Chapter 1
Tennessee Accountancy Act of 1998

Part 1
General Provisions

62-1-101. Short title.

This chapter shall be known and may be cited as the “Tennessee Accountancy Act of 1998.”

Acts 1980, ch. 518, § 1; 1998, ch. 700, § 1.

Compiler's Notes. Former chapter 1, §§ 62-101 — 62-145 (Acts 1939, ch. 44, §§ 1-15; 1945, ch. 152, § 1; C. Supp. 1950, §§ 7097.1-7097.14; Williams, §§ 7097.1-7097.15; Acts 1955, ch. 231, §§ 2-28; Acts 1957, ch. 218, § 1; Acts 1965, ch. 109, §§ 1-8; Acts 1967, ch. 309, § 1; Acts 1971, ch. 161, § 2; Acts 1975, ch. 165, §§ 3-5; Acts 1976, ch. 599, §§ 1-7; ch. 806, §§ 1(1), (2); Acts 1977, ch. 211, § 1; Acts 1978, ch. 906, §§ 6, 8; ch. 924, § 3; 1980, ch. 451, § 1), concerning accountants, was repealed by Acts 1955, ch. 231, § 1; 1978, ch. 906, § 7; and 1980, ch. 518, § 20.

Cross-References. Liability of professional societies, title 62, ch. 50, part 1.

Occupation tax on accountants, title 67, ch. 4, part 17.

Revocation or denial for child support enforcement, title 36, ch. 5, part 7.

State examining boards, general provisions, title 4, ch. 19.

Textbooks. Tennessee Jurisprudence, 17 Tenn. Juris., Licenses, § 7.

NOTES TO DECISIONS

Decisions Under Prior Law

1. Constitutionality.

The prior chapter did not touch the right of private contract where there is no holding out to the public but applies only to professional accountants who hold themselves out to the public and is constitutional. Davis v. Allen, 43 Tenn. App. 278, 307 S.W.2d 800, 1957 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1957).

62-1-102. Legislative intent.

It is the policy of this state, and the purpose of this chapter, to promote the reliability of information that is used for guidance in financial transactions or for accounting for or assessing the financial status or performance of commercial, noncommercial and governmental enterprises. The public interest requires that persons professing special competence in accountancy or offering assurance as to the reliability or fairness of presentation of such information shall have demonstrated their qualifications to do so and that persons who have not demonstrated and maintained such qualifications not be permitted to represent themselves as having such special competence or to offer such assurance, that the conduct of persons licensed as having special competence in accountancy be regulated in all aspects of their professional work, that a public authority competent to prescribe and assess the qualifications and to regulate the conduct of licensees be established, and that the use of titles that have a capacity or tendency to deceive the public as to the status or competence of the persons using such titles be prohibited.

Acts 1980, ch. 518, § 2; 1987, ch. 351, § 9; 1997, ch. 68, § 1; 1998, ch. 700, § 1.

NOTES TO DECISIONS

1. Police Power.

Provisions of the law authorizing the setting up of standards for professional conduct are within the police power of the state. Davis v. Allen, 43 Tenn. App. 278, 307 S.W.2d 800, 1957 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1957).

62-1-103. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Attest” means providing the following services:
    1. Any audit or other engagement to be performed in accordance with the Statements on Auditing Standards (SAS);
    2. Any review to be performed in accordance with the Statements on Standards for Accounting and Review Services (SSARS);
    3. Any examination to be performed in accordance with the Statements on Standards for Attestation Engagements (SSAE);
    4. The issuance of any report, including compilation reports, prescribed by the SASs, the SSARSs or the SSAEs on any services to which those statements on standards apply, indicating that the service was performed in accordance with standards established by the American Institute of Certified Public Accountants (AICPA); and
    5. The statements on standards specified in this subdivision (1) shall be adopted by reference by the board pursuant to rulemaking and shall be those developed for general application by recognized national accountancy organizations such as the AICPA;
  2. “Board” means the state board of accountancy established under § 62-1-104 or its predecessor under prior law;
  3. “Certificate” means a certificate as certified public accountant issued under §§ 62-1-106 and 62-1-107 or corresponding provisions of prior law, or a corresponding certificate as certified public accountant issued after examination under the law of any other state;
  4. “Certified public accountant (CPA)” means a person holding a certificate issued under §§ 62-1-106 and 62-1-107;
  5. “Client” means a person or entity that agrees to receive any professional service from a licensee;
  6. “CPA firm” and “PA firm” means a sole proprietorship, corporation, partnership or any other form of organization issued a permit under § 62-1-108;
  7. “License” means a certificate issued under § 62-1-107, a permit issued under § 62-1-108 or a registration under § 62-1-109, or, in each case, a certificate, license or permit issued under corresponding provisions of prior law;
  8. “Licensee” means the holder of a license;
  9. “Manager” means a manager of a limited liability company;
  10. “Member” means a member of a limited liability company;
  11. “Peer review” means a study, appraisal or review of one (1) or more aspects of the professional work of a CPA firm that performs attest services by a qualified person or persons who hold certificates and who are not affiliated with the CPA firm being reviewed;
  12. “Permit” means a permit to practice as a CPA firm issued under § 62-1-108 or corresponding provisions of prior law or under corresponding provisions of the laws of other states;
  13. “Professional” means arising out of or related to the specialized knowledge or skills associated with CPAs;
  14. “Public accountant” means a person holding a registration issued under § 62-1-109;
  15. “Registration” means the registration issued to a public accountant under § 62-1-109 and includes the licenses issued to public accountants under prior law;
  16. “Report,” when used with reference to attest services, means an opinion, report or other form of language that states or implies assurance as to the reliability of any financial statements or assertion. “Report” also includes any statement or implication that the person or firm issuing it has special knowledge or competence in accounting or auditing and that the service reported upon was performed under standards for such services established by the AICPA. The statement or implication of special knowledge or competence may arise from use by the issuer of the report of names or titles indicating that the person or firm is an accountant or auditor or from the language of the report itself;
  17. “Rule” means any rule, regulation or other written directive of general application duly adopted by the board in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5;
  18. “State” means any state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands and Guam, except that “this state” means the state of Tennessee; and
  19. “Substantial equivalency” is a determination by the board of accountancy or its designee that the education, examination and experience requirements contained in the statutes and administrative rules of another jurisdiction are comparable to or exceed the education, examination and experience requirements contained in this chapter or that an individual CPA's education, examination and experience qualifications are comparable to or exceed the education, examination and experience requirements contained in this chapter.

Acts 1980, ch. 518, § 3; 1987, ch. 351, § 10; 1989, ch. 443, § 1; 1994, ch. 674, §§ 3, 4; 1997, ch. 68, § 2; 1998, ch. 700, § 1.

NOTES TO DECISIONS

1. Representation to Public.

Only those persons who, in holding themselves out to the public as skilled in the knowledge, science and practice of accounting and as qualified and ready to render professional accounting services, represent themselves to be either a public accountant or certified public accountant and perform the work of an accountant for more than one employer are practicing public accounting and must be licensed. State ex rel. State Board of Accountancy v. Bookkeepers Business Service Co., 53 Tenn. App. 350, 382 S.W.2d 559, 1964 Tenn. App. LEXIS 107 (Tenn. Ct. App. 1964).

Corporation which held itself out to the public as qualified to render and did render to more than one employer several of the services enumerated in the prior section including the installing of bookkeeping systems, the recording and presentation of financial information and data, and the preparation of tax returns but did not represent itself as skilled in the knowledge, science and practice of accounting or as a “public accountant” or “certified public accountant” and emphasized in its literature and solicitation of business that it performed bookkeeping services and similar technical services only and did not do any auditing, verification of accounts, or certification of financial statements was not engaged in the practice of public accountancy. State ex rel. State Board of Accountancy v. Bookkeepers Business Service Co., 53 Tenn. App. 350, 382 S.W.2d 559, 1964 Tenn. App. LEXIS 107 (Tenn. Ct. App. 1964).

62-1-104. State board of accountancy — Creation — Membership — Terms.

  1. There is created a state board of accountancy.
    1. The board shall be composed of eleven (11) members appointed by the governor.
    2. Nine (9) of the members shall be certified public accountants holding a certificate issued by, and residing in, this state.
    3. Appointments of certified public accountants to the board shall be made in a manner so as to provide equal representation from each of the three (3) grand divisions of this state.
    4. One (1) member shall be an attorney licensed to practice in the highest court of the state.
    5. One (1) member shall be a public member possessing expertise in one (1) or more significant portions of the board's regulated activities.
    6. Neither the attorney nor the public member shall be the holder of a certified public accountant's certificate or a license to practice as a public accountant.
    7. The public member must be a resident of this state and have reached the age of majority prior to appointment.
    8. Certified public accountants shall be appointed to the board by the governor from a list of qualified certified public accountants submitted by the Tennessee Society of Certified Public Accountants.
    9. In making appointments to the board, the governor shall strive to ensure that at least one (1) person serving on the board is sixty (60) years of age or older and that at least one (1) person serving on the board is a member of a racial minority.
    1. Each board member's term shall be for three (3) years.
    2. Members of the board shall not be eligible to serve more than three (3) successive complete terms.
    3. Vacancies occurring during a term shall be filled by appointment for the unexpired term.
    4. Upon expiration of a member's term of office, the member shall continue to serve until a successor is appointed.
    5. The governor shall remove from the board any member for neglect of duty or other just cause.

Acts 1980, ch. 518, § 4; 1988, ch. 1013, § 26; 1989, ch. 443, § 2; 1997, ch. 68, § 3.

Compiler's Notes. The state board of accountancy, created by this section, terminates June 30, 2020. See §§ 4-29-112, 4-29-241.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

62-1-105. Board officers — Meetings — Procedure — Records — Executive director — Rules — Promotion of improved accounting standards.

  1. The board shall elect a chair, vice chair and secretary annually from its members. A quorum for the transaction of board business shall consist of a majority of the members. The board shall meet at such places within the state and at such times that are required for the proper administration of this chapter. Members of the board shall be given reasonable notice of each regular or special meeting of the board.
  2. The board shall, by a vote of two-thirds (2/3) of its members, adopt rules of procedure governing the conduct of matters before the board. The board shall, before April 30 of each year, publish and make available a roster of all certified public accountants, all public accountants, all holders of valid permits to practice and all currently registered offices. The board may also publish from time to time reports on the activities of the board, including information it deems relevant to the public interest. The board shall maintain an accurate record of all proceedings before the board, including, but not limited to, minutes detailing what transpired and action taken at board meetings, records of all complaints received, whether oral or written and disposition of each complaint, specific reasons for denials of applicants to become certified or licensed and reasons for revocations, suspensions and other disciplinary actions taken by the board.
    1. The board shall have an executive director, who shall be appointed by the board, and compensation for the executive director shall be established by the board. The board shall retain and establish the qualifications and compensation for investigators and other staff requiring professional qualifications. The executive director and all members of the board's staff requiring professional qualifications shall serve at the pleasure of the board. The board shall determine annually in advance its expenditures for equipment, peer review and other professional programs and participation in the activities of the National Association of State Boards of Accountancy. The expenditures so established, together with all other expenses of the board, shall be budgeted by the board not to exceed the fees received by the board, including the accrual of fees previously received. The commissioner of finance and administration shall inform the board annually, for budgeting purposes, the allocation of overhead to the board. The executive director of the board shall have an adequate staff, including part-time personnel, as determined by the board and shall be responsible for the daily operations of the board, including, but not limited to:
      1. Maintenance and security of all necessary records and files;
      2. Ensuring adequate meeting space for board meetings;
      3. Implementation of board policies and procedures;
      4. Informing the board as to state policies and procedures; and
      5. Any other matters delegated by the board.
    2. Any expenditure by the board under this section shall be subject to approval by the commissioner of finance and administration, pursuant to the board's annual budget submitted to the commissioner of commerce and insurance and approved by the commissioner of finance and administration.
  3. The board may appoint committees from within or without the board, which shall be compensated in the manner provided in this chapter.
  4. The board may adopt rules governing its administration and enforcement of this chapter and the conduct of licensees, including, but not limited to:
    1. Rules governing the board's meetings and the conduct of its business;
    2. Rules of procedure governing the conduct of investigations and hearings by the board;
    3. Rules specifying the educational and experience qualifications required for the issuance of certificates under § 62-1-107 and the continuing professional education required for renewal of certificates under § 62-1-107;
    4. Rules of professional conduct directed to controlling the quality and probity of services by licensees and dealing, among other things, with independence, integrity and objectivity, competence and technical standards, responsibilities to the public, and responsibilities to clients;
    5. Rules governing the manner and circumstances of use of the titles “certified public accountant” and “CPA”;
    6. Rules regarding peer review that may be required to be performed under this chapter;
    7. Rules on substantial equivalence to implement § 62-1-117;
    8. Rules setting fees, including late fees, for examination, reexamination, certification, licensure, certificate renewal, licensure renewal, registration, registration renewal, peer review and other necessary fees; and
    9. Other rules that the board may deem necessary or appropriate for implementing the provisions and the purposes of this chapter.
  5. The board shall join professional organizations and associations to promote the improvement of the standards of the practice of accounting and for the protection and welfare of the public. In order to be informed about the operations and practices of other boards of accountancy desiring reciprocal exchange and in order to be advised regarding the progress of accountancy throughout the country and to promote uniformity in the regulation of accountancy, the board, executive director and staff shall, at the discretion of the board, travel and attend national and regional meetings of the National Association of State Boards of Accountancy (NASBA) and other appropriate professional meetings at the expense of the board. Travel shall be subject to and in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.

Acts 1980, ch. 518, § 5; 1984, ch. 676, § 5; 1989, ch. 443, § 3; 1992, ch. 960, §§ 1, 2; 1994, ch. 674, §§ 5, 6; 1995, ch. 424, § 1; 1998, ch. 700, §§ 2, 3; 1999, ch. 65, § 1; 2002, ch. 654, §§ 1-3; 2016, ch. 595, § 1.

Cross-References. Per diem and travel expenses of members, § 56-1-307.

Attorney General Opinions. T.C.A. § 62-1-105 gives the board of accountancy the sole authority to hire and terminate its executive director and any other member of its staff requiring professional qualifications, OAG 04-060, 2004 Tenn. AG LEXIS 58 (4/08/04).

State board of accountancy's authority to establish compensation for employees.  OAG 11-70, 2011 Tenn. AG LEXIS 72 (9/16/11).

NOTES TO DECISIONS

1. Practice of Public Accountancy.

A public accountant not licensed in Tennessee but licensed in two other states qualified as an expert witness under federal rules in the bankruptcy court for the eastern district of Tennessee. DuVoisin v. Anderson (In re Southern Indus. Banking Corp.), 71 B.R. 351, 1987 Bankr. LEXIS 277 (Bankr. E.D. Tenn. 1987).

62-1-106. Requirements for certification as certified public accountant.

  1. The certificate of certified public accountant shall be granted to persons of good moral character who meet the education, experience and examination requirements of subsections (b)-(g) and who make application for the certificate pursuant to § 62-1-107.
  2. “Good moral character” for purposes of this section means lack of a history of dishonest or felonious acts.
    1. The education requirement for a certificate that must be met before an applicant is eligible to receive the certificate described in § 62-1-107 shall be at least one hundred fifty (150) semester hours of college education, including a baccalaureate or higher degree conferred by a college or university acceptable to the board, the total educational program to include an accounting concentration or equivalent as determined by board rule to be appropriate.
    2. The board may admit to the examination prescribed in subsection (d) any candidate who has completed a baccalaureate or higher degree conferred by a college or university acceptable to the board, the total educational program to include an accounting concentration or equivalent as determined by board rule to be appropriate.
    3. The board may report the results of an examination to the applicant before the educational requirements established by this subsection (c) have been completed, but in no event shall an applicant be eligible for a certificate until the applicant has:
      1. Completed the educational requirements set forth in subdivision (c)(1); and
      2. Passed the examination required by subsection (d).
  3. The examination required to be passed as a condition for the granting of a certificate shall be held at least twice a year and shall test the applicant's knowledge of the subjects of accounting and auditing and other related subjects that the board may specify by rule, including, but not limited to, business law and taxation. The time for holding the examination shall be determined by the board and may be changed from time to time. The board shall prescribe by rule the methods of applying for and conducting the examination, including methods for grading papers and determining a passing grade required of an applicant for a certificate; provided, that the board shall, to the extent possible, see to it that the examination itself, grading of the examination and the passing grades are uniform with those applicable in all other states. The board may make such use of all or any part of the Uniform Certified Public Accountant Examination and Advisory Grading Service of the AICPA and may contract with third parties to perform such administrative services with respect to the examination as it deems appropriate to assist it in performing its duties under this chapter.
  4. The board may charge each applicant an examination fee or authorize a third party administering the examination to charge each applicant an examination fee in an amount prescribed by the board.
  5. An applicant for initial issuance of a certificate under this section shall show that the applicant has had one (1) year of experience. This experience shall include providing any type of service or advice involving the use of accounting, attest, management advisory, financial advisory, tax or consulting skills, all of which were verified by a licensee. This experience will be acceptable if it is gained through employment in government, industry, academia or public practice.
  6. All persons holding a valid certificate as a certified public accountant issued by this state prior to October 1, 1998, shall be deemed to have met the requirements of this section.

Acts 1998, ch. 700, § 4; 2000, ch. 609, § 1; 2002, ch. 654, §§ 4, 5; 2007, ch. 19, § 4; 2009, ch. 26, § 1; 2016, ch. 595, § 2.

62-1-107. Certificates — Issuance and renewal — Fees — Certification of accountants certified in other states — Certification of holders of equivalent foreign designations.

    1. The board shall grant or renew certificates to persons who make application and demonstrate that:
      1. Their qualifications, including, where applicable, the qualifications prescribed by § 62-1-106, are in accordance with subsections (b)-(i); or
      2. They are eligible under the substantial equivalency standard set out in § 62-1-117 that requires licensure for those CPAs who establish their principal office in another state.
    2. The holder of a certificate issued under this section may only provide attest services in a CPA firm that holds a permit issued under § 62-1-108.
  1. Certificates shall be initially issued and renewed for periods of no more than two (2) years. Every holder of a certificate as a certified public accountant or a registration as a public accountant shall be required to renew the certificate or registration biennially. Biennial renewal dates may be set by the board at its discretion. The renewal process established by the board may include procedures for odd-numbered certificates and registrations to be renewed within two (2) years from the date of issuance on odd-numbered years and even-numbered certificates and registrations to be renewed within two (2) years from the date of issuance on even-numbered years. The board shall set the biennial renewal fee. All certificates and registrations issued by the board and any holder of a certificate or registration shall relinquish the certificate or registration to the board within thirty (30) days after the certificate or registration has been suspended or revoked.
    1. With regard to applicants who do not qualify for reciprocity under the substantial equivalency standard set out in § 62-1-117, the board shall issue a certificate to a licensee of another state upon a showing that:
      1. The applicant passed the examination required for issuance of the applicant's certificate with grades that would have been passing grades at the time in this state;
      2. The applicant had four (4) years of experience of the type described in § 62-1-106(f) or meets equivalent requirements prescribed by the board by rule after passing the examination upon which the applicant's certificate was based and within the ten (10) years immediately preceding the application; and
      3. If the applicant's license was issued more than four (4) years prior to the application for issuance of an initial certificate under this section, the applicant has fulfilled the requirements of continuing professional education that would have been applicable under subsection (d).
    2. As an alternative to the requirements of subdivision (c)(1), a licensee of another state who desires to establish the licensee's principal place of business in this state shall request the issuance of a certificate from the board prior to establishing the principal place of business. The board shall issue a certificate to such a person who obtains from the board or its designee verification that the individual's CPA qualifications are substantially equivalent to the CPA licensure requirements of this chapter.
  2. For renewal of a certificate under this section, each licensee shall participate in a program of learning designed to maintain professional competency. The program of learning must comply with rules adopted by the board. The requirements established by the board shall prescribe regulations requiring continuing education of eighty (80) credit hours over a two-year period, with a minimum of twenty (20) credit hours in each year as a prerequisite for the renewal of a certificate. The board may by rule create an exception to this requirement for certificate holders who do not perform or offer to perform for the public one (1) or more kinds of services involving the use of accounting or auditing skills, including issuance of reports on financial statements or of one (1) or more kinds of management advisory, financial advisory or consulting services, or the preparation of tax returns or the furnishing of advice on tax matters. Licensees granted such an exception by the board must place the word “inactive” adjacent to their CPA title or PA title on any business card, letterhead or any other document or device, with the exception of their CPA certificate or PA registration, on which their CPA or PA title appears.
  3. The board shall charge a fee for each application for initial issuance or renewal of a certificate under this section in an amount prescribed by the board. The board, by rule, may not require inactive licensees sixty-five (65) years of age or older, disabled persons who are unable to practice accountancy for a period of time and persons in active military service to pay a renewal fee.
  4. Applicants for initial issuance or renewal of certificates under this section shall in their applications list all states in which they have applied for or hold licenses and list any past denial, revocation or suspension of a license; and each holder of or applicant for a certificate under this section shall notify the board in writing, within thirty (30) days after its occurrence, of any issuance, denial, revocation or suspension of a license by another state, change of address or employment or any conviction by a court of competent jurisdiction of a felony.
  5. The board shall issue a certificate to a holder of a substantially equivalent foreign designation; provided, that:
    1. The foreign authority that granted the designation makes similar provision to allow a person who holds a valid certificate issued by this state to obtain the foreign authority's comparable designation;
    2. The foreign designation:
      1. Was duly issued by a foreign authority that regulates the practice of public accountancy and the foreign designation has not expired or been revoked or suspended;
      2. Entitles the holder to issue reports upon financial statements; and
      3. Was issued upon the basis of educational, examination and experience requirements established by the foreign authority or by law; and
    3. The applicant:
      1. Received the designation based on educational and examination standards substantially equivalent to those in effect in this state at the time the foreign designation was granted;
      2. Completed an experience requirement substantially equivalent to the requirement set out in § 62-1-106(f) in the jurisdiction that granted the foreign designation or has completed four (4) years of professional experience in this state or meets equivalent requirements prescribed by the board by rule within the ten (10) years immediately preceding the application; and
      3. Passed a uniform qualifying examination in national standards and an examination on the laws, regulations and code of ethical conduct in effect in this state acceptable to the board.
  6. An applicant under subsection (g) shall in the application list all jurisdictions, foreign and domestic, in which the applicant has applied for or holds a designation to practice public accountancy; and each holder of a certificate issued under this subsection (h) shall notify the board in writing, within thirty (30) days after its occurrence, of any issuance, denial, revocation or suspension of a designation or commencement of a disciplinary or enforcement action by any jurisdiction or any conviction by a court of competent jurisdiction of a felony.
  7. The board has the sole authority to interpret the application of subsections (g) and (h).

Acts 1998, ch. 700, § 4; 1999, ch. 65, §§ 2-4; 2002, ch. 654, §§ 6, 7; 2018, ch. 551, § 1.

Compiler's Notes. Former § 62-1-107 (Acts 1980, ch. 518, § 7; 1987, ch. 351, §§ 12, 13; 1989, ch. 443, §§ 5, 6; 1994, ch. 674, § 10; 1997, ch. 68, § 4), concerning disciplinary powers of board, notice and hearing and reinstatement procedures, was repealed by Acts 1998, ch. 700, effective October 1, 1998.

Acts 2018, ch. 551, § 2 provided that the act, which amended this section, shall apply to license renewals occurring on or after March 9, 2018.

62-1-108. CPA firms — Permits — Issuance and renewal — Non-licensee owners — Fees.

  1. The board shall grant or renew permits to practice as a CPA firm or PA firm to entities that make application and demonstrate their qualifications for the permits in accordance with subsections (b)-(i) or to CPA firms originally licensed in another state that establish an office in this state. A firm with multiple locations shall obtain a permit for each location. A firm must hold a permit issued under this section in order to provide attest services or to use the title “CPAs,” “CPA firm,” “PAs” or “PA firm.”
  2. Permits shall be initially issued and renewed for periods of not more than two (2) years but, in any event, expiring on December 31 following issuance or renewal. Applications for permits shall be made in the form and, in the case of applications for renewal, between the dates that the board may specify by rule.
  3. An applicant for initial issuance or renewal of a permit to practice under this section shall be required to show that:
    1. Notwithstanding any other law, a simple majority of the beneficial ownership of the firm, in terms of financial interests in the equity capital and voting rights held by all partners, officers, shareholders, members or managers, belongs to holders of a certificate who are licensed in some state, and such partners, officers, shareholders, members or managers, whose principal place of business is in this state, and who perform professional services in this state hold a valid certificate issued under § 62-1-107 or the corresponding provision of prior law or are public accountants registered under § 62-1-109. Although firms may include nonlicensee owners, the firms must be controlled by holders of a certificate who are licensed by some state and the control may not be relinquished by contract through the issuance of minority veto rights or otherwise. The firm and its ownership must comply with rules promulgated by the board;
    2. Any individual licensee who is responsible for supervising attest services and signs or authorizes someone to sign the accountants' report on the financial statements on behalf of the firm shall meet the experience requirements set out in the professional standards for those services; and
    3. Any individual licensee who signs or authorizes someone to sign the accountants' report on the financial statements on behalf of the firm shall meet the experience requirement of subdivision (c)(2).
  4. Any CPA firm may include nonlicensee owners; provided, that:
    1. The firm designates a Tennessee licensee/owner to provide the board with the names and amounts of equitable ownership and voting rights of all CPAs and other owners practicing in this state and the name of the resident manager of each office in this state;
    2. All nonlicensee owners are active individual participants in the CPA firm or affiliated entities; and
    3. The firm complies with other requirements that the board may impose by rule.
  5. An applicant for initial issuance or renewal of a permit to practice under this section shall be required to obtain a permit for each location of the firm within this state with the board and to show that all attest services rendered in this state are under the charge of a person holding a valid certificate issued under § 62-1-107 or the corresponding provision of prior law or some other state law.
  6. The board shall charge a fee for each application for initial issuance or renewal of a permit under this section in an amount prescribed by the board. The board has the authority to establish late fees for any applications, renewals or reports that are filed late.
  7. An applicant for initial issuance or renewal of permits under this section shall in the application list all states in which the applicant has applied for or hold permits as CPA firms and list any past denial, revocation or suspension of a permit by any other state; and each holder of or applicant for a permit under this section shall notify the board in writing, within thirty (30) days after its occurrence, of any change in the identities of partners, officers, shareholders, members or managers whose principal place of business is in this state, any change in the number or location of offices within this state, any change in the identity of the persons in charge of those offices and any issuance, denial, revocation or suspension of a permit by any other state.
  8. Firms that fall out of compliance with the section due to changes in firm ownership or personnel after receiving or renewing a permit shall take corrective action to bring the firm back into compliance. The board may grant a reasonable period of time for a firm to take corrective action. Failure to bring the firm back into compliance within a reasonable period as defined by the board will result in the suspension or revocation of the firm permit.
  9. All firms holding a valid permit to practice as a CPA firm or PA firm issued by this state prior to October 1, 1998, shall be deemed to have met the requirements of this section.

Acts 1998, ch. 700, § 4; 1999, ch. 65, § 5; 2002, ch. 654, § 8.

Compiler's Notes. Former § 62-1-108 (Acts 1980, ch. 518, § 8; 1987, ch. 141, § 1; 1987, ch. 351, § 19; 1988, ch. 606, §§ 1-3; 1989, ch. 443, §§ 7-10; 1990, ch. 927, § 1; 1991, ch. 199, §§ 1, 2; 1991, ch. 251, § 1; 1994, ch. 674, §§ 11-13), concerning certified public accountants, was repealed by Acts 1998, ch. 700, effective October 1, 1998.

Attorney General Opinions. A licensed accountant or accounting firm is not prohibited from employing a full or part-time licensed real estate appraiser or registered taxpayer's agent, OAG 02-029, 2002 Tenn. AG LEXIS 30 (3/14/02).

NOTES TO DECISIONS

1. Admission Without Examination.

In statutes regulating occupations and professions and requiring those who wish to engage in such vocations to stand examination, it is permissible to except from the examination those who have pursued the calling for a substantial length of time prior to the enactment of the law. State ex rel. Campbelle v. Hobbs, 174 Tenn. 215, 124 S.W.2d 699, 1938 Tenn. LEXIS 82 (1939).

2. Experience Requirement.

An applicant's employment under the supervision of an attorney and CPA who was not associated with any accounting firm or office registered with the board and who was not engaged in the practice of public accountancy did not satisfy the experience requirements of T.C.A. § 62-1-108. Bishop v. Tennessee State Bd. of Accountancy, 905 S.W.2d 939 (Tenn. Ct. App. 1995).

62-1-109. Persons certified under prior law.

Persons who on October 1, 1998, held licenses as public accountants issued under prior law of this state shall be entitled to have their registrations renewed upon fulfillment of the continuing professional education requirements for renewal of certificates set out in § 62-1-107 and on the renewal cycle and payment of fees there prescribed for renewal of certificates. Any registration not so renewed shall expire three (3) years after October 1, 1998. Firms of public accountants holding permits to practice as firms of public accountants issued under prior law of this state shall be entitled to have their permits to practice renewed pursuant to the procedures and subject to the requirements for renewal of permits to practice for firms of certified public accountants set out in § 62-1-108. So long as the public accountant licensees hold valid registrations and permits to practice, they shall be entitled to perform attest services to the same extent as holders of certificates and other holders of permits, and, in addition, they shall be entitled to use the title “public accountants” and “PA,” but no other title. The holder of a registration issued under this section may only perform attest services in a firm that holds a permit issued under § 62-1-108.

Acts 1998, ch. 700, § 4.

Compiler's Notes. Former § 62-1-109 (Acts 1980, ch. 518, § 9; 1987, ch. 334, §§ 1, 2; 1988, ch. 606, §§ 4-6; 1989, ch. 443, §§ 11-19; 1990, ch. 927, § 2; 1994, ch. 674, § 14; 1997, ch. 68, § 5), concerning public accountants, was repealed by Acts 1998, ch. 700, effective October 1, 1998.

NOTES TO DECISIONS

1. Admission Without Examination.

In statutes regulating occupations and professions and requiring those who wish to engage in such vocations to stand examination, it is permissible to except from the examination those who have pursued the calling for a substantial length of time prior to the enactment of the law. State ex rel. Campbelle v. Hobbs, 174 Tenn. 215, 124 S.W.2d 699, 1938 Tenn. LEXIS 82 (1939).

62-1-110. Appointment of secretary of state as agent for process.

Application by a person or a firm not a resident of this state for a certificate under § 62-1-107 or a permit to practice under § 62-1-108 shall constitute appointment of the secretary of state as the applicant's agent upon whom process may be served in any action or proceeding against the applicant arising out of any transaction or operation connected with or incidental to services performed by the applicant while a licensee within this state.

Acts 1998, ch. 700, § 4.

Compiler's Notes. Former § 62-1-110 (Acts 1980, ch. 518, § 10; 1987, ch. 351, §§ 3-5, 14; 1989, ch. 523, § 104; 1994, ch. 674, §§ 15, 16), concerning renewal of permit, certificate, or license accountants, was repealed by Acts 1998, ch. 700, effective October 1, 1998.

62-1-111. Revocation, suspension or refusal to renew license — Other penalties — Hearings — Procedure — Costs.

  1. After notice and hearing pursuant to § 62-1-120, the board may revoke any license issued under § 62-1-107, §  62-1-108 or § 62-1-109 or corresponding provisions of prior law, may suspend the license or refuse to renew the license for a period of no more than five (5) years, may reprimand, censure or limit the scope of practice of any licensee, may impose a civil penalty or may place any licensee on probation, all with or without terms, conditions and limitations, for any one (1) or more of the following reasons:
    1. Fraud or deceit in obtaining a license;
    2. Cancellation, revocation, suspension or refusal to renew a license or practice rights for disciplinary reasons in any other state for any cause;
    3. Failure on the part of a licensee to maintain compliance with the requirements for issuance or renewal of the license or to report changes to the board under § 62-1-107(f) or § 62-1-108(g);
    4. Revocation or suspension of the right to practice before any state or federal agency;
    5. Dishonesty, fraud or gross negligence in the performance of services as a licensee or in the filing or failure to file the licensee's own income tax returns;
    6. Violation of any provision of this chapter or rule promulgated by the board under this chapter or violation of professional standards;
    7. Violation of any rule of professional conduct promulgated by the board;
    8. Conviction of a felony or of any crime an element of which is dishonesty or fraud under the laws of the United States, of this state, or of any other state or country if the acts involved would have constituted a crime under the laws of this state. However, an action taken under this subdivision (a)(8) shall be subject to the applicable provisions of the Fresh Start Act that are compiled in chapter 76, part 1 of this title;
    9. Performance of any fraudulent act while holding a certificate or permit issued under this chapter or prior law;
    10. Any conduct reflecting adversely upon the licensee's fitness to perform services while a licensee;
    11. Making any false or misleading statement or verification in support of an application for a license filed by another; and
    12. Violation of the terms of any lawful order entered by the board.
  2. In lieu of or in addition to any remedy specifically provided in subsection (a), the board may require of a licensee:
    1. A peer review conducted in the fashion that the board may specify; and/or
    2. Satisfactory completion of continuing professional education programs that the board may specify.
  3. The board has the power to sit as a trial board, to summon records and witnesses by subpoena and to compel their attendance, to administer oaths and to pass judgment upon those licensed under this chapter pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Prior to disciplinary actions against persons licensed under authority of this chapter, the board shall provide written notice to the parties affected by the contemplated disciplinary actions at least thirty (30) days in advance of such action pursuant to the Uniform Administrative Procedures Act. Parties affected by any contemplated disciplinary action shall be entitled to a full hearing prior to any disciplinary action taken by the board conducted pursuant to the Uniform Administrative Procedures Act, and shall be entitled to be represented by counsel and make such defense as may be proper.
  4. In any proceeding in which a remedy provided by subsection (a) or (b) is imposed, the board may also require the respondent licensee to pay all costs of the proceeding.
  5. In any case where the board renders a decision imposing discipline against a licensee under this section, the board shall examine its records to determine whether the licensee holds a certificate or a permit in any other state; and if so, the board shall notify the board of accountancy of the other state of its decision by mail, within forty-five (45) days of rendering the decision. The board may also furnish information relating to proceedings resulting in disciplinary action to other public authorities and to private professional organizations having a disciplinary interest in the licensee. Where a petition for review has been filed pursuant to the Uniform Administrative Procedures Act, the notification and furnishing of information provided for in this subsection (e) shall await the resolution of the review; and, if resolution is in favor of the licensee, no notification or furnishing of information shall be made.

Acts 1998, ch. 700, § 4; 2018, ch. 745, § 1.

Compiler's Notes. Former § 62-1-111 (Acts 1980, ch. 518, § 11; 1984, ch. 669, §§ 2, 3; 1987, ch. 141, § 2; 1987, ch. 351, §§ 6, 8; 1988, ch. 606, §§ 7-10; 1989, ch. 360, § 1; 1989, ch. 443, § 20; 1989, ch. 523, § 105; 1990, ch. 1026, § 35; 1991, ch. 199, § 3; 1992, ch. 712, § 2; 1994, ch. 674, §§ 17-19; 1997, ch. 68, §§ 6-8), concerning board responsibility for implementation and general powers and duties, was repealed by Acts 1998, ch. 700, effective October 1, 1998.

NOTES TO DECISIONS

1. Police Power.

Provision of the law requiring annual license fee is within the police power of the state. Davis v. Allen, 43 Tenn. App. 278, 307 S.W.2d 800, 1957 Tenn. App. LEXIS 115 (Tenn. Ct. App. 1957).

62-1-112. Injunctions and restraining orders.

    1. Whenever, in the judgment of the board, any person has engaged in any acts or practices that constitute a violation of this chapter, the board may make application to the appropriate court in Davidson County or in the county in which the acts occurred, or are alleged to have occurred, for an order enjoining those acts or practices.
    2. Upon a showing by the board that the person has engaged in any such acts or practices, an injunction, restraining order or other such order as may be appropriate may be granted by the court without bond.
  1. “Person,” as used in this section, includes a sole proprietorship, partnership or any other form of business organization authorized under the laws of this or any other state.

Acts 1980, ch. 518, § 12; 1999, ch. 65, § 6.

62-1-113. Prohibited activities.

  1. Only licensees may issue a report on financial statements of any other person, firm, organization or governmental unit or otherwise offer to render or render any attest service. This restriction does not prohibit any act of a public official or public employee in the performance of that person's duties as such, or prohibit the performance by any person of other services involving the use of accounting skills, including the preparation of tax returns, management advisory services and the preparation of financial statements without the issuance of reports thereon.
  2. Licensees performing attest services must provide those services pursuant to statements on standards relating to those services adopted by reference or directly by the board.
  3. No person not holding a valid certificate shall use or assume the title “certified public accountant” or the abbreviation “CPA” or any other title, designation, words, letters, abbreviation, sign, card or device tending to indicate that the person is a certified public accountant.
  4. No firm shall provide attest services or assume or use the title “certified public accountants” or the abbreviation “CPAs,” or any other title, designation, words, letters, abbreviation, sign, card or device tending to indicate that such firm is a CPA firm unless:
    1. The firm holds a valid permit issued under § 62-1-108; and
    2. Ownership of the firm is in accord with this chapter and rules promulgated by the board.
  5. No person shall assume or use the title “public accountant” or the abbreviation “PA,” or any other title, designation, words, letters, abbreviation, sign, card or device tending to indicate that the person is a public accountant unless that person holds a valid registration issued under § 62-1-109.
  6. No firm not holding a valid permit issued under § 62-1-108 shall provide attest services or assume or use the title “public accountant” or the abbreviation “PA,” or any other title, designation, words, letters, abbreviation, sign, card or device tending to indicate that the firm is composed of public accountants.
  7. No person or firm not holding a valid license under this chapter shall assume or use the title “certified accountant,” “chartered accountant,” “enrolled accountant,” “licensed accountant,” “registered accountant,” “accredited accountant” or any other title or designation likely to be confused with the titles “certified public accountant” or “public accountant,” or use any of the abbreviations “CA,” “LA,” “RA,” “AA,” or similar abbreviation likely to be confused with the abbreviations “CPA” or “PA.” The title “enrolled agent” or “EA” may only be used by individuals so designated by the internal revenue service.
    1. Nonlicensees may not use language in any statement relating to the financial affairs of a person or entity that is conventionally used by licensees in reports on financial statements. In this regard, the board shall issue rules providing safe harbor language that nonlicensees may use in connection with the financial information.
    2. No person or firm not holding a valid license issued under § 62-1-107, § 62-1-108 or § 62-1-109 shall assume or use any title or designation that includes the words “accountant” or “accounting,” or any other language, including the language of a report, that implies that the person or firm holds such a license or has special competence as an accountant or auditor; provided, that this subsection (h) does not prohibit any officer, partner, member, manager or employee of any firm or organization from affixing that person's own signature to any statement in reference to the financial affairs of the firm or organization with any wording designating the position, title or office that the person holds in the firm or organization nor prohibit any act of a public official or employee in the performance of the person's duties as a public official or employee.
  8. No person or firm holding a license under this chapter shall use a professional or firm name or designation that is misleading about the legal form of the firm, about the persons who are partners, officers, members, managers or shareholders of the firm or about any other matter; provided, however, that names of one (1) or more former partners, members, managers or shareholders may be included in the name of a firm or its successor.
  9. None of the provisions of subsections (a)-(i) shall have any application to a person or firm holding a certification, designation, degree or license granted in a foreign country entitling the holder of a certification, designation, degree or license granted in a foreign country to engage in the practice of accountancy or its equivalent in that country, whose activities in this state are limited to the provision of professional services to persons or firms who are residents of, governments of or business entities of the country in which the person holds such entitlement, who performs no attest services and who issues no reports with respect to the financial statements of any other persons, firms or governmental units in this state and who does not use in this state any title or designation other than the one under which the person practices in such country, followed by a translation of such title or designation into the English language, if it is in a different language, and by the name of such country.
  10. No holder of a certificate issued under § 62-1-107 or a registration issued under § 62-1-109 shall perform attest services in any firm that does not hold a valid permit issued under § 62-1-108.
  11. Nothing prohibits a licensee from engaging in personal financial planning without further regulatory requirements.
  12. No person shall conceal information relative to violations of this chapter.

Acts 1998, ch. 700, § 5.

Compiler's Notes. Former § 62-1-113 (Acts 1980, ch. 518, § 13; 1989, ch. 443, § 21; 1992, ch. 712, § 3; 1994, ch. 674, § 20), concerning office registration, resident managers and nonresident offices, was repealed by Acts 1998, ch. 700, effective October 1, 1998.

62-1-114. Criminal prosecution by attorney general and reporter — Penalties.

  1. Whenever, by reason of an investigation conducted pursuant to this chapter or otherwise, the board has reason to believe that any person or firm has knowingly engaged in acts or practices that constitute a violation of § 62-1-113, the board may bring its information to the attention of the attorney general of any state or other appropriate law enforcement officer who may, in the officer's discretion, cause appropriate criminal proceedings to be brought on the violation.
  2. Any person or firm who knowingly violates § 62-1-113 commits a Class C misdemeanor.

Acts 1998, ch. 700, § 6.

Compiler's Notes. Former § 62-1-114 (Acts 1980, ch. 518, § 14; 1984, ch. 669, § 4; 1987, ch. 351, § 18; 1988, ch. 606, §§ 11, 12; 1994, ch. 674, § 21; 1997, ch. 68, § 9), concerning reciprocal permits, was repealed by Acts 1998, ch. 700, effective October 1, 1998.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

62-1-115. Accountant's records as personal property.

  1. Subject to § 62-1-116, all statements, records, schedules, working papers and memoranda incident to or in the course of rendering services to a client, made by a licensee or a partner, shareholder, officer, director, member, manager or employee of a licensee, except the reports submitted by the licensee to the client and except for records that are part of the client's records, shall be and remain the property of the licensee in the absence of an express agreement between the licensee and the client to the contrary. No such statement, record, schedule, working paper or memorandum shall be sold, transferred or bequeathed without the consent of the client or the client's personal representative or assignee to anyone other than one (1) or more surviving partners, stockholders, members or new partners, new stockholders or new members of the licensee, or any combined or merged firm or successor in interest to the licensee. Nothing in this section should be construed as prohibiting any temporary transfer of working papers or other material necessary in the course of carrying out peer reviews or as otherwise interfering with the disclosure of information pursuant to § 62-1-116.
  2. A licensee shall furnish to a client or former client, upon request and reasonable notice:
    1. A copy of the licensee's working papers, to the extent that the working papers include records that would ordinarily constitute part of the client's records and are not otherwise available to the client; and
    2. Any accounting or other records belonging to or obtained from or on behalf of the client that the licensee removed from the client's premises or received for the client's account. The licensee may make and retain copies of the documents of the client when they form the basis for work done by the licensee.
  3. Nothing in this section shall require a licensee to keep any working papers beyond the period prescribed in any other applicable statute.

Acts 1980, ch. 518, § 15; 1998, ch. 700, § 7.

62-1-116. Confidential information.

  1. Licensees shall not divulge, nor shall they in any manner be required to divulge, any information that is communicated to them or obtained by them by the reason of the confidential nature of their employment. The information shall be deemed confidential; provided, however, that nothing in this subsection (a) shall be construed as prohibiting the disclosure of information required to be disclosed by the standards of the public accounting profession in reporting on the examination of financial statements or as prohibiting disclosures in investigations or proceedings under this chapter, in ethical investigations conducted by private professional organizations or in the course of peer reviews, or to other persons active in the organization performing services for that client on a need to know basis or to persons in the entity who need this information for the sole purpose of assuring quality control. Disclosure of confidential information pursuant to this subsection (a) shall not constitute a waiver of the confidential nature of the information for any other purpose.
  2. Information derived as a result of such professional employment is deemed to be confidential, except that nothing in this chapter shall be construed as modifying, changing or affecting the criminal or bankruptcy laws of this state or of the United States.

Acts 1980, ch. 518, § 16; 1998, ch. 700, § 8; 1999, ch. 65, §§ 7, 8, 9.

Cross-References. Confidentiality of public records, § 10-7-504.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 501 of the Tennessee Rules of Evidence.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 27.78.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 1-34.02-1.

Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), Rule 501; § 501.6.

Law Reviews.

Constitutional Prohibition of Judge's Comment on Evidence (Donald F. Paine), 35 No. 9 Tenn. B.J. 25 (1999).

Should Tennessee Bury the Dead Man Statute As Arkansas Has? (W. Dent Gitchel), 18 Mem. St. U.L. Rev. 195 (1989).

Attorney General Opinions. Application of statutory accountant-client privilege, OAF 97-028 (3/31/97).

NOTES TO DECISIONS

1. Privilege.

The statutory accountant-client privilege is personal to the client, not the accountant. Federal Ins. Co. v. Arthur Anderson & Co., 816 S.W.2d 328, 1991 Tenn. LEXIS 348 (Tenn. 1991).

62-1-117. Reciprocity.

    1. An individual whose principal place of business is not in this state having a valid license as a certified public accountant from any state that the board or its designee has verified to be in substantial equivalence with the CPA licensure requirements of this chapter shall be presumed to have qualifications substantially equivalent to this state's requirements and shall have all the privileges of licensees of this state without the need to obtain a certificate or permit under § 62-1-107 or § 62-1-108. Notwithstanding any other law, an individual who offers or renders professional services under this section, whether in person, by mail, telephone or electronic means, shall be granted practice privileges in this state; and no notice or other submission shall be provided by the individual. The individual shall be subject to the requirements in subdivision (a)(3).
    2. An individual whose principal place of business is not in this state having a valid license as a certified public accountant from any state that the board or its designee has not verified to be in substantial equivalence with the CPA licensure requirements of this chapter shall be presumed to have qualifications substantially equivalent to this state's requirements and shall have all the privileges of licensees of this state without the need to obtain a certificate or permit under § 62-1-107 or § 62-1-108 if the individual obtains from the board or its designee verification that the individual's CPA qualifications are substantially equivalent to the CPA licensure requirements of this chapter. Notwithstanding any other law, an individual who offers or renders professional services under this section, whether in person, by mail, telephone or electronic means, shall be granted practice privileges in this state; and no notice or other submission shall be provided by the individual. The individual shall be subject to the requirements in subdivision (a)(3).
    3. An individual licensee of another state exercising the privilege afforded under this section and the CPA firm that employs the licensee, as a condition of the grant of this privilege, simultaneously consent to the following:
      1. To the personal and subject matter jurisdiction and disciplinary authority of the board;
      2. To comply with this chapter and the board's rules;
      3. That in the event the license from the state of the individual's principal place of business is no longer valid, the individual shall cease offering or rendering professional services in this state individually and on behalf of a CPA firm; and
      4. To the appointment of the state board that issued the license as the agent upon whom process may be served in the action or proceeding by this board against the licensee.
    4. The board may utilize the service of the NASBA National Qualification Appraisal Service to verify qualifications necessary for substantial equivalency.
  1. A licensee of this state offering or rendering services or using the licensee's CPA title in another state shall be subject to disciplinary action in this state for an act committed in another state for which the licensee would be subject to discipline for an act committed in the other state. The board shall be required to investigate any complaint made by the board of accountancy of another state.

Acts 1998, ch. 700, § 9; 2002, ch. 654, § 9; 2007, ch. 19, §§ 1-3.

Compiler's Notes. Former § 62-1-117 (Acts 1980, ch. 518, § 18; 1987, ch. 351, § 15; 1988, ch. 606, § 15), concerning continuing education and exemptions, was repealed and reenacted, effective October 1, 1998.

62-1-118. Modification of suspension, revocation or refusal to renew license — Reissuance of license.

  1. In any case where the board has suspended or revoked a license or refused to renew a license, the board may, upon application in writing by the person or firm affected and for good cause shown, modify the suspension or reissue the license.
  2. The board shall by rule specify the manner in which applications shall be made, the times within which they shall be made and the circumstances in which hearings will be held on the applications.
  3. Before reissuing or terminating the suspension of a license under this section, and as a condition to the reissuing or termination of suspension, the board may require the applicant to show successful completion of specified continuing professional education; and the board may make the reinstatement of a license conditional and subject to satisfactory completion of a peer review conducted in the fashion that the board may specify.

Acts 1998, ch. 700, § 9.

Compiler's Notes. Former § 62-1-118, concerning state and local government work and preparation by certified public accountants and public accountants, was repealed and reenacted, effective October 1, 1998.

62-1-119. [Reserved.]

The Uniform Administrative Procedures Act, compiled in title 4, chapter 5, governs all matters and procedures respecting the hearing and judicial review of any contested case arising under this chapter.

Acts 1980, ch. 451, § 11.

62-1-121. Fund of the state board of accountancy.

  1. Notwithstanding any other law to the contrary, all moneys collected pursuant to this chapter shall be deposited in the state treasury in a separate fund to be known as the fund of the state board of accountancy.
  2. Disbursements from the fund shall be made solely for the purpose of defraying expenses incurred in the implementation and enforcement of this chapter.
  3. No such expenses shall be payable from the general fund of the state.
  4. Any part of the fund of the state board of accountancy remaining at the end of a fiscal year shall not revert to the general fund, but shall be carried forward until expended in accordance with this chapter.
  5. The board shall budget annually in advance its expenditures for programs, services, allocated overhead or charge backs and other normal operating expenses as determined by the board. These expenditures so established shall be budgeted at the beginning of the year by the board, not to exceed the fees to be received by the board, including the excesses accumulated in the fund of the board. The commissioner of finance and administration shall inform the board annually, in advance for budgeting purposes, the allocation of all overhead or charge backs to the board.
  6. Subject to approval of the comptroller of the treasury and the commissioner of finance and administration, the board may also contract for services to carry out this chapter.

Acts 1989, ch. 443, § 23; 1995, ch. 446, § 2; 1998, ch. 700, § 10.

62-1-122. Payments to obtain clients or for referrals.

    1. A licensee shall neither pay any consideration or commission to obtain a client nor accept any consideration or commission for the referral of a client to others when the licensee or the licensee's firm also performs for that client any of the following:
      1. An audit or review of a financial statement;
      2. A compilation of a financial statement when the licensee expects, or reasonably might expect, that a third party will use the financial statement and the licensee's compilation does not disclose a lack of independence; or
      3. An examination of prospective financial information.
    2. The prohibition in subdivision (a)(1) applies during the period in which the licensee is engaged to perform any of the services listed in subdivision (a)(1) and the period covered by any historical financial statements involved in the services listed in subdivision (a)(1).
  1. A licensee who is not prohibited by subdivision (a)(1) from performing services or receiving consideration or a commission and who is paid or expects to be paid consideration or a commission shall disclose that fact in compliance with the requirements of this section to any person who the licensee recommends or refers a product or service to which the commission relates.
  2. Any licensee who accepts consideration or a commission for a referral shall disclose the acceptance or payment to the client in compliance with the requirements of this section.
  3. The board shall promulgate regulations specifying the terms of the disclosures required by subsections (b) and (c) and the manner in which the disclosures shall be made. The regulations shall comply with the following:
    1. The disclosure must be in writing and be clear and conspicuous;
    2. The disclosure must state the amount of the consideration or commission or must state the basis on which it will be computed; and
    3. The disclosure must be made at or prior to the time of the recommendation or referral of the product or service for which consideration or commission is paid or prior to the client retaining the licensee to whom the client has been referred for which a referral fee is paid.
  4. Nothing in this section shall be construed to prohibit:
    1. Payments for the purchase of all, or a part, of an accounting practice;
    2. Retirement payments to persons formerly engaged in the practice of accountancy or payments to the heirs or estates of those persons; or
    3. Payments, including incentive or bonus payments, to employees or members of an accounting firm as compensation for their services.

Acts 1990, ch. 927, § 3; 1994, ch. 674, § 25; 1997, ch. 68, § 10; 1998, ch. 700, § 11.

62-1-123. Contingent fee arrangements.

  1. As used in this section, “contingent fee” means a fee established for the performance of any service pursuant to an arrangement under which a fee will not be charged unless a specified finding or result is attained or under which the amount of the fee is otherwise dependent upon the finding or result of such service. “Contingent fee” does not mean a fee fixed by a court or other public authority or a fee related to any tax matter that is based upon the results of a judicial proceeding or the findings of a governmental agency.
    1. A licensee shall not receive or agree to receive a contingent fee from a client for the following:
      1. Performance of any professional services for a client for whom the licensee or person associated with the licensee performs any of the following:
        1. An audit or review of a financial statement;
        2. A compilation of a financial statement when the licensee expects, or reasonably might expect, that a third party will use the financial statement and the licensee's compilation does not disclose a lack of independence; or
        3. An examination of prospective financial information; or
      2. Preparation of an original tax return.
    2. This prohibition applies during the period in which the licensee is engaged to perform any of the services listed in subdivision (b)(1) and the period covered by any historical financial statements involved related to those services.
  2. Any licensee who accepts or agrees to accept a contingent fee shall disclose the terms of the contingent fee to the client in compliance with the requirements of this section.
  3. The board shall promulgate regulations specifying the terms of the disclosures required by subsection (c) and the manner in which the disclosures shall be made. The regulations shall comply with the following:
    1. The disclosure must be in writing and be clear and conspicuous;
    2. The disclosure must state the amount of the contingent fee or must state the basis on which the contingent fee will be computed; and
    3. The disclosure must be made at or prior to the time the licensee undertakes representation of or performance of the service upon which a contingent fee will be charged.
  4. Nothing in this section shall be construed to prohibit:
    1. Payments for the purchase of all, or a part, of an accounting practice;
    2. Retirement payments to persons formerly engaged in the practice of accountancy or payments to the heirs or estates of those persons; or
    3. Payments, including incentive or bonus payments, to employees or members of an accounting firm as compensation for their services.

Acts 1990, ch. 927, § 3; 1997, ch. 68, § 11; 1998, ch. 700, § 11.

62-1-124. [Reserved.]

  1. Every licensee shall notify the board in writing within thirty (30) days of:
    1. Any material change in the information previously furnished to or required to be furnished to the board, including, but not limited to, the holder's name or mailing address;
    2. Any conviction by a court of competent jurisdiction of a felony; or
    3. The limitation, suspension or revocation of the right to practice public accountancy by any state board of accountancy or any other state, federal or international agency.
  2. Every office registered pursuant to § 62-1-113 shall notify the board in writing within thirty (30) days of any change of address or location of the office.

Acts 1997, ch. 68, § 12.

Part 2
Review Committees

62-1-201. Peer review.

