HomeMy WebLinkAboutPO 6669: AMENDING ARTICLE III (ELECTRICAL CODE) interoffice
MEMORANDUM
To: Mayor and City Council
From: Valecia R. Tizeno, City Attorney
Date: January 9, 2018
Subject: P. 0. No. 6668 — Amending the Code of Ordinances as to the Electrical
Advisory Board
P. 0. 6669 — Amending Article III (Electrical Code) of Chapter 18
(Buildings), Section 18-72
i
Please find attached Article 11, Section 5, of the Texas Constitution. This is the
provision that we must rely upon in formulating and implementing any City Ordinance.
Therefore, in moving forward with the licensing process, the City must be certain to do
so solely within the parameters of the Texas Constitution.
I am also attaching a copy of the November 7, 2017 memo from the Bojorquez
Firm specifically dealing with the standard for licensing any electricians and/or electrical
contractors that we must follow. If you have any questions, I will be happy to further
discuss this matter with you.
1 nr. 1 r,Ai LU1N 111 U 11UIN !-1K 11l-L1~, 11. 1VIU1VIL1FAL ( UKYUKA 11UNS Page 2 of 6
Cities and towns having a population of five thousand or less
may be chartered alone by general law. They may levy, assess and
collect such taxes as may be authorized by law, but no tax for any
purpose shall ever be lawful for any one year which shall exceed one
and one-half per cent of the taxable property of such city; and all
taxes shall be collectible only in current money, and all licenses
and occupation taxes levied, and all fines, forfeitures and penalties
accruing to said cities and towns shall be collectible only in
current money.
(Amended Aug. 3, 1909, and Nov. 2, 1920 . )
Sec. 5. CITIES OF MORE THAN 5, 000 POPULATION; ADOPTION OR
AMENDMENT OF CHARTERS; TAXES; DEBT RESTRICTIONS. (a) Cities having
more than five thousand (5000) inhabitants may, by a majority vote of
the qualified voters of said city, at an election held for that
purpose, adopt or amend their charters. If the number of inhabitants
of cities that have adopted or amended their charters under this
section is reduced to five thousand (5000) or fewer, the cities still
may amend their charters by a majority vote of the qualified voters
of said city at an election held for that purpose. The adoption or
amendment of charters is subject to such limitations as may be
prescribed by the Legislature, and no charter or any ordinance passed
under said charter shall contain any provision inconsistent with the
Constitution of the State, or of the general laws enacted by the
Legislature of this State. Said cities may levy, assess and collect
such taxes as may be authorized by law or by their charters; but no
tax for any purpose shall ever be lawful for any one year, which
shall exceed two and one-half per cent . of the taxable property of
such city, and no debt shall ever be created by any city, unless at
the same time provision be made to assess and collect annually a
sufficient sum to pay the interest thereon and creating a sinking
fund of at least two per cent. thereon, except as provided by
Subsection (b) . Furthermore, no city charter shall be altered,
amended or repealed oftener than every two years .
file:///C:/Users/gthibodeaux/Documents/THE%20TEXA S%2000NSTITUTION%20ART... 11/7/2017
BOJORQUEZ
12325 Hymeadow Drive Phone: (512)250-0411
Suite 2-100 LAW FIRM vac Fax: (512)250-0749
Austin,Texas 78750 '`"�-"1 TexasMunicipalLawyers.com
LEGAL MEMORANDUM
TO: Val Tizeno, City Attorney, City of Port Arthur
FROM: Elizabeth Elleson, Special Projects -Associate City Attorney
DATE: November 7, 2017
RE: Municipal Regulation of Electricians
QUESTION PRESENTED
What regulations on electricians can a city enact?
SUMMARY ANSWER
While a city can issue regulations for licensing electricians and their electrical work, these
regulations and requirements must be equal to or can be stricter than state law requirements.
LEGAL ANALYSIS
Authority for Municipal Regulation of Electricians
The Texas Electrical Safety and Licensing Act ("Act") was enacted in 2003. See Texas
Occupations Code, Chapter 1305. Electricians. The Act establishes standard regulations for
electrical work and gives authority to enforce the Act and to enact rules to the Texas Department
of Licensing and Regulation ("TDLR"). This includes licensing for classes of electricians and
work standards for licensees and electrical contractors.
