S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2382

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            January 18, 2011
                               ___________

Introduced  by M. of A. DESTITO -- read once and referred to the Commit-
  tee on Governmental Operations

AN ACT to amend the executive law, in  relation  to  providing  for  the
  certification  and  training  of  persons employed in the manufacture,
  sale, installation  and  repair  of  modular  homes  and  establishing
  dispute resolution procedures in the modular home industry

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Article 21-B of the executive law, as added by chapter  729
of the laws of 2005, is amended to read as follows:
                               ARTICLE 21-B
                     MANUFACTURED AND MODULAR HOMES
Section 600. Application.
        601. Definitions.
        602. Certification required.
        603. Warranty seals; notice to the department.
        604. Powers of the department.
        605.  Resolution  of disputes regarding manufactured AND MODULAR
               homes.
        606. Training and continuing education.
        607. Penalties for violation of this article.
        608. Fees.
        609. State administrative agency requirements.
        610. State certified installers.
        611. Manufactured AND MODULAR housing advisory council.
        612. Powers and duties of the advisory council.
  S 600. Application. This article shall be applicable  to  persons  and
business  entities  engaged  in  the manufacture, sale, installation and
service of manufactured OR MODULAR homes and to purchasers thereof.
  S 601. Definitions. For the purposes of  this  article  the  following
terms shall have the following meanings:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06150-01-1
              

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  1.  "Business  entity"  means a corporation, association, partnership,
limited liability company, limited liability partnership, or other legal
entity.
  2.  "Delivered  condition"  means  the  physical condition of the home
after delivery and installation at the home site has been completed.
  3. "Department" means the department of state.
  4. "Installation" means:
  (a) the affixation of a manufactured OR MODULAR home to  a  foundation
or supports at a building site;
  (b)  the  assembly  and fastening of structural components of manufac-
tured OR MODULAR housing, including the completed roof system; and
  (c) the connection to electrical, oil, water, gas, sewage and  similar
systems  that  are  necessary for the use of the manufactured OR MODULAR
home for dwelling purposes.
  5. "Installer" means any person or business entity, including, but not
limited to, a retailer or mechanic, who installs or sets up  a  manufac-
tured OR MODULAR home for a buyer.
  6.  "Lending entity" means a financial institution, mortgage lender or
other individual or entity that  holds  a  mortgage  or  other  security
interest  in a manufactured OR MODULAR home, such home being the subject
of a complaint filed with the department pursuant to the  provisions  of
this article.
  7. "Manufactured home" means a structure, transportable in one or more
sections,  which,  in  the traveling mode, is eight body feet or more in
width or forty body feet or more in length, or, when erected on site, is
three hundred twenty or more square feet, and which is built on a perma-
nent chassis and designed to be used as a dwelling  with  or  without  a
permanent  foundation  when  connected  to  the  required utilities, and
includes the plumbing, heating, air-conditioning, and electrical systems
contained therein. The term shall include any structure that  meets  all
of the requirements of this subdivision except the size requirements and
with respect to which the manufacturer voluntarily files a certification
required by the United States secretary of housing and urban development
and complies with the standards established under Title 42 of the United
States  code;  and except that such term shall not include any self-pro-
pelled recreational vehicle.
  8. "Manufacturer" means any person or business entity engaged in manu-
facturing or producing manufactured OR MODULAR homes.
  9. "Mechanic" means any person or business entity engaged in the busi-
ness of performing service on  or  installing  manufactured  OR  MODULAR
housing.
  10.  "Retailer"  means  any  person  or business entity engaged in the
retail selling or offering for sale, brokering or distribution of  manu-
factured  OR  MODULAR  homes,  primarily to a person who, in good faith,
purchases these homes for purposes other than resale.
  11. "Secretary" means the secretary of state.
  12. "Service" means the modification,  alteration  or  repair  of  the
structural systems of a manufactured OR MODULAR home.
  13.  "State  administrative  agency"  or "SAA" means the department of
state which has been approved to carry out the state  plan  and  enforce
the  national manufactured housing construction and safety standards act
(42 USC 5401, et seq.) within the state of New  York,  and  that  office
within the department of state that has been designated by the secretary
to perform such duties.
  14. "Advisory council" shall mean the manufactured AND MODULAR housing
advisory council.