  1. As used in this part, unless the context otherwise requires, “review committee” means any person or persons carrying out, administering or overseeing peer review.
  2. The board shall require, by rule, as a condition to renewal of permits under this section, that applicants enroll in a board approved peer review program and undergo at least once every three (3) years, peer reviews conducted in the manner that the board specifies. The review shall include a verification that individuals in the firm who are responsible for supervising attest services and sign or authorize someone to sign the accountant's report on the financial statements on behalf of the firm meet the experience requirements set out in the professional standards for those services; provided, that the rule:
    1. Shall include reasonable provision for compliance by an applicant showing that the applicant has, within the preceding three (3) years, undergone a peer review that is a satisfactory equivalent to peer review generally required pursuant to this subsection (b);
    2. May require, with respect to any organization administering peer review programs contemplated by this section, that the organization be subject to evaluations by the board or the board's designee, to periodically assess the effectiveness of the peer review program under its charge;
    3. Shall require with respect to peer reviews contemplated by this section that licensees timely remit any peer review documents as specified by board rule or upon board request and that such documents be maintained by the board pursuant to § 62-1-116; and
    4. Shall require, with respect to peer reviews contemplated by subdivision (b)(1), that the peer review processes be operated, and documents maintained, in a manner designed to preserve confidentiality under §§ 62-1-116 and 62-1-202 and that no third party, other than the board or the board's designee, shall have access to documents furnished or generated in the course of the peer review.

Acts 1998, ch. 700, § 13; 2016, ch. 595, § 3.

Compiler's Notes. Former § 62-1-201 (Acts 1991, ch. 274, § 1; 1994, ch. 674, § 27), containing definitions, was repealed by Acts 1998, ch. 700, § 13, effective October 1, 1998.

Cross-References. Confidentiality of public records, § 10-7-504.

62-1-202. Review committees — Confidentiality of records and proceedings — Scope of confidentiality.

  1. The proceedings, records, and work papers of a review committee shall be privileged and confidential and shall not be subject to discovery, subpoena, or other means of legal process or introduction into evidence in any civil action, arbitration, or administrative proceeding other than a state board of accountancy proceeding; and no member of the review committee or person who was involved in the peer review process shall be permitted or required to testify in any civil action, arbitration, or administrative proceeding other than a state board of accountancy proceeding as to any matters produced, presented, disclosed, or discussed during or in connection with the peer review process or as to any findings, recommendations, evaluations, opinions, or other actions of the committees or any member of the committees; provided, that information, documents, or records that are publicly available are not immune from discovery or use in any civil action, arbitration, administrative proceeding, or state board of accountancy proceeding merely because they were presented or considered in connection with the peer review process.
  2. The privilege created by this part also does not apply to materials prepared in connection with a particular engagement merely because they happen to be subsequently presented or considered as part of the peer review process, nor does it apply to disputes between review committees and persons or firms subject to a peer review arising from the performance of the peer review.

Acts 1991, ch. 274, § 1; 1998, ch. 700, § 14; 2016, ch. 595, § 4.

Cross-References. Confidentiality of public records, § 10-7-504.

62-1-203. Accountants serving on review committees — Immunity.

  1. Any certified public accountant or public accountant who serves on any review committee is immune from liability with respect to any action taken by the accountant in good faith as a member of the review committee.
  2. Certified public accountants and public accountants, and any other individual appointed to or authorized to perform administrative services for any review committee, are immune from liability for furnishing information, data, reports or records to any review committee or for damages resulting from any decisions, opinions, actions and proceedings rendered, entered or acted upon by the review committees undertaken or performed within the scope or functions of the duties of the review committees, if made or taken in good faith and without malice and on the basis of facts reasonably known or reasonably believed to exist.

Acts 1991, ch. 274, § 1.

62-1-120. Hearings and judicial review.

62-1-125. Notice to board of material changes in licensee's status or other information.

Chapter 2
Architects, Engineers, Landscape Architects and Interior Designers

Part 1
General Provisions

62-2-101. Registration.

In order to safeguard life, health and property and to promote public welfare, by requiring that only properly qualified persons shall practice architecture, engineering and landscape architecture, or use the title “registered interior designer” in this state, any person practicing architecture, engineering or landscape architecture or using the title “registered interior designer” shall be registered as provided in this chapter, and it is unlawful for any person to practice or offer to practice architecture, engineering or landscape architecture, or use the title “registered interior designer” unless the person has been duly registered under this chapter, except as otherwise provided.

Acts 1979, ch. 263, § 1; T.C.A., § 62-201; Acts 1988, ch. 990, § 1; 1991, ch. 164, § 8; 1997, ch. 33, § 1.

Code Commission Notes.

Acts 1997, ch. 33, validated the substitution of “registered interior designer” for “interior designer” throughout this chapter, as amended by Acts 1995, ch. 113, and made such language retroactive to April 19, 1995.

Compiler's Notes. The offense in this section may be affected by the Criminal Sentencing Reform Act of 1989, compiled in title 40, chapter 35. See §§ 39-11-114, 40-35-110, 40-35-111, 62-2-105.

The former chapter (Acts 1975, ch. 247, § 1; 1976, ch. 806, § 1 (8); 1977, ch. 358, § 1; 1978, ch. 608, § 1; ch. 753, § 1; ch. 906, § 9) was repealed by Acts 1978, ch. 906, § 10 and by Acts 1979, ch. 263, § 40, and the present chapter on the same subject substituted therefor.

Acts 1991, ch. 164, § 26 provided that the requirement of a person to register to obtain a certificate of registration to use the title “interior designer” (now “registered interior designer”) shall not take effect until January 1, 1994.

Cross-References. Liability of professional societies, title 62, ch. 50, part 1.

Violations and penalties, § 62-2-105.

Textbooks. Tennessee Jurisprudence, 17 Tenn. Juris., Licenses, §§ 8, 23; 19 Tenn. Juris., Negligence, § 6.

Attorney General Opinions. Monetary limitations in Tennessee Contractor's Liability Act, OAG 93-12, 1993 Tenn. AG LEXIS 12 (2/11/93).

The Board of Architectural and Engineering Examiners had authority to adopt policies such as those set forth on the board's internet web site, which for the most part were comprised of policies that clarified the meaning of statutory provisions or explained various practices of the board, and in a publication entitled “Tennessee Board of Architectural And Engineering Examiners Reference Manual for Building Officials and Design Professionals,” which contained a summary of the registration statutes as well as some of the Internet Policies, and also included a section that addressed questions often asked by building officials, OAG 00-119, 2000 Tenn. AG LEXIS 121 (7/10/00).

NOTES TO DECISIONS

1. Constitutionality.

The former statute was a constitutional exercise of legislative power. State Bd. of Examiners v. Standard Engineering Co., 157 Tenn. 157, 7 S.W.2d 47, 1927 Tenn. LEXIS 59 (1928).

2. Applicant Swearing Falsely.

Where board of examiners and chancellor concurred in holding on material evidence that applicant for engineer's license was guilty of false swearing in that he stated that he had attended engineering school for four years, when as a matter of fact he only attended one year, the scope of review on appeal of denial of petition for certiorari was restricted to see if there was material evidence to support action of commission, and since petitioner admitted there was material evidence of false swearing, the action of board and the chancellor was affirmed. Simm v. Dougherty, 186 Tenn. 356, 210 S.W.2d 486, 1948 Tenn. LEXIS 557 (1948).

3. Architecture.

An architect is charged with a statutory duty to exercise superior knowledge and abilities so as to insure the sound and stable construction of a building. In re Robby's Pancake House, Inc., 21 B.R. 754, 1982 Bankr. LEXIS 3933 (Bankr. E.D. Tenn. 1982).

4. —Practice.

Defendant, who was not a registered architect, but who was designing buildings extensive in size and with numerous rooms, was practicing architecture, and was not exempt on the ground that public safety or health was not involved, since designing of buildings involved public safety and health; hence it was proper to enjoin defendant from further practice. State Board of Examiners for A. & E. v. Rodgers, 167 Tenn. 374, 69 S.W.2d 1093, 1933 Tenn. LEXIS 50 (1934).

Board was not entitled to enjoin defendant from practicing engineering without a license where defendant was practicing engineering prior to 1921, the year in which board was created. State Board of Architectural & Engineering Examiners v. Blalock, 190 Tenn. 626, 231 S.W.2d 326, 1950 Tenn. LEXIS 529 (1950).

5. Purpose of Section.

This section is a police measure enacted for the protection of public safety and health. In re Robby's Pancake House, Inc., 21 B.R. 754, 1982 Bankr. LEXIS 3933 (Bankr. E.D. Tenn. 1982).

6. Single Instance Violates Section.

The single isolation rule, applicable to liability for a privilege tax, has no application to a statute enacted in the exercise of the police power of the state for the protection of the public safety and health. One transaction in violation of such a statute could jeopardize the public safety and health. Cantrell v. Perkins, 177 Tenn. 47, 146 S.W.2d 134, 1940 Tenn. LEXIS 9 (1941).

62-2-102. Practice and persons exempt from registration.

  1. Except as provided in subsections (b) and (d), nothing in this section shall be construed as requiring registration for the purpose of practicing architecture, engineering or landscape architecture by a person; provided, that the person does not use the appellation “architect,” “engineer” or “landscape architect,” an appellation that compounds, modifies or qualifies the word “architecture,” “engineering” or “landscape architecture,” or that gives or is designed to give the impression that the person using those words is an architect, engineer or landscape architect.
  2. It is unlawful for any person other than a registered architect or engineer to prepare plans and specifications for any building or structure other than the following:
    1. Structures classified as business, factory-industrial, hazardous, mercantile, residential and storage occupancies, as those occupancies are defined in the 1985 edition of the Standard Building Code, that are:
      1. Less than three (3) stories in height; and
      2. Less than five thousand square feet (5,000 sq. ft.) in total gross area;
    2. One-family and two-family dwellings and domestic outbuildings appurtenant to those dwellings;
    3. Farm buildings not designed or intended for human occupancy; or
      1. Signs that do not exceed either of the following limits:
        1. Any portion of the sign is twenty feet (20') or more above the ground level; or
        2. Any portion of the sign is fifteen feet (15') or more above the ground level, if the sign has more than one hundred twenty square feet (120 sq. ft.) in total sign face area;
      2. Subdivision (b)(4)(A) shall not apply if, in the opinion of the local government building official, failure of the support system for the sign is likely to cause harm to people or property.
  3. Nothing in this section shall prevent any awarding authority, public or private, from requiring the services of a registered architect, engineer or landscape architect for any project.
  4. Any person, firm, company, business, corporation or other entity that was organized and doing business other than business regulated in this chapter that was organized and doing business prior to January 1, 1967, and whose corporate name includes the appellation “engineer” or an appellation that compounds, modifies or qualifies the word “engineering,” may continue to use that corporate name and shall not be required to register pursuant to this chapter. This section shall not be construed to authorize those entities to engage in the practice of architecture, engineering or landscape architecture without registering pursuant to this chapter.

Acts 1979, ch. 263, § 29; T.C.A., § 62-229; Acts 1983, ch. 47, § 1; 1988, ch. 990, § 2; 1989, ch. 307, § 1; 1993, ch. 132, § 1; 2009, ch. 268, § 1.

Compiler's Notes. The offense in this section may be affected by the Criminal Sentencing Reform Act of 1989. See §§ 39-11-114, 40-35-110, 40-35-111, 62-2-105.

Cross-References. Violations and penalties, § 62-2-105.

Attorney General Opinions. Interpretation and enforcement of this section, OAG 99-226, 1999 Tenn. AG LEXIS 230 (12/3/99).

The board of architectural and engineering examiners had authority to adopt a policy named “Seal Exemptions Clarification (Section 62-2-102(b)),” as the policy simply addressed a common situation in the construction industry which the statute did not explicitly address, OAG 00-119, 2000 Tenn. AG LEXIS 121 (7/10/00).

Interior design by non-registrants under T.C.A. §§ 62-2-101—62-2-906.  OAG 12-46, 2012 Tenn. AG LEXIS 46 (4/3/12).

NOTES TO DECISIONS

1. In General.

Defendant, who was not a registered architect, but who was designing buildings extensive in size and with numerous rooms, was practicing architecture, and was not exempt on the ground that public safety or health was not involved, since designing of buildings involved public safety and health, hence it was proper to enjoin defendant from further practice. State Board of Examiners for A. & E. v. Rodgers, 167 Tenn. 374, 69 S.W.2d 1093, 1933 Tenn. LEXIS 50 (1934).

Where plaintiff drafted a set of plans and specifications for the construction of a dwelling house, this involved the public health and safety so that plaintiff was engaged in practicing architecture even though he did not so represent himself or use the appellation “architect” or “engineer” or any modification thereof. Cantrell v. Perkins, 177 Tenn. 47, 146 S.W.2d 134, 1940 Tenn. LEXIS 9 (1941).

62-2-103. Persons exempt from chapter.

The following shall be exempted from this chapter; provided, that, except as provided in subdivision (4), nothing in this section shall be construed as exempting any person who makes public use of the title “engineer,” “architect” or “landscape architect” or any appellation of those titles, including persons employed by this state or its political subdivisions:

  1. Any person engaging in architectural, engineering or landscape architectural work as an employee of a registered architect, registered engineer or registered landscape architect; provided, that such work may not include responsible charge of design or supervision;
  2. Architects, engineers or landscape architects who are not residents of and have no established place of business in this state, who are acting as consulting associates of an architect, engineer or landscape architect registered under this chapter; provided, that the nonresident is qualified for such professional service in the nonresident's own state or country;
  3. Architects, engineers or landscape architects who are employed by a person, firm or corporation not engaged in the practice of architecture, engineering, or landscape architecture and who render architectural, engineering or landscape architectural services to their employer only and not to the general public; and
  4. Architects, engineers or landscape architects who are employed by a municipal electric system or electric and community service cooperative as defined in § 65-34-102 or telephone cooperatives as defined in title 65, chapter 29 and who render architectural, engineering or landscape architectural services pertaining to the operations of their employer and who do not offer their services to the general public in exchange for compensation other than that received from their employer. Nothing in this subdivision (4) shall be construed as exempting any person who makes public use of the title “engineer,” “architect” or “landscape architect” or any appellation of those titles.

Acts 1979, ch. 263, § 30; T.C.A., § 62-230; Acts 1988, ch. 990, §§ 3-5; 1989, ch. 307, §§ 2, 3; 1993, ch. 132, § 2; 1994, ch. 644, §§ 1, 2; 1995, ch. 113, § 2.

Attorney General Opinions. Licensure of professional engineers, OAG 94-111, 1994 Tenn. AG LEXIS 119 (10/6/94).

62-2-104. Employees of licensees.

  1. Nothing in this chapter shall prevent the drafters, students, clerks of the work superintendents and other employees of lawfully practicing architects, engineers and landscape architects under this chapter from acting under the instruction, control or supervision of the employer or to prevent the employment of superintendents on the construction, enlargement or alterations of buildings or any appurtenance to buildings, or prevent such superintendents from acting under the immediate personal supervision of registered architects, registered engineers or registered landscape architects by whom the plans and specifications of the building enlargements, constructions or alterations were prepared.
  2. Nothing in this chapter shall prevent persons, mechanics or builders from making plans, specifications for or supervising the erection, enlargement or alterations of buildings or any appurtenance to buildings, to be constructed by themselves or their employees exclusively for their own use and occupancy, unless the same involves the public health or safety; provided, that the working drawings for such constructions are signed by the authors of the drawings and their true appellations as “contractor,” “carpenter,” etc., without the use in any form of the title “architect,” “engineer” or “landscape architect.”

Acts 1979, ch. 263, § 31; T.C.A., § 62-231; Acts 1988, ch. 990, § 6.

62-2-105. Violations — Penalties — Reporting offenses.

    1. No person shall:
      1. Present or attempt to file as the person's own the certificate of registration of another;
      2. Give forged or willfully false evidence of any kind to the state board of examiners for architects and engineers or any member of the board for the purpose of obtaining a certificate;
      3. Falsely impersonate any other practitioner; or
      4. Use or attempt to use an expired or revoked certificate of registration.
    2. A violation of subdivision (a)(1) is a Class B misdemeanor.
    1. No person shall practice or offer to practice engineering, architecture or landscape architecture, or use the title “registered interior designer” in this state in violation of this chapter.
    2. A violation of subdivision (b)(1) is a Class B misdemeanor.
    3. Each day's violation of subdivision (b)(1) is a separate offense.
  1. A person is construed to practice or offer to practice engineering, architecture or landscape architecture who, by verbal claim, sign, advertisement, letterhead, card or in any other way, represents that person to be an architect, engineer or landscape architect, with or without qualifying adjective, or through the use of some other title implies that the person is an architect, engineer or landscape architect.
  2. It is the duty of the members of the board to report any violations of this chapter to the proper authorities.

Acts 1979, ch. 263, § 34; 1980, ch. 627, § 5; T.C.A., § 62-234; Acts 1988, ch. 990, § 7; 1989, ch. 591, § 112; 1991, ch. 164, § 9; 1997, ch. 33, § 2.

Compiler's Notes. Acts 1991, ch. 164, § 26 provided that the requirement of a person to register to obtain a certificate of registration to use the title “interior designer” (now “registered interior designer”) shall not take effect until January 1, 1994.

Cross-References. Penalty for Class B misdemeanor, § 40-35-111.

NOTES TO DECISIONS

1. Advertisement As Engineer.

Plumber who advertised himself as an engineer was subject to the statute even though he did no work beyond the ordinary scope of plumbing. State Bd. of Examiners v. Standard Engineering Co., 157 Tenn. 157, 7 S.W.2d 47, 1927 Tenn. LEXIS 59 (1928).

62-2-106. Enforcement.

  1. It is the duty of the state board of examiners for architects and engineers to inquire into the identity of any person claiming to be an architect, engineer, landscape architect or registered interior designer and to prosecute any person or persons violating this chapter.
  2. The board may, when it deems appropriate, seek civil remedies at law or equity to restrain or enjoin any unauthorized practice or other violation of this chapter.

Acts 1979, ch. 263, § 35; T.C.A., § 62-235; Acts 1988, ch. 990, § 8; 1991, ch. 164, § 10; 1997, ch. 33, § 3.

62-2-107. Employment of licensees on public works — Excluded public works.

  1. Neither the state, nor any county, city, town or village or other political subdivision of the state, shall engage in the construction or maintenance of any public work involving architecture, engineering or landscape architecture for which the plans, specifications and estimates have not been made by a registered architect, registered engineer or registered landscape architect.
    1. Nothing in this section shall be held to apply to such public work if:
      1. The contemplated expenditure for the complete project does not exceed fifty thousand dollars ($50,000), and the work does not alter the structural, mechanical or electrical system of the project; or
      2. The contemplated expenditure for the complete project does not exceed one hundred thousand dollars ($100,000), the project is located in a state park, and the work is solely maintenance, as defined in the policy and procedures of the state building commission.
    2. For a public work located in a state park, existing plans may be used as a basis of design if the plans have been designed and sealed by a registered architect, engineer, or landscape architect and a registered architect, engineer, or landscape architect reviews such plans for compliance with all applicable codes and standards and appropriateness for the site conditions of the project, makes changes if required, and seals the plans in accordance with the requirements of this chapter.
  2. For the purposes of this chapter, “public work” does not include construction, reconstruction or renovation of all or any part of an electric distribution system owned or operated directly or through a board by a municipality, county, power district or other subdivision of this state that is to be constructed, reconstructed or renovated according to specifications established in the American National Standard Electrical Safety Code, the National Electrical Code or other recognized specifications governing design and construction requirements for such facilities. Notwithstanding this subsection (c), “electrical distribution system” does not include any office buildings, warehouses or other structures containing walls and a roof that are to be open to the general public.

Acts 1979, ch. 263, § 36; T.C.A., § 62-236; Acts 1988, ch. 990, § 9; 1994, ch. 644, § 3; 2012, ch. 927, § 1; 2015, ch. 403, § 1.

Compiler's Notes. Acts 2012, ch. 927, § 2 provided that the act, which amended subsection (b), shall apply to plans, specifications, or estimates created for public works on or after July 1, 2012.

62-2-108. Hearings and judicial review.

The Uniform Administrative Procedures Act, compiled in title 4, chapter 5, governs all matters and procedures respecting the hearing and judicial review of any contested case arising under this chapter.

Acts 1980, ch. 451, § 11; T.C.A., § 62-237.

62-2-109. Voluntary inspection services by architects or engineers at scene of a natural or man-made emergency — Limitation of liability — Applicability and scope of limitation.

  1. An architect or engineer who voluntarily, without compensation or expectation of compensation, provides structural or building systems inspection services at the scene of a declared national, state or local natural or man-made emergency at the request of a public safety officer or city or county building inspector acting in an official capacity shall not be liable in negligence for any personal injury or property damage caused by the architect's or engineer's good faith, but negligent, inspection of a structure used for human habitation or a structure owned by a public entity, for structural integrity or nonstructural elements affecting life and safety. The immunity provided by this section shall apply only for an inspection that occurs within ninety (90) days of the declared national, state or local natural or man-made emergency.
  2. Nothing in this section shall be construed to provide immunity for gross negligence or willful misconduct.
  3. As used in this section, “public safety officer” means:
    1. The chief law enforcement officer in a county or city;
    2. A law enforcement officer acting at the specific direction of the chief law enforcement officer; or
    3. The director or the director's assistants of the emergency management agency designated in accordance with § 58-2-104.
  4. Nothing in this section shall be construed as extending immunity to a city or county for whom inspection services are provided as described in this section.

Acts 1991, ch. 267, § 1; 2006, ch. 937, § 3.

62-2-110. Exemptions from part.

Notwithstanding any other provision of law to the contrary, any person in business in Tennessee in 1998 for the sole purpose of manufacturing and distributing federal aviation administration-approved avionic equipment is exempt from this part.

Acts 2010, ch. 945, § 1.

Part 2
State Board of Examiners

62-2-201. Board of examiners — Composition — Terms of members.

    1. There is created a state board of examiners for architects and engineers, called the board in this part and parts 3-8 of this chapter.
    2. The board shall include, where possible, at least one (1) female and at least one (1) member of a racial minority.
    3. This board shall consist of eight (8) members to be appointed by the governor, three (3) to be registered architects who may be appointed from lists of qualified persons submitted by interested architect groups including, but not limited to, the representative professional architects of the state, three (3) to be registered engineers who may be appointed from lists of qualified persons submitted by interested engineering groups including, but not limited to, the representative professional engineering society of the state, one (1) to be a registered landscape architect who may be appointed from lists of qualified persons submitted by interested landscape architect groups including, but not limited to, the representative professional landscape architecture society of the state, and one (1) to be a registered interior designer who may be appointed from lists of qualified persons submitted by interested interior design groups including, but not limited to, the representative professional interior design society of the state. The governor shall consult with interested statewide architect, engineering, landscape architect, and interior design groups including, but not limited to, the professional societies listed in this subdivision (a)(3) to determine qualified persons to fill the positions. This subdivision (a)(3) shall not apply to the appointment of the public member of the board.
    4. In the event of a vacancy on the board for any reason and the governor failing to appoint a successor within three (3) months after the vacancy occurs, the board is empowered to fill that vacancy from the lists of qualified persons submitted by the interested groups, including, but not limited to, the respective societies, until the governor makes an appointment as provided in subdivision (a)(3).
    5. Two (2) of the members, one (1) a registered architect and one (1) a registered engineer, shall be appointed from each grand division of the state, to serve for a period of four (4) years. The successor of any member shall be appointed from the grand division of that member. The member who is a registered landscape architect shall be appointed to serve for a period of four (4) years; provided, that the successor of that member shall be appointed from a grand division different from that member's predecessor. The member who is a registered interior designer shall be appointed to serve for a period of four (4) years.
    6. Appointments to the board shall be in such manner that the terms of members in the same profession shall expire at different times.
    7. Terms of office begin on July 1 of the year of appointment, except that successors may at any time qualify and serve for the remainder of the given term.
  1. In addition to members serving on the board under the authority of subsection (a), the board of architects and engineers shall also include one (1) member who is not engaged in the practice of architecture, engineering or landscape architecture. That member shall be a resident of the state and shall possess good moral character. The member shall be appointed by the governor, shall serve for a period of four (4) years and, except as provided in § 62-2-302, shall be a full member of the board relative to all board matters.
    1. In addition to members serving on the board under the authority of subsections (a) and (b), the board shall also include as associate members three (3) registered engineers, who may be appointed by the governor from lists of qualified persons submitted by interested engineering groups, including, but not limited to, the representative professional engineering society of the state. The governor shall consult with such interested engineering groups to determine qualified persons to fill the positions.
    2. An associate engineer member shall be appointed from each grand division, to serve for a period of four (4) years; provided, that the first two (2) members appointed under this subsection (c) shall serve for periods of one (1) and two (2) years, respectively. The successor of any associate engineer member shall be appointed from the grand division of the member.
    3. Appointments to the board under this subsection (c) shall be in a manner that the terms of the associate engineer members shall expire at different times.
    4. Terms of office begin on July 1 of the year of appointment, except that successors may at any time qualify and serve for the remainder of the given term.
    5. Associate engineer board members appointed under this subsection (c) shall be subject to § 62-2-202.
    6. Associate engineer members approved under this subsection (c) shall assist the board with routine matters and responsibilities as requested by the board. Associate engineer members shall attend board meetings, committee meetings and other board functions only as required by the board. The associate engineer members shall have no voting privileges and are not to be considered as members for quorum or election purposes.
    7. Associate engineer members shall render technical assistance to the board and staff as authorized by the board.

Acts 1979, ch. 263, § 2; T.C.A., § 62-202; Acts 1988, ch. 990, §§ 10, 11; 1991, ch. 164, §§ 11-13; 1992, ch. 582, § 1; 1995, ch. 198, § 1; 1997, ch. 33, §§ 4, 5; 2012, ch. 724, §§ 3, 4; 2016, ch. 610, § 3.

Compiler's Notes. The board of examiners for architects and engineers, created by this section, terminates June 30, 2020. See §§ 4-29-112, 4-29-241.

The regulatory board created by this section is attached to the division of regulatory boards in the department of commerce and insurance for purposes of administration, see §§ 4-3-1304, 56-1-30156-1-306.

Acts 1991, ch. 164, § 26 provided that the requirement of a person to register to obtain a certificate of registration to use the title “interior designer” shall not take effect until January 1, 1994.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

State examining boards, general provisions, title 4, ch. 19.

Attorney General Opinions. Definition and use of the term “engineer”, OAG 07-100, 2007 Tenn. AG LEXIS 98 (7/9/07).

62-2-202. Qualifications of board members — Removal — Vacancies.

  1. The members of the board appointed under § 62-2-201(a) shall each have had at least ten (10) years’ experience in the practice of architecture as a registered architect, ten (10) years’ experience in the practice of engineering as a registered engineer, ten (10) years’ experience in the practice of interior design as a registered interior designer or ten (10) years’ experience in the practice of landscape architecture as a registered landscape architect, with no record of any formal disciplinary action. Such members shall each have been in responsible charge of work for at least five (5) years, and shall each have demonstrated an interest in improving the profession by involvement in a statewide association directly related to their profession for at least five (5) years. Each member shall be a citizen of the United States and shall have been a resident of Tennessee for five (5) years at the time of appointment. The ten-year requirement of experience as a registered practitioner shall not apply to the registered interior designer member until January 1, 2014; provided, however, that the member shall have been a registered interior designer for five (5) years and shall have ten (10) years’ experience as an interior designer.
    1. The governor may remove any member of the board for misconduct, incapacity, or neglect of duty.
      1. Notwithstanding subdivision (b)(1), any member who misses more than fifty percent (50%) of the scheduled meetings in a calendar year shall be removed as a member of the board.
      2. The chair of the board shall promptly notify, or cause to be notified, the appointing authority of any member who fails to satisfy the attendance requirement as prescribed in subdivision (b)(2)(A).
  2. Vacancies on the board shall be filled for the unexpired term as prescribed in § 62-2-201.

Acts 1979, ch. 263, § 3; T.C.A., § 62-203; Acts 1988, ch. 990, § 12; 1991, ch. 164, §§ 14, 15; 1992, ch. 582, § 2; 1997, ch. 33, § 6; 2005, ch. 9, § 1; 2012, ch. 724, § 5; 2016, ch. 610, § 4.

62-2-203. Certificates of appointment — Legal assistance — Attendance of witnesses — Seal — Rules — Continuing professional education.

  1. Each member appointed under § 62-2-201(a) shall receive a certificate of appointment from the governor, and no one shall be eligible for appointment who does not at the time hold an unexpired certificate to practice architecture, engineering or landscape architecture or certificate of registration to use the title “registered interior designer,” except the first registered interior designer board member, issued under this chapter or other applicable law. Before beginning a term of office, each appointed member shall file with the secretary of state the oath of office.
  2. The board or any committee of the board shall be entitled to the services of an assistant attorney general in connection with the affairs of the board, and the board shall have power to compel the attendance of witnesses on behalf of the state or any party having issue before the board, may administer oaths and may take testimony concerning all matters within its jurisdiction.
  3. The board shall adopt and have an official seal, which shall be affixed to all certificates of registration granted, and shall make all bylaws and rules not inconsistent with the law.
  4. The board has the authority to establish continuing professional education requirements for architects, engineers, landscape architects and registered interior designers. Any rules promulgated to effect this subsection (d) shall be promulgated in compliance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1979, ch. 263, § 4; T.C.A., § 62-204; Acts 1988, ch. 990, § 13; 1991, ch. 164, § 16; 1995, ch. 129, § 1; 1997, ch. 33, § 7.

62-2-204. Board meetings — Officers — Quorum.

  1. The board shall hold at least two (2) regular meetings each year. Special meetings shall be held at times that the bylaws of the board may provide. Notice of all meetings shall be given in the manner that the bylaws of the board may provide, consistent with all existing state laws.
  2. The board shall elect annually from its members a chair, a vice chair and a secretary.
  3. A quorum of the board shall consist of no less than five (5) members; except, however, for the purpose of formal disciplinary matters involving an architect, engineer, registered interior designer or landscape architect, at least one (1) board member from the respective profession shall be present.

Acts 1979, ch. 263, § 5; T.C.A., § 62-205; Acts 1982, ch. 735, §§ 1, 2; 1984, ch. 676, § 6; 1988, ch. 990, § 14; 1990, ch. 1026, § 20; 1991, ch. 164, § 17; 1997, ch. 33, § 8.

Cross-References. Per diem and travel expenses of members, § 56-1-307.

62-2-205. Executive director.

The board shall have an executive director who shall perform all administrative functions for the board.

Acts 1979, ch. 263, § 6; T.C.A., § 62-206; Acts 1995, ch. 197, § 1.

62-2-206. Attendance at state, regional and national registration meetings.

The board may authorize, subject to the approval of the department of commerce and insurance, one (1) administrative person and three (3) board members to attend state, regional and national registration meetings and to perform other necessary functions. These personnel shall be reimbursed for all travel and other necessary expenses, which shall be claimed and paid in accordance with the prevailing travel regulations of state government.

Acts 1979, ch. 263, § 7; T.C.A., § 62-207; Acts 2000, ch. 817, § 1.

62-2-207. Records of board — Roster of registrants — Annual report.

  1. The board shall keep a record of its proceedings and a register of all applicants for registration showing, for each, the date of application, name, age, educational and other qualifications, place of business and place of residence, whether or not an examination was required and whether the applicant was rejected or a certificate of registration granted and the date of such action. The books and register of the board shall be prima facie evidence of all matters recorded in the books and register.
  2. A roster showing the names and places of business and of residence of all registered architects, engineers, landscape architects and registered interior designers and the names and addresses of all firms, corporations and partnerships practicing architecture, engineering or landscape architecture or using the title “registered interior designer” in this state may be printed annually.
  3. The board shall submit reports to the governor as required by state regulations. A copy of these reports shall be filed with the secretary of state.

Acts 1979, ch. 263, § 8; T.C.A., § 62-208; Acts 1997, ch. 128, § 1; 2001, ch. 261, § 1.

Cross-References. Regulations governing reports, § 4-4-114.

Part 3
Qualification and Registration Generally

62-2-301. General requirements for registration.

  1. The board shall, upon application for a certificate of registration, on the prescribed form and the payment by the applicant of a fee as prescribed by the board, consider the application, and, in proper cases, issue a certificate of registration, either as an architect, as an engineer, as a registered interior designer or as a landscape architect, to any person who submits evidence satisfactory to the board that the person is fully qualified to practice architecture, engineering or landscape architecture or use the title “registered interior designer.” No person shall be eligible for registration who does not speak and write the English language and who is not of good character and repute.
  2. No person shall be granted any combination of licenses as architect, engineer, registered interior designer or landscape architect unless the person makes a separate application and pays a separate fee for each profession, both original fee and annual renewal fee, and is found by the board to be qualified for a license in each profession.

Acts 1979, ch. 263, § 9; T.C.A., § 62-209; Acts 1988, ch. 990, § 15; 1991, ch. 164, §§ 18-20; 1997, ch. 33, §§ 9, 10.

Compiler's Notes. Acts 1991, ch. 164, § 26 provided that the requirement of a person to register to obtain a certificate of registration to use the title “interior designer” (now “registered interior designer”) shall not take effect until January 1, 1994.

Cross-References. Qualification and registration of architects, title 62, chapter 2, part 5.

Qualification and registration of engineers, title 62, chapter 2, part 4.

Textbooks. Tennessee Jurisprudence, 17 Tenn. Juris., Licenses, §§ 2, 8.

62-2-302. Board members examining and voting on applicants.

    1. In determining the qualifications of applicants for registration as architects, a majority vote of the architect members of the board only shall be required.
    2. In determining the qualifications of applicants for registration as engineers, a majority vote of the engineer members of the board only shall be required.
    3. In determining the qualifications of applicants for registration as landscape architects, the one (1) landscape architect board member and one (1) architect or engineer board member only shall be required.
    4. In determining the qualifications of applicants for registration as registered interior designers, the registered interior designer board member and one (1) architect, engineer or landscape architect board member only shall be required; provided, that for the first registered interior designer board member no such vote shall be required.
    1. Applicants for registration as architects shall be examined by architect members of the board only and applicants for registration as engineers shall be examined by the engineer members of the board only.
    2. Applicants for registration as landscape architects shall be examined by the landscape architect member and one (1) architect and engineer member of the board.
    3. Applicants for registration as registered interior designers shall be examined by the registered interior designer member and one (1) architect and engineer member of the board.
  1. In the event the board denies issuance of a certificate to an applicant, no refund of any part of the application fee shall be returned by the board to the applicant.
  2. For purposes of this section, the member of the board appointed under the authority of § 62-2-201(b) is not a voting member of the board.

Acts 1979, ch. 263, § 22; T.C.A., § 62-222; Acts 1988, ch. 990, § 16; 1991, ch. 164, §§ 21, 22; 1997, ch. 33, §§ 11, 12.

62-2-303. Additional evidence.

Applicants for registration in cases where the evidence originally presented in the application does not appear to the board conclusive or as warranting the issuance of a certificate may be required to present other evidence as required by the board.

Acts 1979, ch. 263, § 23; T.C.A., § 62-223.

62-2-304. Comity — Issuance of certificate of registration.

  1. The board may, upon proper application for a certificate of registration, issue a certificate of registration as an architect, engineer, registered interior designer or landscape architect to any person who holds a like unexpired certificate of qualification or registration issued to the person by any state, territory or possession of the United States or of any country; provided, that the applicant's qualifications meet the requirements of this chapter and the rules established by the board. Any applicant for registration as an architect or landscape architect pursuant to this section shall hold an unexpired national certificate issued by the National Council of Architectural Registration Boards or the Council of Landscape Architectural Registration Boards and shall present proof of the certificate upon application to the board.
  2. In addition to subsection (a), the board may, upon proper application for a certificate of registration, issue a certificate of registration as an architect to any person whose qualifications do not meet the requirements of this chapter and the rules established by the board if that person holds a like unexpired certificate of qualification or registration issued to such person by any state, territory, or possession of the United States or by any country; holds an unexpired national certificate issued by the National Council of Architectural Registration Boards; and presents proof of the certificates upon application to the board. The issuance of a certificate of registration pursuant to this subsection (b) is at the sole discretion of the board's determination that the applicant has qualifications suitable to be issued a certificate of registration in this state.

Acts 1979, ch. 263, § 24; T.C.A., § 62-224; Acts 1988, ch. 990, § 17; 1989, ch. 292, § 1; 1991, ch. 164, § 23; 1997, ch. 33, § 13; 1998, ch. 770, § 1; 2016, ch. 838, § 3.

62-2-305. Replacement of certificate.

A new certificate of registration to replace any certificate lost, destroyed or mutilated may be issued subject to the rules and regulations of the board.

Acts 1979, ch. 263, § 25; T.C.A., § 62-225.

62-2-306. Effect of certificate — Seal.

  1. The issuance of a certificate of registration by this board shall be evidence that the person named in the certificate is entitled to all the rights and privileges of an architect, engineer or landscape architect while the certificate remains unrevoked or unexpired.
  2. Each registered architect, registered engineer and registered landscape architect shall obtain and keep a seal of the design authorized by the board bearing the registrant's name, the registrant's registration number, the words “Registered Architect,” “Registered Engineer” or “Registered Landscape Architect” and the words “State of Tennessee” or “Tennessee.” The registrant shall stamp with the registrant's seal all original sheets of any bound set of plans and the first sheet of any specifications or reports prepared by the registrant or under the registrant's responsible charge. No architect, engineer or landscape architect shall affix the architect's, engineer's or landscape architect's seal or stamp to any document that has not been prepared by the architect, engineer or landscape architect or under the architect's, engineer's or landscape architect's responsibility. Plans, specifications and reports issued by the registrants shall be stamped with the seal during the life of a registrant's certificate, but it is unlawful for anyone to stamp or seal any document with the seal after the certificate of the registrant named on the seal has expired or has been revoked.
  3. As used in this section, “registered architects,” “registered engineers” or “registered landscape architects” means only those registered architects, registered engineers or registered landscape architects who are required by this chapter to be registered in this state.
  4. The board may also adopt rules and regulations for the affixing to and endorsement of the registrant's seal on architectural, engineering and landscape architectural documents that may be necessary to implement compliance with this section.
  5. Notwithstanding subsection (b), an architect or engineer, after fully reviewing and modifying, as required, may affix that architect's or engineer's seal or stamp to a document, or part of a document, that has been prepared by another architect or engineer, if the document has been designated as a state standard prototype, pursuant to § 12-4-116 [see now § 12-4-111]. The architect or engineer who is involved in a state standard prototypical re-use project, as provided in § 12-4-116 [see now § 12-4-111], shall fully review and modify, as required, the documents and then affix that architect's or engineer's seal or stamp and signature on the documents. The architect or engineer shall become solely responsible for all documents on which that architect's or engineer's seal or stamp is placed.

Acts 1979, ch. 263, § 26; 1981, ch. 349, § 1; T.C.A., § 62-226; Acts 1988, ch. 800, § 1; 1988, ch. 990, § 18; 1989, ch. 307, § 4; 1995, ch. 113, § 3.

Compiler's Notes. Former § 12-4-116, referred to in (e), was transferred to § 12-4-111 by Acts 2013, ch. 403, § 79, effective July 1, 2013.

NOTES TO DECISIONS

1. Construction.

This section may not be construed to require only that architects, before affixing their seal to plans they have not prepared, have completely reviewed and made substantial changes to those plans; rather, it authorizes an architect to validate by use of seal only those plans for which he is responsible in fact and in law. Wamp v. Tennessee State Bd. of Architectural & Eng'g Examiners, 868 S.W.2d 273, 1993 Tenn. LEXIS 380 (Tenn. 1993), rehearing denied, Wamp v. State Bd. of Architectural & Eng'g Examiners, — S.W.2d —, 1993 Tenn. LEXIS 453 (Tenn. Dec. 29, 1993).

2. Violation.

Architect violated T.C.A. § 62-2-306 by stamping with his seal plans that had been prepared by an unlicensed draftsman to whom the architect was not connected professionally. Wamp v. Tennessee State Bd. of Architectural & Eng'g Examiners, 868 S.W.2d 273, 1993 Tenn. LEXIS 380 (Tenn. 1993), rehearing denied, Wamp v. State Bd. of Architectural & Eng'g Examiners, — S.W.2d —, 1993 Tenn. LEXIS 453 (Tenn. Dec. 29, 1993).

62-2-307. Expiration and renewal of certificate — Certificates for retirees.

  1. Certificates of registration shall expire two (2) years following the date of their issuance or renewal and are invalid on that date unless renewed.
  2. It is the duty of the board to notify every person registered under this chapter of the date of the expiration of that person's certificate and the amount of the fee required for its renewal for two (2) years. The notice shall be mailed at least one (1) month in advance of the date of the expiration of the certificate.
  3. Renewal may be effected at any time during the thirty (30) days preceding the certificate expiration date by the payment of the fee determined by and payable to the board.
  4. Certificates of registration shall be subject to late renewal for six (6) months following their expiration date by payment of the renewal fee plus a penalty as set by the board for each month or fraction of a month that elapses before payment is tendered.
  5. Any person wishing to renew a certificate later than six (6) months after its expiration date shall reapply for certification. The board may, in its discretion, waive any further examination of the applicant and any further education and experience beyond that obtained at the time of the applicant's original registration in this state.
  6. Notwithstanding any provision in this chapter to the contrary, the board has the authority to establish, by rule and regulation, procedures and criteria pursuant to which persons who are retired may continue to use the titles of “architect,” “engineer,” “landscape architect” or “registered interior designer” without the payment of a registration renewal fee.

Acts 1979, ch. 263, § 27; 1981, ch. 349, § 2; T.C.A., § 62-227; Acts 1989, ch. 523, §§ 106, 107; 1995, ch. 171, § 1; 1997, ch. 33, § 14; 1997, ch. 127, § 1.

Cross-References. Director of division of regulatory boards to promulgate rules concerning certain license renewal dates, § 56-1-302.

62-2-308. Denial, suspension or revocation of certificate — Reissuance.

    1. The board may refuse to issue or renew, and revoke or suspend, the certificate of registration of any architect, engineer, landscape architect or registered interior designer registered under this chapter who is found guilty:
      1. Of any fraud or deceit in obtaining a certificate of registration;
      2. Of gross negligence, incompetency or misconduct in the practice of architecture, engineering, landscape architecture or in the use of the title “registered interior designer”;
      3. Of failure to obtain, keep and utilize the registrant's seal as provided in this chapter;
      4. By a court of competent jurisdiction of breach of contract for professional services;
      5. Of any violation of the rules adopted by the board;
      6. Of having the person's right to practice architecture, engineering, landscape architecture or use the title registered interior designer suspended or revoked by another state or national registration board; or
      7. By a court of competent jurisdiction of any felony. However, an action taken under this subdivision (a)(1)(G) shall be subject to the applicable provisions of the Fresh Start Act that are compiled in chapter 76, part 1 of this title.
    2. Any person may prefer charges in writing to the board against any architect, engineer, landscape architect or registered interior designer registered under this chapter on any of the grounds listed in subdivision (a)(1).
    3. The affirmative vote of five (5) or more members of the board shall be necessary in order to revoke or suspend the certificate of registration of any architect, engineer, landscape architect or registered interior designer registered under this chapter.
  1. The board may reissue a certificate of registration to any person whose certificate has been revoked; provided, that five (5) or more members of the board vote in favor of reissuance for reasons the board may deem sufficient.
  2. The board members are officers of the state in carrying out the duties imposed by this chapter and as such have the full measure of governmental immunity provided by law.

Acts 1979, ch. 263, § 28; 1980, ch. 451, § 2; 1980, ch. 627, § 4; 1981, ch. 349, § 3; T.C.A., § 62-228; Acts 1983, ch. 71, § 1; 1988, ch. 990, § 19; 1991, ch. 164, § 24; 1997, ch. 33, §§ 15-17; 2015, ch. 291, §§ 1, 2; 2018, ch. 745, § 2.

NOTES TO DECISIONS

1. Rules of Board of Examiners.

The board of examiners for architects and engineers has broad authority under this section to make reasonable rules relating to misconduct, and so long as the regulation bears some legitimate relationship to the profession involved, it may encompass federal felony convictions. State Bd. of Examiners for Architects & Engineers v. Weinstein, 638 S.W.2d 406, 1982 Tenn. App. LEXIS 394 (Tenn. Ct. App. 1982).

Engineers and architects have the right to rely on the plain, literal and unambiguous language used in the rules which govern their conduct. State Bd. of Examiners for Architects & Engineers v. Weinstein, 638 S.W.2d 406, 1982 Tenn. App. LEXIS 394 (Tenn. Ct. App. 1982).

2. Expert Testimony.

Expert testimony is required, in general, to establish the standards applicable to an allegation under T.C.A. § 62-2-308(a)(1)(B) that an architect's certificate of registration should be revoked or suspended for gross negligence, incompetency, or misconduct, and whether the architect's conduct falls below those standards. Martin v. Sizemore, 78 S.W.3d 249, 2001 Tenn. App. LEXIS 616 (Tenn. Ct. App. 2001).

Expert testimony is generally required to establish, under T.C.A. § 62-2-308(a)(1)(E), whether an architect has violated the Tennessee Board of Examiners for Architects and Engineers' rules of professional conduct by failing to report a client's or contractor's decision to violate applicable state, federal, or local building laws. Martin v. Sizemore, 78 S.W.3d 249, 2001 Tenn. App. LEXIS 616 (Tenn. Ct. App. 2001).

Part 4
Qualifications and Registration — Engineers

62-2-401. General provisions.

  1. The following shall be considered as minimum evidence satisfactory to the board that the applicant is qualified for registration as an engineer:
    1. Graduation from Approved Engineering Curriculum, Experience and Examination.  A graduate of an engineering curriculum of four (4) years or more, approved by the board as being of satisfactory standing, and with a specific record of four (4) years or more of progressive experience on engineering projects of a grade and character that indicates to the board that the applicant may be competent to practice engineering, and passed an examination prepared by the National Council of Examiners for Engineering and Surveying involving the fundamentals of engineering, shall be admitted to an examination prepared by the National Council of Examiners for Engineering and Surveying in the principles and practice of engineering. Upon passing the examination, the applicant shall be granted a certificate of registration to practice engineering in this state; provided, that the applicant is otherwise qualified; or
    2. Long Established Practice.  A graduate of an approved engineering curriculum of four (4) years or more, with a specific record of twelve (12) years or more of progressive experience on engineering projects of a grade and character that indicates to the board that the applicant may be competent to practice engineering shall be admitted to an examination prepared by the National Council of Examiners for Engineering and Surveying, in the principles and practice of engineering. Upon passing the examination, the applicant shall be granted a certificate of registration to practice engineering in this state; provided, that the applicant is otherwise qualified.
  2. Notwithstanding any provision to the contrary, the board may in its discretion grant up to one (1) year of qualified experience obtained in an established cooperative education program that is carried out within the framework of an approved engineering curriculum and that has been approved by the board.

Acts 1979, ch. 263, § 10; 1980, ch. 627, § 6; T.C.A., § 62-210; Acts 1990, ch. 1026, §§ 21, 22; 1993, ch. 132, §§ 3-5; 1995, ch. 113, § 1; 1997, ch. 129, §§ 1, 2; 2007, ch. 215, § 1; 2013, ch. 180, § 1; 2017, ch. 226, § 1; 2017, ch. 348, § 1.

Compiler's Notes. Acts 2017, ch. 344, § 2 provided that the act, which amended this section by adding (a)(4) [now (a)(3)], shall take effect July 1, 2017, and is repealed on June 30, 2019, provided that any applicant satisfying the qualifications established pursuant to the act and who is registered as an engineer shall maintain such registration.

Former (a)(3) read as follows: “A person who holds a master's degree in engineering from an institution with an ABET accredited engineering program approved by the board as being of satisfactory standing, and with a specific record of twenty (20) years or more of progressive experience on engineering projects of a grade and character that indicates to the board that the applicant is competent to practice engineering and who has passed the Fundamentals of Engineering Examination administered by the National Council of Examiners for Engineering and Surveying (NCEES) shall be admitted to an examination prepared by the NCEES, in the principles and practice of engineering. Upon passing the examination, the applicant shall be granted a certificate of registration to practice engineering in this state if the applicant is otherwise qualified.”

Cross-References. Occupation tax on engineers, title 67, ch. 4, part 17.

Qualification and registration generally, title 62, chapter 2, part 3.

Law Reviews.

When the Earth Moves and Buildings Tumble, Who Will Pay? — Tort Liability and Defenses for Earthquake Damage within the New Madrid Fault Zone, 22 Mem. St. U.L. Rev. 1 (1991).

62-2-402. Engineer intern.

The following shall be considered as minimum evidence satisfactory to the board that the applicant is qualified for registration as an engineer intern: a graduate in a curriculum of four (4) years or more leading to a baccalaureate degree in engineering and approved by the board as of satisfactory standing or who is a prospective graduate in good standing in the senior year in such a curriculum, and who passes an examination prepared by the National Council of Examiners for Engineering and Surveying involving the fundamentals of engineering; provided, that the applicant is of good character and repute.

Acts 1979, ch. 263, § 11; 1980, ch. 627, § 7; T.C.A., § 62-211; Acts 1990, ch. 1026, § 21; 1993, ch. 132, § 6; 1995, ch. 113, §§ 1, 4; 2013, ch. 180, § 2.

Cross-References. Prescribed application forms and fees, § 62-2-404.

62-2-403. Teaching as engineering experience.

Engineering teaching with full-time faculty status in a college or university offering an approved engineering curriculum of four (4) years or more may be considered, at the discretion of the board, as engineering experience.

Acts 1979, ch. 263, § 12; T.C.A., § 62-212.

62-2-404. Application form — Fees.

  1. Application for registration as a professional engineer or certification as an engineer intern shall be on a form prescribed and furnished by the board, shall contain statements made under oath showing the applicant's education and a detailed summary of the applicant's technical experience and shall contain references, none of whom may be members of the board.
    1. The initial application fee shall be established by the board and shall accompany the application.
    2. The application fee for engineer intern certification or enrollment shall be established by the board and shall accompany the application.
    3. The registration fee shall be established by the board and shall be paid upon approval of the application.
    4. Should the board deny the issuance of a certificate to any applicant, the application fee shall be retained by the board.

Acts 1979, ch. 263, § 13; T.C.A., § 62-213; Acts 1990, ch. 1026, § 21; 1993, ch. 132, § 7; 1995, ch. 113, § 1; 1998, ch. 612, § 1; 2013, ch. 180, § 3; 2015, ch. 291, § 3.

62-2-405. Examinations.

  1. The examinations will be held at times and places that the board directs. The board shall determine the acceptable grade on examinations.
  2. Written examinations will be given in two (2) sections as follows:
    1. Engineering Fundamentals.  Consists of a National Council of Examiners for Engineering and Surveying prepared examination on the fundamentals of engineering. Passing this examination qualifies the examinee for an engineer intern certificate; provided, that the examinee has met all other requirements for certification required by this chapter; and
    2. Principles and Practices of Engineering.  Consists of a National Council of Examiners for Engineering and Surveying examination on applied engineering. Passing this examination qualifies the examinee for registration as a professional engineer; provided, that the examinee has met the other requirements for registration by this chapter.
  3. A candidate failing an examination may apply for reexamination.

Acts 1979, ch. 263, § 14; T.C.A., § 62-214; Acts 1990, ch. 1026, § 21; 1993, ch. 132, §§ 8, 9; 1995, ch. 113, §§ 1, 5; 2013, ch. 180, § 4; 2015, ch. 291, §§ 4, 5.

62-2-406. Engineers born prior to 1928 exempt from continuing education requirements.

Any continuing education requirements established pursuant to this chapter shall provide that engineers who were born prior to January 1, 1928, shall be exempt from complying with continuing education standards and requirements.

Acts 1998, ch. 754, § 2; 1999, ch. 131, § 1.

Part 5
Qualifications and Registration — Architects

62-2-501. General provisions.

In addition to the successful completion of examination acceptable to the board, the following shall be considered as minimum evidence satisfactory to the board that an applicant is qualified for registration as an architect:

  1. An applicant who is a graduate of a school of architecture where the professional degree curriculum has been accredited and who has completed three (3) years of practical experience in architectural work satisfactory to the board, of which not more than (1) year of architectural practical training and school may be concurrent; or
  2. An applicant who is a graduate of a nonaccredited architectural curriculum, of not less than four (4) years in a curriculum approved by the board, and five (5) years of practical experience in architectural practical training satisfactory to the board, of which not more than one (1) year of architectural work and school may be concurrent;
  3. An applicant who is a graduate of an architecture-related curriculum, of not less than four (4) years in a curriculum approved by the board, and seven (7) years of practical experience in architectural practical training satisfactory to the board, of which not more than one (1) year of architectural work and school may be concurrent.

Acts 1979, ch. 263, § 15; 1980, ch. 627, § 1; T.C.A., § 62-215; Acts 1983, ch. 71, §§ 2, 3; 1988, ch. 546, § 1.

Cross-References. Architecture examinations, § 62-2-504.

Occupation tax on architects, title 67, ch. 4, part 17.

Qualification and registration generally, title 62, chapter 2, part 3.

62-2-502. Degree accreditation of architecture schools.

  1. An accredited degree in architecture shall be one that was accredited by the National Architectural Accrediting Board (N.A.A.B.) at the time of graduation, or graduation was not more than two (2) academic years prior to accreditation. For the purposes of this chapter, a state-supported school of architecture approved by the Tennessee higher education commission is deemed to have an accredited degree curriculum.
  2. Approval of a curriculum that is not accredited under the terms of subsection (a) shall be at the discretion of the board and upon the basis of certified information submitted by the school for the full period attended by the applicant.

Acts 1979, ch. 263, § 16; T.C.A., § 62-216; Acts 1983, ch. 71, §§ 4, 5.

62-2-503. Practical architecture experience credit.