In addition, the Act gives the City authority to also regulate electricians. This authority is
contained in the Act, and reads as follows:
Occupations Code Section 1305.201 Municipal or Regional Regulation
as amended,effective September 1, 2017
(a) This chapter does not prohibit a municipality or region from regulating
electricians or residential appliance installers by:
(1) enacting an ordinance requiring inspections;
(2) offering examinations;
(3) issuing municipal or regional licenses; or
(4) collecting permit fees for municipal or regional licenses and examinations
from appliance installers for work performed in the municipality or region.
(b) A municipality or region may not require a person to take a municipal or
regional examination if that person holds the appropriate license issued under
this chapter and is working within the scope of that license.
Legal Memorandum:Municipal Regulation of Electricians Page 1 of 7
(c) A municipality may adopt procedures for the:
(1) adoption of local amendments to the National Electrical Code; and
(2) administration and enforcement of that code.
(d) Electrical work performed within the corporate limits of a municipality must be
installed in accordance with all applicable local ordinances.
(e) Electrical work performed in an unincorporated area of the state must be
installed in accordance with standards at least as stringent as the requirements
of the state electrical code as adopted under Section 1305.101.
(f) A municipality or region may not collect a permit fee, registration fee,
administrative fee, or any other fee from an electrician who holds a license
issued under this chapter for work performed in the municipality or region. This
subsection does not prohibit a municipality or region from collecting a building
permit fee.
Extent of Municipal Regulation and the Doctrine of Preemption
While Occupations Code Section 1305.201 allows a City to issue regulations, the Texas
Constitution limits how far the regulation can go. This is known as the Doctrine of Preemption
and reads as follows(emphasis supplied):
Texas Constitution Article XI
Section 5. CITIES OF MORE THAN 5,000 POPULATION; ADOPTION OR
AMENDMENT OF CHARTERS; TAXES; DEBT RESTRICTIONS.
(a) Cities having more than five thousand (5000) inhabitants may, by a majority
vote of the qualified voters of said city, at an election held for that purpose, adopt
or amend their charters. ... The adoption or amendment of charters is subject to
such limitations as may be prescribed by the Legislature, and no charter or any
ordinance passed under said charter shall contain any provision inconsistent with
the Constitution of the State, or of the general laws enacted by the Legislature of
this State.
What this means is a municipality may only enact an ordinance that is consistent, and does not
conflict, with federal and state law. This doctrine was cited by the Texas Supreme Court which
held that an ordinance that is inconsistent with state legislation is impermissible. City of Brookside
Village v. Comeau, 633 S.W.2d 790, 796 (Tex.1982). A city may adopt local regulations that are
ancillary to and in harmony with the general scope and purpose of the state law. Id.
The Attorney General has issued opinions citing to and relying on the Doctrine of Preemption.
One opinion stands out in particular as it is similar, if not identical, to the City's questions on
regulation standards and licensing. In AG Opinion JM-1278 (1990), the Texas Department of
Health asked about a local governmental entity's authority to regulate on-site sewage disposal
systems. After analyzing caselaw and state law,the Attorney General found that a local entity has
that authority:
Legal Memorandum: Municipal Regulation of Electricians Page 2 of 7
"Nevertheless, local governmental entities may not adopt regulations that impose
standards in direct conflict with [Health and Safety Code] chapter 366. Standards
less stringent than those imposed under [Health and Safety Code] chapter 366
would directly conflict with state law and thus would be preempted. Also
preempted would be local regulations allowing installers to construct or alter onsite
sewage disposal systems locally without state registrations or approved permits as
required by chapter 366."
The Attorney General also answered a related question: whether a state licensed plumber must
also get a state installer registration to operate as an installer under the Health and Safety Code.
