pay a tuition fee in an amount sufficient to pay the entire cost of training each employee who attends an academy, which fee shall in no event be less than $45 per day: Provided, however, That special railroad police officers shall be permitted to attend an academy only as space may be available.

§30B-3-10. Prohibition of racial profiling.

(a) The Legislature finds that the use by a law-enforcement officer of race, ethnicity, or national origin in deciding which persons should be subject to traffic stops, stops and frisks, questioning, searches, and seizures is a problematic law-enforcement tactic. The reality or public perception of racial profiling alienates people from police, hinders community policing efforts, and causes law-enforcement officers and law-enforcement agencies to lose credibility and trust among the people law-enforcement is sworn to protect and serve. Therefore, the West Virginia Legislature declares that racial profiling is contrary to public policy and should not be used as a law-enforcement investigative tactic.

(b) For purposes of this section:

(1) The term “law-enforcement officer” means any duly authorized member of a law-enforcement agency who is authorized to maintain public peace and order, prevent and detect crime, make arrests and enforce the laws of the state or any county or municipality thereof.

(2) The term “municipality” means any incorporated town or city whose boundaries lie within the geographic boundaries of the state.

(3) The term “racial profiling” means the practice of a law-enforcement officer relying, to any degree, on race, ethnicity, or national origin in selecting which individuals to subject to routine investigatory activities, or in deciding upon the scope and substance of law-enforcement activity following the initial routine investigatory activity. Racial profiling does not include reliance on race, ethnicity, or national origin in combination with other identifying factors when the law-enforcement officer is seeking to apprehend a specific suspect whose race, ethnicity, or national origin is part of the description of the suspect.

(4) The term “state and local law-enforcement agencies” means any duly authorized state, county or municipal organization employing one or more persons whose responsibility is the enforcement of laws of the state or any county or municipality thereof.

(d) All state and local law-enforcement agencies shall establish and maintain policies and procedures designed to eliminate racial profiling. Policies and procedures shall include the following:

(1) A prohibition on racial profiling;

(2) Independent procedures for receiving, investigating, and responding to complaints alleging racial profiling by law-enforcement officers;

(3) Procedures to discipline law-enforcement officers who engage in racial profiling;

(4) Procedures to insure the inclusion of training in the investigation of organized criminal enterprises and anti-racial profiling training in new officer training and to law-enforcement officers who have not received such training as certified by the Governor's committee; and

(5) Any other policies and procedures deemed necessary by state and local law-enforcement agencies to eliminate racial profiling.

§30B-3-11. Certified law-enforcement officers who are separated from their employment.

(a) The certification of a law-enforcement officer who is separated from his or her employment with a West Virginia law-enforcement agency, shall immediately become inactive and remain inactive until the subcommittee authorizes reactivation of the officer's certification pursuant to the procedure set forth in this section.

(b) Whenever a law-enforcement officer is separated from his or her employment with a West Virginia law-enforcement agency, the chief law-enforcement officer of that law-enforcement agency shall notify the subcommittee of the separation within 10 days of the date of separation. The notification of the separation from employment shall include reason or reasons the officer is no longer employed.

(c) A person whose law-enforcement certification has become inactive pursuant to subsection (a), may apply to the subcommittee to have his or her certification reactivated.

(d) At the time of his or her application, an applicant for the reactivation of his or her certification, whether for employment purposes or otherwise, shall provide the subcommittee with an authorization for the release of his or her personnel file from the law-enforcement agency with which they were most recently employed.

(e) Upon receipt of an application for reactivation, the subcommittee shall review the notification of separation received from the law-enforcement agency with which the applicant was most recently employed, and unless the notification indicates that the separation from employment was based on circumstances that would result in the applicant being ineligible for certification pursuant to §30B-3-5 of this code, the subcommittee shall grant the applicant a temporary reactivation of his or her certification until a final determination is made pursuant to subsection (i).

(f) The subcommittee may request that the law-enforcement agency from which the applicant was most recently separated, provide a copy of the applicants personnel file or other information relevant to the applicant's separation of employment.

(g) Upon receipt of a request by the subcommittee, the chief law-enforcement official of the law-enforcement agency with which the applicant was most recently employed, or his or her designee, shall, within eight calendar days, provide the subcommittee with a copy of the applicant's personnel file or other information relevant to the applicant's separation of employment.

(h) An applicant shall be entitled to a copy of all documents or other materials submitted to the subcommittee related to the application.

(i) Within 30 days of the receipt of the applicant's personnel file or any other information provided by the law-enforcement agency, the subcommittee shall review the information and issue a final decision.

(j) For the purpose of making a determination on an application for reactivation, the subcommittee is authorized to examine witnesses and to subpoena persons, books, records or documents from law-enforcement agencies in this state.

(k) An application for reactivation shall be approved unless the subcommittee affirmatively demonstrates, in writing, that the applicant has engaged in conduct that may result in his or her decertification. Where information available to the subcommittee indicates that the applicant has engaged in conduct that is in violation of this article or other laws or rules, the application for reactivation may not be granted.

(l) An applicant whose certification is not reactivated pursuant to a final decision of the subcommittee, may appeal the final decision of the subcommittee to the Governor's committee.

(m) Nothing in this section shall be construed to require the rehiring of a person by a law enforcement agency from which he or she was separated, even though the subcommittee authorizes his or her certification to be reactivated.

(n) A law-enforcement official, or appointing officer, or his or her designee, is immune from civil liability for providing to the subcommittee any information required or requested by this section.

(o) The provisions of this section apply only to those certified law-enforcement officers who are separated from employment with a West Virginia law enforcement agency after the effective date of this section during the 2011 Regular Session of the Legislature.

§30B-3-12. Law-enforcement officers to receive identification and certification to carry weapons off duty.

(a) Every person employed by a West Virginia state, county or municipal agency as a qualified law-enforcement officer within the meaning of 8 U. S. C. § 926B, shall receive an appropriate photo identification and certification of training required to carry a concealed firearm under the federal Law-Enforcement Officers Safety Act, 8 U. S. C. § 926B. No currently employed officer may be charged a fee for the photo identification and certification. This subsection does not prohibit a law-enforcement agency from controlling the use of any department-owned weapon.

(b) When a qualified law-enforcement officer, within the meaning of 8 U. S. C. § 926B, retires from, or otherwise honorably ceases employment with, a West Virginia state, county or municipal agency, the agency shall provide, at no charge, an appropriate photo identification to show the former employee’s status as an honorably separated or retired qualified retired law-enforcement officer within the meaning of 8 U. S. C. § 926C. Every West Virginia state, county or municipal law enforcement agency which conducts firearms qualification for current employees shall offer its honorably retired or separated former employees an opportunity to participate in such firearms qualification on an annual basis. The former employees shall provide, at their own expense, an appropriate firearm and ammunition and may be charged a fee not to exceed $25 for such training. Upon completion of the training and payment of any fee, the law-enforcement agency shall issue a new photo identification and certification which identifies the former employee as a “qualified retired law-enforcement officer” who has satisfied the annual training requirements of 8 U. S. C. § 926C.

(c) A law-enforcement agency may, in its sole discretion, allow a person who honorably retired or separated from another federal, state, county or municipal law-enforcement agency as a qualified law-enforcement officer within the meaning of 8 U. S. C. § 926B, the opportunity to participate in firearms qualification the agency provides its own former employees under subsection (b) of this section. Participants shall provide, at their own expense, an appropriate firearm and ammunition and may be charged a fee not to exceed $50 for such training. Upon completion of the training and payment of any fee, the law-enforcement agency shall issue a certificate which states that the retiree satisfied the training requirements of 8 U. S. C. § 926C.

§30B-3-13. Chief executive requirements.

Notwithstanding any provision of this code to the contrary, on or after July 1, 2018, any person appointed to serve as the chief executive of a municipal law-enforcement agency shall be a certified, or certifiable as, a law-enforcement officer as provided in §30A-14-5 of this code: Provided, That chief executives of municipal law-enforcement agencies employed prior to July 1, 208, who are not certified law-enforcement officers are exempt from this requirement for purposes of the position he or she holds as of that date.

ARTICLE 4. PRIVATE INVESTIGATIVE AND SECURITY SERVICES.

§30B-4-1. Definitions.

For the purposes of this article, except where the context clearly requires otherwise, the following terms shall have the meanings ascribed to them:

(1) “Applicant” means a person who files a completed application as required by §30B-4-3 and §30B-4-6 of this code to be licensed to conduct a private investigation business or a security guard business. When a person other than a natural person is applying for a license, the applicant shall be the person whose qualifications are presented to meet the experience or education requirements of §30B-4-2 and §30B-4-5 of this code.

(2) “Private investigation business” means the business of doing an investigation or investigations, for hire, reward or any other type of remuneration, to obtain information about:

(A) A crime which is alleged to have occurred or is threatened to occur;

(B) The habits, activities, conduct, movements, location, associations, transactions, reputation or character of any person;

(D) The location or recovery of lost or stolen property;

(E) The causes or origins of any fire, accident or injury to any property, real or personal, or to identify or locate any person or persons responsible for any such fire, accident or injury;

(F) The truth or falsity of any statement or representation, whether written or oral, or of any type of depiction;

(G) Any matters which constitute evidence or which may lead to the discovery of evidence to be used before any judicial or quasijudicial tribunal, including, but not limited to, civil or criminal courts, administrative agencies, investigating committees, or boards of award or arbitration;

(H) The whereabouts of any missing or kidnapped person;

(I) The affiliation, connection or relationship of any person with any corporation or other business entity, union, organization, society or association, or with any official, member or representative thereof;

(J) Any person or persons seeking employment in the place of any employee or employees who have quit work by reason of any strike; or

(K) The conduct, honesty, efficiency, loyalty or activities of employees, agents, contractors and subcontractors.

(3) “Firm license” means the license held by a person whom the Secretary of State has authorized to operate a private detective investigative firm or security guard firm after such person has filed and completed an application pursuant to the application requirements contained in sections three or six and has satisfied the eligibility requirements contained in sections two or five.

(4) “Person” means a natural person, a group of persons or individuals acting individually or as a group, a corporation, company, partnership, association, society, firm, or any business organization or entity organized or existing under the laws of this or any other state or country;

(5) (A) “Private detective” or “private investigator” means a person who is licensed pursuant to the provisions of this article to conduct a private investigation business, as defined in subdivision (2) of this section, and who conducts such business individually and independently from any private detective or investigative firm;

(B) “Private detective” or “private investigator” does not include:

(i) Any individual while acting as an adjuster for an insurance company or companies;

(ii) Individuals employed exclusively and regularly by only one employer in connection with the affairs of such employer only;

(iii) An officer or employee of the United States, or any law-enforcement officer of this state or any political subdivision thereof, while such officer or employee is engaged in the performance of his or her official duties or while working for a private employer in his or her off-duty hours;

(iv) Attorneys or counselors-at-law or any employee or representative of such attorney or counselor;

(v) Any corporation duly authorized by this state to operate central burglar or fire alarm protection business; or

(vii) Any investigator of crime appointed by a prosecuting attorney of a county pursuant to the provisions of §7-4-2 of this code.

(6) “Private detective or investigative firm” means any private detective agency or business or any investigative agency or business that is operated by a licensed private detective or investigator and which employs one or more other persons who actually conduct the private investigation business as defined in subdivision (2) of this section.

(7) (A) “Security guard” means a person who is licensed pursuant to the provisions of this article to conduct a security guard business, as defined in subdivision (8) of this section, and who conducts such business individually and independently from a security guard firm.

(B) “Security guard” does not include a person who is employed exclusively and regularly by only one employer in connection with the affairs of such employer only, or a person who is otherwise hereinafter excluded from the requirements of this article;

(8) (A) “Security guard business” means the business of furnishing, for hire, reward or other remuneration, watchmen, guards, bodyguards, private patrolmen or other persons, to:

(i) Protect property, real or personal, or any person;

(ii) To prevent theft, unlawful taking, misappropriation or concealment of goods, wares or merchandise, money, bonds, stocks, notes or other valuable documents, papers and articles of value; or

(iii) To furnish for hire, guard dogs or armored motor vehicle security services, in connection with the protection of persons or property;

(B) “Security guard business” does not include any activities or duties for which it is necessary to be trained and certified as a law-enforcement officer in accordance with the provisions of §30B-3-1 et seq. of this code.

(9) “Security guard firm” means any security guard agency or business that is operated by a licensed security guard and which employs one or more other persons who actually conduct a security guard business as defined in subdivision (8) of this section.

§30B-4-2. Eligibility requirements for license to conduct the private investigation business.

(a) In order to be eligible for any license to conduct the private investigation business, an applicant shall:

(1) Be at least 18 years of age;

(2) Be a citizen of the United States or an alien who is legally residing within the United States;

(3) Not have had any previous license to conduct a private investigation business or to conduct a security guard business revoked or any application for any such licenses or registrations denied by the appropriate governmental authority in this or any other state or territory;

(4) Not have been declared incompetent by reason of mental defect or disease by any court of competent jurisdiction unless a court has subsequently determined that the applicant's competency has been restored;

(5) Not suffer from habitual drunkenness or from narcotics addiction or dependence;

(6) Be of good moral character;

(7) Have a minimum of two years of experience, education or training in any one of the following areas, or some combination thereof:

(A) Course work that is relevant to the private investigation business at an accredited college or university;

(B) Employment as a member of any United States government investigative agency, employment as a member of a state or local law-enforcement agency or service as a sheriff;

(C) Employment by a licensed private investigative or detective agency for the purpose of conducting the private investigation business;

(D) Service as a magistrate in this state; or

(E) Any other substantially equivalent training or experience;

(8) Not have been convicted of a felony in this state or any other state or territory;

(9) Not have been convicted of any of the following:

(A) Illegally using, carrying or possessing a pistol or other dangerous weapon;

(B) Making or possessing burglar's instruments;

(D) Entering a building unlawfully;

(E) Aiding an inmate's escape from prison;

(F) Possessing or distributing illicit drugs;

(G) Any misdemeanor involving moral turpitude or for which dishonesty of character is a necessary element; and

(10) Not have violated any provision of §30B-4-8 of this code.

The provisions of this section shall not prevent the issuance of a license to any person who, subsequent to his or her conviction, shall have received an executive pardon therefor, removing this disability.

(b) Any person who qualifies for a private investigator's license shall also be qualified to conduct security guard business upon notifying the Secretary of State in writing that the person will be conducting such business.

§30B-4-3. Application requirements for a license to conduct the private investigation business.

(a) To be licensed to be a private detective, a private investigator or to operate a private detective or investigative firm, each applicant shall complete and file a written application, under oath, with the Secretary of State and in such form as the secretary may prescribe.

(b) On the application each applicant shall provide the following information: The applicant's name, birth date, citizenship, physical description, military service, current residence, residences for the preceding seven years, qualifying education or experience, the location of each of his or her offices in this state and any other information requested by the Secretary of State in order to comply with the requirements of this article.

(c) In the case of a corporation that is seeking a firm license, the application shall be signed by the president, and verified by the secretary or treasurer of such corporation and shall specify the name of the corporation, the date and place of its incorporation, the names and titles of all officers, the location of its principal place of business, and the name of the city, town or village, stating the street and number, and otherwise such apt description as will reasonably indicate the location. If the corporation has been incorporated in a state other than West Virginia, a certificate of good standing from the state of incorporation must accompany the application. This information must be provided in addition to that required to be provided by the applicant.

(d) The applicant shall provide:

(1) Information in the application about whether the applicant has ever been arrested for or convicted of any crime or wrongs, either done or threatened, against the government of the United States;

(2) Information about offenses against the laws of West Virginia or any state; and

(3) Any facts as may be required by the Secretary of State to show the good character, competency and integrity of the applicant.

To qualify for a firm license, the applicant shall provide such information for each person who will be authorized to conduct the private investigation business and for each officer, member or partner of the firm.

(e) As part of the application, each applicant shall give the Secretary of State permission to review the records held by the division of public safety for any convictions that may be on record for the applicant.

(f) For each applicant for a license and for each officer, member and partner of the firm applying for a license, the application shall be accompanied by one recent full-face photograph and one complete set of the person's fingerprints.

(g) For each applicant, the application shall be accompanied by:

(1) Character references from at least five reputable citizens. Each reference must have known the applicant for at least five years preceding the application. No reference may be connected to the applicant by blood or marriage. All references must have been written for the purpose of the application for a license to conduct the private investigation business; and

(2) A nonrefundable application processing service charge of $50, which shall be payable to the Secretary of State to offset the cost of license review and criminal investigation background report from the department of public safety, along with a license fee of $100 if the applicant is an individual, or $200 if the applicant is a firm, or $500 if the applicant is a nonresident of West Virginia or a foreign corporation or business entity. The license fee shall be deposited to the General Revenue Fund, and shall be refunded only if the license is denied.