    1. For the purpose of evaluating “practical experience in architectural work,” the board may utilize criteria and standards published by the National Council of Architectural Registration Boards (N.C.A.R.B.).
    2. Every applicant shall have not less than two (2) years of practical experience in an office of a practicing registered architect.
    3. To receive credit for practical training time, the applicant must be employed by the same employer for a period of not less than four (4) consecutive calendar months. The work month is considered to be one hundred forty (140) hours.
    1. Experience acquired while employed by a registered architect practicing as an individual will be credited as practical training only when acquired under the supervision of the practicing architect in the course of the regular practice. Practice as a principal after proper architectural registration by other jurisdictions may be accepted by the board as fulfilling the required experience in the office of a registered practicing architect.
    2. Experience acquired while employed by a partnership or corporation engaging in the practice of architecture will be credited as practical training only when acquired under the supervision of the partner or partners or the officer or officers who shall be the registered architect or registered architects exercising professional and supervisory control over the particular architectural services rendered by the partnership or corporation.
  1. Practical experience as approved by the board and obtained, while working in the United States government, public or private service agencies, covering the fields of education, research and in the service of such agencies as redevelopment authorities, Peace Corps, VISTA, HUD, other United States government and armed forces agencies, multiplied by a factor of .75, may be considered as “practical experience in architectural work.”
  2. Notwithstanding any provision in this section, the board may refuse to credit as practical training experience acquired while employed by an individual or by any type of organization having any interest in any project or building prejudicial to or in conflict with the individual's or organization's professional interest therein.

Acts 1979, ch. 263, § 17; T.C.A., § 62-217; Acts 1983, ch. 71, § 6.

62-2-504. Examinations — Fees.

  1. The written examination for candidates who are eligible for registration under § 62-2-501 may be the current architect registration examination prepared by the National Council of Architectural Registration Boards (N.C.A.R.B.), as accepted by the board.
  2. The board shall be responsible for administering and grading the examinations.
  3. Candidates will retain credit for any parts of the examination passed and may, at the board's discretion, be permitted to have unlimited retakes of any parts of the examination failed.
  4. The deadline date for receipt of applications for examination shall be at the discretion of the board. Each applicant eligible for written examination shall be notified of the dates set for each part of the examination, where it shall be held and the instruments and materials the applicant shall provide.
  5. The initial application fee shall entitle the candidate to one (1) examination of a prescribed number of parts. An additional fee shall be required for the retaking and examination or parts thereof. No refunds will be made.

Acts 1979, ch. 263, § 18; 1980, ch. 627, §§ 2, 3, 8-10; T.C.A., § 62-218; Acts 1983, ch. 71, § 7.

62-2-505. Commencing examinations in other states.

  1. Upon proper application, the board may administer any part of the National Council of Architectural Registration Boards' examinations for candidates who have commenced the series of examinations in another state. Each such application shall be accompanied by an administration fee and endorsement by the architectural registration board of original application. Separate applications shall be filed for each year's examination.
  2. Upon proper application, the board may, at its discretion, credit to a candidate any of the prescribed parts of the National Council of Architectural Registration Boards' examinations successfully passed and properly attested to by another state or possession. The candidate may then take the remaining examination parts as set forth in this section, and, if successfully completed under its jurisdiction, may be registered by the board. The board will extend such transfer privileges only once to each applicant and may, at its discretion, accept transfer of grades only from the state of original application.

Acts 1979, ch. 263, § 19; T.C.A., § 62-219.

62-2-506. Finishing examinations in other states.

  1. When requested to do so, the board may allow candidates who have commenced examinations in Tennessee as outlined under § 62-2-504(a), to finish taking parts of these examinations in any other state; provided, that the other state approved this procedure and has established a method of accomplishing it.
  2. The board may, at its discretion and upon proper application, forward the grades achieved by a candidate in the various sections of the examination given under its jurisdiction to other duly constituted architectural registration boards for their use in evaluating and utilizing the results in registering the individual within their jurisdiction. The request for transfer shall include a statement of concurrence by the other board and a description of the information it will require. The candidate shall state the candidate's need for requesting a transfer and pay a fee established by the board. The transfer shall terminate the candidate's current application to this board for registration.

Acts 1979, ch. 263, § 20; T.C.A., § 62-220; Acts 1983, ch. 71, § 8.

62-2-507. Recording and transferring examination results.

  1. Whether conducted in this state or another state, all records of the examinations shall be returned to the state board of registration of architects where the series of examinations were commenced for recording and licensure when successfully completed.
  2. After the written examination marks are properly recorded in the permanent record book, all examination books and papers over two (2) years old may be destroyed.

Acts 1979, ch. 263, § 21; T.C.A., § 62-221.

62-2-508. Exemption from continuing education requirements for certain architects.

Any continuing education requirements established pursuant to this chapter shall provide that architects who were born prior to January 1, 1928, shall be exempt from complying with continuing education standards and requirements.

Acts 2004, ch. 529, § 1.

Part 6
Corporations, Partnerships and Firms

62-2-601. Practice — Disclosure.

  1. A corporation, partnership or firm offering architectural, engineering or landscape architectural service to the public may engage in the practice of architecture, engineering or landscape architecture in this state; provided, that at least one (1) of the principals or officers of the corporation, partnership or firm is in responsible charge of the practice and is registered as required in this chapter for architects, engineers and landscape architects or is otherwise by this chapter authorized to practice. The same exemptions shall apply to corporations, partnerships and firms as apply to individuals under this chapter.
  2. Corporations, partnerships or firms offering engineering, architectural or landscape architectural service to the public shall file with the board, on a form prescribed by the board, a listing of names and addresses of all principals and officers, as well as the principals or officers duly registered to practice architecture, engineering or landscape architecture in this state who are in responsible charge of the practice in this state. The corporations, partnerships or firms shall advise the board in writing within sixty (60) days of any change of status.

Acts 1979, ch. 263, § 32; T.C.A., § 62-232; Acts 1988, ch. 990, § 20.

62-2-602. Registered architect, engineer or landscape architect in charge of service.

Corporations, partnerships, and firms maintaining any place of business in this state for the purpose of providing or offering to provide architectural, engineering or landscape architectural design to the public shall have, in responsible charge of the service at any and each place of business, a resident registered architect, a registered engineer or a registered landscape architect.

Acts 1979, ch. 263, § 33; T.C.A., § 62-233; Acts 1988, ch. 990, § 21.

Part 7
[Reserved]

Part 8
Qualifications and Registration — Landscape Architects

62-2-801. Qualifications for registration.

In addition to the successful completion of examination acceptable to the board, the following shall be considered as minimum evidence satisfactory to the board that an applicant is qualified for registration as a landscape architect: an applicant who is a graduate of a school of landscape architecture where the professional degree curriculum has been accredited and who has completed three (3) years of practical experience in landscape architectural work satisfactory to the board, of which no more than one (1) year of landscape architectural practical training and school may be concurrent.

Acts 1988, ch. 990, § 22.

Cross-References. Occupation tax on landscape architects, title 67, ch. 4, part 17.

62-2-802. Accredited degree.

An accredited degree in landscape architecture shall be one that was accredited by the Landscape Architectural Accreditation Board (L.A.A.B.) at the time of graduation, or graduation was not more than two (2) academic years prior to accreditation.

Acts 1988, ch. 990, § 22.

62-2-803. Practical experience.

    1. For the purpose of evaluating “practical experience in landscape architectural work,” the board may utilize criteria and standards published by the Council of Landscape Architectural Registration Boards (C.L.A.R.B.).
    2. However, every applicant shall have not less than two (2) years of practical experience in an office of a practicing registered landscape architect.
    3. To receive credit for practical training time, an applicant must be employed by the same employer for a period of no less than four (4) consecutive calendar months. The work month is considered to be one hundred forty (140) hours.
    1. Experience acquired while employed by a registered landscape architect practicing as an individual will be credited as practical training only when acquired under the supervision of the practicing landscape architect in the course of the regular practice. Practice as a principal after proper landscape architectural registration by other jurisdictions may be accepted by the board as fulfilling the required experience in the office of a registered practicing landscape architect.
    2. Experience acquired while employed by a partnership or corporation engaging in the practice of landscape architecture will be credited as practical training only when acquired under the supervision of the partner or partners or the officer or officers who shall be the registered landscape architect or registered landscape architects exercising professional and supervisory control over the particular landscape architectural services rendered by the partnership or corporation.
  1. Practical experience as approved by the board and obtained while working in the United States government, public or private service agencies covering the field of education, research, and in the service of such agencies as redevelopment authorities, Peace Corps, VISTA, HUD, other United States government and armed forces agencies, multiplied by a factor of seventy-five hundredths (.75) may be considered as “practical experience” in landscape architectural work.
  2. Notwithstanding any provision in this section, the board may refuse to credit as practical training experience acquired while employed by an individual or by any type of organization having any interest in any project or building prejudicial to or in conflict with the individual's or organization's professional interest therein.

Acts 1988, ch. 990, § 22.

62-2-804. Examination — Administration, grading, credit, retakes, applications to take examination, fees and refunds.

  1. The written examination for candidates who are eligible for registration under § 62-2-801 may be the current landscape architecture registration examination prepared by the Council of Landscape Architectural Registration Boards (C.L.A.R.B.), as accepted by the board.
  2. The board shall be responsible for administering and grading the examinations.
  3. Candidates will retain credit for any parts of the examination passed and shall be permitted to have unlimited retakes of any parts of the examination failed.
  4. The deadline date for receipt of applications for examination shall be at the discretion of the board. Each applicant eligible for written examination shall be notified of the dates set for each part of the examination, where it shall be held, and the instruments and materials the applicant shall provide.
  5. The initial application fee shall entitle the candidate to one (1) examination of the prescribed number of parts. An additional fee shall be required for the retaking and examination or parts thereof. No refunds will be made.

Acts 1988, ch. 990, § 22.

62-2-805. Transfer privileges.

  1. Upon proper application, the board may administer any part of the Council of Landscape Architectural Registration Board's examinations for candidates who have commenced the series of examinations in another state. Each such application shall be accompanied by an administration fee and endorsement by the landscape architectural registration board of original application. Separate applications as described in § 62-2-804 shall be filed for each year's examination.
  2. Upon proper application and meeting the qualifications outlined in § 62-2-801, the board will credit to a candidate any of the prescribed parts of the Council of Landscape Architectural Registration Board's examinations successfully passed and properly attested to by another state or possession. The candidate may then take the remaining examination parts as set forth herein and, if successfully completed under this jurisdiction, may be registered by the board. The board will extend transfer privileges only once to each applicant and shall accept transfer of grades only from the state of original application.

Acts 1988, ch. 990, § 22.

62-2-806. Furnishing of examination results to other states.

  1. When requested to do so, the board may allow candidates who have commenced examinations in Tennessee as outlined under § 62-2-804(a) to finish taking parts of these examinations in any other state; provided, that the other state approved this procedure and has established a method of accomplishing it.
  2. The board shall upon proper application forward the grades achieved by a candidate in the various sections of the examination given under its jurisdiction to other duly constituted landscape architectural registration boards for their use in evaluating and utilizing the results in registering the individual within their jurisdiction. The request for transfer shall include a statement of concurrence by the other board and a description of the information it will require. The candidate shall state the applicant's need for requesting transfer and pay a fee established by the board. The transfer shall terminate the candidate's current application to this board for registration.

Acts 1988, ch. 990, § 22.

62-2-807. Records of examinations.

  1. Whether conducted in this state or another state, all records of the examinations shall be returned to the state board of registration of landscape architects where the series of examinations were commenced, for recording and licensure when successfully completed.
  2. After the written examination marks are properly recorded in the permanent record book, all examination books and papers over two (2) years old may be destroyed.

Acts 1988, ch. 990, § 22.

Part 9
Interior Designers Title Registration Act

62-2-901. Short title.

This part shall be known and may be cited as the “Interior Designers Title Registration Act.”

Acts 1991, ch. 164, § 2.

Code Commission Notes.

Acts 1997, ch. 33, validated the substitution of “registered interior designer” for “interior designer” throughout this chapter, as amended by Acts 1995, ch. 113, and made such language retroactive to April 19, 1995.

Attorney General Opinions. Interior design by non-registrants under T.C.A. §§ 62-2-101—62-2-906.  OAG 12-46, 2012 Tenn. AG LEXIS 46 (4/3/12).

62-2-902. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Board” means the state board of examiners for architects and engineers; and
  2. “Registered interior designer” means a person registered to use the title “registered interior designer” under this part. The registered interior designer is a person who meets the criteria of education, experience and examination as determined by the board.

Acts 1991, ch. 164, § 3; 1997, ch. 33, §§ 18, 19.

62-2-903. Use of title “registered interior designer.”

    1. No person shall use the title “registered interior designer” unless the person is registered as provided in this part.
    2. This part shall not prohibit any architect registered under parts 1-6 of this chapter from using the title of “registered interior designer.”
  1. Nothing contained in this part shall prevent any person from rendering or offering to render interior design services; provided, that the person shall not be permitted to use or be identified by the title “registered interior designer” unless registered in accordance with this part.

Acts 1991, ch. 164, § 4; 1995, ch. 113, §§ 7-9.

Attorney General Opinions. Constitutionality, OAG 95-004, 1995 Tenn. AG LEXIS 4 (1/19/95).

Interior design by non-registrants under T.C.A. §§ 62-2-101—62-2-906.  OAG 12-46, 2012 Tenn. AG LEXIS 46 (4/3/12).

62-2-904. Application for registration — Requirements — Examination.

    1. Each applicant for registration shall apply to the board.
    2. Except as otherwise provided in this part, each applicant shall take and pass the examination administered by the National Council for Interior Design Qualifications or an equivalent examination as specified by the board.
    3. The applicant shall provide substantial evidence to the board that the applicant has passed the examination required by this part; and:
      1. Is a graduate of a five-year interior design program from an accredited institution and has completed at least one (1) year of diversified interior design experience;
      2. Is a graduate of a four-year interior design program from an accredited institution and has completed at least two (2) years of diversified interior design experience;
      3. Is a graduate of a three-year interior design program from an accredited institution and has completed three (3) years of diversified interior design experience; or
      4. Is a graduate of a two-year interior design program from an accredited institution and has completed four (4) years of diversified interior design experience.
    4. All interior design programs must be accredited by the Foundation for Interior Design Education Research or a program determined by the board to be substantially equivalent to such a program; or an interior design program must be offered by an institution located in this state on April 16, 1991, and the institution is accredited by the Southern Association of Colleges and Schools or licensed by the Tennessee higher education commission.
  1. An applicant for registration as a registered interior designer shall establish to the satisfaction of the board that the applicant:
    1. Is at least twenty-one (21) years of age;
    2. Has not been convicted of an offense that bears directly on the fitness of the applicant to be registered;
    3. Has passed or supplied proof of passage of the examination required by this part; and
    4. Meets any other requirements established by the board.

Acts 1991, ch. 164, § 5; 1993, ch. 58, § 1; 1995, ch. 113, §§ 6, 10.

62-2-905. Registration without examination — Requirements.

Any person who applies for registration and remits the application and initial registration fees prior to January 1, 1994, shall be registered by the board without taking the written examination; provided, that:

  1. The applicant has satisfactory evidence of having used or been identified by the title “interior designer” and has:
    1. Satisfactory interior design experience totaling six (6) years; or
    2. A combination of interior design education and satisfactory interior design experience totaling six (6) years as follows:
      1. A graduate of a four-year interior design program and two (2) years' experience;
      2. A graduate of a three-year interior design program and three (3) years' experience; or
      3. A graduate of a two-year interior design program and four (4) years' experience. The board shall determine if the two-year degree program meets the standards; and
  2. A person shall be deemed to have used or been identified by the title “interior designer” within the meaning of this section if the person demonstrates to the satisfaction of the board that the person was, either on the person's own account, which means self-employed, or in the course of regular employment, rendering or offering to render to another person interior design services as defined in § 62-2-903, or was regularly engaged in the teaching of interior design at an accredited institution recognized by the board leading to a degree in interior design. Any combination of rendering services and teaching totaling six (6) years shall satisfy the requirements of this section.

Acts 1991, ch. 164, § 6.

62-2-906. Corporations, partnerships or firms — Use of title “interior designer” or “registered interior designer.”

  1. A corporation, partnership or firm may use the title “registered interior designer;” provided, that at least one (1) of the principals or officers of the corporation, partnership or firm is in responsible charge of the practice and is registered as a registered interior designer under this chapter.
  2. Any person, firm, company, business, corporation or other entity that was organized and doing business prior to April 16, 1991, and whose corporate name includes the appellation “interior design” may continue to use the corporate name and shall not be required to register pursuant to this chapter.
  3. Nothing in this section shall be construed to authorize persons employed by such entities to use the title “registered interior designer” unless the persons are registered pursuant to this chapter.

Acts 1991, ch. 164, § 7; 1995, ch. 113, § 11; 1997, ch. 33, § 19.

Chapter 3
Barbers

62-3-101. Practice of barbering governed by board of cosmetology and barber examiners — Inspection.

  1. The practice of barbering shall be governed by the state board of cosmetology and barber examiners, created by § 62-4-103 and this chapter.
  2. Inspections of barber shops shall be performed by inspectors provided and supervised by the director of the state board of cosmetology and barber examiners. Annual inspections of barber schools and colleges may be performed by the inspectors or members of the board.

Acts 1929, ch. 118, § 18; mod. Code 1932, § 7134; Acts 1963, ch. 335, § 1; 1967, ch. 118, § 1; 1979, ch. 379, § 1; T.C.A. (orig. ed.), § 62-301; Acts 1986, ch. 921, § 1; 1988, ch. 1013, § 27; 2001, ch. 99, § 1; 2010, ch. 934, § 1; 2014, ch. 964, §§ 7, 13.

Compiler's Notes. The state board of cosmetology and barber examiners, created by this section and § 62-4-103, terminates June 30, 2022. See §§ 4-29-112, 4-29-243.

Acts 2014, ch. 964, § 14 provided that notwithstanding § 4-29-112 or any other law to the contrary, the board of cosmetology and the board of barber examiners shall terminate and shall cease to exist upon July 1, 2014, simultaneous with the establishment of the state board of cosmetology and barber examiners, created by §§ 62-4-103 and 62-3-101.

Acts 2014, ch. 964, § 15 provided that it is the intent of the general assembly that the rules of the board of cosmetology and the rules of the board of barber examiners shall be deemed to be the rules of the state board of cosmetology and barber examiners created by the act, and to the extent that such rules conflict the board shall promulgate new rules to make the application thereof applicable to the respective professions.

Acts 2014, ch. 964, § 16 provided that all records and reports of the respective boards in existence prior to July 1, 2014, shall be transferred to the state board of cosmetology and barber examiners.

Acts 2016, ch. 561, § 3 provides that the division of state audit shall return to the state board of cosmetology and barber examiners in 2017 for the purpose of conducting a question and answer review of the board. The division of state audit shall complete the question and answer review within a period sufficient to allow for its timely review by the government operations joint subcommittee on commerce, labor, transportation, and agriculture.

Cross-References. State examining boards, general provisions, title 4, ch. 19.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Barbering, §  2.

Law Reviews.

Constitutional Law — Act Fixing Prices for Barber Work, 16 Tenn. L. Rev. 241.

NOTES TO DECISIONS

1. Constitutionality.

Acts 1937, ch. 236 which authorized the state board of barber examiners to fix a price schedule for barber work was invalid as violative of U.S. Const., amend. 5 and 14, Tenn. Const., art. I, § 8 and art. XI, § 8. State v. Greeson, 174 Tenn. 178, 124 S.W.2d 253, 1938 Tenn. LEXIS 78 (1939).

2. Police Power.

The right of the state, under its police power, to regulate barbers, is firmly established. This right, however, is not absolute, but one that must be exercised in a reasonable manner and so as not to interfere with private rights. State v. Greeson, 174 Tenn. 178, 124 S.W.2d 253, 1938 Tenn. LEXIS 78 (1939).

3. Purpose.

The barber law was enacted to promote the health and safety of the public and not to promote its general welfare. Burson v. Moore, 224 Tenn. 55, 450 S.W.2d 309, 1970 Tenn. LEXIS 300 (1970).

4. Regulating Hours.

An order of the state board of barber examiners fixing the time of opening and closing of barber shops was invalid as an unreasonable and unnecessary exercise of police power. State v. Greeson, 174 Tenn. 178, 124 S.W.2d 253, 1938 Tenn. LEXIS 78 (1939).

62-3-102. [Reserved.]

62-3-104. [Reserved.]

Any one (1) or any combination of the following practices, when done for payment, directly or indirectly, or without payment, for the public generally, constitute the practice of barbering:

  1. Shaving or trimming the beard;
  2. Cutting or styling the hair;
  3. Giving facial and scalp massages or treatments with oils, creams, lotions or other preparations either by hand or mechanical appliances;
  4. Singeing, curling, shampooing, coloring, bleaching or straightening the hair or applying hair tonics;
  5. Cutting, fitting, measuring and forming head caps for wigs or hair pieces;
  6. Hair weaving, excluding medical or surgical procedures;
  7. Applying cosmetic preparations, antiseptics, powders, oils, clays or lotions to scalp, face, neck or other parts of the body; or
  8. Manicuring and nail care.

Acts 1929, ch. 118, § 2; Code 1932; § 7119; Acts 1951, ch. 231, § 1; 1975, ch. 206, § 1; 1978, ch. 816, § 1; T.C.A. (orig. ed.), § 62-306; Acts 1982, ch. 870, § 1; 1986, ch. 921, § 2.

62-3-106. [Reserved.]

No person shall practice or attempt to practice barbering in this state, or serve or attempt to serve as a barber instructor or technician in this state, without a valid certificate of registration issued pursuant to this chapter by the state board of cosmetology and barber examiners.

Acts 1929, ch. 118, § 1; mod. Code 1932, § 7117; Acts 1975, ch. 146, § 2; T.C.A. (orig. ed.), § 62-307; Acts 1986, ch. 921, § 3; 2014, ch. 964, § 13.

Cross-References. Penalty for violations, § 62-3-130.

Law Reviews.

Power of Administrative Agencies to Compel Testimony in Tennessee (Seymour Samuels, Jr.), 16 Tenn. L. Rev. 928.

NOTES TO DECISIONS

1. Constitutionality.

This statute upheld as constitutional. State ex rel. Melton v. Nolan, 161 Tenn. 293, 30 S.W.2d 601, 1929 Tenn. LEXIS 57 (1930).

62-3-108. Persons exempt.

The following persons are exempt from this chapter while in the proper discharge of their professional duties:

  1. Persons authorized by the law of this state to practice medicine and surgery;
  2. Commissioned medical or surgical officers of the United States army, navy, air force or marine hospital service;
  3. Registered nurses;
  4. Duly registered cosmetologists operating in accordance with chapter 4 of this title; and
  5. Any person whose occupation or practice is confined solely to shampooing, as defined in § 62-4-102.

Acts 1929, ch. 118, § 4; mod. Code 1932, § 7121; modified; Acts 1975, ch. 146, § 3; T.C.A. (orig. ed.), § 62-308; Acts 1986, ch. 921, § 4; 2017, ch. 227, § 1.

Cross-References. Exemption from cosmetologists' licensing law, § 62-4-109.

62-3-109. Shop registration, styling, supervision and management — Barbering in other locations.

  1. It is unlawful to operate a barber shop or barber styling shop without a valid certificate of registration issued by the board. Application for the certificate shall be made upon application forms furnished by the board.
  2. Prior to the opening of any new barber or styling shop or change of location of an existing barber or styling shop, an inspector of the board shall inspect and approve the shop. Inspections of shops shall be made within ten (10) days of receipt of a request for an inspection, with the request to be accompanied by payment for the inspection. If the ownership of a shop changes, the new owner may not operate the shop more than thirty (30) days after the date of the change of ownership unless, within the thirty-day period, the new owner submits an application for a license to operate the shop and has paid the proper fees. Any change of location or ownership or new shop shall be reported to the office of the board immediately.
    1. As used in this chapter, unless the context otherwise requires:
      1. “Designated manager” means a person licensed under chapter 3 or chapter 4 of this title in at least one (1) discipline that a shop is licensed to offer who serves in a supervisory or managerial capacity of the shop in the absence of the manager; and
      2. “Manager” means a person licensed under chapter 3 or chapter 4 of this title in at least one (1) discipline that a shop is licensed to offer who serves in a supervisory or managerial capacity in the shop whose information is filed with the board.
    2. Each shop licensed by the board shall designate a manager. The shop shall submit the name and license information of its manager upon application and renewal.
    3. It is unlawful to operate a shop unless it is, at all times, under the direction of a manager or designated manager. While on duty, the manager or designated manager shall be responsible for the shop's compliance with this chapter and the rules of the board. The board may require the name of the shop's manager or designated manager to be posted in such form and location as the board may prescribe.
    4. The manager and designated manager may manage those who practice disciplines in cosmetology or barbering other than the discipline in which the manager or designated manager is licensed; however, the manager or designated manager shall only practice within the field that the person is licensed.
  3. Except as provided in § 62-3-108, it is unlawful to perform any act constituting barbering under § 62-3-105 in any place other than a duly registered barber shop, barber styling shop, barber school or college, licensed funeral establishment, registered mobile shop, nursing home, hospital health facilities or in the residence of the person to whom the services are being rendered pursuant to § 62-3-135.

Acts 1929, ch. 118, § 1; Code 1932, § 7118; Acts 1980, ch. 703, § 4; T.C.A. (orig. ed.), § 62-309; Acts 1982, ch. 870, § 2; 1986, ch. 921, §§ 5-7; 1990, ch. 963, § 4; 1996, ch. 895, §§ 1, 2; 2015, ch. 402, § 1; 2016, ch. 838, § 4; 2016, ch. 983, § 2; 2017, ch. 102, § 1.

Compiler's Notes. Acts 2015, ch. 402, § 34 provided that the board of cosmetology and barber examiners is authorized to promulgate rules to effectuate the purposes of this act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2017, ch. 102, § 3 provided that the board of cosmetology and barber examiners is authorized to promulgate rules to effectuate the purposes of the act. All rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Cross-References. Penalty for violations, § 62-3-130.

Textbooks. Tennessee Jurisprudence, 24 Tenn. Juris., Unemployment Compensation, § 5.

NOTES TO DECISIONS

1. Purpose.

The objective of this section is to have a person responsible to the board for health and safety and the fact that the permit to operate a shop was issued in the name of the owner of the shop did not, of itself, make such owner the employer of the barbers to whom he leased shop space. Burson v. Moore, 224 Tenn. 55, 450 S.W.2d 309, 1970 Tenn. LEXIS 300 (1970).

62-3-110. Qualifications for technicians and master barbers.

    1. Any person who desires a certificate of registration as a technician, authorizing the person to apply tints or dyes to the hair, shampoo hair, manicure nails and apply cosmetic preparations, antiseptics, powders, oils, clays or lotions to scalp, face, neck or other parts of the body, shall submit an application for examination to the state board of cosmetology and barber examiners on the prescribed form.
    2. The application shall be accompanied by proof of satisfactory completion of a course in a registered barber school or college of no less than three hundred forty (340) hours of continuous instruction, including no more than eight (8) hours per day and forty (40) hours per week in the following subjects:
      1. Scientific fundamentals of shampooing, tinting, dyeing, manicuring, the application of cosmetic preparations, hygiene and bacteriology;
      2. Histology of the hair and hair structure; and
      3. Massaging and manipulation of the muscles of the arms, hands and scalp.
    3. The application shall also contain proof that:
      1. The applicant is at least seventeen (17) years of age; and
      2. The applicant has received a high school diploma or, in lieu of a high school diploma, has received a GED(R) or HiSET(R) diploma.
  1. Any person who desires a certificate of registration as a master barber shall submit an application for examination to the state board of cosmetology and barber examiners on the prescribed form. The application shall be accompanied by proof that the applicant:
    1. Is at least seventeen (17) years of age;
    2. Has received a high school diploma or, in lieu of a high school diploma, has received a GED(R) or HiSET(R) diploma; and
    3. Either:
      1. Has satisfactorily completed a course of one thousand five hundred (1,500) hours in a registered barber school or college; or
      2. Holds a valid Tennessee cosmetology license and has completed three hundred (300) hours in a registered barber school or college regarding the fundamentals of straight razor shaving and barbering technique.

Acts 1929, ch. 118, § 5; Code 1932, § 7122; Acts 1961, ch. 67, § 1; 1967, ch. 249, § 1; impl. am. Acts 1971, ch. 90, § 1; impl. am. Acts 1971, ch. 131, § 1; Acts 1975, ch. 146, § 4; T.C.A. (orig. ed.), § 62-310; Acts 1982, ch. 870, § 3; 1986, ch. 921, §§ 8, 9; 1996, ch. 895, §§ 3-7; 2014, ch. 964, § 13; 2015, ch. 402, §§ 2, 3; 2017, ch. 226, § 2.

Compiler's Notes. Acts 2015, ch. 402, § 34 provided that the board of cosmetology and barber examiners is authorized to promulgate rules to effectuate the purposes of this act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

62-3-111. Duties of owner and manager of shop as to persons performing barbering services and conformance to chapter.

The owner and manager of a shop shall be responsible for ensuring that:

  1. Only persons duly licensed by the board perform barbering services in the shop;
  2. Persons duly licensed by the board perform only those services authorized by their licenses; and
  3. The shop and its operation conform to this chapter and any rules duly promulgated under this chapter.

Acts 2015, ch. 402, § 11.

Compiler's Notes. Former § 62-3-111 (Acts 1929, ch. 118, § 6; Code 1932, § 7123; Acts 1951, ch. 231, § 2; 1961, ch. 67, § 2; 1965, ch. 267, § 1; 1967, ch. 249, § 2; 1975, ch. 146, § 5; 1979, ch. 379, § 8; 1980, ch. 703, § 1; T.C.A. (orig. ed.), § 62-311), concerning qualifications for apprentices, was repealed by Acts 1982, ch. 870, § 15. Apprentices now licensed as master barbers, see § 62-3-110.

Acts 2015, ch. 402, § 34 provided that the board of cosmetology and barber examiners is authorized to promulgate rules to effectuate the purposes of this act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

62-3-112. Time within which course of instruction to be completed.

A barber student shall have seven (7) years from the date the student originally enrolls in a barbering school to complete the required courses and number of hours required when the student originally enrolls. If the student fails to complete the course of instruction within that time period, the board may require the student to complete additional courses or attain an additional number of hours prior to issuing a license to the person.

Acts 2015, ch. 402, § 12.

Compiler's Notes. Former 62-3-112 (Acts 1929, ch. 118, § 7; mod. Code 1932, § 7124; T.C.A. (orig. ed.), § 62-312; Acts 1982, ch. 870, § 4), concerning application for examination, was repealed by Acts 1996, ch. 895, § 14.

Acts 2015, ch. 402, § 34 provided that the board of cosmetology and barber examiners is authorized to promulgate rules to effectuate the purposes of this act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

62-3-113. Examination.

The board shall conduct examinations of applicants for certificates of registration no less than four (4) times each year, at times and places that the board may determine. The examination of an applicant for a certificate of registration as a master barber shall consist of a theory examination and a practical demonstration as determined by the board.

Acts 1929, ch. 118, § 8; mod. Code 1932, § 7125; Acts 1975, ch. 146, § 6; T.C.A. (orig. ed.), § 62-313; Acts 1986, ch. 921, § 10; 2016, ch. 991, § 11.

62-3-114. Reciprocity for technicians and barber instructors.

A person who holds a valid license or certificate of registration as a technician or barber instructor under the laws of a state, the District of Columbia, a territorial possession of the United States or a foreign country may be issued a certificate of registration as a technician or barber instructor if the board makes an individual determination that the person has substantially met the qualifications for registration in this state.

Acts 1929, ch. 118, § 10; mod. Code 1932, § 7127; Acts 1951, ch. 231, § 4; 1965, ch. 267, § 3; 1967, ch. 249, § 3; 1975, ch. 146, §§ 9, 10; T.C.A. (orig. ed.), § 62-315; T.C.A., § 62-3-115; Acts 1982, ch. 870, § 5; 1986, ch. 921, § 11.

62-3-115. Reciprocity of master barbers.

The board may issue a certificate of registration as a master barber without examination to a nonresident who:

  1. Holds a valid license or certificate of registration as a master barber in another jurisdiction that:
    1. Has substantially the same requirements for licensing or registration of barbers as are contained in this chapter; or
    2. Has entered into a reciprocal agreement with the board permitting licenses or certificates of registration to be issued without examination to master barbers resident in and registered by this state;
  2. Proves by sworn affidavits that the nonresident has continuously and lawfully practiced as a barber in another jurisdiction for the immediately preceding five (5) years; or
  3. Has held a military occupational skill (MOS) rating in a branch of the military service for two (2) or more years that required the person to perform the duties of a barber.

Acts 1929, ch. 118, § 10; mod. Code 1932, § 7127; Acts 1951, ch. 231, § 4; 1961, ch. 214, § 1; 1963, ch. 349, § 1; 1965, ch. 267, § 2; 1967, ch. 249, § 3; 1975, ch. 146, §§ 7, 8; T.C.A. (orig. ed.), § 62-314; T.C.A., § 62-3-114; Acts 1982, ch. 870, § 6; 1986, ch. 921, §§ 12, 13; 1988, ch. 674, § 2; 2001, ch. 99, § 2; 2016, ch. 838, § 8.

62-3-116. Issuance of certificate.

Whenever this chapter has been complied with, the board shall issue a certificate of registration.

Acts 1929, ch. 118, § 9; Code 1932, § 7126; Acts 1975, ch. 146, § 11; T.C.A. (orig. ed.), § 62-316.

62-3-117. Retired inactive licenses.

Any person licensed under this chapter may retire the license by submitting a form prescribed by the board accompanied by the current active license certificate and a fee in an amount set by rules promulgated by the board. Upon receipt of an acceptable application to retire the license, the board shall issue a retired inactive license certificate to the retiree. The holder of a retired license shall not be entitled to engage in the practice of barbering until the person's license is reactivated in a manner approved by the board.

Acts 1996, ch. 657, § 1; 2015, ch. 402, § 4.

Compiler's Notes. Former § 62-3-117 (Acts 1929, ch. 118, § 3; Code 1932, § 7120; Acts 1975, ch. 146, § 12; T.C.A. (orig. ed.), § 62-318), concerning apprentice barbers, was repealed by Acts 1986, ch. 921, § 25. See § 62-3-110.

Acts 2015, ch. 402, § 34 provided that the board of cosmetology and barber examiners is authorized to promulgate rules to effectuate the purposes of this act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

62-3-118. Display of certificate.

Every holder of a certificate of registration shall:

  1. Display the certificate in a conspicuous place adjacent to or near the holder's work chair; and
  2. Promptly notify the board of any change of mailing address within thirty (30) calendar days of such change.

Acts 1929, ch. 118, § 12; Code 1932, § 7128; T.C.A. (orig. ed.), § 62-319; Acts 2015, ch. 402, § 5.

Compiler's Notes. Acts 2015, ch. 402, § 34 provided that the board of cosmetology and barber examiners is authorized to promulgate rules to effectuate the purposes of this act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Cross-References. Penalty for failure to display, § 62-3-130.

62-3-119. Renewal or restoration of registration.

Certificates of registration of master barbers, technicians and instructors shall be subject to renewal or restoration in accordance with § 62-3-129.

Acts 1929, ch. 118, § 13; mod. Code 1932, § 7129; Acts 1961, ch. 64, § 1; 1967, ch. 249, § 4; 1975, ch. 146, § 13; 1978, ch. 817, § 1; 1980, ch. 703, § 2; T.C.A. (orig. ed.), § 62-320; Acts 1986, ch. 921, § 14.

Cross-References. Director of division of regulatory boards to promulgate rules concerning certain license renewal dates, § 56-1-302.

62-3-120. Automatic renewal for inductees in armed forces.

The certificate of registration of any barber, barber instructor or technician who is inducted into the armed forces of the United States shall be automatically renewed at no charge for the duration of period of service.

Acts 1951, ch. 231, § 7a (Williams, § 7129.1); T.C.A. (orig. ed.), § 62-321; Acts 1986, ch. 921, § 15.

62-3-121. Ground for refusal, suspension or revocation of certificate.

  1. The board may either refuse to issue or renew or may suspend or revoke any certificate of registration for any one (1) or combination of the following causes:
    1. Conviction of a felony for the commission of an offense that bears directly on the person's fitness to practice competently, as determined by the board;
    2. Gross malpractice or gross incompetency;
    3. Continued practice by a person knowingly having an infectious or contagious disease;
    4. Advertising by means of knowingly false or deceptive statements;
    5. Habitual drunkenness or habitual addiction to the use of morphine, cocaine or other habit-forming drug;
    6. Immoral or unprofessional conduct; or
    7. A violation of this chapter or any rules adopted under this chapter.
  2. An action taken under this section shall be subject to the applicable provisions of the Fresh Start Act that are compiled in chapter 76, part 1 of this title.

Acts 1929, ch. 118, § 14; Code 1932, § 7130; modified; Acts 1979, ch. 379, § 5; T.C.A. (orig. ed.), § 62-322; Acts 1982, ch. 870, §§ 7, 8; 1986, ch. 921, § 16; 2015, ch. 333, § 1; 2016, ch. 719, § 3; 2018, ch. 745, § 3.

Compiler's Notes. Acts 2015, ch. 333,  § 2, provided that the act, which amended (1), shall apply to actions by the board on or after April 28, 2015.

Acts 2016, ch. 719, § 11 provided that this act, which amended this section, shall take effect on April 6, 2016 and shall apply to actions instituted by state entities on or after April 6, 2016.

Law Reviews.

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253.

62-3-122. Barber schools — Certificate required.

It is unlawful for any person, firm or corporation to own, operate or conduct a barber school or college of barbering without a certificate of registration issued by the board and paying the fee required for registration as provided in this chapter.

Acts 1951, ch. 231, § 3 (Williams, § 7123); T.C.A. (orig. ed.), § 62-325.

62-3-123. Certification of barbering schools — Instructions — Services — Reporting.

  1. Any person, firm or corporation desiring a certificate of registration to own, operate or conduct a barber school or college of barbering shall submit an application to the state board of cosmetology and barber examiners on the prescribed form. In order to be eligible to receive the certificate, the applicant must:
    1. Require, as a prerequisite to graduation, a course of no less than one thousand five hundred (1,500) hours of continuous instruction, including no more than ten (10) hours per day, six (6) days per week, or forty-eight (48) hours per week, in the following subjects:
      1. Scientific fundamentals of barbering, hygiene and bacteriology, histology of the hair, skin, muscles and nerves;
      2. Structure of the head, face and neck;
      3. Elementary chemistry relating to sterilization and antiseptic;
      4. Diseases of the skin, hair and glands;
      5. Massaging and manipulating of the muscles; and
      6. All of the practices of barbering included in § 62-3-105;
    2. Provide at least one (1) registered barber instructor or barber instructor assistant for every fifteen (15) students enrolled; and
    3. Provide a true and exact copy of the standard contract that each prospective student shall be required to execute for enrollment.
  2. No barber student may render clinical services on patrons until the student has completed at least one hundred (100) hours of instruction.
  3. No barber school or college may operate without the presence of a registered barber instructor.
  4. A school shall employ at least one (1) licensed barber instructor for each barber instructor assistant who shall be under the personal supervision of the licensed barber instructor.
  5. Each school, including any public school conducting a vocational education program in the field of barbering, shall:
    1. Keep a daily record of the attendance of each student enrolled; and
    2. Submit to the board on the prescribed form a monthly progress report on each student enrolled.
  6. Notwithstanding subsection (a), the board shall promulgate rules enabling a barber school or college to develop courses of instruction pursuant to subsection (a) that require a student to earn:
    1. Fifty percent (50%) of the hours needed for a specific certificate of registration pursuant to §§ 62-3-110 and 62-3-124, from classroom instruction in a registered barber school or college; and
    2. Fifty percent (50%) of the hours needed for a specific certificate of registration pursuant to §§ 62-3-110 and 62-3-124, from apprenticing under the supervision of a person:
      1. Who has a certificate of registration issued under §§ 62-3-110 and 62-3-124;
      2. Who has at least ten (10) years of experience; and
      3. Who is in good standing with the board.

Acts 1951, ch. 231, § 3 (Williams, § 7123); 1965, ch. 267, § 4; 1967, ch. 249, § 5; 1971, ch. 346, § 1; T.C.A. (orig. ed.), § 62-326; Acts 1982, ch. 870, § 9; 1986, ch. 921, §§ 17-19; 1988, ch. 674, § 3; 1990, ch. 963, §§ 1, 2; 1996, ch. 895, § 9; 2014, ch. 863, § 1; 2014, ch. 964, § 13; 2015, ch. 402, §§ 6, 7; 2016, ch. 991, §§ 1, 4.

Compiler's Notes. Acts 2014, ch. 863, § 4, effective May 1, 2014, and expiring June 30, 2015, provided that the board of barber examiners may promulgate rules to effectuate the provisions of Section 1 of this act, which added former subsection (e) to this section. All such rules shall be promulgated in accordance with Tennessee Code Annotated, title 4, chapter 5.

Acts 2015, ch. 402, § 34 provided that the board of cosmetology and barber examiners is authorized to promulgate rules to effectuate the purposes of this act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

NOTES TO DECISIONS

1. Charging Nominal Fees.

The fact that defendant in operation of a barber college permitted advanced students to charge a nominal fee to the public for services rendered did not cause such school to fall within the classification of a barber shop so as to limit it to the employment of two apprentices at any one time. Ramsey v. Cantrell, 170 Tenn. 164, 93 S.W.2d 632, 1935 Tenn. LEXIS 122 (1936).

62-3-124. Instructors — Certificates of registration — Continuing education.

  1. The board shall issue a certificate of registration as a barber instructor to a person who:
      1. Files an application with the board in the form that the board may prescribe, accompanied by the examination fee required by § 62-3-129;
      2. Holds a valid certificate of registration as a master barber and has been duly registered as a master barber for a period of at least three (3) consecutive years prior to filing an application to be an instructor;
      3. Has completed the twelfth grade in an accredited school or the equivalent;
      4. Completes an examination prescribed by the board; and
      5. For all applications submitted on or after July 1, 2017, completes a three-hundred-hour instructor training program at a board-certified barber school; or
      1. Files an application with the board on or before June 30, 2017, in a form prescribed by the board, accompanied by the examination fee required by § 62-3-129;
      2. Holds a valid certificate of registration as a master barber and has completed a four-hundred-fifty-hour instructor training program at a board-certified barber school;
      3. Has completed the twelfth grade in an accredited school or the equivalent; and
      4. Completes an examination prescribed by the board.
  2. After registration, each barber instructor shall biennially submit to the board satisfactory proof of attendance in a barber instructor training program of at least sixteen (16) hours' duration, approved by the board; however, the board may, in its discretion, grant up to one (1) additional year for submission of such proof when an instructor satisfactorily demonstrates a medical hardship, a death in the immediate family or entitlement to automatic renewal of registration under § 62-3-120.
  3. A certificate of registration as a barber instructor shall become invalid if the registrant:
    1. Ceases to hold a valid certificate of registration as a master barber; or
    2. Fails to comply with subsection (b).
    1. The board shall issue a certificate of registration as a barber instructor assistant to a person who:
      1. Files an application with the board in the form that the board may prescribe accompanied by the fee required by § 62-3-129;
      2. Holds a valid certificate of registration as a master barber and is currently enrolled in a four hundred fifty-hour instructor training program at a board-certified barber school; and
      3. Has completed the tenth grade in an accredited school or the equivalent.
    2. A barber instructor assistant shall not be employed as such for more than three (3) years.
    3. All certificates or renewals of certificates shall expire on September 1 and shall become invalid thereafter.

Acts 1951, ch. 231, § 3 (Williams, § 7123); Acts 1965, ch. 267, § 5; 1967, ch. 177, § 1; 1967, ch. 249, § 6; impl. am. Acts 1971, ch. 161, § 3; Acts 1980, ch. 703, § 3; T.C.A. (orig. ed.), § 62-327; Acts 1982, ch. 870, § 10; 1984, ch. 547, § 1; 1986, ch. 921, §§ 20, 21; 1990, ch. 963, § 3; 1996, ch. 895, §§ 10, 11; 2001, ch. 99, § 3; 2014, ch. 964, § 13; 2015, ch. 402, § 8; 2016, ch. 991, § 5.

Compiler's Notes. Acts 2015, ch. 402, § 34 provided that the board of cosmetology and barber examiners is authorized to promulgate rules to effectuate the purposes of this act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Cross-References. Instructor examination and certificate of registration fees, § 62-3-129.

62-3-125. Signs displayed by schools.

No barber school or college shall be allowed to display a barber pole or any other sign customarily used by a barber shop, but must have a sign with letters no less than five inches (5") high indicating barber school or college and shall display a sign indicating that the work there is done by students exclusively.

Acts 1951, ch. 231, § 3 (Williams, § 7123); T.C.A. (orig. ed.), § 62-328.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Barbering, § 1.

62-3-126. Payments to students — Business for profit prohibited.

No barber school or college shall be approved by the board that will pay any wages, commissions or gratuities of any kind to barber students for barber work while in training or while enrolled as students in the school or college, and no barber business for profit shall be operated by or in connection with any barber school or college.

Acts 1951, ch. 231, § 3 (Williams, § 7123); T.C.A. (orig. ed.), § 62-329.

62-3-127. Suspension or revocation of school certificate.

The board has the authority to revoke or suspend the certificate of registration of any barber school or college of barbering for failure to comply with the requirements set out in this chapter.

Acts 1951, ch. 231, § 3 (Williams, § 7123); Acts 1980, ch. 451, § 3; T.C.A. (orig. ed.), § 62-330.

62-3-128. Rules and regulations — Enforcement powers of board.

  1. The board has the authority to make reasonable rules and regulations for the administration of this chapter and prescribe sanitary requirements for barber shops and barber schools, subject to the approval of the department of health.
  2. Barber shops and barber schools are subject to inspection at any time during business hours.
  3. A copy of the rules and regulations adopted by the board shall be furnished by it to the owner or manager of each barber shop and barber school, and the copy shall be posted in a conspicuous place in each barber shop or barber school.
  4. The results of any inspection of a barber shop or barber school may be reduced to a grade or rating by the inspector in accordance with general regulations of the board. The grade or rating shall be furnished to the shop or school and posted in a conspicuous place in the shop or school.
  5. Each barber school, college or shop shall be inspected at least annually.

Acts 1929, ch. 118, § 20; mod. Code 1932, § 7138; Acts 1965, ch. 268, § 1; 1979, ch. 379, § 3; T.C.A. (orig. ed.), § 62-331; Acts 1982, ch. 870, § 11; 1986, ch. 921, § 22.

NOTES TO DECISIONS

1. Barber Schools.

By this section the statute regulating barbers especially recognizes the existence of barber schools. Ramsey v. Cantrell, 170 Tenn. 164, 93 S.W.2d 632, 1935 Tenn. LEXIS 122 (1936).

62-3-129. Fees and penalties — Late renewal — System of renewals.

  1. The board shall prescribe fees, late fees and penalties, pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, for all permits, certificates and registrations issued pursuant to this chapter.
    1. All certificates of registration for master barbers and barber instructors shall expire biennially on the anniversary of the original date of licensure.
    2. All certificates of registration for barber shops shall expire biennially on the anniversary of the original date of licensure.
    3. All certificates of registration for technicians shall expire biennially on the anniversary of the original date of licensure.
    4. All certificates of registration for barber schools and colleges shall expire annually on the anniversary of the original date of licensure.
    5. All certificates of registration for master barbers, barber instructors, technicians, barber shops and barber schools and colleges may be renewed up until one (1) year from the expiration date of the certificate of registration upon the payment of the specified fees and penalties.
    1. A certificate of registration for a master barber that has been expired for more than one (1) year but less than three (3) years may be reinstated upon payment of twice the fees that would have been collected for the timely and continuous renewal of the certificate. For the reinstatement of a certificate of registration for a master barber license that has been expired for more than three (3) years, a new application for examination and the examination fee shall be submitted. If successful, the applicant shall pay the specified license fee. The examination shall consist of a practical examination before the board. The applicant shall not be required to meet the qualifications for a certificate of registration established in § 62-3-110(b)(2) and (3).
    2. For the reinstatement of a certificate of registration for a technician that has been expired for more than one (1) year, a new application and the examination fee shall be submitted. If successful, the applicant shall pay the specified license fee. The examination shall consist of a practical examination before the board. The applicant shall not be required to meet the qualifications for a certificate of registration established in § 62-3-110(a).
    3. For the reinstatement of the certificate of registration for a barber instructor that has been expired for more than one (1) year, the applicant shall pay a fee of twice the amount that would have been collected for timely and continuous renewal of the certificate.
    4. For the reinstatement of the certificate of registration for a barber shop that has been expired for more than one (1) year, the applicant shall pay a fee of twice the amount that would have been collected for timely and continuous renewal of the certificate.

Acts 1929, ch. 118, § 16; Code 1932, § 7132; Acts 1951, ch. 231, § 5; 1963, ch. 348, §§ 1-4; 1965, ch. 268, § 2; 1967, ch. 249, § 7; 1971, ch. 396, § 1; 1975, ch. 146, §§ 14-16; 1975, ch. 206, § 2; 1978, ch. 816, § 2; 1978, ch. 935, §§ 1-3; 1979, ch. 379, §§ 6, 7; 1981, ch. 158, § 1; 1981, ch. 416, § 2; T.C.A. (orig. ed.), § 62-332; Acts 1982, ch. 870, §§ 12, 13; 1984, ch. 547, § 2; 1986, ch. 921, § 23; 1988, ch. 674, §§ 4, 5; 1989, ch. 360, § 3; 1989, ch. 523, § 108; 1990, ch. 1026, § 37; 2001, ch. 99, §§ 4-6; 2015, ch. 402, § 9.

Compiler's Notes. Acts 2015, ch. 402, § 34 provided that the board of cosmetology and barber examiners is authorized to promulgate rules to effectuate the purposes of this act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Cross-References. Liability of professional societies, title 62, ch. 50, part 1.

Renewal of registrations, § 62-3-119.

62-3-130. Penalty for violations.

Each of the following constitutes a Class B misdemeanor:

  1. The violation of any of the provisions of this chapter;
  2. Permitting any person under one's supervision or control to engage in any practice of barbering without a valid certificate of registration issued by the state board of cosmetology and barber examiners;
  3. Obtaining or attempting to obtain a certificate of registration for money other than the required fee or any other thing of value or by fraudulent misrepresentations;
  4. Practicing or attempting to practice by fraudulent misrepresentations;
  5. The willful failure to display a certificate of registration as required by § 62-3-118; and
  6. Failure to comply with a lawful order of the board.

Acts 1929, ch. 118, § 17; Code 1932, § 7133; Acts 1965, ch. 268, § 3; T.C.A. (orig. ed.), § 62-333; Acts 1982, ch. 870, § 14; 1986, ch. 921, § 24; 1989, ch. 591, § 113; 1996, ch. 895, § 12; 2014, ch. 964, § 13; 2015, ch. 402, § 10.

Compiler's Notes. Acts 2015, ch. 402, § 34 provided that the board of cosmetology and barber examiners is authorized to promulgate rules to effectuate the purposes of this act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Cross-References. Penalty for Class B misdemeanor, § 40-35-111.

Law Reviews.

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253.

62-3-131. [Reserved.]

No animals, except service animals, fish for decorative purposes, and birds in cages, shall be permitted in any barber shop. Bird cages in barber shops shall be cleaned daily. Departmental inspectors shall ensure bird cages are cleaned sufficiently to prevent any hazard to human health or well-being.

Acts 2010, ch. 704, § 1.

Code Commission Notes.

Acts 1999, ch. 156, § 2 provided that the repeal of a former version of this section, concerning special licenses for certain barbers with long service, shall not be construed as prohibiting or denying the authority of a person issued a valid, special certificate of registration to engage in the practice of barbering and to operate a barber shop at the location specified in § 62-3-132 prior to May 14, 1999. Section 2 further provided that the repeal of this section shall not be construed as prohibiting such person to renew such license, if renewal is required by the board of barber examiners (now the state board of cosmetology and barber examiners), to continue the practice of barbering and operating a barber shop at such location until such time as such person voluntarily surrenders such special certificate of registration.

Compiler's Notes. Former § 62-3-132 (Acts 1965, ch. 267, § 6; T.C.A., § 62-335), concerning exemption from regulation of students and schools involved in vocational rehabilitation programs, was repealed by Acts 1982, ch. 870.

Former § 62-3-132 (Acts 1996, ch. 895, § 13), concerning special licenses for certain barbers with long service, was repealed by Acts 1999, ch. 156, § 1, effective May 14, 1999.

62-3-133. Provisions governing hearings and judicial review.

The Uniform Administrative Procedures Act, compiled in title 4, chapter 5, governs all matters and procedures respecting the hearing and judicial review of any contested case arising under this chapter.

Acts 1980, ch. 451, § 11; T.C.A., § 62-336.

62-3-134. Certificate of registration for mobile shop.

  1. No person shall operate a mobile shop, as defined in § 62-4-102, where barbering or barber styling is practiced without a valid certificate of registration for a mobile shop issued by the board. Application for the certificate shall be made upon application forms furnished by the board.
  2. The board shall issue a certificate of registration for a mobile shop to an applicant who:
    1. Holds a valid, current certificate of registration for a barber shop that has a fixed location;
    2. Pays an application fee in an amount set by the board by rule, not to exceed the cost of administering this section;
    3. Pays an initial registration fee in the amount set by the board by rule; and
    4. Undergoes and passes an initial inspection.
  3. A certificate of registration for a mobile shop shall be subject to renewal at the same time that the registrant's barber shop registration is subject to renewal pursuant to § 62-3-129. The renewal fee for a certificate of registration for a mobile shop shall be set by the board by rule.
  4. A mobile shop for which a certificate of registration is issued shall be subject to all of the health and safety requirements that apply to barber shops that have a fixed location under this chapter and the rules promulgated pursuant thereto; provided, that a mobile shop shall not be required to have a restroom and that the board may promulgate rules allowing or requiring mobile shops to have equipment different from shops with a fixed location.
    1. The board may either refuse to issue or renew or may suspend or revoke any certificate of registration for a mobile shop for any of the reasons in § 62-3-121.
    2. The board shall revoke any certificate of registration for a mobile shop if the registrant's certificate of registration for a barber shop that has a fixed location expires or is revoked.
    3. If a registrant's certificate of registration for a barber shop that has a fixed location is suspended, the board shall also suspend any certificate of registration that has been issued to such registrant for a mobile shop for the same period of time.

Acts 2016, ch. 983, § 1.

62-3-135. Residential barber certificate.