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  15.  "MODULAR HOME" MEANS ANY BUILDING OR CLOSED CONSTRUCTION, REGARD-
LESS OF TYPE OF CONSTRUCTION OR OCCUPANCY CLASSIFICATION, OTHER  THAN  A
MOBILE OR MANUFACTURED HOME, CONSTRUCTED OFF-SITE IN ACCORDANCE WITH THE
APPLICABLE  CODES,  AND TRANSPORTED TO THE POINT OF USE FOR INSTALLATION
OR ERECTION.
  S  602.  Certification required. 1. On and after July first, two thou-
sand six, no person or business entity shall manufacture, including  the
manufacture outside the state of New York for sale into the state of New
York, sell, install or service any manufactured home in the state of New
York, unless such person or business entity has obtained the appropriate
certification  from  the  department  pursuant to this article.   ON AND
AFTER JULY FIRST NEXT SUCCEEDING THE EFFECTIVE DATE OF  THE  CHAPTER  OF
THE LAWS OF TWO THOUSAND ELEVEN WHICH AMENDED THIS SECTION, NO PERSON OR
BUSINESS ENTITY SHALL MANUFACTURE, INCLUDING THE MANUFACTURE OUTSIDE THE
STATE  OF NEW YORK FOR SALE INTO THE STATE OF NEW YORK, SELL, INSTALL OR
SERVICE ANY MODULAR HOME IN THE STATE OF NEW YORK, UNLESS SUCH PERSON OR
BUSINESS ENTITY HAS OBTAINED  THE  APPROPRIATE  CERTIFICATION  FROM  THE
DEPARTMENT PURSUANT TO THIS ARTICLE.
  2.  On  and  after  July first, two thousand six, no manufactured home
shall be installed or serviced unless at least one person  certified  by
the  department  to perform such work is present at the home site during
the installation or service.  ON AND AFTER JULY  FIRST  NEXT  SUCCEEDING
THE  EFFECTIVE  DATE  OF  THE CHAPTER OF THE LAWS OF TWO THOUSAND ELEVEN
WHICH AMENDED THIS SECTION,  NO  MODULAR  HOME  SHALL  BE  INSTALLED  OR
SERVICED  UNLESS  AT  LEAST  ONE  PERSON  CERTIFIED BY THE DEPARTMENT TO
PERFORM SUCH WORK IS PRESENT AT THE HOME SITE DURING THE INSTALLATION OR
SERVICE.
  3. a. Each manufacturing plant that delivers or sells manufactured  OR
MODULAR  homes  in this state, each retail sales location and each busi-
ness entity selling, installing or performing service on manufactured OR
MODULAR homes must be separately certified.
  b. Each manufacturer, retailer, installer and mechanic shall employ at
least one person who has been certified by the department.
  4. Manufacturers approved to construct manufactured OR  MODULAR  homes
by  the  United States department of housing and urban development shall
be required to apply for, and obtain,  certification  pursuant  to  this
article.  Any such manufacturer shall be deemed to meet the requirements
for certification under this article, except that  the  department  may,
after a hearing, suspend or revoke the certification of any manufacturer
as  provided  in  subdivision  seven of section six hundred four of this
article.
  S 603. Warranty seals; notice to the department. 1. Before a  manufac-
tured  OR  MODULAR home may be installed in this state, the manufacturer
shall obtain from the department a New York state manufacturer's warran-
ty seal and attach the seal to the manufactured OR MODULAR home  in  the
manner to be prescribed by the department.
  2.  Before  a  manufactured  OR  MODULAR home may be installed in this
state, the installer shall obtain from the department a New  York  state
installer's  warranty  seal  and  attach the seal to the manufactured OR
MODULAR home in the manner prescribed by the department.
  3. On a quarterly basis, every installer shall report to  the  depart-
ment  all  installations  completed  by  that  person or business entity
during the designated reporting period. The report shall be  on  a  form
provided by the department and must include the location of each unit of
manufactured  OR  MODULAR housing, the owner of each unit at the time of
installation, the type or model of the unit,  the  manufacturer  of  the