(h) All applicants for private detective or private investigator licenses or for private investigation firm licenses shall file in the office of Secretary of State a surety bond. Such bond shall:

(1) Be in the sum of $2,500 and conditioned upon the faithful and honest conduct of such business by such applicant;

(2) Be written by a company recognized and approved by the Insurance Commissioner of West Virginia and approved by the Attorney General of West Virginia with respect to its form;

(3) Be in favor of the State of West Virginia for any person who is damaged by any violation of this article. The bond must also be in favor of any person damaged by such a violation.

(i) Any person claiming against the bond required by subsection (h) of this section for a violation of this article may maintain an action at law against any licensed individual or firm and against the surety. The surety shall be liable only for damages awarded under §30B-4-12 of this code and not the punitive damages permitted under that section. The aggregate liability of the surety to all persons damaged by a person or firm licensed under this article may not exceed the amount of the bond.

§30B-4-4. Requirements for employees conducting the private investigation business under a firm license.

(a) Any person who has a private detective firm or investigative firm license shall be responsible for supervising any employee or other individual who conducts the private investigation business under the authority of such person's firm license, regardless of whether such employee or other individual receives compensation for conducting such business. Such supervision shall include providing any education or training that is reasonably necessary to ensure compliance with the requirements of this article.

(b) Any employee or individual who conducts the private investigation business under the authority of a private detective or investigative firm license shall:

(1) Satisfy the requirements of §30B-4-2 of this code, except that such person need not satisfy the education and training requirements contained in subdivision (7) of said section; and

(2) Authorize the Secretary of State to review the records held by the division of public safety for any convictions that may be on record for such employee or individual.

(c) A holder of a private detective or investigative firm license is prohibited from authorizing any individual or employee to conduct a private investigation business if such individual does not comply with the requirements of this section.

(d) For every employee or individual who conducts the business of private investigation under the authority of a private detective or investigative firm license, the holder of such license must maintain a recent full-face photograph and one complete set of fingerprints on file at such firm's central business location in this state. Upon request, the holder of the firm license must release the photographs and fingerprints to the Secretary of State.

§30B-4-5. Eligibility requirements to be licensed to conduct security guard business.

(a) In order to be eligible for any license to conduct security guard business, an applicant shall:

(1) Be at least 18 years of age;

(2) Be a citizen of the United States or an alien who is legally residing within the United States;

(3) Not have had any previous license to conduct security guard business or to conduct the private investigation business revoked or any application for any such licenses or registrations denied by the appropriate governmental authority in this or any other state or territory;

(4) Not have been declared incompetent by reason of mental defect or disease by any court of competent jurisdiction unless said court has subsequently determined that the applicant's competency has been restored;

(5) Not suffer from habitual drunkenness or from narcotics addiction or dependence;

(6) Be of good moral character;

(7) Have had at least one year verified, full time employment conducting security guard business or conducting the private investigation business working for a licensed firm or have one year of substantially equivalent training or experience;

(8) Not have been convicted of a felony in this state or any other state or territory;

(9) Not have been convicted of any of the following:

(A) Illegally using, carrying or possessing a pistol or other dangerous weapon;

(B) Making or possessing burglar's instruments;

(D) Entering a building unlawfully;

(E) Aiding an inmate's escape from prison;

(F) Possessing or distributing illicit drugs;

(G) Any misdemeanor involving moral turpitude or for which dishonesty of character is a necessary element; and

(10) Not having violated any provision of §30B-4-8 of this code.

§30B-4-6. Application requirements for a license to conduct security guard business.

(a) To be licensed as a security guard or to operate a security guard firm, each applicant shall complete and file a written application, under oath, with the Secretary of State and in such form as the secretary may prescribe.

(b) On the application, each applicant shall provide the following information: The applicant's name, birth date, citizenship, physical description, military service, current residence, residences for the preceding seven years, qualifying education or experience, the location of each of his or her offices in this state and any other information requested by the Secretary of State in order to comply with the requirements of this article.

(c) In the case of a corporation that is seeking a firm license, the application shall be signed by the president, and verified by the secretary or treasurer of such corporation and shall specify the name of the corporation, the date and place of its incorporation, the names and titles of all officers, the location of its principal place of business, and the name of the city, town or village, stating the street and number, and otherwise such apt description as will reasonably indicate the location. If the corporation has been incorporated in a state other than West Virginia, a certificate of good standing from the state of incorporation must accompany the application. This information shall be provided in addition to that required to be provided the applicant.

(d) The applicant shall provide:

(1) Information in the application about whether the applicant has ever been arrested for or convicted of any crime or wrongs, either done or threatened, against the government of the United States;

(2) Information about offenses against the laws of West Virginia or any state; and

(3) Any facts as may be required by the Secretary of State to show the good character, competency and integrity of the applicant.

To qualify for a firm license, the applicant shall provide such information for each person who would be authorized to conduct security guard business under the applicant's firm license and for each officer, member or partner in the firm.

(e) As part of the application, each applicant shall give the Secretary of State permission to review the records held by the department of public safety for any convictions that may be on record for the applicant.

(g) For each applicant, the application shall be accompanied by:

(h) All applicants for security guard licenses or security guard firm licenses shall file in the office of Secretary of State a surety bond. Such bond shall:

(1) Be in the sum of $2,500 and conditioned upon the faithful and honest conduct of such business by such applicant;

(2) Be written by a company recognized and approved by the Insurance Commissioner of West Virginia and approved by the Attorney General of West Virginia with respect to its form;

(3) Be in favor of the State of West Virginia for any person who is damaged by any violation of this article. The bond must also be in favor of any person damaged by such a violation.

§30B-4-7. Requirements for employees conducting security guard business under a firm license.

(a) Any person who has a security guard firm license shall be responsible for supervising any employee or other individual who conducts security guard business under the authority of such person's firm license, regardless of whether such employee or other individual receives compensation for conducting such business. Such supervision shall include providing any education or training that is reasonably necessary to ensure compliance with the requirements of this article.

(b) Any employee or individual who conducts security guard business under the authority of a firm license shall:

(1) Satisfy the requirements of §30B-4-5 of this code, except that such person need not satisfy the prior employment requirements contained in subdivision (7) of said section; and

(2) Authorize the Secretary of State to review the records held by the department of public safety for any convictions that may be on record for such employee or individual.

(c) A holder of a security guard firm license is prohibited from authorizing any individual or employee to conduct security guard business if such individual does not comply with the requirements of this section.

(d) For every employee or individual who conducts security guard business under the authority of a security guard firm license, the holder of such license must maintain a recent full-face photograph and one complete set of fingerprints on file at such firm's central business location in this state. Upon request, the holder of the firm license must release the photographs and fingerprints to the Secretary of State.

§30B-4-8. Prohibitions.

(a) No person shall engage in the private investigation business or security guard business without having first obtained from the Secretary of State a license to conduct such business.

(b) All licensed persons, including private detectives, private investigators, security guards, private detective or investigative firms and security guard firms, are prohibited from transferring their licenses to an unlicensed person, firm or agency. This prohibition includes contracting or subcontracting with an unlicensed person, firm or agency to conduct the private investigation business or security guard business.

(1) Employ any individual to perform the duties of an employee who has not first complied with all provisions of this article and the adopted regulations;

(2) Falsely represent that a person is the holder of a valid license;

(3) Make a false report with respect to any matter with which he or she is employed;

(4) Divulge any information acquired from or for a client to persons other than the client or his or her authorized agent without express authorization to do so or unless required by law;

(5) Accept employment which includes obtaining information intended for illegal purposes;

(6) Authorize or permit another person to violate any provision of this article or any rule of the Secretary of State adopted for this article.

§30B-4-9. Renewal of license.

A license granted under the provisions of this article shall be in effect for one year from the date the certificate of license is issued and may be renewed for a period of one year by the Secretary of State upon application, in such form as the secretary may prescribe, and upon payment of the fee and the filing of the surety bond. At the time of applying for renewal of a license, the Secretary of State may require any person to provide additional information to reflect any changes in the original application or any previous renewal.

§30B-4-10. Authority of Secretary of State.

(a) When the Secretary of State is satisfied as to the good character, competency and integrity of an applicant, of all employees or individuals conducting the private investigation business or security guard services under a firm license and, if the applicant is a firm, of each member, officer or partner, he or she shall issue and deliver to the applicant a certificate of license. Each license issued shall be for a period of one year and is revocable at all times for cause shown pursuant to subsection (b) of this section or any rules promulgated pursuant thereto.

(b) The Secretary of State may propose for promulgation in accordance with the provisions of §29A-3-1 et seq. of this code legislative rules necessary for the administration and enforcement of this article and for the issuance, suspension and revocation of licenses issued under the provisions of this article. The Secretary of State shall afford any applicant an opportunity to be heard in person or by counsel when a determination is made to deny, revoke or suspend an applicant’s license or application for license, including a renewal of a license. The applicant has 15 days from the date of receiving written notice of the Secretary of State’s adverse determination to request a hearing on the matter of denial, suspension or revocation. The action of the Secretary of State in granting, renewing, or in refusing to grant or to renew, a license is subject to review by the circuit court of Kanawha County or other court of competent jurisdiction.

(c) At any hearing before the Secretary of State to challenge an adverse determination by the Secretary of State on the matter of a denial, suspension or revocation of a license, if the adverse determination is based upon a conviction for a crime which would bar licensure under the provisions of this article, the hearing shall be an identity hearing only and the sole issue which may be contested is whether the person whose application is denied or whose license is suspended or revoked is the same person convicted of the crime.

(d) The Secretary of State shall require each applicant to submit to a state and national criminal history record check, as set forth in this subsection:

(1) The criminal history record check shall be based on fingerprints submitted to the West Virginia State Police or its assigned agent for forwarding to the Federal Bureau of Investigation.

(2) The applicant shall meet all requirements necessary to accomplish the state and national criminal history record check, including:

(A) Submitting fingerprints for the purposes set forth in this section; and

(B) Authorizing the Secretary of State, the West Virginia State Police and the Federal Bureau of Investigation to use all records submitted and produced for the purpose of screening the applicant for a license.

(3) The results of the state and national criminal history record check may not be released to or by a private entity except:

(A) To the individual who is the subject of the criminal history record check;

(B) With the written authorization of the individual who is the subject of the criminal history record check; or

(4) The criminal history record check and related records are not public records for the purposes of Chapter 29B of this code.

(5) The applicant shall ensure that the criminal history record check is completed as soon as possible after the date of the original application for registration.

(6) The applicant shall pay the actual costs of the fingerprinting and criminal history record check.

§30B-4-11. Penalties.

(a) Any person, licensed or unlicensed, who violates any of the provisions of this article is guilty of a misdemeanor and, upon conviction, shall be fined not less than $100 nor more than $5,000 or be confined in jail for not more than one year, or both.

(b) In the case of a violation of subsection (a) of section eight, a fine is assessed by the court for each day that an individual conducted the private investigation business or security guard business. In the case of a firm license, the fine is based on each day that the private investigative or security services were provided multiplied by the number of unauthorized persons providing those services.

§30B-4-12. Action for damages.

Any individual who is injured by a violation of this article may bring an action for recovery of damages, including punitive damages plus reasonable attorney's fees and court costs.

§30B-4-13. Disposition of fees.

All fees collected hereunder by the Secretary of State shall be paid to the treasurer of the state and deposited in the General Revenue Fund.

ARTICLE 5. THE REAL ESTATE APPRAISER LICENSING AND CERTIFICATION ACT.

§30B-5-1. Real estate appraiser license required; exceptions.

(a) It is unlawful for any person, for compensation or valuable consideration, to prepare a valuation appraisal or a valuation appraisal report relating to real estate or real property in this state without first being licensed or certified as provided in this article. This section shall not be construed to apply to persons who do not render significant professional assistance in arriving at a real estate appraisal analysis, opinion or conclusion. Nothing in this article may be construed to prohibit any person who is licensed to practice in this state under any other law from engaging in the practice for which he or she is licensed.

(b) No person other than a person licensed or certified under this article may use the title of licensed appraiser or certified appraiser or any title, designation or abbreviation likely to create the impression that the person is licensed or certified by the state.

(1) A real estate broker or salesperson licensed by this state who, in the ordinary course of his or her business, gives an opinion to a potential seller or third party as to the recommended listing price of real estate or an opinion to a potential purchaser or third party as to the recommended purchase price of real estate, when this opinion as to the listing price or the purchase price is not to be referred to as an appraisal, no opinion is rendered as to the value of the real estate and no fee is charged;

(2) A casual or drive-by inspection of real estate in connection with a consumer loan secured by the real estate, when the inspection is not referred to as an appraisal, no opinion is rendered as to the value of the real estate and no fee is charged for the inspection;

(3) An employee who renders an opinion as to the value of real estate for his or her full-time employer, for the employer's internal use only and performed in the regular course of the employee's position, when the opinion is not referred to as an appraisal and no fee is charged;

(4) Appraisals of personal property, including, but not limited to, jewelry, household furnishings, vehicles and manufactured homes not attached to real estate;

(5) Any officer or employee of the United States, or of the State of West Virginia or a political subdivision thereof, when the employee or officer is performing his or her official duties: Provided, That such individual does not furnish advisory service for compensation to the public or act as an independent contracting party in West Virginia or any subdivision thereof in connection with the appraisal of real estate or real property: Provided, however, That this exception shall not apply with respect to federally related transactions as defined in Title XI of the United States Code, entitled “Financial Institutions Reform, Recovery, and Enforcement Act of 1989”; or

(6) Any evaluation of the value of real estate serving as collateral for a loan made by a financial institution insured by the federal deposit insurance corporation: Provided, That: (A) The amount of the loan is equal to or less than $250,000; (B) the evaluation is used solely by the lender in its records to document the collateral value; (C) the evaluation clearly indicates on its face that it is for the lender's internal use only; (D) the evaluation is not labeled an appraisal; and (E) the evaluation is on a form approved by the board. Individuals performing these evaluations may be compensated for their services. The lender shall notify its customer if it intends to use an unlicensed evaluator and give the customer the opportunity to elect an evaluation, by a certified or licensed appraiser, the cost of which will be paid as agreed between the lender and the customer.

§30B-5-2. Short title.

This article is known and may be cited as the “Real Estate Appraiser Licensing and Certification Act.”

§30B-5-3. Definitions.

As used in this article, the following terms have the following meanings:

(a) “Appraisal” means an analysis, opinion or conclusion prepared by a real estate appraiser relating to the nature, quality, value or utility of specified interests in, or aspects of, identified real estate or identified real property. An appraisal may be classified by the nature of the assignment as a valuation appraisal, an analysis assignment or a review assignment.

(b) “Analysis assignment” means an analysis, opinion or conclusion prepared by a real estate appraiser that relates to the nature, quality or utility of identified real estate or identified real property.

(c) “Appraisal foundation” means the appraisal foundation established on November 30, 1987, as a not-for-profit corporation under the laws of Illinois.

(d) “Appraisal report” means any communication, written or oral, of an appraisal. An appraisal report may be classified by the nature of the assignment as a “valuation report”, “analysis report” or “review report”. For the purposes of this article, the testimony of an appraiser dealing with the appraiser's analyses, conclusions or opinions concerning identified real estate or identified real property is considered an oral appraisal report.

(e) “Board” means the real estate appraiser licensing and certification board established by the provisions of this article.

(f) “Certified appraisal report” means a written appraisal report that is certified by a state licensed or certified real estate appraiser. When a real estate appraiser identifies an appraisal report as “certified”, the real estate appraiser must indicate the type of licensure or certification he or she holds. By certifying an appraisal report, a state licensed residential real estate appraiser, a state certified general real estate appraiser or a state certified residential real estate appraiser, represents to the public that the report meets the appraisal standards established by this article.

(g) “Certified real estate appraiser” means a person who holds a current, valid certification as a state certified residential real estate appraiser or a state certified general real estate appraiser issued to him or her under the provisions of this article.

(h) “Complex appraisal” means an appraisal that: (1) For nonresidential property, relies on all three approaches to value, being the cost approach, the income approach and the sales comparison approach, or does not have the characteristics of a noncomplex appraisal; and (2) for residential property, relies to any significant degree on at least two of the three approaches to value, with one approach being the sales comparison approach, or does not have the characteristics of a noncomplex appraisal.

(i) “Cost approach” means an approach to valuing real estate which requires an appraiser to: (1) Develop an opinion of site value by an appropriate appraisal method or technique; (2) analyze comparable cost data as are available to estimate the cost new of the improvements if any; and (3) analyze comparable data as are available to estimate the difference between cost new and the present worth of the improvements, also called accrued depreciation.