  1. No person may provide residential services without a valid residential barber certificate issued by the board pursuant to this section. Application for a residential barber certificate must be made upon application forms furnished by the board.
  2. The board shall issue a residential barber certificate to an applicant who:
    1. Holds a valid, current certificate of registration as a barber;
    2. Pays an application fee in an amount set by the board by rule, not to exceed the cost of administering this section;
    3. Pays an initial registration fee in an amount set by the board by rule; and
    4. Undergoes and passes an initial inspection of the equipment used to provide residential services, as determined by the board by rule.
  3. A residential barber certificate is subject to renewal at the same time that the registrant's barber registration is subject to renewal. The renewal fee for a residential barber certificate shall be set by the board by rule.
  4. The board may promulgate rules regarding health and safety requirements for barbers providing residential services.
    1. The board may either refuse to issue or renew, or may suspend or revoke, any residential barber certificate pursuant to this section for any of the reasons in § 62-3-121.
    2. The board shall revoke any residential barber certificate issued pursuant to this section if the registrant's certificate of registration as a barber expires or is revoked.
    3. If a registrant's certificate of registration as a barber is suspended, the board must also suspend the registrant's residential barber certificate that has been issued, if any.
  5. Any barber providing residential services shall, prior to performing such services, make the barber's residential barber certificate available to the person for review.
  6. For purposes of this section:
    1. “Residential barber certificate” means a certificate of registration for the provision of residential services issued by the board; and
    2. “Residential services” means services set out in § 62-3-105 when provided in the residence of the person to whom the services are being rendered.

Acts 2017, ch. 102, § 2.

Compiler's Notes. Acts 2017, ch. 102, § 3 provided that the board of cosmetology and barber examiners is authorized to promulgate rules to effectuate the purposes of the act. All rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

62-3-103. [Reserved.]

62-3-105. Acts constituting barbering.

62-3-107. Registration required for barbering, barber instruction or serving as technician.

62-3-132. Animals permitted in barbershops.

Chapter 4
Tennessee Cosmetology Act of 1986

62-4-101. Short title.

This chapter shall be known and may be cited as the “Tennessee Cosmetology Act of 1986.”

Acts 1986, ch. 817, § 1.

Compiler's Notes. Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

Cross-References. Electrologists, title 63, ch. 26.

State examining boards, general provisions, title 4, ch. 19.

62-4-102. Chapter definitions — Exceptions.

  1. As used in this chapter, unless the context otherwise requires:
    1. “Aesthetics” means any of the following practices:
      1. Massaging, cleansing, stimulating, manipulating, exercising, beautifying or similar work with hands or mechanical or electrical apparatus or by the use of cosmetic preparations, antiseptics, tonics, lotions or creams;
      2. Placing or applying artificial eyelashes; or
      3. Giving facials, applying makeup, giving skin care or removing superfluous hair by tweezing, depilatories or waxing;
    2. “Board” means the state board of cosmetology and barber examiners created by § 62-4-103;
    3. “Cosmetology” means any of the following practices:
      1. Arranging, dressing, curling, waving, cleansing, cutting, singeing, bleaching, coloring or similar work on the hair of any person by any means;
      2. Caring and servicing of wigs and hair pieces;
      3. Manicuring;
      4. Massaging, cleansing, stimulating, manipulating, exercising, beautifying or similar work upon the hands, arms, face, neck or feet with hands or by the use of cosmetic preparations, antiseptics, tonics, lotions or creams;
      5. Placing or applying artificial eyelashes;
      6. Giving facials, applying makeup, giving skin care or removing superfluous hair by tweezing, depilatories or waxing;
      7. Providing a necessary service that is preparatory or ancillary to a service pursuant to this subdivision (a)(3);
      8. Treating a person's mustache or beard by arranging, beautifying, coloring, processing, styling, trimming, or shaving with a safety razor;
      9. Shampooing; or
      10. Natural hair styling;
    4. “Cosmetology shop” means any place of business where any person engages or offers to engage in any practice of cosmetology for a fee or other form of compensation, but does not include a manicure shop, skin care shop, or natural hair styling shop;
    5. “Designated manager” means a person licensed under chapter 3 or chapter 4 of this title in at least one (1) discipline that a shop is licensed to offer, and who serves in a supervisory or managerial capacity of the shop in the absence of the manager;
    6. “Dual shop” means any shop licensed by the board where services are performed or offered to be performed in more than one (1) field of cosmetology, including aesthetics, natural hair styling, and manicuring, or in both cosmetology, or a field of cosmetology, and barbering. A dual shop does not include a shop licensed solely as a cosmetology shop or a single specialty thereof, or as a barber shop;
    7. “Hair braiding” means techniques that result in tension on hair strands, such as twisting, wrapping, weaving, extending, locking, or braiding of the hair, by hand or mechanical appliances for compensation, without cutting, coloring, relaxing, removing, chemically treating, or using other preparations to straighten, curl, or alter the structure of the hair;
    8. “Hair wrapping” means the wrapping of manufactured materials around a strand or strands of human hair for compensation, without cutting, coloring, permanent waving, relaxing, removing, weaving, chemically treating, braiding, using hair extensions or performing any other service otherwise covered by this chapter;
    9. “Instructor trainee” means any person who holds a valid cosmetologist's, manicurist's, aesthetician's or natural hair stylist's license issued by the board who is engaged in a board-approved course in instructor training of at least three hundred (300) hours to be completed within a period of six (6) months, which course includes practice teaching in a school under the personal supervision of a licensed instructor;
    10. “Junior instructor” means any person who holds a valid cosmetologist's, manicurist's, aesthetician's or natural hair stylist's license issued by the board who is engaged in a course of training in practice teaching in a school under the personal supervision of a licensed instructor for a period of time not to exceed three (3) years;
    11. “Manager” means a person licensed under chapter 3 or chapter 4 of this title in at least one (1) discipline that a shop is licensed to offer, who serves in a supervisory or managerial capacity in the shop, and whose information is filed with the board;
    12. “Managing aesthetician” means a person licensed to practice aesthetics who is designated by the owner of a skin care shop to be responsible for supervising the operation of the shop and its employees;
    13. “Managing cosmetologist” means a licensed cosmetologist who is designated by the owner of a cosmetology shop to be responsible for supervising the operation of the shop and its employees;
    14. “Managing manicurist” means a person licensed to practice manicuring who is designated by the owner of a manicure shop to be responsible for supervising the operation of the shop and its employees;
    15. “Manicure shop” means any place of business where any person performs or offers to perform only manicuring services for a fee or other form of compensation;
    16. “Manicuring” means manicuring or pedicuring the nails of any person or performing nail artistry;
    17. “Mobile shop” means any self-contained, self-supporting, enclosed motor vehicle that may be used as a barber shop, cosmetology shop, dual shop, manicure shop, skin care shop, or any other category of shop licensed by the board;
    18. “Natural hair styling” means techniques that result in tension on hair strands such as twisting, wrapping, weaving, extending, locking or braiding of the hair by hand or mechanical appliances, which work does not include the application of dyes, reactive chemicals or other preparations to alter the color or to straighten, curl or alter the structure of the hair. The techniques include providing or offering to the general public for compensation any of the following services solely for development or improvement of physical qualities of the natural hair structure:
      1. Intertwining in a systematic motion to create patterns in a three-dimensional form;
      2. Inversion or outversion flat against the scalp along the part of a straight or curved row; or
      3. Extension with natural or synthetic fibers;
    19. “Natural hair styling shop” means a place of business where a person licensed pursuant to this chapter performs or offers to perform only natural hair styling for a fee or other form of compensation;
    20. “Natural hair stylist” means a person licensed to practice natural hair styling;
    21. “Safety razor” means a razor that is fitted with a guard close to the cutting edge of the razor that is intended to:
      1. Prevent the razor from cutting too deeply; and
      2. Reduce the risk and incidence of accidental cuts;
    22. “School” means a school of cosmetology;
    23. “Shampooing” means any brushing, combing, shampooing, rinsing or conditioning upon the hair and scalp;
    24. “Shop” means a cosmetology shop, manicure shop, skin care shop, or natural hair styling shop;
    25. “Skin care shop” means any place of business where any person performs or offers to perform exclusively aesthetics services for a fee or other form of compensation; and
    26. “Student” means any person who is engaged in learning, performing or assisting in any of the practices of cosmetology under the immediate supervision of an instructor of cosmetology; however, for the purposes of this chapter, neither instructor trainees nor junior instructors shall be considered as students.
  2. The practice of aesthetics or the practice of cosmetology does not include any treatment or attempt to treat any abnormality or disease-related condition of the skin, skin disease process or aging process of the skin.

Acts 1986, ch. 817, § 3; 1987, ch. 112, §§ 1, 2; 1988, ch. 902, § 1; 1989, ch. 93, §§ 1-3; 1996, ch. 897, §§ 1, 2, 19; 2002, ch. 804, § 1; 2007, ch. 485, §§ 1, 2; 2014, ch. 964, § 6; 2015, ch. 402, §§ 13, 14; 2016, ch. 838, §§ 5, 6; 2016, ch. 991, §§ 6, 8-10; 2016, ch. 983, § 3; 2019, ch. 207, § 1.

Compiler's Notes. Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

Acts 2015, ch. 402, § 34 provided that the board of cosmetology and barber examiners is authorized to promulgate rules to effectuate the purposes of this act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Amendments. The 2019 amendment added the definition of “hair braiding” in (a).

Effective Dates. Acts 2019, ch. 207, § 4. July 1, 2019; provided that, for the purposes of  promulgating rules, the act took effect April 25, 2019.

Cross-References. Massage registration, title 63, ch. 18.

Law Reviews.

Do Your Job: Judicial Review of Occupational Licensing in the Face of Economic Protectionism, 70 Vand. L. Rev. 1663 (2017).

Attorney General Opinions. This Office is not aware of any Tennessee law prohibiting eyelash tinting. Eyelash tinting is governed by the Board of Cosmetology because it is the coloring of hair.  OAG 11-51, 2011 Tenn. AG LEXIS 53 (6/22/11).

62-4-103. Board of cosmetology and barber examiners.

  1. The practices of cosmetology and barbering shall be under the supervision of a board known as the state board of cosmetology and barber examiners.
    1. The board shall consist of fourteen (14) members, to be appointed by the governor.
    2. The membership of the board shall include the following persons:
      1. Three (3) cosmetologists;
      2. Two (2) master barbers;
      3. One (1) manicurist;
      4. One (1) aesthetician;
      5. One (1) natural hair stylist;
      6. One (1) cosmetology or barber instructor;
      7. One (1) cosmetology or barber shop owner;
      8. One (1) member shall be an owner of a cosmetology school licensed by the board;
      9. One (1) member shall be an owner of a barber school licensed by the board;
      10. One (1) public member, who shall be a person who holds a baccalaureate degree with a major in education who is not engaged in the occupation of cosmetology or barbering; and
      11. One (1) public member who shall be a person at least twenty-one (21) years of age, who is not required to meet the educational degree requirements as the public member listed in subdivision (b)(2)(J), and who is not engaged in the occupation of cosmetology or barbering.
    3. One (1) of the members appointed in accordance with subdivisions (b)(2)(F) and (G) shall represent the cosmetology profession and one (1) shall represent the barber profession, however at no time shall both members represent the same profession.
    4. Each of the members described in subdivisions (b)(2)(A)-(I) shall be licensed in their respective trade in this state for at least five (5) years immediately preceding their date of appointment.
    5. No cosmetologist member or master barber member shall, while serving on the board, be an instructor, owner or manager of a school of cosmetology, barber school or college of barbering, an employee in such a school, or in any manner connected with such a school.
      1. The public member listed in subdivision (b)(2)(J) shall participate in all activities of the board except the inspection of schools of cosmetology, barber schools, and colleges of barbering.
      2. The public member listed in subdivision (b)(2)(K) shall participate in all activities of the board except the composition of examinations, administration of practical portions of examinations, and inspection of schools of cosmetology, barber schools, and colleges of barbering.
    6. The owners of schools licensed by the board or the instructors licensed by the board shall be entitled to participate in all activities of the board, except administration of examinations and inspection of schools of cosmetology, barber schools or colleges of barbering.
  2. No more than five (5) members shall be appointed from the same grand division.

Acts 1986, ch. 817, § 3; 1988, ch. 902, §§ 18, 19; 1988, ch. 1013, § 28; 2014, ch. 964, § 4.

Compiler's Notes. The state board of cosmetology and barber examiners, created by this section and § 62-3-101, terminates June 30, 2022. See §§ 4-29-112, 4-29-243.

Acts 2014, ch. 964, § 14 provided that notwithstanding § 4-29-112 or any other law to the contrary, the board of cosmetology and the board of barber examiners shall terminate and shall cease to exist upon July 1, 2014, simultaneous with the establishment of the state board of cosmetology and barber examiners, created by §§ 62-3-101 and 62-4-103.

Acts 2014, ch. 964, § 15 provided that it is the intent of the general assembly that the rules of the board of cosmetology and the rules of the board of barber examiners shall be deemed to be the rules of the state board of cosmetology and barber examiners created by the act, and to the extent that such rules conflict the board shall promulgate new rules to make the application thereof applicable to the respective professions.

Acts 2014, ch. 964, § 16 provided that all records and reports of the respective boards in existence prior to July 1, 2014, shall be transferred to the state board of cosmetology and barber examiners.

The regulatory board created by this section is attached to the division of regulatory boards in the department of commerce and insurance for purposes of administration. See §§ 4-3-1304, 56-1-30156-1-306.

Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

Acts 2016, ch. 561, 3 provides that the division of state audit shall return to the state board of cosmetology and barber examiners in 2017 for the purpose of conducting a question and answer review of the board. The division of state audit shall complete the question and answer review within a period sufficient to allow for its timely review by the government operations joint subcommittee on commerce, labor, transportation, and agriculture.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

62-4-104. Terms of board members — Oath — Removal.

  1. Except as provided in subsection (b), the terms of the members of the board shall be four (4) years.
    1. The entire membership of the board as comprised on June 30, 2014, shall be vacated on July 1, 2014, and new members shall be appointed in accordance with § 62-4-103.
    2. In order to stagger the terms of the newly appointed board members, the governor shall make initial appointments as follows:
      1. Three (3) persons shall be appointed for terms of one (1) year, which shall expire on June 30, 2015;
      2. Three (3) persons shall be appointed for terms of two (2) years, which shall expire on June 30, 2016;
      3. Four (4) persons shall be appointed for terms of three (3) years, which shall expire on June 30, 2017; and
      4. Four (4) persons shall be appointed for terms of four (4) years, which shall expire on June 30, 2018.
    3. Of the members initially appointed:
      1. The cosmetology school owner member, the manicurist member and the public member listed in § 62-4-103(b)(2)(K) shall serve terms of one (1) year;
      2. One (1) cosmetologist member, one (1) master barber member and the barber school owner member shall serve terms of two (2) years;
      3. One (1) cosmetologist member, one (1) master barber member, the cosmetology or barber shop owner member, and the cosmetology or barber instructor member shall serve terms of three (3) years; and
      4. The aesthetician member, the natural hair stylist member, one (1) cosmetologist member, and the public member listed in § 62-4-103(b)(2)(J) shall serve terms of four (4) years.
    1. Following the expiration of members' initial terms as prescribed in subdivision (b)(2), all four-year terms shall begin on July 1 and terminate on June 30, four (4) years thereafter.
    2. All members shall serve until the expiration of the term to which they were appointed and until their successors are appointed and qualified.
    3. Members shall be eligible for reappointment to the board following the expiration of their terms but shall serve no more than two (2) consecutive four-year terms.
    4. A vacancy occurring other than by expiration of term shall be filled in the same manner as the original appointment but for the unexpired term only.
    1. The governor may remove any member of the board for misconduct, incompetency, willful neglect of duty, or other just cause.
    2. Any member who is absent from more than two (2) board meetings within a one-year period shall be removed from the board and a new member shall be appointed to fill the remainder of the unexpired term.
  2. Prior to beginning their duties, each member of the board shall take and subscribe to the oath of office provided for state officers.
  3. Each member shall have been a bona fide resident of this state for a period of at least five (5) years immediately preceding the date of appointment.
  4. In making appointments to the board, the governor shall strive to ensure that at least one (1) person serving on the board is sixty (60) years of age or older and that at least one (1) person serving on the board is a member of a racial minority.

Acts 1986, ch. 817, § 4; 1988, ch. 902, § 20; 2014, ch. 964, § 5; 2015, ch. 402, § 15.

Compiler's Notes. Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

Acts 2015, ch. 402, § 34 provided that the board of cosmetology and barber examiners is authorized to promulgate rules to effectuate the purposes of this act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

62-4-105. Board officers, duties and rules.

  1. The board shall annually elect from its members a chair and vice chair.
  2. A majority of the board shall constitute a quorum for the transaction of business at any board meeting.
  3. The director of the division of regulatory boards in the department of commerce and insurance or the director's designee shall serve as secretary of the board and shall perform all administrative functions for the board.
  4. The duties of the board shall be to conduct or cause to be conducted examinations of applicants and to make and declare the policy of the board.
  5. The board is authorized to promulgate rules that are reasonably necessary to effectuate this chapter. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1986, ch. 817, § 5.

Compiler's Notes. Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

Attorney General Opinions. The board of cosmetology has the authority to terminate a contract between the board and a contractor who performs testing of applicants for licensure, OAG 02-122, 2002 Tenn. AG LEXIS 127 (11/4/02).

62-4-106. Receipts and disbursements by board.

  1. All fees and moneys from whatever source coming into the hands of the board shall be paid by the board to the state treasurer and become a part of the general fund.
  2. The commissioner of finance and administration shall make allotments out of the general fund for the proper expenditures of the board. No expenditure shall be made by the board until allotment for the expenditure has been made by the commissioner. Allotments for the operation of the board shall be disbursed under the general budgetary laws of the state.

Acts 1986, ch. 817, § 6.

Compiler's Notes. Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Former §  62-4-106 (Acts 1939, ch. 29, § 5; 1949, ch. 179, § 3; C. Supp. 1950, § 7139.5 (Williams, § 7139.20); Acts 1951, ch. 227, § 1-a; 1959, ch. 298, § 5; 1976, ch. 806, § 1(102); 1979, ch. 380, § 2; T.C.A. (orig. ed.), § 62-406; Acts 1982, ch. 633, § 2), concerning compensation of board members, was repealed by Acts 1984, ch. 676, § 14.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

62-4-107. Record of board proceedings — Publication of laws and rules.

  1. The board shall keep a record of its proceedings. The record shall be prima facie evidence of matters contained in the records and shall at all reasonable times be open for public inspection.
  2. The board shall publish a compilation of its laws, rules, and any amendments or other changes to the laws and rules on its website within ten (10) days of any effective date.

Acts 1986, ch. 817, § 7; 2014, ch. 964, § 8; 2015, ch. 402, § 16.

Compiler's Notes. Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

Acts 2014, ch. 964, § 15 provided that it is the intent of the general assembly that the rules of the board of cosmetology and the rules of the board of barber examiners shall be deemed to be the rules of the state board of cosmetology and barber examiners created by the act, and to the extent that such rules conflict the board shall promulgate new rules to make the application thereof applicable to the respective professions.

Acts 2014, ch. 964, § 16 provided that all records and reports of the respective boards in existence prior to July 1, 2014, shall be transferred to the state board of cosmetology and barber examiners.

Acts 2015, ch. 402, § 34 provided that the board of cosmetology and barber examiners is authorized to promulgate rules to effectuate the purposes of this act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Cross-References. Open records law, title 10, ch. 7.

62-4-108. License required to practice or teach.

Except as otherwise provided in this chapter, no person shall practice, teach or attempt to practice or teach, cosmetology, manicuring, aesthetics, or natural hair styling in this state without a valid license issued by the board pursuant to this chapter.

Acts 1986, ch. 817, § 8; 1989, ch. 93, § 4; 1996, ch. 897, § 3; 2016, ch. 991, § 7.

Compiler's Notes. Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

62-4-109. Persons and activities exempt.

  1. The following persons are exempt from this chapter:
    1. Persons and establishments engaged exclusively in massage, as defined by § 63-18-102;
    2. Duly registered barbers and technicians operating in duly registered barber shops only;
    3. Physicians and surgeons or trained nurses, trained nurses assistants, aides or similar personnel, acting solely in their professional capacities;
    4. Any person rendering cosmetology services in the person's own home without charge to the recipient;
    5. Any person who demonstrates or applies, or both, cosmetics without charge in a retail establishment;
    6. Any person who engages in hair wrapping; provided, that the person posts a notice at the place of business indicating that the person is not licensed by the state board of cosmetology and barber examiners; and provided, further, that the person uses disposable instruments or implements that are sanitized in a disinfectant approved for hospital use or approved by the federal environmental protection agency. Before engaging in hair wrapping, a person shall attend sixteen (16) hours of training provided by a licensed school of cosmetology and shall receive a certificate indicating attendance at the training. The certificate shall be retained and displayed on request. The training shall consist of eight (8) hours concerning health and hygiene issues and eight (8) hours concerning relevant state law;
    7. Any person whose occupation or practice is confined solely to shampooing; and
    8. Any person who engages in hair braiding if the person complies with § 62-4-135.
  2. Nothing in this chapter shall be construed to apply to the educational activities conducted in connection with any special education program of any bona fide association of licensed cosmetologists from which the general public is excluded.

Acts 1986, ch. 817, § 9; 1987, ch. 112, § 3; 1987, ch. 382, § 29; 1988, ch. 902, § 15; 1989, ch. 93, § 5; 2002, ch. 804, § 2; 2014, ch. 964, § 6; 2017, ch. 227, § 2; 2019, ch. 207, § 2.

Compiler's Notes. Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

Amendments. The 2019 amendment added (a)(8).

Effective Dates. Acts 2019, ch. 207, § 4. July 1, 2019; provided that, for the purposes of  promulgating rules, the act took effect April 25, 2019.

Cross-References. Exemption from barber licensing law, § 62-3-108.

Exemption from licensing provisions as to healing arts, § 63-1-104.

Attorney General Opinions. Exemption from the Cosmetology Act for medical professionals.  OAG 12-91, 2012 Tenn. AG LEXIS 96 (9/25/12).

An aesthetician licensed by the Board of Cosmetology and Barber Examiners may not perform microblading and/or microneedling in a cosmetology shop or at a medical spa.  A person not licensed by the Board of Cosmetology and Barber Examiners may perform microneedling only if that person satisfies an exemption found in T.C.A. § 62-4-109.  A person not licensed by the Board of Cosmetology and Barber Examiners may perform microblading only if that person satisfies an exemption found in T.C.A. § 62-4-109 and either is a licensed tattoo artist under T.C.A. § 62-38-204 or is exempt from tattooing laws and regulations under T.C.A. § 62-38-210(b).  The marks created by microblading constitute a tattoo.  An individual may perform microblading only if that person satisfies an exemption found in Tenn. Code Ann. § 62-4-109 and is a licensed tattoo artist under Tenn. Code Ann. § 62-38-204 or is exempt from tattooing laws and regulations under Tenn. Code Ann. § 62-38-210(b).  OAG 17-31, 2017 Tenn. AG LEXIS 30 (4/20/2017).

62-4-110. Application and qualifications for practicing or teaching — Fees.

  1. Any person who desires a cosmetologist's license shall submit an application for examination to the board on the prescribed form. The application shall be accompanied by:
    1. A nonrefundable, nontransferable application/examination fee as set by the board;
    2. Satisfactory proof that the applicant has attained the age of at least sixteen (16) years; and
    3. Satisfactory proof that the applicant either:
      1. Has completed and passed a course of instruction of no less than one thousand five hundred (1,500) hours in practice and theory at a school of cosmetology; or
      2. Holds a valid Tennessee master barber registration and has completed three hundred (300) hours in a licensed school of cosmetology learning the fundamentals of cosmetology technique and pedicuring.
  2. Any person who desires a license to practice manicuring only shall submit an application for examination to the board on the prescribed form. The application shall be accompanied by:
    1. A nonrefundable, nontransferable application/examination fee as set by the board; and
    2. Satisfactory proof that the applicant has attained the age of at least sixteen (16) years and has completed and passed a course of instruction of no less than six hundred (600) hours in the practice and theory of manicuring at a school of cosmetology.
  3. Any person who desires a license to instruct in a school shall submit an application for examination to the board on the prescribed form. The application shall be accompanied by:
    1. A nonrefundable, nontransferable application/examination fee as set by the board; and
    2. Satisfactory proof that the applicant:
      1. Is a high school graduate, evidenced by a certificate or diploma or possesses a general equivalency diploma (GED(R));
      2. Holds a valid cosmetologist's, manicurist's, aesthetician's or natural hair stylist's license issued by the board;
      3. Has completed and passed a board-approved course in instructor training of at least three hundred (300) hours within a period of six (6) months as an instructor trainee or has served as a junior instructor for a minimum of one (1) year;
      4. Has been licensed as a cosmetologist, aesthetician, manicurist, or natural hair stylist pursuant to this chapter for at least three (3) continuous years; and
      5. Seeks to instruct only in the area in which the applicant is currently licensed.
  4. Any person who desires a license to practice aesthetics only shall submit an application for examination to the board on the prescribed form. The application shall be accompanied by:
    1. A nonrefundable, nontransferable application/examination fee as set by the board; and
    2. Satisfactory proof that the applicant has attained the age of at least sixteen (16) years and has completed and passed a course of instruction of no less than seven hundred fifty (750) hours in the practice and theory of aesthetics at a school of cosmetology.
  5. Any person who desires a natural hair styling license shall submit an application for examination to the board on the prescribed form. The application shall be accompanied by:
    1. A nonrefundable, nontransferable application/examination fee as set by the board; and
    2. Satisfactory proof that the applicant has attained the age of at least sixteen (16) years and has completed and passed a course of instruction of no less than three hundred (300) hours in the practice and theory of natural hair styling at a school of cosmetology.

Acts 1986, ch. 817, § 10; 1987, ch. 112, § 4; 1988, ch. 902, §§ 2-5; 1989, ch. 93, § 6; 1989, ch. 523, §§ 109-112; 1996, ch. 897, §§ 4, 5, 20; 2007, ch. 485, § 3; 2015, ch. 402, § 17; 2015, ch. 450, § 1; 2017, ch. 226, § 3; 2017, ch. 227, § 3.

Compiler's Notes. Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

Acts 2015, ch. 402, § 34 provided that the board of cosmetology and barber examiners is authorized to promulgate rules to effectuate the purposes of this act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2015, ch. 450, § 2 provided that the act, which added (c)(2)(D) and (E), shall apply to applications submitted on or after July 1, 2015.

Law Reviews.

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253.

Do Your Job: Judicial Review of Occupational Licensing in the Face of Economic Protectionism, 70 Vand. L. Rev. 1663 (2017).

62-4-111. Examinations.

  1. Examinations of applicants for licenses under § 62-4-110 shall be held at such times and places and shall consist of such materials or practical demonstrations as the board may determine.
  2. The board shall identify for any unsuccessful applicant the subject or subjects failed on the examination.

Acts 1986, ch. 817, § 11; 1988, ch. 902, § 6.

Compiler's Notes. Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

62-4-112. License fees — Penalties.

  1. The board shall issue a license to qualified applicants upon receipt of the appropriate fee.
  2. The board shall prescribe fees and penalties under this chapter pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1986, ch. 817, § 12; 1987, ch. 112, § 5; 1988, ch. 902, § 7; 1989, ch. 523, § 113.

Compiler's Notes. Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

Cross-References. Examination fees, § 62-4-110.

Instructor license renewal fee, § 62-4-114.

Reciprocity license fee, § 62-4-116.

Renewal fees, § 62-4-117.

Replacement or correction of license, fee § 62-4-115.

School license fees, § 62-4-120.

Shop license fees, § 62-4-118.

62-4-113. Display of license — Notice of address changes — Penalty.

  1. Every holder of a license as a cosmetologist, aesthetician, manicurist, natural hair stylist or instructor shall:
    1. Prominently display the license at the holder's work station; and
    2. Promptly notify the board of any change of mailing address within thirty (30) calendar days of such change.
  2. Pending issuance or denial by the board of the appropriate license, a person may work as a cosmetologist, aesthetician, manicurist, natural hair stylist or instructor if the person prominently displays at the person's work station:
    1. The official notice from the board that the person has passed the required examination; and
    2. A copy of a money order made payable to the state of Tennessee in the amount of the fee for a license or the receipt for the payment of the fee.
  3. Failure to display the information required in subsection (b) is a Class C misdemeanor.

Acts 1986, ch. 817, § 13; 1987, ch. 112, § 6; 1988, ch. 902, § 8; 1996, ch. 897, §§ 21, 22; 2015, ch. 402, §§ 18-20.

Compiler's Notes. Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

Acts 2015, ch. 402, § 34 provided that the board of cosmetology and barber examiners is authorized to promulgate rules to effectuate the purposes of this act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Cross-References. Penalty for Class C misdemeanors, §  40-35-111.

62-4-114. Instructor's continuing education — Practice by instructor — Instructor may become licensed as cosmetologist — Inactive status.

    1. To maintain an active instructor's license, an instructor shall every two (2) years submit to the board satisfactory proof that the instructor has attended a board-approved instructor training program in cosmetology, manicuring, aesthetics or natural hair styling for a minimum of sixteen (16) hours. Persons obtaining an initial instructor's license shall attend a board-approved instructor training program in cosmetology, manicuring, aesthetics or natural hair styling after receiving the licenses.
    2. The board may, in its discretion, grant up to one (1) additional year for submission of proof upon a showing of good cause, including, but not limited to, illness or emergency; however, no extension of time shall relieve an instructor from meeting any future deadline for compliance with this subsection (a).
    3. The active license of any instructor who fails to comply with this subsection (a) shall become invalid and nonrenewable.
  1. Before an instructor's license expires, an instructor may notify the board of the instructor's intention to place the license on inactive status. The notice of intention shall be accompanied by the regular license fee, but the instructor shall be relieved of the obligation to attend the otherwise required board-approved training program. An instructor may stay on inactive status as long as the appropriate fees are paid on a regular basis. To change a license from inactive status to active status, the instructor shall attend a board approved instructor training program in cosmetology, manicuring, aesthetics or natural hair styling for a minimum of sixteen (16) hours.
  2. Any person who holds a valid active license as a cosmetology, manicuring, aesthetics or natural hair instructor may engage in the practice of cosmetology, manicuring, aesthetics or natural hair styling under that license; however, no instructor may render cosmetology, manicuring, aesthetics or natural hair styling services in a school, except services that are directly incidental to the instruction of students.
  3. Any person whose instructor's license expires or becomes invalid may, within sixty (60) days after the date of expiration or invalidity, obtain a cosmetologist's, manicurist's, aesthetician's or natural hair stylist's license from the board upon payment of a fee set by the board.

Acts 1986, ch. 817, § 14; 1992, ch. 968, §§ 1-5; 1996, ch. 897, § 6; 2001, ch. 85, § 1; 2007, ch. 485, §§ 4-7; 2015, ch. 402, § 21.

Compiler's Notes. Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

Acts 2015, ch. 402, § 34 provided that the board of cosmetology and barber examiners is authorized to promulgate rules to effectuate the purposes of this act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

62-4-115. Fee for replacement or correction of license.

A fee as set by the board will be charged for:

  1. Replacement of any lost, misplaced or mutilated license; or
  2. Change of name or mailing address by any cosmetologist, aesthetician, manicurist, natural hair stylist or instructor licensed under this chapter.

Acts 1986, ch. 817, § 15; 1987, ch. 112, § 7; 1988, ch. 902, § 9; 1989, ch. 523, § 114; 1996, ch. 897, § 23.

Compiler's Notes. Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Former § 62-4-115 (Acts 1939, ch. 29, § 7; 1949, ch. 179, § 5; C. Supp. 1950, § 7139.7 (Williams, § 7139.22); Acts 1951, ch. 227, § 2; 1959, ch. 298, §§ 10, 17; 1972, ch. 808, § 2; 1975, ch. 122, § 2; T.C.A. (orig. ed.) § 62-415), concerning licensing of manicurists and shampooers, was repealed by Acts 1982, ch. 633, § 8.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

62-4-116. Reciprocity — License without examination.

Upon receipt of a fee as set by the board in rule, the board may, in its discretion, grant a license without examination to any applicant who:

  1. Holds a valid license issued by another state or the District of Columbia and has substantially met the qualifications for licensure in this state; or
  2. Furnishes satisfactory proof that the applicant has continuously and lawfully engaged in the occupation or practice for which a license is applied for a period of at least five (5) years immediately preceding the date of application.

Acts 1986, ch. 817, § 16; 1996, ch. 897, § 8; 2015, ch. 402, § 22.

Compiler's Notes. Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

Acts 2015, ch. 402, § 34 provided that the board of cosmetology and barber examiners is authorized to promulgate rules to effectuate the purposes of this act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

62-4-117. Duration and renewal of licenses — Fees — Lapsed licenses.

  1. All cosmetologist, aesthetician, manicurist, natural hair stylist and instructor licenses shall expire on the biennial anniversary date of the licenses and shall be invalid on that date unless renewed.
  2. If the board is satisfied that this chapter has been complied with, licenses issued in accordance with this chapter may be renewed for another term upon completion and submission of the prescribed form, accompanied by the proper fee as set by the board.
  3. A penalty fee as set by the board will be assessed on any renewal application postmarked after the expiration date of the license issued in accordance with this chapter.
  4. A license issued in accordance with this chapter that has lapsed for three (3) years or longer shall not be reinstated unless the applicant passes the state law and practical examination.
  5. Any person who holds, or applies and qualifies for, a cosmetology license on or before August 31, 1987, may practice both cosmetology and aesthetics for so long as the license, and any renewal of the license, remains valid.
  6. Any person who holds a manicurist/shampoo license may practice both manicuring and shampooing for so long as the license, and any renewal of the license, remains valid.

Acts 1986, ch. 817, § 17; 1987, ch. 112, §§ 8, 9, 11; 1988, ch. 902, § 10; 1989, ch. 360, §§ 4, 5; 1989, ch. 523, §§ 115-117, 123; 1990, ch. 1026, § 38; 1996, ch. 897, §§ 9, 10, 24; 2014, ch. 964, §§ 9, 10; 2015, ch. 402, § 23.

Compiler's Notes. Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

Acts 2015, ch. 402, § 34 provided that the board of cosmetology and barber examiners is authorized to promulgate rules to effectuate the purposes of this act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Cross-References. Director of division of regulatory boards to promulgate rules concerning certain license renewal dates, § 56-1-302.

Law Reviews.

Do Your Job: Judicial Review of Occupational Licensing in the Face of Economic Protectionism, 70 Vand. L. Rev. 1663 (2017).

Attorney General Opinions. Right to practice aesthetics under grandfather provision, OAG 99-110, 1999 Tenn. AG LEXIS 110 (5/13/99).

62-4-118. Operation of a shop.

  1. Except as otherwise provided under this chapter, it is unlawful to operate a shop without conspicuously displaying a valid license issued by the board under this chapter.
  2. Each shop licensed by the board shall designate a manager. The shop shall submit the name and license information of its manager upon application and renewal.
  3. It is unlawful to operate a shop unless it is, at all times, under the direction of a manager or designated manager. While on duty, the manager or designated manager shall be responsible for the shop's compliance with this chapter, chapter 3 of this title, and the rules of the board. The board may require the name of the shop's manager or designated manager to be posted in such form and location as the board may prescribe.
  4. The manager and designated manager may manage those who practice disciplines in cosmetology or barbering, other than the discipline in which the manager or designated manager is licensed; however, the manager or designated manager shall only practice within the field that the person is licensed.
  5. An application for a license to operate a shop shall be submitted by its owner on the form prescribed by the board. The application shall include:
    1. The location of the shop;
    2. The type of shop;
    3. The name of the manager; and
    4. Other information that the board may require.
  6. Prior to the opening of a new shop or the relocation of an existing shop, the shop must pass an initial inspection after submission of a complete application for a license to operate the shop in accordance with subsection (e), accompanied by the fee for licensure and the fee for inspection, as prescribed by the board in rule. The inspection shall be made within ten (10) days of receipt by the board of a request for the inspection. If the shop passes the required inspection, the board shall issue a license to operate the shop unless the board refuses to issue the license pursuant to § 62-4-127(b) or as otherwise provided by this chapter, chapter 3 of this title, and the rules of the board.
    1. If the ownership of a shop changes, the new owner shall not operate the shop more than thirty (30) days after the date of the change of ownership unless, within the thirty-day period, the new owner has:
      1. Submitted an application for a license to operate the shop in accordance with subsection (e); and
      2. Paid the license fee and the inspection fee.
    2. If the transferred shop passes the required inspection, the board shall issue a license to operate the shop unless the board refuses to issue the license pursuant to § 62-4-127(b) or as otherwise provided by this chapter, chapter 3 of this title, and the rules of the board.
  7. Pending issuance or denial by the board of a license to operate a shop, the owner may operate the shop if the owner displays:
    1. The official report showing that the shop has passed the required inspection; and
    2. A copy of a cashier's check or money order made payable to the state of Tennessee in the amount of the fee for the license.
  8. Each shop shall be inspected at least annually.
  9. All licenses to operate a shop shall expire on the last day of the month of the biennial anniversary date of the licenses.
  10. If the board is satisfied that the requirements of this chapter have been met, licenses to operate a shop may be renewed for another term upon completion and submission of the prescribed form, accompanied by the renewal fee prescribed by the board in rule.
  11. A penalty fee as set by the board by rule will be assessed on any renewal application postmarked after the expiration date of the license.
  12. The board may promulgate any and all rules necessary to allow for a shop where services are performed or offered to be performed in more than one (1) field of cosmetology, including aesthetics, natural hair styling, and manicuring, or in both cosmetology, or a field of cosmetology, and barbering to operate as a dual shop, including, but not limited to, rules to allow a dual shop to pay a single licensure or renewal fee and to undergo a single inspection.

Acts 1986, ch. 817, § 18; 1987, ch. 112, § 10; 1988, ch. 902, § 13; 1989, ch. 523, §§ 118-122, 124-130; 1996, ch. 897, §§ 11, 12; 2015, ch. 402, §§ 24, 25; 2016, ch. 838, § 7.

Code Commission Notes.

Acts 2015, ch. 402, § 25 purported to amend § 62-3-118, but actually amended § 62-4-118.

Compiler's Notes. Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

Acts 2015, ch. 402, § 34 provided that the board of cosmetology and barber examiners is authorized to promulgate rules to effectuate the purposes of this act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Cross-References. Director of division of regulatory boards to promulgate rules concerning certain license renewal dates, § 56-1-302.

62-4-119. Responsibilities of owner and manager of shop.

The owner and manager of a shop shall be responsible for ensuring that:

  1. Only persons duly licensed by the board perform cosmetology services in the shop;
  2. Persons duly licensed by the board perform only those services authorized by their licenses; and
  3. The shop and its operation conform to this chapter and any rules duly promulgated under this chapter.

Acts 1986, ch. 817, § 19.

Compiler's Notes. Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

62-4-120. Operation of a school.

  1. Except as otherwise provided in this chapter, it is unlawful for any person, firm or corporation to operate a school without conspicuously displaying a valid license issued by the board under this chapter.
  2. An application for a license to operate a school shall be submitted by its owner on the form prescribed by the board. The application shall be accompanied by:
    1. A fee as set by the board;
    2. The proposed hours of operation for the school; and
    3. A true and exact copy of the standard contract that each prospective student shall be required to execute for enrollment.
    1. A person, firm or corporation shall be eligible to receive a license or renewal of a license to operate a school only if the school employs at least:
      1. One (1) licensed instructor, where the enrollment is twenty (20) students or less;
      2. Two (2) licensed instructors, or one (1) licensed instructor and one (1) junior instructor who has not been employed as a junior instructor for more than three (3) years, where the enrollment is greater than twenty (20) but no greater than forty (40) students; and
      3. One (1) additional licensed instructor or junior instructor who has not been employed as a junior instructor for more than three (3) years, for each additional enrollment of twenty (20) students or fraction of twenty (20) students.
    2. For the purposes of this subsection (c), “student” does not include persons enrolled in an instructor training program or junior instructor.
    3. A school shall employ at least one (1) licensed instructor for each junior instructor employed.
    4. Any school offering an instructor training program shall conduct instruction for instructor trainees at a different time or in a separate classroom from instruction for students.
  3. Prior to the opening of a new school or the relocation of an existing school, the school must pass an initial inspection by at least one (1) member of the board. The inspection shall be made within ten (10) days of receipt by the board of a request for the inspection.
    1. If a new school passes the required inspection, the board shall issue a license to operate the new school. A new school shall be closed to the public for ninety (90) days.
    2. If a relocated school passes the required inspection, the board shall reissue the license showing the change of address upon receipt of a fee as set by the board.
    1. If the ownership of a school changes, the new owner may not operate the school more than thirty (30) days after the date of the change of ownership unless, within the thirty-day period, the new owner has submitted an application for a license to operate the school in accordance with subsection (b). The school shall not be considered as a new school for purposes of subdivision (b)(3).
    2. If the transferred school passes an inspection by at least one (1) member of the board, the board shall issue a license to operate the school to the new owner.
  4. A prospective purchaser of a school may request the board to determine whether, or on what conditions, the prospective purchaser would be qualified for licensure under this chapter. The request shall be submitted on the form prescribed by the board and shall be accompanied by a fee as set by the board. The prospective purchaser will receive a license to operate the school if, within six (6) months after receipt of a favorable determination from the board, the prospective purchaser:
    1. Acquires ownership of the school;
    2. Files an application for the license in accordance with subsection (b); and
    3. Fulfills any conditions stipulated by the board.
  5. Each school shall be inspected at least annually by an inspector or a member of the board.
  6. In addition to the schools currently operated pursuant to this section, the board shall establish rules and regulations for separate schools that specialize solely in natural hair styling, manicuring and the practice of aesthetics; provided, that at a minimum, such specialized schools remain subject to the requirements of this section.
  7. Notwithstanding any law to the contrary, the board shall establish rules and regulations enabling schools operated pursuant to this section to develop courses of instruction in practice and theory that will satisfy the requirements of § 62-4-110, and that consist of:
    1. Earning fifty percent (50%) of the hours needed for the specific license from classroom training; and
    2. Fifty percent (50%) of the hours needed for the specific license from apprenticing under the supervision of a person licensed pursuant to this chapter, who has at least ten (10) years of experience.

Acts 1986, ch. 817, § 20; 1988, ch. 902, § 11; 1989, ch. 93, §§ 7-11; 1989, ch. 523, §§ 131-133; 1996, ch. 897, § 13; 2013, ch. 447, § 1; 2015, ch. 402, §§ 26-28; 2016, ch. 991, § 3.

Compiler's Notes. Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Former §§ 62-4-120 and 62-4-121 (Acts 1939, ch. 29, § 14; C. Supp. 1950, § 7139.13 (Williams, § 7139.29); Acts 1951, ch. 227, § 4 (Williams, § 7139.22a); 1959, ch. 298, § 12; 1975, ch. 104, § 2; 1975, ch. 122, §§ 5, 6; T.C.A. (orig. ed.), §§ 62-420, 62-421), concerning registration and licensing of students, were repealed by Acts 1982, ch. 633, § 24.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

Acts 2013, ch. 447, § 2 provided that the state board of cosmetology is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added subsections (j) and (k) [now (i) and (j)]. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2015, ch. 402, § 34 provided that the board of cosmetology and barber examiners is authorized to promulgate rules to effectuate the purposes of this act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

62-4-121. License to operate a school.

  1. A license to operate a school shall expire on September 1 of each year. An application for renewal of the license shall be accompanied by satisfactory proof that the applicant continues to meet the requirements of § 62-4-120(c).
  2. No renewal application shall be accepted after September 30 following the expiration date of a license to operate a school; however, the board may, in its discretion, reinstate a former licensee upon proper application accompanied by all past unpaid renewal fees, the fee for the current year, and a surcharge for processing the application.
  3. The board shall promulgate rules pursuant to its authority in § 62-4-112 to establish:
    1. An annual fee for the renewal of a license to operate a school;
    2. A penalty fee to be assessed on any renewal application postmarked after the expiration date of the license; and
    3. The amount of the surcharge required pursuant to subsection (b).

Acts 1986, ch. 817, § 21; 1992, ch. 968, § 6; 2014, ch. 863, § 2; 2015, ch. 402, § 29.

Compiler's Notes. Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Former §§ 62-4-120 and 62-4-121 (Acts 1939, ch. 29, § 14; C. Supp. 1950, § 7139.13 (Williams, § 7139.29); Acts 1951, ch. 227, § 4 (Williams, § 7139.22a); 1959, ch. 298, § 12; 1975, ch. 104, § 2; 1975, ch. 122, §§ 5, 6; T.C.A. (orig. ed.), §§ 62-420, 62-421), concerning registration and licensing of students, were repealed by Acts 1982, ch. 633, § 24.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

Acts 2014, ch. 863, § 4, effective May 1, 2014, and expiring June 30, 2015, provided that the state board of cosmetology may promulgate rules to effectuate the provisions of Section 2 of this act, which added former subsection (e) to this section. All such rules shall be promulgated in accordance with Tennessee Code Annotated, title 4, chapter 5.

Acts 2015, ch. 402, § 34 provided that the board of cosmetology and barber examiners is authorized to promulgate rules to effectuate the purposes of this act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Cross-References. Director of division of regulatory boards to promulgate rules concerning certain license renewal dates, § 56-1-302.

62-4-122. Students.

  1. A school may enroll only a student who:
    1. Has attained the age of at least sixteen (16) years; and
    2. Has completed and passed at least two (2) years of high school or received at least a score of thirty-eight percent (38%) on the GED(R) or HiSET(R) examination. Public and vocational schools are exempt from this section.
  2. There shall be at least one (1) licensed instructor on the premises whenever a cosmetology school, public high school or a state vocational technical school offering cosmetology courses is in operation.
  3. A school operating both day and night classes shall designate the times for each group of classes. In no event shall a student attend school for more than ten (10) hours per day, six (6) days per week, or forty-eight (48) hours per week.
    1. No student may render cosmetology services on patrons until the student has received at least two hundred (200) hours of instruction and acquired the requisite skill and knowledge. Students may render cosmetology services only within a school while under the direct supervision of a licensed instructor.
    2. Students may render manicuring services on patrons upon receiving at least one hundred (100) hours of instruction and acquiring the requisite skill and knowledge. Students may render manicuring services only within a school while under the direct supervision of a licensed instructor.
    3. No student may render aesthetician services on patrons until the student has received at least one hundred fifty (150) hours of instruction and has acquired the requisite skill and knowledge. Students may render aesthetician services only within a school under the direct supervision of a licensed instructor.
  4. Each school shall conspicuously display within the clinic area a sign that reads as follows: “ALL SERVICES IN THIS SCHOOL PERFORMED BY STUDENTS ONLY.”
  5. No school shall pay compensation to its students, either directly or indirectly, or advertise for clinical patrons without clearly disclosing that the services will be performed by students within a school.
  6. Each school shall:
    1. Comply with the rules of sanitation promulgated by the board under § 62-4-125;
    2. Have and maintain equipment and other instructional materials that are determined by the board to be reasonably necessary for the proper training of all students enrolled;
    3. Teach the curriculum prescribed by the board; and
    4. Maintain regular class and instruction hours.
  7. Each school, including any public school conducting a career and technical education program in the field of cosmetology, shall:
    1. Keep a daily record of the attendance of each student enrolled; and
    2. Submit to the board on the prescribed form a monthly progress report on each student enrolled.
  8. A student may render natural hair styling services on patrons upon receiving at least one hundred (100) hours of instruction and acquiring the requisite skill and knowledge. Students may render natural hair styling services only within a school while under the direct supervision of a licensed instructor.

Acts 1986, ch. 817, § 22; 1988, ch. 902, § 17; 1989, ch. 93, § 12; 1996, ch. 897, §§ 14, 15, 25; 2015, ch. 55, § 18; 2015, ch. 402, §§ 30, 31; 2016, ch. 991, § 2.

Compiler's Notes. Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

Acts 2015, ch. 402, § 34 provided that the board of cosmetology and barber examiners is authorized to promulgate rules to effectuate the purposes of this act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

62-4-123. Time period for completion of coursework.

A student shall have seven (7) years from the date the student originally enrolls in a school to complete the required courses and number of hours required when the student originally enrolls. If the student fails to complete the course of instruction within that time period, the board may require the student to complete additional courses or attain additional number of hours prior to issuing a license to the person.

Acts 1986, ch. 817, § 23; 1996, ch. 897, § 16.

Compiler's Notes. Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

62-4-124. Teaching outside licensed school.

No teaching of cosmetology, whether to students or licensees, is lawful except in a duly operated school; however, for purposes of this section, “teaching of cosmetology” does not include demonstrations of the technical applications of cosmetology products conducted by manufacturers or dealers, or both; provided, that only students or licensees are in attendance. “Teaching of cosmetology” also does not include instruction in new developments in cosmetology; provided, that the instruction is conducted within cosmetology shops and only students or licensees are in attendance.

Acts 1986, ch. 817, § 24; 1990, ch. 1026, § 11.

Compiler's Notes. Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

62-4-125. Health and safety rules and regulations.

  1. The board shall, with the approval of the department of health, promulgate rules of sanitation that it may deem reasonably necessary, with particular attention to the precautions for preventing the development and spread of infections and contagious diseases.
  2. Each school and shop shall have:
    1. Adequate restroom facilities, except when located in a commercial building where such facilities are already provided; and
    2. Separate entrances from entrances to adjoining residential or living quarters, if any.
  3. Where a school and a shop are operated in the same building, there shall be separate entrances and exits and separate restroom facilities for each business.
  4. It is unlawful:
    1. For the owner or manager of any school or shop to permit any person to sleep in or use for residential purposes any room used wholly or partially as a school or shop; and
    2. For any person, firm or corporation that holds a cosmetology, manicurist or aesthetician license to practice cosmetology outside a shop or school, or for any person, firm or corporation that holds a natural hair styling license to practice natural hair styling outside a shop or school, except:
      1. In any nursing home;
      2. In the recipient's residence, short-term residence, or place of business;
      3. In any hospital or infirmary;
      4. In a funeral establishment;
      5. In a retail establishment, to demonstrate or apply, or both, cosmetics without charge;
      6. At the site of television, motion picture, video or theatrical productions, photographic sessions or similar activities; or
      7. In a licensed mobile shop.

Acts 1986, ch. 817, § 25; 1988, ch. 902, § 14; 1990, ch. 1026, § 12; 1996, ch. 897, § 26; 2013, ch. 477, § 1; 2016, ch. 983, § 5; 2018, ch. 979, §§ 1, 2.

Compiler's Notes. Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

Cross-References. Publication of rules, § 62-4-107.

62-4-126. Identification of school or shop.

Each school and shop, including one located in a private residence, shall display at its entrance a sign of sufficient size to be clearly visible from the street indicating that it is a school or shop.

Acts 1986, ch. 817, § 26.

Compiler's Notes. Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

62-4-127. Inspections — Cause for suspension, revocation, or for denial of license.

  1. The board or its authorized representatives may, at reasonable hours, inspect any place of business operated by any person licensed under this chapter.
  2. The board may suspend, revoke or refuse to issue or renew any license under this chapter for any of the following causes:
    1. Fraud in procuring a license;
    2. Unprofessional, immoral or dishonorable conduct;
    3. Addiction to intoxicating liquors or drugs;
    4. The sale or distribution of wine, beer, liquor or any alcoholic beverages or drugs on the premises of any cosmetology, manicuring, or aesthetics establishment is prohibited; however, wine, beer, liquor or alcoholic beverages may be served to a patron without a charge, but no such beverages shall be served to a patron who is intoxicated or believed to be intoxicated;
    5. Unlawful invasion of the field of practice of any profession;
    6. Receipt of fees or payment on the assurance that any incurable disease can be cured;
      1. Conviction of a felony, if the felony conviction occurred within three (3) years prior to the board's decision to suspend, revoke, or refuse to issue or renew the license. However, an action taken under this subdivision (b)(7)(A) shall be subject to the applicable provisions of the Fresh Start Act that are compiled in chapter 76, part 1 of this title; or
      2. Conviction of any misdemeanor involving moral turpitude, if the misdemeanor conviction occurred within one (1) year prior to the board's decision to suspend, revoke, or refuse to issue or renew the license. However, an action taken under this subdivision (b)(7)(B) shall be subject to the applicable provisions of the Fresh Start Act that are compiled in chapter 76, part 1 of this title;
    7. Any cause for which issuance of a license could have been refused had it existed and been known to the board at the time of issuance;
    8. A violation of this chapter or of any rules duly promulgated under this chapter; or
    9. Failure to comply with a lawful order of the board.

Acts 1986, ch. 817, § 27; 1996, ch. 897, §§ 17, 18; 2015, ch. 267, § 1; 2018, ch. 745, § 4.

Compiler's Notes. Former chapter 4, former §§ 62-4-10162-4-127 (Acts 1939, ch. 29, §§ 1-8, 10-12, 17, 18; 1949, ch. 179, §§ 1, 2, 4-7, 9, 15; C. Supp. 1950, §§ 7139.1-7139.8, 7139.10-7139.12, 7139.16, 7139.17, 7139.21 (Williams, §§ 7139.16-7139.23, 7139.25-7139.27, 7139.29, 7139.33, 7139.39); Acts 1951, ch. 227, §§ 1-3, 6; 1959, ch. 298, §§ 1-4, 7, 8, 10, 11, 17; 1965, ch. 199, §§ 1, 3, 4, 14; 1972, ch. 603, § 1; 1972, ch. 808, §§ 1-3; 1973, ch. 367, § 1; 1975, ch. 104, §§ 3, 4; 1975, ch. 122, §§ 1-4, 7, 8; 1975, ch. 165, § 8; 1976, ch. 649, § 1; 1976, ch. 690, § 1; 1978, ch. 580, § 1; 1978, ch. 581, § 1; 1978, ch. 906, § 14; 1979, ch. 380, §§ 1, 3, 5; 1980, ch. 451, § 11; 1982, ch. 633, §§ 1, 3, 4-10, 12-23; 1984, ch. 521, §§ 1, 2; T.C.A. (orig. ed.), §§ 62-401 — 62-405, 62-408 — 62-411, 62-413 — 62-417, 62-422, 62-423, 62-428, 62-431, 62-432), concerning cosmetology, was repealed by Acts 1986, ch. 817, § 31.

Acts 1986, ch. 817, § 31 provided that the rules promulgated under former §§ 62-4-10162-4-127 prior to August 31, 1986, shall remain in effect as rules under this chapter until amended or repealed by the board. Any such rules that may conflict with a provision of this chapter shall be invalid; however, such invalidity shall not affect the validity of the remaining rules. All licenses and certificates of registration issued under former §§ 62-4-10162-4-127 prior to August 31, 1936, shall remain in effect until they expire or are revoked or modified pursuant to this chapter. This chapter does not affect rights or duties that matured, liabilities or penalties that were incurred, or proceedings begun before August 31, 1986.

