Establishes a Hawaii Construction Authority.

A BILL FOR AN ACT

SECTION 1. Hawaii's construction industry is currently experiencing a boom with recent reports indicating that it will continue expanding, and will add more jobs and money into the local economy over the next several years to roughly twenty-nine thousand three hundred jobs, with increases of 6.5 per cent expected in 2005, and 3.1 per cent in 2006. Experts believe that this growth has been fueled by moderate but steady local economic expansion, stronger population growth, out-of-state second-home buyers of resort properties, low interest rates, and increases in privatization of military construction projects.

The legislature finds that the expansion of the construction industry raises a number of issues for both the industry and policymakers, such as the adequacy of the workforce and complaints about government bureaucracy and regulatory redundancy when developing properties. The legislature finds that Hawaii's construction and building development industries are governed by numerous agencies throughout the state, and that consolidating these agencies into a single entity would create a one-stop center for construction projects that would help to streamline the regulatory process.

Accordingly, the purpose of this Act is to create a Hawaii construction industry authority to provide consolidated oversight of the construction industry in Hawaii.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

§     -1 Definitions. As used in this part:

"Agency" means any agency, department, authority, board, commission, the University of Hawaii, or any other unit of the State or its political subdivisions.

"Authority" means the Hawaii construction authority established in section -2.

"Board" means the board of directors of the Hawaii construction authority established in section -2, and any successor thereto.

"Public agency" means any office, department, board, commission, bureau, division, public corporation agency, or instrumentality of the federal, state, or county government.

§ -2 Hawaii construction authority; establishment; board; staff. (a) There is established the Hawaii construction authority for the purpose of implementing this chapter, which shall be a body corporate and a public instrumentality of the State. The authority shall be placed within the department of labor and industrial relations for administrative purposes only.

(b) The authority shall be headed by a policy-making board of directors which shall consist of twelve public, voting members, and four ex officio nonvoting members; provided that:

(c) The public members shall be appointed by the governor for terms of four years. Each public member shall hold office until the member's successor is appointed and qualified. Section 26-34 shall be applicable insofar as it relates to the number of terms and consecutive number of years a member may serve on the board.

(d) The board shall elect a chairperson from among the voting members.

(e) Seven voting members shall constitute a quorum and a minimum of seven affirmative votes shall be necessary for all actions by the authority. The members shall serve without compensation, but shall be reimbursed for expenses, including traveling expenses, necessary for the performance of their duties.

(f) The board:

(g) The authority may employ persons not subject to chapters 76 and 78 to perform and execute the functions of the authority.

§ -3 Authority; private attorneys. (a) The board may appoint or retain by contract one or more attorneys who are independent of the attorney general to provide legal services for the board solely in cases in which the attorney general lacks sufficient expertise; provided that the independent attorney shall consult and work in conjunction with the designated deputy attorney general assigned to the Hawaii construction authority.

(b) The board may fix the compensation of the attorneys appointed or retained pursuant to this section. Attorneys appointed or retained by contract shall be exempt from chapters 76, 78, and 88.

§ -4 Powers and duties. (a) Except as otherwise limited by this chapter, the authority may:

(b) The authority shall be responsible for:

(c) The authority shall do any and all things necessary to carry out its purposes, to exercise the powers and responsibilities given in this chapter, and to perform other functions required or authorized by law.

§ -5 Meetings of the board. (a) The meetings of the board shall be open to the public as provided in section 92-3, except that when it is necessary for the board to receive information that is proprietary to a particular enterprise or the disclosure of which might be harmful to the business interests of the enterprise, the board may enter into an executive meeting that is closed to the public.

(b) The board shall be subject to the procedural requirements of section 92-4, and this authorization shall be in addition to the exceptions listed in section 92-5, to enable the authority board to respect the proprietary requirements of enterprises with which it has business dealings.

§ -6 Exemption of Hawaii construction authority from administrative supervision of boards and commissions. Notwithstanding any law to the contrary, the authority shall be exempt from section 26-35 with the exception of section

26-35(a)(2), (3), (7), and (8) and (b).

§ -7 Construction industry development plan; measures of effectiveness. (a) The authority shall be responsible for developing a long-range construction industry development plan that shall be updated every year and, at minimum, includes the following:

§ -8 Hawaii construction authority special fund. (a) There is established the Hawaii construction authority special fund, into which shall be deposited:

(b) Moneys in the Hawaii construction authority special fund may be:

All interest accruing from the investment of these moneys shall be credited to the Hawaii construction authority special fund.

(c) Moneys in the Hawaii construction authority special fund shall be used by the authority for the purposes of this chapter.

§ -9 Exemption of authority from Hawaii public procurement code. The authority shall not be subject to chapter 103D and any and all other requirements of law for competitive bidding for project agreements, lease and sublease agreements, or other contracts unless a project agreement with respect to a project otherwise shall require.

§ -10 Assistance by state and county agencies. Any state or county agency may render services upon request of the authority.

§ -11 Declaration of public function, purpose, and necessity. The powers and functions granted to and exercised by the Hawaii construction authority under this chapter are declared to be public and governmental functions, exercised for a public purpose, and matters of public necessity.

§ -12 Court proceedings; preferences; venue. (a) Any action or proceeding to which the authority, the State, or the county may be a party, in which any question arises as to the validity of this chapter, shall be preferred over all other civil cases, except election cases, in the circuit court of the circuit where the case or controversy arises, and shall be heard and determined in preference to all other civil cases pending therein except election cases, irrespective of position on the calendar.

(b) Upon application of counsel to the authority, the same preference shall be granted in any action or proceeding questioning the validity of this chapter in which the authority may be allowed to intervene.

(c) Any action or proceeding to which the authority, the State, or the county may be party, in which any question arises as to the validity of this chapter or any portion of this chapter, or any action of the authority may be filed in the circuit court of the circuit where the case or controversy arises, which court is hereby vested with original jurisdiction over the action.

(d) Notwithstanding any provision of law to the contrary, declaratory relief from the circuit court may be obtained for any action.

(e) Any party aggrieved by the decision of the circuit court may appeal in accordance with part I of chapter 641 and the appeal shall be given priority.

§ -13 Annual report. The authority shall submit a complete and detailed report of its activities, expenditures, and results to the governor and the legislature at least twenty days prior to the convening of each regular session of the legislature.

A. Licensing Generally

§ -14 Definitions. As used in this subpart:

"Authority" means the Hawaii construction authority established in section -2.

"Board" means any board or commission which is created and authorized by statute to issue a professional or vocational license, and is established within or transferred to the authority for administrative purposes or subject to the administrative control or supervision of the director.

"Executive secretary" or equivalent expressions means the individual employed by the authority, who shall assist the licensing authority in administering this part, its licensing laws, rules, and orders, and who shall perform such other ministerial duties and delegated functions as authorized by law.

"Forfeit" or "forfeiture" means the immediate and automatic termination or cancellation without any prior consultation with the licensee of a license issued by a board, caused by a licensee's voluntary or involuntary failure to comply with the requirements for maintaining or renewing a license.

"License" means the permission to engage in a profession or vocation granted by the applicable licensing authority to a person who has satisfied every applicable requirement for licensure, and shall include any registration, certificate, or other document issued by the licensing authority reflecting proof of permission.

"Licensee" means the person in whose name the licensing authority grants a license.

"Licensing authority" means the director, or any licensing board or commission under the administrative control of the director authorized by statute to grant or to deny licenses.

"Licensing laws" means the applicable subpart providing for the regulation, licensing, and practice of a profession or vocation by the licensing authority.

"Person" includes an individual, partnership, joint venture, corporation, association, business, trust, or any organized group of persons or legal entity, or any combination thereof.

"Program" means any regulatory program in which the director is authorized by law to grant or to deny a license to a person seeking permission to engage in a profession or vocation.

"Reinstate" or "reinstatement" means the permission to engage in a profession or vocation granted by the applicable licensing authority to a person whose license has been previously suspended by the licensing authority.

"Renew" or "renewal" means the permission to engage in a profession or vocation granted by the applicable licensing authority to a licensee who has applied for an extension of a current and valid license.

"Restore" or "restoration" means the permission to engage in a profession or vocation granted by the applicable licensing authority to a person whose license has been previously forfeited by the licensing authority.

§ -15 Applicability; prevailing provisions; construction. (a) The provisions of this part shall only be applicable to the professions and vocations required by law to be regulated by the licensing authority.

(b) Unless otherwise stated in this subpart, chapters 26H, 91, and 92 and the licensing laws or rules for the respective profession or vocation shall prevail. This chapter shall apply whenever chapters 26H, 91, and 92 and the licensing laws or rules for the respective profession or vocation are silent.

(c) This chapter shall be liberally construed to protect the health, safety, and welfare of consumers of services provided by a profession or vocation regulated by the licensing authority.

§ -16 Rules. The licensing authority may adopt rules pursuant to chapter 91 to effectuate this part and its licensing laws, and to carry out its purpose of protecting the health, safety, and welfare of consumers of services provided by a profession or vocation regulated by the licensing authority. The enumeration of specific matters which may properly be made the subject of rules shall not be construed to limit the licensing authority's broad general power to make all rules necessary to fully effectuate the purpose of this part.

§ -17 Conditions of office. (a) Each member of a board shall be selected and shall serve under the provisions of section 26-34, and before beginning a term of office, shall take an oath of office before a notary public, or other officer empowered to administer oaths.

(b) Each member of a board shall serve without pay. However, the actual and necessary traveling expenses incurred in connection with the performance of the member's official duties shall be paid by the authority, upon the presentation of vouchers approved by the authority.

§ -18 Organization of boards. (a) Immediately upon the qualification and appointment of the original members, and annually thereafter, the board shall elect one member as chair and one member as vice-chair. In the absence of both the chair and the vice-chair to preside at a meeting, the members present shall select a chair pro tem.

(b) Each board shall meet not less than twice a year at a time and place determined by the board.

(c) The majority of the members to which the board is entitled shall constitute a quorum. The concurrence of a majority of the members to which the board is entitled shall be necessary to make any action taken by the board valid. Each board shall conduct its meetings in accordance with chapters 91 and 92.

§ -19 Powers and duties of licensing authority. In addition to any other powers and duties authorized by law, each licensing authority may:

§ -20 Delegation of authority. (a) The board shall delegate to the department of commerce and consumer affairs the authority to receive, arbitrate, investigate, and prosecute any complaint against a licensee.

(b) A licensing authority may delegate to the executive secretary, or other designee, any of its powers or duties as it deems reasonable and proper. The delegation of powers and duties by the licensing authority shall be made in accordance with the procedures set forth in section -18(c). However, the licensing authority shall not delegate its discretionary functions resulting in a final decision, including but not limited to the following:

§ -21 Review of examinations. The authority, in its discretion, may allow an applicant to review the most recent examination failed by the applicant, provided that under no circumstances shall the licensing authority or the authority allow an examination to be copied.

§ -22 Action on applications; abandoned applications. (a) Unless otherwise provided by law, each licensing authority shall take the following actions within one year after the filing of a complete application for licensure:

(b) An application shall be considered to be abandoned if an applicant fails to provide evidence of continued efforts to complete the licensing process for two consecutive years;

provided that the failure to provide evidence of continued efforts includes but is not limited to:

provided further that the licensing authority may extend the above time periods by rule. The licensing authority shall not be required to act on any abandoned application, and the application may be destroyed by the licensing authority or its delegate. If the application is deemed abandoned by the licensing authority, the applicant shall be required to reapply for licensure and comply with the licensing requirements in effect at the time of reapplication.

§ -23 Application and requirements for licensure. (a) Application for a license shall be made on an application form to be furnished by the licensing authority. An applicant shall provide the following information on the application form:

Failure to provide the above information and pay the required fees shall be grounds to deny the application for licensure.

(b) In addition to any other requirements provided by law, all applicants shall be:

§ -24 Additional licensure requirements. In addition to any other requirements provided by law, the licensing authority may also require by rule that the applicant provide the following:

§ -25 Criminal conviction. When an applicant has been convicted of a penal crime directly related to the profession, vocation, or occupation for which licensure is sought, and it is determined that the conviction may be considered under section 831-3.1, the authority, executive secretary, or the licensing authority's designee may request the following documents from the applicant:

§ -26 Renewal of license. (a) Each licensee shall be responsible for timely renewing the licensee's license and satisfying the renewal requirements provided by law.

(b) At the time of license renewal, each licensee shall submit a completed renewal application and all applicable fees, and shall comply with any other requirement provided by law. A completed renewal application sent by United States mail shall be considered timely filed if the envelope bears a postmark of the required renewal date.

(c) The failure to timely renew a license, the failure to pay all applicable fees, the dishonoring of any check upon first deposit, or the failure to comply with any other requirement provided by law, shall cause the license to be automatically forfeited.

§ -27 Restoration of forfeited license. A license which has been forfeited may be restored by the licensing authority within one year after the date of forfeiture upon compliance with the licensing renewal requirements provided by law and upon written application and payment of all applicable renewal fees, penalty fees, Hawaii construction authority special fund feesand, if applicable, recovery fund assessments. Any person who fails to have the person's license restored within one year from the date of forfeiture may be required by the licensing authority to reapply for licensure as a new applicant.

§ -28 Extension of licenses for members of the armed forces, national guard, and reserves. (a) Notwithstanding any other law to the contrary, any license held by a member of the armed forces, national guard, or a reserve component that expires, is forfeited, or deemed delinquent while the member is on active duty and deployed during a state or national crisis shall be restored under the restoration requirements provided in this section.

For the purposes of this section, "state or national crisis" includes but is not limited to:

(b) The licensing authority shall restore a license upon the payment of the current renewal fee if the member:

(c) This section:

§ -29 Fees and expenses. No applicant or licensee shall be granted a license pursuant to the licensing laws unless the appropriate fees have been paid. Unless otherwise provided by law, the director shall establish the amount for all fees and expenses by rules adopted pursuant to chapter 91. The fees to be established by the director may include but not be limited to an application fee, filing fee, license fee, renewal fee, examination fee, and other reasonable and necessary fees related to the authority's administrative costs. Unless otherwise provided by law, the fees shall be deposited with the director to the credit of the Hawaii construction authority special fund established pursuant to section -8.

§ -30 Conversion of license. (a) Notwithstanding any other provision of law to the contrary, a licensee who has converted its form of business entity in accordance with sections 414-271, 414D-207, 415A-16.5, 425E-1102, and 428-902.5, and desires to continue engaging in a profession or vocation subject to this part in its new form of business entity shall:

(b) Failure to comply with the requirements of this section shall cause the license to be automatically forfeited. A licensee whose license is forfeited shall not engage in the profession or vocation until the license is restored or the licensee obtains a new license.

§ -31 Notice of judgments, penalties. (a) Each licensee shall provide written notice within thirty days to the licensing authority of any judgment, award, disciplinary sanction, order, or other determination, which adjudges or finds that the licensee is civilly, criminally, or otherwise liable for any personal injury, property damage, or loss caused by the licensee's conduct in the practice of the licensee's profession or vocation. A licensee shall also give notice of such determinations made in other jurisdictions.

(b) In addition to any other penalties provided by law, the failure of a licensee to comply with the provisions of this section is a violation punishable by a fine of not less than $100 for the first violation, $250 to $500 for the second violation, and $500 to $1,000 for subsequent violations. Any action taken to impose or collect the fine provided for in this subsection shall not be considered a criminal action.

§ -32 Filing of current addresses. Each licensee shall file with the licensing authority the licensee's current mailing, business, and residence address. It shall be the licensee's duty to provide written notice to the licensing authority of any change of address within thirty days of the change. Failure of the licensee to provide the notice shall absolve the licensing authority, executive secretary, or any designee from any duty to provide notice of any matter required by law to be provided the licensee.