(j) “Income approach” means an approach to valuing real estate which requires an appraiser to: (1) Analyze comparable rental data as are available to estimate the market rental of the property; (2) analyze comparable operating expense data as are available to estimate the operating expenses of the property; (3) analyze comparable data as are available to estimate rates of capitalization or rates of discount; and (4) base projections of future rent and expenses on reasonably clear and appropriate evidence.

(k) “Licensed real estate appraiser” means a person who holds a current, valid license as a state licensed residential real estate appraiser issued to him or her under the provisions of this article.

(l) “Noncomplex appraisal” means an appraisal for which: (1) There is an active market of essentially identical properties; (2) adequate data is available to the appraiser; (3) adjustments to comparable sales are not large in the aggregate, specifically not exceeding the trading range found in the market of essentially identical properties; and (4) for residential properties, the contract sales price falls within the market norm or median sales price for homes or lots within the same area.

(m) “Real estate” means an identified parcel or tract of land, including improvements, if any.

(n) “Real estate appraisal activity” means the act or process of making an appraisal of real estate or real property and preparing an appraisal report.

(o) “Real estate appraiser” means a person who engages in real estate appraisal activity for a fee or other valuable consideration.

(p) “Real property interests” means one or more defined interests, benefits or rights inherent in the ownership of real estate.

(q) “Review assignment” means an analysis, opinion or conclusion prepared by a real estate appraiser that forms an opinion as to the adequacy and appropriateness of a valuation appraisal or an analysis assignment.

(r) “Sales comparison approach” means an approach to valuing real estate which requires an appraiser to analyze such comparable sales data as are available to indicate a value conclusion.

(s) “Valuation appraisal” means an analysis, opinion or conclusion prepared by a real estate appraiser that estimates the value of an identified parcel of real estate or identified real property at a particular point in time.

§30B-5-4. Classifications of licensure and certification; authority of appraisers; classification and license or certificate number required on all documents; corporations.

(a) The three classifications of real estate appraisers are state licensed residential real estate appraiser, state certified residential real estate appraiser and state certified general real estate appraiser.

(b) A state licensed residential real estate appraiser is authorized to conduct appraisals of: (1) Complex residential real estate of one to four units having a value of less than $250,000; (2) noncomplex residential real estate of one to four units having a value of less than $1 million; and (3) nonresidential real estate having a value of less than $100,000.

(c) A state certified residential real estate appraiser is authorized to conduct appraisals of residential real estate of one to four units without regard to value or complexity, and nonresidential real estate when the value is less than $100,000.

(d) A state certified general real estate appraiser is authorized to conduct appraisals of all types of real estate.

(e) The board is authorized to establish by legislative rule other classifications of appraiser licensing not prohibited by applicable federal law.

(f) An appraiser shall indicate his or her classification and license or certificate number, on all appraisals, statements of qualification, contracts and other instruments, including advertising media.

(g) A license or certificate may not be issued under the provisions of this article to a corporation, partnership, firm or group.

(h) Nothing contained in this article prohibits any person licensed or certified under this article from engaging in the practice of real estate appraising as a professional corporation in accordance with the provisions of the professional service corporation act of this state.

§30B-5-5. Reciprocal credentialing.

The board shall issue a reciprocal license or certification to an applicant from another state if the applicant holds a valid license or certification from a state whose licensing and certification program:

(1) Is in compliance with the provisions of Title XI of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 [12 U.S.C. 3331-3351] as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010; and

(2) That has credentialing requirements that meet or exceed those of West Virginia.

§30B-5-6. Board created; appointments, qualifications, terms, oath, removal of members; quorum; meetings; disqualification from participation; compensation; records; employing staff.

(a) The West Virginia real estate appraiser licensing and certification board, which consists of nine members appointed by the Governor with the advice and consent of the Senate, is continued.

(1) Each member shall be a resident of the state of West Virginia, except the appraisal management company representative is not required to be a resident of West Virginia.

(2) Four members shall be certified real estate appraisers having at least five years' experience in appraisal as a principal line of work immediately preceding their appointment, and shall remain certified real estate appraisers throughout their terms.

(3) Two members shall have at least five years' experience in real estate lending as employees of financial institutions.

(4) Two members may not be engaged in the practice of real estate appraisal, real estate brokerage or sales or have any financial interest in these practices.

(5) One member shall be a representative from an appraisal management company registered under the provisions of §30B-6-1 et seq. of this code.

(6) No member of the board may concurrently be a member of the West Virginia real estate commission.

(7) Not more than two appraiser members may be appointed from each congressional district.

(b) Members will be appointed for three-year terms, which are staggered in accordance with the initial appointments under prior enactment of this act.

(1) No member may serve for more than three consecutive terms.

(2) Before entering upon the performance of his or her duties, each member shall subscribe to the oath required by section five, article four of the constitution of this state.

(3) The Governor shall, within 60 days following the occurrence of a vacancy on the board, fill the vacancy by appointing a person who meets the requirements of this section for the unexpired term.

(4) Any member may be removed by the Governor in case of incompetency, neglect of duty, gross immorality or malfeasance in office.

(d) A majority of the members of the board constitutes a quorum.

(e) The board shall meet at least once in each calendar quarter on a date fixed by the board.

(1) The board may, upon its own motion, or shall upon the written request of three members of the board, call additional meetings of the board upon at least 24 hours' notice.

(2) No member may participate in a proceeding before the board to which a corporation, partnership or unincorporated association is a party, and of which he or she is or was at any time in the preceding 12 months a director, officer, owner, partner, employee, member or stockholder.

(3) A member may disqualify himself or herself from participation in a proceeding for any other cause the member considers sufficient.

(f) The appointed members will receive compensation and expense reimbursement in accordance with the provisions of §30B-1-17 of this code.

(g) The board may employ staff as necessary to perform the functions of the board, to be paid out of the board fund created by the provisions of this article. Persons employed by any real estate agent, broker, appraiser or lender, or by any partnership, corporation, association or group engaged in any real estate business, may not be employed by the board.

§30B-5-7. General powers and duties.

The board shall:

(a) Define by rule the type of educational experience, appraisal experience and equivalent experience that will meet the statutory requirements of this article;

(b) Establish examination specifications as prescribed herein and provide for appropriate examinations;

(c) Establish registration requirements and procedures for appraisal management companies under the provisions of §30B-6-1 et seq. of this code;

(d) Approve or disapprove applications for certification and licensure;

(e) Approve or disapprove applications for registration under the provisions of §30B-6-1 et seq. of this code;

(f) Define by rule continuing education requirements for the renewal of certifications and licenses;

(g) Censure, suspend or revoke licenses and certification as provided in this article;

(h) Suspend or revoke registrations under the provisions of §30B-6-1 et seq. of this code;

(i) Hold meetings, hearings and examinations;

(j) Establish procedures for submitting, approving and disapproving applications;

(k) Maintain an accurate registry of the names, addresses and contact information of all persons certified or issued a license to practice under this article;

(l) Maintain an accurate registry of the names, addresses and contact information of all persons and firms registered under the provisions of §30B-6-1 et seq. of this code;

(m) Maintain accurate records on applicants and licensed or certified real estate appraisers;

(n) Maintain accurate records on applicants under the provisions of §30B-6-1 et seq. of this code;

(o) Issue to each licensed or certified real estate appraiser a pocket card with the appraiser's name and license or certification number. Pocket cards are the property of the State of West Virginia and, upon suspension or revocation of the license to practice pursuant to this article, will be returned immediately to the board;

(p) Issue registration numbers to registrants under the provisions of §30B-6-1 et seq. of this code;

(q) Deposit all fees collected by the board to the credit of the West Virginia appraiser licensing and certification board fund established in the office of the State Treasurer. The board shall disburse moneys from the account to pay the cost of board operation. Disbursements from the account may not exceed the moneys credited to it;

(r) Keep records and make reports as required by §30B-1-1 et seq. of this code; and

(s) Perform any other functions and duties necessary to carry out the provisions of this article and §30B-6-1 et seq. of this code.

§30B-5-8. Board fund; disposition of funds.

(a) The West Virginia appraiser licensing and certification board fund established in the office of the State Treasurer is continued.

(b) The disposition of all funds received by the board shall be governed by the provisions of §30B-1-16 of this code.

§30B-5-9. Rulemaking.

(a) The board may propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code, to provide for:

(1) Licensure and certification requirements, including requirements for applications, examinations, reciprocity, temporary permits, apprentice permits and reinstatement;

(2) Registration requirements, including delinquent and expired registrations, for appraisal management companies under the provisions of §30B-6-1 et seq. of this code;

(3) Fees for licenses, renewals of licenses and other services provided by the board;

(4) A fee schedule for registrations of appraisal management companies under the provisions of §30B-6-1 et seq. of this code;

(5) Surety bond requirements for registrations of appraisal management companies under the provisions of §30B-6-1 et seq. of this code;

(6) Requirements and procedures for appraisal management companies to maintain records under the provisions of §30B-6-1 et seq. of this code;

(7) Experience, education and continuing education requirements and approval of courses; and

(8) Any other purpose to carry out the requirements of this article and §30B-6-1 et seq. of this code.

(b) The rule governing appraiser qualifications must include requirements which meet or exceed the education, experience and examination requirements issued or endorsed by the appraisal qualifications board of the appraisal foundation.

(c) Any rules in effect on the effective date of the reenactment of this section during the regular session of the legislature in 2013 will remain in effect until amended, modified, repealed or replaced, except that references to provisions of former enactments of this act are interpreted to mean provisions of this article.

§30B-5-10. Civil liability for board members; liability limitations of professionals reporting to board.

(a) Members of the board will be immune from individual civil liability for actions taken in good faith and without malice, within the scope of their duties as board members.

(b) Any person licensed or certified by this board who reports or otherwise provides evidence of violations of this article or the board's rules by another person engaging in real estate appraisal activity to the board, is not liable for making the report if it is made without malice and in the reasonable belief that the report is warranted by the facts known to him or her at the time.

§30B-5-11. Applications for license or certification; renewals.

(a) An individual who desires to engage in real estate appraisal activity in this state shall make application for a license, in writing, in a form as the board may prescribe. In addition to any other information required, the applicant's social security number will be recorded on the application.

(b) To assist the board in determining whether grounds exist to deny the issuance of a license to an applicant, the board may require the fingerprinting of every applicant for an original license.

(c) The payment of the appropriate fee must accompany all applications for original certification and renewal of certification and all applications to take an examination.

(d) At the time of filing an application for original certification or for renewal of certification, each applicant shall sign a pledge to comply with the standards of professional appraisal practice and the ethical rules to be observed by an appraiser. Each applicant shall also certify that he or she understands the types of misconduct, as set forth in this article, for which disciplinary proceedings may be initiated.

(e) To obtain a renewal of license or certification under this article, the holder of a current license or certification shall make application and pay the prescribed fee to the board no earlier than 120 days nor later than 30 days prior to the expiration date of the current license or certification. Each application for renewal must be accompanied by evidence in the form prescribed by the board that the applicant has completed the continuing education requirements for renewal specified in this article and the board's rules.

(f) If the board determines that an applicant for renewal has failed to meet the requirements for renewal of license or certification through mistake, misunderstanding, or circumstances beyond the control of the applicant, the board may extend the term of the applicant's license or certification for a period not to exceed six months upon payment by the applicant of a prescribed fee for the extension. If the applicant for renewal of license or certification satisfies the requirements for renewal during the extension period, the beginning date of his or her renewal license or certificate shall be the day following the expiration of the certificate previously held by the applicant.

(g) If a state licensed or certified real estate appraiser under this article fails to renew his or her license or certification prior to its expiration or within any period of extension granted by the board pursuant to this article, the applicant may obtain a renewal of his or her license or certification by satisfying all of the requirements for renewal and filing an application for renewal, accompanied by a late renewal fee, within two years of the date that his or her certification expired.

(h) The board may deny the issuance or renewal of a license or certification for any reason enumerated in this article or in the rules of the board, or for any reason for which it may refuse an initial license or certification.

§30B-5-12. Refusal to issue or renew license or certification; suspension or revocation; grounds for disciplinary action.

(a) The following acts or omissions are grounds for disciplinary action, and the board may refuse to issue or renew a license or certification, or after issuance may suspend or revoke a license or certification or impose disciplinary sanctions for:

(1) Procuring or attempting to procure license or certification under this article by knowingly making a false statement, submitting false information or making a material misrepresentation in an application filed with the board, or procuring or attempting to procure a license or certification through fraud or misrepresentation;

(2) Paying money other than the fees provided for by this article to any member or employee of the board to procure a license or certification under this article;

(3) An act or omission in the practice of real estate appraising which constitutes dishonesty, fraud or misrepresentation with the intent to substantially benefit the licensee or another person or with the intent to substantially injure another person;

(4) Entry of a final civil or criminal judgment against a licensee on grounds of fraud, misrepresentation or deceit in the making of an appraisal of real estate;

(5) Conviction, including a conviction based upon a plea of guilty or nolo contender, of a crime which is substantially related to the qualifications, functions or duties of a person developing real estate appraisals and communicating real estate appraisals to others: Provided, That any consideration of prior criminal convictions shall be governed by the provisions of W.Va. Code §30-1-22;

(6) Making a false or misleading statement in that portion of a written appraisal report that deals with professional qualifications or in any testimony concerning professional qualifications;

(7) Violation of any section of this article, or any rule of the board;

(8) Violation of the confidential nature of governmental records to which a licensee gained access through employment or engagement as an appraiser by a governmental agency;

(9) Acceptance of a fee that is or was contingent upon the appraiser reporting a predetermined analysis, opinion, or conclusion, or is or was contingent upon the analysis, opinion, conclusion or valuation reached, or upon the consequences resulting from the appraisal assignment;

(10) Failing to meet the minimum qualifications for state licensure or certification established by or pursuant to this article; or

(11) Failing or refusing without good cause to exercise reasonable diligence, or negligence or incompetence, in developing an appraisal, preparing an appraisal report, or communicating an appraisal.

(b) Every person licensed or certified by the board has a duty to report to the board in a timely manner any known or observed violation of this article or the board's rules by any other person licensed or certified by the board.

§30B-5-13. Disciplinary proceedings.

(a) The board may, upon its own motion, and shall, upon the written complaint of any aggrieved person, cause an investigation to be made with respect to an alleged violation of this article or the rules of the board.

(b) The board may revoke, suspend or refuse to renew the license or certificate or otherwise discipline an appraiser, or deny an application, for any of the acts or omissions set forth in this article or in the rules of the board.

(c) If an investigation indicates that an appraiser licensed or certified by the board has violated a law or rule, the board shall serve a formal complaint upon the appraiser. The accused party is required to file an answer within 20 days of the date of service.

(d) In responding to a complaint, the accused party may admit the allegations of the complaint, deny the allegations of the complaint or otherwise plead. Failure to make a timely response shall be considered an admission of the allegations of the complaint.

(e) The board may make informal disposition of the matter, including entering into a consent agreement, or taking one or more of the disciplinary actions set forth in the board's rules.

(f) In a disciplinary proceeding based upon a civil judgment, the licensee shall be afforded an opportunity to present matters in mitigation and extenuation but may not collaterally attack the civil judgment.

§30B-5-14. Hearings; orders; entry of order without notice and hearing; judicial review; appeals to Supreme Court of Appeals.

(a) Subject to the provisions of subsection (c) of this section, the board shall provide notice and hearing to the accused party in advance of the entry of any order. The hearing and the administrative procedures are governed by the provisions of §29A-5-1 et seq. of this code and the board's rules, and will be held at a time and place set by the board, but may not be held less than 30 or more than 90 days after the notice is given. A hearing may be continued by the board on its own motion or for good cause shown. At any hearing a party may represent himself or herself, or be represented by an attorney admitted to practice before any circuit court of this state.

(b) The board has the power and authority to issue subpoenas and subpoenas duces tecum, administer oaths and examine any person under oath in connection with any subject relating to duties imposed upon or powers vested in the board.

(c) If the board finds that extraordinary circumstances exist which require immediate action, it may without notice or hearing enter an order taking any action permitted by this article. Immediately upon the entry of the order, certified copies shall be served upon all persons affected, who upon demand are entitled to a hearing at the earliest practicable time.

(d) If, at the conclusion of the hearing, the board determines that an appraiser has violated any of the provisions of this article or the board's rules, it shall prepare a formal decision containing findings of fact, conclusions of law, and disciplinary actions to be taken.

(e) The board may elect to have an administrative law judge or hearing examiner conduct the hearing. If the board makes this election, the administrative law judge or hearing examiner shall present a decision containing recommended findings of fact, conclusions of law, and appropriate disciplinary actions to be taken. The board may accept, reject or modify the decision of the administrative law judge or hearing examiner.

(f) Any party adversely affected by a final order or decision made by the board after a hearing is entitled to judicial review as provided in §29A-5-1 et seq. of this code.