Acts 2015, ch. 267, § 2 provided that the act, which amended (b)(7), shall apply to actions by the board on or after April 24, 2015.

62-4-128. Licenses neither transferable nor assignable.

No license issued under this chapter is transferable or assignable.

Acts 1986, ch. 817, § 28.

62-4-129. Penalties — Jurisdiction.

  1. A violation of this chapter or of any rules promulgated under this chapter is a Class B misdemeanor.
  2. In addition to the powers and duties otherwise conferred upon the board, it is empowered to petition any circuit or chancery court having jurisdiction of any person in this state who is violating this chapter and chapter 3 of this title, either with or without a license under this chapter and chapter 3 of this title, to enjoin that person from continuing to violate these chapters. Jurisdiction is conferred upon the circuit and chancery courts of this state to hear and determine such causes.

Acts 1986, ch. 817, § 29; 1989, ch. 591, § 112; 2014, ch. 964, § 11.

Cross-References. Penalty for Class B misdemeanor, § 40-35-111.

Law Reviews.

Do Your Job: Judicial Review of Occupational Licensing in the Face of Economic Protectionism, 70 Vand. L. Rev. 1663 (2017).

62-4-130. Administrative procedures.

The Uniform Administrative Procedures Act, compiled in title 4, chapter 5, governs all matters and procedures respecting the hearing and judicial review of any contested case arising under this chapter.

Acts 1986, ch. 817, § 30.

62-4-131. Renewal of manicurist and shampooer licenses.

  1. Any person holding a valid manicurist and shampooer license on August 1, 1987, shall be entitled to renew the license, so long as a complete renewal application with all appropriate fees is filed with the board no later than September 30 immediately following the license expiration date. If the application is mailed, the postmark of the United States postal service shall be considered the filing date.
  2. Any application for renewal of a manicurist and shampooer license that is filed with the board after September 30 of the year in which the license expires shall be denied. The board shall not reinstate a former manicurist and shampooer licensee who fails to comply with subsection (a).
  3. The board may, in its discretion, issue a manicurist license to a former manicurist and shampooer licensee upon proper application accompanied by all past unpaid renewal fees, the fee for the current license period and a surcharge as set by the board. If the application is made in the same fiscal year as the board denies the applicant's manicurist and shampooer renewal application, the fees submitted with the denied application shall be credited toward the amount due for a manicurist license under this subsection (c). The board shall not issue a manicurist license to an applicant whose manicurist and shampooer license has lapsed for three (3) years or longer unless the applicant passes a practical and state law examination.

Acts 1988, ch. 902, § 12; 1989, ch. 93, § 13; 1989, ch. 523, § 134.

62-4-132. Retired inactive license.

Any person licensed under this chapter may retire the license by submitting a form prescribed by the board accompanied by the current active license and a fee in an amount set by rules promulgated by the board. Upon receipt of an acceptable application to retire the license, the board shall issue a retired inactive license certificate to the retiree. The holder of a retired license shall not be entitled to engage in the practice of any of the areas for which a license is issued under this chapter until the person's license is reactivated in a manner approved by the board.

Acts 1996, ch. 897, § 7; 2015, ch. 402, § 32.

Compiler's Notes. Acts 2015, ch. 402, § 34 provided that the board of cosmetology and barber examiners is authorized to promulgate rules to effectuate the purposes of this act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

62-4-133. Promulgation of rules — Use of banned chemicals and gases.

  1. The board shall, with approval of the department of health, promulgate rules that may be deemed reasonably necessary to insulate or otherwise sufficiently protect the employees and customers of cosmetology, manicure and skin care shops from poisonous or harmful chemical substances or gases.
  2. Within a cosmetology, manicure or skin care shop, liquid methyl methacrylate products and other chemical substances and gases banned by the United States food and drug administration may not be used in any manner that is inconsistent with the requirements, terms and conditions of the ban.

Acts 2000, ch. 607, § 1.

62-4-134. Natural hair styling services.

A licensed natural hair stylist may render natural hair styling services without the supervision of a licensed cosmetologist. Natural hair stylists may render services only in an establishment licensed by the board.

Acts 2002, ch. 706, § 1.

62-4-135. Hair braiding services.

  1. As used in this section:
    1. “Commissioner” means the commissioner of commerce and insurance, or the commissioner's designee; and
    2. “Department” means the department of commerce and insurance.
  2. Before engaging in hair braiding, a person shall:
    1. Attend sixteen (16) hours of training in health and hygiene, either in person or online, as approved by the commissioner, receive a certificate indicating attendance from the training, attest to the one-time training at biennial registration, and retain and display the certificate on request;
    2. Biennially register with the department, providing a name, address, and phone number at which the person can be reached, and pay a registration fee of thirty dollars ($30.00);
    3. Use only disposable instruments or implements that are sanitized in a disinfectant approved for hospital use or approved by the federal environmental protection agency; and
    4. Post a notice at the place of operation indicating that the person is not licensed by the state board of cosmetology and barber examiners.
  3. A person providing hair braiding services pursuant to this section shall not refer to themselves as a licensed natural hair stylist unless the person otherwise meets the requirements under § 62-4-110(f).

Acts 2019, ch. 207, § 3.

Compiler's Notes. Former § 62-4-135 concerned the requirements for authorization as postsecondary institution by board.

Effective Dates. Acts 2019, ch. 207, § 4. July 1, 2019; provided that, for the purposes of  promulgating rules, the act took effect April 25, 2019.

62-4-136. [Repealed.]

Acts 2014, ch. 863, § 3; 2015, ch. 358, § 3; repealed by Acts 2015, ch. 358, § 3, effective June 30, 2016.

Compiler's Notes. Former § 62-4-136 concerned filing of complaints with board against school for violation of part and an action to revoke authorization.

62-4-137. Animals permitted in shops.

No animals, except service animals, fish for decorative purposes, and birds in cages shall be permitted in any shop. Bird cages in shops shall be cleaned daily. Departmental inspectors shall ensure that bird cages are cleaned sufficiently to prevent any hazard to human health or well-being.

Acts 2015, ch. 402, § 33.

Compiler's Notes. Acts 2015, ch. 402, § 34 provided that the board of cosmetology and barber examiners is authorized to promulgate rules to effectuate the purposes of this act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

62-4-138. License for mobile shop.

  1. No person shall operate a mobile shop without a valid mobile shop license issued by the board. Application for the license shall be made upon application forms furnished by the board.
  2. The board shall issue a license for a mobile shop to an applicant who:
    1. Holds a valid, current license for a shop that has a fixed location;
    2. Pays an application fee in an amount set by the board by rule, not to exceed the cost of administering this section;
    3. Pays an initial license fee in the amount set by the board by rule; and
    4. Undergoes and passes an initial inspection.
  3. A license for a mobile shop shall be subject to renewal at the same time that the licensee's shop license is subject to renewal pursuant to § 62-4-118(h). The renewal fee for a license for a mobile shop shall be set by the board by rule.
  4. A mobile shop for which a license is issued shall be subject to all of the health and safety requirements that apply to shops that have a fixed location under this chapter and the rules promulgated pursuant thereto; provided, that a mobile shop shall not be required to have a restroom and that the board may promulgate rules allowing or requiring mobile shops to have equipment different from shops with a fixed location.
    1. The board may either refuse to issue or renew or may suspend or revoke any license for a mobile shop for any of the reasons in § 62-4-127.
    2. The board shall revoke any license for a mobile shop if the licensee's license for a shop that has a fixed location expires or is revoked.
    3. If a licensee's license for a shop that has a fixed location is suspended, the board shall also suspend any license that has been issued to such licensee for a mobile shop for the same period of time.

Acts 2016, ch. 983, § 4.

Chapter 5
Funeral Directors and Embalmers

Part 1
General Provisions

62-5-101. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Authorizing agent or agents” means a person or persons legally entitled to authorize the cremation of a dead human body or body parts. “Authorizing agent or agents” does not include a funeral director or funeral establishment;
  2. “Board” means the board of funeral directors and embalmers;
  3. “Cremation” means the heating process by which a human body or body parts are reduced to bone fragments through combustion and evaporation;
  4. “Crematory” means the building or portion of a building that houses one (1) or more cremation chambers used for the reduction of body parts or bodies of deceased persons to cremated remains and the holding facility. “Crematory” includes crematorium;
  5. “Embalming” means the preservation and disinfection, restoration or attempted preservation or disinfection of dead human bodies by the application of chemicals externally or internally, or both;
    1. “Funeral directing” means the:
      1. Practice of directing or supervising funerals or the practice of preparing dead human bodies for burial by any means, other than by embalming, or the disposition of dead human bodies;
      2. Making of arrangements to provide for funeral services or the making of financial arrangements for the rendering of funeral services;
      3. Provision or maintenance of a place for the preparation for disposition or for the care or disposition of dead human bodies;
      4. Use of the word or term “funeral director,” “undertaker,” “mortician,” “funeral parlor,” “funeral chapel” or any other word or term from which can be implied the practice of funeral directing; or
      5. Holding out to the public that one is a funeral director or engaged in a practice described in this subdivision (6);
    2. For the purposes of this chapter, the following are exempted from the definition of “funeral directing”:
      1. The sale, maintenance and beautification of grave spaces;
      2. The sale, installation and maintenance of permanent grave or crypt markers;
      3. The opening and closing of a grave or crypt and the provision of the necessary grave or crypt equipment required for the final interment or entombment of casketed human bodies or cremated human remains;
      4. The sale and maintenance of crypts constructed of permanent material as an integral part of a group of crypts that are constructed on the site of intended use in a cemetery;
      5. The sale and maintenance of above ground mausoleum crypts; and
      6. The sale of funeral merchandise;
    3. Nothing in this section shall be construed as in conflict with § 46-2-101;
  6. “Funeral establishment” means any business, whether a proprietorship, partnership, firm, association or corporation, engaged in arranging, directing or supervising funerals for profit or other benefit, the preparing of dead human bodies for burial, the disposition of dead human bodies, the provision or maintenance of place for the preparation for disposition, or for the care or disposition of human bodies;
  7. “Licensee” means an embalmer or funeral director who holds a license issued by the board;
  8. “Licensing period” means the period of time that a funeral director's or embalmer's license is in effect in this state;
  9. “Removal service”:
    1. Means any person or entity that engages in arranging, directing, supervising or performing the transportation of deceased human remains for a fee; and
    2. Does not include:
      1. A licensed funeral director, a licensed embalmer, a licensed funeral establishment or person's employees;
      2. A federal, state or county government agency involved in the transportation of deceased human remains; and
      3. A private, for-profit ambulance service licensed pursuant to the Emergency Medical Services Act of 1983, compiled in title 68, chapter 140, part 3;
  10. “Resident trainee” or “apprentice” means a person who is engaged in learning to practice as a funeral director or embalmer, as the case may be, under the personal supervision and instruction of a duly licensed funeral director or embalmer of this state under this chapter; and
  11. “State funeral directors association” means the Tennessee Funeral Directors Association or the Tennessee Funeral Directors and Morticians Association, a corporation.

Acts 1951, ch. 13, § 2 (Williams, § 7140.2); Acts 1968, ch. 542, § 1; 1972, ch. 553, § 1; T.C.A. (orig. ed.), § 62-501; Acts 1997, ch. 275, § 1; 2002, ch. 809, § 1; 2010, ch. 720, §§ 3, 4; 2013, ch. 437, § 1.

Cross-References. Cemetery merchandise and services, title 46, ch. 1, part 2.

Liability of professional societies, title 62, ch. 50, part 1.

Recipients of dead bodies to be notified of communicable diseases and AIDS, § 68-5-102.

Reports of certain injuries, § 38-1-101.

Rigid containers not mandatory for remains of certain children, § 68-4-112.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Cemeteries, § 9; 15 Tenn. Juris., Insurance, § 22; 17 Tenn. Juris., Licenses, §§ 14, 16.

Law Reviews.

Caskets “R” Us v. Tennessee Board of Funeral Directors: An open-and-shut case (Bill Haltom), 36 No. 10 Tenn. B.J. 37 (2000).

Torts — Crematorium as a Nuisance — Anticipatory Injunction — Psychic and Aesthetic Injury, 34 Tenn. L. Rev. 329.

Do Your Job: Judicial Review of Occupational Licensing in the Face of Economic Protectionism, 70 Vand. L. Rev. 1663 (2017).

Attorney General Opinions. Human-remains removal service owned by licensed funeral director or licensed embalmer as sole proprietorship is exempt from registration.  Service organized as a corporation or LLC that is not a licensed funeral establishment and has a licensed funeral director or a licensed embalmer as an officer or manager is not exempt from registration.  OAG 14-18, 2014 Tenn. AG LEXIS 19 (2/13/14).

NOTES TO DECISIONS

1. Constitutionality.

The provisions of the former Funeral Directors and Embalmers Act (FDEA) under T.C.A. § 62-5-101 that require an individual to become a licensed funeral director in order to lawfully sell a casket or an urn violate the Due Process and equal protection clauses of the U.S. Const. amend. 14. Craigmiles v. Giles, 110 F. Supp. 2d 658, 2000 U.S. Dist. LEXIS 12582 (E.D. Tenn. 2000), aff'd, 312 F.3d 220, 2002 FED App. 417P, 2002 U.S. App. LEXIS 24637 (6th Cir. Tenn. 2002).

Former T.C.A. § 62-5-101(a)(3)(A)(ii) of the Tennessee Funeral Directors and Embalmers Act prohibiting sales of caskets by persons not licensed as funeral directors violated the due process and equal protection clauses of the fourteenth amendment to the U.S. Constitution as applied to casket store operators; the statute did not bear a rational relationship to any legitimate purpose other than protecting the economic interests of licensed funeral directors. Craigmiles v. Giles, 312 F.3d 220, 2002 FED App. 417P, 2002 U.S. App. LEXIS 24637 (6th Cir. Tenn. 2002).

2. Crematories.

Funeral directing includes the operation of a crematory. State ex rel. Cunningham v. Feezell, 218 Tenn. 17, 400 S.W.2d 716, 1966 Tenn. LEXIS 549 (1966).

Practice of funeral directing still includes the operation of a crematory, and this was consistent with the general assembly's definition of a funeral establishment to include both funeral homes and crematories; clearly, state lawmakers did not view funeral homes and crematories as separate industries, but rather as complementary services offered by the funeral industry. BMC Enters. v. City of Mt. Juliet, 273 S.W.3d 619, 2008 Tenn. App. LEXIS 186 (Tenn. Ct. App. Mar. 27, 2008).

62-5-102. Persons exempt from chapter.

Nothing in this chapter shall be constituted to prevent or interfere with the ceremonies, customs, religious rites or religion of any people, denomination or sect, to prevent or interfere with any religious denomination, sect or any body composed of persons of a denomination, or to prevent or interfere with any church or synagogue from having its committee or committees prepare human bodies for burial or to the families, friends or neighbors of deceased persons who prepare and bury their dead without charge.

Acts 1951, ch. 13, § 16 (Williams, § 7140.16); T.C.A. (orig. ed.), § 62-526; Acts 1997, ch. 169, § 1.

62-5-103. Penalty for violations.

  1. A violation of this chapter is a Class C misdemeanor.
  2. It is the duty of the district attorney general to prosecute violations of this chapter.

Acts 1951, ch. 13, § 21 (Williams, § 7140.21); T.C.A. (orig. ed.), § 62-527; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

62-5-104. Description of funeral merchandise.

  1. All receptacles and containers used for burial, entombment or other final disposition of a dead human body or the remains of a dead human body shall bear in a conspicuous location on the outside, concise wording describing the material of which the receptacle or container is formed or manufactured, such as, but not limited to, 20 gauge steel, 32 oz. copper, solid oak, 12 gauge steel, reinforced concrete, preformed concrete, soft wood box, etc.
  2. Every person who violates this section commits a Class A misdemeanor, and upon conviction, shall be fined no less than one hundred dollars ($100) nor more than five hundred dollars ($500) per violation or shall be imprisoned for no less than ten (10) days nor more than ninety (90) days per violation, or both.
  3. In addition to the other remedies, an action of injunction may be brought and maintained by the state of Tennessee or any other interested party or parties to enjoin the violation of this section.

Acts 1972, ch. 553, § 4; T.C.A., §§ 62-536 — 62-538; Acts 1989, ch. 591, §§ 1, 6.

Code Commission Notes.

The misdemeanor in this section had been designated as a Class A misdemeanor by authority of § 40-35-110, which provides that an offense designated a misdemeanor without specification as to category is a Class A misdemeanor. See also § 39-11-114.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Penalty for violation of chapter, § 62-5-103.

Rigid containers not mandatory for remains of certain children, § 68-4-112.

NOTES TO DECISIONS

1. Constitutionality.

The funeral merchandise sales licensure requirement is not a rational means of achieving legitimate state purposes; therefore, the provisions of former T.C.A. § 62-5-101 that require an individual to become a licensed funeral director in order to lawfully sell a casket or an urn violate the due process clause of U.S. Const. amend. 14. Craigmiles v. Giles, 110 F. Supp. 2d 658, 2000 U.S. Dist. LEXIS 12582 (E.D. Tenn. 2000), aff'd, 312 F.3d 220, 2002 FED App. 417P, 2002 U.S. App. LEXIS 24637 (6th Cir. Tenn. 2002).

62-5-105. Hearings and judicial review.

The Uniform Administrative Procedures Act, compiled in title 4, chapter 5, governs all matters and procedures respecting the hearing and judicial review of any contested case arising under this chapter.

Acts 1980, ch. 451, § 11; T.C.A., § 62-539.

62-5-106. Advertisements.

Any advertisement by a funeral director or embalmer for the sale of merchandise or services that indicates a specific price shall include an itemized listing of each and every item, procedure or service and shall show the price of the item. Failure to include the itemized price listing in any advertisement constitutes misrepresentation or fraud in the conduct of the business of the funeral establishment or false and misleading advertising as used in § 62-5-317.

Acts 1984, ch. 533, § 1.

62-5-107. Utilization of licensed crematory facilities by funeral directors — Penalty for violation —Limited civil liability.

  1. A funeral director shall utilize the services only of licensed crematory facilities.
  2. If a funeral director utilizes the services of a crematory outside of this state, the crematory must be a licensed facility of the state in which the crematory is located.
  3. Prior to utilizing a crematory, the funeral director shall:
    1. Determine that the crematory is currently licensed in this state or, if an out-of-state crematory, the state in which it is located;
    2. Obtain and maintain a copy of the crematory's current license and further maintain a copy of the results of the latest regularly scheduled inspection of the crematory by the state in which the facility is located, if that state inspects crematories; and
    3. Deliver a written disclosure to the authorizing agent or agents. The written disclosure shall, at a minimum:
      1. Include the name, telephone number and address of the in-state or out-of-state crematory;
      2. Provide for the specific consent of the authorizing agent or agents for the use of the in-state or out-of-state crematory;
      3. Be signed and dated by the funeral director and the authorizing agent or agents; and
      4. Be retained by the Tennessee funeral director at a licensed Tennessee funeral establishment, with a copy provided to the authorizing agent or agents.
  4. Notwithstanding § 62-5-103, a violation for each use of an unlicensed crematory pursuant to this section shall be punishable only as provided by §§ 56-1-308 and 62-5-317 and any rules promulgated under §§ 56-1-308 and 62-5-317.
    1. The funeral director shall not be liable for damages in a civil action for any error, inaccuracy or omission of any information delivered pursuant to this section if:
      1. The error, inaccuracy or omission was based upon information provided by public agencies or by other individuals or entities providing information that is required to be disclosed pursuant to this section; and
      2. The funeral director was not grossly negligent in obtaining the information from a third party and transmitting the information as required under this section.
    2. It is an affirmative defense in any such civil action that the funeral director complied with the requirements of this section upon submitting to the court copies of the signed consent form and the license and inspection results of the in-state or out-of-state crematory used by the funeral director for the cremation of the dead human body or body parts that is the subject of the civil action.

Acts 2002, ch. 809, § 2.

62-5-108. Display of license on crematory vehicles transporting remains.

  1. Any vehicle that transports a dead human body or body parts from a funeral establishment in this state to a crematory, other than a vehicle that is owned or operated by a funeral establishment and has the name of the funeral establishment on the outside of the vehicle, shall display a copy of the crematory's current license in the vehicle in such a way as to be visible from the outside of the vehicle during the time the body or body parts are in the vehicle.
  2. This requirement is solely to provide notice to the funeral establishment that the dead human body or body parts are being released to the proper parties for the cremation of the body or body parts and no criminal penalty shall apply if the license is not so displayed.

Acts 2002, ch. 809, § 2.

Part 2
Board of Funeral Directors and Embalmers

62-5-201. Creation — Appointment and terms of members.

  1. There is created a state board to be known and designated as the board of funeral directors and embalmers for this state. The board shall consist of seven (7) members who shall possess good moral character, shall be residents of the state and shall be appointed by the governor. Four (4) of the members shall be licensed as both funeral directors and embalmers and two (2) of the members shall be licensed as funeral directors, embalmers, or both, all of whom shall possess a minimum of five (5) consecutive years' experience in this state immediately preceding their appointment. At least one (1) member may be appointed from lists of qualified nominees submitted by interested funeral director and embalmer groups including, but not limited to, the Tennessee Funeral Directors Association. At least one (1) member may be appointed from lists of qualified nominees submitted by interested funeral director and mortician groups including, but not limited to, the Tennessee State Funeral Directors and Morticians Association. The governor shall consult with such interested groups to determine qualified persons to fill the positions. One (1) of the seven (7) members serving on the board shall be a person who is not engaged in the business of a funeral director or embalmer or otherwise commercially associated with any funeral establishment. There shall be at least two (2) members but no more than three (3) members from each grand division. In making appointments to the board, the governor shall strive to ensure that at least one (1) person serving on the board is sixty (60) years of age or older and that at least one (1) person serving on the board is a member of a racial minority.
  2. On January 1 of each year, the governor shall appoint a person who shall serve as a member of the board for a period of four (4) years or until a successor is appointed and qualified. It is the purpose of this section that at least one (1) member shall retire from the board at the end of each year, thereby creating a rotating board.
  3. A member of the board shall not be eligible for at least one (1) term for reappointment to membership on the board.
  4. Vacancies occurring on the board shall be filled in accordance with this section for the balance of the unexpired term.

Acts 1951, ch. 13, § 3 (Williams, § 7140.3); Acts 1959, ch. 314, § 1; 1980, ch. 554, § 3; T.C.A. (orig. ed.), § 62-502; Acts 1988, ch. 1013, § 29; 1991, ch. 284, § 1; 2012, ch. 694, § 1; 2015, ch. 161, § 1.

Compiler's Notes. The board of funeral directors and embalmers, created by this section, terminates June 30, 2024. See §§ 4-29-112, 4-29-245.

The regulatory board created by this section is attached to the division of regulatory boards in the department of commerce and insurance for purposes of administration, see §§ 4-3-1304, 56-1-30156-1-306.

Pursuant to Article III, Section 18 of the Constitution of the State of Tennessee, Acts 2015, ch. 161 became effective April 17, 2015.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

State examining boards, general provisions, title 4, ch. 19.

62-5-202. Oath of members.

Members of the board, before entering upon their duties, shall take and subscribe to the oath of office provided for state officers.

Acts 1951, ch. 13, § 4 (Williams, § 7140.4); T.C.A. (orig. ed.), § 62-503.

62-5-203. President — Rules and regulations.

The board has the power to select from its members a president and vice president, to adopt, promulgate, and enforce rules and regulations to effectuate this chapter, to transact its business, and to establish standards of service, practice, and education for licensees, consistent with the laws of this state.

Acts 1951, ch. 13, § 4 (Williams, § 7140.4); Acts 1967, ch. 372, § 1; 1973, ch. 37, § 1; 1976, ch. 806, § 1(103); 1978, ch. 906, § 16; 1980, ch. 554, § 4; T.C.A. (orig. ed.), § 62-504; Acts 2014, ch. 690, § 1.

62-5-204. [Reserved.]

The director of the division of regulatory boards or the director's designee shall serve as executive director for the board and shall provide all administrative functions for the board.

Acts 1951, ch. 13, § 4 (Williams, § 7140.4); Acts 1967, ch. 372, § 2; 1975, ch. 236, § 1; 1978, ch. 906, § 17; 1978, ch. 924, § 4; T.C.A. (orig. ed.), § 62-505; Acts 1996, ch. 742, § 1.

62-5-206. Meetings — Quorum.

  1. The board may hold meetings that it may deem necessary; provided, that all members have been notified in writing of the meetings and may transact any business at any such meeting.
  2. Four (4) or more members shall comprise a quorum authorizing the board to transact the business prescribed under this chapter.

Acts 1951, ch. 13, § 5 (Williams, § 7140.5); Acts 1975, ch. 165, § 9; 1976, ch. 806, § 1(103); 1978, ch. 906, § 18; 1980, ch. 554, § 5; T.C.A. (orig. ed.), § 62-506; Acts 1999, ch. 20, § 1.

62-5-207. Revenues and expenses.

  1. All fees, penalties and other moneys derived from the operation of this chapter shall be paid to the board and shall be used by it for the purpose of defraying the necessary expenses of the board in the administration of this chapter.
  2. The moneys received by the board over and above the expenses of the board shall be paid into the state treasury.

Acts 1951, ch. 13, § 22 (Williams, § 7140.22); T.C.A. (orig. ed.), § 62-507.

62-5-208. Power to conduct inspections and investigate complaints.

  1. Notwithstanding any provision of this chapter or rule to the contrary, the board is authorized to conduct inspections and investigate complaints to enforce this chapter.
  2. The board, utilizing an authorized representative licensed as a funeral director and embalmer, shall:
    1. Inspect a funeral establishment making application to the board for initial licensure, change of ownership, or change of location, prior to approving the application; provided, if the establishment to be inspected is a crematory facility, the authorized representative shall also be certified as a crematory operator; and
    2. Conduct an unannounced inspection of every funeral establishment each year. The following provisions apply to inspections required by this subdivision (b)(2):
      1. Inspections shall be conducted on weekdays between the hours of eight o'clock a.m. (8:00 a.m.) and four-thirty p.m. (4:30 p.m.);
      2. Inspections shall be limited in scope to items in an inspection checklist that shall be published on the board's website; provided, that violations of other items that are plainly visible may be documented; and
      3. If a funeral establishment is unable to participate due to factors not reasonably within its control, the authorized representative may defer the inspection, or a portion thereof, and the funeral establishment shall not incur a reinspection fee.
  3. During the course of inspections, reasonable care shall be used to avoid disruption to invitees being served by the funeral establishment.
  4. A licensee shall not unreasonably fail to cooperate with an authorized representative acting in accordance with this chapter.

Acts 2014, ch. 690, § 2; 2015, ch. 161, § 2.

Compiler's Notes. Pursuant to Article III, Section 18 of the Constitution of the State of Tennessee, Acts 2015, ch. 161 became effective April 17, 2015.

Part 3
Licensing

62-5-301. Publication of examination rules.

The board of funeral directors and embalmers shall publish its rules and regulations covering subjects to be included in all examinations, the method of conducting the examinations and other matters pertaining to the examinations.

Acts 1951, ch. 13, § 7 (Williams, § 7140.7); T.C.A. (orig. ed.), § 62-508; Acts 2001, ch. 188, § 1.

62-5-302. Preservation of examination papers.

All manuscripts submitted in answer to questions on any examination provided in this chapter shall be kept on file for at least sixty (60) days after the results are announced by the board, shall be made available to the applicant for examination in the presence of a member of the board or representatives of the examination testing service and shall be made available in case the applicant desires to contest the results.

Acts 1951, ch. 13, § 6 (Williams, § 7140.6); T.C.A. (orig. ed.), § 62-509; Acts 2001, ch. 188, § 2.

62-5-303. Licensing requirement.

    1. In order to safeguard life and health and to prevent the spread of contagious diseases and to improve sanitary conditions and public health generally, it is required that only properly qualified persons shall engage in funeral directing, embalming and operating of a funeral establishment.
    2. Any person engaged in funeral directing, embalming and operating of a funeral establishment in this state shall be licensed by the board created in part 2 of this chapter prior to engaging in funeral directing, embalming and operating of a funeral establishment.
  1. It is unlawful for any person to engage in, or offer to engage in, either funeral directing, embalming or operation of a funeral establishment unless the person or business has been duly licensed under this chapter.

Acts 1951, ch. 13, § 1 (Williams, § 7140.1); Acts 1968, ch. 542, § 2; T.C.A. (orig. ed.), § 62-510.

Compiler's Notes. The offense in this section may be affected by the Criminal Sentencing Reform Act of 1989, compiled in title 40, chapter 35. See §§ 39-11-114, 40-35-110, 40-35-111.

NOTES TO DECISIONS

1. Constitutionality.

The funeral merchandise sales licensure requirement is not a rational means of achieving legitimate state purposes; therefore, to the extent that T.C.A. § 62-5-303 requires an individual to become a licensed funeral director in order to lawfully sell a casket or an urn, it violates the due process clause of U.S. Const. amend 14. Craigmiles v. Giles, 110 F. Supp. 2d 658, 2000 U.S. Dist. LEXIS 12582 (E.D. Tenn. 2000), aff'd, 312 F.3d 220, 2002 FED App. 417P, 2002 U.S. App. LEXIS 24637 (6th Cir. Tenn. 2002).

62-5-304. Application for funeral establishment license.

  1. Every person, partnership, firm, association or corporation desiring to commence the operation of a funeral establishment after January 1, 2008, shall make application to the board, along with payment of a nonrefundable fee as set by the board.
  2. All applications shall show the:
    1. Name of establishment;
    2. Address of establishment;
    3. Owner or owners of establishment;
    4. Name and address of the licensed funeral director who will act as manager of the funeral establishment;
    5. Names and addresses of all licensed funeral directors and embalmers, designating whether they are part-time or full-time employees; and
    6. Names of all unlicensed assistants.
  3. Each establishment location shall be licensed separately from any other funeral establishment.

Acts 1968, ch. 542, § 3; T.C.A., § 62-511; Acts 1989, ch. 523, § 149; 2007, ch. 297, § 1.

Cross-References. Fee for applicants in business on December 31, 1968, § 62-5-310.

62-5-305. Application for funeral director's license — Apprenticeship.

  1. Every person not previously licensed in this state as a funeral director, desiring to engage in the practice or business of funeral directing, shall make application to the board, along with a nonrefundable fee as set by the board.
  2. The application shall contain the name of the applicant, showing that the applicant:
    1. Has attained eighteen (18) years of age;
    2. Is a citizen of the United States;
    3. Is of good moral character;
    4. Is properly protected against communicable diseases, either through immunization or education;
    5. Has graduated from a high school or has earned a GED(R) recognized by a state education department;
    6. Has successfully completed a program of study in funeral service education consisting of no less than thirty (30) semester hours, forty-five (45) quarter hours or the equivalent from a school accredited by the American Board of Funeral Service Education and evidenced by an official transcript; and
    7. Has completed two (2) years of apprenticeship in the presence of and under the direction and supervision of a licensed funeral director. An associate's degree from a college accredited by the American Board of Funeral Service Education may be substituted for one (1) year of apprenticeship.

Acts 1951, ch. 13, § 8 (Williams, § 7140.8); Acts 1971, ch. 161, § 2; 1973, ch. 35, § 1; 1980, ch. 554, § 6; T.C.A. (orig. ed.), § 62-512; Acts 1985, ch. 354, § 7; 1989, ch. 523, § 150; 2001, ch. 188, §§ 5-8; 2007, ch. 297, § 2; 2016, ch. 838, § 9.

Attorney General Opinions. The practical training and experience required of applicants for a funeral director's license may occur outside the state; provided, that such apprenticeship occurs under the personal supervision and instruction of a funeral director licensed in Tennessee, OAG 03-003, 2003 Tenn. AG LEXIS 2 (1/13/03).

The Eligibility Verification for Entitlements Act (EVEA) can be read in harmony with laws requiring licensure applicants to be U.S. citizens or U.S. citizens or resident aliens and therefore did not impliedly repeal those laws. State laws requiring licensure applicants to be U.S. citizens are preempted to the extent they conflict with a federal law that limits States’ authority to determine alien eligibility for state public benefits, including professional and commercial licenses. State laws requiring licensure applicants to be U.S. citizens also violate the Equal Protection Clause because they discriminate based on alienage and would not satisfy strict scrutiny. State laws requiring licensure applicants to be U.S. citizens or resident aliens are preempted to the extent they conflict with a federal law that limits States’ authority to determine alien eligibility for state public benefits, including professional and commercial licenses. Laws requiring licensure applicants to be U.S. citizens or resident aliens do not violate the Equal Protection Clause, however, because they discriminate only against unlawful aliens and lawful aliens who are not permanent residents. Those categories of aliens are not a suspect class, and the laws at issue would likely satisfy rational basis review. The Department of Commerce and Insurance is not required to enforce the requirements that an applicant for licensure, registration, or certification be a “citizen of the United States” or a “citizen of the United States or resident alien.” OAG 18-42, 2018 Tenn. AG LEXIS 42 (9/13/2018).

NOTES TO DECISIONS

1. Constitutionality.

To the extent that provisions of the former Funeral Directors and Embalmers Act (FDEA), T.C.A. § 62-5-101 et seq., require an individual to become a licensed funeral director in order to lawfully sell a casket or an urn, the provisions violate the U.S. Const. amend. 14. Craigmiles v. Giles, 110 F. Supp. 2d 658, 2000 U.S. Dist. LEXIS 12582 (E.D. Tenn. 2000), aff'd, 312 F.3d 220, 2002 FED App. 417P, 2002 U.S. App. LEXIS 24637 (6th Cir. Tenn. 2002).

62-5-306. Examination for funeral directors — Issuance of license.

  1. In addition to the qualifications listed in §  62-5-305, every person desiring to enter into the practice of funeral directing, except as otherwise provided in this chapter, shall pass an examination to determine the applicant's knowledge and fitness for the practice of funeral directing as required by this chapter.
  2. The board shall determine the subjects of examination and their scope, content and character, which in any examination shall be the same for all applicants. Examinations shall be held no less than twice each year, and the board shall give thirty (30) days' notice in advance of the time and place of the examinations.
  3. If the board finds upon examination that the applicant has a reasonable knowledge of sanitation and disinfection of premises, clothing, bedding and other articles subject to contagion and infection, has a reasonable knowledge of the sanitation and disinfection of bodies of diseased persons where death was caused by infectious diseases or communicable diseases, has all the requirements and qualifications stated in this chapter and has complied with all the rules and regulations of the board applying to funeral directors, the board shall, upon receipt of a fee as set by the board, issue to the applicant a license to practice funeral directing.
  4. The current license of each funeral director shall be available for inspection in the office of the funeral establishment in which the funeral director works. If a funeral director works in more than one (1) establishment, the funeral director shall obtain from the board, for a fee established by the board, the number of duplicate licenses necessary to have a license available for inspection at each establishment at which the funeral director works.

Acts 1951, ch. 13, § 9 (Williams, § 7140.9); T.C.A. (orig. ed.), § 62-513; Acts 1985, ch. 354, § 8; 1989, ch. 523, § 151; 1991, ch. 523, § 1; 2001, ch. 188, §§ 3, 9, 15.

NOTES TO DECISIONS

1. Constitutionality.

There is no reason to require someone who sells what is essentially a box to undergo the time and expense of training and testing that has nothing to do with the state's asserted goals of consumer protection and health and safety; therefore, to the extent that provisions of the former Funeral Directors and Embalmers Act (FDEA), T.C.A. § 62-5-101 et seq., require an individual to become a licensed funeral director in order to lawfully sell a casket or an urn, the provisions violate the equal protection clause of U.S. Const. amend. 14. Craigmiles v. Giles, 110 F. Supp. 2d 658, 2000 U.S. Dist. LEXIS 12582 (E.D. Tenn. 2000), aff'd, 312 F.3d 220, 2002 FED App. 417P, 2002 U.S. App. LEXIS 24637 (6th Cir. Tenn. 2002).

62-5-307. Application for embalmer's license — Apprenticeship.

  1. No person shall be granted a license to engage in the practice of embalming dead human bodies within this state unless the person makes application to the board for the license, along with a nonrefundable fee as set by the board.
  2. The application shall contain the name of the applicant, showing that the applicant:
    1. Has attained eighteen (18) years of age;
    2. Is a citizen of the United States or an individual enumerated in 8 U.S.C. § 1622(b);
    3. Is of good moral character;
    4. Is properly protected against communicable disease, either through immunization or education;
    5. Has graduated from a high school or has earned a GED(R) recognized by a state education department;
    6. Has obtained an associate degree by successfully completing a mortuary science program consisting of not less than sixty (60) semester hours, ninety (90) quarter hours or the equivalent, with a program accredited by the American Board of Funeral Service Education and evidenced by an official transcript; and
    7. Has completed one (1) year of apprenticeship in the presence of and under the direction and supervision of a licensed embalmer.

Acts 1951, ch. 13, § 11 (Williams, § 7140.11); Acts 1973, ch. 36, § 1; 1973, ch. 39, § 1; 1980, ch. 554, § 7; T.C.A. (orig. ed.), § 62-514; Acts 1985, ch. 354, § 9; 1989, ch. 523, § 152; 2001, ch. 188, §§ 10, 11; 2007, ch. 297, § 3; 2019, ch. 161, §§ 1, 2.

Amendments. The 2019 amendment added “or an individual enumerated in 8 U.S.C. S 1622(b)” at the end of (b)(2); and substituted “associate degree” for “associate of arts degree” in (b)(6).

Effective Dates. Acts 2019, ch. 161, § 3. April 18,  2019.

Law Reviews.

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253.

Attorney General Opinions. The Eligibility Verification for Entitlements Act (EVEA) can be read in harmony with laws requiring licensure applicants to be U.S. citizens or U.S. citizens or resident aliens and therefore did not impliedly repeal those laws. State laws requiring licensure applicants to be U.S. citizens are preempted to the extent they conflict with a federal law that limits States’ authority to determine alien eligibility for state public benefits, including professional and commercial licenses. State laws requiring licensure applicants to be U.S. citizens also violate the Equal Protection Clause because they discriminate based on alienage and would not satisfy strict scrutiny. State laws requiring licensure applicants to be U.S. citizens or resident aliens are preempted to the extent they conflict with a federal law that limits States’ authority to determine alien eligibility for state public benefits, including professional and commercial licenses. Laws requiring licensure applicants to be U.S. citizens or resident aliens do not violate the Equal Protection Clause, however, because they discriminate only against unlawful aliens and lawful aliens who are not permanent residents. Those categories of aliens are not a suspect class, and the laws at issue would likely satisfy rational basis review. The Department of Commerce and Insurance is not required to enforce the requirements that an applicant for licensure, registration, or certification be a “citizen of the United States” or a “citizen of the United States or resident alien.” OAG 18-42, 2018 Tenn. AG LEXIS 42 (9/13/2018).

62-5-308. Embalmers' examination — Issuance of license.

  1. In addition to the qualifications listed in §  62-5-307, every person desiring to enter into the practice of embalming, except as provided in this chapter, shall pass an examination to determine the person's knowledge and fitness for the practice of embalming, as required by this chapter.
  2. The board shall determine the subjects of examination and their scope, content and character, which in any examination shall be the same for all applicants. Examinations shall be held no less than twice each year, and the board shall give thirty (30) days' notice in advance of the time and place of the examinations.
  3. Upon examination, if the board finds that the applicant meets the requirements of age, citizenship, moral character, education, experience and having successfully passed the examination, the board shall, upon receipt of a fee as set by the board, issue a license to an applicant to engage in the practice of embalming.
  4. The current license of each embalmer shall be available for inspection in the office of the funeral establishment in which the embalmer works. If an embalmer works in more than one (1) establishment, the embalmer shall obtain from the board, for a fee established by the board, the number of duplicate licenses necessary to have a license available for inspection at each establishment at which the embalmer works.

Acts 1951, ch. 13, § 12 (Williams, § 7140.12); T.C.A. (orig. ed.), § 62-515; Acts 1985, ch. 354, § 10; 1989, ch. 523, § 153; 2001, ch. 188, §§ 4, 12, 16.

62-5-309. Practice by unregistered persons prohibited.

  1. It is unlawful for any person not a registered funeral director or embalmer to engage in funeral directing or embalming.
  2. It is unlawful for any person, partnership, firm, association or corporation not licensed as provided in this chapter to engage in the operation of a funeral establishment.

Acts 1951, ch. 13, § 13 (Williams, § 7140.13); Acts 1968, ch. 542, § 3; T.C.A. (orig. ed.), § 62-516.

Compiler's Notes. The offenses in this section may be affected by the Criminal Sentencing Reform Act of 1989, compiled in title 40, chapter 35. See §§ 39-11-114, 40-35-110, 40-35-111.

Law Reviews.

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253.

NOTES TO DECISIONS

1. Operation Without License.

Operation of a crematory could be included within the definition of funeral directing as set out in § 62-5-101, but the provisions of this section prohibiting such operation without a license only has application where such operation has begun and cannot serve as a basis for enjoining such an operation before it commences. State ex rel. Cunningham v. Feezell, 218 Tenn. 17, 400 S.W.2d 716, 1966 Tenn. LEXIS 549 (1966).

62-5-310. Licenses to persons practicing before 1951 and establishments operating before 1969.

    1. Any person who on February 8, 1951, held a license granted by any authority of this state to carry on the profession of embalming, or any person who was on February 8, 1951, a regular and bona fide funeral director in this state, shall not be required to submit to an examination, but shall be entitled to receive a license upon the same terms and conditions as are provided in this chapter for the renewal of licenses of those who may be licensed under this chapter; provided, that the application is made prior to January 1, 1973. The license shall be issued by the board upon the payment of a fee of five dollars ($5.00) per license.
    2. All such applicants shall be subject to every other provision of this chapter and rules and regulations that the board may adopt in pursuance of this chapter.
    3. Any person on February 8, 1951, who was employed as an embalmer by a funeral director in this state, shall be entitled to take the examination prescribed in this chapter upon application to the board, prior to July 1, 1972, notwithstanding any other requirement.
  1. Any person, partnership, firm, association or corporation actively engaged in the operation of a funeral establishment on or before December 31, 1968, shall be granted a license for the operation of a funeral home establishment upon application accompanied by payment of a fifteen dollar ($15.00) fee; provided, that the applicant has complied with every other provision of this chapter and rules and regulations that the board may adopt in pursuance of this chapter.
  2. Any person who on January 1, 1960, held a license granted by authority of this state to engage in the profession of embalming and who is no longer so licensed for the sole reason that the person voluntarily chose not to pay the license renewal fee shall not be required to submit to an examination but shall be entitled to receive a license upon the same terms and conditions as are provided in this chapter for the renewal of licenses of those who are licensed under this chapter; provided, that the person pays all license renewal fees that would have been required from the date the license was allowed to lapse until the date application for renewal pursuant to this subsection (c) is made.

Acts 1951, ch. 13, § 18 (Williams, § 7140.18); Acts 1959, ch. 198, § 1; 1968, ch. 542, § 3; 1972, ch. 553, § 2; 1972, ch. 847, § 1; T.C.A. (orig. ed.), § 62-517; Acts 1992, ch. 699, § 1.

62-5-311. Reciprocity — Examination — Continuing education — Fee.

  1. A nonresident of this state who holds a valid license as a funeral director or embalmer issued by another state or provincial authority may apply for a license as a funeral director or embalmer in this state by submitting written application to the board on the prescribed form, accompanied by:
    1. A fee as set by the board per license applied for; and
    2. A certificate showing that the applicant was duly examined by the other state or provincial authority at a time when the applicant was not a resident of this state.
    1. If the nonresident applicant receives a scaled score of seventy-five (75) or better on an examination administered by the board, the board may, upon receipt of the fee and certificate required by subsection (a), issue to the applicant the appropriate license.
    2. Except as provided in subdivision (b)(3), the examination administered by the board shall only be administered by the board if the board determines that the applicant meets or exceeds each of the minimum qualifications required for funeral directors as described in § 62-5-305(b)(1)-(7) or embalmers as described in § 62-5-307(b)(1)-(7).
    3. A nonresident applicant failing to meet the minimum qualifications described in subdivision (b)(2), based solely upon a failure to meet § 62-5-305(b)(6) or (b)(7) for funeral directors or § 62-5-307(b)(6) or (b)(7) for embalmers, may meet such qualifications provided that the nonresident applicant has been licensed by another state or provincial authority in good standing for five (5) years and has been employed as a funeral director or embalmer, or both, for such time.
  2. For purposes of this section, the board shall limit the examination administered by the board to questions relating to the laws and rules governing the practice in which the nonresident applicant wishes to engage.
  3. Persons who receive a license as a funeral director or embalmer, or both, pursuant to this section, shall submit with their renewal application evidence of compliance with all the requirements of part 6 of this chapter relative to continuing education. Continuing education requirements may be completed in a state other than Tennessee if the continuing education courses are approved by the board.
  4. Notwithstanding any provision of this chapter or rule to the contrary, the board is authorized to require an application fee and a license fee for persons applying to the board for reciprocity.

Acts 1951, ch. 13, § 20 (Williams, § 7140.20); Acts 1980, ch. 554, §§ 5, 8; T.C.A. (orig. ed.), §§ 62-506, 62-518; Acts 1985, ch. 354, § 11; 1989, ch. 523, §§ 154, 155; 1999, ch. 20, § 2; 2001, ch. 188, § 13; 2010, ch. 1018, § 1; 2014, ch. 690, § 4.

62-5-312. Registration as an apprentice.

  1. When beginning the required apprenticeship, the person shall file an apprentice registration form with the board and shall pay a fee in the amount to be established by the board. The registration shall be valid for a period of three (3) years from the date of registration, or until the registrant has completed the apprenticeship requirements, whichever occurs first.
  2. The apprentice registration form shall contain the name of the registrant, showing that the registrant:
    1. Has attained eighteen (18) years of age;
    2. Is a citizen of the United States;
    3. Is of good moral character;
    4. Has graduated from a high school or has earned a GED(R) recognized by a state education department; and
    5. Is a bona fide paid employee of an establishment working no less than forty (40) hours per week in the presence of and under the direction and supervision of a licensed funeral director or embalmer.
  3. All persons who are apprentice funeral directors, apprentice embalmers and mortuary school students registered by the board and who are in the process of fulfilling their apprenticeship and educational requirements on or before December 31, 2007, shall not be required to complete the apprenticeship requirements that become effective on January 1, 2008. The apprentices and mortuary school students shall complete all requirements to become licensed by the board as a funeral director or embalmer on or before June 30, 2011.
  4. When beginning the required course of study, the person shall file a student registration form with the board and shall pay a fee in the amount to be established by the board. The registration shall be valid for a period of three (3) years from the date of registration, or until the registrant has completed the apprenticeship requirements, whichever occurs first.

Acts 2007, ch. 297, § 4; 2012, ch. 738, § 1; 2018, ch. 651, §§ 1, 2.

Code Commission Notes.

Former § 62-5-312 (Acts 1951, ch. 13, § 19 (Williams, § 7140.19); T.C.A. (orig. ed.), § 62-519), concerning apprenticeship of persons in armed forces, was deleted as obsolete in 1990.

Compiler's Notes. Acts 2018, ch. 651, § 3 provided that the act, which amended this section, shall apply to all persons who register with the board as an apprentice funeral director, apprentice embalmer, or mortuary school student on and after April 9, 2018.

Attorney General Opinions. The Eligibility Verification for Entitlements Act (EVEA) can be read in harmony with laws requiring licensure applicants to be U.S. citizens or U.S. citizens or resident aliens and therefore did not impliedly repeal those laws. State laws requiring licensure applicants to be U.S. citizens are preempted to the extent they conflict with a federal law that limits States’ authority to determine alien eligibility for state public benefits, including professional and commercial licenses. State laws requiring licensure applicants to be U.S. citizens also violate the Equal Protection Clause because they discriminate based on alienage and would not satisfy strict scrutiny. State laws requiring licensure applicants to be U.S. citizens or resident aliens are preempted to the extent they conflict with a federal law that limits States’ authority to determine alien eligibility for state public benefits, including professional and commercial licenses. Laws requiring licensure applicants to be U.S. citizens or resident aliens do not violate the Equal Protection Clause, however, because they discriminate only against unlawful aliens and lawful aliens who are not permanent residents. Those categories of aliens are not a suspect class, and the laws at issue would likely satisfy rational basis review. The Department of Commerce and Insurance is not required to enforce the requirements that an applicant for licensure, registration, or certification be a “citizen of the United States” or a “citizen of the United States or resident alien.” OAG 18-42, 2018 Tenn. AG LEXIS 42 (9/13/2018).

62-5-313. Requirements for operation.

  1. Every person, firm, partnership or corporation, at each and every place of business conducted by that person, firm, partnership or corporation, in the business or practice of funeral directing shall have a fixed place of business or establishment devoted to the care and preparation of dead human bodies and shall have a licensed funeral director in charge of each such place of business; and no employee or member of the firm or corporation shall engage in the care, preparation, disposal or burial of dead human bodies and the management of funerals, nor discharge the duties of a funeral director, unless the employee or member is a licensed funeral director in accordance with this chapter. Nothing in this chapter shall be interpreted to prohibit the use of unlicensed assistants when they are under the direction and supervision of a licensed funeral director.
    1. A license to operate a funeral establishment shall not be issued by the board unless the applicant has at least one (1) full-time person duly licensed for the practice of funeral directing and a duly licensed embalmer in attendance during the preparation of the dead remains.
    2. Each funeral establishment must have available for its use a preparation room equipped with tile, cement or composition floor, necessary drainage and ventilation and necessary instruments and supplies for the preparation of embalming dead human bodies for burial, transportation or other disposition.
  2. Every funeral establishment licensed under this chapter must be managed and supervised by a licensed funeral director, responsible for each funeral establishment.
    1. Prior to or at the time of placing a dead human body in a casket for interment or entombment, each funeral establishment shall securely affix or attach to the body, preferably upon the ankle, a permanent identification device approved by the board, containing the decedent's name, date of birth, and date of death. If that information is not available to the funeral establishment, then a permanent identification device stating that the information is not available shall be affixed or attached to the body.
    2. If a dead human body is to be cremated, then a permanent identification device approved by the board, containing the decedent's name, date of birth, and date of death shall be placed in the crematory urn before the remains are placed in the urn. If the information is not available to the funeral establishment, then a permanent identification device stating the information is not available shall be placed in the crematory urn before the remains are placed in the urn.
    3. No funeral establishment shall solicit or collect a fee for the affixing or attaching of a permanent identification device pursuant to this section.
    4. Failure to comply with this subsection (d) is a disciplinary offense and is punishable as provided in § 62-5-317.
  3. Each funeral establishment must have its current license available for inspection in the office of the funeral establishment.
  4. Nothing in this chapter prohibits the use of a licensed funeral establishment to prepare any remains for disposition or to perform, or offer to perform, commemorative services, if the commemorative services are performed in compliance with this chapter and applicable provisions in title 68, and rules promulgated pursuant to this chapter and title 68. For the purposes of this subsection (f), “commemorative services” means any ceremony for the dead prior to burial, cremation, or any other legal form of final disposition.

Acts 1951, ch. 13, § 10 (Williams, § 7140.10); modified; Acts 1968, ch. 542, § 3; 1975, ch. 346, § 1; T.C.A. (orig. ed.), § 62-520; Acts 1995, ch. 21, § 1; 2001, ch. 188, § 17; 2017, ch. 139, § 1; 2017, ch. 144, § 1.

NOTES TO DECISIONS

1. Constitutionality.

The funeral merchandise sales licensure requirement is not a rational means of achieving legitimate state purposes; therefore, to the extent that T.C.A. § 62-5-313 requires an individual to become a licensed funeral director in order to lawfully sell a casket or an urn, it violates the due process and equal protection clauses of the U.S. Const. amend. 14. Craigmiles v. Giles, 110 F. Supp. 2d 658, 2000 U.S. Dist. LEXIS 12582 (E.D. Tenn. 2000), aff'd, 312 F.3d 220, 2002 FED App. 417P, 2002 U.S. App. LEXIS 24637 (6th Cir. Tenn. 2002).

62-5-314. Use of names of unregistered persons restricted.

The name of any living person who has not been licensed as provided in this chapter shall not be shown or displayed upon any funeral establishment, or used alone, in, as part of or in connection, association, combination or together with the name or title of any person, firm, corporation or other form of enterprise engaged in undertaking or embalming, on any card, sign, stationery or other printed or written instrument or device, in any announcement or advertisement or in any manner so as to give or tend to give the impression that the person is licensed or entitled to practice either as a funeral director or embalmer.

Acts 1951, ch. 13, § 18 (Williams, § 7140.18); T.C.A. (orig. ed.), § 62-521.

Attorney General Opinions. Use of names of unlicensed persons in connection with funeral business, OAG 95-066, 1995 Tenn. AG LEXIS 72 (6/19/95).

62-5-315. Term of licenses — Not transferable — Duplicates — Renewals.

  1. All licenses issued to funeral directors or embalmers as provided in this chapter shall be issued for a period of two (2) years and shall be renewed biennially, at a fee in an amount to be established by the board, subject to this chapter.
  2. All licenses issued to funeral establishments, as provided in this chapter, shall be issued for a period of two (2) years and shall be renewed biennially at a fee in an amount to be established by the board, subject to this chapter.
  3. No license issued to a funeral director, embalmer or funeral establishment granted under this chapter shall be transferable or assignable.
  4. A duplicate license to replace any license lost, destroyed or mutilated may be obtained from the board upon submission of a proper letter of request, accompanied by payment of a fee as set by the board.

Acts 1951, ch. 13, § 14 (Williams, § 7140.14); Acts 1959, ch. 198, § 2; 1968, ch. 542, § 4; 1972, ch. 553, § 3; 1980, ch. 554, § 9; T.C.A. (orig. ed.), § 62-522; Acts 1985, ch. 354, § 12; 1989, ch. 360, § 6; 1989, ch. 523, § 156; 1990, ch. 1026, § 39.

Cross-References. Director of division of regulatory boards to promulgate rules concerning certain license renewal dates, § 56-1-302.

62-5-316. Invalidity of unrenewed license — Renewal, reinstatement or reapplication.