The answer was yes:
[W]e conclude that individuals holding valid state plumbing licenses must also be
registered as installers in accordance with [Health and Safety Code] chapter 366
before constructing, installing, repairing, or altering an on-site sewage disposal
system in this state for compensation.
In Attorney General Op. JH-495 (1975), the Attorney General was asked whether a landscape
irrigator could install connections without a license under the Plumbing License Law. After
analyzing law,the AG answered in the negative:
To the extent that a particular action might constitute plumbing under the definition
given that term by the Legislature, the Board of Landscape Architects is not
permitted to promulgate a rule which would empower its licensees to perform that
activity without a plumber's license.
Essentially,as a matter of practice for a city, if a state statute or federal regulation sets forth specific
rules, procedures or penalties, the municipality's ordinance, rule or regulation, should mirror that
state rule or procedure or penalty,otherwise it is preempted. In the City's case,the City can impose
regulations on electricians but these must be consistent with state law and state rules.
City Regulations and State Law
As noted above, because of the preemption doctrine, regulations enacted by the City through an
electrical advisory board, must be either equal to or stricter than state law or state rules. For the
City's purposes,the state law is the Electrical Safety and Licensing Act. The rules are those issued
by TDLR which are contained in Title 16, Chapter 73 of the Texas Administrative Code.' (The
index of these rules is listed in Attachment A to this memo.)
The TDLR has the authority to adopt further standards for licensing of and activities by an electrician (emphasis
supplied):Occupations Code Sec. 1305.102. RULES. (a) The executive director shall adopt rules for the licensing
of electricians, sign electricians, electrical sign contractors, electrical contractors,journeyman linemen, residential
appliance installers,and residential appliance installation contractors as prescribed by this chapter. (b) The executive
director by rule shall prescribe descriptions of the types of activities that may be performed by each class of license
holder under this chapter. (c) The executive director by rule shall adopt standards of conduct requirements for license
holders under this chapter.
Legal Memorandum:Municipal Regulation of Electricians Page 3 of 7
For example, a city's requirements for the licensing of a residential wireman must follow or be
stricter than state law. Checking the law,the Act requires the following for a residential wireman
license.
Occupations Code Sec. 1305.157. RESIDENTIAL WIREMAN.
An applicant for a license as a residential wireman must:
(1) have at least 4,000 hours of on-the-job training under the supervision of a
master electrician or residential wireman; and
(2) pass a residential wireman examination administered under this chapter.
By rule, a residential wireman is defined as:
16 TAC 73.10(15) Definitions
(15) Residential Wireman--An individual, licensed as a residential wireman, who
works under the general supervision of a master electrician, on behalf of an
electrical contractor, or employing governmental entity, while performing
electrical work that is limited to electrical installations in single family and
multifamily dwellings not exceeding four stories, as defined by Texas
Occupations Code, §1305.002(13).
The work requirements which a residential wireman must comply with are further outlined in the
Act and the rules:
Occupations Code Sec. 1305.151. LICENSE REQUIRED.
Except as provided by Section 1305.0032, a person or business may not perform or
offer to perform electrical work3 or residential appliance installation unless the
person or business holds an appropriate license issued or recognized under this
chapter.
16 TAC 73.53 Responsibilities of All Persons Performing Electrical Work
All persons must perform non-exempt electrical work, non-exempt electrical sign
work,non-exempt journeyman lineman work, or non-exempt residential appliance
installation work in compliance with applicable codes and ordinances. The
department will interpret applicable codes and ordinances for purposes of
enforcement of the Act.
16 TAC 73.70 Responsibility of Licensee-- Standards of Conduct
(a) An individual licensee must provide all electrical work requiring a license
through a licensed contractor, or employing governmental entity.
2 Section 1305.003 lists those activities which are exempted under the Act.
3 The Act defines"electrical work"as"any labor or material used in installing,maintaining,or extending an electrical
wiring system and the appurtenances,apparatus,or equipment used in connection with the use of electrical energy
in, on, outside, or attached to a building, residence, structure, property, or premises. The term includes service
entrance conductors as defined by the National Electric Code."Texas Occupations Code Section 1305.002(11).