§ -33 Disciplinary action. In addition to the licensing sanctions or remedies provided by section 92-17 against any licensee, the licensing authority may also impose conditions or limitations upon a licensee's license after a hearing conducted in accordance with chapter 91. The violation of any condition or limitation on a licensee's license may be cause to impose additional sanctions against the licensee. Unless otherwise provided by law, any fine imposed by the licensing authority after a hearing in accordance with chapter 91 shall be no less than $100 for each violation, and each day's violation may be deemed a separate violation.

§ -34 Grounds for refusal to renew, reinstate or restore and for revocation, suspension, denial, or condition of licenses. In addition to any other acts or conditions provided by law, the licensing authority may refuse to renew, reinstate or restore, or may deny, revoke, suspend, or condition in any manner, any license for any one or more of the following acts or conditions on the part of the licensee or the applicant thereof:

§ -35 Suspension or denial of license for noncompliance with child support order. In addition to any other acts or conditions provided by law, the licensing authority shall refuse to renew, reinstate, or restore, or shall deny or suspend any license if the authority has received certification from the child support enforcement agency pursuant to the terms of section 576D-13 that the licensee or applicant is not in compliance with an order of support or has failed to comply with a subpoena or warrant relating to a paternity or child support proceeding. Unless otherwise provided by law, the licensing authority shall renew, reinstate, restore, or grant the license only upon receipt of an authorization from the child support enforcement agency, the office of child support hearings, or the family court. Sections 92-17, -37, -38, -41, and

-42 shall not apply to a license suspension or denial pursuant to this section.

§ -36 Denial or suspension of license for default of student loan, student loan repayment contract, or scholarship contract. (a) In addition to any other acts or conditions provided by law, the licensing authority shall not renew or reinstate, or shall deny or suspend any license or application, if the department has received certification from an administering entity pursuant to chapter 436C that the licensee or applicant is in default or breach of any obligation under any student loan, student loan repayment contract, or scholarship contract that financed the licensee's or applicant's education, or has failed to comply with a repayment plan.

(b) The licensing authority in receipt of a certification pursuant to chapter 436C shall, as applicable, and without further review or hearing:

and unless otherwise provided by law, shall renew, reinstate, or grant the license only upon receipt of an authorization from the administering entity. Chapter 91 and sections 92-17, -33,

-37, -38, -41, and -42 shall not apply to a license suspension or denial under this section.

§ -37 Suspended license. No license shall be suspended by the licensing authority for a period exceeding five years. A person whose license has been suspended may apply for reinstatement of the license to the extent authorized by law and upon complete compliance with any term or condition imposed by the order of suspension. The application for reinstatement shall be accompanied by all applicable fees, including but not limited to reinstatement fees, any Hawaii construction authority special fund fees, and any recovery fund assessments.

§ -38 Revoked license. A person may apply for a new license after five years from the effective date of the revocation of the license by filing an application and complying with all current requirements for new applicants. The licensing authority may waive any applicable education or examination requirements upon being satisfied that the applicant whose license has been previously revoked, has submitted documentation that the applicant has maintained equivalent knowledge, competence, and qualifications through work experience, training, or education.

§ -39 Relinquishment no bar to jurisdiction. The forfeiture, nonrenewal, surrender, or voluntary relinquishment of a license by a licensee shall not bar jurisdiction by the licensing authority to proceed with any investigation, action, or proceeding to revoke, suspend, condition, or limit the licensee's license or fine the licensee.

§ -40 Summary suspension. Notwithstanding any law to the contrary, the licensing authority or its delegate may cause the immediate suspension or restriction of a license, subject to subsequent notice and hearing or other adequate procedures, upon a specific determination that the failure to take such an action may result in:

The licensing authority or its delegate may order the summary suspension of the license for a period not to exceed twenty days. The order of suspension shall be served upon the licensee at the same time as the notice of hearing for disciplinary action, and the hearing shall be scheduled prior to the expiration of the order of suspension. The period of suspension prior to the hearing shall not be extended beyond twenty days except upon request of the licensee for a reasonable continuance to adequately prepare the licensee's defense. Any attempt by the licensee to continue the licensed activity while the license has been summarily suspended shall of itself be sufficient to warrant a permanent revocation of the license and shall subject the licensee to all penalties prescribed by this part, the applicable licensing laws, or any rule or order of the licensing authority.

§ -41 Hearings. Unless otherwise provided by law, in every case in which the licensing authority refuses to issue, renew, restore or reinstate a license, or proposes to take disciplinary action or other licensing sanctions against a licensee, the proceeding before the licensing authority shall be conducted in accordance with chapter 91.

In all proceedings before it, the board and each member thereof shall have the same powers respecting administering oaths, compelling the attendance of witnesses and the production of documentary evidence, and examining witnesses as are possessed by circuit courts. In case of disobedience by any person of any order of the board or of a member thereof, or of any subpoena issued by it or a member, or the refusal of any witness to testify to any matter regarding which the witness may be questioned lawfully, any circuit judge, on application by the board or a member thereof, shall compel obedience as in the case of disobedience of the requirements of a subpoena issued by a circuit court, or a refusal to testify therein.

§ -42 Judicial review by circuit court. Any person aggrieved by a final decision and order of the board in a "contested case", as defined in chapter 91, is entitled to judicial review thereof by the circuit court of the circuit in which the board making the final decision and order has jurisdiction. The review shall be as provided by chapter 91.

§ -43 No compensation for unlicensed activity; civil action. The failure of any person to maintain a current and a valid license prior to engaging in any activity requiring licensure by the licensing authority shall prevent such person from recovering in a civil action for work or services performed or materials or supplies furnished, or both, on a contract or on any legal basis to recover the reasonable value thereof.

§ -44 Citation for unlicensed activity; civil penalties. (a) In addition to any other remedy available, the investigator may issue citations to persons acting in the capacity of or engaging in business within the state without having a license previously obtained under and in compliance with this part, the licensing laws for the respective profession or vocation, and the rules adopted thereunder.

(b) Each citation shall be in writing and shall describe the basis of the citation, including the specific statutory provisions alleged to have been violated, and may contain an order of abatement, and an assessment of civil penalties as provided in this section. All penalties collected under this section shall be deposited in the Hawaii construction authority special fund established under section -8.

(c) Any person who violates this section shall be assessed a civil penalty of:

(d) Service of a citation issued under this section shall be made by personal service or by certified mail, restricted delivery, sent to the last known business or residence address of the person cited.

(e) Any person cited under this section may submit a written request to the director for a hearing, within twenty days from the service of the citation, with respect to the violations alleged, the scope of the order of abatement, or the amount of the civil penalties assessed.

(f) If the person cited under this section timely notifies the director of the request for a hearing, the director shall afford an opportunity for a hearing under chapter 91. The hearing shall be conducted by the director or the director may designate a hearings officer to hold the hearing. The director or any hearings officer designated by the director shall have the power to issue subpoenas, administer oaths, hear testimony, find facts, make conclusions of law, and issue a final order.

(g) If the person cited under this section does not submit a written request to the director for a hearing within twenty days from the receipt of the citation, the citation shall be deemed a final order of the director.

(h) The director may apply to the appropriate court for a judgment to enforce the provisions of any final order issued by the director or designated hearings officer pursuant to this section, including the provision for abatement and civil penalties imposed.

(i) If any party is aggrieved by the decision of the director or the designated hearings officer, the party may appeal in the manner provided in chapter 91 to the circuit court of the circuit in which the party resides or has the party's principal place of business or in which the action in question occurred. The operation of an abatement order shall not be stayed on appeal unless specifically ordered by a court of competent jurisdiction after applying the stay criteria enumerated in section 91-14(c).

(j) The sanctions and disposition authorized under this section shall be separate from and in addition to all other remedies either civil or criminal provided in any other applicable statutory provision.

(k) The director may adopt rules pursuant to chapter 91 necessary for the purpose of this section.

§ -45 Civil and criminal sanctions for unlicensed activity; fines; injunctive relief; damages; forfeiture. (a) Any licensee aiding or abetting an unlicensed person to directly or indirectly evade this subpart or the applicable licensing laws, or combining or conspiring with an unlicensed person, or permitting one's license to be used by an unlicensed person, or acting as agent, partner, associate, or otherwise, of an unlicensed person with the intent to evade this subpart or the applicable licensing laws may be fined:

(1) Up to $1,000 for the first offense;

For purposes of this section, "contract price" means the total monetary consideration offered by the consumer for the provision of goods and services.

(b) Any person, who engages in an activity requiring a license issued by the licensing authority and who fails to obtain the required license, or who uses any word, title, or representation to induce the false belief that the person is licensed to engage in the activity, other than a circumstance of first instance involving the inadvertent failure to renew a previously existing license, shall be guilty of a misdemeanor and be subject to a fine of not more $1,000 or imprisoned not more than one year, or both, and each day's violation shall be deemed a separate offense.

(c) The authority, licensing authority, or any person may maintain a suit to enjoin the performance or the continuance of any act or acts by a person acting without a license where a license is required by law, and if injured thereby, for the recovery of damages. The authority may also seek the imposition of fines provided by subsection (a). The plaintiff or petitioner in a suit for an injunction need not allege or prove actual damages to prevail. Reasonable attorney fees and costs shall be allowed by the court to the plaintiff or petitioner as the prevailing party.

(d) All tools, implements, armamentariums, documents, materials, or any other property used by any person to provide professional or vocational services without a license required by law shall be declared forfeited to the State by the court and turned over to the authority for disposition as it deems appropriate.

§ -46 Remedies or penalties cumulative. Unless otherwise expressly provided, the remedies or penalties provided by this subpart are cumulative to each other and to the remedies or penalties available under all other laws of this State.

§ -47 Penalties for unlicensed acts in accordance with this chapter. (a) Unless otherwise provided for in this chapter, any person who furnishes commodities or services for which a license, registration, or certificate is required from the authority or any board or commission thereunder without having such license, registration, or certificate is engaged in an unlawful act or practice and shall be subject to the penalty provided in subsection (b).

(b) Any person who engages in an unlawful act or practice as provided in subsection (a) shall be fined by a sum not less than $500 nor more than $2,500 for each unlawful act or practice, which sum shall be collected in a civil suit brought by the office of consumer protection or the department of commerce and consumer affairs.

(c) Any contract for the furnishing of commodities or services by an unlicensed, unregistered, or uncertified person shall be void and shall prevent such person from recovering the contract price or the reasonable value thereof.

B. Contractors Licensing

§ -48 Definitions. As used in this subpart:

"Authority" means the Hawaii construction authority established in section -2.

"Board" means the contractors license board.

"Chlorofluorocarbon" or "CFC" means any member of the family of substances containing carbon, fluorine, and chlorine, including, without limitation, those compounds known as CFC-11, CFC-12, CFC-13, CFC-14, CFC-113, CFC-114, CFC-115, CFC-116, CFC-500, CFC-502, and CFC-503, and any combination or mixture containing any of these chlorofluorocarbon compounds.

"Contractor" means any person who by oneself or through others offers to undertake, or holds oneself out as being able to undertake, or does undertake to alter, add to, subtract from, improve, enhance, or beautify any realty or construct, alter, repair, add to, subtract from, improve, move, wreck, or demolish any building, highway, road, railroad, excavation, or other structure, project, development, or improvement, or do any part thereof, including the erection of scaffolding or other structures or works in connection therewith.

"Contractor", to the extent allowed under federal law includes a subcontractor, a specialty contractor, and any person, general engineering, general building, or specialty contractor who performs any of the activities listed in the previous paragraph directly or indirectly for the federal government.

"Director" means the executive director of the Hawaii construction authority.

"Hydrochlorofluorocarbon" or "HCFC" means any member of the family of substances containing hydrogen, carbon, fluorine, and chlorine, including, without limitation, those compounds known as HCFC-22 and HCFC-123 and any combination or mixture containing any of three hydrochlorofluorocarbon compounds.

"Investigator" means any person employed by the authority to investigate matters relating to any person who furnishes commodities or services for which a license is required from the authority or any board or commission thereunder.

"Refrigerant recovery and recycling equipment" means a device used to recover and to purify CFCs from a device for later reuse.

"RME" means responsible managing employee.

"Sale" means any arrangement between two or more persons as a result of which there is, or is to be, a transfer of property for a consideration.

§ -49 Exemptions. This subpart shall not apply to:

§ -50 Contractors license board. (a) There shall be a contractors license board of thirteen members.

(b) Of the board members:

(c) Each county shall be represented on the board.

(d) No one, except the three noncontractor members, shall be eligible for appointment who does not at the time of the member's appointment hold a valid and unexpired license to operate as a contractor.

§ -51 Powers and duties of board. In addition to any other powers and duties authorized by law, the board shall:

§ -52 Other assistants. Subject to chapter 76 the authority may employ and remove such administrative and clerical assistants as the contractors license board may require.

§ -53 Classification. (a) For the purpose of classification, the contracting business includes any or all of the following branches:

(b) A general engineering contractor is a contractor whose principal contracting business is in connection with fixed works requiring specialized engineering knowledge and skill, including the following divisions or subjects: irrigation, drainage, water power, water supply, flood control, inland waterways, harbors, docks and wharves, shipyards and ports, dams and hydroelectric projects, levees, river control and reclamation works, railroads, highways, streets and roads, tunnels, airports and airways, sewers and sewage disposal plants and systems, waste reduction plants, bridges, overpasses, underpasses and other similar works, pipelines and other systems for the transmission of petroleum and other liquid or gaseous substances, parks, playgrounds and other recreational works, refineries, chemical plants and similar industrial plants requiring specialized engineering knowledge and skill, powerhouses, power plants and other utility plants and installations, mines and metallurgical plants, land levelling and earth-moving projects, excavating, grading, trenching, paving and surfacing work and cement and concrete works in connection with the above mentioned fixed works.

(c) A general building contractor is a contractor whose principal contracting business is in connection with any structure built, being built, or to be built, for the support, shelter, and enclosure of persons, animals, chattels, or movable property of any kind, requiring in its construction the use of more than two unrelated building trades or crafts, or to do or superintend the whole or any part thereof.

(d) A specialty contractor is a contractor whose operations as such are the performance of construction work requiring special skill such as, but not limited to, electrical, drywall, painting and decorating, landscaping, flooring, carpet laying by any installation method, plumbing, or roofing work, and others whose principal contracting business involves the use of specialized building trades or crafts.

§ -54 Asbestos contractors. (a) The board shall provide for the licensure or permitted activities as a specialty contractor of any person who engages in any activity involving the application, enclosure, removal, encapsulation, renovation, repair, demolition, or other disturbances of friable asbestos or asbestos-containing material that may become friable during the activity; provided that this section shall not apply to activities such as maintenance, repair, or removal of asbestos pipe or sheets, vinyl asbestos floor materials, or asbestos- bituminous or resinous material as well as other activities that the board may exempt which are incidental to the primary purpose for which the contractor holds a license and if they were performed in a manner that no health hazard is posed to the public, the contractor, or the contractor's employees.

(b) No person shall be licensed as an asbestos contractor unless that person meets all requirements of subsection (c) in addition to the requirements in section -65.

(c) The licensing requirements and procedures, and the standards of conduct for individuals licensed as an asbestos contractor shall be as provided by rules and shall include but shall not be limited to provisions for the following:

The board shall consult with and shall initiate and maintain cooperative agreements with the departments of health, and labor and industrial relations, or any other state, federal, or county departments or agencies and the University of Hawaii or their community colleges in the development of these rules, and to develop procedures and methods for the enforcement of any asbestos activity.

