Bill Summary – FastDemocracy

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68th Legislature 2023                                                                                            HB 115.1
                                                HOUSE BILL NO. 115
                                           INTRODUCED BY B. MERCER
                        BY REQUEST OF THE DEPARTMENT OF LABOR AND INDUSTRY
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  A BILL FOR AN ACT ENTITLED: “AN ACT GENERALLY REVISING LAWS RELATED TO LICENSING
  BOARDS; CONSOLIDATING AND CLARIFYING PENALTIES FOR UNLICENSED PRACTICE;
  ESTABLISHING A POLICY ALLOWING THE DEPARTMENT TO ISSUE CEASE AND DESIST ORDERS;
  PROVIDING FOR UNIFORM CIVIL PENALTIES FOR VIOLATIONS; ALLOCATING PENALTIES TO SPECIAL
  REVENUE AND GENERAL FUNDS; ALLOWING BOARDS AND THE DEPARTMENT OF LABOR AND
  INDUSTRY TO ISSUE INJUNCTIONS; PROVIDING FOR CRIMINAL PENALTIES; ESTABLISHING ACTS
  THAT ARE CONSIDERED UNPROFESSIONAL CONDUCT FOR PHARMACISTS; REPEALING PENALTY
  PROVISIONS IN INDIVIDUAL BOARD STATUTES; AMENDING SECTIONS 37-7-1513, 37-33-501, 37-60-
  301, 37-68-316, 37-69-310, 37-69-402, 37-72-101, AND 37-73-226, MCA; AND REPEALING SECTIONS 37-1-
  317, 37-1-318, 37-1-332, 37-3-325, 37-3-326, 37-4-326, 37-4-327, 37-4-328, 37-6-312, 37-7-323, 37-7-407, 37-
  7-510, 37-7-711, 37-8-443, 37-8-444, 37-9-312, 37-10-312, 37-10-313, 37-11-302, 37-11-322, 37-12-324, 37-
  13-315, 37-13-316, 37-14-323, 37-15-322, 37-15-323, 37-16-413, 37-17-312, 37-17-313, 37-18-501, 37-18-
  502, 37-18-703, 37-19-501, 37-19-831, 37-20-104, 37-24-311, 37-26-414, 37-27-325, 37-28-302, 37-29-411,
  37-29-412, 37-31-334, 37-33-504, 37-34-307, 37-35-204, 37-36-205, 37-40-312, 37-47-344, 37-50-342, 37-50-
  401, 37-51-323, 37-51-608, 37-53-307, 37-53-506, 37-60-411, 37-65-322, 37-65-323, 37-66-322, 37-67-332,
  37-68-322, 37-69-324, 37-72-102, AND 37-73-227, MCA.”
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  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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          NEW SECTION. Section 1.         Cease and desist -- injunction -- criminal penalties. (1) The
  department may issue a cease and desist order if the department determines through the receipt of credible
  evidence that a person is acting, has acted, or is about to act related to a profession or occupation in Title 37:
          (a)      without the license required to practice the profession or occupation;
          (b)      with a restricted title or designation of the profession or occupation without meeting the
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68th Legislature 2023                                                                                             HB 115.1
  requirements for that use; or
          (c)      in violation of a statute or rule of the profession or occupation.
          (2)      A cease and desist order issued under this section must be served pursuant to Rule 4,
  M.R.Civ.P. The order is effective upon service. Proof of service constitutes notice to the person of the existence
  and contents of the order.
          (3)      The screening panel of a board or the department on behalf of a program may assess a
  penalty of not more than $1,000 a day for each day a cease and desist order issued under this section is
  violated. Fifty percent of the penalty must be deposited in the state special revenue fund of the board or
  program, and the remainder must be deposited in the state general fund.
          (4)      (a) A board, following a vote of its screening panel, or the department, on behalf of a program,
  may institute and maintain in the name of the state an action for injunction or another civil remedy in district
  court to enforce a cease and desist order issued under this section. Proof of inadequacy of a legal remedy or
  proof of substantial or irreparable damage from continued violation is not required.
          (b)      The board or department is entitled to its costs, including the costs of investigation and attorney
  fees, incurred in seeking a district court order under this section.
          (c)      A person who knowingly or purposely violates a district court injunction under this section is
  guilty of a felony and subject to the penalties set forth in 46-18-213.
          (5)      An officer, agent, partner, or member of a business entity who knowingly and personally
  participates in a violation of this section is subject to the penalties prescribed by this section.
          (6)      The remedies provided by this section are in addition to and do not limit the remedies and
  actions otherwise permitted or required by law.