Legal Memorandum: Municipal Regulation of Electricians Page 4 of 7
In conclusion, under state law and the administrative rule, in order to obtain a license a residential
wireman must have acquired training under the supervision of a master electrician. In order to
work,the residential wireman must be licensed and work under the general supervision of a master
electrician.
The City's Electrical Code mirrors state law and the administrative rule:
Sec. 18.72 Definitions
One- or two-family dwelling unit electrician (residential wireman) means a
qualified individual who has passed the SBCCI standard electrician's test and works
under the supervision of a master electrician and is licensed by the state electrical
safety and licensing board.
Sec. 18-80. - Supervision of work.
(a) Responsibility for work. In the actual work of installing, maintaining, altering
or preparing of any electrical conductors of equipment for which a permit is
required by the electrical code, there shall be in direct supervision a qualified4 or
journeyman electrician. It shall be required that a qualified or sign electrician, as
the case may be, is liable and responsible for the layout and technical supervision
of any work which requires the securing of a permit, and a qualified or journeyman
4 Under the Act, an electrical contractor must be licensed as a master electrician or have employed a master
electrician. The City Code contains this master electrician requirement is its definition of"qualified electrician." See:
Sec. 18.72 Definitions
Electrician means:
(1) Qualified electrician.Any person engaged in or carrying on the business of electrical contracting who holds a
certificate of competency of master electrician issued by the examining board shall also be licensed by the state
electrical safety and licensing board.
Occupations Code Sec. 1305.002. Definitions
(5) "Electrical contracting" means the business of designing, installing, erecting, repairing, or altering electrical
wires or conductors to be used for light,heat,power,or signaling purposes. The term includes the installation
or repair of ducts, raceways, or conduits for the reception or protection of wires or conductors and the
installation or repair of any electrical machinery,apparatus,or system used for electrical light,heat,power,or
signaling.
(6) "Electrical contractor"means a person engaged in electrical contracting.
Occupations Code Sec. 1305.159.Electrical Contractor.
(a)An applicant for a license as an electrical contractor must:
(1)be licensed under this chapter as a master electrician or employ a person licensed under this chapter as a
master electrician;
(2)establish proof of financial responsibility in the manner prescribed by the executive director;and
(3)maintain workers' compensation coverage for the contractor's employees through an insurance company
authorized to engage in the business of insurance in this state or through self-insurance,or elect not to obtain
workers'compensation coverage,as provided by Subchapter A,Chapter 406,Labor Code.
(b)A person who holds a master electrician license issued or recognized under this chapter may only be assigned
to a single electrical contractor, unless the master electrician owns more than 50 percent of the electrical
contracting business.
Legal Memorandum: Municipal Regulation of Electricians Page 5 of 7
electrician shall not supervise at the job site more than two nonqualified
electricians.
As the Code reads today, it is in accord with the Texas Constitution. Because of the Doctrine of
Preemption, any changes to the Code must be either equal to or more stringent than those listed
above.
Licensing
It is worth noting that while a city can offer an examination or issue a municipal electrician license,
it cannot require a person to take the examination if the person holds the appropriate state license
and is working within the scope of that license.5 In addition, a city cannot charge an electrician a
registration or administrative fee such as for taking an exam. (A building permit fee can be
collected from an electrician.6)
Further, under Occupations Code Section 1305.201, while a city can regulate electricians, the
section requires that electrical work performed within city limits be installed in accordance with
all applicable ordinances. In the City's case,this would require that electrical work be conducted
in accordance with the National Electrical Code adopted by the City and incorporated in Chapter
18, Article III Electrical Code of the City's Code of Ordinances. TDLR also adopted the NEC
2017 version.8
CONCLUSION
The City can regulate electricians, however, regulations, including those for licensing, cannot be
less than those standards contained in state law and administrative rule. Consequently, as the City
prepares to enact regulations, Council should consider whether these will be duplicative of state
law,whether the proposal is necessary and whether it is valid given the preemption limitation.
5 "A municipality or region may not require a person to take a municipal or regional examination if that person holds
the appropriate license issued under this chapter and is working within the scope of that license."Texas Occupations
Code Section 1305.201(b).