(d) The authority, the board, and the department of health shall have the right of entry to any job site and access to any records of the licensee for purposes of inspection for health or safety hazards. Each agency shall be empowered to apply to a court of competent jurisdiction for an order restraining any activity at the job site which constitutes an imminent health or safety hazard.

(e) Any person who knowingly hinders or delays the authority, the board, or the department of health in the performance of their duties, who knowingly fails to obtain the licenses or registrations required by this section, or otherwise knowingly violates this section shall be guilty of a misdemeanor.

(f) The board may, in addition to any other remedies provided by law, and after a hearing conducted pursuant to chapter 91, assess a fine not to exceed $5,000 for each violation of this section. For purposes of this subsection, each day's violation shall constitute a separate violation.

§ -55 Powers to classify and limit operations. (a) The board may adopt rules and regulations necessary to effect the classification of contractors in a manner consistent with established usage and procedure as found in the construction business, and may limit the field and scope of the operations of a licensed contractor to those in which the contractor is classified and qualified to engage, as defined in section

-53.

(b) A licensee may make application for classification and be classified in more than one classification if the licensee meets the qualifications prescribed by the board for such additional classification or classifications. For qualifying or classifying in additional classifications, the licensee shall pay the appropriate application fee but shall not be required to pay any additional license fee.

(c) This section shall not prohibit a specialty contractor from taking and executing a contract involving the use of two or more crafts or trades, if the performance of the work in the crafts or trades, other than in which the specialty contractor is licensed, is incidental and supplemental to the performance of work in the craft for which the specialty contractor is licensed.

§ -56 Licenses required. No person within the purview of this subpart shall act, or assume to act, or advertise, as general engineering contractor, general building contractor, or specialty contractor without a license previously obtained under and in compliance with this subpart and the rules and regulations of the board.

§ -57 Issuance of building permits; owner-builder registration. (a) Each county or other local subdivision of the State which requires the issuance of a permit as a condition precedent to the construction, alteration, improvement, demolition, or repair of any building or structure shall also require that each applicant for such a permit file as a condition to the issuance of a permit a statement that the applicant and all specialty contractors are licensed under this subpart, giving the license numbers and stating that the licenses are in full force and effect, or, if the applicant is exempt from this subpart, the basis for the claimed exemption; provided that if the applicant claims an exemption under section

-49(7), the applicant shall also be required to certify that the building or structure is for the applicant's personal use and not for use or occupancy by the general public. Each county or local subdivision of the State shall maintain an owner-builder registration list which shall contain the following information:

The absence of such registration is prima facie evidence that the exemption in section -49(7) does not apply.

(b) The county shall verify the license against a list of licensed contractors provided by the board, which list shall be updated at least quarterly. The county shall also verify that the applicant is in fact the contractor so licensed or the contractor's duly authorized agent.

(c) To qualify for the exemption under section -49(7), the county shall provide the applicant with a disclosure statement in substantially the following form:

"Disclosure Statement

The county shall not issue a building permit to the owner-applicant until the applicant signs a statement that the applicant has read and understands the disclosure form.

(d) A county building inspector or other building official shall report to the regulated industries complaints office the name and address of any person, who, in the opinion of the building inspector or official, has violated this subpart by accepting or contracting to accomplish work which would classify the person as a contractor under this subpart.

§ -58 Advertising. (a) It is a misdemeanor for any person, including a person who is exempt by section -49 from this subpart, to advertise with or without any limiting qualifications as a contractor unless such person holds a valid license under this subpart for the goods and services advertised. "Advertise" as used in this section includes but is not limited to:

(b) A contractor may advertise in print or broadcast medium, as defined in subsection (a) only if the contractor includes in the advertisement or listing the contractor's applicable and current license number, and provides proof of the number's validity to the publisher or producer of the advertising medium. The publisher or producer of a print or broadcast advertising medium shall refuse to publish or broadcast an advertisement or listing for a contractor who does not comply with the provisions of this subsection. A publisher or producer who obtains a signed statement from the contractor which states that the contractor has read the text of the advertisement or listing, has an applicable and current contractors license for the goods and services advertised, has included all applicable and current license numbers in the advertisement or listing, and is aware of civil and criminal penalties for advertising as a contractor without a valid license, shall be entitled to a rebuttable presumption of compliance with this subsection.

(c) Upon entry of either a final order of the board pursuant to chapter 91 or a judgment by a court of competent jurisdiction finding that a contractor has advertised in violation of either section -56 or -58(a), the public utility furnishing telephone service to the contractor shall disconnect the telephone number contained in the advertisement or listing.

(d) The publisher or producer of a print or broadcast advertising medium shall not be liable in any suit, action, or claim arising from its refusal to list or accept advertisements pursuant to subsection (b). Good faith compliance by a public utility with subsection (c) is a complete defense to any civil or criminal action brought against it arising from the termination of telephone service.

§ -59 Aiding or abetting. Aiding or abetting an unlicensed person to evade this subpart or knowingly combining or conspiring with an unlicensed person, or allowing one's license to be used by an unlicensed person, or acting as agent or partner or associate, or otherwise, of an unlicensed person, with the intent to evade this subpart, shall be a misdemeanor.

§ -60 Licensing of craftsmen. At least half of all craftsmen requiring licenses employed on a construction project by a specialty contractor in the trade in which the craftsman is licensed shall be licensed in accordance with and to the extent required by subpart C of this chapter. The board may waive this requirement in any county when there are insufficient licensed craftsmen in that county to comply herewith.

§ -61 Investigation permitted. The board may investigate, classify, and qualify applicants for contractors licenses.

§ -62 Citation for unlicensed activity. (a) In addition to any other remedy available, the investigator may issue citations to persons acting in the capacity of or engaging in the business of a contractor within the state, without having a license previously obtained under and in compliance with this subpart and the rules promulgated thereunder. If the investigator determines that a person is acting in the capacity of, or engaging in the business of, a contractor within this state without having a license to so act or engage, the investigator may issue a citation to such person.

(b) Each citation shall be in writing and shall describe the basis of the citation, including the specific statutory provisions alleged to have been violated, and shall contain an order to cease and desist from the violation, and an assessment of civil penalties as provided in section -76. The citation shall also include notice of the sanctions for violating the cease and desist order. All penalties collected under this section shall be deposited in the Hawaii construction authority special fund established under section -8.

(c) Service of a citation issued under this section shall be made by personal service whenever possible, or by certified mail, restricted delivery, sent to the last known business or residence address of the person cited.

(d) Any person served with a citation under this section may submit a written request to the director for a hearing, within twenty days from the receipt of the citation, with respect to the violations alleged, the scope of the order to cease and desist, and the amount of the civil penalties assessed.

(e) If the person cited under this section timely notifies the director of the request for a hearing, the director shall afford an opportunity for a hearing under chapter 91. The hearing shall be conducted by the director or the director may designate a hearings officer to hold the hearing. The director or any hearings officer designated by the director shall have the power to issue subpoenas, administer oaths, hear testimony, find facts, and make conclusions of law and issue a final order.

(f) If the person cited under this section does not submit a written request to the director for a hearing within twenty days from the receipt of the citation, the citation shall be deemed a final order of the director.

(g) The director may apply to the appropriate court for a judgment to enforce the provisions of any final order issued by the director or designated hearings officer pursuant to this section, including the provisions to cease and desist and for civil penalties imposed. In any proceeding to enforce the provisions of the final order of the director or designated hearings officer, the director need only show that notice was given, a hearing was held or the time granted for requesting a hearing has run without such a request, and a certified copy of the final order of the director or designated hearings officer.

(h) If any party is aggrieved by the decision of the director or the designated hearings officer, the party may appeal in the manner provided in chapter 91 to the circuit court of the circuit in which the party resides or has the party's principal place of business or in which the action in question occurred; provided that the operation of a cease and desist order shall not be stayed on appeal unless specifically ordered by a court of competent jurisdiction after applying the stay criteria enumerated in section 91-14(c).

(i) The sanctions and disposition authorized under this section shall be separate from and in addition to all other remedies either civil or criminal provided in any other applicable statutory provision. The director may adopt rules under chapter 91 as may be necessary to fully effectuate this section.

(j) The director may apply to the appropriate court for injunctive or any other relief the court deems appropriate, including a fine of not less than $10,000 for each offense, against any person who violates a cease and desist order. Each day's violation or failure to comply with a cease and desist order shall be deemed a separate offense. The allegations in the citation shall be deemed conclusively established for purposes of a proceeding for permanent or temporary relief to enforce the cease and desist order.

§ -63 State of disaster; acting as a contractor without a license; penalty. Any person who violates section -56, in connection with the offer or performance of repairs to a residential or nonresidential structure for damage caused by a natural disaster in a political subdivision for which a state of disaster is proclaimed by the governor, may be punished by a fine of up to $10,000, or imprisonment up to one year, or both, in addition to all other remedies or penalties.

§ -64 Enhanced penalties when elderly persons are targeted. If any person is found to have violated section

-56 and the violation is committed against elderly persons, in addition to any other penalty set forth or imposed, the court may impose a fine of up to $10,000, or imprisonment up to one year, or both. As used in this section, "elderly person" means a person who is sixty-five years of age or older.

§ -65 No license issued when. (a) No license hereunder shall be issued to:

(b) Any license issued hereunder shall not be renewed if the licensee no longer meets any of the foregoing qualifications.

(c) An application shall be considered abandoned if the application is not completed and the required documents or other information are not submitted to the board within two years from the last date the documents or information were requested.

§ -66 Requirements to maintain license. (a) A licensed contractor shall have and maintain in full force and effect the following:

(b) Failure, refusal, or neglect of any licensed contractor to maintain in full force and effect, the applicable workers' compensation insurance, liability insurance, or bond shall cause the automatic forfeiture of the license of the contractor effective as of the date of expiration or cancellation of the contractor's workers' compensation insurance, liability insurance, or bond.

(c) The board shall not restore the forfeited license until satisfactory proof of continuous insurance and bond coverages is submitted to the board as required by this section.

(d) Failure to restore a license within sixty days after the date of forfeiture shall result in the forfeiture of all fees and shall require the person to apply as a new applicant.

(e) The board may assess a fee not to exceed $1,000, impose a bond, or restrict the license as a condition for the restoration of a license forfeited pursuant to this section.

(f) A licensee may, within sixty days after receipt of the notification of the forfeiture, request an administrative hearing to review the forfeiture pursuant to chapter 91.

§ -67 Application; fees. (a) Every applicant for a license under this subpart shall complete and file an application provided by the board and shall furnish any additional information bearing upon the issuance of the license as the board shall require. In the case of a partnership, joint venture, or corporation, any partner, member, or officer thereof may sign the application on behalf of the applicant.

(b) Every applicant who is required by the board to be examined shall pay, directly to the testing agency, an examination fee.

(c) These fees shall be as provided in rules adopted by the director pursuant to chapter 91.

§ -68 Form for licenses. The form of every license shall be prescribed by the board and shall be issued in the name of the board.

§ -69 Place of business and posting of license. (a) A licensed contractor shall have, maintain, and operate from a definite place of business in the state and shall display therein his or her contractor's license.

(b) The licensed contractor shall report any change of address or telephone number to the board within ten business days from such change.

§ -70 Fees; biennial renewals; inactive license. (a) The biennial renewal fee or inactive license fee, and the recovery fund, education fund, and Hawaii construction authority special fund fees shall be paid to the board on or before September 30 of each even-numbered year. These fees shall be as provided in rules adopted by the director pursuant to chapter 91. Failure, neglect, or refusal of any licensee to pay these fees and to submit all documents required by the board on or before September 30 of each even-numbered year shall constitute a forfeiture of the licensee's license.

(b) Any forfeited license may be restored upon submittal of all required documents and fees, plus a penalty fee, within sixty days from September 30 of the even-numbered year.

(c) Upon written request of a licensee, the board may place that person's active license in an inactive status. The licensee, upon payment of the inactive license fee, may continue inactive for the biennial period. Failure, neglect, or refusal of any licensee in inactive status to pay the inactive license fee shall constitute a forfeiture of the license. The license may be reactivated at any time during the biennial period by making written request to the board and by fulfilling all the requirements, including the payment of the appropriate fees. While in an inactive status, a licensee shall not engage in contracting; a licensee who violates this prohibition shall be subject to discipline under this subpart and the board's rules.

(d) For purposes of this subpart, the dishonoring of any check upon first deposit shall constitute a failure to meet the fee requirements.

§ -71 Action on applications. Within one hundred and twenty days after the filing of a proper application for a license and the payment of the required fees, the board shall:

§ -72 Bond. The board may require each licensee, applicant, individual or corporate, who is a specialty contractor to put up bond in the sum of not less than $5,000 executed by the licensee or applicant as principal and by a surety company authorized to do business in the state as surety.

The board may require each licensee, applicant, individual or corporate, who is a general contractor to put up a bond in the sum of not less than $5,000 executed by the licensee or applicant as principal and by a surety company authorized to do business in the state as surety.

The board, in exercising its discretion shall take into consideration the licensee's or applicant's financial condition and experience in the field.

The bond shall be in such form as the board may prescribe, conditioned upon the payment of wages, as defined in section 104-1(6), to the employees of the contractor or any other person or entity entitled to such wages when due, and giving employees or any other person or entity entitled to such wages who have not been paid a right of action on the bond in their own names; and upon the honest conduct of the business of the licensee, and upon the right of any person injured or damaged by any wrongful act of the licensee to bring an action on the bond; provided that any claim for wages shall have priority over all other claims.

§ -73 Revocation, suspension, and renewal of licenses. In addition to any other actions authorized by law, the board may revoke any license issued pursuant to this section, or suspend the right of a licensee to use a license, or refuse to renew a license for any cause authorized by law, including but not limited to the following:

(21) Failure to pay delinquent taxes, interest, and penalties assessed under chapter 237 that relate to the business of contracting, or to comply with the terms of a conditional payment plan with the department of taxation for the payment of such delinquent taxes, interest, and penalties.

§ -74 Death or dissociation. No copartnership, joint venture, or corporation shall be deemed to have violated any provision of this subpart by acting or assuming to act as a contractor after the death or dissociation of a licensee who had the direct management of the contracting business thereof prior to final disposition by the contractors license board of an application for a license made within thirty days from the date of the death or dissociation.

§ -75 Civil action. The failure of any person to comply with any provision of this subpart shall prevent such person from recovering for work done, or materials or supplies furnished, or both on a contract or on the basis of the reasonable value thereof, in a civil action, if such person failed to obtain a license under this subpart prior to contracting for such work.

§ -76 Violation; penalties. (a) Any licensee who contracts outside the appropriate scope of classification for which the licensee is licensed shall be fined $500 for the first offense, $1,000 for the second offense, and not less than $1,500 or more than $2,000 for any subsequent offense.

(b) Any licensee who violates section -59 or -73(17) shall be fined up to $25,000 or up to the full amount of the contract price for each offense, whichever is greater.

(c) Except as provided in subsections (a), (b), (d), and (e), any person who violates or fails to comply with this subpart shall be fined not less than $100 or more than $5,000 for each violation; provided that any person who violates section -56 shall be fined:

and when the person is or was a defendant or respondent in a separate citation or lawsuit filed with or by the authority, all tools, implements, documents, materials, or any other property used by the person in activities violating section -56 shall be subject to forfeiture as provided by section -77 and shall be turned over to the authority for disposition under that section.

(d) Any licensee who violates, or whose employee violates, section -73(18), -73(19), or -73(20), shall be fined $75 for the first offense, $150 for the second offense, and not less than $300 or more than $1,000 for each subsequent offense; provided that each unit serviced in violation of section

-73(18) or -73(19) and each instance of releasing CFCs in violation of section -73(20) shall constitute a separate offense.