(g) Any party adversely affected by a final judgment of a circuit court following judicial review may seek review by appeal to the Supreme Court of Appeals in the manner provided in §29A-6-1 of this code.

§30B-5-15. Penalties.

(a) Any person engaging in real estate appraisal activity in this state who is not licensed under this article is guilty of a misdemeanor and, upon conviction, shall be fined not less than $500 nor more than $1,000 and shall be ineligible to obtain a license for a period of one year from the date of his or her conviction of such offense: Provided, That the board, at its discretion, may grant a license within a period of one year upon a finding of extenuating circumstances, and after an administrative hearing.

(b) Any person acting or purporting to act as a certified real estate appraiser who is not certified under this article is guilty of a misdemeanor and, upon conviction, shall be fined not more than $2,500 or imprisoned in the county or regional jail for not more than one year, or both.

(c) If any person receives any money or the equivalent as a fee, commission, compensation or profit by or in consequence of a violation of any provision of this article, he or she shall, in addition to the penalties prescribed above, be subject to a penalty of not less than the sum of money so received nor more than three times the sum as may be determined by the court, which penalty may be recovered in a court of competent jurisdiction by any person aggrieved as a result of any such violation.

§30B-5-16. Collection of appraisal fees.

No person engaged in the business of real estate appraising in this state or acting in the capacity of a real estate appraiser in this state may bring or maintain any action in any court of this state to collect compensation for the performance of real estate appraisal services for which a license is required by this article without alleging and proving that he or she was the holder of a valid real estate appraiser license in this state at all times during the performance of such services.

§30B-5-17. Standards of professional appraisal practice.

Each real estate appraiser licensed or certified under this act shall comply with generally accepted standards of professional appraisal practice and generally accepted ethical rules to be observed by a real estate appraiser. Generally accepted standards of professional appraisal practice are currently evidenced by the uniform standards of professional appraisal practice promulgated by the appraisal foundation. The board may, after a public hearing or public comment period held in accordance with provisions of §29A-3-1 et seq. of this code, adopt revised versions or make modifications of or additions to the uniform standards of professional appraisal practice.

§30B-5-18. Attorney general opinions and duties.

At the request of the board, the state Attorney General shall render to the board an opinion with respect to all questions of law arising in connection with the administration of this article and shall act as attorney for the board in all actions and proceedings brought by or against the board under, or pursuant to, any of the provisions of this article. All fees and expenses of the Attorney General arising out of such duties shall be paid out of the special fund created under this article to pay the expenses of the administration of this article.

§30B-5-19. Temporary permit.

(a) The board may issue a temporary permit to perform one specific assignment relating to the appraisal of real estate or real property in this state to an applicant who:

(1) Completes an application;

(2) Pays a nonrefundable application fee;

(3) Provides an irrevocable consent that service of process upon him or her may be made by service of process to the Secretary of State if, in an action against the applicant in a court of this state arising out of the applicant's activities as a real estate appraiser in this state, the plaintiff cannot, in the exercise of due diligence, effect personal service upon the applicant; and

(4) Meets the requirements for a temporary permit as established by the board by legislative rule.

(b) The temporary permit is subject to the terms, conditions and limitations set forth by the board by legislative rule.

ARTICLE 6. APPRAISAL MANAGEMENT COMPANIES REGISTRATION ACT.

§30B-6-1. Unlawful acts.

(a) Commencing July 1, 2014, it is unlawful for any person or firm to perform or offer to perform appraisal management services, or act as an appraisal management company within this state without a registration issued by the West Virginia Real Estate Appraiser Licensing and Certification Board under the provisions of this article.

(b) Commencing July 1, 2014, it is unlawful for any person or firm not registered under the provisions of this article to advertise or use a title or description conveying the impression that the person or firm is registered to perform appraisal management services or registered to act as an appraisal management company within this state.

§30B-6-2. Applicable law.

Appraisal management companies and appraisal management services covered under the provisions of this article are subject to the requirements set forth in this article and the rules promulgated hereunder, and the provisions of §30B-1-1 et seq. and §30B-5-1 et seq. of this code.

§30B-6-3. Definitions.

As used in this article, the following words and terms have the following meanings, unless the context clearly indicates otherwise:

(a) “Applicant” means a person or firm making an application for registration under the provisions of this article.

(b) “Appraisal” means an analysis, opinion or conclusion prepared by a real estate appraiser relating to the nature, quality, value or utility of specified interests in, or aspects of, identified real estate or identified real property. An appraisal may be classified by the nature of the assignment as a valuation appraisal, an analysis assignment or a review assignment.

(c) “Appraisal Management Company” means a person or firm that performs or provides appraisal management services, directly or indirectly, through the use of software products or online, or by any means of communication.

(d) “Appraisal management services” means the business of managing the process of having an appraisal performed for compensation or pecuniary gain, including but not limited to any of the following actions:

(1) Conducting business directly or indirectly by telephone, electronically, mail or in person;

(2) Providing related administrative and clerical duties;

(3) Recruiting, selecting or retaining appraisers;

(4) Verifying qualifications of appraisers;

(5) Establishing and administering an appraiser panel;

(6) Receiving appraisal orders from clients;

(7) Contracting and negotiating fees with appraisers to perform appraisal services;

(8) Receiving appraisals from the appraiser and submitting completed appraisals to clients;

(9) Tracking and determining the status of orders for appraisals;

(10) Reviewing, verifying and conducting quality control of a completed appraisal;

(11) Collecting fees from the clients; and

(12) Compensating appraisers for appraisal services rendered.

(e) “Appraisal review” means the act of developing and communicating an opinion about the quality of another appraiser's work that was performed as part of an appraiser assignment. The review does not include:

(1) An examination of an appraisal for grammatical, typographical or other similar errors that do not make a substantive valuation change; or

(2) A general examination for compliance including regulatory and/or client requirements as specified in the agreement process that do not communicate an opinion as to the valuation conclusion.

(f) “Appraisal services” means the practice of developing an opinion of the value of real estate in conformity with the minimum USPAP standards.

(g) “Appraiser” means a person licensed or certified, under the provisions of §30B-6-1 et seq. of this code to perform an appraisal.

(h) “Appraiser panel” means a group of appraisers that perform appraisals for an appraisal management company as independent contractors.

(i) “Automated valuation model (AVM)” means a mathematically based computer software program that produces an estimate of market value based on market analysis of location, market conditions, and real estate characteristics from information that was previously and separately collected.

(j) “Board” means the West Virginia Real Estate Appraiser Licensing and Certification Board established under the provisions of §30B-6-1 et seq. of this code.

(k) “Client” means a person or firm that contracts or enters into an agreement with an appraisal management company for the performance of an appraisal.

(l) “Controlling person” means a person authorized by an appraisal management company to contract or enter into agreements with clients and independent appraisers for the performance of appraisal services and who has the power to manage the appraisal management company.

(m) “Firm” means a corporation, limited liability company, partnership, sole proprietorship or any other business entity.

(n) “Registrant” means a person or firm holding a registration issued by the board under the provisions of this article.

(o) “Registration” means a registration issued by the board under the provisions of this article.

(p) “State” means the State of West Virginia.

(q) “USPAP” means the Uniform Standards of Professional Appraisal Practice.

§30B-6-4. Registration requirements.

(a) A person or firm performing or offering to perform appraisal management services or acting as an appraisal management company within this state shall be registered with the board by July 1, 2014.

(b) A firm applying for a registration may not be owned, directly or indirectly, by any employee or consultant who is:

(1) A person who has had a license or certificate to act as an appraiser refused, denied, canceled or revoked in this state or any other jurisdiction, unless the license or certificate was subsequently granted or reinstated; or

(2) A firm that employs a person who has had a license or certificate to act as an appraiser refused, denied, canceled, revoked or surrendered in this state or any other jurisdiction, unless the license or certificate was subsequently granted or reinstated.

(c) The board may issue a registration to perform appraisal management services or act as an appraisal management company to a person or firm that:

(1) Makes written application to the board as set out in §30B-6-6 of this code;

(2) Submits certifications as set out in §30B-6-7 of this code;

(3) Submits national and state criminal background checks as set out in §30B-6-8 of this code;

(4) Posts a surety bond as set out in §30B-6-9 of this code;

(5) Pays the applicable fees as set out in §30B-6-10 of this code;

(6) Has a designated controlling person as set out in §30B-6-11 of this code; and

(7) Meets any other requirement set by the board.

(d) The registrations issued under the provisions of this article shall be renewed annually on July 1.

(e) Registrations not renewed in a timely manner are delinquent. To reinstate a delinquent registration, the registrant must pay a monthly penalty, as set by the board.

(f) A registration that has been delinquent for more than three months shall be considered expired and a new application for registration is required.

(g) The board shall issue a registration number to each appraisal management company registered in this state.

(h) The board shall keep a list of appraisal management company registered in this state and publish the list on its website.

§30B-6-5. Exemptions.

This article does not apply to:

(a) A financial institution, including a department or unit within an institution that is regulated by an agency of this state or the United States government; or

(b) An appraisal management company that is a subsidiary wholly owned and controlled by a financial institution regulated by a federal financial institution regulatory agency.

§30B-6-6. Written application requirements.

(a) The written application shall be submitted on a form prescribed by the board and shall include:

(1) The name, the street and mailing address and the contact information, including telephone number and e-mail address, of the person or firm seeking registration;

(2) The name, the street and mailing address and the contact information, including telephone number and e-mail address, of each owner of more than 10 percent of the firm seeking registration;

(3) The name, the street and mailing address and the contact information, including telephone number and e-mail address, of the controlling person of the firm seeking registration; and

(4)(A) If the applicant is a domestic firm, the designation of an agent for service of process; or

(B) If the applicant is a foreign firm, documentation that the foreign firm is authorized to do business in West Virginia and that an agent for service of process has been designated and the following has been submitted:

(i) A copy of the filing with the Secretary of State’s Office appointing an agent for service of process; and

(ii) A certificate of authority issued by the Secretary of State.

(b) The board shall maintain a list of all applicants for registration that includes the information in the written application.

§30B-6-7. Certification requirements.

(a) The certification for registration shall be in writing, on a form prescribed by the board and signed by the applicant or controlling person. The certification shall include statements that the applicant:

(1) Has a process in place to verify that any person used as an appraiser or added to the appraiser panel of the applicant is a licensed or certified appraiser in good standing in West Virginia;

(2) Has set requirements to verify that appraisers are geographically competent and can perform the appraisals assigned;

(3) Has set procedures for an appraiser, licensed or certified in this state or in any state with a minimum of the same certification level for the property type as the appraiser who performed the appraisal, to review the work of the appraisers performing appraisals for the applicant to verify that the appraisals are being conducted in accordance with the minimum USPAP standards;

(4) Will require appraisals to be conducted independently and free from inappropriate influence and coercion as required by the appraisal independence standards established under Section 129E of the Truth in Lending Act and the rules and regulations issued pursuant to the Act, including the requirement that appraisers be compensated at a customary and reasonable rate when the appraisal management company is providing services for a consumer credit transaction secured by the principal dwelling of a consumer;

(5) Maintains a detailed record of each request for appraisal it receives from a client and the appraiser that performs the appraisal; and

(6) Has submitted any other information required by the board.

(b) The applicant, each owner who is an employee of or consultant for the applicant and any controlling person shall submit a written verification, on a form prescribed by the board, that includes statements that:

(1) The written application and verification for registration contain no false or misleading statements;

(2) The applicant has complied with the requirements of this article;

(3) The applicant, each owner who is an employee of or consultant for the applicant, and the controlling person of the firm seeking registration has not pleaded guilty or nolo contendere to or been convicted of a felony;

(4) Within the past 10 years, the applicant, each owner who is an employee of or consultant for the applicant, and the controlling person of the firm seeking registration has not pleaded guilty or nolo contendere to or been convicted of:

(A) A misdemeanor involving mortgage lending or real estate appraisals; or

(B) An offense involving breach of trust or fraudulent or dishonest dealing;

(5) The applicant, each owner who is an employee of or consultant for the applicant, and the controlling person of the firm seeking registration are of good character and reputation and that none of them has had a license or certificate to act as an appraiser refused, denied, canceled, revoked or surrendered in this state or any other jurisdiction, and the license or certification was not subsequently granted or reinstated;

(6) The applicant, each owner who is an employee of or consultant for the applicant, and the controlling person of the firm seeking registration are not permanently or temporarily enjoined by a court of competent jurisdiction from engaging in or continuing any conduct or practice involving appraisals, appraisal management services or operating an appraisal management company;

(7) The applicant, each owner who is an employee of or consultant for the applicant, and the controlling person of the firm seeking registration are not the subject of an order of the board or any other jurisdiction's agency that regulates appraisal management companies that denied, suspended or revoked the applicant's or firm's privilege to operate as an appraisal management company;

(8) The applicant, each owner who is an employee of or consultant for the applicant, and the controlling person of the firm seeking registration have not acted as an appraisal management company while not being properly registered by the board; and

(9) Set forth any other requirements of the board.

§30B-6-8. Background check requirements.

(a) Upon application, the applicant, each owner who is an employee of or consultant for the applicant, and the controlling person of the firm seeking registration shall submit to a state and national criminal history record check, as set forth in this section.

(1) This requirement is found not to be against public policy.

(2) The criminal history record check shall be based on fingerprints submitted to the West Virginia State Police or its assigned agent for forwarding to the Federal Bureau of Investigation.

(3) The applicant shall meet all requirements necessary to accomplish the state and national criminal history record check, including:

(A) Submitting fingerprints for the purposes set forth in this subsection; and

(B) Authorizing the board, the West Virginia State Police and the Federal Bureau of Investigation to use all records submitted and produced for the purpose of screening the applicant for a license.

(b) The results of the state and national criminal history record check may not be released to or by a private entity except:

(1) To the individual who is the subject of the criminal history record check;

(2) With the written authorization of the individual who is the subject of the criminal history record check; or

(3) Pursuant to a court order.

(c) The criminal history record check and related records are not public records for the purposes of Chapter 29B of this code.

(d) The applicant shall ensure that the criminal history record check is completed as soon as possible after the date of the original application for registration.

(e) The applicant shall pay the actual costs of the fingerprinting and criminal history record check.

§30B-6-9. Surety bond requirements and claims.

(a) Each applicant shall post and maintain a surety bond with the board. The aggregate liability of the surety bond may not exceed the principal sum of the surety bond.

(b) The surety bond shall:

(1) Be established by the board through rules;

(2) Not exceed $100,000;

(3) Be in the form prescribed by the board;

(4) Be issued by an surety company authorized to do business in West Virginia; and

(5) Accrue to the state for the benefit of any claimant against the registrant to secure the faithful performance of the registrant's obligations.

(d) Consumer claims shall be given priority in recovering from the surety bond.

(e) Claimants may make claim under the bond for up to one year after the applicant ceases doing business in West Virginia.

(f) An appropriate deposit of cash or security may be accepted by the board in lieu of the required bond, as determined by the board through legislative rule.

§30B-6-10. Fee requirements.

The fees assessed by the board, as established by legislative rule, shall include the annual fee for appraisal management companies to be included in the national registry maintained by the Appraisal Subcommittee of the Federal Financial Institutions Examination Council.

§30B-6-11. Controlling person requirements.

(a) An appraisal management company shall have a designated controlling person who will ensure compliance with this article and will be the main contact for all communication between the board and the appraisal management company.

(b) The controlling person shall:

(1) Be of good character and reputation;

(2) Submit to national and state criminal background checks as set out in §30B-6-8 of this code;

(3) Never have had a license or certificate to act as an appraiser refused, denied, canceled, revoked or surrendered in this state or any other jurisdiction and not subsequently granted or reinstated;

(4) Never have been a part of a firm that was permanently or temporarily enjoined by a court of competent jurisdiction from engaging in or continuing any conduct or practice involving appraisals, appraisal management services or operating an appraisal management company; and

(5) Never have been the subject of an order of the board or any other jurisdiction's appraisal management company regulatory agency that denied or revoked the applicant's or firm's privilege to operate as an appraisal management company.

§30B-6-12. Requirements for removal from an appraiser panel.

(a) Except within 60 days from the date an appraiser is first added to the appraiser panel of an appraisal management company, an appraisal management company may only remove an appraiser from an appraiser panel or refuse to assign appraisals to an appraiser after providing the appraiser 20 days prior written notice stating the reasons for the removal or refusal and providing an opportunity for the appraiser to be heard.

(b) An appraiser who is removed from an appraiser panel or refused appraisal assignments for an alleged act or omission that would constitute grounds for disciplinary action under the provisions of §30B-5-1 et seq. of this code, a violation of the USPAP or a violation of state law or legislative rule may file a complaint with the board for a review of the appraisal management company's decision.