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          Section 2. Section 37-7-1513, MCA, is amended to read:
          "37-7-1513. Unlawful acts -- sanctions unprofessional conduct -- civil penalties. (1) A
  pharmacist who fails to submit prescription drug order information to the board as required by 37-7-1503 or who
  willfully submits incorrect prescription drug order information must be referred to the board for consideration of
  administrative sanctions commits unprofessional conduct.
          (2)      A person or entity authorized to possess registry information pursuant to 37-7-1504 through 37-
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68th Legislature 2023                                                                                             HB 115.1
  7-1506 who willfully discloses or uses the registry information in violation of 37-7-1504 through 37-7-1506 or a
  rule adopted pursuant to this part must be referred to the appropriate licensing board or regulatory agency for
  consideration of administrative sanctions commits unprofessional conduct.
          (3)      In addition to the administrative sanction provided actions based on unprofessional conduct
  described in subsection (2), a person or entity who willfully discloses or uses information from the registry in
  violation of 37-7-1504 through 37-7-1506 or a rule adopted pursuant to this part is liable for a civil penalty of up
  to $10,000 for each violation.
          (4)      The In addition to the provisions of [section 1], the board may institute and maintain in the
  name of the state any enforcement proceedings under this section. Upon request of the department, the
  attorney general shall petition the district court to impose, assess, and recover the civil penalty.
          (5)      An action under subsection (3) or to enforce this part or a rule adopted under this part may be
  brought in the district court of any county where a violation occurs.
          (6)      Civil penalties collected pursuant to this part must be deposited into the state special revenue
  account created pursuant to 37-7-1511 and must be used to defray the expenses of the board in establishing
  and maintaining the registry and in discharging its administrative and regulatory duties in relation to this part."
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          Section 3. Section 37-33-501, MCA, is amended to read:
          "37-33-501. License required -- enjoining unlawful practice title protection. (1) A person may not
  practice or purport to practice massage therapy without first obtaining a license under the provisions of 37-33-
  502.
          (2)      A person who is not licensed as a massage therapist, whose license has been suspended or
  revoked, or whose license has lapsed and has not been revived may not use the words or letters "massage
  therapist", "licensed massage therapist", "L.M.T.", "masseur", or "masseuse" or any other letters, words, or
  insignia indicating or implying that the person is a licensed massage therapist or in any way, orally, in writing, or
  in print or by sign, directly or by implication, purport to be a massage therapist.
          (3)   A person who knowingly violates the provisions of this section is guilty of a misdemeanor as
  provided in 37-33-504."
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68th Legislature 2023                                                                                               HB 115.1
            Section 4. Section 37-60-301, MCA, is amended to read:
            "37-60-301. License required -- process server registration required. (1) (a) Except as provided in
  37-60-105, it is unlawful for any person to act as or perform the duties, as defined in 37-60-101, of a contract
  security company, a proprietary security organization, an electronic security company, a branch office, a private
  investigator, a security alarm installer, an alarm response runner, a resident manager, a certified firearms
  instructor, or a private security guard without having first obtained a license from the board.
            (b)      Except as provided in 25-1-1101(2), it is unlawful for any person to act as or perform the duties
  of a process server for more than 10 services of process in a calendar year without being issued a certificate of
  registration by the board.
            (2)      It is unlawful for any unlicensed person to act as, pretend to be, or represent to the public that
  the person is licensed as a contract security company, a proprietary security organization, an electronic security
  company, a branch office, a private investigator, a security alarm installer, an alarm response runner, a resident
  manager, a certified firearms instructor, or a private security guard.
            (3)      A person appointed by the court as a confidential intermediary under 42-6-104 is not required
  to be licensed under this chapter. A person who is licensed under this chapter is not authorized to act as a
  confidential intermediary, as defined in 42-1-103, without meeting the requirements of 42-6-104.
            (4)   A person who knowingly engages an unlicensed contract security company, proprietary security
  organization, electronic security company, branch office, private investigator, security alarm installer, alarm
  response runner, resident manager, certified firearms instructor, or private security guard is guilty of a
  misdemeanor punishable under 37-60-411."
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            Section 5. Section 37-68-316, MCA, is amended to read:
            "37-68-316. Citation and fine for failure to display license. (1) A citation for failure to display an
  electrician's license or proof of licensure issued by an employee of the department must include:
            (a)      the time and date on which the citation is issued;
            (b)      the name, address, mailing address, and signature of the person to whom the citation is
  issued;
            (c)      reference to the statutory authority to issue the citation;
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68th Legislature 2023                                                                                                 HB 115.1
            (d)     the name, title, affiliation, and signature of the person issuing the citation;
            (e)     information explaining the procedure for the person to follow in order to pay the fine or to
  demonstrate proof of licensure; and
            (f)     the amount of the applicable fine.