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unit, written certification that the installation meets the standards of
the  New  York  state  uniform fire prevention and building code and the
name and address of the manufacturer, retailer,  mechanic  or  installer
completing the notice.
  S 604. Powers of the department. The department shall have the follow-
ing powers and duties with respect to manufactured AND MODULAR housing:
  1.  To  create  and maintain a registry accessible to the public which
shall include, but not be limited to the following information:
  (a) a listing of certified manufacturers,  retailers,  installers  and
mechanics of manufactured OR MODULAR homes; and
  (b)  records  of  all violations issued, disciplinary action taken and
penalties paid and levied pursuant to this article;
  2. To retain records and all application materials submitted to it;
  3. To receive complaints, conduct investigations and establish  proce-
dures  for  the  resolution  of  disputes  relating to the construction,
installation, or servicing of  manufactured  OR  MODULAR  homes  and  to
resolve  such  complaints  and  disputes pursuant to section six hundred
five of this article;
  4. To establish administrative procedures for processing  applications
for certification of persons and business entities required to be certi-
fied  pursuant to this article; to receive such applications; to approve
or disapprove applications for  certifications;  and  to  issue  certif-
icates;
  5.  To  promulgate rules and regulations relating to the provisions of
this article;
  6. To conduct adjudicatory hearings, pursuant to the state administra-
tive procedure act to resolve violations of this article and  the  rules
and regulations promulgated thereunder;
  7. To suspend and revoke certificates, and impose such other penalties
as may be authorized pursuant to this article. The department may revoke
or  suspend  the  certification of a person or business entity certified
pursuant to this article for a substantial violation of this article, or
for a material misstatement in the application for  such  certification,
or  if  such  person or business entity is guilty of fraud or fraudulent
practices, or of dishonest or  misleading  advertising,  or  has  demon-
strated  untrustworthiness  or  incompetency  to  conduct  the certified
activity or fails to comply with a decision issued pursuant  to  section
six hundred five of this article;
  8.  To seek injunctive relief in the supreme court in the county where
the complainant resides;
  9. To promulgate rules and regulations establishing the standards  for
certification  of  manufacturers,  retailers,  installers  and mechanics
pursuant to this article. In establishing such standards, the department
shall provide for minimum requirements of experience  and  education  as
may  be  necessary  to protect the public interest. Such standards shall
also include a  requirement  for  initial  training  of  installers  and
mechanics seeking certification by the department. In establishing stan-
dards,   the  department  shall  recognize  certifications  or  licenses
obtained in other states without  requiring  additional  initial  educa-
tional  testing,  provided  that  the  requirements for certification or
licensing in such other states are comparable to  the  requirements  for
certification  in  the  state of New York and provided further, that the
individual or entity seeking certification otherwise  meets  the  quali-
fications for certification in the state of New York;
  10.  To  promulgate  rules and regulations to require bonding, minimum
capital requirements or other reasonable methods to ensure that manufac-