(1) The appraisal management company has complied with subsection (a) of this section; and

(2) The appraiser has engaged in an act or omission that would constitute grounds for disciplinary action under the provisions of §30B-5-12 of this code, or has committed a violation of the USPAP or a violation of state law or legislative rule.

(d) The board shall hold a hearing on the complaint within a reasonable time, not exceeding six months after the complaint was filed unless there are extenuating circumstances that are noted in the board's minutes.

(e) If the board determines after the hearing that an appraisal management company acted improperly then the board shall order the appraisal management company to restore the appraiser to the appraiser panel or assign appraisals to the appraiser.

(f) After the board's order, an appraisal management company may not:

(1) Reduce the number of appraisals given to the appraiser; or

(2) Penalize the appraiser in any other manner.

§30B-6-13. Duties of appraisal management companies.

(a) Each appraisal management company shall:

(1) Verify that an appraiser receiving work or being placed on an appraiser panel is:

(A) Professionally and geographically competent;

(B) Competent to perform the appraisal service being assigned to the appraiser;

(D) In good standing in this state;

(2) Designate a controlling person responsible for ensuring compliance with this article, including filing with the board the following:

(A) The name of the controlling person;

(B) The contact information for the controlling person;

(D) An updated registration form identifying the current controlling person submitted within 10 business days, when there is a change of the controlling person;

(3) Maintain complete detailed records of requests for appraisals from clients, including:

(A) The type of appraisal requested;

(B) The name and license or certification number of the appraiser to whom the appraisal was referred;

(D) The fees paid to the appraiser or any third party for services performed;

(4) Ensure that appraisal services are provided in an independent manner, free from inappropriate influence and coercion, as required by appraisal independence standards established under Section 129E of the Truth in Lending Act and the rules and regulations issued pursuant to the Act, including the requirement that fee appraisers be compensated at a customary and reasonable rate when the appraisal management company is providing services for a consumer credit transaction secured by the principal dwelling of a consumer;

(5) Except in cases of breach of contract or substandard performance, pay an independent appraiser for the completion of an appraisal within 45 days after the appraiser provides the completed appraisal to the appraisal management company, unless otherwise agreed to by the parties;

(6) Disclose its registration number on all engagement documentation with appraisers;

(7) Disclose to its clients the fees paid:

(A) For appraisal management services; and

(B) To the appraiser for the completion of an appraisal assignment;

(8) Inform the board, when it has a reasonable basis to believe, that an appraiser has:

(A) Failed to comply with USPAP and the failure to comply is likely to significantly affect the opinion of value;

(B) Violated applicable laws or rules; or

(9) Keep all records, including, but not limited to, appraisals ordered by the appraisal management company, for a minimum of five years after an appraisal is completed or two years after final disposition of a judicial proceeding related to the assignment, whichever period expires later; and

(10) Maintain a registered agent for service of process and provide the board with the same information for the agent that is provided to the Secretary of State.

(b) The board may inspect the records of appraisal management companies at any time without prior notice.

(d) If information on a disclosure becomes inaccurate for any reason, then a revised or amended disclosure shall be provided within five business days after the change. The revised or amended disclosure shall be clearly marked as revised or amended and contain sufficient information for the client to identify the original disclosure referenced.

(e) The provisions of this section do not exempt a registrant from any other reporting requirements contained in any federal or state law.

§30B-6-14. Unprofessional conduct.

An appraisal management company commits unprofessional conduct if it:

(1) Requires an appraiser to modify an aspect of an appraisal which modification is not related to substandard performance or noncompliance with the terms of a contract or agreement;

(2) Requires an appraiser to prepare an appraisal when the appraiser believes, in his or her own professional judgment and notifies the appraisal management company in a timely manner, that the appraiser does not have the necessary expertise for the specific geographic area or is otherwise not competent to perform the appraisal;

(3) Requires an appraiser to prepare an appraisal under a certain time frame that the appraiser believes, in his or her own professional judgment and notifies the appraisal management company in a timely manner, that the appraiser does not have the necessary time to meet all the necessary and relevant legal and professional obligations;

(4) Prohibits or inhibits communication between an appraiser and any other person from whom the appraiser, in the appraiser's own professional judgment, believes information would be relevant;

(5) Requests an appraiser to do anything that does not comply with:

(A) The USPAP; or

(B) The requests of the client; or

(6) Makes any portion of the appraiser's fee or the appraisal management company's fee contingent on a favorable outcome, including:

(A) A loan closing; or

(B) An appraisal for a specific dollar amount.

§30B-6-15. Prohibited acts.

(a) An appraisal management company or any person acting for an appraisal management company as a controlling person, owner, director, officer, agent, employee or independent contractor may not:

(1) Improperly influence or attempt to improperly influence the development, reporting, result or review of an appraisal through:

(A) Intimidation, inducement, coercion, extortion, collusion, bribery, compensation, blackmail, threat of exclusion from future appraisal work or any other means that unduly influences or pressures the appraiser;

(B) Withholding payment to an appraiser or compensating the appraiser at less than the customary and reasonable rate for appraisal services unless for breach of contract; or

(2) Knowingly employ a person to a position of responsibility who has had a license or certificate to act as an appraiser refused, denied, canceled, revoked or surrendered in this state or any other jurisdiction, and not subsequently granted or reinstated;

(3) Knowingly enter into a contract with a person for the performance of appraisal services who has had a license or certificate to act as an appraiser refused, denied, canceled, revoked or surrendered in this state or any other jurisdiction, and not subsequently granted or reinstated;

(4) Knowingly enter into a contract, agreement or other business relationship for the purpose of obtaining real estate appraisal services with a firm that employs or contracts with a person who has had a license or certificate to act as an appraiser refused, denied, canceled, revoked or surrendered in this state or any other jurisdiction, and not subsequently granted or reinstated;

(5) Knowingly fail to separate and disclose any fees charged to a client by the appraisal management company for an appraisal by an appraiser from fees charged to a client by the appraisal management company for appraisal management services;

(6) Prohibit an appraiser from stating, in a submitted appraisal, the fee paid by the appraisal management company to the appraiser for the appraisal;

(7) Request, allow or require an appraiser to collect any portion of the fee, including the appraisal fee, charged by the appraisal management company to the client;

(8) Require an appraiser to provide the registrant with the appraiser's signature or seal in any form;

(9) Alter, amend or change an appraisal submitted by an appraiser;

(10) Remove an appraiser's signature or seal from an appraisal;

(11) Add information to or remove information from an appraisal with the intent to change the conclusion of the appraisal;

(12) Remove an appraiser from an appraiser panel without 20 days prior written notice to the appraiser and an opportunity for the appraiser to be heard;

(13) Enter into an agreement or contract for the performance of appraisal services with an appraiser who is not in good standing with the board;

(14) Request or require an appraiser to provide an estimated, predetermined or desired valuation in an appraisal;

(15) Request or require an appraiser to provide estimated values or comparable sales at any time prior to the appraiser completing an appraisal;

(16) Condition a request for an appraisal or the payment of an appraisal fee on:

(A) An opinion, conclusion or valuation reached; or

(B) A preliminary estimate or opinion requested from an appraiser;

(17) Provide to an appraiser an anticipated, estimated, encouraged or desired value for an appraisal or a proposed or targeted amount to be loaned or borrowed, except that a copy of the sales contract for the purchase transaction may be provided;

(18) Require an appraiser to indemnify or hold harmless an appraisal management company for any liability, damage, losses or claims arising out of the services provided by the appraisal management company;

(19) Have a direct or indirect interest, financial or otherwise, in the property or transaction involving the appraisal;

(20) Provide to an appraiser or a person related to the appraiser stock or other financial or nonfinancial benefits;

(21) Obtain, use or pay for a second or subsequent appraisal or order an automated valuation model, unless:

(A) There is a reasonable basis to believe that the initial appraisal was flawed and the basis is clearly and appropriately noted in the file;

(B) The second or subsequent appraisal, or automated valuation model is done under a bona fide prefunding or post-funding appraisal review or quality control process;

(D) The second or subsequent appraisal or automated valuation model is ordered by a client; or

(22) Commit an act or practice that impairs or attempts to impair an appraiser's independence, objectivity or impartiality.

(b) This section does not prohibit an appraisal management company from requesting that an appraiser:

(1) Provide additional information about the basis for a valuation;

(2) Correct objective factual errors in an appraisal;

(3) Provide further detail, substantiation or explanation for the appraiser's conclusion; or

(4) Consider additional appropriate property information, including the consideration of additional comparable properties to make or support an appraisal.

§30B-6-16. Disciplinary action.

The board may deny, revoke or refuse to issue or renew the registration of an appraisal management company or may restrict or limit the activities of an appraisal management company or of a person or firm that owns an interest in or participates in the business of an appraisal management company for the following reasons:

(1) A person or firm acted as an appraisal management company or performed appraisal management services without being properly registered with the board;

(2) A person or firm did not perform the duties set out in this article;

(3) A person or firm engaged in unprofessional conduct as set out in this article;

(4) A person or firm engaged in a prohibited act set out in this article;

(5) The application for registration contained false or misleading information;

(6) A person or firm fraudulently or deceptively obtains or attempts to obtain a registration;

(7) A person or firm fraudulently or deceptively used a registration;

(8) A person or firm violated the provisions of this article, this code, or the board's rules;

(9) A person or firm was found guilty of a felony or pleaded guilty or nolo contendere to a felony;

(10) Within the past 10 years, a person or firm was found guilty of or pleaded guilty or nolo contendere to a misdemeanor involving:

(A) Mortgage lending;

(B) Appraisals;

(D) Fraudulent or dishonest dealing;

(11) A person or firm is permanently or temporarily enjoined by a court of competent jurisdiction from engaging in or continuing any conduct or practice involving appraisal management services or operating an appraisal management company;

(12) A person or firm is the subject of an order of the board or any other jurisdiction's appraisal management company regulatory agency that denied, revoked or restricted a person's or firm's privilege to operate as an appraisal management company;

(13) A person or firm failed to pay the applicable fees; or

(14) For any other finding by the board.

§30B-6-17. Notice and hearing procedures.

(a) The board, on its own motion or upon receipt of a written complaint, may investigate an appraisal management company, a person or firm associated with an appraisal management company, and a person or firm performing appraisal management services.

(b) If the board determines after the investigation there are grounds for disciplinary action, the board may hold a hearing after giving 30 days' prior notice.

(d) After notice and a hearing, the board may:

(1) Deny, revoke or refuse to issue or renew the registration of an appraisal management company or restrict or limit the activities of an appraisal management company or of a person or firm that owns an interest in or participates in the business of an appraisal management company;

(2) Impose a fine not to exceed $25,000 for each violation; or

(3) Take other disciplinary action as established by the board by rule.

(e) The board may seek injunctive relief in the Kanawha County Circuit Court to prevent a person or firm from violating the provisions of this article or the rules promulgated hereunder. The circuit court may grant a temporary or permanent injunction.

ARTICLE 7. WEST VIRGINIA REAL ESTATE LICENSE ACT.

§30B-7-1. Legislative findings.

The Legislature hereby finds and declares that the practice of real estate brokerage is a privilege and any person engaged in the professional practice of real estate brokerage should possess the requisite experience and training and be subject to adequate regulation and control. As a matter of public policy, it is necessary to protect the public interest from the unauthorized, unqualified and unregulated practice of real estate brokerage through enactment of this article and to regulate the granting of such privileges and their use. This article shall be liberally construed to carry out these purposes.

§30B-7-2. Short title.

This article shall be known and may be cited as the “West Virginia Real Estate License Act”.

§30B-7-3. License required.

It shall be unlawful for any person to engage in or carry on, directly or indirectly, or to advertise or hold himself or herself out as engaging in or carrying on the business or act in the capacity of a real estate broker, associate broker or salesperson within this state without first obtaining a license as provided for in this article.

§30B-7-4. Definitions.

Unless the context in which used clearly requires a different meaning, as used in this article:

(a) “Applicant” means any person who is making application to the commission for a license.

(b) “Associate broker” means any person who qualifies for a broker's license, but who is employed or engaged by a licensed broker to engage in any activity regulated by this article, in the name of and under the direct supervision of the licensed broker.

(c) “Broker” means any person who for compensation or with the intention or expectation of receiving or collecting compensation:

(1) Lists, sells, purchases, exchanges, options, rents, manages, leases or auctions any interest in real estate; or

(2) Directs or assists in the procuring of a prospect calculated or intended to result in a real estate transaction; or

(3) Advertises or holds himself or herself out as engaged in, negotiates or attempts to negotiate, or offers to engage in any activity enumerated in subdivision (1) of this subsection.

(d) “Commission” means the West Virginia Real Estate Commission as established in §30B-7-6 of this code.

(e) “Compensation” means fee, commission, salary or other valuable consideration, in the form of money or otherwise.

(f) “Designated broker” means a person holding a broker's license who has been appointed by a partnership, association, corporation, or other form of business organization engaged in the real estate brokerage business, to be responsible for the acts of the business and to whom the partners, members, or board of directors have delegated full authority to conduct the real estate brokerage activities of the business organization.

(g) “Distance education” means courses of instruction in which instruction takes place through media where the teacher and student are separated by distance and sometimes by time.

(h) “Inactive” means a licensee who is not authorized to conduct any real estate business and is not required to comply with any continuing education requirements.

(i) “License” means a license to act as a broker, associate broker or salesperson.

(j) “Licensee” means a person holding a license.

(k) “Member” means a commissioner of the Real Estate Commission.

(l) “Real estate” means any interest or estate in land and anything permanently affixed to land.

(m) “Salesperson” means a person employed or engaged by or on behalf of a broker to do or deal in any activity included in this article, in the name of and under the direct supervision of a broker, other than an associate broker.

§30B-7-5. Scope of practice; exceptions.

(a) The practice of real estate brokerage includes acting in the capacity of a broker, associate broker or salesperson as defined in §30B-7-4 of this code.

(b) The practice of real estate brokerage does not include the activities normally performed by an appraiser, mortgage company, lawyer, engineer, contractor, surveyor, home inspector or other professional who may perform an ancillary service in conjunction with a real estate transaction.

(1) Any person acting on his or her own behalf as owner or lessor of real estate.

(2) The regular employees of an owner of real estate, who perform any acts regulated by this article, where the acts are incidental to the management of the real estate: Provided, That the employee does not receive additional compensation for the act and does not perform the act as a vocation.

(3) Attorneys-at-law: Provided, That attorneys-at-law shall be required to submit to the written examination required under §30B-7-12 of this code in order to qualify for a broker's license: Provided, however, That an attorney-at-law who is licensed as a real estate broker prior to July 1, 1980, is exempt from the written examination required under §30B-7-12 of this code.

(4) Any person holding, in good faith, a valid power of attorney from the owner or lessor of the real estate.

(5) Any person acting as a receiver, trustee, administrator, executor, guardian, conservator or under the order of any court or under the authority of a deed of trust or will.

(6) A public officer while performing his or her official duties.

(7) Any person acquiring or disposing of any interest in timber or minerals, or acquiring or disposing of properties for easements and rights-of-ways for pipelines, electric power lines and stations, public utilities, railroads or roads.

(8) Any person employed exclusively to act as the management or rental agent for the real estate of one person, partnership or corporation.

(9) Any person properly licensed pursuant to the provisions of §19-2C-1 et seq. of this code when conducting an auction, any portion of which contains any leasehold or estate in real estate, only when the person so licensed is retained to conduct an auction by:

(A) A receiver or trustee in bankruptcy;

(B) A fiduciary acting under the authority of a deed of trust or will; or

(10) Any person employed by a broker in a noncommissioned secretarial or clerical capacity who may in the normal course of employment, be required to:

(A) Disseminate brokerage preprinted and predetermined real estate sales and rental information;

(B) Accept and process rental reservations or bookings for a period not to exceed 30 consecutive days in a manner and procedure predetermined by the broker;

(D) Make appointments on behalf of the broker or licensed salesperson with buyers and sellers of real estate and potential buyers and sellers of real estate; or

(E) Any combination thereof.

§30B-7-6. Commission created; membership; appointment and removal of members; qualifications; terms; organization.

(a) The West Virginia Real Estate Commission is hereby continued. The members of the commission in office on the date this section takes effect shall, unless sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and qualified.

(b)(1) Commencing with the terms beginning with July 1, 2002, the commission shall consist of five persons appointed for terms of four years by the Governor with the advice and consent of the Senate. Four commissioners must be licensed under the provisions of this article and one commissioner must be a citizen member who is not licensed under the provisions of this article.

(2) Each licensed commissioner, at the time of his or her appointment, must have been licensed and practiced in this state as a real estate broker, associate broker or salesperson as his or her primary vocation for a period of not less than 10 years immediately preceding the appointment. Each commissioner must have been a resident of this state for at least six years prior to his or her appointment and must remain a resident during the appointment term. No more than four commissioners shall belong to the same political party.