6"A municipality or region may not collect a permit fee,registration fee,administrative fee,or any other fee from an
electrician who holds a license issued under this chapter for work performed in the municipality or region. This
subsection does not prohibit a municipality or region from collecting a building permit fee." Texas Occupations
Code Section 1305.201(f).
7 "Electrical work performed within the corporate limits of a municipality must be installed in accordance with all
applicable local ordinances." Texas Occupations Code Section 1305.201(d).
16 TAC§73.100 Technical Requirements
Effective September 15, 2017, the department adopts the National Electrical Code,2017 Edition as it existed on
August 24,2016,as adopted by the National Fire Protection Association,Inc.
Legal Memorandum:Municipal Regulation of Electricians Page 6 of 7
ATTACHMENT A
Texas Administrative Code
TITLE 16 ECONOMIC REGULATION
PART 4 TEXAS DEPARTMENT OF LICENSING AND REGULATION
CHAPTER 73 ELECTRICIANS
Rules
§73.1 Authority
§73.10 Definitions
§73.20 Licensing Requirements--Applicant and Experience Requirements
§73.21 Licensing Requirements--Examinations
§73.22 Licensing Requirements--General
§73.23 Licensing Requirements--Renewal
§73.24 Licensing Requirements--Waiver of Examination Requirements
§73.25 Continuing Education
§73.26 Documentation of Required On-The-Job Training
§73.27 Licensing Requirements--Temporary Apprentices
§73.28 Licensing Requirements--Emergency Licenses
§73.30 Exemptions
§73.40 Insurance Requirements
§73.51 Electrical Contractors'Responsibilities
§73.52 Electrical Sign Contractors' Responsibilities
§73.53 Responsibilities of All Persons Performing Electrical Work
§73.54 Residential Appliance Installation Contractors'Responsibilities
§73.60 Standards of Conduct for Engaging in Electrical Work
§73.65 Advisory Board
§73.70 Responsibility of Licensee--Standards of Conduct
§73.80 Fees
§73.90 Sanctions--Administrative Sanctions/Penalties
§73.91 Enforcement Authority
§73.100 Technical Requirements
Available at:
http:l/texreg.sos.state.tx.us/public/readtac$ext.ViewTAC?tac view=4&ti=16&pt--4&ch=73&r1=Y
Legal Memorandum:Municipal Regulation of Electricians Page 7 of 7
P. O. NO. 6669
01/05/18 ht
ORDINANCE NO.
AN ORDINANCE AMENDING ARTICLE III (ELECTRICAL CODE) OF
CHAPTER 18 (BUILDINGS), SECTION 18-72 WITH REGARD TO THE
DEFINITION OF ONE OR TWO FAMILY DWELLING UNIT
ELECTRICIAN (RESIDENTIAL WIREMAN) OF THE CODE OF
ORDINANCES OF THE CITY OF PORT ARTHUR; PROVIDING A
PENALTY FOR VIOLATIONS BY FINE NOT EXCEEDING FIVE
HUNDRED DOLLARS, AS PROVIDED IN SECTION 18-81 OF THIS
CODE OR AS MAY BE OTHERWISE IMPOSED BY STATE LAW;
PROVIDING A SAVINGS CLAUSE; AND PROVIDING FOR
PUBLICATION AND AN EFFECTIVE DATE IMMEDIATELY AFTER
PUBLICATION. (REQUESTED BY COUNCILMEMBER LEWIS)
WHEREAS, Councilmember Lewis has requested that the City Council amend
Chapter 18 of the Code of Ordinances, particularly Section 18-72 pertaining to the one or
two family dwelling unit electrician (residential wireman) within the jurisdictional limits of
the City of Port Arthur; and
WHEREAS, the City of Port Arthur reserves the rights to license electricians and
allow one or two family dwelling unit electrician (residential wireman) to apply for permits.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF PORT ARTHUR:
Section 1. That the facts and opinions in the preamble are true and correct.