(e) Any person who violates section -49(7), shall be fined:

§ -77 Forfeiture of property for unlicensed activity. (a) If an investigator finds that a person has acted in the capacity of, or engaged in the business of a contractor within this state without having a current license as required by this subpart to so act or engage, and the person is or was a defendant or respondent in a separate citation or lawsuit filed with or by the authority, the investigator may issue a notice of forfeiture of property used by the person in the unlicensed activity, and the property that is the subject of the notice of forfeiture shall be turned over to the authority for disposition in accordance with this subpart.

(b) Each notice of forfeiture shall be in writing and shall describe the tools, implements, documents, materials, or any other property used by any person in unlicensed activity that violates section -56.

(c) The authority shall make good faith efforts to locate and notify within a reasonable period of time all owners or interest-holders of property subject to a notice of forfeiture.

(d) Service of a notice of forfeiture issued under this section shall be made:

(e) An unlicensed person served with a notice of forfeiture under this section may submit a written request to the director for a hearing:

If a request for a hearing is not timely filed with the director, the notice of forfeiture shall be deemed a final order of the director.

(f) An owner or interest-holder served with a notice of forfeiture, other than the unlicensed person, may file a petition for remission of forfeiture with the authority within twenty days of service by personal service or mail, or within twenty days of the date of public notice, if service is by public notice. The petition shall be signed by the petitioner and sworn on oath before a notary public and shall contain the following:

If a petition for remission of forfeiture is not timely filed with the director, the notice of forfeiture shall be deemed a final order of the director.

(g) The authority shall review the petition for remission of forfeiture and, if remission is warranted, return the property subject to forfeiture to the petitioner within thirty days of receipt of the petition. If the authority determines that remission is not warranted, the authority shall issue a written decision to the petitioner within thirty days of receipt of the petition.

(h) A petitioner whose petition for remission has been denied may file with the director a written request for a hearing as provided under subsections (i) and (j). The written request shall be filed within twenty days of receipt of the written decision denying the petition for remission. If a request for hearing is not timely filed with the director, the notice of forfeiture shall be deemed a final order of the director.

(i) Hearings shall be subject to chapter 91 and shall be conducted by the director or a hearings officer designated by the director. The director or designated hearings officer may issue subpoenas, administer oaths, hear testimony, find facts, make conclusions of law, and issue a final order of forfeiture. The authority shall have the burden to show by clear and convincing evidence that the property is subject to forfeiture. In determining whether the property is subject to forfeiture, the director or hearings officer shall consider evidence of ownership, the description of the property, and any other relevant evidence.

(j) Any person aggrieved by the decision of the director or designated hearings officer may appeal the decision in the manner provided in chapter 91, to the circuit court of the circuit in which:

(k) The director may file an action in the circuit court for a judgment to enforce any final order issued by the director or designated hearings officer pursuant to this section. A judgment enforcing the final order shall issue upon a showing by the director either that notice was given and a hearing was held, or, that the time granted for requesting a hearing has run without the timely filing of a request.

(l) The authority may dispose of all property forfeited in accordance with this subpart by:

(m) All proceeds of a forfeiture action conducted pursuant to this section, after payment of expenses of administration and sale, shall be deposited in the Hawaii construction authority special fund established under section -8. Moneys in the fund shall be appropriated for the payment of any expenses necessary to seize, detain, appraise, inventory, safeguard, maintain, advertise, or sell property seized, detained, or forfeited pursuant to this section or any other necessary expenses incident to the seizure, detention, or forfeiture of such property.

(n) Forfeiture under this section shall be separate from and in addition to all other applicable remedies, either civil or criminal. This section shall not apply to the violations set forth in section -76(a) and (b).

(o) The director may adopt rules as necessary to fully effectuate this section.

§ -78 Injunction. The board may, in addition to any other remedies available, apply to a circuit judge for a preliminary or permanent injunction restraining any person from acting, or assuming to act, or advertising, as general engineering contractor, general building contractor, or specialty contractor, without a license previously obtained under and in compliance with this subpart and the rules and regulations of the board, and upon hearing and for cause shown, the judge may grant the preliminary or permanent injunction.

§ -79 Payment for goods and services. A contractor shall pay the contractor's subcontractor for any goods and services rendered within sixty days after receipt of a proper statement by the subcontractor that the goods have been delivered or services have been performed. The subcontractor shall be entitled to receive interest on the unpaid principal amount at the rate of one per cent per month commencing on the sixtieth day following receipt of the statement by the contractor, provided that this section shall not apply if the delay in payment is due to a bona fide dispute between the contractor and the subcontractor concerning the goods and services contracted for. If there is no bona fide dispute between the subcontractor and the contractor concerning the goods or services contracted for, the subcontractor shall be entitled to payment for goods and services under this section.

If payment is contingent upon receipt of funds held in escrow or trust, the contractor shall clearly state this fact in the contractor's solicitation of bids. If the solicitation for bids contains the statement that the time of payment is contingent upon the receipt of funds held in escrow or trust and a contract is awarded in response to the solicitation, interest will not begin to accrue upon any unpaid balance until the sixtieth day following receipt by the contractor of the subcontractor's statement or the thirtieth day following receipt of the escrow or trust funds, whichever occurs later.

§ -80 Disclosure; contracts. (a) Prior to entering into a contract with a homeowner involving home construction or improvements and prior to the application for a building permit, licensed contractors shall:

(b) All licensed contractors performing home construction or improvements shall provide a written contract to the homeowner. The written contract shall:

(c) For the purpose of this section, "homeowner" means the owner or lessee of residential real property, including owners or lessees of condominium or cooperative units.

(d) Any violation of this section shall be deemed an unfair or deceptive practice and shall be subject to provisions of chapter 480, as well as the provisions of this subpart.

§ -81 Roofing contractors guarantee bond. (a) Every contract executed for the purpose of constructing, repairing or improving a roof covering, which contract states a guarantee for workmanship for a period in excess of seven years, shall be accompanied by a bond, executed by the licensee as principal and by a surety company authorized to do business in the state as a surety, for the replacement value of such roof covering; provided that no surety company shall be compelled to issue a bond for any guarantee pursuant to a contract under this section which it would not ordinarily bond or consider to be a bondable project.

(b) Such bond shall be for the exclusive benefit of, and be limited to, an owner or lessee of a private residence, including a condominium or cooperative unit, who has contracted with a duly licensed contractor for the construction of a roof covering to the owner's or lessee's own private residence and who has filed an appropriate claim for the replacement value of a roof covering which has become faulty or defective within the stated guarantee period.

(c) The surety bond shall be continuous in form and the total aggregate liability of the surety for all claims shall be limited to the face amount of the bond irrespective of the number of years the bond is in force.

(d) Any claim or subsequent action to make a claim against the bond shall be brought not later than one year after the expiration of the guarantee period for which the bond has been provided. Claims against the bond, as provided in this section, shall not in any way supersede or prevent claims made under section -82 or any other appropriate statute or law.

(e) Every contractor licensed to perform under this subpart shall, prior to entering into a contract covered by this section, provide to the owner appropriate information to evidence the existence of the bond and its conditions in writing.

(f) Bonds required under this section shall be in addition to any other bond required by this subpart or any other bond required or executed between a contractor and an owner or other contracting agency.

(g) Any violation by any contractor of any provision of this section or failure to maintain in full force and effect any bond required by this section, shall be deemed to be an unfair and deceptive act or practice.

§ -82 Contractors recovery fund; use of fund; person injured; fees. (a) The board is authorized to establish and maintain a contractors recovery fund from which any person injured by an act, representation, transaction, or conduct of a duly licensed contractor, which is in violation of this subpart or the rules adopted pursuant thereto, may recover by order of the circuit court or district court of the judicial circuit where the violation occurred, an amount of not more than $12,500 per contract, regardless of the number of persons injured under the contract, for damages sustained by the act, representation, transaction, or conduct. Recovery from the fund shall be limited to the actual damages suffered by the claimant, including court costs and fees as set by law, and reasonable attorney fees as determined by the court; provided that recovery from the fund shall not be awarded to persons injured by an act, representation, transaction, or conduct of a contractor whose license was suspended, revoked, forfeited, terminated, or in an inactive status at the time the claimant entered into the contract with the contractor.

(b) For the purposes of this subpart, "person injured" or "injured person" means and is limited to owners or lessees of private residences, including condominium or cooperative units, who have contracted with a duly licensed contractor for the construction of improvements or alterations to the owners' or lessees' own private residences and owners or lessees of real property who have contracted with a duly licensed contractor for the construction of the owners' or lessees' own private residences on the owners' or lessees' real property.

(c) When any person applies for a contractors license, the person shall pay, in addition to the person's original license fee, a fee of $150 for deposit in the contractors recovery fund, and a fee for deposit in the contractors education fund as provided in rules adopted by the director pursuant to chapter 91. In the event that the board does not issue the license, these fees shall be returned to the applicant.

§ -83 Additional payments to fund. (a) At any time when the balance remaining in the contractors recovery fund is less than $250,000, the board may assess every contractor a fee not to exceed $500 annually for deposit in the contractors recovery fund.

(b) The failure of any contractor to pay the assessment within sixty days from the date of assessment shall constitute a forfeiture of the contractor's license. The board may impose other penalties or requirements as a condition of restoration of the license.

§ -84 Statute of limitations; recovery from fund. (a) No action for an arbitration award or for a judgment which may subsequently result in an order for collection from the contractors recovery fund shall be commenced later than six years from the accrual of the cause of action thereon. When any injured person commences action for an arbitration award or for a judgment which may result in collection from the contractors recovery fund, the injured person shall notify the board in writing to this effect at the time of the commencement of such action. The board shall have the right to intervene in and defend any such action. Nothing in this section shall supersede the statute of limitations as contained in section 657-8.

(b) When any injured person recovers a valid judgment in any circuit court or district court of the county where the violation occurred against any licensed contractor for such act, representation, transaction, or conduct which is in violation of the provisions of this subpart or the regulations promulgated pursuant thereto, which occurred on or after June 1, 1974, the injured person may, upon the termination of all proceedings, including reviews and appeals in connection with the judgment, file a verified claim in the court in which the judgment was entered and, upon ten days' written notice to the contractors license board, may apply to the court for an order directing payment out of the contractors recovery fund, of the amount unpaid upon the judgment, subject to the limitations stated in this section. Before proceeding against the contractors recovery fund, the injured person must first proceed against any existing bond covering the licensed contractor.

(c) The court shall proceed upon such application in a summary manner, and, upon the hearing thereof, the injured person shall be required to show:

(d) The court shall make an order directed to the contractors license board requiring payment from the contractors recovery fund of whatever sum it shall find to be payable upon the claim, pursuant to the provisions of and in accordance with the limitations contained in this section, if the court is satisfied, upon the hearing of the truth of all matters required to be shown by the injured person by subsection (c) of this section and that the injured person has fully pursued and exhausted all remedies available to the injured person for recovering the amount awarded by the judgment of the court.

(e) The license of the contractor shall be automatically terminated upon execution of a settlement agreement requiring payment from the contractors recovery fund or the issuance of a court order authorizing payment from the contractors recovery fund. No contractor shall be eligible to receive a new license until the contractor has repaid in full, plus interest at the rate of ten per cent a year, the amount paid from the contractors recovery fund on the contractor's account. A discharge in bankruptcy shall not relieve a person from the penalties and disabilities provided in this subsection.

(f) If, at any time, the money deposited in the contractors recovery fund is insufficient to satisfy any duly authorized claim or portion thereof, the contractors license board shall, when sufficient money has been deposited in the contractors recovery fund, satisfy such unpaid claims or portions thereof, in the order that such claims or portions thereof were originally filed.

(g) With respect to the repair or alteration of an existing residential building or structure or any appurtenance thereto, including but not limited to swimming pools, retaining walls, garages or sprinkling systems, initial construction of such appurtenances, and landscaping of private residences, including condominium or cooperative units, pursuant to a contract between the owner and a licensed contractor for which the owner has paid the contractor in full, should, because of the contractor's default, a mechanic's or materialman's lien be enforced against the property pursuant to section 507-47, the court hearing the action shall award such an owner or the owner's assigns a valid judgment against the contractor in an amount equal to the amount of the lien together with reasonable attorney's fees as determined by the court. The judgment shall include an order directing payment out of the contractors recovery fund. Notwithstanding any other provisions of this section to the contrary, the owner or the owner's assigns need not meet any other requirement to secure payment from the contractors recovery fund, except that notice of the lien enforcement hearing shall be given to the contractors license board so it may appear pursuant to section -87.

§ -85 Management of fund. The sums received by the board for deposit in the contractors recovery fund shall be held by the board in trust for carrying out the purposes of the contractors recovery fund. The board, as trustee of the recovery fund, shall be authorized to retain private legal counsel to represent the board in any action which may result in collection from the contractors recovery fund. These funds may be invested and reinvested in the same manner as funds of the state employees' retirement system, and the interest from these investments shall be deposited to the credit of the contractors education fund, and which shall be available to the board for educational purposes, which is hereby created.

§ -86 False statement. It shall constitute a misdemeanor for any person or the person's agent to file with the contractors license board any notice, statement, or other document required under the provisions of this subpart, which is false or untrue or contains any material misstatement of fact.

§ -87 The board has standing in court. When the board receives notice, as provided in section -84(a), the board may enter an appearance, file an answer, appear at the court hearing, defend the action or take whatever other action it may deem appropriate. The board or its legal representative shall be served with all pleadings in an action which may result in a recovery from the contractors recovery fund.

Settlement of any claim against the contractors recovery fund shall be made only with the unanimous agreement of the board, director, and attorney general that settlement is in the best interest of the contractors recovery fund.

§ -88 Subrogation to rights of creditor. When, upon the order of the court, the board has paid from the contractors recovery fund any sum to the judgment creditor, the board shall be subrogated to all of the rights of the judgment creditor and the judgment creditor shall assign all the judgment creditor's right, title and interest in the judgment to the board and any amount and interest so recovered by the board on the judgment shall be deposited to the credit of said fund.

§ -89 Waiver of rights. The failure of an injured person to comply with all of the provisions of this subpart relating to the contractors recovery fund shall constitute a waiver of any right hereunder.

§ -90 Maximum liability. Notwithstanding any other provision, the liability of the contractors recovery fund shall not exceed $25,000 for any licensed contractor.

§ -91 Disciplinary action against licensee. Nothing contained herein shall limit the authority of the board to take disciplinary action against any licensee for a violation of any of the provisions of this subpart, or of the rules and regulations of the board; nor shall the repayment in full of all obligations to the contractors recovery fund by any licensed contractor nullify or modify the effect of any other disciplinary proceeding brought pursuant to the provisions of this subpart or the rules and regulations.

§ -92 Prosecution of criminal violations. The director shall report any criminal violation of this part, including but not limited to criminal contempt of court, to the county prosecuting attorney's office or the department of the attorney general for prompt prosecution.

§ -93 Definitions. As used in this subpart, unless otherwise indicated by the context:

"Board" means the board of electricians and plumbers.

"Journey worker electrician" means any person who has been licensed by the board as a journey worker electrician to perform electrical work.

"Journey worker industrial electrician" means any person who has been licensed by the board as a journey worker industrial electrician to perform and maintain electrical work related to substation, switchgear, automatic controls, and all other industrial electrical work in existing industrial buildings and work places.

"Journey worker plumber" means any person who has been licensed by the board as a journey worker plumber to direct and supervise the performance of plumbing work and to perform plumbing work.