(3) The appointment of three licensed commissioners, whether for a full term or to fill a vacancy, shall be made by the Governor with the advice and consent of the Senate. The appointment of one licensed commissioner, whether for a full term or to fill a vacancy, shall be made by the Governor from among three nominees selected by the West Virginia association of realtors. If the appointment is for a full term, the nominations must be submitted to the Governor not later than three months prior to the date on which the appointment becomes effective. If the appointment is to fill a vacancy, the nominations must be submitted to the Governor within 30 days after a request for the nominations has been made by the Governor to the West Virginia association of realtors. If the association fails to submit nominations in accordance with the requirements of this section, the Governor may make the appointment without the nominations.

(c) Any commissioner immediately and automatically forfeits his or her membership on the commission if he or she has his or her license to practice as a real estate broker, associate broker or salesperson suspended or revoked by the board, is convicted of a felony under the laws of this state or of the United States, becomes a nonresident of this state, or holds any elective public office or becomes a member of any political committee.

(d) No member of the commission may be removed from office by the Governor except for official misconduct, incompetency, neglect of duty, gross immorality or other good cause, but then only in the manner prescribed by law for the removal by the Governor of state elective officials.

(e) No member of the commission may serve more than two consecutive full terms and any member having served two full terms may not be appointed for one year after completion of his or her second full term. A member shall continue to serve until his or her successor has been appointed and qualified.

(f) The Governor shall designate one member of the commission as chairman and the members shall choose a vice chairman and a secretary, each of whom shall continue to serve in their respective capacity until replaced.

(g) Three members shall constitute a quorum for the conduct of official business.

(h) Each commissioner shall receive the same compensation as is paid to members of the Legislature for their interim duties as recommended by the citizens legislative compensation commission and authorized by law for each day or portion thereof engaged in the discharge of official duties. Each commissioner shall be reimbursed for his or her actual and necessary expenses for each day or portion thereof engaged in the discharge of official duties in a manner consistent with guidelines of the travel management office of the Department of Administration.

§30B-7-7. General powers and duties.

The commission has all the powers set forth in §30B-1-1 et seq. of this code and in addition:

(a) May sue and be sued in its official name as an agency of this state;

(b) Shall employ an executive director and shall fix his or her compensation subject to the general laws of this state. The commission shall determine the duties of the executive director as it shall consider necessary and appropriate to discharge the duties imposed by the provisions of this code;

(c) Shall employ or contract with such other investigators, hearing examiners, attorneys, consultants, clerks and assistants as the commission considers necessary and determine the duties and fix the compensation of such investigators, clerks and assistants subject to the general laws of this state;

(d) Shall have the authority to issue subpoenas and subpoenas duces tecum through any member, its executive director or any duly authorized representative;

(e) Shall prescribe, examine and determine the qualifications of any applicant for a license;

(f) Shall provide for an appropriate examination of any applicant for a license;

(g) May enter into agreements with other jurisdictions whereby the license issued by another jurisdiction may be recognized as successfully qualifying a nonresident for a license in this state;

(h) Shall issue, renew, deny, suspend, revoke or reinstate licenses and take disciplinary action against any licensee;

(i) May investigate or cause to be investigated alleged violations of the provisions of this article, the rules promulgated hereunder and the orders or final decisions of the commission;

(j) Shall conduct hearings or cause hearings to be conducted upon charges calling for the discipline of a licensee or for the suspension or revocation of a license;

(k) May examine the books and records relating to the real estate business of a licensee if the licensee is charged in a complaint of any violation of this article, commission rule or any order or final decision issued by the commission: Provided, That such examination shall not extend beyond the specific violation charged in the complaint;

(l) May impose one or more sanctions as considered appropriate in the circumstances for the discipline of a licensee. Available sanctions include, but are not limited to, denial of a license or renewal thereof, administrative fine not to exceed $1,000 per day per violation, probation, revocation, suspension, restitution, require additional education, censure, denial of future license, downgrade of license, reprimand or order the return of compensation collected from an injured consumer;

(m) Shall meet at least once each calendar year at such place and time as the commission shall designate and at such other times and places as it considers necessary to conduct commission business;

(n) Shall publish an annual directory of licensees in compliance with the provisions of §30-1-13 of this code;

(o) May sponsor real estate-related educational seminars, courses, workshops or institutes, may incur and pay the necessary expenses and may charge a fee for attendance;

(p) May assist libraries, institutions and foundations with financial aid or otherwise in providing texts, sponsoring studies, surveys and programs;

(q) May perform compliance audits on real estate brokerage offices, education providers or any other person regulated by the commission;

(r) May provide distance education courses for applicants for a license sufficient to meet the educational requirements contained §30B-7-14(a) and (b) of this code; and

(s) Shall take all other actions necessary and proper to effectuate the purposes of this article.

§30B-7-8. Rule-making authority.

(a) The commission may propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code which are necessary for the conduct of its business, the holding of hearings and for the general implementation, enforcement and administration of the provisions of this article, including, but not limited to, establishing, administering and governing the following:

(1) Fees for applications, examinations, licenses, renewal of licenses, changes to licenses requiring reissuance, courses, investigations, copies of records, license certifications and other fees considered necessary by the commission, none of which shall be prorated or refundable: Provided, That the fee schedule in effect prior to enactment of this article, enumerated in §47-12-9 of this code, shall continue to be effective until withdrawn, revoked or amended;

(2) The minimum requirements and qualifications necessary for approval by the commission of providers, instructors and the course content of any prelicense education course required in §30B-7-14 of this code;

(3) The experience required of an applicant;

(4) The minimum standards for licensure;

(5) The standards for examinations;

(6) The minimum requirements and qualifications necessary for approval by the commission of providers, instructors and courses of continuing professional education required by §30B-7-16 of this code;

(7) Continuing professional education requirements for licensees, including any exemptions;

(8) Renewal of licenses;

(9) Use of firm or trade name;

(10) Denying, suspending, revoking or reinstating a license;

(11) Form and use of contracts used in a real estate transaction;

(12) Notification required to clients or customers of agency relationship;

(13) Professional conduct requirements; and

(14) Any other purpose to carry out the requirements of this article or to protect the public interest.

(b) All rules in effect as of the passage of this article previously promulgated by the commission pursuant to §47-12-1 et seq. of this code will remain in effect until amended, modified, repealed or replaced, except that references to provisions of former enactments of this article are interpreted to mean provisions of this article.

§30B-7-9. Fees; special revenue account; administrative fines.

(a) All fees and other moneys, except administrative fines, received by the commission shall be deposited into the treasury of the state, at least once each month, into a special revenue fund known as the “real estate license fund” which is continued.

(b) Except as may be provided in §30B-1-16 of this code, the commission shall retain the amounts in the special revenue fund from year to year and no funds collected under this article may be used by the commission for any purpose other than the administration and enforcement of this article. No compensation or expense incurred under this article is a charge against the General Revenue Fund.

(c) Any amounts received as administrative fines imposed pursuant to this article shall be deposited into the General Revenue Fund of the state Treasury.

§30B-7-10. Civil liability for commission members; liability limitations of person reporting to commission.

(a) Members of the commission shall be immune from individual civil liability for actions taken in good faith and without malice, within the scope of their duties as commission members.

(b) Any person who reports or otherwise provides evidence of violations of this article, the commission's rules, orders or final decisions to the commission or other law-enforcement agency, is not liable for making the report if it is made without malice and in the reasonable belief that the report is warranted by the facts known to him or her at the time.

§30B-7-11. Application for license.

The commission shall only issue an original license to an applicant if he or she:

(a) Submits an application, in writing, in a form prescribed by the commission which must contain, but is not limited to:

(1) The applicant's social security number;

(2) The recommendation of at least two persons who:

(A) Are property owners at the time of signing the application;

(B) Have been property owners for at least 12 months preceding the signing of the application;

(D) Are not related to the applicant;

(E) Are not affiliated with the applicant as an employer, partner or associate or with the broker that will employ the applicant;

(F) Believe the applicant bears a good reputation for honesty, trustworthiness and fair dealing; and

(G) Believe the applicant is competent to transact the business of a real estate broker, associate broker or salesperson, as the case may be, in a manner that would protect the interest of the public.

(3) A clear record indicating all jurisdictions where the applicant holds or has held any professional license.

(4) A clear record indicating if the applicant has been convicted of any criminal offense or if there is any criminal charge pending against the applicant, or a member or officer of the brokerage business, at the time of application.

(b) Is at least 18 years of age.

(d) Is trustworthy, of good moral character and competent to transact the business of a broker, associate broker or salesperson.

(e) Has paid the appropriate fee, if any, which must accompany all applications for original license or renewal.

(f) Has submitted to a state and national criminal history record check, as set forth in this subsection: Provided, That an applicant for a license who is an attorney at law may submit a letter of good standing from the Clerk of the Supreme Court of Appeals of West Virginia in lieu of submitting to a state and national criminal history record check.

(1) This requirement is found not to be against public policy.

(2) The criminal history record check shall be based on fingerprints submitted to the West Virginia State Police or its assigned agent for forwarding to the Federal Bureau of Investigation.

(3) The applicant shall meet all requirements necessary to accomplish the state and national criminal history record check, including:

(A) Submitting fingerprints for the purposes set forth in this subsection; and

(B) Authorizing the commission, the West Virginia State Police and the Federal Bureau of Investigation to use all records submitted and produced for the purpose of screening the applicant for a license.

(4) The results of the state and national criminal history record check may not be released to or by a private entity except:

(A) To the individual who is the subject of the criminal history record check;

(B) With the written authorization of the individual who is the subject of the criminal history record check; or

(5) The criminal history record check and related records are not public records for the purposes of Chapter 29B of this code.

(6) The applicant shall pay the actual costs of the fingerprinting and criminal history record check.

(7) Before implementing the provisions of this subsection, the commission shall propose rules for legislative approval in accordance with §29A-3-1 et seq. of this code. The rules shall set forth the requirements and procedures for the criminal history check and must be consistent with standards established by the Federal Bureau of Investigation and the National Crime Prevention and Privacy Compact as authorized by 42 U. S. C. A. §14611, et seq.

§30B-7-12. Qualifications for broker's license.

(a) An applicant for a broker's license shall:

(1) Have served an apprenticeship as a licensed salesperson for two years or shall produce evidence satisfactory to the commission, in its sole discretion, of real estate experience equivalent to two years full-time experience as a licensed salesperson;

(2) Submit satisfactory evidence of having completed the required education course as provided for in §30B-7-14 of this code;

(3) Successfully pass the examination or examinations provided by the commission.

(b) No broker's license shall be issued in the name of a corporation, association or partnership except through one of its members or officers.

(c) No broker's license shall be issued in the name of a corporation, association or partnership unless each member or officer, who will engage in the real estate business, obtains a license as a real estate salesperson or associate broker.

§30B-7-13. Qualifications for salesperson's license.

An applicant for a salesperson's license shall:

(1) Submit satisfactory evidence of having completed the required education course as provided in §30B-7-14 of this code.

(2) Successfully pass the examination or examinations provided by the commission.

§30B-7-14. Prelicense education.

(a) Applicants for a broker's license shall provide evidence satisfactory to the commission that he or she has completed at least 180 clock-hours, equivalent to 12 college semester credit hours, in a course or courses approved by the commission: Provided, That an applicant for a broker's license who holds a salesperson's license in this state shall only be required to provide evidence that he or she has completed 90 clock-hours, equivalent to six college semester hours, in a course or courses approved by the commission.

(b) Applicants for a salesperson's license shall provide evidence satisfactory to the commission that he or she has completed 90 clock-hours, equivalent to six college semester credit hours, in a course or courses approved by the commission.

(c) Any course required by subsection (a) or (b) of this section must have been completed during the five-year period preceding the date of application in order to be accepted by the commission.

§30B-7-15. Licensing nonresidents.

(a) The commission may recognize a valid license issued by another jurisdiction as satisfactorily qualifying a nonresident person to obtain a comparable license in this state: Provided, That the nonresident has qualified for original license in his or her jurisdiction of residence by examination and by complying with all the provisions for obtaining an original license in that jurisdiction and the jurisdiction affords the same privilege to licensees of this state.

(b) In order to obtain a license in this state, a nonresident applicant must:

(1) Submit the appropriate application and fee, if any;

(2) Sign a statement that the applicant has read the real estate license law and rules of this state and agrees to abide by those provisions in all brokerage activity conducted in this state;

(3) Cause the real estate licensing body of the applicant's resident jurisdiction to furnish a certification of licensure which shall contain a clear record of any disciplinary actions;

(4) Cause the real estate licensing body of any other jurisdiction where the applicant currently holds or has held a real estate license to furnish a certification of licensure which shall contain a clear record of any disciplinary actions;

(5) File with the commission an irrevocable written designation that appoints the executive director of the commission to act as the nonresident licensee's agent, upon whom all judicial and other process or legal notices directed to the licensee may be served. The designation must stipulate and agree that service upon the executive director is equivalent to personal service upon the licensee. A copy of the designation of appointment, certified by the seal of the commission, may be admitted into evidence with the same force and affect as the original. The executive director shall mail a copy of any process or legal notice immediately upon receipt, by certified mail, to the last known business address of the licensee. No judgment by default may be taken in any action or proceeding until after 30 days of mailing and then only upon certification by the executive director that a copy of the judicial, other process or legal notice was mailed as required; and

(6) File with the commission, a bond in the penalty of $2,000 if the applicant wishes to maintain an active license in this state. The bond must be issued by a recognized surety and must be for the benefit of and to indemnify any person in this state who may have a cause of action against the principal.

§30B-7-16. Continuing professional education.

(a) Every licensee shall complete seven hours of continuing professional education for each fiscal year, with each hour equaling 50 minutes of instruction.

(b) Upon application for the renewal of a real estate license on active status, each licensee must furnish satisfactory evidence, as established by the commission, that he or she has completed seven hours of approved continuing professional education during the term of the previous license: Provided, That if the commission issues a license certificate for a period of more than one fiscal year, each licensee must furnish satisfactory evidence that he or she has completed the equivalent of seven hours of continuing professional education for each year covered by the term of the previous license.

(c) When a licensee in an inactive status makes application to revert to an active status, he or she must furnish satisfactory evidence to the commission that he or she has completed the approved continuing professional education that would have been required for active status at the time the license was renewed.

(d) Approval from the commission shall be obtained by each provider and instructor and for any course prior to any advertising or offering of the course.

(e) Real estate-related continuing education courses provided by or approved by the real estate appraiser licensing and certification board, the department of highways, the West Virginia State Bar or other agency of this state shall be recognized as approved by the commission.

(f) If approved in advance by the commission, distance education courses may be used to satisfy the continuing education requirement.

(g) Any licensee holding a license on July 1, 1969, and continuously thereafter, shall be exempt from the continuing professional education requirement.

§30B-7-17. Place of business; branch offices; display of certificates; custody of license certificates; change of address; change of employer by a salesperson or associate broker; license certificates; term of license.

(a) Every person holding a broker's license under the provisions of this article shall:

(1) Have and maintain a definite place of business within this state, which shall be a room or rooms used for the transaction of real estate business and any allied business. The definite place of business shall be designated in the license certificate issued by the commission and the broker may not transact business at any other location, unless such other location is properly licensed by the commission as a branch office: Provided, That a nonresident broker who maintains a definite place of business in his or her jurisdiction of residence may not be required to maintain an office in this state if said jurisdiction offers the same privilege to licensed brokers of this state;

(2) Conspicuously display his or her broker's license in the main office and the license of each associate broker and salesperson employed by the broker who is primarily working from the main office;

(3) Conspicuously display his or her branch office license in each branch office and the license of each associate broker and salesperson employed by the broker who is primarily working from each branch office;

(4) Make application to the commission before changing the address of any office or within 10 days after any change;

(5) Maintain in his or her custody and control the license of each associate broker and salesperson employed by him or her; and

(6) Promptly return the license of any associate broker or salesperson whose employment with the broker is terminated.

(b) Every person holding an associate broker's or salesperson's license under the provisions of this article shall:

(1) Conduct real estate brokerage activities only under the direct supervision and control of his or her employing broker, which shall be designated in the license certificate;

(2) Promptly make application to the commission of any change of employing broker: Provided, That it shall be unlawful to perform any act contained in this article, either directly or indirectly, after employment has been terminated until the associate broker or salesperson has made application to the commission for a change of employing broker and the application is approved.