  1. Any license that is not renewed by its expiration date becomes invalid. The holder of the invalid license shall not practice the profession for which the license was issued, nor shall an establishment be operated if the establishment's license has become invalid, until such time as the license has been renewed or reinstated or a new license has been issued.
  2. When any license issued by the board becomes invalid because of nonrenewal, the executive director shall send a written notice to the license holder at the license holder's last known address, informing the license holder that the license holder cannot practice that profession or operate that establishment until the invalid license is renewed or reinstated or a new license is issued. The notice shall also state that the license may be renewed or reinstated at any time within ninety (90) days of the license expiration date by payment of the renewal fee and of a penalty fee in an amount to be established by the board. Any license not renewed or reinstated within ninety (90) days of the license expiration date shall not be subject to renewal or reinstatement and the license holder shall reapply as for an initial license; provided, that any examination shall be limited to this chapter and any rules promulgated pursuant to this chapter, and that the education requirements in § 62-5-305(b)(6) and § 62-5-307(b)(6) are not applicable.

Acts 1951, ch. 13, § 17 (Williams, § 7140.17); Acts 1980, ch. 554, § 10; T.C.A. (orig. ed.), § 62-523; Acts 2001, ch. 188, § 14; 2012, ch. 799, § 1.

Cross-References. Certified mail instead of registered mail, § 1-3-111.

62-5-317. Grounds for denial, suspension or revocation of license.

  1. The board may refuse to grant or may suspend, revoke or refuse to renew any license granted to any person under this chapter if:
    1. The applicant for or holder of the license obtained the license by fraud or misrepresentation either in the application for the license or in passing the examination for the license;
    2. The applicant for or holder of the license has been convicted of a felony or crime involving moral turpitude. However, an action taken under this subdivision (a)(2) shall be subject to the applicable provisions of the Fresh Start Act that are compiled in chapter 76, part 1 of this title;
    3. The applicant for or holder of the license has been guilty of willfully violating any section of this chapter or any rule or regulation of the state or local board of health governing the disposition of dead human bodies;
    4. The applicant for or holder of the license has been guilty of immoral or unprofessional conduct;
    5. The applicant for or holder of the license knowingly permits an unlicensed person to engage in the profession or business of funeral directing or embalming under the applicant's or holder's supervision;
    6. The applicant for or holder of the license has been guilty of habitual drunkenness or is addicted to the use of morphine, cocaine or other habit-forming drugs;
    7. The applicant for or holder of the license has been guilty of refusing to promptly surrender the custody of a dead human body upon the expressed order of the person legally entitled to the body;
    8. The applicant has received payment directly or indirectly or has caused to be paid directly or indirectly any sum of money or other valuable consideration for the securing of business or for obtaining authority to dispose of dead human bodies; or
    9. The applicant or holder performs services after December 31, 1968, in a professional capacity as a funeral director or embalmer, or both, for any unlicensed funeral establishment operating in violation of this chapter.
  2. In addition, the board may refuse to grant or may suspend, revoke or refuse to renew any license granted for the operation of a funeral establishment or to any funeral director or embalmer under this chapter for:
    1. Misrepresentation or fraud in the conduct of the business of the funeral establishment;
    2. False or misleading advertising;
    3. Solicitation of dead human bodies by the licensee, the licensee's agents, assistants or employees, whether the solicitation occurs after death or when death is imminent; provided, that this shall not be deemed to prohibit general advertising. Nothing in this subdivision (b)(3) shall, however, prohibit, prevent or in any way restrict the sale of burial protection or burial insurance;
    4. Employment directly or indirectly of any apprentice, agent, assistant, employee or other person, on a part-time or full-time basis or on commission, for the purpose of calling upon individuals or institutions by whose influence dead human bodies may be turned over to a particular funeral establishment;
    5. The direct or indirect payment or offer of payment of a fee by the licensee or the licensee's agents, assistants or employees for the purpose of securing general establishment business;
    6. Aiding or abetting an unlicensed person to practice within the funeral profession;
    7. Solicitation or acceptance by the licensee of a rebate in consideration for recommending or causing a dead human body to be disposed of in any crematory, mausoleum or cemetery;
    8. Using any casket or part of a casket that has previously been used as a receptacle for, or in connection with, the burial or other disposition of a dead human body, except the shipping of another dead human body; or where disposition of the dead human body is to be by cremation, it shall be permissible to utilize a previously used casket shell for viewing the remains if, and only if, a new interior or interior insert is installed prior to each usage of the casket shell;
    9. Any willful violation of any state law or municipal or county ordinance or regulation affecting the handling or custody, care or transportation of dead human bodies;
    10. Fraud or misrepresentation in renewing a license to operate a funeral establishment;
    11. Unreasonably refusing to promptly surrender the custody of a dead human body upon the express order of the person lawfully entitled to the custody of the dead human body;
    12. Knowingly making any false statement on the certificate of death;
    13. A violation of any statutes pertaining to the prearrangement or prefinancing, or both, of a funeral in this state;
    14. Supplying another person with false or misleading information concerning any law that requires embalmment of deceased persons;
    15. Solicitation or acceptance by the licensee of a fee for the affixing or attaching of a permanent identification device to a dead human body that is placed in a casket to be interred or entombed;
    16. Solicitation or acceptance by the licensee of a fee for the placing of a permanent identification device in a crematory urn before placing human remains in the urn;
    17. Failure to comply with any of the provisions of this chapter or any rule or regulation promulgated or adopted by the board;
    18. The applicant or licensee providing a monetary contribution in exchange for a business referral to any hospice providing hospice services as defined in § 68-11-201, or to any officer, administrator, board member, or employee of a hospice providing hospice services as defined in § 68-11-201;
    19. The applicant or licensee owning five percent (5%) or more of any hospice providing hospice services as defined in § 68-11-201; or
    20. The applicant or licensee entering into any type of ownership arrangement with any hospice providing hospice services as defined in § 68-11-201.
  3. Subdivisions (b)(18)-(20) shall not:
    1. Preclude a person or legal entity from giving a contribution to a hospice providing hospice services as defined in § 68-11-201; or
    2. Apply to persons serving on boards or within organizations for which the persons receive no direct compensation but may receive reimbursement for activities related to the organization.

Acts 1951, ch. 13, § 15 (Williams, § 7140.15); Acts 1968, ch. 542, § 5; 1975, ch. 346, § 2; 1980, ch. 554, § 11; 1981, ch. 108, § 1; T.C.A. (orig. ed.), § 62-524; Acts 1995, ch. 21, § 2; 1996, ch. 810, § 1; 2002, ch. 809, § 3; 2014, ch. 555, §§ 1, 2; 2018, ch. 745, § 5.

Compiler's Notes. Acts 2014, ch. 555, § 3 provided that this act, which added subdivisions (b)(18)-(20) and subsection (c), shall apply to any arrangements in violation of this act entered into or renewed on or after July 1, 2014.

Cross-References. Disposition of dead bodies, title 68, ch. 4.

Law Reviews.

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253.

NOTES TO DECISIONS

1. Immoral or Unprofessional Conduct.

Where a funeral director, without the knowledge of the family of deceased, cashed an insurance policy which had been assigned to him and failed to account for the proceeds for five years, this amounted to immoral and unprofessional conduct, if knowing and intentional amounted to fraud, and was sufficient grounds for the revocation of his license. Anderson v. Carter, 512 S.W.2d 297, 1974 Tenn. App. LEXIS 136 (Tenn. Ct. App. 1974).

2. Constitutionality.

The funeral merchandise sales licensure requirement is not a rational means of achieving legitimate state purposes; therefore, to the extent that provisions of the former Funeral Directors and Embalmers Act (FDEA), T.C.A. § 62-5-101 et seq., require an individual to become a licensed funeral director in order to lawfully sell a casket or an urn, they violate the due process clause of U.S. Const. amend. 14. Craigmiles v. Giles, 110 F. Supp. 2d 658, 2000 U.S. Dist. LEXIS 12582 (E.D. Tenn. 2000), aff'd, 312 F.3d 220, 2002 FED App. 417P, 2002 U.S. App. LEXIS 24637 (6th Cir. Tenn. 2002).

62-5-318. Requirement that removal service be registered with board of funeral directors and embalmers — Registration fee — Registration and renewal forms — Penalty.

  1. On or after January 1, 2014, no removal service shall operate in this state unless the removal service is registered with the board of funeral directors and embalmers. All such registrations shall expire two (2) years from the date of the registration or renewal. The board may promulgate and adopt such rules and regulations to establish adequate registration and renewal fees to cover the administrative costs associated with the registration program.
  2. In conjunction with the registration fee, the registrant must provide proof of liability insurance in an amount to be determined by the board by rule.
  3. Included on each registration and renewal form shall be a section whereby the applicant or registrant shall declare, under penalty of perjury pursuant to § 39-16-702(a)(4), whether such registrant or any principal officer, director, or any person owning more than five percent (5%) of the removal service, has ever been convicted of a violation of this chapter or § 39-17-312.
  4. An applicant shall be prohibited from registering under this section for five (5) years from the date of conviction if the applicant or any principal officer, director, or any person owning more than five percent (5%) of the applicant's removal service has been convicted of a violation of this chapter or § 39-17-312.
  5. On or after January 1, 2014, it is an offense for a person to engage in the business of a removal service without registering or after falsely registering with the board.
  6. A violation of this section is a Class C misdemeanor.
  7. The registration of a removal service shall be immediately revoked by operation of law upon the conviction of the removal service or any principal officer, director, or person owning more than five percent (5%) of the removal service of any violation of this chapter or § 39-17-312. A copy of the judgment of conviction shall be transmitted to the board by the law enforcement agency responsible for the conviction.

Acts 2013, ch. 437, § 2.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Attorney General Opinions. Human-remains removal service owned by licensed funeral director or licensed embalmer as sole proprietorship is exempt from registration.  Service organized as a corporation or LLC that is not a licensed funeral establishment and has a licensed funeral director or a licensed embalmer as an officer or manager is not exempt from registration.  OAG 14-18, 2014 Tenn. AG LEXIS 19 (2/13/14).

Part 4
Tennessee Prepaid Funeral Benefits Act

62-5-401. Short title.

This part shall be known and may be cited as the “Tennessee Prepaid Funeral Benefits Act.”

Acts 2007, ch. 592, § 2.

Compiler's Notes. Former part 4, §§ 62-5-40162-5-409 (Acts 1963, ch. 316, §§ 1-8; 1965, ch. 185, § 1; impl. am. Acts 1971, ch. 137, §§ 1, 2; 1972, ch. 553, § 5; 1981, ch. 121, §§ 1-10; 1981, ch. 416, § 5; T.C.A., §§ 62-528 — 62-535; Acts 1985, ch. 230, §§ 1-9; 1985, ch. 231, § 1, 1986, ch. 825, § 1; 1986, ch. 925, §§ 1, 2; Acts 1989, ch. 591, § 113; 1992, ch. 922, §§ 8-10; 1996, ch. 958, § 2, 1997, ch. 400, §§ 1, 2), concerning contracts for future services, was repealed by Acts 2007, ch. 297, § 1, effective January 1, 2008.

Cross-References. Cemeteries, title 46.

Fraud as to pre-need sales contracts, § 46-1-308.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Cemeteries, § 9; 15 Tenn. Juris., §§ 4, 16.

Law Reviews.

Preneed Funeral Contracts in Tennessee, 11 Mem. St. U.L. Rev. 231.

Attorney General Opinions. Contracts for the sale of burial vaults, OAG 96-017, 1996 Tenn. AG LEXIS 20 (2/15/96).

Sellers of pre-need funeral contracts, which are funded by a trust or trusts established by the seller, may not combine their individual pre-need trusts with other Tennessee sellers of pre-need funeral contracts to create a single statewide funeral trust.  OAG 13-42, 2013 Tenn. AG LEXIS 44 (6/4/13).

62-5-402. Scope of part.

This part governs the qualifications and procedures for registration and general regulatory requirements for the sale of prepaid funeral benefits in this state.

Acts 2007, ch. 592, § 3.

Compiler's Notes. Former part 4, §§ 62-5-40162-5-409 (Acts 1963, ch. 316, §§ 1-8; 1965, ch. 185, § 1; impl. am. Acts 1971, ch. 137, §§ 1, 2; 1972, ch. 553, § 5; 1981, ch. 121, §§ 1-10; 1981, ch. 416, § 5; T.C.A., §§ 62-528 — 62-535; Acts 1985, ch. 230, §§ 1-9; 1985, ch. 231, § 1, 1986, ch. 825, § 1; 1986, ch. 925, §§ 1, 2; Acts 1989, ch. 591, § 113; 1992, ch. 922, §§ 8-10; 1996, ch. 958, § 2, 1997, ch. 400, §§ 1, 2), concerning contracts for future services, was repealed by Acts 2007, ch. 297, § 1, effective January 1, 2008.

Cross-References. Cemeteries, title 46.

Fraud as to pre-need sales contracts, § 46-1-308.

Law Reviews.

Preneed Funeral Contracts in Tennessee, 11 Mem. St. U.L. Rev. 231.

Attorney General Opinions. Contracts for the sale of burial vaults, OAG 96-017, 1996 Tenn. AG LEXIS 20 (2/15/96).

62-5-403. Part definitions.

As used in this part, unless the context requires otherwise:

  1. “Cash advance item” means any item obtained from a third party and paid for by the funeral provider on the purchaser's behalf. Cash advance items may include, but are not limited to, sales tax, certified copies of death certificates, clergy honoraria, flowers, musicians or singers, obituary notices and gratuities;
  2. “Commissioner” means the commissioner of commerce and insurance or the commissioner's designee;
  3. “Department” means the department of commerce and insurance;
  4. “Funeral merchandise”:
    1. Means merchandise, whether sold by a funeral establishment, cemetery company, or any other individual, partnership, company, corporation, or association, intended for use in the final disposition of a dead human body;
    2. Includes caskets and containers designed to be used in the grave around the casket or around cremated remains, commonly known as urns, urn vaults, outer burial containers, burial vaults, grave boxes, and grave liners; and
    3. Does not include cemetery merchandise as defined in § 46-1-102;
  5. “Guaranteed pre-need funeral contract” means the pre-need seller, where the contract has been funded in accordance with its terms, shall furnish at the time of death of the contract beneficiary, at no additional charge to the next of kin, the estate of the deceased, or other individual or entity responsible for the funeral, the merchandise and services selected, or the equivalent if the specific merchandise is not readily available, in the pre-need funeral contract. The only adjustment in the charge to the next of kin, the estate of the deceased or other individual or entity responsible for the funeral shall be for cash advance items. The pre-need seller shall be obligated to deliver the agreed upon merchandise and services under a fully funded pre-need funeral contract for the available funding at the time of death of the contract beneficiary. Nothing in this section shall be construed to prohibit the pre-need seller from receiving the available funding up to the seller's current retail price for the merchandise and services at the time of death of the contract beneficiary;
  6. “Insurance company” means any corporation, limited liability company, association, partnership, society, order, individual or aggregation of individuals engaging in or proposing or attempting to engage as principals in any kind of insurance business, including the exchanging of reciprocal contracts between individuals, partnerships, and corporations;
  7. “Nonguaranteed pre-need funeral contract” means, in addition to any cash advance items, the pre-need seller may charge the individual or entity responsible for the funeral any difference between the available funding and the seller's current retail price at the time of death of the contract beneficiary for the merchandise and services selected in the pre-need funeral contract;
  8. “Prearrangement insurance policy” means a life insurance policy, annuity contract, or other insurance contract, or any series of contracts or agreements in any form or manner, issued by an insurance company, that, whether by assignment or otherwise, funds a pre-need funeral contract, the insured or annuitant being the person for whose funeral service the funds were paid;
    1. “Pre-need funeral contract” means any agreement, contract or plan requiring the payment of money in advance, whether in a lump sum or installments and whether funded by a pre-need funeral trust or prearrangement insurance policy or combination of a pre-need funeral trust and a prearrangement insurance policy, that is made or entered into with any person, association, partnership, firm or corporation for the final disposition of a dead human body, for funeral or burial services or for the furnishing of personal property or funeral or burial merchandise, wherein the use of the personal property or the funeral or burial merchandise or the furnishing of professional services by a funeral director or embalmer is not immediately required;
    2. Except as otherwise provided in § 62-5-406, “pre-need funeral contract” does not mean the furnishing of cemetery merchandise and services otherwise regulated under title 46, chapter 1, part 2;
    3. “Pre-need funeral contract” does not include a travel protection agreement for the coordination and arranging of all professional services related to the preparation for the purpose of transportation and subsequent transportation of a dead human body;
  9. “Pre-need funeral contract beneficiary” means the person upon whose death the pre-need funeral contract will be performed. This person may also be the purchaser of the pre-need funeral contract;
  10. “Pre-need funeral funds” means all payments of cash, or its equivalent, made to a pre-need seller or pre-need sales agent upon any pre-need funeral contract;
  11. “Pre-need funeral trust” means funds set aside in a trust account held by a trustee to provide for a pre-need funeral contract;
  12. “Pre-need sales agent” means an individual who has applied for and has been granted, or who engages in conduct requiring, registration to sell pre-need funeral contracts on behalf of a pre-need seller pursuant to this part;
  13. “Pre-need seller” means a funeral establishment or other individual, firm, partnership, company, corporation, or association that has applied for and has been granted, or that engages in conduct requiring, registration to sell pre-need funeral contracts pursuant to this part; and
    1. “Trustee” means a state or national bank, federally chartered savings and loan association, state chartered trust company, or, in the reasonable discretion of the commissioner upon the terms and conditions that the commissioner may require, a securities brokerage firm licensed and in good standing with appropriate state and federal regulatory authorities;
    2. Prior to July 1, 2011, “trustee” may also mean a certified public accountant who the commissioner determines meets all of the following requirements:
      1. The certified public accountant has served during the 2007 calendar year as the trustee for a trust account established pursuant to this part;
      2. The certified public accountant is covered by errors and omissions liability insurance in an amount equal to or greater than the amount held in trust; and
      3. The certified public accountant has complied with all previous reporting requirements required by statute and rules of the commissioner;
    3. On or after July 1, 2011, every trustee of every trust account shall be a trustee as set forth in subdivision (15)(A).

Acts 2007, ch. 592, § 4; 2008, ch. 857, § 1; 2009, ch. 279, §§ 1-3; 2016, ch. 911, §§ 1, 2; 2018, ch. 623, § 2.

Compiler's Notes. Former part 4, §§ 62-5-40162-5-409 (Acts 1963, ch. 316, §§ 1-8; 1965, ch. 185, § 1; impl. am. Acts 1971, ch. 137, §§ 1, 2; 1972, ch. 553, § 5; 1981, ch. 121, §§ 1-10; 1981, ch. 416, § 5; T.C.A., §§ 62-528 — 62-535; Acts 1985, ch. 230, §§ 1-9; 1985, ch. 231, § 1, 1986, ch. 825, § 1; 1986, ch. 925, §§ 1, 2; Acts 1989, ch. 591, § 113; 1992, ch. 922, §§ 8-10; 1996, ch. 958, § 2, 1997, ch. 400, §§ 1, 2), concerning contracts for future services, was repealed by Acts 2007, ch. 297, § 1, effective January 1, 2008.

Acts 2018, ch. 623, § 3 provided that the act, which amended this section, shall apply to contracts entered into or renewed on or after April 2, 2018.

Cross-References. Cemeteries, title 46.

Fraud as to pre-need sales contracts, § 46-1-308.

Law Reviews.

Preneed Funeral Contracts in Tennessee, 11 Mem. St. U.L. Rev. 231.

Attorney General Opinions. Contracts for the sale of burial vaults, OAG 96-017, 1996 Tenn. AG LEXIS 20 (2/15/96).

A plan offered for a prepaid, nonrefundable fee to arrange the professional transport of a dead human body from any site of death to a licensed funeral provider – but only if the contract beneficiary’s future death occurs more than seventy-five miles away from home – qualifies as a “pre-need funeral contract” under the Tennessee Prepaid Funeral Benefits Act.  If the plan described above is sold in conjunction with another contract that meets the definition of a “pre-need funeral contract,” the plan still qualifies as a “pre-need funeral contract” under the Act. OAG 17-07, 2017 Tenn. AG LEXIS 7 (2/3/2017).

62-5-404. Registration requirement.

  1. No individual may offer or sell pre-need funeral contracts without first registering with the commissioner as a pre-need sales agent. No individual may sell, solicit or negotiate prearrangement insurance policies without first registering with the commissioner as a pre-need sales agent and obtaining an insurance producer license pursuant to title 56, chapter 6, part 1.
  2. No funeral establishment or other individual, firm, partnership, company, corporation, or association may offer or sell pre-need funeral contracts without first registering with the commissioner as a pre-need seller. A funeral establishment or other individual, firm, partnership, company, corporation, or association with more than one (1) physical location in this state shall obtain a separate registration for each physical location where it acts as a pre-need seller.

Acts 2007, ch. 592, § 5.

Compiler's Notes. Former part 4, §§ 62-5-40162-5-409 (Acts 1963, ch. 316, §§ 1-8; 1965, ch. 185, § 1; impl. am. Acts 1971, ch. 137, §§ 1, 2; 1972, ch. 553, § 5; 1981, ch. 121, §§ 1-10; 1981, ch. 416, § 5; T.C.A., §§ 62-528 — 62-535; Acts 1985, ch. 230, §§ 1-9; 1985, ch. 231, § 1, 1986, ch. 825, § 1; 1986, ch. 925, §§ 1, 2; Acts 1989, ch. 591, § 113; 1992, ch. 922, §§ 8-10; 1996, ch. 958, § 2, 1997, ch. 400, §§ 1, 2), concerning contracts for future services, was repealed by Acts 2007, ch. 297, § 1, effective January 1, 2008.

Cross-References. Cemeteries, title 46.

Fraud as to pre-need sales contracts, § 46-1-308.

Law Reviews.

Preneed Funeral Contracts in Tennessee, 11 Mem. St. U.L. Rev. 231.

Attorney General Opinions. Contracts for the sale of burial vaults, OAG 96-017, 1996 Tenn. AG LEXIS 20 (2/15/96).

62-5-405. Procedure for registration.

  1. In order to obtain a pre-need seller registration or a pre-need sales agent registration, an individual, funeral establishment or other individual, firm, partnership, company, corporation, or association shall:
    1. File an application with the department on a form prescribed by the commissioner; and
    2. Pay a nonrefundable filing fee in an amount set by the commissioner.
  2. A pre-need seller registration shall be valid only at the address provided in the application or at a new address approved by the commissioner.
  3. All registrations issued under this part shall be valid for two (2) years.
  4. All registrations become invalid unless renewed.
  5. The commissioner shall send a renewal notice and the renewal of a registration may be effected at any time during the two (2) months preceding the date of expiration upon submission of an application to the commissioner on the prescribed form, accompanied by a renewal fee as set by the commissioner.
  6. No later than seventy-five (75) days after the end of the pre-need seller's fiscal year, pre-need sellers and trustees shall file an annual report with the commissioner on forms prescribed by the commissioner. The report shall include a summary of the information contained in the accounts, books, and records required to be kept pursuant to rules promulgated by the commissioner, and other information as the commissioner may reasonably require. An additional report shall not be required based on the establishment of trusts pursuant to this title and title 46. In such instance, only one (1) report shall be required.

Acts 2007, ch. 592, § 6; 2016, ch. 911, § 13.

Compiler's Notes. Former part 4, §§ 62-5-40162-5-409 (Acts 1963, ch. 316, §§ 1-8; 1965, ch. 185, § 1; impl. am. Acts 1971, ch. 137, §§ 1, 2; 1972, ch. 553, § 5; 1981, ch. 121, §§ 1-10; 1981, ch. 416, § 5; T.C.A., §§ 62-528 — 62-535; Acts 1985, ch. 230, §§ 1-9; 1985, ch. 231, § 1, 1986, ch. 825, § 1; 1986, ch. 925, §§ 1, 2; Acts 1989, ch. 591, § 113; 1992, ch. 922, §§ 8-10; 1996, ch. 958, § 2, 1997, ch. 400, §§ 1, 2), concerning contracts for future services, was repealed by Acts 2007, ch. 297, § 1, effective January 1, 2008.

Cross-References. Cemeteries, title 46.

Fraud as to pre-need sales contracts, § 46-1-308.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Cemeteries, § 9.

Law Reviews.

Preneed Funeral Contracts in Tennessee, 11 Mem. St. U.L. Rev. 231.

Attorney General Opinions. Contracts for the sale of burial vaults, OAG 96-017, 1996 Tenn. AG LEXIS 20 (2/15/96).

62-5-406. Filing of pre-need funeral contract — Contract form requirements — Revocable and irrevocable contracts.

    1. No pre-need funeral contract shall be offered in this state until a copy of the contract has been issued by the commissioner for general use.
    2. If no contract has been issued by the commissioner pursuant to subdivision (a)(1), then no pre-need funeral contract shall be offered in this state until a copy of the contract has been filed with and approved by the commissioner. If the commissioner does not disapprove the contract within sixty (60) days after receipt of the request for approval, the contract shall be deemed approved. The commissioner may disapprove a previously approved pre-need funeral contract if the pre-need funeral contract violates this section upon giving notice and an opportunity for a hearing to the pre-need seller.
  1. Each pre-need contract form shall:
    1. Be written in clear and understandable language printed in an easy-to-read type size and style;
    2. Contain space to include the name, address, telephone number, and registration number of the pre-need seller obligated to provide the services under the contract terms, and all the information must be completed before the contract is signed by the purchaser;
    3. Clearly identify whether the contract is a guaranteed pre-need funeral contract or a non-guaranteed pre-need funeral contract; and
      1. If the contract is funded by a pre-need funeral trust, the pre-need funeral contract shall state whether the pre-need funeral trust it establishes is revocable or irrevocable.
      2. If the pre-need funeral trust is irrevocable, the pre-need funeral contract shall state on its face and in bold type the following words: THE PRE-NEED FUNERAL TRUST ACCOUNT ESTABLISHED BY THIS CONTRACT IS IRREVOCABLE, AND THE FUNDS PAID HEREUNDER ARE NOT REFUNDABLE. ACCUMULATED TRUST PRINCIPAL AND INTEREST ARE FREELY TRANSFERABLE TO SATISFY FUNERAL EXPENSES AT ANY LICENSED FUNERAL ESTABLISHMENT AS PROVIDED BY LAW.
      3. If the pre-need funeral trust is revocable, the purchaser of the merchandise or services under the agreement, contract or plan shall be entitled to receive any or all of the payments made and any earnings or interest on the payments, less any applicable fees and expenses permitted by this part, upon demand in writing on the pre-need seller and the trustee. Absent gross negligence or willful misconduct by the trustee, payment by the trustee of the amount held in trust, less any applicable fees and expenses permitted by this part, shall relieve the trustee of further liability to the purchaser in connection with the trust.
  2. No modification of the form, terms, or conditions of the pre-need contract may be made without the prior written approval of the commissioner.
  3. No pre-need funeral contract shall provide for the funeral establishment, pre-need seller, or pre-need sales agent to receive any benefits from a prearrangement insurance policy or moneys from a pre-need funeral trust other than the amount of payment for the merchandise and services provided by the funeral establishment. This subsection (d) shall not prohibit the payment of commissions authorized to be paid under title 56, chapter 6.
  4. This section shall apply only to pre-need funeral contracts executed subsequent to January 1, 2008.
  5. A pre-need seller that is a cemetery company may offer a pre-need funeral contract that covers cemetery merchandise as defined in § 46-1-102, or a pre-need funeral contract that covers both funeral merchandise and cemetery merchandise, on a contract issued by the commissioner or, if the commissioner has not issued a contract, on a contract approved by the commissioner. The pre-need seller that is a cemetery company shall comply with the requirements provided in title 46, chapter 1, for selling cemetery merchandise.

Acts 2007, ch. 592, § 7; 2008, ch. 1065, § 1; 2016, ch. 911, §§ 3, 4.

Compiler's Notes. Former part 4, §§ 62-5-40162-5-409 (Acts 1963, ch. 316, §§ 1-8; 1965, ch. 185, § 1; impl. am. Acts 1971, ch. 137, §§ 1, 2; 1972, ch. 553, § 5; 1981, ch. 121, §§ 1-10; 1981, ch. 416, § 5; T.C.A., §§ 62-528 — 62-535; Acts 1985, ch. 230, §§ 1-9; 1985, ch. 231, § 1, 1986, ch. 825, § 1; 1986, ch. 925, §§ 1, 2; Acts 1989, ch. 591, § 113; 1992, ch. 922, §§ 8-10; 1996, ch. 958, § 2, 1997, ch. 400, §§ 1, 2), concerning contracts for future services, was repealed by Acts 2007, ch. 297, § 1, effective January 1, 2008.

Cross-References. Cemeteries, title 46.

Fraud as to pre-need sales contracts, § 46-1-308.

Law Reviews.

Preneed Funeral Contracts in Tennessee, 11 Mem. St. U.L. Rev. 231.

Attorney General Opinions. Contracts for the sale of burial vaults, OAG 96-017, 1996 Tenn. AG LEXIS 20 (2/15/96).

62-5-407. Pre-need funeral contracts funded by trusts.

  1. Every pre-need seller engaged in the business of selling pre-need funeral contracts funded by a trust shall establish a pre-need funeral trust fund. The trust fund shall be established by executing a written trust agreement with a trustee; provided, that a pre-need seller may change the trustee of its trust fund by providing written notice to the commissioner no later than thirty (30) days prior to the change, along with evidence sufficient to the commissioner that the trustee will be able to comply with the requirements of this part. If the commissioner determines that the evidence submitted is insufficient to ensure that the trustee will be able to comply with the requirements of this part, the commissioner may refuse to allow the pre-need seller to change the trustee. If the commissioner does not object to the change of trustee within sixty (60) calendar days of receiving a request, the current trustee shall have not less than ninety (90) calendar days from the date it receives notice of the proposed change to transfer all trust assets related to the pre-need funeral contracts issued by the pre-need seller held by the trustee to the successor trustee. As used in this section, “trustee” means a savings and loan association, bank, savings bank, credit union, or trust company organized under the laws of any state or organized under the laws of the United States.
    1. If the pre-need funeral contract purchaser chooses to fund the pre-need funeral contract by a trust deposit or deposits, the pre-need seller shall deposit all funds with the trustee, to be held in trust, within fifteen (15) calendar days of receipt. The pre-need seller, at the time of making the deposit, shall furnish to the trustee the name of each pre-need funeral contract beneficiary and the amount of payment on each for which the deposit is being made.
    2. The trustee may establish:
      1. A separate trust fund for each pre-need funeral contract;
      2. A single trust fund for all pre-need funeral contracts issued by a pre-need seller; or
      3. A single trust fund for all pre-need funeral contracts issued by multiple pre-need sellers.
    3. For trusts established pursuant to subdivisions (b)(2)(A) and (b)(2)(B), the trust accounts must be carried in the name of the pre-need seller and the pre-need seller must be based in this state.
    4. A trustee managing a trust established pursuant to this section shall manage the trust in accordance with the Tennessee Uniform Prudent Investor Act of 2002, compiled in title 35, chapter 14. However, § 35-14-103(b) does not apply to trusts, or trustees managing a trust, established pursuant to this section.
    5. Accounting records for trusts established pursuant to this section must be established and maintained for each individual pre-need funeral contract beneficiary showing the amounts deposited and invested, and interest, dividends, increases, and accretions earned.
    6. A trustee managing a trust established pursuant to this section shall:
      1. Provide a semiannual financial report concerning the trust to the department in a manner determined appropriate by the department by rule; and
      2. Make accounting records for the trust available to the comptroller of the treasury and the department, upon request, for review and audit.
    7. If the trustee uses a board for the management of the trust established pursuant to this section, then the trustee shall maintain insurance on behalf of each board member against liability asserted against or incurred by the board member in that capacity.
  2. Funds deposited in trust under a pre-need funeral contract may, with the written permission of the pre-need funeral contract purchaser and written approval of the commissioner, be withdrawn by the trustee and used to purchase a prearrangement insurance policy. The trustee shall disclose, in writing, the terms of the prearrangement insurance policy to the pre-need funeral contract purchaser. Except as provided in this subsection (c), no funds deposited in trust with a trustee pursuant to this section shall be withdrawn by the trustee to purchase a prearrangement insurance policy.
  3. No pre-need seller, affiliate of a pre-need seller, or any person directly or indirectly engaged in the burial, funeral home, or cemetery business may act as trustee for any pre-need funeral trust. No pre-need seller, affiliate of a pre-need seller, or any person directly or indirectly engaged in the burial, funeral home, or cemetery business may share in the responsibilities of or direct the actions of the trustee of a pre-need funeral trust fund.
  4. It is unlawful to loan pre-need funeral trust funds to a pre-need seller, an affiliate of a pre-need seller, or any person directly or indirectly engaged in the burial, funeral home, or cemetery business. Furthermore, the pre-need seller's interest in the trust shall not be pledged as collateral for any loans, debts, or liabilities of the pre-need seller and shall not be transferred to any person without the prior written approval from the commissioner and the trustee.

Acts 2007, ch. 592, § 8; 2016, ch. 911, § 7; 2019, ch. 247, §§ 1-3.

Compiler's Notes. Former part 4, §§ 62-5-40162-5-409 (Acts 1963, ch. 316, §§ 1-8; 1965, ch. 185, § 1; impl. am. Acts 1971, ch. 137, §§ 1, 2; 1972, ch. 553, § 5; 1981, ch. 121, §§ 1-10; 1981, ch. 416, § 5; T.C.A., §§ 62-528 — 62-535; Acts 1985, ch. 230, §§ 1-9; 1985, ch. 231, § 1, 1986, ch. 825, § 1; 1986, ch. 925, §§ 1, 2; Acts 1989, ch. 591, § 113; 1992, ch. 922, §§ 8-10; 1996, ch. 958, § 2, 1997, ch. 400, §§ 1, 2), concerning contracts for future services, was repealed by Acts 2007, ch. 297, § 1, effective January 1, 2008.

Amendments. The 2019 amendment, in (a),  deleted “as defined in § 62-5-403” preceding the proviso in the first sentence, inserted “related to the pre-need funeral contracts issued by the pre-need seller” in the third sentence, and added the last sentence; and rewrote (b) which read: “(b)  If the pre-need funeral contract purchaser chooses to fund the pre-need funeral contract by a trust deposit or deposits, the pre-need seller shall deposit all funds with the trustee, to be held in trust, by the twentieth day of the month following the month of receipt. Upon finding that a pre-need seller has failed to appropriately and timely deposit into any trust, the commissioner may, in addition to or in lieu of any other disciplinary action, require that deposits be made within a shorter time frame, after receipt of the funds, for a period not more than two (2) years after the finding of a violation. The pre-need seller, at the time of making the deposit, shall furnish to the trustee the name of each pre-need funeral contract beneficiary and the amount of payment on each for which the deposit is being made. The trustee may establish a separate trust fund for each pre-need funeral contract or a single trust fund for all pre-need funeral contracts issued by a pre-need seller. The trust accounts shall be carried in the name of the pre-need seller, but accounting records shall be established and maintained for each individual pre-need funeral contract beneficiary showing the amounts deposited and invested, and interest, dividends, increases, and accretions earned.”

Effective Dates. Acts 2019, ch. 247, § 4. July 1, 2019;  provided that, for purposes of promulgating rules, the act took effect May 2, 2019.

Cross-References. Cemeteries, title 46.

Fraud as to pre-need sales contracts, § 46-1-308.

Law Reviews.

Preneed Funeral Contracts in Tennessee, 11 Mem. St. U.L. Rev. 231.

Attorney General Opinions. Contracts for the sale of burial vaults, OAG 96-017, 1996 Tenn. AG LEXIS 20 (2/15/96).

Sellers of pre-need funeral contracts, which are funded by a trust or trusts established by the seller, may not combine their individual pre-need trusts with other Tennessee sellers of pre-need funeral contracts to create a single statewide funeral trust.  OAG 13-42, 2013 Tenn. AG LEXIS 44 (6/4/13).

62-5-408. Management of funeral contract trust.

  1. Moneys held in a pre-need funeral contract trust shall be held in trust, both as to principal and income earned on the principal, and shall remain intact, except that the trustee shall have the right to use trust fund income to pay applicable taxes and reasonable expenses related to the administration of the trust, including reasonable trustee's fees for services rendered pursuant to the terms of the applicable trust agreement or to others for the preparation of fiduciary tax returns. In no event shall the principal be diminished.
  2. The pre-need seller shall be liable to the trustee and to third parties to the extent that income from the trust is not sufficient to pay the expenses of the trust.
  3. The trustee shall make regular valuations of assets it holds in trust and provide a report of the valuations to the pre-need seller at least annually.
  4. The trustee shall invest the moneys paid and placed in a pre-need funeral contract trust, by exercising the judgment and care under the circumstances then prevailing, that persons of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital.
  5. Except as otherwise provided by this part, all payments made by the purchaser of a pre-need funeral contract shall remain trust funds with a trustee or as paid insurance premiums with an insurance company, as the case may be, until the death of the pre-need funeral contract beneficiary and until full performance of the pre-need funeral contract.

Acts 2007, ch. 592, § 9; 2016, ch. 911, § 14.

Compiler's Notes. Former part 4, §§ 62-5-40162-5-409 (Acts 1963, ch. 316, §§ 1-8; 1965, ch. 185, § 1; impl. am. Acts 1971, ch. 137, §§ 1, 2; 1972, ch. 553, § 5; 1981, ch. 121, §§ 1-10; 1981, ch. 416, § 5; T.C.A., §§ 62-528 — 62-535; Acts 1985, ch. 230, §§ 1-9; 1985, ch. 231, § 1, 1986, ch. 825, § 1; 1986, ch. 925, §§ 1, 2; Acts 1989, ch. 591, § 113; 1992, ch. 922, §§ 8-10; 1996, ch. 958, § 2, 1997, ch. 400, §§ 1, 2), concerning contracts for future services, was repealed by Acts 2007, ch. 297, § 1, effective January 1, 2008.

Cross-References. Cemeteries, title 46.

Fraud as to pre-need sales contracts, § 46-1-308.

Law Reviews.

Preneed Funeral Contracts in Tennessee, 11 Mem. St. U.L. Rev. 231.

Attorney General Opinions. Contracts for the sale of burial vaults, OAG 96-017, 1996 Tenn. AG LEXIS 20 (2/15/96).

Sellers of pre-need funeral contracts, which are funded by a trust or trusts established by the seller, may not combine their individual pre-need trusts with other Tennessee sellers of pre-need funeral contracts to create a single statewide funeral trust.  OAG 13-42, 2013 Tenn. AG LEXIS 44 (6/4/13).

62-5-409. Prearrangement insurance policy.

  1. If the pre-need funeral contract purchaser chooses to fund the contract by a prearrangement insurance policy, the enrollment or application form for the prearrangement insurance policy or certificate shall be submitted to the insurance company by the pre-need sales agent within fifteen (15) calendar days of receipt.
  2. It is unlawful for any life insurance company, fraternal benefit society or other similar company, association or society issuing prearrangement insurance policies, by whatever name they may be called, upon the lives of citizens of this state, to:
    1. Designate, in the policy or otherwise, the person, firm or corporation to conduct the funeral of the insured, or to organize, promote or operate any enterprise or plan, or to enter into any contract with the insured or with any other person, which plan or contract tends to limit or restrict the freedom of choice in the open market of the person or persons having the legal right of the choice regarding contracts, purchases and arrangements with reference to any part of a funeral service for the insured;
    2. Provide in the policy or otherwise that the face amount of the policy, or any loss or indemnity, that may accrue under the policy, shall be payable in anything other than legal tender of the United States and of this state to the beneficiary named in the policy or the legal representative of the insured, and any provision to the contrary shall be null and void;
    3. Enter into any contract with any funeral director, providing that the funeral director shall conduct the funeral of persons insured by the insurance company, fraternal benefit society, or similar company. This subsection (b) shall not be construed to prohibit any beneficiary under a policy from assigning the policy to a funeral establishment of the beneficiary's choice after death of the insured has occurred and liability has accrued; or
    4. Enter into any contract with any citizens of this state, contracting and agreeing to furnish funeral merchandise or services upon the death of any person insured.
  3. It is unlawful for any person, firm or corporation to enter into any contract, conditioned to take effect on the death of any person, wherein the person, or the personal representative, heirs or next of kin of the person, is promised any rebate, discount or reduction in price for or on account of funeral merchandise, expenses or services by virtue of the person being issued the policy or certificate, or being designated as beneficiary in the policy, or by virtue of the person entering into the contract or being designated in the policy as the recipient of any such rebate, discount or reduction in price.
  4. Notwithstanding any other provision of this part, if the insurance company issuing the policy does not offer a funeral trust, or only offers a funeral trust for an additional charge, then the beneficiary or the owner of the policy may irrevocably assign the policy or policy benefits to a funeral establishment; provided, however, that the assignment shall not limit, or be construed as limiting, the ability of the pre-need funeral contract beneficiary or the beneficiary's lawful representative from selecting a different funeral establishment to provide merchandise and services. If a subsequent establishment is designated, then the establishment to which the policy or policy benefits are currently assigned shall, upon written notification, promptly execute any documents necessary to transfer the assignment.
  5. Nothing in this section shall be construed to prohibit the irrevocable assignment of policy benefits to a trust set up to allow for the distribution of the benefits to the funeral home of the policyholder's choosing.
  6. No assignment of the rights or benefits under a prearrangement insurance policy shall be valid unless it is done on a form approved by the commissioner.

Acts 2007, ch. 592, § 10; 2008, ch. 1065, § 2; 2009, ch. 279, § 4; 2019, ch. 339, § 1.

Compiler's Notes. Former part 4, §§ 62-5-40162-5-409 (Acts 1963, ch. 316, §§ 1-8; 1965, ch. 185, § 1; impl. am. Acts 1971, ch. 137, §§ 1, 2; 1972, ch. 553, § 5; 1981, ch. 121, §§ 1-10; 1981, ch. 416, § 5; T.C.A., §§ 62-528 — 62-535; Acts 1985, ch. 230, §§ 1-9; 1985, ch. 231, § 1, 1986, ch. 825, § 1; 1986, ch. 925, §§ 1, 2; Acts 1989, ch. 591, § 113; 1992, ch. 922, §§ 8-10; 1996, ch. 958, § 2, 1997, ch. 400, §§ 1, 2), concerning contracts for future services, was repealed by Acts 2007, ch. 297, § 1, effective January 1, 2008.

Amendments. The 2019 amendment substituted “the beneficiary or the owner of the policy may irrevocably assign the policy” for “the beneficiary may irrevocably assign the policy” in (d).

Effective Dates. Acts 2019, ch. 339, § 2. May 10, 2019.

Cross-References. Cemeteries, title 46.

Fraud as to pre-need sales contracts, § 46-1-308.

Law Reviews.

Preneed Funeral Contracts in Tennessee, 11 Mem. St. U.L. Rev. 231.

Attorney General Opinions. Contracts for the sale of burial vaults, OAG 96-017, 1996 Tenn. AG LEXIS 20 (2/15/96).

The state’s prohibition against the discounting of prearranged funeral contracts is a permissible exercise of state authority, is exempt from federal antitrust laws under the state action immunity doctrine and does not violate any other applicable federal or state law.  OAG 12-06, 2012 Tenn. AG LEXIS 5 (1/13/12).

62-5-410. Death of contract beneficiary — Proof of death — Payments.

  1. Upon the death of the contract beneficiary, the trustee or the insurance company shall pay the funeral establishment or other provider that furnished the services or merchandise only after they have been furnished with a certified copy of the death certificate of the person, or other proof of death acceptable to the trustee or insurance company together with a copy of the statement of funeral merchandise and services, signed by the funeral director or other provider and representative of the contract beneficiary, setting forth that all of the terms and conditions of the pre-need funeral contract have been fully performed by the funeral establishment or other provider.
  2. After payment for the merchandise and services as set forth in the pre-need funeral contract, the trustee or insurance company shall pay any balance remaining in the pre-need funeral trust fund or the prearrangement insurance policy to the purchaser, the purchaser's estate or otherwise named beneficiary.

Acts 2007, ch. 592, § 11.

Compiler's Notes. Former part 4, §§ 62-5-40162-5-409 (Acts 1963, ch. 316, §§ 1-8; 1965, ch. 185, § 1; impl. am. Acts 1971, ch. 137, §§ 1, 2; 1972, ch. 553, § 5; 1981, ch. 121, §§ 1-10; 1981, ch. 416, § 5; T.C.A., §§ 62-528 — 62-535; Acts 1985, ch. 230, §§ 1-9; 1985, ch. 231, § 1, 1986, ch. 825, § 1; 1986, ch. 925, §§ 1, 2; Acts 1989, ch. 591, § 113; 1992, ch. 922, §§ 8-10; 1996, ch. 958, § 2, 1997, ch. 400, §§ 1, 2), concerning contracts for future services, was repealed by Acts 2007, ch. 297, § 1, effective January 1, 2008.

Cross-References. Cemeteries, title 46.

Fraud as to pre-need sales contracts, § 46-1-308.

Law Reviews.

Preneed Funeral Contracts in Tennessee, 11 Mem. St. U.L. Rev. 231.

Attorney General Opinions. Contracts for the sale of burial vaults, OAG 96-017, 1996 Tenn. AG LEXIS 20 (2/15/96).

62-5-411. Maintenance of accounts, books and records — Annual examination of pre-need sellers and sales agents.

  1. Every pre-need seller shall keep and maintain, at a minimum, accurate accounts, books, and records in this state of all pre-need funeral contract and prearrangement insurance policy transactions, copies of all agreements, insurance policies, instruments of assignment, the dates and amounts of payments made and accepted thereon, the names and addresses of the pre-need funeral contract purchasers, the names and addresses of the pre-need funeral contract beneficiaries, the names of the trustees holding pre-need funeral trust funds, copies of the trustee's regular valuations of assets required in § 62-5-408, and the names of insurance companies issuing prearrangement insurance policies. The records shall be kept for a minimum of five (5) years after the death of the pre-need funeral contract beneficiary.
  2. The commissioner may investigate or examine the affairs of any pre-need seller or pre-need sales agent whenever it is deemed appropriate to do so. However, the commissioner shall require an annual examination to ensure that each person, firm, or corporation promising to pay or arrange for funeral services under this part will be able to perform its contract with the purchaser.
  3. The pre-need seller shall pay all costs of any examination conducted under subsection (b), including, but not limited to, the reasonable fees of actuaries, accountants, attorneys and other professionals with whom the commissioner may enter into a contract to perform examination services on behalf of the commissioner.
  4. Trustees of pre-need funeral trusts shall disclose to the commissioner any information regarding pre-need funeral trust accounts overseen by the trustee.
  5. A certified public accountant acting as a trustee pursuant to § 62-5-403(15)(B) shall submit proof of errors and omissions liability coverage with each trustee report to be filed with the commissioner.

Acts 2007, ch. 592, § 12; 2008, ch. 857, § 2.

Compiler's Notes. Former part 4, §§ 62-5-40162-5-409 (Acts 1963, ch. 316, §§ 1-8; 1965, ch. 185, § 1; impl. am. Acts 1971, ch. 137, §§ 1, 2; 1972, ch. 553, § 5; 1981, ch. 121, §§ 1-10; 1981, ch. 416, § 5; T.C.A., §§ 62-528 — 62-535; Acts 1985, ch. 230, §§ 1-9; 1985, ch. 231, § 1, 1986, ch. 825, § 1; 1986, ch. 925, §§ 1, 2; Acts 1989, ch. 591, § 113; 1992, ch. 922, §§ 8-10; 1996, ch. 958, § 2, 1997, ch. 400, §§ 1, 2), concerning contracts for future services, was repealed by Acts 2007, ch. 297, § 1, effective January 1, 2008.

Section 62-5-403(15)(B), referred to in this section, concerning a definition of trustee, expires on July 1, 2011, pursuant to Acts 2008, ch. 857, § 1, effective July 1, 2008.

Cross-References. Cemeteries, title 46.

Fraud as to pre-need sales contracts, § 46-1-308.

Law Reviews.

Preneed Funeral Contracts in Tennessee, 11 Mem. St. U.L. Rev. 231.

Attorney General Opinions. Contracts for the sale of burial vaults, OAG 96-017, 1996 Tenn. AG LEXIS 20 (2/15/96).

62-5-412. Transfer of registration.

A pre-need seller registration may be transferred to a new owner upon payment of a fee fixed by the commissioner and upon submission of an audit report prepared and signed by an independent certified public accountant licensed in this state. All the fees and expenses in connection with the audit are not the responsibility of the trustee or the trust. The audit report shall include an unqualified opinion on the accuracy of the trust fund balances and a report of compliance with this part. Shortages in the trust funds shall be funded by the pre-need seller or new owner prior to a transfer of registration.

Acts 2007, ch. 592, § 13.

Compiler's Notes. Former part 4, §§ 62-5-40162-5-409 (Acts 1963, ch. 316, §§ 1-8; 1965, ch. 185, § 1; impl. am. Acts 1971, ch. 137, §§ 1, 2; 1972, ch. 553, § 5; 1981, ch. 121, §§ 1-10; 1981, ch. 416, § 5; T.C.A., §§ 62-528 — 62-535; Acts 1985, ch. 230, §§ 1-9; 1985, ch. 231, § 1, 1986, ch. 825, § 1; 1986, ch. 925, §§ 1, 2; Acts 1989, ch. 591, § 113; 1992, ch. 922, §§ 8-10; 1996, ch. 958, § 2, 1997, ch. 400, §§ 1, 2), concerning contracts for future services, was repealed by Acts 2007, ch. 297, § 1, effective January 1, 2008.

Cross-References. Cemeteries, title 46.

Fraud as to pre-need sales contracts, § 46-1-308.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Cemeteries, § 9.

Law Reviews.

Preneed Funeral Contracts in Tennessee, 11 Mem. St. U.L. Rev. 231.

Attorney General Opinions. Contracts for the sale of burial vaults, OAG 96-017, 1996 Tenn. AG LEXIS 20 (2/15/96).

62-5-413. Administration of part by commissioner — Civil penalties.

  1. The commissioner shall administer this part.
  2. The commissioner shall promulgate rules and regulations to effectuate the intent of this part in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  3. The commissioner shall collect a fee for the registration of any person, association, partnership, firm or corporation engaged in selling any agreement, contract or plan permitted under this part.
  4. The commissioner may deny an application for a registration, or may suspend, revoke, or refuse to issue or renew any registration under this part upon finding that the registrant or applicant has:
    1. Violated this part, or any rule promulgated under this part;
    2. Practiced fraud, deceit or misrepresentation;
    3. Knowingly and willfully made a material misstatement in connection with an application for registration;
    4. Been convicted by a court of competent jurisdiction of any felony, if the commissioner finds that the conviction reflects unfavorably on the fitness for the registration;
    5. Engaged in dishonorable, unethical, or unprofessional conduct of a character likely to defraud, deceive or harm the public;
    6. Violated any disciplinary order of the commissioner; or
    7. Failed or refused to cooperate with any audit, inspection or investigation to determine compliance with this part or rules and regulations promulgated pursuant to this part.
  5. In addition to or in lieu of any lawful disciplinary action under this part, the commissioner may, at the commissioner's discretion, assess civil penalties in an amount not to exceed one thousand dollars ($1,000) for each separate violation of this part, or any rule or regulation promulgated under this part. Each day of continued violation constitutes a separate violation.
  6. The commissioner is authorized to assess a civil penalty in an amount not to exceed one thousand dollars ($1,000) against the trustee of a pre-need trust fund required by this part, for each separate violation of this part, or of any rule or regulation promulgated under this part. Each day of continued violation constitutes a separate violation.

Acts 2007, ch. 592, § 14.

Compiler's Notes. Former part 4, §§ 62-5-40162-5-409 (Acts 1963, ch. 316, §§ 1-8; 1965, ch. 185, § 1; impl. am. Acts 1971, ch. 137, §§ 1, 2; 1972, ch. 553, § 5; 1981, ch. 121, §§ 1-10; 1981, ch. 416, § 5; T.C.A., §§ 62-528 — 62-535; Acts 1985, ch. 230, §§ 1-9; 1985, ch. 231, § 1, 1986, ch. 825, § 1; 1986, ch. 925, §§ 1, 2; Acts 1989, ch. 591, § 113; 1992, ch. 922, §§ 8-10; 1996, ch. 958, § 2, 1997, ch. 400, §§ 1, 2), concerning contracts for future services, was repealed by Acts 2007, ch. 297, § 1, effective January 1, 2008.

Cross-References. Cemeteries, title 46.

Fraud as to pre-need sales contracts, § 46-1-308.

Law Reviews.

Preneed Funeral Contracts in Tennessee, 11 Mem. St. U.L. Rev. 231.

Attorney General Opinions. Contracts for the sale of burial vaults, OAG 96-017, 1996 Tenn. AG LEXIS 20 (2/15/96).

62-5-414. Appointment of receiver — Jurisdiction of court — Other legal remedies — Plan for reorganization, consolidation, conversion, merger or other transformation — Pre-need funeral consumer protection account — Pre-need funeral consumer protection fee.