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turers, retailers, installers and mechanics are financially  responsible
to  fully  comply  with this article and have the financial resources to
meet their warranty, contractual and other obligations.   In  connection
therewith,  the  department  may  require the posting of surety bonds to
ensure the satisfactory completion of the installation or service; and
  11. a. To promulgate rules and regulations regarding  the  development
and approval of courses and seminars required for original certification
and  to  establish  requirements  for  continuing  education for persons
certified pursuant to this article. Such regulations shall at a  minimum
require that certified installers and mechanics attend courses and semi-
nars  relating to the proper methods of installation and servicing manu-
factured OR MODULAR homes not less than once every three years.
  b. Instructional services for  courses  leading  to  original  certif-
ication or qualifying for continuing education may be provided either by
the  department,  a  private trade association or other entity which has
been approved as an instructional provider by  the  department  and  has
paid the appropriate fee prescribed by rules and regulations promulgated
under  this section. Approved instructional providers shall be permitted
to charge a fee for such services, not  to  exceed  the  maximum  amount
prescribed  by  the rules and regulations.  Persons electing to have the
continuing education instructional services provided by the  department,
shall pay for such services in accordance with fee schedules established
by the department.
  c.  Fees charged by the department for approving or providing instruc-
tional services shall be deposited in the department account established
pursuant to section six hundred eight of this article.
  12. To create and maintain a consumer awareness pamphlet, in  conjunc-
tion  with  the  advisory  council,  to  include, but not be limited to,
detailing the certification process,  installer  selection  rights,  the
dispute  resolution  process, the differences between the types of hous-
ing, and other consumer protection issues. Such pamphlet shall be avail-
able to the public, and published on the department's website.
  S 605. Resolution  of  disputes  regarding  manufactured  AND  MODULAR
homes.  1. Any homeowner, retailer, manufacturer, installer, mechanic or
lending entity may file a complaint  with  the  department  as  a  state
administrative  agency  seeking  resolution  of  an  allegation  that  a
substantial defect exists  in  the  delivered  condition,  installation,
service  or construction of a manufactured OR MODULAR home.  The depart-
ment shall promulgate forms for such complaints which forms  shall  also
be available on the department's [web-site] WEBSITE.  For the purpose of
this  article,  a  substantial  defect  shall be a defect or a number of
defects  or  other  conditions  which  collectively  can  reasonably  be
expected to cost five hundred dollars or more to cure.
  2.  Complaints  relating  to  the  delivered  condition, installation,
service or construction of a manufactured OR MODULAR home shall be  made
within one year and ten days after the date of the service, installation
or  issuance  of  a  certificate  of occupancy, or the expiration of any
applicable provision of a contract or warranty, whichever is later.
  3. (a) Upon the department's determination that a  complaint,  on  its
face, alleges a substantial defect in the delivered condition, installa-
tion,  service,  or  construction of a manufactured OR MODULAR home, the
department shall notify the homeowner, manufacturer, retailer,  mechanic
and installer, as appropriate.
  (b)  Initially,  the  department may attempt to informally resolve the
complaint. If informal resolution of the complaint is unsuccessful,  the