"Journey worker specialty electrician" means any person who has been licensed by the board as a journey worker specialty electrician to perform electrical work related to installing, repairing, altering, and maintaining but not the attachment of lighting and power circuits to, the following: electronic equipment, sound public address systems, and communication systems, other than equipment and systems for a single-family or two-family dwelling; master or community radio and television receiving antenna systems; sound recording systems, other than systems for a single-family or two-family dwelling; burglar and fire alarm systems; low voltage remote control, other than a control for a single-family or two-family dwelling; and low voltage communication signal systems.

"Maintenance electrician" means any person who has been licensed by the board as a maintenance electrician to maintain electrical work.

"Master plumber" means any person who has been licensed by the board as a master plumber to direct and supervise the performance of plumbing work and to perform plumbing work and who provides overall supervision and general direction and is responsible for proper installation of plumbing work.

"Supervising electrician" means any person who has been licensed by the board as a supervising electrician to direct and supervise the performance of electrical work and to perform electrical work.

"Supervising industrial electrician" means any person who has been licensed by the board as a supervising industrial electrician to direct and supervise electrical work related to substation, switchgear, automatic controls, and all other industrial electrical work in existing industrial buildings and work places.

"Supervising specialty electrician" means any person who has been licensed by the board as a supervising specialty electrician to direct and supervise the performance of electrical work related to installing, repairing, altering, and maintaining, but not the attachment of lighting and power circuits, to the following: electronic equipment, sound public address systems, other than equipment and systems for a single-family or two- family dwelling; master or community radio and television receiving antenna system; sound recording systems other than systems for a single-family or a two-family dwelling; burglar and fire alarm systems; low voltage remote control, other than control for a single-family or two-family dwelling; and low voltage communication signal systems.

§ -94 Board; appointment. There is established the board of electricians and plumbers consisting of seven members. Two of the members shall be engaged in the electrical trade and two of the members shall be engaged in the plumbing trade. Three of the members shall be private citizens not connected with the industry.

§ -95 Powers and duties of board. In addition to any other powers and duties authorized by law, the board shall have all the powers and duties necessary or convenient to carry out and effectuate this subpart, including but not limited to the following powers and duties:

§ -96 Minimum requirements. An applicant shall possess the following minimum qualifications:

§ -97 Examination. (a) Every applicant shall be examined and shall pass an examination to be eligible for licensure. The board shall provide in its rules the passing score for the examination. The board may examine applicants or may contract with professional testing services to prepare, administer, and grade the examination as may be required for the purpose of this section.

(b) Every applicant shall pay an examination fee as provided in rules adopted by the director pursuant to chapter 91. Should the board contract with a professional testing agency to prepare, administer, and grade the examination, the examination fee may be paid directly to the testing agency by the director or the examinee.

§ -98 Fees; renewals. (a) Renewal fees shall be paid to the board before July 1.

(b) Plumbers shall renew the license every three years effective June 30, 2006, and shall pay all required fees. Prior to the June 30, 2009, renewal of the license, and prior to every license renewal thereafter, the applicant shall:

(c) Electricians shall renew the license every three years effective with the July 1, 1996, renewal; provided that prior to the renewal of the license the applicant shall:

(d) Failure, neglect, or refusal of any licensee to pay the renewal fee or meet the requirements of section -99 before the renewal date shall constitute a forfeiture of the license. Any license so forfeited may be restored upon written application within one year from the date of forfeiture, upon payment of the required renewal fee plus penalty fees and upon meeting the requirements in section -99.

§ -99 Continued competency; license renewals. (a) Prior to each license renewal, all licensed electricians except maintenance electricians shall:

(b) Prior to each license renewal, all licensed plumbers shall:

(c) A licensee who has been issued a new license within one year of the renewal date shall not be required to take the course or the examination to renew the licensee's license.

§ -100 Unlicensed activity. (a) No person shall act or assume to act as a journey worker electrician, journey worker specialty electrician, supervising electrician, supervising specialty electrician, journey worker plumber, master plumber, maintenance electrician, journey worker industrial electrician, or supervising industrial electrician without a license previously obtained in compliance with this subpart and the rules of the board; provided that any person may perform emergency plumbing repair work in the person's principal place of residence when such repairs do not involve or require rearrangement of valves, pipes, or fixtures; provided further that no such emergency repairs may be performed on sewer lines, drains, gas lines, and on fixtures being served with backflow devices which includes heaters, water closets, dishwashers, and garbage disposal units.

(b) An apprentice or trainee learning the trade of a person licensed under this subpart shall not be required to have a license if the apprentice or trainee acts under the supervision of a person appropriately licensed under this part.

§ -101 Suspension; revocation; fine; denial of issuance or renewal of a license. (a) In addition to any other actions authorized by law the board, after notice and hearing as provided in chapter 91, may suspend or revoke any license, or impose fines, or prior to the notice and hearing, deny the issuance or renewal of any license for any cause authorized by law, including but not limited to the following:

(b) Any person who violates any provision of this subpart shall be fined not less than $100 and not more than $1,000 for each violation.

§ -102 Injunction. The board may, in addition to any other remedy available, apply to a circuit court judge for a temporary restraining order or preliminary or permanent injunction restraining any person from acting, or assuming to act, as a journey worker electrician, journey worker specialty electrician, supervising electrician, supervising specialty electrician, maintenance electrician, journey worker industrial electrician, supervising industrial electrician, journey worker plumber, or master plumber without a license previously obtained in compliance with this subpart and the rules of the board, and upon hearing and for cause shown, the judge may grant the temporary restraining order or preliminary or permanent injunction.

§ -103 Inspections. Nothing in this subpart should deprive the several counties of the right to perform electrical or plumbing inspections, as regulated by their respective ordinances.

§ -104 Exemption of public utility and community antennae television company employees. All employees of a public utility within the state under a franchise or charter granted by the State which is regulated by the public utilities commission and community antennae television company, while so employed, shall be exempt from the provisions of this subpart.

D. Elevator Mechanics Licensing

§ -104 Definitions. As used in this part:

"Apprentice elevator mechanic" means any person who is in training to acquire the skill to become an elevator mechanic and who is required to work for at least four years under the supervision of an elevator mechanic duly licensed under section

-105.

"Board" means the elevator mechanics licensing board created by this chapter.

"Elevator mechanic" means any person who engages in the construction, reconstruction, alteration, maintenance, mechanical, or electrical work or adjustments of any elevator, dumbwaiter, stage lift, mechanized parking garage elevator, escalator, moving walk or ramp, lift including any construction, reconstruction, alteration, or adjustment of the structure or facility of which the same may be a part or to which the same may be attached, necessary for proper completion of the work on the elevator, dumbwaiter, stage lift, mechanized parking garage elevator, escalator, moving walk or ramp, or lift.

§ -105 License required. No person shall operate or practice as an elevator mechanic unless the person is licensed under this subpart.

§ -106 Elevator mechanics licensing board; appointment; organization. There is created an elevator mechanics licensing board within the Hawaii construction authority for administrative purposes. The board shall consist of seven members:

(1) Four shall be licensed elevator mechanics;

§ -107 Meetings. The board shall meet not less than twice a year at a time and place as determined by the board. The board shall also meet but not later than thirty days prior to the licensing examination pursuant to section -108(2) in order to evaluate applications therefor. Any board member who misses two consecutive meetings of the board or fifty per cent of the meetings in a year shall be removed from the board.

§ -108 Powers and duties of the board. In addition to any other powers and duties authorized by law, the board shall:

§ -109 Qualifications for license. No person shall be licensed as an elevator mechanic unless the person has satisfactorily passed the examination administered by the board and satisfactorily completed at least four years of training under the supervision of a licensed elevator mechanic.

§ -110 Temporary permit. The board may issue a temporary permit to any person who has qualified as an elevator mechanic in another state with standards substantially equal to those of this subpart and who possesses skills or training not available in the state; provided that the board shall not register any such person as an apprentice elevator mechanic. The board shall, by rules and regulations, establish the terms of the temporary permit.

§ -111 Fees. Application, examination, license, temporary permit, and biennial renewal fees shall be as provided in rules adopted by the executive director of the Hawaii construction authority pursuant to chapter 91. A fee is required for each reexamination. Application fees are not refundable.

Licenses shall expire on June 30 of each even-numbered year.

§ -112 Injunctive relief. The board may apply for an injunction in any court of competent jurisdiction to enjoin any person who has not been issued a license or registered or whose license has been suspended or revoked or has expired; and, upon the filing of a verified petition in the court, the court or any judge thereof, if satisfied by affidavit or otherwise, may issue a temporary injunction, without notice or bond, enjoining the defendant from further practicing as an elevator mechanic. A copy of the verified complaint shall be served upon the defendant and the proceedings shall thereafter be conducted as in other civil cases. If it is established that the defendant has been or is practicing as an elevator mechanic without having been issued a license or registered or has been or is practicing as an elevator mechanic after the defendant's license has been suspended or revoked or has expired, the court or any judge thereof may enter a decree enjoining the defendant from further practicing as an elevator mechanic. In case of violation of any injunction issued under this section, the court may summarily try and punish the offender for contempt of court. The injunction proceeding shall be in addition to, and not in lieu of, all penalties and other remedies provided in this subpart.

§ -113 Penalties. Any person who violates this subpart shall be fined not more than $500 for a first offense. For each subsequent offense the person shall be fined not more than $1,000, or imprisoned not more than one year, or both.

Part E. Engineers, Architects, and Surveyors Licensing

§ -114 Definitions. As used in this part:

"Architect" means a person who holds oneself out as able to perform, or who does perform, any professional service such as consultation, investigation, evaluation, planning, design, including aesthetic and structural design, or observation of construction, in connection with any private or public buildings, structures, or projects or the equipment or utilities thereof, or the accessories thereto, wherein the safeguarding of life, health, or property is concerned or involved, when the professional service requires the application of the art and science of construction based upon the principles of mathematics, aesthetics, and the physical sciences.

"Landscape architect" means a person who holds oneself out as able to perform professional services such as consultation, investigation, reconnaissance, research, design, preparation of drawings and specifications, and observation of construction where the dominant purpose of the services is:

This practice shall include the location, arrangement, and design of tangible objects and features as are incidental and necessary to the purposes outlined herein. Nothing herein shall preclude a duly licensed landscape architect from planning the development of land areas and elements used thereon or from performing any of the services described in this section in connection with the settings, approaches, or environment for buildings, structures, or facilities; provided that nothing in this subpart shall empower a landscape architect licensed under this subpart from practicing or offering to practice architecture or engineering in any of its various recognized branches.

"Professional engineer" means a person who holds oneself out as able to perform, or who does perform, any professional service such as consultation, investigation, evaluation, planning, design, or observation of construction or operation, in connection with any public or private utilities, structures, buildings, machines, equipment, processes, works, or projects, wherein the safeguarding of life, health, or property is concerned or involved, when such professional service requires the application of engineering principles and data.

"Surveyor" or "land surveyor" means a person who holds oneself out as able to make, or who does make cadastral surveys of areas for their correct determination and description, either for conveyancing or for the establishment or reestablishment of land boundaries or the plotting of lands and subdivisions thereof.

§ -115 Licensing of practicing engineers, etc. To safeguard life, health, and property, no person except those exempted by sections -116 and -118 shall practice professional engineering, architecture, land surveying or landscape architecture in the state unless the person is duly licensed under this subpart.

§ -116 Persons exempt from licensure. Persons practicing professional engineering, architecture, land surveying, or landscape architecture solely as officers or employees of the United States shall be exempted from the provisions of this subpart.

§ -117 Public works. (a) Notwithstanding any other provision to the contrary, public works projects involving:

(b) All land surveys involving property boundaries for public purposes or plans thereof shall be made or supervised by a licensed surveyor. The licensed land surveyor shall stamp the land surveys or plans, and indicate that the licensee has prepared or supervised the preparation of the land surveys or plans.

(c) For purposes of this section:

"Maintenance" means minor repairs or replacement work which do not affect or involve the structural integrity of the public works project.

"Public works projects" means projects undertaken by the state, counties, or any political subdivisions thereof.

§ -118 Limitation upon application of subpart. Nothing in this subpart shall prevent any person from engaging in engineering, architectural, or landscape architectural work and undertakings upon property owned or exclusively controlled or possessed by that person, or from hiring any person to do the work and undertakings, unless the work and undertakings involve the safety or health of the public, nor shall anything in this chapter prevent any person from engaging in land surveying upon property owned or exclusively controlled or possessed by that person or from hiring any person to do the work, unless the work involves a common boundary.

Nothing in this subpart shall be construed as applying to the business conducted in this state by any agriculturist, horticulturist, tree expert, arborist, forester, gardenshop operator, nursery operator or landscape nursery operator, gardener, landscape gardener, landscape contractor, landscape designer, landscape consultant, garden or lawn caretaker, or cultivator of land, as these terms are generally used, except that no person shall use the designation "landscape architect", "landscape architectural", or "landscape architecture" unless licensed under the provisions of this subpart.

All engineering work, architectural work, and landscape architectural work in which the public safety or health is involved shall be designed by and the construction observed by a duly licensed professional engineer, architect, or landscape architect, respectively.

§ -119 Board of professional engineers, etc., members; appointment; tenure; qualifications. There shall be a state board of professional engineers, architects, surveyors, and landscape architects hereinafter called "the board". The board shall consist of fourteen members, including at least four professional engineers, three professional architects, two professional surveyors, two professional landscape architects, and three public members. Each county shall be represented by at least one member who is a resident of the county. Each member shall hold over after the expiration of the member's term until the member's successor is duly appointed and qualified.

Each member shall have been a resident of the state for at least three years. A member representing the profession shall have been engaged in the practice of the member's profession for at least five years immediately preceding the date of the member's appointment. Any member of the board who incurs expenses in connection with the preparation and grading of examination papers shall be reimbursed for those expenses with the approval of the authority.

§ -120 Powers and duties of board; secretary; records. In addition to any other powers and duties authorized by law, the board may compel the attendance of witnesses upon subpoena, administer oaths, take testimony, and do all other things necessary and proper to carry out this subpart in all matters within its jurisdiction. It shall adopt and have an official seal and adopt, subject to chapter 91 and with the approval of the governor and the director, rules for the performance of its duties and the carrying on of its business and the enforcement of this subpart, including but not limited to rules which define the branches of engineering in which licensure shall be offered, clarify the qualifications needed for licensure, and set forth practice requirements. It shall have a chairperson, a vice-chairperson, and a secretary, and a quorum shall consist of not less than six members.

The board shall keep a record of its proceedings and all applicants for licensure as engineers, architects, surveyors, or landscape architects, the date of application, name, educational and other qualifications, address, whether or not an examination was required, and whether or not the applicant was licensed and a certificate issued to the applicant and the date of the action. The records shall be prima facie evidence of all matters therein contained.

§ -121 Qualifications for licensure. (a) No person shall be eligible for licensure as a professional engineer unless:

(b) No person shall be eligible for licensure as a professional architect unless:

provided that those persons who qualify under paragraphs (2) through (5), as of June 30, 2000, shall be required to fulfill the requirements of the intern development program of the National Council of Architectural Registration Boards or of any similar program satisfactory to the board, and approved by the board. For paragraph (2), the intern development program shall fulfill the experience requirement. For paragraphs (3), (4), and (5), time participating in the intern development program shall be credited toward the experience requirement.

(c) No person shall be eligible for licensure as a professional land surveyor unless:

(d) No person shall be eligible for licensure as a professional landscape architect unless:

The applicant shall also certify on the application that the applicant has read, understood, and agrees to comply with the laws and rules that the board determines are required for licensure.

In addition to the foregoing requirements, the board, in its discretion, may also require additional proof that the applicant is competent to practice professionally, and whenever the board is not fully satisfied from the results of an examination that any applicant is competent to practice professionally, it may give the applicant a further examination or examinations.

