Question Submitted by Boevers, 091818 OKAG, 2018 OK AG 9

Docket Nº:2018 OK AG 9
Party Name:Question Submitted by: Tony Boevers, Chairman, Oklahoma Construction Industries Board
Attorney:MIKE HUNTER ATTORNEY GENERAL OF OKLAHOMA LAUREN E. HAMMONDS ASSISTANT ATTORNEY GENERAL
Case Date:September 18, 2018
Court:Oklahoma Attorney General Opinions
 
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2018 OK AG 9

Question Submitted by: Tony Boevers, Chairman, Oklahoma Construction Industries Board

No. 2018 OK AG 9

Oklahoma Attorney General Opinions

September 18, 2018

MIKE HUNTER ATTORNEY GENERAL OF OKLAHOMA

LAUREN E. HAMMONDS ASSISTANT ATTORNEY GENERAL

¶0 This office has received your letter requesting an official Attorney General Opinion in which you ask, in effect, the following questions:

1. Does the Oklahoma Inspectors Act (59 O.S.2011 & Supp.2017, §§ 1031-1046) authorize the Construction Industries Board to enforce compliance with the building code adopted by a political subdivision?

2. Does the Oklahoma Inspectors Act permit a political subdivision to engage someone other than an employee of the political subdivision, a "circuit rider inspector," or an "authorized agent" to perform building and construction inspections on its behalf?

3. If the answer to Question #2 is no, what is the authority of the Construction Industries Board to penalize a political subdivision for utilizing such a person to perform building and construction inspections?

4. May the Construction Industries Board discipline a licensee for performing an inspection in a category for which the licensee is not licensed (e.g., a licensed plumbing inspector performing electrical inspections)?

I.

BACKGROUND

¶1 Originally enacted in 1989, the Oklahoma Inspectors Act, 59 O.S.2011 & Supp.2017, §§ 1031-1046 (the "Act"), requires any person "act[ing] as or perform[ing] the work of a building and construction inspector" 1 in Oklahoma to be qualified and licensed. 59 O.S.2011, § 1040. Any person who "act[s] or perform[s] as a building and construction inspector without a proper license" is guilty of a misdemeanor and subject to fines of up to $2, 500. Id. § 1044. Similarly, a political subdivision that "employs an unlicensed person to perform the duties and responsibilities of a building and construction inspector" is subject to fines of $200 per violation, up to a maximum of $1, 000. Id.

¶2 The Act was initially administered by the State Board of Health, see 1989 Okla. Sess. Laws ch. 215, but that authority shifted to the Oklahoma Construction Industries Board ("CIB") upon the CIB's creation in 2001. See 2001 Okla. Sess. Laws ch. 394, § 27. The Act requires the CIB to "promulgate rules governing the examination and licensing of building, electrical, mechanical, plumbing, and other construction inspectors," which rules may include "any or all nationally recognized inspector certification programs or codes for purposes of building and construction inspector licensing." 59 O.S.2011, § 1032. It also created the Inspector Examiners Committee (the "Committee") to assist the CIB in overseeing the licensing, continuing education, and discipline of building and construction inspectors. Id. §§ 1034--1035. Pursuant to the authority granted by the Act, the CIB has promulgated rules setting forth, among other things, the categories and classes of inspector licenses, the requisite qualifications, fee schedules, and procedures for obtaining such licenses, and continuing education requirements for licensed inspectors. See OAC 158:60.

¶3 The Act imposes two requirements for inspector applicants: (1) successful completion of a Committee-approved examination, and (2) being "employed" by a political subdivision. 59 O.S.Supp.2017, § 1036 (A). An applicant who satisfies these requirements, pays the required fees, and "has otherwise complied with the applicable requirements of [the Act]" shall be issued a license by the CIB. 2 Id. In 2017, the Act was amended to provide for a separate class of license known as an "authorized agent" of a political subdivision. Id. §§ 1033(11), 1046. An "authorized agent" is not a governmental employee, but rather an independent contractor authorized by a political subdivision that issues building permits to conduct inspections on its behalf. Id. § 1046(B). An "authorized agent" licensee must satisfy the same licensure requirements as an inspector employed by a political subdivision and be "free of direction and control of any contractor who is requesting the inspection." Id. § 1046(C).

¶4 Finally, the Act includes two geographical limitations. First, the Act does not apply at all in unincorporated areas 3 of the State. 59 O.S.2011, § 1043. Second, a municipality or political subdivision with 10, 000 or fewer residents is exempt from the Act, unless it employs the services of a "circuit rider inspector" 4 or an authorized agent to conduct inspections on its behalf. 59 O.S.Supp.2017, § 1041; see also id. § 1046(B) ("An authorized agent... is required to be licensed regardless of the population of the political subdivision.").

II.

DISCUSSION

A. The...

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