            (2)     The applicable civil fines for failing to display a license or proof of licensure are as follows:
            (a)     $100 for the first offense, unless the provisions of subsection (4)(b) apply;
            (b)     $250 for the second offense; and
            (c)     $500 for the third and any subsequent offense.
            (3)     Each day of violation constitutes a separate offense. The person issuing the citation is
  responsible for determining, by means of an up-to-date list or through telephone or other communication with
  the board office, whether the citation being issued is for a first, second, or subsequent offense.
            (4)     (a) The person who issues the citation is authorized to collect the fine, but the person who is
  issued a citation may pay the fine to the appropriate authority identified on the citation within 5 business days of
  the date of issuance.
            (b)     The board may not impose a fine for a first offense on a licensee who produces proof of
  licensure to the department within 5 days of the citation. In other cases, the board may, upon finding that the
  person has demonstrated acceptable proof of licensure, waive or refund the fine.
            (5)     A person who refuses to sign and accept a citation commits a misdemeanor, punishable in the
  same manner as provided in 37-1-318 violates this section is also subject to the provisions of [section 1]."
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            Section 6. Section 37-69-310, MCA, is amended to read:
            "37-69-310. Citation and fine for failure to display license. (1) A citation for failure to display a
  plumber's license or proof of licensure issued by an employee of the department must include:
            (a)     the time and date on which the citation is issued;
            (b)     the name, address, mailing address, and signature of the person to whom the citation is
  issued;
            (c)     reference to the statutory authority to issue the citation;
            (d)     the name, title, affiliation, and signature of the person issuing the citation;
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68th Legislature 2023                                                                                               HB 115.1
          (e)      information explaining the procedure for the person to follow in order to pay the fine or to
  demonstrate proof of licensure; and
          (f)      the amount of the applicable fine.
          (2)      The applicable civil fines for failing to display a license or proof of licensure are as follows:
          (a)      $100 for the first offense, unless the provisions of subsection (4)(b) apply;
          (b)      $250 for the second offense; and
          (c)      $500 for the third and any subsequent offense.
          (3)      Each day of violation constitutes a separate offense. The person issuing the citation is
  responsible for determining, by means of an up-to-date list or through telephone or other communication with
  the board office, whether the citation being issued is for a first, second, or subsequent offense.
          (4)      (a) The person who issues the citation is authorized to collect the fine, but the person who is
  issued a citation may pay the fine to the board within 5 business days of the date of issuance.
          (b)      The board may not impose a fine for a first offense on a licensee who produces proof of
  licensure to the department within 5 days of the citation. In other cases, the board may, upon finding that the
  person has demonstrated acceptable proof of licensure, waive or refund the fine.
          (5)      A person who refuses to sign and accept a citation commits a misdemeanor, punishable in the
  same manner as provided in 37-1-318 violates this section is also subject to the provisions of [section 1]."
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          Section 7. Section 37-69-402, MCA, is amended to read:
          "37-69-402. Requirements for installation of medical gas piping. (1) After April 1, 1996, a A
  person may not install pipe used solely to transport gases used for medical purposes unless the person holds a
  valid medical gas piping installation endorsement pursuant to 37-69-401.
          (2)      A violation of this section is punishable pursuant to 37-69-324 [section 1]."
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          Section 8. Section 37-72-101, MCA, is amended to read:
          "37-72-101. Construction blasting restrictions -- license required -- definitions -- exemptions.
  (1) A person may not engage in the practice of construction blasting unless licensed or under the supervision of
  a person licensed as a construction blaster by the department.
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68th Legislature 2023                                                                                             HB 115.1
            (2)    For the purposes of this chapter:
            (a)    "construction blaster" means a person who engages in construction blasting;
            (b)    "construction blasting" means the use of explosives to:
            (i)    reduce, destroy, or weaken any residential, commercial, or other building; or
            (ii)   excavate any ditch, trench, cut, or hole or reduce, destroy, weaken, or cause a change in grade
  of any land formation in the construction of any building, highway, road, pipeline, sewerline, or electric or other
  utility line;
            (c)    "department" means the department of labor and industry;
            (d)    "explosive" has the meaning provided in 61-9-102.
            (3)    This chapter does not apply to the private or commercial use of explosives by persons engaged
  in farming, ranching, logging, geophysical work, drilling or development of water, oil, or gas wells, or mining of
  any kind or to the private use of explosives in the removal of stumps and rocks from land owned by the person
  using the explosives, except that the persons exempted from this chapter by this subsection shall comply with
  rules adopted under 37-72-201(1)(c) and the provisions of 37-72-102 [section 1] apply to a violation of those
  rules by an exempted person.
            (4)    This chapter does not apply to persons conducting blasting operations when the persons and
  operations are subject to rules adopted under 82-4-231(10)(e)."
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            Section 9. Section 37-73-226, MCA, is amended to read:
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