Section 2. That Article III, Section 18-72 of the Code of Ordinances be amended
as attached hereto as Exhibit "A".
Section 3. That this Ordinance or its caption and penalty shall be published at
least one (1) time within ten (10) days after final passage hereof in the official newspaper
of the City of Port Arthur. This Ordinance shall take effect immediately after the date of
such publication.
Section 4. That a copy of the caption of this Ordinance be spread upon the
minutes of the City Council.
READ, ADOPTED, AND APPROVED, this day of , 2018,
A.D., at a Regular Meeting of the City Council of the City of Port Arthur, Texas by the
following vote: AYES:
Mayor: ,
Councilmembers: ,
•
NOES: .
Derrick Ford Freeman, Mayor
ATTEST:
Sherri Bellard, City Secretary
APPROVED AS TO FORM:
See Memo
Valecia R. Tizeno, City Attorney
APPROVED FOR ADMINISTRATION:
Harvey Robinson, Interim City Manager
Exhibit "A"
Section 18-72. - Definitions.
The following words, terms and phrases when used in this article, shall have the meanings ascribed
to them in this section, except where the context clearly indicates a different meaning and except such
portions as are herein deleted, modified, or amended, of which code not less than one copy has been and
now is filed in the Office of the City Secretary of the City of Port Arthur and the same is hereby adopted and
incorporated as fully as if set out in at length herein, and from the date on which this section shall take
effect, the provisions thereof shall be controlling within the limits of the City of Port Arthur. Also article 80 of
the National Electrical Code 2004, is also specifically adopted with the following exceptions:
Electrical inspector means an individual who has been designated by the city, under the provisions of
this Code, as an electrical inspector(also referred to as "inspector") and holds a certificate of competence
from the Southeast Texas Regional Electrical Board and is also licensed by the state electrical safety and
licensing board.
Electrician means:
(1) Qualified electrician. Any person engaged in or carrying on the business of electrical contracting
who holds a certificate of competency of master electrician issued by the examining board shall
also be licensed by the state electrical safety and licensing board.
(2) Journeyman electrician. Any person who holds a certificate of competency of journeyman
electrician issued by the examining board shall also be licensed by the state electrical safety and
licensing board.
(3) Limited electrician (sign) . Any person who is engaged in the business of manufacturing or
installation of electric signs shall be licensed by the state electrical safety and licensing board.
(4) Maintenance electrician. An electrician regularly employed on a permanent basis by any person
and who performs work only in the confines of the building or in or on the premises where he is
regularly employed on a permanent basis,and who does electrical work(maintenance)as defined
in this section.
Examining board means the Southeast Texas Regional Electrical Examining Board.
Main line disconnect means a rain-tight device of a design approved for electrical service and for the
prevailing conditions under which it will be used, and which is capable of disconnecting all enlarged
conductors from a building's source of electrical supply shall be located on the outside of a building.
Maintenance and repair means the act of keeping in a state of safe operating condition any conductor
or place of equipment used inside or outside, attached or connected to any building's electrical system, but
shall not include extensions of or additions to an existing system or branch of such a system.
One-or two-family dwelling unit electrician (residential wireman) means a qualified individual who has
passed the SBCCI standard electrician's test and - - _ _- - -_ _ - '-'e• _ - - - - - _
is licensed by the city state electrical safety and licensing board.
Outside electrical work means the installing, maintaining, altering, repairing or erecting of any electrical
wiring,apparatus, devices,appliances,fixtures or equipment located outside of and separate from buildings
and on poles, towers or others exclusively for the support of such electrical wiring, apparatus, devices,
appliances, fixtures or equipment for which a permit is required under the terms of this code, except that
overhead conductors may be attached to buildings.
Outside of a building means beyond the limits of a building's walls or porches whether open or closed.
Registered means that a person who has made application to the examining board and who has
satisfied the board that he is qualified to do the work stated in the application,that he has paid the necessary
registration fee to date, and that his name is carried on the records of the building official as a person
authorized to do electrical work as defined in this code.
(Code 1961, § 6-17; Ord. No. 04-64. § 1 10-12-2004)
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