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department  shall resolve such complaints and disputes by administrative
hearing, pursuant to the state administrative procedure act.
  (c)  The decision shall provide compensation to the aggrieved party in
an amount which shall include, but not be limited to:
  (i) Filing and recording fees,  inspection  fees  and  other  required
costs  that the aggrieved party would not have incurred had the home met
applicable standards; and
  (ii) The cost of conforming repairs or replacements.
  (d) The department may apportion liability between two or more parties
or business entities where appropriate.
  (e) The decision resolving the complaint shall be in writing and shall
provide the reason therefor, a copy of the decision shall be provided to
all interested parties.
  (f)   The department may require, as  a  condition  of  receiving  and
retaining  any certification pursuant to this article, that an applicant
agrees to submit to the jurisdiction of  the  department  in  connection
with the resolution of complaints and disputes and agrees to be bound by
the  department's  determination subject to any administrative and judi-
cial review provided for in this article.
  (g) Any party may seek judicial review of the administrative  determi-
nation  pursuant  to article seventy-eight of the civil practice law and
rules.
  S 606. Training and continuing education. 1. Beginning January  first,
two  thousand  six,  all  persons certified as an installer or mechanic,
must obtain initial training, including, but not limited to  the  stand-
ards  for  proper installation of a manufactured home. BEGINNING JANUARY
FIRST NEXT SUCCEEDING THE EFFECTIVE DATE OF THE CHAPTER OF THE  LAWS  OF
TWO THOUSAND ELEVEN WHICH AMENDED THIS SECTION, ALL PERSONS CERTIFIED AS
AN  INSTALLER  OR MECHANIC, MUST OBTAIN INITIAL TRAINING, INCLUDING, BUT
NOT LIMITED TO THE STANDARDS FOR PROPER INSTALLATION OF A MODULAR  HOME.
Such  training shall be provided in courses and seminars approved pursu-
ant to this article.
  2. All persons certified under  this  article  shall  be  required  to
attend  continuing  education  courses  and  seminars not less than once
every three years.
  S 607. Penalties for violation of this article. Any person or business
entity found guilty, after a hearing, of a violation  of  this  article,
except  for  the provisions of section six hundred nine of this article,
may be required to pay a civil penalty of not  more  than  one  thousand
dollars for each such violation, but not more than five thousand dollars
for  more  than  one violation relating to each home. Such fine shall be
collected and deposited in the state's general fund. In addition to  the
penalties  set forth in  this section, the secretary shall also have the
power to suspend or revoke licenses pursuant to section six hundred four
of this article.
  S 608. Fees. The department shall, by regulation, establish reasonable
fees for obtaining certification, obtaining  warranty  and  installation
seals  and for instructional services, training and continuing education
pursuant to this article. Such fees shall be paid and deposited  into  a
segregated account established within the department which shall be used
exclusively to defray the administrative expenses associated with carry-
ing out the provisions of this article.
  S  609.  State administrative agency requirements. 1.  In carrying out
its responsibilities and obligations pursuant to 42 USC 5401,  et  seq.,
the  department, by authorized representatives, may enter, at reasonable
times, any factory, warehouse or establishment in which manufactured  OR

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MODULAR  housing  is  manufactured,  stored,  or  held  for sale for the
purpose of ascertaining whether the requirements of the federal manufac-
tured housing construction and safety standards act, the  provisions  of
this article and the rules of the department are being met.  The depart-
ment's authority to enter and inspect shall be no less than the authori-
ty provided in 42 USC 5413.
  2.  Each  manufacturer and retailer of manufactured OR MODULAR housing
constructed under the federal standards and any other  party  or  entity
covered  by  chapter  10  of title 42 of the United States Code shall be
subject to and comply with all applicable provisions of  said  laws  any
violation of which shall be deemed a violation of this section.
  3.  The department by authorized representative, shall have all of the
powers granted to the secretary of  housing  and  urban  development  as
provided  in  chapter  10  of  title  42  of the United States Code with
respect to the enforcement of manufactured home safety and  construction
standards promulgated under 42 USC 5403.
  4.  The department is authorized to impose and collect fees to be paid
by manufacturers in amounts adequate to cover the costs  of  inspections
conducted pursuant to the provisions of this article. Such fees shall be
deposited  in the department account established pursuant to section six
hundred eight of this article.
  5. (a) A manufacturer or retailer of manufactured OR  MODULAR  housing
who violates any of the provisions set forth in this section relating to
manufactured  OR  MODULAR  housing  or  rules adopted by the department,
including provisions of the New York state uniform fire  prevention  and
building code relating to manufactured OR MODULAR housing, is subject to
a  civil penalty not to exceed one thousand one hundred dollars for each
violation. Each violation constitutes a separate violation with  respect
to  each  manufactured  OR MODULAR housing unit, except that the maximum
penalty may not exceed one million one hundred thousand dollars for  any
related  series of violations occurring within one year from the date of
the first violation.
  (b) An individual or a director, officer, or agent of a corporation or
a principal [on] OF  a  business  entity  who  knowingly  and  willfully
violates 42 USC 5409 in a manner which threatens the health or safety of
any  purchaser  shall  be  fined  not  more than one thousand dollars or
imprisoned not more than one year or both.
  (c)(i) The department may enforce the provisions of this  article  and
may impose civil penalties administratively;
  (ii)  Nothing in this article shall limit the powers and duties of the
attorney general, as defined in section sixty-three of this chapter; and
  (iii) Nothing in this article shall diminish or limit any other  right
or cause of action existing under any other provision of law.
  S  610. State certified installers. Manufacturers and retailers may as
a condition of the sale of a manufactured OR MODULAR home  require  that
the home be installed by a state certified installer and may recommend a
particular  installer  or  installers.    Manufacturers shall not void a
warranty for a manufactured OR MODULAR home if the [home buyer] HOMEBUY-
ER utilizes a state certified installer. It shall be a violation of this
article to restrict a homebuyer from using any state certified installer
chosen by the homebuyer, or to void a warranty  for  a  manufactured  OR
MODULAR home if the homebuyer utilizes a state certified installer.
  S  611. Manufactured AND MODULAR housing advisory council. 1. There is
hereby established within the  department  a  manufactured  AND  MODULAR
housing  advisory council. The advisory council shall consist of fifteen
members to be appointed as follows:

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  a. Four members shall be appointed by the governor; one of whom  shall
be  a member, officer, or employee of an installer, one of whom shall be
a member, officer, or employee of a park residence advocacy association,
one of whom shall be a member, officer, or employee of a  retailer,  and
one  of  whom shall be a member, officer, or employee of a trade associ-
ation representing the manufactured OR MODULAR home industry.
  b. Four members shall be appointed by the temporary president  of  the
senate;  one  of  whom  shall  be  a  member,  officer, or employee of a
manufacturer, one of whom shall be a member, officer, or employee of the
engineering industry involved in manufactured OR MODULAR housing issues,
one of whom shall be a member, officer, or employee of a consumer  advo-
cacy association involved in manufactured OR MODULAR housing issues, and
one of whom shall be a manufactured OR MODULAR housing resident owner.
  c. Four members shall be appointed by the speaker of the assembly; one
of  whom  shall be a member, officer, or employee of a manufacturer, one
of whom shall be a member, officer, or employee of the banking  industry
involved in manufactured OR MODULAR housing issues, one of whom shall be
a  member,  officer,  or  employee  of  a  consumer advocacy association
involved in manufactured OR MODULAR housing  issues,  and  one  of  whom
shall be a manufactured OR MODULAR housing resident owner.
  d. One member shall be appointed by the minority leader of the senate;
who shall be a manufactured OR MODULAR home resident owner.
  e.  One member shall be appointed by the minority leader of the assem-
bly; who shall be a manufactured OR MODULAR home resident owner.
  2. The secretary shall be a member of the advisory council  and  shall
serve as chair to the council.
  S 612. Powers and duties of the advisory council. The advisory council
shall have the following functions, powers, and duties:
  1.  To  assist  in  the  development of certification requirements and
fees, warranty seal requirements and fees, and  warranty  standards  for
manufacturers and installers;
  2.  To  assist in the development of training and continuing education
requirements;
  3. To assist in the creation of a consumer awareness pamphlet  detail-
ing  the  certification  process  and resolution of dispute process. The
pamphlet shall also explain the  differences  between  types  of  houses
(mobile, modular and manufactured);
  4.  To  examine  consumer protection issues, including but not limited
to, manufactured AND MODULAR housing financing and sales practices;
  5. To examine the differences  of  manufactured  and  modular  housing
regulations  and make recommendations to the department and the legisla-
ture on an annual basis; and
  6. To submit annual reports by December thirty-first, two thousand six
and each year thereafter, to the governor, the  temporary  president  of
the  senate and the speaker of the assembly that details the recommenda-
tions of the advisory council regarding manufactured AND MODULAR housing
in New York state. The advisory council shall, as part  of  its  report,
detail  the  number  of  complaints  received  by the department and the
number of disputes resolved through the department.
  S 2.  This act shall take effect January 1 next succeeding the date on
which it shall have become a law, provided that the department of  state
shall  immediately  be  authorized  and  empowered  to  take such steps,
including the promulgation of rules and regulations, as may be necessary
for the proper implementation of this act on such effective date.