No person shall be eligible for licensure as a professional engineer, architect, land surveyor, or landscape architect if the person does not possess a history of honesty, truthfulness, financial integrity, and fair dealing.

§ -122 Applications for and certificates of licensure; renewal; fees; continuing education. (a) Application for licensure shall be made upon a form prescribed by the board and shall be signed by the applicant. With each application there shall be paid to the board a nonrefundable application fee.

For each examination, or repetition thereof in whole or in part as shall be limited or permitted by the rules of the board, the candidate shall pay to the board an examination fee; provided where the candidate is eligible to take only that part of the examination pertaining to engineering fundamentals the candidate shall pay the appropriate fee. The fee paid shall not be refundable; provided if a candidate after having paid the fee is unable for any reason beyond the candidate's control to participate in the examination, the board may extend the time of the candidate's participation to the next regular examination date and credit the candidate the amount of the fee paid.

(b) Upon qualifying for licensure, the applicant shall pay a license fee, and upon receipt thereof by the board shall thereupon be licensed as a professional engineer, architect, land surveyor or landscape architect, and shall receive a certificate thereof from the board signed by the chairperson. Every person licensed who, as an individual or as a member of a firm or corporation, conducts an office or other place of business for the practice of the profession shall display the original certificate in a conspicuous manner, in the principal office or place of business.

(c) Every license expires on April 30 of each even-numbered year following its issuance and becomes invalid after that date unless renewed. At least one month in advance of the date of expiration of the license, a notice shall be mailed to every person licensed under this section informing them of the date of expiration and the amount required for the renewal. Licenses that have expired for failure to pay renewal fees on or before the date required in this subsection may be restored within two years of the expiration date upon payment of a fee for each renewal. Any person who fails to restore the person's license within two years of the date of its expiration shall reapply for licensure as a new applicant and meet the requirements in effect at that time.

(d) The board shall require continuing education to renew a license for architects effective as of the renewal date for a license expiring on April 30, 2008, and for every biennial renewal period thereafter. All continuing education courses shall be relevant to public protection subjects and shall be approved by the board as provided in the board's rules; provided that:

provided that any exemption from the continuing education requirements shall be subject to the board's approval.

§ -123 Licensees; suspension or revocation of licenses; fines; hearings. In addition to any other actions authorized by law, the board may revoke, suspend, or refuse to renew the license of any licensee for any cause authorized by law, including but not limited to fraud or deceit in obtaining the license or gross negligence, incompetency, or misconduct in the practice of the profession, or violating this subpart or the rules of the board. Any person may prefer charges in writing with the executive secretary of the board against any person holding a license.

In every case where it is proposed to impose any penalty under this section, the board shall give the licensee concerned notice and hearing in conformity with chapter 91. The notice shall be given in writing by registered or certified mail with return receipt requested at least fifteen days before the hearing.

In all proceedings before it, the board and each member thereof shall have the same powers respecting administering oaths, compelling the attendance of witnesses and the production of documentary evidence, and examining witnesses, as are possessed by circuit courts. In case of disobedience by any person of any order of the board or of any member thereof, or of any subpoena issued by it or by a member, or the refusal of any witness to testify to any matter regarding which the person may be questioned lawfully, any circuit judge, on application by the board or a member thereof, shall compel obedience as in the case of disobedience of the requirements of a subpoena issued by a circuit court, or a refusal to testify therein.

Any licensee who violates this subpart or the rules adopted pursuant thereto may also be fined not less than $500 nor more than $1,000 per violation. Each day of violation or failure to comply shall constitute a separate offense.

§ -124 Contents of certificates; use of seal mandatory when. Each certificate of licensure issued hereunder shall bear the date of the original license and shall specify whether the person to whom it is issued is authorized by the board to practice professional engineering, architecture, land surveying or landscape architecture.

In the case of a certificate issued to a person authorizing the person to practice professional engineering, the certificate shall furthermore indicate the major branch or branches of engineering in which the person has especially qualified.

Every licensee may use a seal or rubber stamp of the design authorized by the board bearing the licensee's name and the words "licensed professional engineer", "licensed architect", "licensed land surveyor", or "licensed landscape architect", or otherwise as may be authorized by the board.

All plans, specifications, maps, and reports prepared by or under the supervision of a licensed engineer, architect, surveyor, or landscape architect shall be stamped with such seal or stamp when filed with public officials. It shall be unlawful for anyone to seal or stamp any document with such seal or stamp after the license has expired or has been revoked or suspended unless such license has been renewed or reissued.

No official of the State nor of any political subdivision thereof, charged with the enforcement of laws or ordinances relating to the construction or alteration of buildings or structures, shall accept or approve any plans or specifications that are not stamped with the seal of a licensed architect or with the seal of a licensed engineer who has qualified in the structural engineering branch, unless the building or structure, for which the plans or specifications are submitted is exempted from this chapter, and no map or survey shall be filed in the land court unless stamped with the seal of a licensed land surveyor.

§ -125 Corporations and partnerships. A corporation or copartnership may engage in the practice of professional engineering, architecture, surveying, or landscape architecture in the state if the person or persons connected with the corporation or copartnership directly in charge of the professional work is duly licensed.

§ -126 Structures exempted from provisions of part. (a) The provisions of this subpart shall not apply to work in respect to:

However, no structure, dwelling, or building in which the principal structural members consist of reinforced concrete or structural steel having riveted, bolted, or welded connections shall be exempted from this subpart.

(b) The provisions of this subpart shall not apply to work in respect to any privately owned or privately controlled one- storied structure, which is used primarily as a residence, the estimated cost of which does not exceed $50,000, nor to any privately owned or privately controlled two-storied structure, which is used primarily as a residence, the cost of which does not exceed $45,000.

(c) Whenever the exemption provided for in subsection (b) is applied to the construction of a new building, it shall be noted and recorded with the bureau of conveyances.

§ -127 Unlicensed activity; penalties. (a) Any person who:

shall be fined not more than $500 or imprisoned not more than one year, or both.

(b) Any corporation or copartnership which:

shall be fined not more than $1,000. Notwithstanding any law to the contrary, persons, corporations, or copartnerships working on structures exempted in section -126 shall not be affected by this subsection.

§ -128 Remedies or penalties cumulative. Unless otherwise expressly provided, the remedies or penalties provided by this subpart are cumulative to each other and to the remedies or penalties available under all other laws of this State.

§ -129 Findings and purpose. Through years of research and study, Congress has found that the number of industrial accidents that take place in the United States can be reduced if certain minimum standards are established and enforced.

Congress has also found that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments. The overall congressional findings would definitely be applicable to Hawaii. There is a need to assure so far as possible, every working man and woman in the state safe and healthful working conditions. This subpart is also designed to permit and encourage employer and employee efforts to reduce injury and disease arising out of employment, and to stimulate them to institute new programs and to perfect existing programs for providing safe and healthful working environments.

§ -130 Definitions. When used in this subpart:

"Authority" means the Hawaii construction authority established in section -2.

"Appeals board" means the Hawaii labor relations board.

"Certified safety professional" means an individual who is certified by the board of certified safety professionals.

"Dealer" means, for the purpose of the section concerning explosives, any person, corporation, partnership, association, association of dealers, or other form of business enterprise engaged in the business of buying and selling explosives.

"Employee" means every natural person who is required or directed or permitted or suffered by any employer to engage in any employment, or to go to work or be at any time in any place of employment.

"Employee of the State" includes officers and employees of the authority, and persons acting in behalf of the authority in an official capacity, whether temporarily or with or without compensation.

"Employer" means:

"Employment" includes the carrying on of any trade, business, occupation, or work, including all excavation, demolition, and construction work, or any process or operation in any way related thereto, in which any person is engaged to work for hire except domestic service in or about a private home.

"Hoisting machine" means a machine with a hoist line, sling, or hydraulic lifting mechanism used in construction, demolition, or excavation work.

"Hoisting machine operator" means any individual who operates a hoisting machine in the state.

"Occupational safety and health standard" means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.

"Place of employment" means any place, and the premises appurtenant thereto, where employment is carried on.

"Safe" and "safety" as applied to an employment or place of employment mean such freedom from danger to employees as the nature of the employment reasonably permits.

"Safety device" and "safeguard" shall be given a broad interpretation so as to include any practicable method of mitigating or preventing a specific danger.

"Serious violation" means a violation that carries with it a substantial probability that death or serious physical harm could result from a condition that exists, or from one or more practices, means, methods, operations, or processes that have been adopted or are in use, in a place of employment, unless the employer did not, and could not with the exercise of reasonable diligence, have known of the presence of the violation.

"Wilful violation" means a voluntary act or omission by the employer, as distinguished from an accidental act or omission, that is done with intentional disregard of, or plain indifference to, any standard, rule, citation, or order issued under the authority of this subpart. A wilful violation does not require a showing of malicious intent or bad motive.

§ -131 Powers and duties of the authority. (a) Administration. The authority shall be responsible for administering occupational safety and health standards throughout the state.

(b) Inspection and investigation.

(c) Education and training.

(d) Enforcement.

§ -132 Certification of safety and health professionals. (a) Only individuals receiving certification from the authority as safety and health professionals shall be qualified to certify that an employer:

(b) Certification as a safety and health professional shall be:

(c) Certificates issued under this section may be revoked or suspended by the director on any grounds specified in rules adopted under this subpart.

§ -133 Fees. (a) The director may establish fees pursuant to chapter 91 to be charged for the following:

(b) Fees received pursuant to subsection (a) shall be deposited into the general fund.

§ -134 Employer responsibility: safe place of employment; safety devices and safeguards. (a) Every employer shall furnish to each of the employer's employees employment and a place of employment which are safe as well as free from recognized hazards. No employer shall require or direct or permit or suffer any employee to go or be in any employment or place of employment which is not free from recognized hazards that are causing or likely to cause death or serious physical harm to employees or which does not comply with occupational safety and health standards, rules, regulations, citations, or orders made pursuant to this subpart except for the specific purpose of abating said hazard.

(b) Every employer shall furnish and use safety devices and safeguards, and shall adopt and use practices, means, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe.

(c) No employer shall construct or cause to be constructed any place of employment that is not safe, and no employer shall occupy or maintain any unsafe place of employment.

(d) Every employer shall make such reports as the Secretary of Labor may require pursuant to Public Law 91596 Section 8(c).

(e) Each employer shall make, keep, and preserve and make available to the authority such records regarding the employer's activities relating to this subpart as the authority may prescribe by regulation as necessary or appropriate for the enforcement of this subpart or for developing information regarding the causes and prevention of occupational accidents and illnesses.

The authority shall prescribe regulations requiring employers to maintain accurate records of, and to make periodic reports on work-related deaths, injuries, and illnesses other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job.

(f) All employers shall be required to post prominently in the working place all posters and information provided by the authority for posting as well as notices informing employees of their rights and obligations under this subpart.

§ -135 Toxic materials. (a) The authority shall issue regulations requiring employers to maintain accurate records of employee exposures to potentially toxic materials or harmful physical agents which are required to be monitored or measured as prescribed under the rules and regulations.

(b) All employers shall prominently post information regarding hazards in the employer's workplace, including information about suitable precautions, relevant symptoms, and emergency treatment in case of exposure, and where appropriate, medical examination at no cost to employees with the results of such medical examinations being furnished only to appropriate state officials, and if the employee so requests, to the employee's own physician. Where possible, said information shall additionally be posted or labeled on or near said hazard. Where suitable protective equipment is available, all employers shall provide information concerning their availability and use to the affected employees including control or technological procedures with respect to such hazards including monitoring or measuring exposure.

(c) No employee shall be permitted regular exposure to any substance which may materially impair the employee's health or functional capacity.

(d) All employers shall provide prompt information to employees when they have been or are being exposed to toxic materials and harmful physical agents in concentrations or at levels in excess of those prescribed in the applicable safety and health standards. This information may be fulfilled by:

In addition to the above, information shall be provided to the employees of corrective action being taken.

§ -136 Employee responsibility and rights. (a) Employee compliance. Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued under this subpart which are applicable to the employee's own actions and conduct.

(b) Complaints to the authority. Complaints may be made to the authority and where reasonable grounds exist for the authority to believe there may be a hazard, there shall be an inspection in response to the complaint.

(c) Opportunity for employees to participate in inspections. At the time and place of inspections under section

-131(b)(2), (3), and (4), an opportunity shall be provided for employees and their representatives to bring possible violations to the attention of the authorized representative of the director conducting said inspection in order to aid inspections. This requirement may be fulfilled by allowing a representative of the employees and a representative of the employer to accompany the director's authorized representative during the physical inspection of the workplace, or in absence of the employees' representative, there shall be a consultation with a reasonable number of employees.

(d) Notice of nonaction to employees. The authority shall notify the employees when the authority decides not to take compliance action as a result of violations alleged by any employee or any representative of the employees. This notice shall state the decision not to take compliance action, the reasons therefor, and the procedures for informal review of such decision.

(e) Discharge or discrimination against employees for exercising any right under this chapter is prohibited. In consideration of this prohibition:

(f) Except for those complainants alleging violations under subsection (e) above, names of all complainants and witnesses shall be withheld from the employer unless prior permission is given by the complainant or witness to release the complainant's or witness' name.

§ -137 Explosives. (a) No person shall use, store, or deal in explosives unless the person has first obtained a certificate of fitness. A certificate of fitness shall only be issued to an individual and shall set forth the individual's competency and provide for the individual's positive identification. Certificates of fitness may be limited as to types or kinds of explosives or to the use of explosives for specific purposes.

(b) No dealer shall sell or deliver explosives to any person who does not hold a certificate of fitness.

(c) It shall be unlawful for any person to use or possess any explosives unless the person has a certificate of fitness or is using the explosives under the immediate supervision and direction of a holder of the certificate.

Any person who violates this section shall be subject to arrest and upon conviction, shall be fined not more than $1,000 or imprisoned not more than one year, or both; provided that an employer or an employee acting within the scope of employment shall not be deemed to be in violation of this section.

(d) Any certificate of fitness issued under this section may be revoked or suspended by the director on any ground specified in the rules adopted under this subpart, or for any violation of this section.

(e) Any certificate issued under this section, during any time of national emergency or crisis, may be suspended or canceled by the director. A national emergency or crisis shall be deemed to exist when it has been so determined under section 134-34.

(f) This section shall not apply to the armed forces of the United States, to employees of the United States, or the state or county police or fire departments who are authorized to handle explosives.

§ -138 Violations and penalties. (a) Any employer who violates this subpart, or any occupational safety and health standard promulgated hereunder or any rule or regulation issued under the authority of this subpart, or who violates or fails to comply with any citation, notice or order made under or by virtue of this subpart or under or by virtue of any rule or regulation of the authority, or who defaces, displaces, destroys, damages, or removes without the authority of the authority any safety device, safeguards, notice or warning required by this subpart or any rule or regulation of the authority may be assessed a civil penalty as specified in this subpart.

(b) Any employer who has received an order or citation for a serious violation of any standard or rule adopted pursuant to this subpart shall be assessed a civil penalty of not more than $7,000 for each violation.

(c) Any employer who has received an order or citation for a violation of any standard or rule adopted pursuant to this subpart, and the violation is specifically determined not to be of a serious nature, may be assessed a civil penalty of up to $7,000 for each violation.

(d) Each day a violation continues shall constitute a separate violation except that during an abatement period only, no additional penalty shall be levied against the employer.

(e) Any employer who violates any of the posting requirements prescribed under this subpart shall be assessed a civil penalty of up to $7,000 for each violation.

(f) Any employer who wilfully or repeatedly violates this subpart, or any standard, rule, citation, or order issued under the authority of this part, shall be assessed a civil penalty of not less than $5,000 nor more than $70,000 for each violation.