  1. The Davidson County chancery court, upon the petition of the commissioner, may appoint the commissioner as receiver to take charge of, control and manage a pre-need seller upon one (1) or more of the following grounds:
    1. The pre-need seller has not maintained trust funds received from contracts in the manner required by this part;
    2. The pre-need seller has allowed its registration to lapse, or the registration has been revoked;
    3. The pre-need seller is impaired or insolvent;
    4. The pre-need seller has refused to submit its books, records, accounts, or affairs to examination by the commissioner;
    5. There is reasonable cause to believe that there has been embezzlement, misappropriation, or other wrongful misapplication or use of trust funds or fraud affecting the ability of the pre-need seller to perform its obligations under pre-need funeral contracts sold or assumed by the pre-need seller;
    6. The pre-need seller has failed to file its annual report; or
    7. The pre-need seller cannot or will not be able to meet all of its contractual obligations when they come due.
  2. For the purpose of this section, Davidson County chancery court shall have exclusive jurisdiction over matters brought under this section, and that court is authorized to make all necessary or appropriate orders to carry out the purposes of this part.
    1. Receivership proceedings instituted pursuant to this part shall constitute the sole and exclusive method of liquidating, rehabilitating, or conserving a pre-need seller, and no court shall entertain a petition for the commencement of the proceedings unless the petition has been filed in the name of the state on the relation of the commissioner.
    2. The commissioner shall commence any such proceeding by application to the court for an order directing the pre-need seller to show cause why the commissioner should not have the relief prayed for in the application.
    3. On the return of the order to show cause, and after a full hearing, the court shall either deny the application or grant the application, together with such other relief as the nature of the case and the interests of the prepaid contract purchaser, contract beneficiaries, or the public may require.
  3. The commissioner may appoint one (1) or more special deputies, who have all the powers and responsibilities of the receiver granted under this section and the commissioner may employ such counsel, clerks and assistants as deemed necessary. The compensation of the special deputy, counsel, clerks and assistants, and all expenses of taking possession of the pre-need seller and of conducting the proceedings, shall be fixed by the commissioner, with the approval of the Davidson County chancery court, and shall be paid out of the funds or assets of the pre-need seller. The persons appointed under this subsection (d) shall serve at the pleasure of the commissioner.
  4. The receiver may take such action as the receiver deems necessary or appropriate to reform and revitalize the pre-need seller. The receiver has all the powers of the owners and directors, whose authority shall be suspended, except as they are redelegated by the receiver. The receiver has full power to direct and manage, to hire and discharge any employees subject to any contractual rights they may have, and to deal with the property and business of the pre-need seller.
  5. If it appears to the receiver that there has been criminal or tortious conduct, or breach of any contractual or fiduciary obligation detrimental to the pre-need seller by any owner, officer, director or other person, the receiver may pursue all appropriate legal remedies on behalf of the pre-need seller.
  6. If the receiver determines that reorganization, consolidation, conversion, merger or other transformation of the pre-need seller is appropriate, the receiver shall prepare a plan to effect those changes. Upon application of the receiver for approval of the plan, and after such notice and hearings as the Davidson County chancery court may prescribe, the court may either approve or disapprove the plan proposed, or may modify it and approve it as modified. Any plan approved under this section shall be, in the judgment of the court, fair and equitable to all parties concerned. If the plan is approved, the receiver shall carry out the plan.
    1. There is established within the general fund a pre-need funeral consumer protection account, referred to as the “pre-need funeral account” in this section. Funds received by the commissioner under this section, up to two million five hundred thousand dollars ($2,500,000) or a higher amount as determined by the commissioner by rule, shall be deposited into the pre-need funeral account and held solely for the purposes related to the pre-need registration program and any receivership action initiated by the commissioner against a pre-need seller pursuant to this section.
    2. Once the balance in the account exceeds two million five hundred thousand dollars ($2,500,000) or a higher amount as determined by the commissioner by rule, an indigent fund shall be established within the general fund to be administered by the commissioner. Any funds received under this section by the commissioner which are in excess of such amount shall be deposited into the indigent fund. If the balance of the pre-need funeral account is reduced below such amount, no funds shall be deposited into the indigent fund until the pre-need funeral account balance is restored to such amount.
        1. An indigent burial fund shall be established for the purpose of reimbursing funeral homes that provide funeral services to Tennessee residents who are indigent.
        2. Funds shall only be expended for a person who was receiving state financial assistance on the date such indigent person died.
        3. All funds in excess of two million five hundred thousand dollars ($2,500,000) shall not revert to the general fund of the state, but shall remain available to be allocated and used solely for such indigent funerals provided by funeral homes.
        4. Interest accruing on investments and deposits of the fund shall be credited to such account, shall not revert to the general fund, and shall be carried forward into each subsequent fiscal year.
        5. Moneys in the fund shall be invested in accordance with § 9-4-603.
        6. The amount of reimbursement shall be based on available funds in the indigent burial fund at the time a request for reimbursement is filed by a funeral home.
      1. A funeral home which provides funeral services to those Tennessee residents who are indigent may file an application with the commissioner, in a manner established by the commissioner, requesting reimbursement from the indigent burial fund for amounts expended by the funeral home in providing such services. The funeral home shall be required to file documentation verifying that the expenses were for providing such services and for no other purposes.
      2. In accordance with the commissioner's rule-making authority pursuant to § 62-5-413(b), the commissioner shall promulgate rules defining indigency for purposes of eligibility for reimbursement, setting a maximum amount for reimbursement per burial, the manner in which claims shall be submitted and paid, and any other rules necessary for the proper administration of this program.
  7. Moneys within the pre-need funeral account shall be invested by the state treasurer in accordance with § 9-4-603 for the sole benefit of the pre-need funeral account.
  8. No pre-need registration renewal shall be issued unless the applicant pays, in addition to the renewal fee, a pre-need funeral consumer protection fee of twenty dollars ($20.00) for every pre-need funeral sales contract entered into during the preceding renewal period. If the pre-need funeral sales contract covers both funeral merchandise and cemetery merchandise as defined in § 46-1-102, then a pre-need seller, other than a cemetery company paying a consumer protection fee for such a contract pursuant to § 46-1-105, shall pay only one (1) consumer protection fee for the contract, which shall be credited to the pre-need funeral account.
  9. The funds received pursuant to this section shall be used to fund the pre-need registration program and any receivership action initiated by the commissioner against a pre-need seller to the extent the funds or assets of the pre-need seller are not adequate to fund the receivership.
  10. There shall be no liability on the part of, and no cause of action of any nature shall arise against, the commissioner or the department or its employees or agents for any action taken by them in the performance of their power and duties under this section.

Acts 2007, ch. 592, § 15; 2010, ch. 933, § 1; 2016, ch. 911, § 10.

Compiler's Notes. Former part 4, §§ 62-5-40162-5-409 (Acts 1963, ch. 316, §§ 1-8; 1965, ch. 185, § 1; impl. am. Acts 1971, ch. 137, §§ 1, 2; 1972, ch. 553, § 5; 1981, ch. 121, §§ 1-10; 1981, ch. 416, § 5; T.C.A., §§ 62-528 — 62-535; Acts 1985, ch. 230, §§ 1-9; 1985, ch. 231, § 1, 1986, ch. 825, § 1; 1986, ch. 925, §§ 1, 2; Acts 1989, ch. 591, § 113; 1992, ch. 922, §§ 8-10; 1996, ch. 958, § 2, 1997, ch. 400, §§ 1, 2), concerning contracts for future services, was repealed by Acts 2007, ch. 297, § 1, effective January 1, 2008.

Cross-References. Cemeteries, title 46.

Fraud as to pre-need sales contracts, § 46-1-308.

Law Reviews.

Preneed Funeral Contracts in Tennessee, 11 Mem. St. U.L. Rev. 231.

Attorney General Opinions. Contracts for the sale of burial vaults, OAG 96-017, 1996 Tenn. AG LEXIS 20 (2/15/96).

62-5-415. Violations.

A violation of this part is a Class C misdemeanor.

Acts 2007, ch. 592, § 16.

Compiler's Notes. Former part 4, §§ 62-5-40162-5-409 (Acts 1963, ch. 316, §§ 1-8; 1965, ch. 185, § 1; impl. am. Acts 1971, ch. 137, §§ 1, 2; 1972, ch. 553, § 5; 1981, ch. 121, §§ 1-10; 1981, ch. 416, § 5; T.C.A., §§ 62-528 — 62-535; Acts 1985, ch. 230, §§ 1-9; 1985, ch. 231, § 1, 1986, ch. 825, § 1; 1986, ch. 925, §§ 1, 2; Acts 1989, ch. 591, § 113; 1992, ch. 922, §§ 8-10; 1996, ch. 958, § 2, 1997, ch. 400, §§ 1, 2), concerning contracts for future services, was repealed by Acts 2007, ch. 297, § 1, effective January 1, 2008.

Cross-References. Cemeteries, title 46.

Fraud as to pre-need sales contracts, § 46-1-308.

Penalty for Class C misdemeanor, § 40-35-111.

Law Reviews.

Preneed Funeral Contracts in Tennessee, 11 Mem. St. U.L. Rev. 231.

Attorney General Opinions. Contracts for the sale of burial vaults, OAG 96-017, 1996 Tenn. AG LEXIS 20 (2/15/96).

62-5-416. Injunction.

In addition to other remedies, an action of injunction may be brought and maintained by the state or any other interested party to enjoin the violation of this part.

Acts 2007, ch. 592, § 17.

Compiler's Notes. Former part 4, §§ 62-5-40162-5-409 (Acts 1963, ch. 316, §§ 1-8; 1965, ch. 185, § 1; impl. am. Acts 1971, ch. 137, §§ 1, 2; 1972, ch. 553, § 5; 1981, ch. 121, §§ 1-10; 1981, ch. 416, § 5; T.C.A., §§ 62-528 — 62-535; Acts 1985, ch. 230, §§ 1-9; 1985, ch. 231, § 1, 1986, ch. 825, § 1; 1986, ch. 925, §§ 1, 2; Acts 1989, ch. 591, § 113; 1992, ch. 922, §§ 8-10; 1996, ch. 958, § 2, 1997, ch. 400, §§ 1, 2), concerning contracts for future services, was repealed by Acts 2007, ch. 297, § 1, effective January 1, 2008.

Cross-References. Cemeteries, title 46.

Fraud as to pre-need sales contracts, § 46-1-308.

Law Reviews.

Preneed Funeral Contracts in Tennessee, 11 Mem. St. U.L. Rev. 231.

Attorney General Opinions. Contracts for the sale of burial vaults, OAG 96-017, 1996 Tenn. AG LEXIS 20 (2/15/96).

62-5-417. Fraud — Treble damages.

In civil actions, in which the prevailing party proves fraud relative to a contract for future services under this part, the prevailing party shall receive treble damages together with attorneys' fees, costs and interest.

Acts 2007, ch. 592, § 18.

Compiler's Notes. Former part 4, §§ 62-5-40162-5-409 (Acts 1963, ch. 316, §§ 1-8; 1965, ch. 185, § 1; impl. am. Acts 1971, ch. 137, §§ 1, 2; 1972, ch. 553, § 5; 1981, ch. 121, §§ 1-10; 1981, ch. 416, § 5; T.C.A., §§ 62-528 — 62-535; Acts 1985, ch. 230, §§ 1-9; 1985, ch. 231, § 1, 1986, ch. 825, § 1; 1986, ch. 925, §§ 1, 2; Acts 1989, ch. 591, § 113; 1992, ch. 922, §§ 8-10; 1996, ch. 958, § 2, 1997, ch. 400, §§ 1, 2), concerning contracts for future services, was repealed by Acts 2007, ch. 297, § 1, effective January 1, 2008.

Cross-References. Cemeteries, title 46.

Fraud as to pre-need sales contracts, § 46-1-308.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Cemeteries, § 9; 15 Tenn. Juris., §§ 16, 22.

Law Reviews.

Preneed Funeral Contracts in Tennessee, 11 Mem. St. U.L. Rev. 231.

Attorney General Opinions. Contracts for the sale of burial vaults, OAG 96-017, 1996 Tenn. AG LEXIS 20 (2/15/96).

Part 5
Cremation

62-5-501. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Body parts” means limbs or other portions of the anatomy that are removed from a living person for medical purposes during biopsy, treatment or surgery. “Body parts” also includes dead human bodies that have been donated to science for purposes of medical education or research and any parts of such a dead human body that were removed for those purposes. Nothing in this part shall be construed to permit the cremation of medical waste at the request of a hospital or other institution. Only the individual from whose body the parts were removed or the individual's duly appointed representative may make arrangements with the crematory for the cremation of body parts;
  2. “Casket” means a rigid container that is designed for the encasement of a dead human body and that is constructed of wood, metal or another rigid material, is ornamented and lined with fabric and may or may not be combustible;
  3. “Temporary container” means a receptacle for cremated remains composed of cardboard, plastic, metal or another material that can be closed in a manner that prevents the leakage or spillage of the cremated remains and the entrance of foreign material and that is of sufficient size to hold the cremated remains until they are placed in an urn or scattered; and
  4. “Urn” means a receptacle designed to encase cremated remains permanently.

Acts 1999, ch. 215, § 1; 2000, ch. 779, § 1.

Compiler's Notes. Former § 62-5-501 (Acts 1982, ch. 703, § 1), concerning designation by deceased and disposal of ashes, was repealed by Acts 1999, ch. 215, § 12.

62-5-502, 62-5-503. [Reserved.]

  1. No operator of a crematory facility shall cremate or allow the cremation at a crematory facility of a dead human body, other than one that was donated to science for purposes of medical education or research, until all of the following have occurred:
    1. The requirements of § 62-5-513 have been met, unless the decedent having died from a virulent communicable disease, the department of health or board of health having territorial jurisdiction where the death of the decedent occurred requires by rule or order the cremation to occur prior to those requirements being met;
    2. The operator has received a permit for cremation of human remains that authorizes the cremation of the decedent; and
    3. The operator has received any other documentation required by this state or a political subdivision of this state.
  2. Upon the submission of a sworn affidavit by an operator of a crematory that the operator has completed the cremation of human remains without charge, the department of health shall issue a refund of any fees associated with the receipt of a permit as required in subdivision (a)(2).

Acts 1999, ch. 215, § 4; 2000, ch. 779, §§ 4, 5, 30; 2012, ch. 799, § 2; 2019, ch. 375, § 1.

Compiler's Notes. Acts 2019, ch. 375, § 2 provided that the exemption created by the act shall apply to fees assessed on or after July 1, 2019.

Amendments. The 2019 amendment added (b).

Effective Dates. Acts 2019, ch. 375, § 3. July 1, 2019.

62-5-505. [Reserved.]

62-5-507. Crematory facility operator duties.

  1. The operator of a crematory facility may schedule the time for the cremation of a dead human body to occur at the operator's own convenience at any time after the conditions set forth in § 62-5-504 have been met and the decedent or body parts have been delivered to the facility, unless, in the case of a dead human body, the operator has received specific instructions to the contrary from the licensed establishment. The operator of a crematory facility becomes responsible for a dead human body or body parts when the body or body parts have been delivered to or accepted by the facility or an employee or agent of the facility.
  2. No operator of a crematory facility shall fail to do either of the following:
    1. Upon receipt at the crematory facility of any dead human body that has not been embalmed, place the body in a holding or refrigerated facility at the crematory facility and keep the body in the holding or refrigerated facility until near the time the cremation process commences or until the body is held at the facility for eight (8) hours or longer. If the body is held for eight (8) hours or longer, place the body in a refrigerated facility at the crematory facility and keep the body in the refrigerated facility until near the time the cremation process commences; or
    2. Upon receipt of any dead human body that has been embalmed, place the body in a holding facility at the crematory facility and keep the body in the holding facility until the cremation process commences.
  3. No operator of a crematory facility shall fail to cremate, in its entirety with the body, the casket or container, if any, in which the body was delivered or accepted by the crematory facility, if the instructions for the disposition of the body so request that item be cremated with the body; provided, that the crematory facility shall be permitted to remove any non-combustible materials from the casket or container prior to cremation.
  4. No operator of a crematory facility shall simultaneously cremate more than one (1) decedent or body parts removed from more than one (1) decedent or living person in the same cremation chamber. This subsection (d) does not prohibit the use of cremation equipment that contains more than one (1) cremation chamber.
  5. No operator of a crematory facility shall permit any person other than employees of the crematory facility, a licensed funeral director or a designee of a funeral director and persons authorized pursuant to the instructions of the decedent or an heir or personal representative of the decedent, if any, to be present in the holding facility or cremation room while any dead human bodies or body parts are being held there prior to cremation or are being cremated or while any cremated remains are being removed from the cremation chamber.
    1. No operator of a crematory facility shall remove any dental gold, body parts, organs or other items of value from a dead human body prior to the cremation or from the cremated remains after cremation unless the operator was acting under instructions that specifically authorize the removal of any dental gold, body parts, organs or other items of value.
    2. No operator of a crematory facility who removes any dental gold, body parts, organs, or other items from a dead human body or assists in the removal shall charge a fee for doing so that exceeds the actual cost to the crematory facility for performing or assisting in the removal of those materials.
  6. Upon the completion of each cremation, the operator of a crematory facility shall remove from the cremation chamber all of the cremation residue that is practicably recoverable. If all of the recovered cremated remains will not fit in the urn selected or in the temporary container, the operator shall place the remainder in a separate temporary container; and the cremated remains placed in the separate temporary container shall be delivered, released or disposed of together with those in the urn or other temporary container. Nothing in this section requires an operator of a crematory facility to recover any specified quantity or quality of cremated remains upon the completion of a cremation, but shall only require an operator to recover from the cremation chamber all of the cremation residue that is practically recoverable.
  7. No operator of a crematory facility shall knowingly represent that an urn or temporary container contains the recovered cremated remains of a specific decedent or of body parts removed from a specific decedent or living person when it does not. This section does not prohibit the making of such a representation because of the presence in the recovered cremated remains of de minimis amounts of the cremated remains of another decedent or of body parts.
  8. Operators of a crematory facility or a funeral director shall ship or cause to be shipped any cremated remains by a class or method of mail, common carrier service or delivery service that has an internal system for tracing the location of the cremated remains during shipment and that requires a signed receipt from the person accepting delivery of the cremated remains.
  9. Operators of a crematory facility shall establish and maintain a system for accurately identifying each dead human body in the facility's possession and for identifying each decedent or living person from whom body parts in the facility's possession were removed throughout all phases of the holding and cremation process.
  10. No operator of a crematory facility shall knowingly use or allow the use of the same cremation chamber for the cremation of dead human bodies or human body parts and animals.

Acts 1999, ch. 215, § 7; 2000, ch. 779, §§ 8-15.

62-5-508. Final disposition of remains — Unclaimed cremated remains.

  1. Except as provided in subsection (b), no person shall:
    1. Dispose of the cremated remains of a dead human body or body parts in such a manner or in such a location that the cremated remains are commingled with those of another decedent or body parts removed from another decedent or living person; or
    2. Place the cremated remains of more than one (1) decedent or of body parts removed from more than one (1) decedent or living person in the same urn or temporary container.
  2. Notwithstanding subsection (a), a person may:
    1. Scatter cremated remains at sea, by air or in a dedicated area at a cemetery used exclusively for the scattering on the ground of the cremated remains of dead human bodies or body parts;
    2. Commingle cremated remains of more than one (1) decedent or of body parts removed from more than one (1) decedent or living person or the placement in the same urn or temporary container of the cremated remains of more than one (1) decedent or of body parts removed from more than one (1) decedent or living person if operating under specific instructions from the decedent or decedents or an heir or personal representative designated by the decedent or decedents to make such a decision; and
    3. If the person is operating under the decedent's instructions, commingle the cremated remains or body parts removed from another decedent or living person, after receipt of the cremated remains or the body parts, with those of another decedent or body parts removed from another decedent or living person.
  3. Unless otherwise specified by any written agreement between the operator of the crematory facility or funeral establishment and the person or entity requesting the cremation of human remains, any cremated human remains unclaimed one hundred eighty (180) calendar days from the date of cremation, may be interred, entombed, or inurned by the operator of the crematory facility, and a record of the disposition of such unclaimed cremated human remains shall be made available by the operator of the crematory facility or funeral establishment for inspection on weekdays between the hours of eight o’clock a.m. (8:00 a.m.) and four-thirty p.m. (4:30 p.m.).

Acts 1999, ch. 215, § 8; 2000, ch. 779, §§ 16-18; 2010, ch. 655, § 1; 2014, ch. 690, § 3.

62-5-509. Written receipt for remains — Records.

  1. No operator of a crematory facility shall fail to ensure that a written receipt is provided to the person who delivers a dead human body or body parts to the facility for cremation.
  2. If the dead human body is other than one that was donated to science for purposes of medical education or research, the receipt shall be signed by both a representative of the crematory facility and the person who delivered the decedent to the crematory facility and shall indicate:
    1. The name of the decedent;
    2. The date and time of delivery;
    3. The type of casket or container, if any, in which the decedent was delivered to the facility;
    4. The name of the person who delivered the decedent to the facility, if applicable;
    5. The name of the funeral home or other establishment with whom the delivery person is affiliated; and
    6. The name of the person who received the decedent on behalf of the facility.
  3. If the dead human body was donated to science for purposes of medical education or research, the receipt shall indicate the name of the person who received the decedent on behalf of the facility.
    1. At the time of releasing cremated remains, an operator of a crematory facility shall ensure that a written receipt signed by both a representative of the crematory facility and the person who received the cremated remains is provided to the person who received the cremated remains. Unless the cremated remains are those of a dead human body that was donated to science for purposes of medical education or research or are those of body parts, the receipt shall indicate:
      1. The name of the decedent;
      2. The date and time of the release;
      3. The name of the person to whom the cremated remains were released;
      4. If applicable, the name of the funeral home, cemetery or other entity to whom the cremated remains were released; and
      5. The name of the person who released the cremated remains on behalf of the crematory facility.
    2. If the cremated remains are those of a dead human body that was donated to science for purposes of medical education or research or are those of body parts, the receipt shall be signed by both a representative of the crematory facility and the person who received the cremated remains; and the receipt shall indicate the date and time of the release. For other cremated remains, the receipt required by this section shall accompany the cremated remains. The signature of the person whose name is on the delivery receipt to accept delivery of the cremated remains meets the requirement of this section that the person receiving the cremated remains sign the receipt provided by the crematory facility.
  4. During the time that the crematory remains engaged in the business of cremating dead human bodies or body parts, the crematory facility shall keep the following for a period of at least seven (7) years:
    1. A copy of each receipt issued upon acceptance by or delivery to the crematory facility of a dead human body;
    2. A record of each cremation conducted at the facility, containing at least the name of the decedent or, in the case of body parts, the name of the decedent or living person from whom the body parts were removed, the date and time of the cremation and the final disposition made of the cremated remains;
    3. A copy of each delivery receipt issued under this section; and
    4. A separate record of the cremated remains of each decedent or the body parts removed from each decedent or living person that were disposed of containing at least the name of the decedent, the date and time of the cremation and the location, date and manner of final disposition of the cremated remains.
  5. All records required to be maintained under this part are subject to inspection by the board of funeral directors and embalmers or an authorized representative of the board, upon reasonable notice, at any reasonable time.

Acts 1999, ch. 215, § 9; 2000, ch. 779, §§ 19-23.

62-5-510. Removal of devices or implants from remains.

If a funeral director delivers the decedent to a crematory facility, the funeral director shall take reasonable precautions to ensure necessary actions are taken to remove a device or implant from the decedent or to render the device or implant nonhazardous prior to delivering the decedent to the crematory facility if the funeral director is aware of such a device or implant.

Acts 1999, ch. 215, § 10; 2000, ch. 779, § 24.

62-5-511. Crematory facility operator liability.

  1. The operator of a crematory facility is not liable for damages in a civil action for any of the following actions or omissions, unless the actions or omissions were made with malicious purpose, in bad faith or in a wanton or reckless manner:
    1. Having performed the cremation of the decedent, or having released or disposed of the cremated remains, in accordance with the instructions set forth by the decedent or an heir or personal representative of the decedent;
    2. Having performed the cremation of the decedent or body parts removed from the decedent or living person or having released or disposed of the cremated remains in accordance with the instructions set forth by the decedent or an heir or personal representative of the decedent; or
    3. Any failure to correctly identify a dead human body prior to cremation.
  2. The operator of a crematory facility is not liable for damages in a civil action for refusing to accept a dead human body or body parts or to perform a cremation under any of the following circumstances, unless the refusal was made with malicious purpose, in bad faith or in a wanton or reckless manner:
    1. The operator has actual knowledge that there is a dispute regarding the cremation of the decedent or body parts, and the operator has not received an order of the court having jurisdiction ordering the cremation of the decedent or body parts;
    2. The operator has a reasonable basis for questioning the accuracy of any of the information or statements provided to the operator with respect to the cremation of the decedent or body parts; or
    3. The operator has any other lawful reason for refusing to accept the dead human body or body parts or to perform the cremation.
  3. The operator of a crematory facility is not liable for damages in a civil action in connection with the cremation of or disposition of the cremated remains of any dental gold, jewelry or other items of value delivered to the facility with a dead human body or body parts unless the actions or omissions of the operator were made with malicious purpose, in bad faith or in a wanton or reckless manner.
  4. This section does not create a new cause of action or substantive legal right against the operator of a crematory facility.
  5. This section does not affect any immunities from civil liability or defenses established by law to which the operator of a crematory facility may be entitled.

Acts 1999, ch. 215, § 11; 2000, ch. 779, §§ 25-28.

NOTES TO DECISIONS

1. Funeral Home is not an Operator.

Funeral home that merely makes arrangements for a cremation and contracts for another party to perform the cremation is not the operator of a crematory facility for purposes of the statutory safe harbor under T.C.A. § 62-5-511. Seals v. H & F, Inc., 301 S.W.3d 237, 2010 Tenn. LEXIS 12 (Tenn. Jan. 15, 2010), rehearing denied, — S.W.3d —, 2010 Tenn. LEXIS 89 (Tenn. Feb. 2, 2010), superseded by statute as stated in, Capps v. Cremation Options, Inc., — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 2744 (E.D. Tenn. Jan. 11, 2016).

2. Minor as Heir.

While the minor is an “heir” under T.C.A. § 62-5-511, reliance on the instructions of a minor may qualify as so reckless as to subject the crematory operator to liability. Seals v. H & F, Inc., 301 S.W.3d 237, 2010 Tenn. LEXIS 12 (Tenn. Jan. 15, 2010), rehearing denied, — S.W.3d —, 2010 Tenn. LEXIS 89 (Tenn. Feb. 2, 2010), superseded by statute as stated in, Capps v. Cremation Options, Inc., — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 2744 (E.D. Tenn. Jan. 11, 2016).

62-5-512. Cremation without a casket.

No operator of a crematory facility shall require a person to be cremated in a casket; provided, that in the discretion of the operator of a crematory facility, a container composed of readily combustible materials that is suitable for cremation, other than a casket, may be required.

Acts 2000, ch. 779, § 29.

62-5-513. Delay of cremation.

If a person who signs the death certificate, a district attorney general or any law enforcement officer, or an emergency medical or rescue worker, emergency medical technician or paramedic who attended the person immediately prior to or after the person's death, signs a written statement requesting the delay of a cremation based upon a reasonable belief that the cause of death may have been due to other than accidental or natural causes, then the cremation of a dead human body shall be delayed based upon that request.

Acts 2000, ch. 779, § 31.

Part 6
Continuing Education

62-5-601. Continuing education requirement for license renewals.

  1. Every licensed embalmer holding a Tennessee license shall submit with the renewal application evidence of satisfactory completion of a continuing education program in mortuary science approved by the board.
  2. Every licensed funeral director holding a Tennessee license shall submit with the renewal application evidence of satisfactory completion of a continuing education program in funeral directing approved by the board.
  3. Each licensee holding a Tennessee license shall submit with the license renewal application satisfactory proof of completion of a minimum of ten (10) hours of continuing education coursework approved by the board. Compliance with the continuing education coursework is mandatory for renewal of a license. Of the ten (10) hours of continuing education coursework, five (5) hours must be attended in person. For purposes of this subsection (c), “attended in person” means the continuing education coursework is completed by the licensee in the physical presence of the provider of the coursework or is completed by the licensee through an interactive virtual program that requires participants to confirm their presence during the program.
  4. Any licensee who is sixty-five (65) years of age or older or who has held a license continuously for ten (10) years on or before October 1, 2000, shall be exempt from the continuing education requirements in this chapter. In addition, a licensee who demonstrates to the board on the prescribed form that the licensee is disabled and is not practicing either funeral directing or embalming is exempt from the continuing education requirements set forth in this chapter.
  5. The board, for good cause, shall have the power to excuse licensees from the continuing education requirements set forth in this chapter.
  6. Continuing education credit or credits may be obtained by attending and participating in continuing education courses or workshops approved by the board.
  7. No continuing education hours from one licensing period may be carried over to a subsequent licensing period.

Acts 1997, ch. 275, § 2; 2017, ch. 154, § 1.

62-5-602. Reciprocity for nonresident licensees.

A nonresident licensee of this state who holds a valid license as a funeral director or embalmer issued by another state may satisfy continuing education requirements through reciprocity, if the out-of-state credits meet the minimum standard requirements of this chapter.

Acts 1997, ch. 275, § 3.

62-5-603. Approval of courses — Qualification.

A continuing education course or workshop shall be qualified for approval if the board determines that it:

  1. Constitutes an organized program of learning, including a symposium, that contributes directly to the professional competency of the licensee;
  2. Is related to the practice of mortuary science or funeral directing;
  3. Is conducted by individuals considered experts in the subject matter of the program by reason of education, training or experience; and
  4. Is accompanied by a paper, manual or written outline that substantially describes the subject matter of the program.

Acts 1997, ch. 275, § 4.

62-5-604. Credit for serving as lecturer or discussion leader.

A licensee who serves as a lecturer or discussion leader of an approved continuing education course or workshop may satisfy up to twenty-five percent (25%) of the continuing education requirement. Repetitious presentations shall be counted once.

Acts 1997, ch. 275, § 5.

62-5-605. Application for approval — Reports.

  1. Any organization or individual wishing to hold seminars with employees or other licensees shall:
    1. Submit to the board no less than sixty (60) days from the planned event an application supplied by the board outlining the event, speaker and course description; provided, that for good cause, an amendment to the application may be submitted to the board no less than thirty (30) days from the planned event; and
    2. Upon completion of an application, be notified of the approval or disapproval of the course a minimum of thirty (30) days before the courses are offered, or upon completion of an amendment, be notified of the approval or disapproval of the amendment a minimum of ten (10) days before the courses are offered; and
    3. Following a seminar, submit paperwork within thirty (30) days with the following information:
      1. Name of person attending;
      2. License number;
      3. Date of attendance; and
      4. Hours completed.
  2. The board may waive the requirements of subsection (a) and approve continuing education courses for good cause shown.

Acts 1997, ch. 275, § 6; 2001, ch. 187, § 1.

62-5-606. Written list of approved courses.

The board may annually or on request provide licensees with a written list of approved continuing education courses. This list shall include course offerings not only in this state but also other states as deemed necessary by the board in order to make available a wide variety of courses and offerings to its licensees.

Acts 1997, ch. 275, § 7.

62-5-607. Review of approved courses.

  1. Each continuing education course approved by the board may subsequently be reviewed and, upon evidence of significant variation from the program application submitted, all or any part of the approved hours may be disapproved.
  2. The board or its representative shall be admitted to continuing education courses at no charge in order to monitor the licensees present, the content of the course and supporting paperwork.

Acts 1997, ch. 275, § 8.

62-5-608. Oversight committee.

  1. The board may appoint a committee to oversee the application process and monitoring of continuing education programs.
  2. In the event of a denial, in whole or in part, of any application for accreditation or approval of a continuing education course or workshop, the applicant or licensee shall have a right to a conference before the continuing education committee of the board. If dissatisfied with the ruling of the committee, the applicant or licensee may be granted a conference before the full board.

Acts 1997, ch. 275, § 9.

62-5-609. Proof of coursework required for license renewal.

Each applicant for renewal of a funeral director's or embalmer's license in this state shall submit the renewal fee accompanied by written proof of each continuing education course or courses the person has attended during the previous two (2) years. No applications for renewal will be considered without complete documentation of the continuing education hours and the renewal fee, unless exempted by this chapter.

Acts 1997, ch. 275, § 10.

Cross-References. License renewals, § 62-5-315.

62-5-610. Failure to meet requirements — Falsification of course records.

  1. The license of any funeral director or embalmer who has not met the continuing education requirements prescribed in this chapter shall not be renewed.
  2. Any licensee who submits credits for continuing education hours not attended or incomplete or submits falsified information shall be subject to discipline by the board.

Acts 1997, ch. 275, § 11.

Cross-References. License renewals, § 62-5-315.

62-5-611. Withdrawal of approval for program.

Approval of any continuing education program may be withdrawn by the board if:

  1. The establishment or conduct of a program violates or fails to meet the requirements of this chapter or other applicable laws; or
  2. The information contained in the application for approval is materially inaccurate or misleading.

Acts 1997, ch. 275, § 12.

Part 7
Disposition of Human Remains

62-5-701. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Disposition directions” means a legible written instrument signed by the decedent and acknowledged by a notary or witnessed by two (2) persons who are qualified adults; provided, that such written instrument may be, but is not limited to, a letter of instructions, a will, a trust document, or an advance directive;
  2. “Qualified adult” means a person who is eighteen (18) years of age or older and of sound mind; and
  3. “Right of disposition” means the right to determine the disposition of the remains of a decedent, including the location, manner, and conditions of disposition and arrangements for funeral goods and services.

Acts 2012, ch. 828, § 2.

62-5-702. Disposition of human remains and arrangements for funeral goods and services — Cancellation or revision of disposition directions or pre-need funeral contract.

  1. A qualified adult, by entering into disposition directions or a pre-need funeral contract executed pursuant to part 4 of this chapter, may direct the location, manner and conditions of disposition of the adult's remains, and the arrangements for funeral goods and services to be provided upon the adult's death.
  2. No disposition directions or pre-need funeral contract shall be subject to cancellation or substantial revision unless the cancellation or substantial revision has been ordered by a person authorized to act as the lawful representative in § 62-5-703, or the pre-need funeral contract as the person authorized to cancel or revise the terms of the disposition directions or the pre-need funeral contract, or unless any resources set aside or available to fund the disposition directions or the pre-need funeral contract are insufficient to carry out the funeral and disposition arrangements set forth in the disposition directions or pre-need funeral contract.

Acts 2012, ch. 828, § 2.

62-5-703. Order in which rights to control vest.

Except as set forth in § 62-5-704, and in the absence of disposition directions or a pre-need funeral contract, the right to control the disposition of the decedent’s remains, the location, manner and conditions of disposition, and arrangements for funeral goods and services to be provided vests in the following persons in the order named; provided, that such person is a qualified adult:

  1. An attorney in fact designated in a durable power of attorney for health care who is acting pursuant to § 34-6-204;
  2. The surviving spouse;
  3. The sole surviving child of the decedent, or if there is more than one (1) child of the decedent, the majority of the surviving children. However, less than one half (½) of the surviving children shall be vested with the rights of this section if they have used reasonable efforts to notify all other surviving children of their instructions and are not aware of any opposition to those instructions on the part of more than one half (½) of all surviving children;
  4. The surviving parent of the decedent. If one (1) of the surviving parents is absent, the remaining parent shall be vested with the rights and duties of this section after reasonable efforts have been unsuccessful in locating the absent surviving parent;
  5. The surviving sibling of the decedent, or if there is more than one (1) sibling of the decedent, the majority of the surviving siblings. However, less than the majority of surviving siblings shall be vested with the rights and duties of this section if they have used reasonable efforts to notify all other surviving siblings of their instructions and are not aware of any opposition to those instructions on the part of more than one half (½) of all surviving siblings;
  6. The surviving grandchild of the decedent, or if there is more than one (1) surviving grandchild, the majority of the grandchildren. However, less than the majority of the surviving grandchildren shall be vested with the rights and duties of this section if they have used reasonable efforts to notify all other surviving grandchildren of their instructions and are not aware of any opposition to those instructions on the part of more than one half (½) of all surviving grandchildren;
  7. The surviving grandparent of the decedent, or if there is more than one (1) surviving grandparent, the majority of the grandparents. However, less than the majority of the surviving grandparents shall be vested with the rights and duties of this section if they have used reasonable efforts to notify all other surviving grandparents of their instructions and are not aware of any opposition to those instructions on the part of more than one half (½) of all surviving grandparents;
  8. The guardian of the person of the decedent at the time of the decedent's death, if one had been appointed;
  9. The personal representative of the estate of the decedent;
  10. The person in the classes of the next degree of kinship, in descending order, under the laws of descent and distribution to inherit the estate of the decedent. If there is more than one (1) person of the same degree, any person of that degree may exercise the right of disposition;
  11. If the disposition of the remains of the decedent is the responsibility of the state or a political subdivision of the state, the public officer, administrator or employee responsible for arranging the final disposition of the decedent's remains; or
  12. In the absence of any person listed in subdivisions (1)-(11), any other person willing to assume the responsibilities to act and arrange the final disposition of the decedent's remains, including the funeral director with custody of the body, after attesting in writing that a good faith effort has been made to no avail to contact the individuals listed in subdivisions (1)-(11).

Acts 2012, ch. 828, § 2.

62-5-704. Circumstances under which rights forfeited.

A person entitled under § 62-5-703 to the right of disposition shall forfeit that right, and the right shall pass on to the next person in accordance with § 62-5-703, in the following circumstances:

  1. Any person convicted of an offense described in § 39-13-202, § 39-13-210, or § 39-13-211, in connection with the decedent's death, and whose conviction or convictions are known to the funeral director; or
  2. Any person who does not exercise the right of disposition within seventy-two (72) hours of notification of the decedent's death or within one hundred and sixty-eight (168) hours of the decedent's death, whichever is earlier.

Acts 2012, ch. 828, § 2.

62-5-705. Petition to court with probate jurisdiction to make determination in case of dispute concerning disposition — Considerations in determination.

If two (2) or more persons hold the right of disposition pursuant to § 62-5-703, and they cannot, by majority vote, make a decision regarding the disposition of the decedent’s remains, any of such persons or a funeral establishment with custody of the remains may file a petition asking the court with probate jurisdiction to make a determination in the matter. If a funeral establishment brings an action under this section, or relies upon this section to defend itself in a related lawsuit, the court may award legal fees and court costs associated with a petition under this section to the cost of final disposition. The court with probate jurisdiction for the county where the decedent resided may award the right of disposition to the person determined by the court to be the most fit and appropriate to carry out the right of disposition, and may make decisions regarding the decedent’s remains if those sharing the right of disposition cannot agree. The court may consider the following in making such determination:

  1. The reasonableness and practicality of the proposed funeral arrangements and disposition;
  2. The degree of the personal relationship between the decedent and each of the persons claiming the right of disposition;
  3. The desires of the person who is ready, able and willing to pay the cost of the funeral arrangements and disposition;
  4. The convenience and needs of other families and friends wishing to pay respects;
  5. The desires of the decedent; and
  6. The degree to which the funeral arrangements would allow maximum participation by all wishing to pay respect.

Acts 2012, ch. 828, § 2.

62-5-706. No liability of funeral establishment when parties in dispute until court order.

  1. In the event two (2) or more persons hold the right of disposition pursuant to § 62-5-703, and they cannot, by majority vote, make a decision regarding the disposition of the decedent's remains, no funeral establishment is liable for refusing to accept, inter or otherwise dispose of the remains of the decedent or complete the arrangements for the final disposition of the remains until the funeral establishment receives a court order or other written agreement signed by the parties to the dispute that determines the final disposition of the remains. If the funeral establishment retains the remains for final disposition while the parties are in disagreement, the funeral establishment may shelter, refrigerate or embalm the body, or all, in order to preserve the body while awaiting the final decision of the probate court. However, the funeral establishment may not charge for embalming unless expressly agreed to by the parties. Neither this section, nor § 62-5-705, shall be construed to require or to impose a duty upon a funeral establishment to bring an action under this section or § 62-5-705. No funeral establishment or its employees shall be held criminally or civilly liable for choosing not to bring an action under this section or § 62-5-705.
    1. Except to the degree it may be considered by the court under § 62-5-705(3), the fact that a person has paid or agreed to pay for all or part of the funeral arrangements and final disposition does not give that person a greater right to the right of disposition than the person would otherwise have.
    2. The personal representative of the estate of the decedent does not, by virtue of being the personal representative, have a greater claim to the right of disposition than the person would otherwise have.

Acts 2012, ch. 828, § 2.

62-5-707. Funeral establishment's right to rely on contract or authorization.

Any person signing a funeral service agreement, cremation authorization form, or any other authorization for disposition shall be deemed to warrant the truthfulness of any facts set forth therein, including the identity of the decedent whose remains are to be buried, cremated, or otherwise disposed of, and the party's authority to order such disposition. A funeral establishment shall have the right to rely on such funeral service contract or authorization and shall have the authority to carry out the instructions of the person whom the funeral establishment reasonably believes holds the right of disposition. No funeral establishment is responsible for contacting or independently investigating the existence of any next-of-kin or relative of the decedent.

Acts 2012, ch. 828, § 2.

62-5-708. Reasonable reliance upon instructions.

No funeral establishment or funeral director who relies reasonably in good faith upon the instructions of a person claiming the right of disposition shall be subject to criminal or civil liability or subject to disciplinary action for carrying out the disposition of the remains in accordance with the instructions unless the funeral establishment or funeral director knew or had reason to know that the person did not have the right of disposition.

Acts 2012, ch. 828, § 2.

NOTES TO DECISIONS

1. Subject Matter Jurisdiction.

Appellate court could not conclude that plaintiff was seeking to determine who had the right to make decisions regarding the remains of her mother, but, rather, the language in the civil warrant could be read to assert a claim against defendant for ignoring plaintiff's right to control disposition of her mother's remains; and subject matter jurisdiction over such a claim was not limited by statute to probate court; thus, the circuit court erred in dismissing plaintiff's claim under the statutes concerning disposition of human remains for lack of subject matter jurisdiction. Vaughn v. R.S. Lewis & Sons Funeral Home, — S.W.3d —, 2018 Tenn. App. LEXIS 520 (Tenn. Ct. App. Aug. 31, 2018).

62-5-709. Release of remains to selected funeral establishment.

A funeral establishment that has custody of the remains of a deceased person, but is not the establishment selected by the persons named in § 62-5-703 with the right of disposition to provide funeral services, shall release the remains to the funeral establishment selected by the persons named in § 62-5-703 with the right of disposition during normal business hours unless otherwise agreed to by the two (2) funeral establishments. The receiving funeral establishment shall be responsible for the cost of any merchandise or services provided by the initial funeral establishment, which shall be payable to the initial funeral establishment at the time of release. However, the cost of the merchandise or services provided shall not exceed the prices for the merchandise or services listed on the general price list of the initial funeral establishment.

Acts 2017, ch. 158, § 1.

62-5-205. Executive director.

62-5-504. Prerequisites to cremation — Refund of fees.

62-5-506. [Reserved.]

Chapter 6
Contractors and Contracting

Part 1
General Provisions

62-6-101. Short title.

This part shall be known and may be cited as the “Contractors Licensing Act of 1994.”

Acts 1976, ch. 822, § 1; T.C.A., § 62-601; Acts 1994, ch. 986, § 17.

Cross-References. Bond requirements, general home repair and improvements contractors, § 7-62-203.

Fire extinguishers and related equipment, title 62, ch. 32, part 2.

Fire protection sprinkler system contractors, title 62, ch. 32, part 1.

Liability of professional societies, title 62, ch. 50, part 1.

State examining boards, general provisions, title 4, ch. 19.

Unlicensed contractors, limit on building permits, § 7-62-202.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Independent Contractor § 2; 17 Tenn. Juris., Licenses, § 10.

Law Reviews.

Contracts and Sales Law in Tennessee: A Survey and Commentary, II. Contracts (John A. Sebert, Jr.), 45 Tenn. L. Rev. 353.

Attorney General Opinions. Jurisdiction over licensure of contractors on federal property, OAG 92-39, 1992 Tenn. AG LEXIS 41 (5/6/92).

Monetary limitations in Tennessee Contractor's Licensing Act, OAG 93-12, 1993 Tenn. AG LEXIS 12 (2/11/93).

Applicability of Contractor's Licensing Act to landscaping work, OAG 95-075, 1995 Tenn. AG LEXIS 88 (7/10/95).

Proposed Electricians' Licensing Act of 1998 does not require union membership, OAG 98-050, 1998 Tenn. AG LEXIS 50 (2/23/98).

Housing authority as municipal agency exempt from contractor licensing requirement, OAG 99-013, 1999 Tenn. AG LEXIS 1 (1/25/99).

Constitutionality of exempting certain counties from contractor licensing statutes, OAG 99-112, 1999 Tenn. AG LEXIS 112 (5/13/99).

Applicability of statutes pertaining to public purchasing and public contracting, and governing general contractors, to housing authorities established by municipalities or counties pursuant to T.C.A. §§ 13-20-101 et seq., OAG 05-170, 2005 Tenn. AG LEXIS 172 (11/21/05).

NOTES TO DECISIONS

1. Owners.

An owner, building on his own premises, and utilizing the service of various persons or entities normally designated as subcontractors, is not a general contractor and is not required to have a license. Santi v. Crabb, 574 S.W.2d 732, 1978 Tenn. LEXIS 683 (Tenn. 1978), superseded by statute as stated in, Helton v. Angelopoulos, 629 S.W.2d 15, 1982 Tenn. LEXIS 387 (Tenn. 1982), superseded by statute as stated in, Chedester v. Phillips, 640 S.W.2d 207, 1982 Tenn. LEXIS 357 (Tenn. 1982), superseded by statute as stated in, Dewberry v. Curtis, 701 S.W.2d 612, 1985 Tenn. LEXIS 576 (Tenn. 1985), superseded by statute as stated in, Winter v. Smith, 914 S.W.2d 527, 1995 Tenn. App. LEXIS 553 (Tenn. Ct. App. 1995).

T.C.A. § 62-6-101 makes an implicit distinction between a general contractor and an owner. Santi v. Crabb, 574 S.W.2d 732, 1978 Tenn. LEXIS 683 (Tenn. 1978), superseded by statute as stated in, Helton v. Angelopoulos, 629 S.W.2d 15, 1982 Tenn. LEXIS 387 (Tenn. 1982), superseded by statute as stated in, Chedester v. Phillips, 640 S.W.2d 207, 1982 Tenn. LEXIS 357 (Tenn. 1982), superseded by statute as stated in, Dewberry v. Curtis, 701 S.W.2d 612, 1985 Tenn. LEXIS 576 (Tenn. 1985), superseded by statute as stated in, Winter v. Smith, 914 S.W.2d 527, 1995 Tenn. App. LEXIS 553 (Tenn. Ct. App. 1995).

The owner and trustee of the property on which an unlicensed subcontractor held a lien, were among the class of persons the licensing statute was designed to protect and they were entitled to raise the failure of the subcontractor to obtain a license as a defense to a suit in quantum meruit. Gene Taylor & Sons Plumbing Co. v. Corondolet Realty Trust, 611 S.W.2d 572, 1981 Tenn. LEXIS 401 (Tenn. 1981).

2. Unlicensed Contractors.

The general rule regarding the effect of noncompliance with licensing statutes on the enforceability of contracts is neither explicitly nor implicitly required by the licensing statute. The rule is a judicial creation designed to further the public policy behind the statute. Gene Taylor & Sons Plumbing Co. v. Corondolet Realty Trust, 611 S.W.2d 572, 1981 Tenn. LEXIS 401 (Tenn. 1981).

A subcontractor not licensed under this chapter could recover on a quantum meruit theory against a licensed general contractor under a subcontract agreement because the policies that bar recovery against a member of the general public do not apply in suits against licensed professionals in the same business. Gene Taylor & Sons Plumbing Co. v. Corondolet Realty Trust, 611 S.W.2d 572, 1981 Tenn. LEXIS 401 (Tenn. 1981).

62-6-102. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Board” means the state board for licensing contractors created pursuant to § 62-6-104;
  2. “Commercial building contractors” are those contractors authorized to bid on and contract for every phase of the construction, direction, alteration, repair or demolition of any building or structure for use and occupancy by the general public;
  3. “Contracting” means any person or entity that performs or causes to be performed any of the activities defined in subdivision (4)(A) or (7);
      1. “Contractor” means any person or entity that undertakes to, attempts to or submits a price or bid or offers to construct, supervise, superintend, oversee, schedule, direct or in any manner assume charge of the construction, alteration, repair, improvement, movement, demolition, putting up, tearing down or furnishing labor to install material or equipment for any building, highway, road, railroad, sewer, grading, excavation, pipeline, public utility structure, project development, housing, housing development, improvement or any other construction undertaking for which the total cost is twenty-five thousand dollars ($25,000) or more; provided, however, with respect to a licensed masonry contractor, such term means and includes the masonry portion of the construction project, the total cost of which exceeds one hundred thousand dollars ($100,000), materials and labor;
      2. “Contractor” includes, but is not limited to, a prime contractor, electrical contractor, electrical subcontractor, mechanical contractor, mechanical subcontractor, plumbing contractor and plumbing subcontractor, masonry contractor, and roofing subcontractor where the total cost of the roofing portion of the construction project is twenty-five thousand dollars ($25,000) or more;
      3. If the cost of a project exceeds twenty-five thousand dollars ($25,000), “contractor” also includes a construction manager of any kind, including, but not limited to, a residential construction manager, construction consultant, architect or engineer who conducts or provides any activity or service described in this subdivision (4) other than normal architectural and engineering services;
    1. As used in subdivision (4)(A)(iii), “normal architectural and engineering services” means:
      1. The preparation of bids, proposals, plans, specifications or other contract documents or the evaluation of contractors, subcontractors or suppliers;
      2. The approval of shop drawings, submittals, substitutions, pay requests or other certifications required by contract documents;
      3. Conducting representative reviews for progress and quality of construction on behalf of the owner;
      4. Interpretations and clarifications of contract documents;
      5. Preparation and approval of changes in construction; and
      6. Preparation of as-built drawings and operation and maintenance manuals;
    2. “Contractor” does not include an engineer licensed in accordance with chapter 2 of this title who is:
      1. Managing and supervising the removal, remediation or clean up of pollutants or wastes from the environment;
      2. Serving as a corrective action contractor, as defined by the rules and regulations of the department of environment and conservation;
      3. Conducting subsurface investigation or testing, or both, by drilling or boring to determine subsurface conditions;
      4. Conducting geophysical or chemical testing of soil, rock, ground water or residues; or
      5. Installing of monitoring detection wells or piezometers for evaluating soil or ground water characteristics;
    3. “Contractor” does not include:
      1. Any undertaking, as described in former subdivision (3)(D)(i) [repealed] for the department of transportation; or
      2. Subcontractors other than electrical subcontractors, licensed masonry contractors, and roofing subcontractors where the total cost of the roofing portion of the construction project is twenty-five thousand dollars ($25,000) or more, mechanical subcontractors and plumbing subcontractors defined as a contractor pursuant to subdivision (4)(A);
    4. No contractor shall be authorized to perform contracting work as a licensed masonry contractor unless the contractor is licensed as a masonry contractor in accordance with this part;
  4. “Licensed masonry contractor” means a contractor who builds structures from individual units of brick, stone, or concrete and glass block laid in and bound together by mortar, where the total cost of the masonry portion of the construction project exceeds one hundred thousand dollars ($100,000), materials and labor, and who is required to obtain a license as a licensed masonry contractor by the board;
  5. “Limited licensed electrician” means any person or entity that performs any electrical work that has a total cost of less than twenty-five thousand dollars ($25,000) and that is required to be registered under § 68-102-150;
  6. “Prime contractor” is one who contracts directly with the owner;
  7. “Residential contractor” means one whose services are limited to construction, remodelling, repair or improvement of one (1), two (2), three (3) or four (4) family unit residences not exceeding three (3) stories in height and accessory use structures in connection with the residences; and
  8. “Roofing work” means the act of removing, installing, repairing or otherwise maintaining any covering to any at- or above-grade structure for the purpose of providing weather proof protection or ornamental enhancement to such structure.

Acts 1976, ch. 822, § 2; 1977, ch. 101, § 1; 1977, ch. 406, § 1; 1980, ch. 652, § 3; 1981, ch. 399, § 1; T.C.A., § 62-602; Acts 1982, ch. 737, § 1; 1985, ch. 245, § 1; 1988, ch. 589, § 1; 1989, ch. 336, § 1; 1991, ch. 173, §§ 1-3; 1991, ch. 217, § 1; 1992, ch. 1020, §§ 1-18; 1993, ch. 147, § 1; 1994, ch. 986, § 1; 1998, ch. 645, § 1; 1998, ch. 764, § 1; 1999, ch. 238, §§ 1, 2; 1999, ch. 245, § 1; 2000, ch. 625, § 1; 2002, ch. 772, § 1; 2003, ch. 409, §§ 1, 2; 2006, ch. 577, § 1; 2009, ch. 482, § 2; 2010, ch. 950, §§ 1-5; 2013, ch. 355, §§ 1-3.

Compiler's Notes. Acts 1999, ch. 238, § 10, provided that the state fire marshal is hereby directed to notify by mail and by other means deemed to be reasonable all persons who are registered pursuant to § 68-102-150 on July 1, 1999. Such notification shall include the requirements of Acts 1999, ch. 238 pertaining to limited licensed electricians and the means for obtaining a license as a limited licensed electrician. Such notification shall also include a telephone number that persons needing additional information can call. Acts 1999, ch. 238 is codified in this section and §§ 62-6-103, 62-6-111, 62-6-120, 62-6-130 and 62-6-131.

For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Acts 2006, ch. 577, § 1 provided: “It is the intent of the general assembly that any contractor licensed under Chapter 409 of the Public Acts of 2003 to construct residences or dwellings in such person's county of residence shall continue to be licensed for such purposes as described in Chapter 409 of the Public Acts of 2003 unless such license is revoked, suspended, retired or not renewed for good cause. Any provision of Tennessee Code Annotated, Title 62, Chapter 6, relative to renewal of contractors' licenses shall also be applicable to licenses granted pursuant to Chapter 409 of the Public Acts of 2003.” Acts 2003, ch. 409, § 2 rewrote § 62-6-102(3)(D)(i).

Former subdivision (3)(D)(i), referred to in this section, was repealed by Acts 2003, ch. 409, § 3, effective January 1, 2006.

Acts 2010, ch. 950, § 7 provided that the state board for licensing contractors shall charge a licensing fee in an amount sufficient to cover all costs associated with issuing a license to persons performing contracting services in this state as a licensed masonry contractor, as this term is defined in § 62-6-102.

Textbooks. Tennessee Jurisprudence, 17 Tenn. Juris., Licenses, § 10.

Law Reviews.

The Exclusiveness of an Employee's Workers' Compensation Remedy Against His Employer (Joseph H. King, Jr.), 55 Tenn. L. Rev. 405 (1988).

Attorney General Opinions. Constitutionality of exempting certain counties from contractor licensing statutes, OAG 99-112, 1999 Tenn. AG LEXIS 112 (5/13/99).

NOTES TO DECISIONS

1. Unlicensed Contractors.

Those who have contracts to perform portions of larger projects which portions do not exceed $50,000.00 (now $25,000.00) are not required by T.C.A. § 62-6-102 to have general contractor's license even when the total cost of construction of all of those who work on the project exceeds $50,000.00 (now $25,000.00). Dewberry v. Curtis, 701 S.W.2d 612, 1985 Tenn. LEXIS 576 (Tenn. 1985).

In an action arising from a construction project, where defendant counterclaimant had contracted directly with the owner, the nature of the work fell within the statutory definition of “contracting,” and the total cost of the completed work exceeded $25,000, defendant should have obtained a contractor's license, and his recovery from the owner was limited to the actual documented expenses for the work that he could establish by clear and convincing proof. Winter v. Smith, 914 S.W.2d 527, 1995 Tenn. App. LEXIS 553 (Tenn. Ct. App. 1995).