(1) Be in such form and size as shall be prescribed by the commission;

(2) Be imprinted with the seal of the commission and shall contain such other information as the commission may prescribe: Provided, That a salesperson's and an associate broker's license shall show the name of the broker by whom he or she is employed;

(3) In the case of an active licensee, be mailed or delivered to the broker's main office address;

(4) In the case of an inactive licensee, be held in the commission office;

(5) Be valid for a period that coincides with the fiscal year beginning on July 1, and ending on June 30 and may be issued for a period covering more than one fiscal year at the discretion of the commission: Provided, That nothing contained herein shall authorize any person to transact real estate business prior to becoming properly licensed.

§30B-7-18. Trust fund accounts.

(a) Every person licensed as a broker under the provisions of this article who does not immediately deliver all funds received, in relation to a real estate transaction, to his or her principal or to a neutral escrow depository shall maintain one or more trust fund accounts in a recognized financial institution and shall place all funds therein: Provided, That nothing contained herein shall require a broker to maintain a trust fund account if the broker does not hold any money in trust for another party.

(b) Funds that must be deposited into a trust fund account include, but are not limited to, earnest money deposits, security deposits, rental receipts, auction proceeds and money held in escrow at closing.

(c) Each trust fund account must be established at a financial institution which is insured against loss by an agency of the federal government and the amount deposited therein cannot exceed the amount that is insured against loss.

(d) Each trust fund account must provide for the withdrawal of funds without notice.

(e) No trust fund account may earn interest or any other form of income, unless specifically authorized by commission rule.

(f) The broker may not commingle his or her own funds with trust funds and the account may not be pledged as collateral for a loan or otherwise utilized by the broker in a manner that would violate his or her fiduciary obligations in relation to the trust funds: Provided, That nothing contained herein prevents the broker from depositing a maximum of $100 of his or her own money in the trust fund account to maintain a minimum balance in the account.

(g) No financial institution, in which a trust fund account is established under the provisions of this article, shall require a minimum balance in excess of the amount authorized in subsection (f) of this section.

(h) The broker shall be the designated trustee of the account and shall maintain complete authority and control over all aspects of each trust fund account, including signature authority: Provided, That only one other member or officer of a corporation, association or partnership, who is licensed under the provisions of this article, may be authorized to disburse funds from the account: Provided, however, That if disbursements from a trust fund account require two signatures, one additional member or officer may be a signatory as provided in this section.

(i) The broker shall, at a minimum, maintain records of all funds deposited into the trust fund account, which shall clearly indicate the date and from whom the money was received, date deposited, date of withdrawal, to whom the money belongs, for whose account the money was received and other pertinent information concerning the transaction. All records shall be open to inspection by the commission or its duly authorized representative at all times during regular business hours at the broker's place of business.

(j) The broker shall cause the financial institution wherein a trust fund account is maintained, to execute a statement, prepared by the commission, which shall include, but is not limited to:

(1) Exact title of the account as registered by the financial institution;

(2) The account number of the trust fund account;

(3) Identification of all persons authorized to make withdrawals from the account;

(4) Name and address of the financial institution;

(5) Title of the person executing the statement on behalf of the financial institution;

(6) Date the statement was executed; and

(7) Certification that the financial institution will notify the Real Estate Commission if any checks drawn against the account are returned for insufficient funds and that the financial institution does not require a minimum balance in excess of the amount authorized in subsection (f) of this section.

(k) The broker shall execute a statement authorizing the commission, or its duly authorized representative, to make periodic inspections of the trust fund account and to obtain copies of records from any financial institution wherein a trust fund account is maintained. A copy of any authorization shall be accepted by any financial institution with the same force and effect as the original.

(l) The broker shall notify the commission, within 10 days, of the establishment of or any change to a trust fund account.

(m) Nothing provided in this section creates any duty or obligation on a financial institution to monitor the activities of a broker designated as trustee of a trust fund account, except for those duties or obligations specifically provided in subsection (g) of this section and subdivision (7), subsection (j) of this section.

§30B-7-19. Refusal, suspension or revocation of a license.

(a) The commission shall have full power to refuse a license for reasonable cause or to revoke, suspend or impose any other sanction against a licensee if the licensee:

(1) Obtains, renews or attempts to obtain or renew a license, for himself, herself or another, through the submission of any application or other writing that contains false, fraudulent or misleading information;

(2) Makes any substantial misrepresentation;

(3) Makes any false promises or representations of a character likely to influence, persuade or induce a person involved in a real estate transaction;

(4) Pursues a course of misrepresentation or makes false promises or representations through agents or any medium of advertising or otherwise;

(5) Uses misleading or false advertising;

(6) Uses any trade name or insignia of membership in any organization in which the licensee is not a member;

(7) Acts for more than one party in a transaction without the knowledge and written consent of all parties for whom he or she acts;

(8) Fails, within a reasonable time, to account for or to remit moneys or other assets coming into his or her possession, which belong to others;

(9) Commingles moneys belonging to others with his or her own funds;

(10) Advertises or displays a “for sale”, “for rent” or other such sign on any property without an agency relationship being established or without the owner's knowledge and written consent;

(11) Advertises any property on terms other than those authorized by the owner;

(12) Fails to disclose, on the notice of agency relationship form promulgated by the commission, whether the licensee represents the seller, buyer or both;

(13) Fails to voluntarily furnish copies of the notice of agency relationship, listing contract, sale contract, lease contract or any other contract to each party executing the same;

(14) Pays or receives any rebate, profit, compensation, commission or other valuable consideration, resulting from a real estate transaction, to or from any person other than the licensee's principal: Provided, That this subsection may not be construed to prevent the sharing of compensation or other valuable consideration between licensed brokers;

(15) Induces any person to a contract to break the contract for the purpose of substituting a new contract with a third party;

(16) Accepts compensation as a salesperson or associate broker for any act specified in this article from any person other than his or her employer who must be a broker;

(17) Pays compensation to any person for acts or services performed either in violation of this article or the real estate licensure laws of any other jurisdiction;

(18) Pays a compensation to any person knowing that they will pay a portion or all of that which is received, in a manner that would constitute a violation of this article if it were paid directly by a licensee of this state;

(19) Violates any of the provisions of this article, any rule or any order or final decision issued by the commission;

(20) Procures an attorney for any client or customer, or solicits legal business for any attorney-at-law;

(21) Engages in the unlawful or unauthorized practice of law as defined by the Supreme Court of Appeals of West Virginia;

(22) Commits or is a party to any material fraud, misrepresentation, concealment, conspiracy, collusion, trick, scheme or other device whereby any other person relies upon the word, representation or conduct of the licensee;

(23) Continues in the capacity of or accepts the services of any broker, associate broker or salesperson who is not properly licensed;

(24) Fails to disclose any information within his or her knowledge or to produce any document, book or record in his or her possession for inspection of and copying by the commission or its duly authorized representatives;

(25) Accepts other than cash or its equivalent as earnest money or other deposit unless this fact is disclosed in the contract to which the deposit relates;

(26) Accepts, takes or charges any undisclosed compensation on expenditures made by or on behalf of the licensee's principal;

(27) Discriminates against any person involved in a real estate transaction which is in violation of any federal or state antidiscrimination law, including any fair housing law;

(28) Fails to preserve for five years following its consummation, records relating to any real estate transaction;

(29) Fails to maintain adequate records on the broker's “trust fund account”;

(30) In the case of a broker, fails to adequately supervise all associate brokers and salespersons employed by him or her;

(31) Breaches a fiduciary duty owed by a licensee to his or her principal in a real estate transaction;

(32) Directs any party to a real estate transaction in which the licensee is involved, to any lending institution for financing with the expectation of receiving a financial incentive, rebate or other compensation, without first obtaining from his or her principal the signed acknowledgment of and consent to the receipt of the financial incentive, rebate or other compensation;

(33) Represents to any lending institution, or other interested party either verbally or through the preparation of false documents, an amount in excess of the true and actual sale price of the real estate or terms differing from those actually agreed upon;

(34) Fails to disclose to an owner the licensee's true position if he or she directly or indirectly through a third party, purchases for himself or herself or acquires or intends to acquire any interest in or any option to purchase the property;

(35) Lends a broker's license to any person, including a salesperson, or permits a salesperson to operate as a broker;

(36) Has been convicted in a court of competent jurisdiction in this or any other jurisdiction of forgery, embezzlement, obtaining money under false pretense, bribery, larceny, extortion, conspiracy to defraud, any other similar offense, a crime involving moral turpitude, or a felony;

(37) Engages in any act or conduct which constitutes or demonstrates bad faith, incompetency or untrustworthiness, or dishonest, fraudulent or improper dealing;

(38) Induces any person to alter, modify or change another licensee's fee or commission for brokerage services, without that licensee's prior written consent;

(39) Negotiates a real estate transaction directly with any person that is represented exclusively by another broker, unless the conduct is specifically authorized by the other broker;

(40) Obtains, negotiates or attempts to obtain or negotiate a contract whereby the broker is entitled to a commission only to the extent that the sales price exceeds a given amount, commonly referred to as a net listing;

(41) Fails or refuses, on demand, to furnish copies of a document to a person whose signature is affixed to the document;

(42) In the case of an associate broker or salesperson, represents or attempts to represent a broker other than his or her employing broker;

(43) Fails to reduce a bona fide offer to writing;

(44) Guarantees, or authorizes or permits another licensee to guarantee, future profits which may result from a real estate transaction;

(45) Is disciplined by another jurisdiction if at least one of the grounds for that discipline is the same as or equivalent to one of the grounds for discipline in this article; or

(46) Engages in any other act or omission in violation of professional conduct requirements of licensees established by legislative rule of the commission.

(b) The provisions of this section shall be liberally construed in order to carry out the objectives and purposes of this article.

(1) The words “convicted in a court of competent jurisdiction” mean a plea of guilty or nolo contendere entered by a person or a verdict of guilt returned against a person at the conclusion of a trial;

(2) A certified copy of a conviction order entered in a court is sufficient evidence to demonstrate a person has been convicted in a court of competent jurisdiction.

(d) Every person licensed by the commission has an affirmative duty to report, in a timely manner, any known or observed violation of this article or the rules, orders or final decisions of the commission.

(e) The revocation of a broker's license shall automatically suspend the license of every associate broker and salesperson employed by the broker: Provided, That the commission shall issue a replacement license for any licensee so affected to a new employing broker, without charge, if a proper application is submitted to the commission during the same license term.

(f) A licensee whose license has been revoked shall be ineligible to apply for a new license until after the expiration of two years from the date of revocation.

§30B-7-20. Complaints; investigation.

(a) The commission may upon its own motion and shall upon the filing of a complaint setting forth a cause of action under this article, or the rules promulgated thereunder, ascertain the facts and if warranted hold a hearing for the suspension or revocation of a license, or the imposition of sanctions against a licensee: Provided, That no disciplinary action may be brought against a licensee upon any complaint that is filed more than two years after the acts or omissions alleged in the complaint or, where the licensee is alleged to have engaged in fraud, deceit or misrepresentation, more than two years after the date at which the complainant discovered, or through reasonable diligence should have discovered, the alleged unprofessional conduct. Time limits for the filing of a complaint shall be tolled during any period in which material evidence necessary for the commission's evaluation or use is unavailable to the commission due to an ongoing criminal investigation or prosecution.

(b) All complaints must be submitted in writing and must fully describe the acts or omissions constituting the alleged unprofessional conduct.

(c) Upon initiation or receipt of the complaint, the commission shall provide a copy of the complaint to the licensee for his or her response to the allegations contained in the complaint. The accused party shall file an answer within 20 days of the date of service. Failure of the licensee to file a timely response may be considered an admission of the allegations in the complaint: Provided, That nothing contained herein shall prohibit the accused party from obtaining an extension of time to file a response, if the commission, its executive director or other authorized representative permits the extension.

(d) The commission may cause an investigation to be made into the facts and circumstances giving rise to the complaint and any person licensed by the commission has an affirmative duty to assist the commission, or its authorized representative, in the conduct of its investigation.

(e) After receiving the licensee's response and reviewing any information obtained through investigation, the commission shall determine if probable cause exists that the licensee has violated any provision of this article or the rules.

(f) If a determination that probable cause exists for disciplinary action, the commission may hold a hearing in compliance with §30B-7-21 of this code or may dispose of the matter informally through a consent agreement or otherwise.

§30B-7-21. Hearings; judicial review; cost of proceedings.

(a) Hearings shall be conducted in accordance with the provisions of §29A-5-1 et seq. of this code and the commission's rules.

(b) Hearings shall be held at a time and place determined by the commission, but in no event less than 30 days after the notice of hearing is given.

(d) If, after hearing, the commission determines the licensee has violated any provision of this article, or the commission's rules, a formal decision shall be prepared which contains findings of fact, conclusions of law and specifically lists the disciplinary actions imposed.

(e) The commission may elect to have an administrative law judge or hearing examiner conduct the hearing. If the commission makes this election, the administrative law judge or hearing examiner, at the conclusion of a hearing, shall prepare a proposed order which shall contain findings of fact and conclusions of law. The commission may request that disciplinary actions imposed be a part of the proposed order, or may reserve this obligation for its consideration. The commission may accept, reject or modify the decision of the administrative law judge or hearing examiner.

(f) Any person adversely affected by any decision or final order made by the commission, after a hearing, is entitled to judicial review by the circuit court of the county where the hearing was held.

(g) In addition to any other sanction imposed, the commission may require a licensee to pay the costs of the proceeding.

§30B-7-22. Penalties for violations.

(a) Any person violating a provision of this article or the commission's rules is guilty of a misdemeanor. Any person convicted of a first violation shall be fined not less than $1,000 nor more than $2,000, or confined in the county or regional jail not more than 90 days, or both fined and confined;

(b) Any person convicted of a second or subsequent violation shall be fined not less than $2,000 nor more than $5,000, or confined in the county or regional jail for a term not to exceed one year, or both fined and confined;

(c) Any corporation, association or partnership convicted of a first violation of this article or the commission's rules, shall be fined not less than $2,000 nor more than $5,000;

(d) Any corporation, association or partnership convicted of a second or subsequent violation, shall be fined not less than $5,000 nor more than $10,000;

(e) Any officer, member, employee or agent of a corporation, association or partnership, shall be subject to the penalties herein prescribed for individuals;

(f) Each and every day a violation of this article continues shall constitute a separate offense;

(g) In addition to the penalties herein provided, if any person receives compensation for acts or services performed in violation of this article, he or she shall also be subject to a penalty of not less than the value of the compensation received nor more than three times the value of the compensation received, as may be determined by a court of competent jurisdiction. Any penalty may be recovered by a person aggrieved as a result of a violation of this article;

(h) The penalties provided in this section do not apply to a violation of the duties or obligations of a financial institution under the certification required by §30B-7-18(j)(7) of this code by a financial institution providing trust fund account services to a broker.

§30B-7-23. Single act evidence of practice.

One act by any person in consideration of receiving compensation, or with the expectation or intention of receiving such compensation, or upon the promise of receiving compensation for any act or service contained in this article shall constitute and consider the person a broker, associate broker or salesperson subject to the provisions of this article.

§30B-7-24. Injunctions; criminal proceedings.

(a) Whenever the commission or other interested person believes that any person has engaged, is engaging or is about to engage in any act that constitutes a violation of this article, the commission or other interested person may make application to any court of competent jurisdiction for an order enjoining the acts or services. Upon a showing that the person has engaged in or is about to engage in any act which violates this article, an injunction, restraining order or another appropriate order may be granted by the court without bond.

(b) Whenever the commission, its executive director or its authorized representative has reason to believe that any person has knowingly violated a provision of this article, the commission or its authorized representative may bring its information to the prosecuting attorney in the county where the violation has occurred who shall cause appropriate criminal proceedings to be brought.

(c) Whenever any other interested person has reason to believe that any person has knowingly violated a provision of this article, such person may bring its information to the attention of the appropriate law-enforcement officer who may cause an investigation to be made in order for appropriate criminal proceedings to be brought.

§30B-7-25. Collection of compensation.

No person may bring or maintain any action in any court of this state for the recovery of compensation for the performance of any act or service for which a broker's license is required, without alleging and proving that he or she was the holder of a valid broker's license at all times during the performance or rendering of any act or service: Provided, That an associate broker or salesperson shall have the right to institute suit in his or her own name for the recovery of compensation from his or her employing broker for acts or services performed while in the employ of said employing broker.

§30B-7-26. Duties of licensees.

Every broker, associate broker and salesperson owes certain inherent duties to the consumer which are required by virtue of the commission granting a license under this article. The duties include, but are not limited to:

(a) At the time of securing any contract whereby the broker is obligated to represent a principal to a real estate transaction, every licensee shall supply a true legible copy of the contract to each person signing the contract.

(b) Any contract in which a broker is obligated to represent a principal to a real estate transaction shall contain a definite expiration date, and no provision may be included in any contract whereby the principal is required to notify the broker of his or her intention to cancel the contract after the definite expiration date.