(g) Any employer convicted of wilful or repeated violation of any standard, rule, citation, or order issued under authority of this subpart resulting in the death of an employee shall be punished by a fine of not more than $70,000, or by imprisonment for not more than six months, or both, except that if the conviction is for a violation committed after a first conviction, punishment shall be by a fine of not more than $70,000, or by imprisonment for not more than one year, or both. Failure to correct a violation for which an order or citation of arrest has been issued shall be evidence of wilful conduct.

(h) Any employer who has received an order for violation under section -136(e) may be assessed a civil penalty of not more than $1,000 for each violation.

(i) Any person who gives advance notice of any inspection to be conducted under this subpart, without authority from the director or the director's designees shall, upon conviction be punished by a fine of not more than $1,000 or by imprisonment for not more than six months, or by both.

(j) The director shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

(k) Civil penalties imposed under this subpart shall be paid to the authority and may be recovered by civil action in the name of the authority and the State brought in the district or circuit court for the circuit where the violation is alleged to have occurred or where the employer has its principal office.

(l) When an alleged violation of any provision of this subpart or any standard, rule, or order made thereunder has occurred, the authority shall promptly issue a written citation, order, or notice thereof to the employer who shall be required to post the citation, order, or notice. The citation, order, or notice thereof shall include the abatement requirements and within a reasonable time the employer shall be advised of the proposed sanctions, including proposed penalties. Whenever reference is made to posting of any citation, order, notice, petition, decision, or any other type of document issued by the director under this subpart and rules adopted pursuant to this subpart, the employer shall post copies of the document at the work site involved or affected and at the place or places where notices to the employees involved are normally posted. Where posting starts the time for notice of action to or for appeal by employees under this subpart and rules adopted under this subpart, the document shall be posted by the employer upon receipt or on the next business day following receipt.

(m) Whoever knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to this subpart shall, upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than six months, or by both.

(n) Criminal offenses committed against any employee of the State acting within the scope of the employee's office, employment, or authority under this subpart shall be subject to the penalties set forth in the Hawaii Penal Code; provided that:

§ -139 Review. (a) Any citation, proposed penalty, or order of the director shall be final and conclusive against the employer unless the employer files with the director a written notice of contest of the citation, the abatement period stated in the citation, the proposed penalty, or order within twenty days after receipt of the citation, proposed penalty, or order.

(b) The employer may petition the director for modification of the abatement requirements in a citation; provided the employer shall file the petition no later than the close of the next business day following the date on which abatement is required, or under exceptional circumstances and for good cause shown, at a later date. The petition for modification may be filed after the twenty-day period for contesting the citation has expired if the initial abatement period stated in the citation expires after the twenty-day period for filing a notice of contest has run.

(c) The director shall issue an order either affirming or modifying the abatement requirement. The director may issue an order modifying the abatement requirement upon a showing by the employer of a good faith effort to comply with the abatement requirements of a citation and that abatement has not been completed because of factors beyond the employer's reasonable control.

(d) Any employee or representative of employees may file with the director a written notice of contest of the initial abatement period stated in a citation or order alleging that the period of time fixed for abatement is unreasonable; provided the notice is filed within twenty days after the citation or order has been posted. Any employee or representative of employees may also file a written notice of contest of an order granting modification of the abatement period; provided the notice shall be filed within ten days of the posting of the order.

(e) Any employee or representative of employees may file a notice of contest of an order of the director denying a complaint of discrimination filed by an employee pursuant to section -136(e); provided that in each case the notice is filed within twenty days after receipt of the order by the employee.

(f) Any employee or representative of employees may file a notice of contest of an order granting an employer's application for a variance under section -131(a)(3); provided the notice is filed within twenty days after the posting of a final order or decision of the director.

(g) Upon receipt, the director shall advise the appeals board of any notice of contest.

(h) The appeals board shall afford an opportunity for a de novo hearing on any notice of contest except where rules require a prior formal hearing at the authority level, the proceedings of which are required to be transcribed, in which case review before the appeals board shall be confined to the record only.

(i) The appeals board may affirm, modify, or vacate the citation, the abatement requirement therein, or the proposed penalty or order or continue the matter upon terms and conditions as may be deemed necessary, or remand the case to the director with instructions for further proceedings, or direct other relief as may be appropriate.

(j) The affected employees or representatives of affected employees shall be provided an opportunity to participate as parties to hearings under this section.

(k) The director shall submit annual reports to the legislature on the number of contests filed pursuant to this section, the disposition of each, and information indicating whether the issue involved an employee or employees of the authority who failed to act within the scope of their office, employment, or authority under this subpart.

§ -140 Judicial review. Except where an order has already become final for failure to contest, the decision and order of the appeals board shall be final and conclusive unless the director or any party to the proceedings before the appeals board obtains a review thereof in the manner provided in chapter 91 by instituting proceedings in the circuit court of the circuit in which the place of employment, machine, device, apparatus, or equipment is situated or such practice, means, method, operation, or process is employed. The hearing on review shall be on the record and the authority shall be deemed a party to any such proceedings. The court shall give precedence to such proceedings over all other civil cases.

§ -141 Trade secrets. Information obtained by the authority containing or revealing a trade secret shall be held confidential and access shall be limited to authorized representatives of the director concerned with carrying out this subpart or when relevant in any proceeding under this subpart. In such proceeding the director, the appeals board, or the court shall issue such orders as may be appropriate to protect the confidentiality of trade secrets.

§ -142 Evidence. No record or determination of any administrative proceeding under this subpart or any statement or report of any kind obtained, received, or prepared in connection with the administration or enforcement of this subpart shall be admitted or used, whether as evidence or as discovery, in any civil action growing out of any matter mentioned in the record, determination, statement, or report other than an action for enforcement or review under this subpart.

§ -143 Exception to liability. Any employee who is required by the regulations under this subpart to be trained and certified in first aid, and consequently renders first aid care as provided by this subpart, shall not be liable for any civil damages resulting from the employee's acts or omissions, except for such damages as may result from the employee's gross negligence or wanton acts or omissions.

§ -144 Exception for federal jurisdiction. Nothing in this subpart shall apply to working conditions of employees with respect to which any federal agency exercises statutory authority to prescribe and enforce standards or regulations affecting occupational safety or health.

§ -145 Safety and health programs for contractors bidding on state construction jobs. (a) All bids and proposals in excess of $100,000 for state construction jobs as defined in section 103D-104 shall include a signed certification from the bidder or offerer that a written safety and health plan for the job will be available and implemented by the notice to proceed date of the project. The written safety and health plan shall include:

(b) Failure to submit the required certification may be grounds for disqualification of the bid or proposal.

(c) Failure to have available on site or failure to implement the written safety and health plan by the project's notice to proceed date shall be considered wilful noncompliance and be sufficient grounds to disqualify the award and terminate the contract.

§ -146 Hoisting machine operators advisory board. (a) There is created a hoisting machine operators advisory board, which shall be placed in the authority to be composed of five members to serve without compensation and without reimbursement for expenses. Members shall be appointed by the governor under section 26-34.

The board shall adopt rules pursuant to chapter 91 for the certification of hoisting machine operators.

(b) The hoisting machine operators advisory board may employ a 0.5 full-time equivalent executive director, without regard to chapters 76 and 89 and may dismiss such person as it finds necessary for the performance of its function and duties. The board shall have the authority to fix the executive director's compensation.

§ -147 Hoisting machine operators' certification revolving fund. (a) There is established in the state treasury a revolving fund to be known as the hoisting machine operators' certification revolving fund, into which shall be deposited all fees, penalties, fines, and interest collected from:

The moneys in the fund may be used to carry out the purposes of this section. The director of finance shall disburse the moneys in the fund in accordance with instructions from the director.

(b) The fund may be used for:

(c) The director shall submit an annual report to the legislature on the status of the fund, including expenditures and program results, not less than twenty days prior to the convening of each regular session.

B. BOILER AND ELEVATOR SAFETY

§ -148 Definitions. As used in this subpart:

"Appeals board" means the department of labor and industrial relations appeals board.

"Authority" means the Hawaii construction authority.

"Boiler" means a closed vessel in which water is heated, steam is generated, steam is superheated or any combination thereof by the direct application of heat. The term "boiler" includes fired units for heating or vaporizing liquids other than water where these units are separate from processing systems and complete within themselves.

"Contractor" means any person, firm or corporation installing, repairing or servicing and responsible for the safe operation of any boiler, pressure system, amusement ride, and elevator and kindred equipment or structure inspected pursuant to this subpart.

"Director" means the executive director of the Hawaii construction authority.

"Elevator" means a hoisting and lowering mechanism permanently installed in a structure, designed to carry passengers or authorized personnel, equipped with a car or platform which moves in fixed guides and serves two or more fixed landings.

"Elevators and kindred equipment" as used in this chapter means elevators, escalators, dumbwaiters, moving walks, stage lifts, mechanized parking elevators, manlifts, inclined lifts, personnel hoists, aerial tramways, permanently installed material lifts, personal automatic trains and any other similar mechanized equipment used to convey people in places other than a public right-of-way.

"National Board" means the National Board of Boiler and Pressure Vessel Inspectors, 1055 Crupper Avenue, Columbus, Ohio 43229.

"Owner" means any person, firm or corporation with legal title to any boiler, pressure system, amusement ride, and elevator and kindred equipment inspected pursuant to this subpart who may or may not be the user.

"Pressure piping" means piping systems specified in the American National Standard Code for Pressure Piping developed and promulgated by the American Society of Mechanical Engineers.

"Pressure systems" means both pressure vessels and pressure piping as defined in this section.

"Pressure vessel" means a closed vessel in which pressure is obtained from an external source or by the direct application of heat from a direct or indirect source.

"User" means any person, firm or corporation legally in possession and responsible for the safe operation of any boiler, pressure system, amusement ride, and elevator and kindred equipment inspected pursuant to this subpart.

"Vendor" means any person, firm or corporation that sells or distributes any boiler, pressure system, amusement ride, and elevator and kindred equipment required to be inspected pursuant to this subpart.

§ -149 Powers and duties. (a) Administration.

(b) Inspection and investigation.

(c) Education and training.

(d) Enforcement.

(7) The authority may prosecute, defend and maintain actions in the name of the authority for the enforcement of the provisions of this subpart, including the enforcement of any order issued by it, the appeal of any administrative or court decision, and other actions necessary to enforce this subpart.

§ -150 Fees. (a) The director may prescribe reasonable fees to be charged for inspection, examination, other services rendered and for permits, certificates, or licenses, the issuance of which are required by this subpart or by any rule or regulation of the authority promulgated pursuant to this subpart, and for:

(b) All fees received by the authority pursuant to this section shall be paid into the general fund of the State.

§ -151 Safety inspection by qualified inspectors. (a) All safety inspections required under this subpart of boilers and pressure systems shall be performed by deputy boiler inspectors in the employ of the authority who are qualified boiler inspectors and, when authorized by the director, may be performed by special inspectors who are qualified boiler inspectors in the employ of insurance companies insuring boilers or pressure systems in this State.

(b) A qualified boiler inspector is a person eligible for or in possession of a valid commission issued by the National Board of Boiler and Pressure Vessel Inspectors and who has received from the director or the director's authorized agent briefings and instructions regarding the rules and regulations pertaining to boilers and pressure systems in this State.

(c) All safety inspections required under this subpart of elevators and kindred equipment shall be performed by deputy elevator inspectors of the authority who are qualified elevator inspectors and who are employed primarily for purposes of elevator and related inspection work.

(d) A qualified elevator inspector is a person who meets the criteria of the American Society of Mechanical Engineers and the standards for the qualification of elevator inspectors of the American National Standards Institute and has satisfied requirements established by the authority.

§ -152 Complaints to the authority. (a) Complaints may be made to the authority and where reasonable grounds exist for the authority to believe there may be a hazard, there shall be an inspection in response to the complaint.

(b) Names of all complainants and witnesses shall be held in confidence by the authority unless prior permission has been given by the complainant or witness to release the complainant's or witness' name or unless it has been determined by the attorney general that disclosure is necessary for enforcement and review of this subpart.

§ -153 Violations and penalties. (a) The director shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the gravity of the violation, the good faith of the owner, user, contractor, or vendor and the history of previous violations.

(b) Any owner, user, contractor, or vendor who violates this subpart, or any safety standard promulgated hereunder or any rule issued under the authority of this subpart, or who violates or fails to comply with any order made under or by virtue of this subpart or under or by virtue of any rule of the authority, or who defaces, displaces, destroys, damages, or removes without the authority of the authority any safety device, safeguard, notice, order, or warning required by this subpart or by any rule of the authority shall be assessed a civil penalty of not more than $10,000 for each such violation.

(c) Each day a violation continues shall constitute a separate violation except during an abatement period.

(d) Whoever knowingly makes any false statement, representation, or certification in any application, record, report, plan or other document filed or required to be maintained pursuant to this subpart, shall, upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than six months, or by both.

(e) Civil penalties owed under this subpart shall be paid to the authority and may be recovered in a civil action in the name of the authority and the State brought in the district or circuit court for the circuit where the violation is alleged to have occurred or where the owner, user, contractor or vendor has the owner's, user's, contractor's, or vendor's principal office. (f) Criminal offenses committed against any employee of the State acting within the scope of the employee's office, or employment, or authority under this subpart shall be subject to the penalties set forth in the Hawaii Penal Code provided that:

§ -154 Review and appeal. Any order of the director shall be final and conclusive against the owner, user, vendor, or contractor unless the owner, user, vendor, or contractor files with the director a written notice of contest of the order, the abatement period stated in the order, or the penalty stated in the order within twenty days after receipt of such order.

The owner, user, vendor, or contractor may petition the director for modification of the abatement requirements in an order. The owner, user, vendor, or contractor shall file said petition no later than the close of the next business day following the date on which abatement is required or under exceptional circumstances and for good cause shown at a later date. The petition for modification may be filed after the twenty-day period for contesting the order has expired where the initial abatement period stated in the order expires after the twenty-day period for filing a notice of contest has run.

The director shall issue an order either affirming or modifying the abatement requirement. The director may issue an order modifying the abatement requirement upon a showing by the owner, user, vendor, or contractor of a good faith effort to comply with the abatement requirements of an order and that abatement has not been completed because of factors beyond the owner's, user's, vendor's, or contractor's reasonable control.

The director shall advise the appeals board of a notice of contest upon receiving any such notice.

The appeals board shall afford an opportunity for a hearing on any notice of contest. Such hearings before the appeals board shall be de novo except where rules and regulations require a prior formal hearing at the authority level, the proceedings of which are required to be transcribed, in which case review before the appeals board shall be confined to the record only.

The appeals board may affirm, modify, or vacate the order or continue the matter upon such terms and conditions as may be deemed necessary, or remand the case to the director with instructions for further proceedings or direct such other relief as may be appropriate.

§ -155 Judicial review. Except where an order has already become final for failure to contest, the decision and order of the appeals board shall be final and conclusive, unless the director or any party to the proceedings before the appeals board obtains a review thereof in the manner provided in chapter 91 by instituting proceedings in the circuit court of the circuit in which the boiler, pressure system, amusement ride, or elevator and kindred equipment is situated or such practice, means, method, operation, or process is employed. The hearing on review shall be on the record and the authority shall be deemed a party to any such proceedings. The court shall give precedence to such proceedings over all other civil cases.

§ -156 Trade secrets. Information obtained by the authority containing or revealing a trade secret shall be held confidential and access shall be limited to authorized representatives of the director concerned with carrying out this subpart or when relevant in any proceeding under this subpart. In such proceeding the director, the appeals board, or the court shall issue such orders as may be appropriate to protect the confidentiality of trade secrets.

