HBA-ATS H.B. 3759 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 3759 By: Giddings Business & Industry 4/7/1999 Introduced BACKGROUND AND PURPOSE Texas law does not require residential carpet cleaners to register with a state agency. Without registration, a consumer who does not have a carpet cleaner's name and current address may not be able to contact the carpet cleaner with which the customer is dissatisfied. In addition, if the consumer does file a complaint with a state agency such as the attorney general or with another organization such as the Better Business Bureau, neither entity would be able to help very much without the business' current address. H.B. 3759 prohibits a person from engaging in business as a residential carpet cleaner in this state unless the person holds a certificate of registration. A person must file a registration statement with the secretary of state before engaging in business as a cleaner in this state. Some of the information required in the statement includes the name, street address, and telephone number of the cleaner, any assumed name under which the cleaner is doing business, and a complete disclosure of any litigation relating to carpet cleaning brought against the cleaner or an owner, officer, or director of the cleaner that was completed within three years before the date on which the statement is filed or is pending on the date of filing. Each cleaner is required to post the certificate in a conspicuous place accessible to clients and prospective clients in the cleaner's principal office. In addition, each registered cleaner must display in the cleaner's principal office a sign provided by the secretary of state that contains a statement that the cleaner is registered with the secretary of state, the mailing address and telephone number of the secretary of state, and a statement informing consumers that a complaint against a registered cleaner may be directed to the secretary of state. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the secretary of state in SECTIONS 3.02, 4.01, and 4.03 of this bill. SECTION BY SECTION ANALYSIS ARTICLE 1. GENERAL PROVISIONS SECTION 1.01. DEFINITIONS. Defines "consumer," "person," and "residential carpet cleaner." SECTION 1.02. EXEMPTIONS. Provides that the registration requirements of this Act do not apply to a maid or other person who performs domestic or household services, or a person who engages in or provides carpet cleaning services (services) only as an incidental part of the person's normal business. SECTION 1.03. WAIVER VOID. Voids a waiver of a provision of this Act by a consumer. ARTICLE 2. REGISTRATION SECTION 2.01. REGISTRATION REQUIREMENT. Prohibits a person from engaging in business as a residential carpet cleaner (cleaner) in this state unless the person holds a certificate of registration issued under this Act. SECTION 2.02. REGISTRATION STATEMENT. (a) Provides that a person must file a registration statement (statement) with the secretary of state (secretary) before engaging in business as a cleaner in this state. Sets forth the information required in the statement, among which is the name, street address, and telephone number of the cleaner, any assumed name under which the cleaner is doing business, and a complete disclosure of any litigation relating to carpet cleaning brought against the cleaner or an owner, officer, or director of the cleaner that was completed within three years before the date on which the statement is filed or is pending on the date of filing. (b) Requires each cleaner to maintain a copy of the statement in the cleaner's business records. (c) Requires the cleaner to update the statement when a material change occurs in the information on file. (d) Requires the cleaner to notify the secretary if a legal action relating to the cleaner's business is brought against the cleaner or an owner, officer, or director of the cleaner. Specifies how and when the notice must be given to the secretary. SECTION 2.03. ISSUANCE OF CERTIFICATE OF REGISTRATION. Requires the secretary to issue a certificate of registration (certificate) to a cleaner that files a completed statement and pays the required registration fee. SECTION 2.04. CERTIFICATE OF REGISTRATION NOT TRANSFERABLE. Sets forth that a certificate issued under this Act is not transferable. SECTION 2.05. TERM; RENEWAL. Establishes the date a cleaner's certificate expires. Authorizes a registrant to renew a certificate before the expiration date by paying the renewal fee and complying with other renewal requirements as prescribed by the secretary's rules. Requires the secretary to issue a renewal certificate to the registrant at the time of the renewal. Describes the deadline for the secretary's duty to notify each registrant in writing. SECTION 2.06. POSTING OF CERTIFICATE AND OTHER INFORMATION. Requires each cleaner to post the certificate in a conspicuous place accessible to clients and prospective clients in the cleaner's principal office. Requires each registered cleaner to display in the cleaner's principal office a sign provided by the secretary that contains a statement that the cleaner is registered with the secretary of state, the mailing address and telephone number of the secretary, and a statement informing consumers that a complaint against a registered cleaner may be directed to the secretary. SECTION 2.07. RECORDS. Requires each registrant to maintain records relating to the operation of the carpet cleaning business as prescribed by the secretary's rule. ARTICLE 3. PROHIBITIONS AND RESTRICTIONS SECTION 3.01. REPRESENTATIVE. Provides that a representative of a cleaner includes a salesperson, agent, or other representative of the cleaner, for purposes of this article. SECTION 3.02. ADVERTISING SERVICES WITHOUT FILING REGISTRATION STATEMENT. Prohibits a cleaner or its representative from advertising the services of the cleaner unless the cleaner has filed a registration statement. Provides that an advertisement for the services of a cleaner must contain the registration number of the certificate. Requires the secretary, by rule, to adopt regulations and establish standards relating to permissible forms of advertising by a person registered under this Act. SECTION 3.03. FRAUDULENT OR DECEPTIVE CONDUCT. Prohibits a cleaner from directly or indirectly engaging in a fraudulent or deceptive act, practice, or course of business relating to the offer or sale of carpet cleaning services. SECTION 3.04. CAUSING WAIVER PROHIBITED. Prohibits a cleaner from attempting to cause a consumer to waive a right under this Act. ARTICLE 4. POWERS AND DUTIES OF SECRETARY OF STATE; ADMINISTRATIVE ENFORCEMENT SECTION 4.01. ADMINISTRATIVE AND RULEMAKING AUTHORITY. Requires the secretary to administer this Act and adopt rules necessary for its administration. SECTION 4.02. FILING FEE. Requires the secretary to charge each applicant for a certificate of registration ($100 fee) and a renewal of a certificate ($50 fee). SECTION 4.03. DENIAL, SUSPENSION, OR REVOCATION OF CERTIFICATE OF REGISTRATION. Authorizes the secretary to deny, suspend, revoke, or reinstate a certificate. Authorizes the secretary, by rule, to establish grounds for denial, suspension, revocation, or reinstatement of a certificate. Requires the secretary, by rule, to establish procedures for disciplinary actions. Sets forth that it is a ground for the denial of a certificate, or the permanent revocation or suspension for a definite period of a cleaner's certificate, that the person filing a statement or the certificate holder violated this Act or provided false information on a statement or other document filed with the secretary under this Act. Subjects a proceeding relating to the suspension or revocation of a certificate to Chapter 2001 (Administrative Procedure), Government Code. Prohibits a person whose certificate has been revoked from applying for a new certificate before the first anniversary of the date of the revocation. ARTICLE 5. EFFECTIVE DATE; EMERGENCY CLAUSE SECTION 5.01. EFFECTIVE DATE. Effective date: September 1, 1999. SECTION 5.02. EMERGENCY. Emergency clause.