(c) No provision may be inserted in any contract for representation that would obligate the person signing the contract to pay a fee, commission or other valuable consideration to the broker, after the contract's expiration date, if the person subsequently enters into a contract for representation with a different broker.

(d) Every licensee shall disclose in writing, on the notice of agency relationship form promulgated by the commission, whether the licensee represents the seller, the buyer or both. The disclosure shall be made prior to any person signing any contract for representation by a licensee or a contract for the sale or purchase of real estate.

(e) Every licensee shall promptly deliver to his or her principal, every written offer received.

(f) Every licensee shall make certain that all the terms and conditions of a real estate transaction are contained in any contract prepared by the licensee.

(g) At the time of securing the signature of any party to a contract, the licensee shall deliver a true copy of the contract to the person whose signature was obtained.

(h) Upon the final acceptance or ratification of any contract, the licensee shall promptly deliver a true copy to each party that has signed the contract.

§30B-7-27. Duration of existing licenses.

Any valid license issued by the commission to a broker, associate broker or salesperson pursuant to the provisions of §47-12-1 et seq. of this code prior to the effective date of this article shall continue to be valid until June 30, 2002.

ARTICLE 8. UNIFORM ATHLETE AGENTS ACT.

§30B-8-1. Short title.

This article may be cited as the Uniform Athlete Agents Act

§30B-8-2. Definitions.

In this article:

(1) “Agency contract” means an agreement in which a student-athlete authorizes a person to negotiate or solicit on behalf of the student-athlete a professional-sports-services contract or an endorsement contract.

(2) “Athlete agent” means an individual who enters into an agency contract with a student-athlete or, directly or indirectly, recruits or solicits a student-athlete to enter into an agency contract. The term includes an individual who represents to the public that the individual is an athlete agent. The term does not include a spouse, parent, sibling, grandparent, or guardian of the student-athlete or an individual acting solely on behalf of a professional sports team or professional sports organization.

(3) “Athletic director” means an individual responsible for administering the overall athletic program of an educational institution or, if an educational institution has separately administered athletic programs for male students and female students, the athletic program for males or the athletic program for females, as appropriate.

(4) “Contact” means a communication, direct or indirect, between an athlete agent and a student-athlete, to recruit or solicit the student-athlete to enter into an agency contract.

(5) “Endorsement contract” means an agreement under which a student-athlete is employed or receives consideration to use on behalf of the other party any value that the student-athlete may have because of publicity, reputation, following, or fame obtained because of athletic ability or performance.

(6) “Intercollegiate sport” means a sport played at the collegiate level for which eligibility requirements for participation by a student-athlete are established by a national association for the promotion or regulation of collegiate athletics.

(7) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation, or any other legal or commercial entity.

(8) “Professional-sports-services contract” means an agreement under which an individual is employed or agrees to render services, as a player on a professional sports team, with a professional sports organization, or as a professional athlete.

(9) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(10) “Registration” means registration as an athlete agent pursuant to this article.

(11) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States.

(12) “Student-athlete” means an individual who engages in, is eligible to engage in, or may be eligible in the future to engage in, any intercollegiate sport. If an individual is permanently ineligible to participate in a particular intercollegiate sport, the individual is not a student-athlete for purposes of that sport.

§30B-8-3. Service of process; subpoenas.

(a) By acting as an athlete agent in this state, a nonresident individual appoints the Secretary of State as the individual's agent for service of process in any civil action in this state related to the individual's acting as an athlete agent in this state.

(b) The Secretary of State may issue subpoenas for any material that is relevant to the administration of this article.

§30B-8-4. Athlete agents: registration required; void contracts.

(a) Except as otherwise provided in subsection (b) of this section, an individual may not act as an athlete agent in this state without holding a certificate of registration under section six or eight of this article.

(b) Before being issued a certificate of registration, an individual may act as an athlete agent in this state for all purposes except signing an agency contract, if:

(1) A student-athlete or another person acting on behalf of the student-athlete initiates communication with the individual; and

(2) Within seven days after an initial act as an athlete agent, the individual submits an application for registration as an athlete agent in this state.

(c) An agency contract resulting from conduct in violation of this section is void and the athlete agent shall return any consideration received under the contract.

§30B-8-5. Registration as athlete agent; form; requirements.

(a) An applicant for registration shall submit an application for registration to the Secretary of State in a form prescribed by the Secretary of State. An application filed under this section is a public record. The application must be in the name of an individual and, except as otherwise provided in subsection (b) of this section, signed or otherwise authenticated by the applicant under penalty of perjury and state or contain:

(1) The name of the applicant and the address of the applicant's principal place of business;

(2) The name of the applicant's business or employer, if applicable;

(3) Any business or occupation engaged in by the applicant for the five years next preceding the date of submission of the application;

(4) A description of the applicant's:

(A) Formal training as an athlete agent;

(B) Practical experience as an athlete agent; and

(5) The names and addresses of three individuals not related to the applicant who are willing to serve as references;

(6) The name, sport and last known team for each individual for whom the applicant acted as an athlete agent during the five years next preceding the date of submission of the application;

(7) The names and addresses of all persons who are:

(A) With respect to the athlete agent's business if it is not a corporation, the partners, members, officers, managers, associates or profit-sharers of the business; and

(B) With respect to a corporation employing the athlete agent, the officers, directors and any shareholder of the corporation having an interest of five percent or greater;

(8) Whether the applicant or any person named pursuant to subdivision (7) of this subsection has been convicted of a crime that, if committed in this state, would be a crime involving moral turpitude or a felony and, identify the crime;

(9) Whether there has been any administrative or judicial determination that the applicant or any person named pursuant to subdivision (7) of this subsection has made a false, misleading, deceptive, or fraudulent representation;

(10) Any instance in which the conduct of the applicant or any person named pursuant to subdivision (7) of this subsection resulted in the imposition of a sanction, suspension, or declaration of ineligibility to participate in an interscholastic or intercollegiate athletic event on a student-athlete or educational institution;

(11) Any sanction, suspension, or disciplinary action taken against the applicant or any person named pursuant to subdivision (7) of this subsection arising out of occupational or professional conduct; and

(12) Whether there has been any denial of an application for, suspension or revocation of, or refusal to renew, the registration or licensure of the applicant or any person named pursuant to subdivision (7) of this subsection as an athlete agent in any state.

(b) An individual who has submitted an application for, and holds a certificate of, registration or licensure as an athlete agent in another state, may submit a copy of the application and certificate in lieu of submitting an application in the form prescribed pursuant to subsection (a) of this section. The Secretary of State shall accept the application and the certificate from the other state as an application for registration in this state if the application to the other state:

(1) Was submitted in the other state within six months next preceding the submission of the application in this state and the applicant certifies that the information contained in the application is current;

(2) Contains information substantially similar to or more comprehensive than that required in an application submitted in this state; and

(3) Was signed by the applicant under penalty of perjury.

§30B-8-6. Certificate of registration; issuance or denial; renewal.

(a) Except as otherwise provided in subsection (b) of this section, the Secretary of State shall issue a certificate of registration to an individual who complies with §30B-8-5(a) of this code or whose application has been accepted under §30B-8-5(b) of this code.

(b) The Secretary of State may refuse to issue a certificate of registration if the Secretary of State determines that the applicant has engaged in conduct that has a significant adverse effect on the applicant's fitness to act as an athlete agent. In making the determination, the Secretary of State may consider whether the applicant has:

(1) Been convicted of a crime that, if committed in this state, would be a felony;

(2) Made a materially false, misleading, deceptive, or fraudulent representation in the application or as an athlete agent;

(3) Engaged in conduct that would disqualify the applicant from serving in a fiduciary capacity;

(4) Engaged in conduct prohibited by §30B-8-14 of this code;

(5) Had a registration or licensure as an athlete agent suspended, revoked, or denied or been refused renewal of registration or licensure as an athlete agent in any state;

(6) Engaged in conduct the consequence of which was that a sanction, suspension, or declaration of ineligibility to participate in an interscholastic or intercollegiate athletic event was imposed on a student-athlete or educational institution; or

(7) Engaged in conduct that significantly adversely reflects on the applicant's credibility, honesty or integrity.

(1) How recently the conduct occurred;

(2) The nature of the conduct and the context in which it occurred; and

(3) Any other relevant conduct of the applicant.

(d) An athlete agent may apply to renew a registration by submitting an application for renewal in a form prescribed by the Secretary of State. An application filed under this section is a public record. The application for renewal must be signed by the applicant under penalty of perjury and must contain current information on all matters required in an original registration.

(e) An individual who has submitted an application for renewal of registration or licensure in another state, in lieu of submitting an application for renewal in the form prescribed pursuant to subsection (d) of this section, may file a copy of the application for renewal and a valid certificate of registration or licensure from the other state. The Secretary of State shall accept the application for renewal from the other state as an application for renewal in this state if the application to the other state:

(1) Was submitted in the other state within six months next preceding the filing in this state and the applicant certifies the information contained in the application for renewal is current;

(2) Contains information substantially similar to or more comprehensive than that required in an application for renewal submitted in this state; and

(3) Was signed by the applicant under penalty of perjury.

(f) A certificate of registration or a renewal of a registration is valid for two years.

§30B-8-7. Suspension, revocation, or refusal to renew registration.

(a) The Secretary of State may suspend, revoke or refuse to renew a registration for conduct that would have justified denial of registration under §30B-8-6(b) of this code.

(b) The Secretary of State may deny, suspend, revoke or refuse to renew a certificate of registration or licensure only after proper notice and an opportunity for a hearing. The provisions of §29A-5-1 et seq. of this code apply to this article.

§30B-8-8. Temporary registration.

The Secretary of State may issue a temporary certificate of registration while an application for registration or renewal of registration is pending.

§30B-8-9. Registration and renewal fees.

An application for registration or renewal of registration must be accompanied by a fee in the following amount:

(1) $50 for an initial application for registration;

(2) $50 for an application for registration based upon a certificate of registration or licensure issued by another state;

(3) $10 for an application for renewal of registration; or

(4) $10 for an application for renewal of registration based upon an application for renewal of registration or licensure submitted in another state.

§30B-8-10. Required form of contract.

(a) An agency contract must be in a record, signed or otherwise authenticated by the parties.

(b) An agency contract must state or contain:

(1) The amount and method of calculating the consideration to be paid by the student-athlete for services to be provided by the athlete agent under the contract and any other consideration the athlete agent has received or will receive from any other source for entering into the contract or for providing the services;

(2) The name of any person not listed in the application for registration or renewal of registration who will be compensated because the student-athlete signed the agency contract;

(3) A description of any expenses that the student-athlete agrees to reimburse;

(4) A description of the services to be provided to the student-athlete;

(5) The duration of the contract; and

(6) The date of execution.

(c) An agency contract must contain, in close proximity to the signature of the student-athlete, a conspicuous notice in boldface type in capital letters stating:

WARNING TO STUDENT-ATHLETE

IF YOU SIGN THIS CONTRACT:

(1) YOU MAY LOSE YOUR ELIGIBILITY TO COMPETE AS A STUDENT-ATHLETE IN YOUR SPORT;

(2) IF YOU HAVE AN ATHLETIC DIRECTOR, WITHIN 72 HOURS AFTER ENTERING INTO THIS CONTRACT, BOTH YOU AND YOUR ATHLETE AGENT MUST NOTIFY YOUR ATHLETIC DIRECTOR; AND

(3) YOU MAY CANCEL THIS CONTRACT WITHIN 14 DAYS AFTER SIGNING IT. CANCELLATION OF THIS CONTRACT MAY NOT REINSTATE YOUR ELIGIBILITY.

(d) An agency contract that does not conform to this section is voidable by the student-athlete. If a student-athlete voids an agency contract, the student-athlete is not required to pay any consideration under the contract or to return any consideration received from the athlete agent to induce the student-athlete to enter into the contract.

(e) The athlete agent shall give a record of the signed or otherwise authenticated agency contract to the student-athlete at the time of execution.

§30B-8-11. Notice to educational institution.

(a) Within 72 hours after entering into an agency contract or before the next scheduled athletic event in which the student-athlete may participate, whichever occurs first, the athlete agent shall give notice in a record of the existence of the contract to the athletic director of the educational institution at which the student-athlete is enrolled or the athlete agent has reasonable grounds to believe the student-athlete intends to enroll.

(b) Within 72 hours after entering into an agency contract or before the next athletic event in which the student-athlete may participate, whichever occurs first, the student-athlete shall inform the athletic director of the educational institution at which the student-athlete is enrolled that he or she has entered into an agency contract.

§30B-8-12. Student-athlete's right to cancel.

(a) A student-athlete may cancel an agency contract by giving notice of the cancellation to the athlete agent in a record within 14 days after the contract is signed.

(b) A student-athlete may not waive the right to cancel an agency contract.

(c) If a student-athlete cancels an agency contract, the student-athlete is not required to pay any consideration under the contract or to return any consideration received from the athlete agent to induce the student-athlete to enter into the contract.

§30B-8-13. Required records.

(a) An athlete agent shall retain the following records for a period of five years:

(1) The name and address of each individual represented by the athlete agent;

(2) Any agency contract entered into by the athlete agent; and

(3) Any direct costs incurred by the athlete agent in the recruitment or solicitation of a student-athlete to enter into an agency contract.

(b) Records required by subsection (a) of this section to be retained are open to inspection by the Secretary of State during normal business hours.

§30B-8-14. Prohibited conduct.

(a) An athlete agent, with the intent to induce a student-athlete to enter into an agency contract, may not:

(1) Give any materially false or misleading information or make a materially false promise or representation;

(2) Furnish anything of value to a student-athlete before the student-athlete enters into the agency contract; or

(3) Furnish anything of value to any individual other than the student-athlete or another registered athlete agent.

(b) An athlete agent may not intentionally:

(1) Initiate contact with a student-athlete unless registered under this article;

(2) Refuse or fail to retain or permit inspection of the records required to be retained by §30B-8-13 of this code;

(3) Fail to register when required by §30B-8-4 of this code;

(4) Provide materially false or misleading information in an application for registration or renewal of registration;

(5) Predate or postdate an agency contract; or

(6) Fail to notify a student-athlete before the student-athlete signs or otherwise authenticates an agency contract for a particular sport that the signing or authentication may make the student-athlete ineligible to participate as a student-athlete in that sport.

§30B-8-15. Criminal penalties.

An athlete agent who violates §30B-8-14(a) of this code is guilty of a felony and, upon conviction thereof, shall be fined not more than $50,000 or confined in a state correctional facility for not less than one nor more than three years, or both so fined and confined.

An athlete agent who violates §30B-8-14(b) of this code is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $500 or confined in a county or regional jail for not more than one year, or both so fined and confined.

§30B-8-16. Civil Remedies.

(a) An educational institution has a right of action against an athlete agent or a former student-athlete for damages caused by a violation of this article. In an action under this section, the court may award to the prevailing party costs and reasonable attorney's fees.

(b) Damages of an educational institution under subsection (a) of this section include losses and expenses incurred because, as a result of the conduct of an athlete agent or former student-athlete, the educational institution was injured by a violation of this article or was penalized, disqualified or suspended from participation in athletics by a national association for the promotion and regulation of athletics, by an athletic conference, or by reasonable self-imposed disciplinary action taken to mitigate sanctions likely to be imposed by such an organization.

(c) A right of action under this section does not accrue until the educational institution discovers or by the exercise of reasonable diligence would have discovered the violation by the athlete agent or former student-athlete.

(d) Any liability of the athlete agent or the former student-athlete under this section is several and not joint.

(e) This article does not restrict rights, remedies, or defenses of any person under law or equity.

§30B-8-17. Administrative penalty.

The Secretary of State may assess a civil penalty against an athlete agent not to exceed $25,000 for a violation of this article.

§30B-8-18. Uniformity of application and construction.

In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

§30B-8-19. Electronic signatures in global and national commerce act.

The provisions of this article governing the legal effect, validity, or enforceability of electronic records or signatures, and of contracts formed or performed with the use of such records or signatures conform to the requirements of Section 102 of the Electronic Signatures in Global and National Commerce Act, Pub. L. No. 106-229, 114 Stat. 464 (2000), and supersede, modify, and limit the Electronic Signatures in Global and National Commerce Act.

§30B-8-20. Severability.

If any provision of this article or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this article which can be given effect without the invalid provision or application, and to this end the provisions of this article are severable.

§30B-8-21. Effective date.

This article takes effect on July 1, 2001.

NOTE: The purpose of this bill is to reorganize the articles in the current Chapter 30, regarding licensing of professions and occupations, into three separate chapters arranged by duties and educational requirements, both prior to and following licensing.

NOTE: This bill is recommended by the Joint Standing Committee on Government Organization for introduction and passage in the 2020 Regular Session.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.