§ -157 Evidence. No record or determination of any administrative proceeding under this subpart or any statement or report of any kind obtained, received, or prepared in connection with the administration or enforcement of this subpart shall be admitted or used, whether as evidence or as discovery, in any civil action growing out of any matter mentioned in the record, determination, statement, or report other than an action for enforcement or review under this subpart.

§ -158 Definitions. Whenever used in this part, unless a different meaning clearly appears from the context:

"Authority" means the Hawaii construction authority established in section -2.

"Basic hourly rate" means the hourly wage paid to a laborer or mechanic for work performed during non-overtime hours, but shall not include the cost to an employer of furnishing fringe benefits whether paid directly or indirectly to the laborer or mechanic as provided in paragraph (7);

"Construction" includes alteration, repair, painting and decorating;

"Director" means the executive director of the Hawaii construction authority;

"Governmental contracting agency" means the State, any county and any officer, bureau, board, commission, or other agency or instrumentality thereof;

"Overtime compensation" means compensation based on one and one-half times the laborers or mechanics basic hourly rate of pay plus the cost to an employer of furnishing a laborer or mechanic with fringe benefits as described in paragraph (7);

"Wages", "rate of wages", "wage rates", "minimum wages" and "prevailing wages" mean the basic hourly rate and the cost to an employer of furnishing a laborer or mechanic with fringe benefits, including but not limited to health and welfare benefits, vacation benefits, and pension benefits, whether paid directly or indirectly to the laborer or mechanic.

§ -159 Applicability; wages, hours, and other requirements. (a) This part shall apply to every contract in excess of $2,000 for construction of a public work project to which a governmental contracting agency is a party; provided that this part shall not apply to experimental and demonstration housing developed pursuant to section 46-15 or housing developed pursuant to chapter 201G if the cost of the project is less than $500,000 and the eligible bidder or eligible developer is a private nonprofit corporation.

For the purposes of this subsection:

"Contract" includes but is not limited to any agreement, purchase order, or voucher in excess of $2,000 for construction of a public work project.

"Governmental contracting agency" includes any person or entity that causes either directly or indirectly the building or development of a public work.

"Party" includes eligible bidders for and eligible developers of any public work and any housing under chapter 201G; provided that this subsection shall not apply to any housing developed under section 46-15 or chapter 201G if the entire cost of the project is less than $500,000 and the eligible bidder or eligible developer is a private nonprofit corporation.

"Public work" means any project, including development of any housing pursuant to section 46-15 or chapter 201G, and development, construction, renovation, and maintenance related to refurbishment of any real or personal property, where the funds or resources required to undertake the project are to any extent derived either directly or indirectly from public revenues of the State or any county, or from the sale of securities or bonds whose interest or dividends are exempt from state or federal taxes.

§ -160 Payrolls and payroll records. (a) Every such contract and the specifications for such contract shall contain a provision that a certified copy of all payrolls shall be submitted weekly to the governmental contracting agency for review. The general contractor shall be responsible for the submission of certified copies of the payrolls of all subcontractors. The certification shall affirm that:

(1) The payrolls are correct and complete;

Any certification discrepancy found by the contracting agency shall be reported to the general contractor and the director to effect compliance.

(b) Payroll records for all laborers and mechanics working at the site of the work shall be maintained by the general contractor and the general contractor's subcontractors, if any, during the course of the work and preserved for a period of three years thereafter. The records shall contain the name of each employee, the employee's correct classification, rate of pay, daily and weekly number of hours worked, deductions made and actual wages paid.

(c) The contractor shall make payroll records available for examination within ten days from the date of a written request by a governmental contracting agency, director, or any authorized representatives thereof. Any contractor who:

shall be assessed a penalty as provided in section -163.

§ -161 Termination of work on failure to pay agreed wages; completion of work; contract and specifications provision. Every contract and the specifications for such contract shall contain a provision that if the governmental contracting agency finds that any laborer or mechanic employed on the job site by the contractor or any subcontractor has been or is being paid wages at a rate less than the required rate by the contract or the specifications, or has not received the laborer's or mechanic's full overtime compensation, the governmental contracting agency may, by written notice to the contractor, terminate the contractor's right, or the right of any subcontractor, to proceed with the work or with the part of the work in which the required wages or overtime compensation have not been paid and may complete such work or part by contract or otherwise, and the contractor and the contractor's sureties shall be liable to the governmental contracting agency for any excess costs occasioned thereby.

§ -162 Governmental contracting agency responsibilities. The governmental contracting agency shall:

§ -163 Investigation; penalties. (a) The authority may conduct investigations to determine compliance with this part. The authority may enter the job site, examine records of any contractor, either during or after the performance of any contract, or subpoena the records. The authority may also interview employees during working hours on the job.

(b) If any contractor interferes with or delays any investigation by the authority, the governmental contracting agency, on receipt of written notice from the director of the interference or delay, shall withhold from the contractor all further payments until the director has notified the governmental contracting agency in writing that the interference or delay has ceased. Interference or delay includes:

The authority shall assess a penalty of $1,000 per project for interference or delay. For each day thereafter that the employer fails to cooperate, the director shall assess a penalty of $100 per project.

§ -164 Notification of violation. (a) When the authority, either as a result of a report by a contracting agency or as a result of the authority's own investigation, finds that a violation of this part or of the terms of the contract subject to this part has been committed, the authority shall issue a notification of violation to the contractor or subcontractor involved.

(b) A notification of violation shall be final and conclusive twenty days after a copy was mailed to the violator, unless within the twenty-day period the violator files a written notice of appeal with the director.

(c) A hearing on the written notice of appeal shall be held by a hearings officer appointed by the director in conformance with chapter 91.

Hearings on appeal shall be held within sixty days of the notice of appeal and a decision shall be rendered by the hearings officer within sixty days after the conclusion of the hearing, stating the findings of fact and conclusions of law. The hearings officer may extend the due date for decision for good cause; provided that all parties agree.

§ -165 Violations; penalties. (a) Where the authority finds that a first violation of this part has been committed, the authority shall assess a penalty equal to ten per cent of the amount of back wages found due or $25 per offense, whichever is greater.

(b) Where the authority finds that a second violation of this part has been committed, whether on the same contract or another, within two years of the first notification of violation, the authority, after proper notice and opportunity for hearing, shall order the person or firm in violation to pay a penalty equal to the amount of back wages found due or $100 for each offense, whichever is greater.

(c) Where the authority finds that a third violation of this part has been committed, whether on the same contract or another, within two years of the second notification of violation, the authority, after proper notice and opportunity for hearing, shall order the person or firm in violation:

(d) A first, second, or third violation refers to each investigation involving one or more projects in which the authority finds that a contractor has failed to comply with this part.

(e) For purposes of this section, "offense" means each section of this part under which the contractor is cited; provided that, with respect to prevailing wage and overtime citations under section -169, each employee and each project shall be considered a separate offense.

§ -166 Suspension. (a) The director shall suspend a person or firm as follows:

(b) The director shall immediately notify the comptroller and the auditor or director of finance of the county of any suspension order.

(c) No contract shall be awarded to the person or firm so suspended or to any firm, corporation, partnership, or association in which the person or firm has an interest, direct or indirect, until three years have elapsed from the date of suspension, unless the period of suspension is reduced as herein provided. Any contract awarded in violation of this subsection shall be void.

§ -167 Judicial review. (a) Any party to an appeal under this part may obtain judicial review of the decision on the appeal in the manner provided in chapter 91.

(b) Any suspension or dismissal of any complaint under this part shall be subject to appeal in circuit court by the aggrieved party, under section 91-14 and rule 72 of the Hawaii rules of civil procedure.

§ -168 Liability. If the accrued payments withheld under the terms of the contract are insufficient to reimburse all the laborers and mechanics for wages or overtime compensation due under this part, and the contractor has failed to pay the wages or overtime compensation, the contractor and the contractor's sureties shall be liable to the laborers and mechanics in the amount of the unpaid wages and overtime compensation due, and in an additional equal amount as liquidated damages. However, any claim for liquidated damages, insofar as the surety or sureties are concerned, shall not be paid until the claims of all other creditors have been satisfied.

§ -169 Civil action. (a) Action to recover unpaid wages or overtime compensation may be maintained in any court of competent jurisdiction by any one or more laborers or mechanics for and on behalf of oneself or themselves and others similarly situated.

(b) The court, in its action and in addition to any judgment awarded to the plaintiff or plaintiffs, shall allow reasonable attorney's fee and costs of the action to be paid by the defendant.

(c) It shall be no defense that the laborers and mechanics accepted or agreed to accept less than the required rate of wages or overtime compensation or voluntarily made refunds.

(d) When a written request is filed by any laborer or mechanic with the director claiming unpaid wages or overtime compensation under this part, the director, after receiving an assignment from the laborer or mechanic, may bring an action in any court of competent jurisdiction to recover the amount of the claim. The consent of any laborer or mechanic to the bringing of such action by the director, unless the action is dismissed without prejudice on motion of the director, shall constitute a waiver by the laborer or mechanic of any right of action the laborer or mechanic may have under subsection (a). Any amount recovered by the director before suit and accepted by the laborer or mechanic as payment in full shall constitute a waiver of any rights under this chapter.

§ -170 Rules. Subject to chapter 91, the director shall adopt reasonable rules for determining the prevailing wages, enforcement, administration, and general purposes of this part. These rules shall have the force and effect of law.

§ -171 Application of this part to contracts entered into without regard to other laws. The fact that a contract is or was entered into without regard to chapter 103D, or upon a cost-plus-a-fixed fee basis, or cost-plus-a-fixed percentage basis, or without advertising for proposals, shall not render this part inapplicable to the contract, if otherwise this part would be applicable.

§ -172 Effect on other laws. Neither this part nor any rule or other action under this part shall supersede or impair any minimum wage or maximum hour law or any authority otherwise granted by law to provide for the establishment of specific minimum or other wage rates.

§ -173 Suspension during emergency. During a national emergency declared by the President or the Congress of the United States, or a state of emergency declared by the governor, the governor, by executive order in writing, may suspend this part.

§ -174 Inspection. (a) If work performed in accordance with this part, in excess of eight hours in any day or on a Saturday, Sunday, or legal holiday of the State, requires inspection by the State or any political subdivision thereof, the inspection shall be conducted by the State or a political subdivision, as the case may be.

(b) In such event, it shall be lawful, notwithstanding any other provision of law to the contrary, for the State or any political subdivision thereof to alter the normal working hours of public employees, as may be needed for these purposes, and to pay these public employees for all hours worked in excess of eight hours per day or on a Saturday, Sunday, or legal holiday of the State.

§ -175 Submission of collective bargaining agreement to the director. (a) Parties to a collective bargaining agreement covering classes of laborers or mechanics, which are included in the prevailing wage determinations made pursuant to this part, shall submit a copy of the agreement to the director within five days after execution of the agreement.

(b) Except as otherwise provided herein, the terms of agreement shall be kept confidential by the director. The director may disclose terms of the agreement to any federal or state agency for the purpose of enforcing this part.

(c) Any contract for the furnishing of commodities or services by an unlicensed, unregistered, or uncertified person shall be void and shall prevent such person from recovering the contract price or the reasonable value thereof."

SECTION 3. Section 26-9, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) The board of acupuncture, board of public accountancy, board of barbering and cosmetology, boxing commission, board of chiropractic examiners, [contractors license board,] board of dental examiners, [board of electricians and plumbers, elevator mechanics licensing board, board of professional engineers, architects, surveyors, and landscape architects,] board of massage therapy, board of medical examiners, motor vehicle industry licensing board, motor vehicle repair industry board, board of examiners in naturopathy, board of nursing, board of examiners in optometry, pest control board, board of pharmacy, board of physical therapy, board of psychology, board of private detectives and guards, real estate commission, board of veterinary examiners, board of speech pathology and audiology, and any board, commission, program, or entity created pursuant to or specified by statute in furtherance of the purpose of this section including but not limited to section 26H-4, or chapters 484, 514B, and 514E shall be placed within the department of commerce and consumer affairs for administrative purposes."

SECTION 4. Section 28-8.3, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (a) to read:

"(a) No department of the State other than the attorney general may employ or retain any attorney, by contract or otherwise, for the purpose of representing the State or the department in any litigation, rendering legal counsel to the department, or drafting legal documents for the department; provided that the foregoing provision shall not apply to the employment or retention of attorneys:

2. By amending subsection (c) to read:

"(c) Every attorney employed by any department on a full-time basis, except an attorney employed by the public utilities commission, the labor and industrial relations appeals board, the Hawaii labor relations board, the office of Hawaiian affairs, the Hawaii health systems corporation, the department of commerce and consumer affairs in prosecution of consumer complaints, insurance division, the division of consumer advocacy, the University of Hawaii, the Hawaii tourism authority as provided in section 201B-2.5, the Hawaii construction authority as provided in section -3, the Hawaiian home lands trust individual claims review panel, or as grand jury counsel, shall be a deputy attorney general."

SECTION 5. Section 480-2, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:

"(d) No person other than a consumer, the attorney general, the director of the Hawaii construction authority, or the director of the office of consumer protection may bring an action based upon unfair or deceptive acts or practices declared unlawful by this section."

SECTION 6. Chapters 104, 396, 397, 436B, 444, 448E, 448H, and 464, Hawaii Revised Statutes, are repealed.

SECTION 7. All officers and employees of the departments of commerce and consumer affairs and labor and industrial relations whose functions are transferred by this Act shall be transferred with their functions and shall continue to perform their regular duties upon the transfer, subject to the state personnel laws and this Act.

No officer or employee of the State having tenure who is transferred by this Act shall suffer any loss of salary, seniority, prior service credit, vacation, sick leave, or other employee benefit or privilege as a consequence of this Act, and such officer or employee may be transferred or appointed to a civil service position without the necessity of examination; provided that the officer or employee possesses the minimum qualifications for the position to which transferred or appointed; and provided that subsequent changes in status may be made pursuant to applicable civil service and compensation laws.

An officer or employee of the State who does not have tenure and who may be transferred or appointed to a civil service position as a consequence of this Act shall become a civil service employee without any loss of salary, seniority, prior service credit, vacation, sick leave, or other employee benefits or privileges and without the necessity of examination; provided that the officer or employee possesses the minimum qualifications for the position to which transferred or appointed.

In the event that an office or position held by an officer or employee having tenure is abolished, the officer or employee shall not thereby be separated from public employment, but shall remain in the employment of the State with the same pay and classification and shall be transferred to some other office or position for which the officer or employee is eligible under the personnel laws of the State as determined by the head of the department or the governor.

SECTION 8. All appropriations, records, equipment, machines, files, supplies, contracts, books, papers, documents, maps, and other personal property heretofore made, used, acquired, or held by the departments of commerce and consumer affairs and labor and industrial relations relating to the functions transferred to the Hawaii construction authority by this Act shall be transferred with the functions to which they relate.

SECTION 9. Upon the repeal of chapters 104, 396, 436B, 444, 448E, 448H, and 464, Hawaii Revised Statutes, the revisor of statutes shall substitute all references to "chapter 104, 396, 436B, 444, 448E, 448H, and 464" or any specific section or part of chapters 104, 396, 436B, 444, 448E, 448H, and 464, as the case may be, with the corresponding chapter, part, or section number of the new chapter enacted by this Act as appropriate.

SECTION 10. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 11. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 12. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2006-2007 for the establishment of the Hawaii construction authority.

The sum appropriated shall be expended by the department of labor and industrial relations for the purposes of this Act.

SECTION 13. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 14. This Act shall take effect on July 1, 2006.