Trial court did not err when it held that contractor, who had not maintained a valid license throughout the entire contract period, was deemed unlicensed and in violation of T.C.A. § 62-6-103(b), and was therefore limited to recovery of the documented expenses proven by clear and convincing evidence. Kyle v. Williams, 98 S.W.3d 661, 2003 Tenn. LEXIS 164 (Tenn. 2003).

Language of the licensing statutes, particularly T.C.A. § 62-6-102(3)(A) and (6) [now (4)(A) and (7)], is crystal-clear and requires no interpretation: “contracting” encompasses all phases and aspects of construction, from contract formation through the contract's completion; any person or entity that engages in any of the activities classified as “contracting” must submit evidence of qualifications and be licensed, according to T.C.A. § 62-6-103(a). If a person engages in any of these activities without possessing a valid license, then simple logic dictates that the person is an unlicensed contractor for purposes of T.C.A. § 62-6-103(b) and is limited in recovery to those documented expenses proven by clear and convincing evidence. Kyle v. Williams, 98 S.W.3d 661, 2003 Tenn. LEXIS 164 (Tenn. 2003).

In bankruptcy case where judgment creditors attempted to obtain ruling that debt owed them by debtor construction contractor was excepted from discharge due to debtor's misrepresentation regarding whether he was licensed, insufficient evidence supported allegation that debtor made that claim, but even so, a license was not mandated by Tennessee law for the work because it was for less than $25,000, so the misrepresentation would not have been material to the contract. Sanders v. Wheeler (In re Wheeler), — B.R. —, 2016 Bankr. LEXIS 3018 (Bankr. W.D. Tenn. June 9, 2016).

62-6-103. License requirement — Recovery of expenses by unlicensed contractor.

    1. Any person, firm or corporation engaged in contracting in this state shall be required to submit evidence of qualification to engage in contracting, and shall be licensed as provided in this part. It is unlawful for any person, firm, or corporation to engage in or offer to engage in contracting for any project in this state, unless, at the time of such engagement or offer to engage, the person, firm, or corporation has been duly licensed with a monetary limitation sufficient to allow the person, firm, or corporation to engage in or offer to engage in such contracting project under this chapter. The board for licensing contractors shall have the authority to grant or allow an exception, in an amount not to exceed ten percent (10%), to the monetary limitation of such license provided in this subdivision (a)(1). Any person, firm, or corporation engaged in contracting, including a person, firm, or corporation that engages in the construction of residences or dwellings constructed on private property for the purpose of resale, lease, rent, or any other similar purpose, shall be required to submit evidence of qualification to engage in contracting and shall be licensed. It is unlawful for any person, firm, or corporation to engage in, or offer to engage in, contracting as described in this subdivision (a)(1) unless the person, firm, or corporation has been duly licensed under this part.
      1. Notwithstanding subdivision (a)(1), any person, firm or church that owns property and constructs on the property single residences, farm buildings or other buildings for individual use, and not for resale, lease, rent or other similar purpose, is exempt from the requirements of this part.
      2. Except in counties with a population of not less than seven hundred seventy-seven thousand one hundred thirteen (777,113), according to the 1980 federal census or any subsequent federal census, a person or firm specified in subdivision (a)(2)(A) shall not make more than one (1) application for a permit to construct a single residence or shall not construct more than one (1) single residence within a period of two (2) years. There shall be a rebuttable presumption that the person or firm intends to construct for the purpose of resale, lease, rent or any other similar purpose if more than one (1) application is made for a permit to construct a single residence or if more than one (1) single residence is constructed within a period of two (2) years. This subdivision (a)(2)(B) shall not be construed to alter the definition of “contractor” as defined in § 62-6-102.
    2. Notwithstanding subdivisions (a)(1) and (2), the license requirements and restrictions contained in this subsection (a) shall not apply to single residences constructed by:
      1. Nonprofit charitable or religious corporations, associations and organizations that are exempt from federal income taxation under § 501(c)(3) of the Internal Revenue Code of 1986, (26 U.S.C. § 501(c)(3)); or
      2. Students enrolled in educational institutions who construct the residences under the direct supervision of faculty as part of the curriculum of the institution.
    3. The exemption provisions of subdivisions (a)(2) and (3) concerning licensure shall apply to limited licensed electricians.
    4. Notwithstanding subdivision (a)(1), any single residence homeowner is exempt from the limited licensed electrician requirements of this part for purposes of performing electrical work on the homeowner's own residence.
  1. Any contractor required to be licensed under this part who is in violation of this part or the rules and regulations promulgated by the board shall not be permitted to recover any damages in any court other than actual documented expenses that can be shown by clear and convincing proof.
  2. Notwithstanding any law to the contrary, no lien otherwise authorized pursuant to title 66, chapter 11 shall be available to any person, firm, or corporation engaged in construction in violation of this chapter.
  3. No contractor shall be authorized to perform roofing work on a construction project where the roofing portion of the construction project is twenty-five thousand dollars ($25,000) or more unless the contractor is licensed; provided:
    1. Any person who holds a license issued by the department as either a manufactured home installer or a manufactured home retailer, pursuant to title 68, chapter 126, shall not be required to be a licensed contractor in order to perform roofing work on a manufactured home as defined in § 68-126-202; provided, that such work is related to the construction of a manufactured home or performed in connection with a manufacturer's warranty covering a manufactured home, or the repair of such home; and
    2. Any person who holds a license issued by the department as to the manufacture or installation of modular building units, pursuant to title 68, chapter 126, shall not be required to be a licensed contractor in order to perform roofing work on a modular building unit as defined in § 68-126-303; provided, that such work is related to the construction or installation of a modular building unit, or performed in connection with a manufacturer's warranty covering a modular building unit, or the repair of such unit.

Acts 1976, ch. 822, § 3; 1977, ch. 9, § 1; 1979, ch. 59, § 7; 1980, ch. 652, § 5; T.C.A., § 62-603; Acts 1986, ch. 913, § 1; 1989, ch. 487, § 1; 1990, ch. 763, §§ 1, 2; 1993, ch. 192, § 1; 1994, ch. 986, § 1; 1999, ch. 238, § 8; 2000, ch. 876, § 1; 2009, ch. 482, § 1; 2013, ch. 355, § 4; 2013, ch. 469, §§ 1, 2.

Compiler's Notes. Acts 1999, ch. 238, § 10, provided that the state fire marshal is hereby directed to notify by mail and by other means deemed to be reasonable all persons who are registered pursuant to § 68-102-150 on July 1, 1999. Such notification shall include the requirements of Acts 1999, ch. 238, pertaining to limited licensed electricians and the means for obtaining a license as a limited licensed electrician. Such notification shall also include a telephone number which persons needing additional information can call. Acts 1999, ch. 238, is codified in this section and §§ 62-6-102, 62-6-111, 62-6-120, 62-6-130 and 62-6-131.

Acts 2013, ch. 469, § 6 provided that the act, which amended this section, shall apply to contracts entered into or renewed on or after July 1, 2013, and to liens filed for construction performed on or after July 1, 2013.

For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Cross-References. Fire protection sprinkler system contractors, title 62, ch. 32, part 1.

Penalty for violations, § 62-6-120.

Textbooks. Tennessee Jurisprudence, 17 Tenn. Juris., Licenses, § 10; 26 Tenn. Juris., Working Contracts, § 26.

Law Reviews.

Contracts and Sales Law in Tennessee: A Survey and Commentary, II. Contracts (John A. Sebert, Jr.), 45 Tenn. L. Rev. 353.

Attorney General Opinions. Requirement of separate licensure for different construction classifications, OAG 98-020, 1998 Tenn. AG LEXIS 20 (1/15/98).

NOTES TO DECISIONS

1. Unlicensed Contractors.

Where duty devolved on the builder whether or not his foreman was a licensed contractor, action in tort would lie against the builder regardless of the foreman's being unlicensed. Wilson v. Page, 45 Tenn. App. 475, 325 S.W.2d 294, 1958 Tenn. App. LEXIS 132 (Tenn. Ct. App. 1958).

Where an unlicensed contractor had made a proper application for license on file, with the necessary fee paid in full, before he entered into the subject contract, and it was only upon being assured by the principal executive officer of the licensing authority that a license was not required for his operations that he did not promptly complete all of the necessary steps for obtaining a license, the unlicensed contractor was permitted to recover the actual expenses for labor and materials which he expended on the residence. Coleman v. Anderson, 620 S.W.2d 77, 1981 Tenn. LEXIS 472 (Tenn. 1981).

A contractor who fails to meet technical requirements of the licensing statutes may nevertheless be allowed to recover on a quantum meruit theory. Chedester v. Phillips, 640 S.W.2d 207, 1982 Tenn. LEXIS 357 (Tenn. 1982).

In an action arising from a construction project, where defendant counterclaimant had contracted directly with the owner, the nature of the work fell within the statutory definition of “contracting,” and the total cost of the completed work exceeded $25,000, defendant should have obtained a contractor's license, and his recovery from the owner was limited to the actual documented expenses for the work that he could establish by clear and convincing proof. Winter v. Smith, 914 S.W.2d 527, 1995 Tenn. App. LEXIS 553 (Tenn. Ct. App. 1995).

An unlicensed contractor did not have a claim under T.C.A. § 62-6-103 and was not entitled to indemnity from the owner for material payments or legal expenses where the owner has already paid more than the contractor's actual documented expenses. Winter v. Smith, 914 S.W.2d 527, 1995 Tenn. App. LEXIS 553 (Tenn. Ct. App. 1995).

An unlicensed contractor cannot recover under its contract with the owner or on quantum meruit but, under T.C.A. § 62-6-103, is limited to actual documented expenses upon a showing of clear and convincing proof; where the contractor fails to establish actual documented expenses, and the evidence it does present is not clear and convincing, its action will fail. Roberts v. Houston, 970 S.W.2d 488, 1997 Tenn. App. LEXIS 871 (Tenn. Ct. App. 1997).

Trial court did not err when it held that contractor, who had not maintained a valid license throughout the entire contract period, was deemed unlicensed and in violation of T.C.A. § 62-6-103(b), and was therefore limited to recovery of the documented expenses proven by clear and convincing evidence. Kyle v. Williams, 98 S.W.3d 661, 2003 Tenn. LEXIS 164 (Tenn. 2003).

Language of the licensing statutes, particularly T.C.A. § 62-6-102(3)(A) and (6) [now (4)(A) and (7)], is crystal-clear and requires no interpretation: “contracting” encompasses all phases and aspects of construction, from contract formation through the contract's completion; any person or entity that engages in any of the activities classified as “contracting” must submit evidence of qualifications and be licensed, according to T.C.A. § 62-6-103(a). If a person engages in any of these activities without possessing a valid license, then simple logic dictates that the person is an unlicensed contractor for purposes of T.C.A. § 62-6-103(b) and is limited in recovery to those documented expenses proven by clear and convincing evidence. Kyle v. Williams, 98 S.W.3d 661, 2003 Tenn. LEXIS 164 (Tenn. 2003).

Allowing unlicensed contractors to recover only documented expenses proven by clear and convincing evidence is an expansion of the remedies previously available to unlicensed contractors in Tennessee. Kyle v. Williams, 98 S.W.3d 661, 2003 Tenn. LEXIS 164 (Tenn. 2003).

Trial court properly revoked defendant construction company's license based upon the construction company's unlawfully obtaining the permit for another unlicensed contractor, which was required by T.C.A. 62-6-103(a)(1) to have a license, allowing the unlicensed contractor to do work it otherwise would not be authorized to do, which amounted to a civil conspiracy. Danny L. Davis Contrs., Inc. v. Hobbs, 157 S.W.3d 414, 2004 Tenn. App. LEXIS 492 (Tenn. Ct. App. 2004), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 165 (Tenn. Feb. 28, 2005).

2. —Unclean Hands.

T.C.A. § 62-6-103 precludes the dismissal of plaintiffs' suit on grounds of “unclean hands” or illegal conduct. Brandon v. Wright, 838 S.W.2d 532, 1992 Tenn. App. LEXIS 365 (Tenn. Ct. App. 1992).

3. Contractor Not Unlicensed.

Contractor did not violate the Tennessee Contractor's Licensing Act (TCLA) by entering into a site contract and a building contract for a project which, together, exceeded the monetary limit of the contractor's license because (1) the contractor entered into the contracts in an effort to comply with the TCLA, and (2) the contractor sought to accommodate a sophisticated owner who was aware of the licensing limit by entering into the contracts. LLC v. I & L Invs., LLC, 514 S.W.3d 153, 2016 Tenn. App. LEXIS 637 (Tenn. Ct. App. Aug. 30, 2016), appeal denied, Beacon4, LLC v. I & L Invs., LLC, — S.W.3d —, 2016 Tenn. LEXIS 950 (Tenn. Dec. 15, 2016).

When the contractor signed the contract and performed the work for the homeowners, he was not subject to the limitation of actual documented expenses as he was not unlicensed, and therefore he was not limited retroactively by the provisions of the amended statute; the court does not condone contractors exceeding their monetary limits, but given the law in effect at the time of the contract in this case, the contractor was not limited to his actual documented expenses. Pickens v. Underwood, — S.W.3d —, 2018 Tenn. App. LEXIS 322 (Tenn. Ct. App. June 12, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 556 (Tenn. Sept. 14, 2018).

5. Amendment.

Amendment was substantive in nature, and the effect was to expand the limitation of actual documented expenses to any contractor required to be licensed under the statute and rules, whereas before this limitation applied only to unlicensed contractors. Pickens v. Underwood, — S.W.3d —, 2018 Tenn. App. LEXIS 322 (Tenn. Ct. App. June 12, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 556 (Tenn. Sept. 14, 2018).

62-6-104. Board.

    1. There is created a state board for licensing contractors, called the “board” in this part, to be appointed by the governor. The board shall be composed of nine (9) members, all of whom shall be residents of this state and at least three (3) of whom shall be actively engaged as residential contractors and shall compose the residential review board to consider and handle all informal conferences pertaining to residential construction, at least two (2) of whom shall be actively engaged as commercial building contractors, at least one (1) of whom shall be actively engaged as a mechanical contractor, at least one (1) of whom shall be actively engaged as an electrical contractor, at least one (1) of whom shall be actively engaged as a highway, railroad or airport contractor, and at least one (1) of whom shall be a person who is not engaged as a contractor in any county of this state and has no commercial or professional association with the residential contracting profession or industry, either directly or indirectly. All board members who are required to be in the business of contracting shall have been actively engaged in the business for a period of no less than ten (10) years immediately preceding their appointment and shall be licensed in the classification in which the member is serving upon the board. There shall be no more than one (1) board member in any specific classification provided in this subdivision (a)(1) residing within any one (1) grand division of this state and no more than three (3) board members residing in any one (1) grand division. In making appointments to the board, the governor shall strive to ensure that at least one (1) person serving on the board is sixty (60) years of age or older and that at least one (1) person serving on the board is a member of a racial minority.
    2. The governor shall appoint the residential contractor members from lists of qualified persons submitted by interested home builder groups including, but not limited to, the Home Builders Association of Tennessee, Inc. Appointments made pursuant to this subdivision (a)(2) shall be made by the governor following the expiration of the respective terms of the members serving on the board as of July 1, 2014. The governor shall consult with interested home builder groups to determine qualified persons to fill positions on the board.
  1. Any member of the board who fails to attend at least two thirds (2/3) of the regularly scheduled meetings of the board shall automatically be removed from the board and a successor member shall be appointed by the governor in the way and manner provided by this part.
  2. All subsequent appointments of successor members shall be made by the governor at the expiration of the respective terms of the members in the way and manner provided by this part.
    1. Notwithstanding § 3-6-304 or any other law to the contrary, and in addition to all other requirements for membership on the board:
      1. Any person registered as a lobbyist pursuant to the registration requirements of title 3, chapter 6 who is subsequently appointed or otherwise named as a member of the board shall terminate all employment and business association as a lobbyist with any entity whose business endeavors or professional activities are regulated by the board, prior to serving as a member of the board. This subdivision (d)(1)(A) shall apply to all persons appointed or otherwise named to the board after July 1, 2010;
      2. No person who is a member of the board shall be permitted to register or otherwise serve as a lobbyist pursuant to title 3, chapter 6 for any entity whose business endeavors or professional activities are regulated by the board during such person's period of service as a member of the board. This subdivision (d)(1)(B) shall apply to all persons appointed or otherwise named to the board after July 1, 2010, and to all persons serving on the board on such date who are not registered as lobbyists; and
      3. No person who serves as a member of the board shall be employed as a lobbyist by any entity whose business endeavors or professional activities are regulated by the board for one (1) year following the date such person's service on the board ends. This subdivision (d)(1)(C) shall apply to persons serving on the board as of July 1, 2010, and to persons appointed to the board subsequent to such date.
    2. A person who violates this subsection (d) shall be subject to the penalties prescribed in title 3, chapter 6.
    3. The bureau of ethics and campaign finance is authorized to promulgate rules and regulations to effectuate the purposes of this subsection (d). All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, and in accordance with the procedure for initiating and proposing rules by the ethics commission to the bureau of ethics and campaign finance as prescribed in § 4-55-103.

Acts 1976, ch. 822, § 4; 1979, ch. 59, § 2; T.C.A., § 62-604; Acts 1988, ch. 1013, § 30; 1994, ch. 986, § 1; 1998, ch. 944, § 1; 2008, ch. 861, § 1; 2010, ch. 1086, §§ 3, 4; 2014, ch. 604, § 3.

Compiler's Notes. The state board for licensing contractors, created by this section, terminates June 30, 2020. See §§ 4-29-112, 4-29-241.

The regulatory board created by this section is attached to the division of regulatory boards in the department of commerce and insurance for purposes of administration, see §§ 4-3-1304, 56-1-30156-1-306.

Acts 2008, ch. 861, § 2 provided that it is the intent of the general assembly that the current member of the state board for licensing contractors who is not engaged as a contractor shall continue to serve on the board until the expiration of the member's current term of service.

Acts 2010, ch. 1086, § 5 provided that the provision of this act which prohibits persons who are not engaged as contractors in any county of this state from serving on the board due to such person having a direct or indirect association with the residential contracting profession shall apply to all member appointments made to the board after July 1, 2010.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

Attorney General Opinions. Proposed Electricians' Licensing Act of 1998 does not require union membership, OAG 98-050, 1998 Tenn. AG LEXIS 50 (2/23/98).

62-6-105. Qualification of members — Terms — Vacancies — Removal.

    1. Each member of the board shall be at least twenty-five (25) years of age and of good moral character.
      1. Each member shall be of recognized standing in the member's branch of the contracting business.
      2. Subdivision (a)(2)(A) does not apply to the member who is not engaged in the business of contracting.
  1. The terms of members shall be for a seven-year period and staggered so that the term of at least one (1) member shall expire each December 31.
  2. In event of death, resignation or failure of a member to serve the full term, a successor shall be appointed to the unexpired term. Each member shall hold over after the expiration of the member's term until the successor has been duly appointed and qualified. If vacancies occur in the board for any cause, the vacancies shall be filled by appointment of the governor.
  3. The governor may remove any member of the board for official misconduct, incompetency or willful neglect of duty.

Acts 1976, ch. 822, § 5; 1979, ch. 59, § 3; T.C.A., § 62-605.

Cross-References. Valid license required, § 62-6-106.

62-6-106. Certificate of appointment — License requirement — Legal assistance.

  1. Each member of the board shall receive a certificate of appointment from the governor and, before entering upon the discharge of the duties of office, shall file with the secretary of state the constitutional oath of office.
    1. No one shall be eligible for appointment on the board who does not at the time hold an unexpired license to operate as a contractor under this part.
    2. Subdivision (b)(1) does not apply to the appointment of a member who by law is not permitted to be engaged in the business of contracting in any county of this state.
  2. The board, or any committee of the board, shall be entitled to the services of the attorney general and reporter or the legal department of Tennessee in connection with the affairs of the board.

Acts 1976, ch. 822, § 6; 1979, ch. 59, § 4; T.C.A., § 62-606.

62-6-107. Executive director — Other staffing.

  1. The board shall appoint an executive director to provide all administrative functions for the board. The compensation of the executive director shall be fixed by the board and the director shall serve at the pleasure of the board.
  2. The board shall retain and establish the qualifications and compensation for investigators, inspectors, and other staff requiring professional qualifications. All members of the board's staff requiring professional qualifications shall serve at the pleasure of the board.
  3. Any expenditure by the board under this section shall be subject to approval by the commissioner of finance and administration, pursuant to the board's annual budget submitted to the commissioner of commerce and insurance and approved by the commissioner of finance and administration.

Acts 1945, ch. 135, § 5; mod. C. Supp. 1950, § 7182.28 (Williams, § 7182.29); Acts 1972, ch. 633, § 2; 1978, ch. 906, § 20; T.C.A. (orig. ed.), § 62-607; Acts 1994, ch. 986, § 2; 2017, ch. 454, § 3.

62-6-108. Bylaws and rules — Seal.

  1. The board has the power to make bylaws, rules and regulations not inconsistent with the laws of this state that it deems best, subject to the final approval of the commissioner of commerce and insurance.
  2. The board shall adopt a seal for its own use. The seal shall have on it the words “Board for Licensing Contractors, State of Tennessee.” The executive director shall have care, charge and custody of the seal.

Acts 1976, ch. 822, § 9; T.C.A., § 62-609.

NOTES TO DECISIONS

1. Rules and Regulations.

Legislature was presumed to have known over the period that this chapter was in effect that regulations which state board had promulgated were in effect and court was required to respect such regulations. Tasco Developing & Bldg. Corp. v. Long, 212 Tenn. 96, 368 S.W.2d 65, 1963 Tenn. LEXIS 401 (1963).

State board had power to adopt rules and regulations necessary and reasonable in qualifying general contractors for license so long as it did not act arbitrarily and capriciously. Tasco Developing & Bldg. Corp. v. Long, 212 Tenn. 96, 368 S.W.2d 65, 1963 Tenn. LEXIS 401 (1963).

The making of reasonable rules and regulations is a delegated legislative power which the state board may use so long as the regulations are designed to carry out the duties imposed upon it in effectuating the purposes of the statute. Tasco Developing & Bldg. Corp. v. Long, 212 Tenn. 96, 368 S.W.2d 65, 1963 Tenn. LEXIS 401 (1963).

62-6-109. Board meetings — Officers.

  1. The board shall meet at least six (6) times each year for the purpose of transacting business.
  2. At the first meeting of each calendar year the board shall elect officers, including a chair, vice chair and secretary.
  3. Special meetings of the board shall be held at times that the board may provide.
  4. Five (5) members shall constitute a quorum at a board meeting.
  5. Due notice of each meeting and the time and place of the meeting shall be given each member in the manner that the bylaws may provide.
  6. The board shall meet in each grand division at least one (1) time each year.
  7. The board may specify by rules and regulations specific board actions that may be taken by the executive director without a meeting of the board. The actions shall be limited to increases in the monetary limits and timely consideration of licensure applications or renewal applications for which there are no evident impediments to licensure and for which loss of substantial business is imminent if licensure is delayed. Notice of emergency actions shall be posted on the board's website and shall be scheduled as the first agenda item at the next scheduled meeting of the board in order that the board may review and, in its discretion, modify the actions of the executive director.

Acts 1976, ch. 822, § 10; 1979, ch. 59, § 8; T.C.A., § 62-610; Acts 1984, ch. 676, § 8; 1989, ch. 487, § 2; 1994, ch. 986, § 3; 2001, ch. 222, §§ 1, 2; 2007, ch. 191, § 1.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

Per diem and travel expenses of members, § 56-1-307.

62-6-110. Register of applicants — Roster of licensees.

  1. The executive director shall keep a register of all applicants for license, showing for each applicant the date of application, name, qualifications, place of business, place of residence and whether license was granted or refused.
  2. The books and register of the board shall be prima facie evidence of all matters recorded in the books and register.
  3. A roster showing the name, business address, business telephone number and qualifying agent of each licensed contractor shall be prepared by the executive director of the board. The roster may be printed by the board, the expense of which shall be part of the expenses of the board as provided in § 56-1-302.

Acts 1976, ch. 822, § 11; 1980, ch. 652, § 1; T.C.A., § 62-611; Acts 1989, ch. 487, § 3; 1994, ch. 986, § 4; 2001, ch. 261, § 2.

62-6-111. License and examination — Transfer of license.

      1. Anyone desiring to be licensed as a contractor for this state shall make written application to the board on forms prescribed by the board and shall furnish the board with an affidavit stating that the applicant is not currently performing any construction work and has not offered to engage in any construction work where the amount of the applicant's contract exceeds twenty-five thousand dollars ($25,000) or, in the case of a limited licensed electrician, where the amount of the applicant's contract is less than twenty-five thousand dollars ($25,000). The application shall be accompanied by an application fee as set by the board. The application shall also be accompanied by evidence of the applicant's current workers' compensation insurance coverage. Failure to provide evidence of insurance coverage shall make the applicant ineligible for licensure by the board until evidence of insurance coverage is provided. Any application for initial licensure or for renewal of licensure also shall be accompanied by an affidavit affirming that the applicant maintains general liability insurance and workers' compensation insurance and specifying the amount of the insurance as well as any other information the board may require.
        1. Anyone desiring to be licensed as a contractor for this state who resides in a state that does not practice reciprocity with licensees of the Tennessee board for licensing contractors shall make written application on forms prescribed by the board and shall attach an affidavit to the application stating that the applicant is not currently performing any construction work and has not offered to engage in any construction work in this state in which the amount of the applicant's contract exceeds two thousand five hundred dollars ($2,500) or, in the case of a limited licensed electrician, in which the amount of the applicant's contract exceeds twenty-five thousand dollars ($25,000). The application shall be accompanied by an application fee as set by the board. The application shall also be accompanied by evidence of the applicant's current workers' compensation insurance coverage. Failure to provide the evidence of insurance coverage shall make the applicant ineligible for licensure by the board until the evidence of insurance coverage is provided. Any application for initial licensure or for renewal of licensure also shall be accompanied by an affidavit affirming that the applicant maintains general liability insurance and workers' compensation insurance and specifying the amount of the insurance as well as any other information the board may require.
        2. Notwithstanding any reciprocity for contractors which may otherwise exist between states, any person desiring to perform contracting services in this state as a licensed masonry contractor whether residing in this state or another state shall not be authorized to perform any such services unless the person takes and passes the masonry examination required pursuant to subsection (a)(2).
    1. Anyone desiring to be licensed as a contractor in this state shall take a written examination to determine the applicant's qualifications. This examination may be given orally at the discretion of the board if a written examination is precluded by reason of disability. Each applicant shall pay an examination fee for each written or oral examination. If the results of the examination constitute a passing score, then the applicant shall make a written application to the board in accordance with subdivision (a)(1).
    2. If the results of the examination of any applicant are satisfactory to the board, then it shall issue to the applicant a certificate authorizing the applicant to operate as a contractor in this state. The board shall state the construction classifications in which the applicant is qualified to engage as a contractor and for each classification shall list the monetary limitations on the classification as determined by the board.
    3. Whenever any applicant is advised to appear before the board for an interview and fails to appear at the scheduled time and place without notifying the board at least three (3) days in advance, the applicant shall pay an additional fee as set by the board before being rescheduled for an interview. In the event of failure to appear for an interview on three (3) separate occasions, a new application and fee are required.
    1. The board shall promulgate rules and regulations that establish uniform criteria to govern issuance by the board of the classifications and monetary limitations required by subdivision (a)(3). The board shall have discretionary authority in individual cases to modify the criteria for an applicant if the public safety and welfare clearly require modification and if the board furnishes the applicant with a written statement justifying modification.
    2. The criteria so established by the board shall include, but not be limited to, a letter of reference from a past client, employer of the applicant or codes administration official, as well as a financial statement of the applicant.
    3. If an applicant requests a monetary limitation of greater than three million dollars ($3,000,000), the applicant's financial statement shall be audited and attested to by a licensed public accountant or certified public accountant.
    4. The financial statement of any applicant requesting a monetary limitation of three million dollars ($3,000,000) or less shall be either reviewed or audited by a licensed public accountant or certified public accountant. The board may, in its discretion, require the financial statement of the applicant be audited and attested to by a licensed public accountant or certified public accountant.
  1. The issuance by the board of a certificate of license authorizing the licensee to engage in any major construction classification or classifications of contracting shall not authorize the licensee to engage in twenty-five thousand dollars ($25,000) or more of any other major construction classification or specialty classification under the major construction classification unless the licensee is additionally licensed in the other major construction classification or specialty classification under the major construction classification.
  2. A contractor may bid on a contract requiring work in a classification or classifications other than the one in which the contractor is licensed if and only if the contractor has a commercial building contractor's license or if the contractor's license will permit the contractor to perform at least sixty percent (60%) of the bid amount or price of the work for the project being bid or priced; however, the contractor may not actually perform any work in excess of twenty-five thousand dollars ($25,000) or, in the case of a limited licensed electrician, where the amount of work is less than twenty-five thousand dollars ($25,000) in any classification unless the contractor has a license to perform work in that classification.
    1. Whenever a partnership licensed as a contractor dissolves, no former member of the partnership shall further undertake contracting before filing a new application with the board and receiving a license.
    2. In the case of a merger, purchase by nonstockholders of the majority interest or reorganization pursuant to a bankruptcy proceeding of any licensee engaged in contracting, the licensee shall make written application to the board and obtain a new license before undertaking contracting.
    1. Upon application of any individual who was formerly a partner in a dissolved partnership, the board shall transfer to the individual the license formerly held by the partnership upon a showing that:
      1. The individual was a partner in a dissolved partnership;
      2. The current financial statement of the individual meets the requirements promulgated by the board. If the financial statement fails to meet the requirements, the board may in its sole discretion modify the monetary limitation prior to transfer; and
      3. All liabilities of the partnership were satisfied prior to dissolution or will be satisfied by the individual.
    2. The board  shall collect a fee as set by the board for transferring the license.
    1. The board shall transfer, upon application and payment of a fee as set by the board, by any proprietorship or partnership that subsequently incorporates as a Tennessee corporation, the license formerly held by the proprietorship or partnership to the corporation upon a showing that:
      1. The officers or directors or management of the corporation were the owners or managers of the proprietorship or partnership;
      2. A copy of the corporation's charter has been filed with the board;
      3. The partnership or proprietorship is currently in good standing with the board;
      4. The current financial statement of the corporation meets the requirements promulgated by the board. If the financial statement fails to meet the requirements, the board may in its sole discretion modify the monetary limitation prior to transfer; and
      5. All liabilities of the proprietorship or partnership were satisfied prior to incorporation or will be satisfied by the corporation.
    2. The board shall develop an application for the transfer of licenses.
  3. Notwithstanding § 56-1-302(a)(7) to the contrary, all revenues generated from licensing fees, penalties, or interest shall be allocated solely to the board for licensing contractors to be utilized for:
    1. The administration and enforcement of this part; and
    2. The purposes set forth in the Go Build Tennessee Act, compiled in title 4, chapter 41.
    1. Notwithstanding any law to the contrary, the board may issue a license to any person who establishes the person's competency in any classification by successfully passing a proficiency test or examination for measurement of industry expertise in such work that is administered by the board; and the license shall authorize the licensee to engage in contracting in this state or any of its political subdivisions.
    2. The licensee shall be eligible to contract for such work in any county or municipality upon:
      1. Exhibiting evidence of a current certificate of license to the appropriate local officials;
      2. Paying any local licensing fees in effect on May 8, 1992; and
      3. Paying any inspection or permit fees customarily required by any county or municipality for such work. No county or municipality shall require the state licensee or its employees to pass any county or municipal test or examination; nor shall a county or municipality impose any additional requirements upon the state licensee or its employees, nor in any way discriminate against the state licensee or its employees on the basis of the licensee's nonresidency within the county or municipality.
    1. Notwithstanding any law to the contrary, the board may issue a license as a limited licensed electrician to any individual without an examination as required by this part, except as provided in subdivision (j)(3), if the individual makes an application to the board in which the following information is provided:
      1. On September 1, 2000, the applicant was registered in accordance with § 68-102-150; and
      2. Evidence that all fees and taxes relative to the operation of the applicant's electrical work have been paid to the appropriate agencies when the application is filed under this subsection (j); or
      3. A current license or certificate issued by any county or municipality of this state prior to September 1, 2000, that is evidence that the applicant had by examination by an official of the county or municipality demonstrated the qualifications required to perform the electrical contract work within its jurisdiction and was actively engaged in that business on September 1, 2000.
    2. An application for a license under subdivision (j)(1)(A), (j)(1)(B) or (j)(1)(C) shall be filed with the board by July 1, 2001. If a license issued to a limited licensed electrician pursuant to subdivision (j)(1)(A), (j)(1)(B) or (j)(1)(C) is not periodically renewed as provided by this part, then the limited licensed electrician shall be eligible for a license only after the satisfactory completion of the examination required by the board for initial applications.
    3. Any individual who is licensed as a limited licensed electrician under subdivisions (j)(1)(A) and (B) shall be required to have satisfactorily completed the examination of the board to engage in business as a limited licensed electrician in any county or municipality that is within subdivision (j)(1)(C).
    4. Any person who performs electrical work and who is subject to licensure as a limited licensed electrician shall apply to the board for a license. To receive a license, the applicant shall pay a fee as set by the board for the license and shall pass an examination prescribed by the board. The board may administer the examination or may contract for the administration of the examination.
    5. Notwithstanding any provision of this part to the contrary, a license as a limited licensed electrician shall not be required in any municipality or county that issues licenses to persons who perform electrical work in the municipality or county.
    6. Any limited licensed electrician requesting an electrical inspection must first have a license from the board for licensing contractors as required by § 62-6-103.
    7. Any person with knowledge of faulty electrical work performed by a limited licensed electrician must report the electrician to the state board for licensing contractors, which may initiate proceedings against the electrician for the faulty work.
    8. The board for licensing contractors may revoke or suspend the license of a limited licensed electrician for faulty electrical work performed by the licensee.
    9. The Uniform Administrative Procedures Act, compiled in title 4, chapter 5, governs all matters and procedures respecting the hearing and judicial review of any contested case arising under this section.
    10. The state fire marshal and board for licensing contractors shall formulate a system for inspectors to report to the board any problems they may encounter with the workmanship of a limited licensed electrician. The system shall include the use of inspectors who are employed by the board under § 62-6-107(b).
    11. Any person who holds a current, unexpired license as a limited licensed electrician issued by the board shall be deemed to have met the registration requirements of § 68-102-150.
    1. A licensee may request the board to consider revision of the licensee's classification or classifications or monetary limitation or limitations, or both, at any of its regular meetings. The request shall be made by letter, which shall be accompanied by financial, equipment and experience statements relative to the classification request accurate as of no more than twelve (12) months prior to the date of the request. The request must be received in the office of the board by the last day of the month before the month in which it is to be considered.
    2. If an applicant requests a change in monetary limitation to an amount of three million dollars ($3,000,000) or less, the applicant shall submit a financial statement that has been reviewed or audited by a licensed public accountant or certified public accountant. If an applicant requests a change in monetary limitation to an amount greater than three million dollars ($3,000,000), the applicant shall submit a financial statement that has been audited and attested to by a licensed public accountant or certified public accountant.
    3. The board reserves the right to require examination pursuant to a request for change of classification. The board further reserves the right to consider a request for change of classification or limitation at any time, if consideration of the request at the regularly scheduled meeting would cause an undue hardship on the owner and be in the best interest of the public safety and welfare.
    4. Increases within the first year will not be allowed without special permission from the board.
  4. Notwithstanding any other law, rule or regulation to the contrary, to qualify for the Tennessee mechanical plumbing (CMC-A) license examination, a person must have three (3) years' experience as a plumber prior to taking the examination or have an engineering degree in plumbing or in a mechanical field.
  5. The board shall deny any application for licensure as a contractor if the board determines that the name under which the applicant will be trading is identical with the name being used by an existing licensee, or is so nearly similar to the name being used by an existing licensee that it is likely to cause confusion on the part of the public at large. This subsection (m) shall not apply to any applicant who has acquired an exclusive right to use the name as a registered trademark pursuant to 15 U.S.C. § 1051.

Acts 1976, ch. 822, § 12; 1977, ch. 101, § 2; 1977, ch. 406, § 2; 1979, ch. 59, § 5; 1980, ch. 652, §§ 2, 4; 1981, ch. 497, §§ 1, 3, 4; T.C.A., § 62-612; Acts 1984, ch. 888, §§ 1, 2; 1985, ch. 245, § 2; 1986, ch. 657, § 1; 1986, ch. 718, § 1; 1988, ch. 758, §§ 3-6, 8; 1989, ch. 487, §§ 4-9; 1989, ch. 523, §§ 135-139; 1991, ch. 217, § 2; 1992, ch. 909, §§ 1, 2; 1993, ch. 395, § 1; 1994, ch. 986, §§ 5-8; 1999, ch. 238, §§ 4, 5, 7; 2000, ch. 876, §§ 2-11; 2004, ch. 516, §§ 1, 2; 2005, ch. 133, § 1; 2007, ch. 130, § 1; 2007, ch. 219, § 1; 2007, ch. 460, §§ 4, 5; 2008, ch. 904, § 1; 2010, ch. 950, § 6; 2014, ch. 528, § 1; 2015, ch. 500, § 2; 2017, ch. 237, § 1; 2017, ch. 454, § 4.

Compiler's Notes. Acts 1999, ch. 238, § 10, provided that the state fire marshal is hereby directed to notify by mail and by other means deemed to be reasonable all persons who are registered pursuant to § 68-102-150 on July 1, 1999. Such notification shall include the requirements of Acts 1999, ch. 238, pertaining to limited licensed electricians and the means for obtaining a license as a limited licensed electrician. Such notification shall also include a telephone number which persons needing additional information can call. Acts 1999, ch. 238 is codified in this section and §§ 62-6-102, 62-6-103, 62-6-120, 62-6-130 and 62-6-131.

Acts 1999, ch. 238, § 11 provided that the board shall issue limited licensed electrician licenses beginning September 1, 1999. Section 11 of the act further provided that no person subject to the provisions of this part shall be required to have a limited licensed electrician license until January 1, 2000.

Acts 2010, ch. 950, § 7 provided that the state board for licensing contractors shall charge a licensing fee in an amount sufficient to cover all costs associated with issuing a license to persons performing contracting services in this state as a licensed masonry contractor, as this term is defined in § 62-6-102.

Cross-References. Access to and use of financial statements, § 62-6-124.

Exemption of licensed contractors from licensing provisions for building, and alteration and maintenance contractors, § 7-62-104.

Fire protection sprinkler system contractors, title 62, ch. 32, part 1.

Attorney General Opinions. Requirement of separate licensure for different construction classifications, OAG 98-020, 1998 Tenn. AG LEXIS 20 (1/15/98).

A county mechanical code provision which required contractors to identify ownership on firm vehicles did not violate T.C.A. § 62-6-111(i)(2) as it did not impose an additional licensing requirement upon licensees, OAG 01-063, 2001 Tenn. AG LEXIS 55 (4/20/01).

Amendment 3 (known as the “local hire amendment”) to the Charter of the Metropolitan Government of Nashville and Davidson County conflicts with T.C.A. § 626-111(i)(2)(c). Amendment 3 is therefore invalid to the extent that it contravenes the general law of the State of Tennessee. OAG 15-69, 2015 Tenn. AG LEXIS 70 (10/1/2015).

NOTES TO DECISIONS

1. Authority of Board.

State board had right, power and authority to classify and limit the licenses it issued to general contractors. Tasco Developing & Bldg. Corp. v. Long, 212 Tenn. 96, 368 S.W.2d 65, 1963 Tenn. LEXIS 401 (1963).

2. Review of Action of Board.

Review of any action of state board on question of whether applicants for license were dealt with arbitrarily and illegally should come under statutory certiorari provision provided by title 27, ch. 9. Tasco Developing & Bldg. Corp. v. Long, 212 Tenn. 96, 368 S.W.2d 65, 1963 Tenn. LEXIS 401 (1963).

62-6-112. License classifications — Specialty classifications — Contractor's authority to bid and contract.

  1. There shall be nine (9) major construction classifications in which a contractor may apply for a license, the major classifications being:
    1. Commercial building construction;
    2. Industrial construction;
    3. Heavy construction;
    4. Highway, railroad and airport construction;
    5. Municipal and utility construction;
    6. Mechanical construction;
    7. Electrical construction;
    8. Environmental and special construction; and
    9. Residential construction.
  2. The board shall promulgate by rules or regulations specialty classifications required under each major classification set out in subsection (a). Issuance of a license by the board to a contractor in any major classification automatically includes issuance of a license to the contractor in all specialty classifications included under the major classification.
  3. A contractor may obtain a license in any of the specialty classifications that the board by rule or regulation may promulgate under each major classification, but the license in a specialty classification allows the contractor to bid, contract for or perform contracting work in that specialty classification only.
  4. A contractor may not be licensed in six (6) or more specialty classifications under any one (1) major classification without successfully passing the written or oral examination, or both, for the major classification.
  5. Notwithstanding any provision of this part to the contrary, the board may promulgate rules or regulations establishing subclassifications within the residential construction classification for which a limited license may be issued to an applicant who has successfully completed a seminar sponsored by the board in lieu of the written or oral examination, or both, and who has otherwise complied with the requirements of this part.
    1. A commercial building contractor is authorized to bid on and contract for the construction, erection, alteration, repair or demolition of any building or structure for use and occupancy by the general public, including residential construction with more than four (4) units or greater than three (3) stories in height.
    2. A small commercial building contractor is authorized to bid on and contract for the construction, erection, alteration, repair or demolition of any building or structure for use and occupancy by the general public, the total cost of which does not exceed one million five hundred thousand dollars ($1,500,000).
    1. Licensed contractors in the category set forth under subdivision (a)(9), licensed on or after January 1, 2009, must complete continuing education, a minimum of eight (8) hours biennially, by a board-approved provider. Proof of compliance with this requirement must be filed with the board biennially in the format required by the board, as a condition for the maintenance or renewal of the license.
    2. Active membership in a professional trade association, approved by the board, qualifies as four (4) hours of continuing education annually. Proof of membership must be filed with the board biennially.
    3. The board shall promulgate rules to effectuate this subsection (g). The rules shall include, at a minimum, provisions allowing online and in-person training. All such rules must be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1994, ch. 986, § 9; 2000, ch. 632, § 1; 2017, ch. 237, § 2; 2019, ch. 186, § 1.

Compiler's Notes. Former § 62-6-112 (Acts 1976, ch. 822, § 13; 1978, ch. 551, §§ 1, 2; impl. am. Acts 1978, ch. 934, §§ 22, 36; 1979, ch. 72, §§ 1-4; T.C.A., § 62-613; Acts 1985, ch. 246, § 1; Acts 1989, ch. 16, § 8), concerning recording of certificate of license and renewal thereof and fee, was repealed by Acts 1989, ch. 487, § 10.

Amendments. The 2019 amendment, effective January 1, 2020, added (g).

Effective Dates. Acts 2019, ch. 186, § 2. January 1, 2020; provided that, for administrative and rulemaking purposes, the act took effect April 23, 2019.

Attorney General Opinions. Requirement of separate licensure for different construction classifications, OAG 98-020, 1998 Tenn. AG LEXIS 20 (1/15/98).

62-6-113. Issuance of duplicate certificate.

A duplicate license certificate to replace any certificate lost, destroyed or mutilated may be issued subject to the rules and regulations of the board.

Acts 1976, ch. 822, § 14; T.C.A., § 62-614.

62-6-114. Certificate as evidence of rights.

The issuance of a certificate of license shall be evidence that the person, firm or corporation named in the certificate is entitled to all the rights and privileges of a licensed contractor while the license remains unrevoked or unexpired.

Acts 1976, ch. 822, § 15; 1977, ch. 406, § 3; T.C.A., § 62-615; Acts 1989, ch. 487, § 11.

NOTES TO DECISIONS

1. Unlicensed Contractors.

A contractor who fails to meet technical requirements of the licensing statutes may nevertheless be allowed to recover on a quantum meruit theory. Chedester v. Phillips, 640 S.W.2d 207, 1982 Tenn. LEXIS 357 (Tenn. 1982).

62-6-115. Corporations and partnerships.

Corporations and partnerships may engage in the business of contracting; provided, that at least one (1) of the major stockholders or partners or full-time employees with a written power of attorney to bind the corporation or partnership has sufficient knowledge of the construction business in which the persons are licensed to perform. If the person who took the examination for the partnership or corporation leaves the firm for any reason, the partnership or corporation must designate an individual to take the examination within three (3) months.

Acts 1976, ch. 822, § 16; T.C.A., § 62-616; Acts 1989, ch. 487, § 12; 1993, ch. 214, § 1; 1994, ch. 986, § 10.

62-6-116. Expiration of license — Renewal.

  1. A certificate of license expires on the last day of the twenty-fourth month following its issuance or renewal and becomes invalid on that date unless renewed.
  2. Renewal notices shall be mailed ninety (90) days prior to the expiration date of the license. The renewal must be received in the office of the board thirty (30) days prior to the expiration of the license.
  3. Renewal may be effected at any time during the thirty (30) days prior to the expiration of the license by filing with the board a financial statement, a report of any personal or corporate bankruptcies and other information that the board may require, by the payment of a fee as set by the board and by submitting evidence of the applicant's current workers' compensation insurance coverage. Failure to provide evidence of workers' compensation insurance coverage shall make the applicant ineligible for renewal until evidence of insurance coverage is provided.
  4. A renewal application for a monetary limitation greater than one million five hundred thousand dollars ($1,500,000) shall be accompanied by a reviewed or audited financial statement prepared by a licensed public accountant or a certified public accountant. If a renewal applicant requests a monetary limitation of one million five hundred thousand dollars ($1,500,000) or less, the applicant shall submit a notarized statement that the information contained in the financial statement is true and correct.
  5. It is the duty of the executive director to notify by mail every person licensed under this part of the date of expiration of this certificate of license and the amount of fee required for its renewal for two (2) years. Notice shall be mailed in accordance with this section.
  6. The fee to be paid for the renewal of a certificate of license after the expiration date shall be increased ten percent (10%) for each month or fraction of a month that payment for renewal is delayed. The maximum fee for a delayed renewal shall not exceed twice the normal fee.
  7. No contractor shall be qualified to receive a renewal license when the contractor has been in default in complying with this part for a period of one (1) year and in such event the contractor, in order to qualify under the law, shall make a new application as in the case of the issuance of the original license.
  8. The board shall promulgate rules and regulations that establish uniform criteria to govern the review and adjustment of the general construction classifications, specialty classifications and monetary limitations of certificates of license that are subject to renewal by the board. The criteria shall also establish a method for identifying those licensees applying for renewal who may require a greater degree of scrutiny by the board than usual.

Acts 1976, ch. 822, § 17; 1977, ch. 406, § 4; 1979, ch. 59, § 6; T.C.A., § 62-617; Acts 1984, ch. 888, § 3; 1988, ch. 758, § 7; 1989, ch. 487, §§ 13, 14; 1989, ch. 523, § 140; 1994, ch. 986, § 11; 2000, ch. 865, §§ 1, 2; 2004, ch. 516, § 3; 2005, ch. 133, § 2.

Compiler's Notes. Acts 2000, Ch. 865, § 3, provided that it is the intention of the general assembly that the board adjust its fee schedule to reflect the change in licensure period from annual to biennial licensure. It is not the intention of the general assembly to decrease the fees levied for licensure by the change in licensure period.

Cross-References. Director of division of regulatory boards to promulgate rules concerning certain license renewal dates, § 56-1-302.

NOTES TO DECISIONS

1. Unlicensed Contractors.

A contractor who fails to meet technical requirements of the licensing statutes may nevertheless be allowed to recover on a quantum meruit theory. Chedester v. Phillips, 640 S.W.2d 207, 1982 Tenn. LEXIS 357 (Tenn. 1982).

62-6-117. Certificate issued to person who enters or has entered military service.

Any certificate of license issued by the state board for licensing contractors to any person now in any branch of the armed service of the United States or who hereafter enlists or is called into service remains in full force and effect until one (1) year after the person is discharged from service and is subject to renewal at that time by the payment of the annual fee set out in this part.

Acts 1976, ch. 822, § 18; T.C.A., § 62-618.

62-6-118. Revocation or suspension of license — Reissuance.

    1. Whenever any person, firm or corporation claims to have been damaged or injured by the gross negligence, incompetency, fraud, dishonest dealing or misconduct in the practice of contracting on the part of any person, firm or corporation licensed under this part files suit upon the claim in any of the courts of record in this state and recovers judgment on the claim, the court may, as a part of its decree or judgment in the case, revoke the certificate of license under which the contractor is operating at the time of the wrongdoing.
    2. The board shall revoke the license of any contractor, home improvement contractor or home improvement services provider upon receiving notification from the court in accordance with § 39-14-154(d) of such person's conviction for a violation of § 39-14-154.
    3. It is the duty of the clerk of the court to notify the executive director of the board of the revocation.
    1. The board may reissue a license to any person, firm or corporation whose license has been revoked; provided, that a majority of the members of the board vote in favor of reissuance for reasons the board may deem sufficient.
    2. Notwithstanding subdivision (b)(1):
      1. If a person, firm or corporation's license was revoked based on a conviction for a violation of § 39-14-154, the board shall not reissue the license until the person, firm or corporation has served the entire term of the sentence imposed as a result of such violation; and
      2. If a person, firm or corporation's license was revoked based on a second or subsequent conviction for a violation of § 39-14-154, the board shall not reissue the license.
  1. The executive director shall immediately notify the secretary of state and the clerk of each county of any revocation of a license or the reissuance of a revoked license.
  2. The board has the power to revoke or suspend any license or renewal granted by it for any of the reasons stated in this section, for a failure to observe the terms and conditions of any license or renewal granted under this part or any bylaws, rules or regulations adopted or promulgated by it as provided in § 62-6-108 or for a violation of the terms of any license.
  3. The board shall, in all cases before hearing any charges against a contractor, furnish a written copy of the charges against the accused, including notice of the time and place where the charges will be heard, and give reasonable opportunity for the accused to be present and offer any evidence the accused may wish. The accused shall have the waivable right to an attorney if so desired.
  4. The affirmative vote of a majority of the board is necessary to revoke or suspend a license or renewal.
  5. The board may refuse to issue or renew a license to any person, firm or corporation for lack of financial stability, lack of expertise, submission of false evidence with regard to application of license or renewal, conviction of a felony and any other conduct that constitutes improper, fraudulent or dishonest dealing or violation of the statute.

Acts 1976, ch. 822, § 19; 1977, ch. 406, § 5; 1978, ch. 891, § 1; T.C.A., § 62-619; Acts 1991, ch. 272, § 9; 1994, ch. 986, § 12; 2010, ch. 1055, §§ 5, 6.

Code Commission Notes.

Former subsection (e) was transferred to § 62-6-120(d) by the code commission in 2009.

Compiler's Notes. Acts 2010, ch. 1055, § 7 provided that the act shall apply to any contract for home improvement services entered into on or after July 1, 2010.

NOTES TO DECISIONS

1. License Suspension.

Trial court properly revoked defendant construction company's license based upon the construction company's unlawfully obtaining the permit for another unlicensed contractor, which allowed the unlicensed contractor to do work it otherwise would not be authorized to do, which amounted to a civil conspiracy. Danny L. Davis Contrs., Inc. v. Hobbs, 157 S.W.3d 414, 2004 Tenn. App. LEXIS 492 (Tenn. Ct. App. 2004), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 165 (Tenn. Feb. 28, 2005).

62-6-119. Bid documents — Penalties.

  1. Any person or entity preparing plans, specifications or any other documentation for inclusion in an invitation to bid or comparable bid document including any electronic bidding documents, shall reference this chapter in such documentation and include a specific statement informing the invited bidder that it is necessary for such bidder to be properly licensed at the time of the bid and provide evidence of compliance with the applicable provisions of this chapter before such bid may be considered.
  2. The person or entity involved in the preparation of the invitation to bid or comparable bid documents, including any electronic bid documents, shall direct that the following information be written upon the bid envelope or provided within the electronic bid document:
    1. The name, license number, expiration date thereof, and license classification of the contractor applying to bid for the prime contract;
    2. The name, license number, expiration date thereof, and license classification of the contractor applying to bid for the masonry contract where the total cost of the materials and labor for the masonry portion of the construction project exceeds one hundred thousand dollars ($100,000);
    3. The name, license number, expiration date thereof, and license classification of the contractor applying to bid for the electrical, plumbing, heating, ventilation, or air conditioning contracts except when such contractor's portion of the construction project is less than twenty-five thousand dollars ($25,000);
    4. For each vertical closed loop geothermal heating and cooling project, the company name, department of environment and conservation license number, classification (G, L or G,L) and the expiration date, except when the geothermal portion of the construction project is in an amount less than twenty-five thousand dollars ($25,000);
    5. Prime contractor bidders who are to perform the masonry portion of the construction project which exceeds one hundred thousand dollars ($100,000), materials and labor, the electrical, plumbing, heating, ventilation or air conditioning or the geothermal heating and cooling must be so designated; and
    6. Only one (1) contractor in each of the classifications listed above shall be written on the bid envelope or provided within the electronic bid document.
  3. Failure of any bidder to furnish the required information shall void such bid and such bid shall not be considered. Upon opening of the bid envelope or initial opening of an electronic bid, the names of all contractors listed shall be read aloud at the official bid opening and incorporated into the bid. Prior to awarding a contract, the awarding person or entity and its authorized representatives shall verify the accuracy, correctness and completeness of the required information, and any discrepancies found in the spelling of names of bidders, transposition of license numbers, or other similar typographical errors or omissions may be corrected within forty-eight (48) hours after the bid opening excluding weekends and state-recognized holidays.
  4. No invitation to bid may require that any subcontractor be identified, listed or designated until the final bid submission by the prime contractor, or that any prime contractor accept the bid of any subcontractor until the final bid submission by the prime contractor. This subsection (d) shall apply only to design/bid/build procurements where cost is the primary criterion for the contract award.
  5. Any person or entity, public and private, awarding a bid to a contractor who is not licensed in accordance with this chapter shall be subject to the penalty provided in § 62-6-120(b).
  6. Notwithstanding the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, relative to the amount of civil penalties that may be imposed, the board may impose a civil penalty not to exceed five thousand dollars ($5,000) for willful violation of this section.

Acts 1976, ch. 822, § 20; T.C.A., § 62-620; Acts 1986, ch. 718, § 2; 1989, ch. 591, § 111; 1990, ch. 868, §§ 1, 2; 1991, ch. 247, § 1; 1994, ch. 986, § 13; 1995, ch. 341, § 1; 1997, ch. 153, § 1; 2001, ch. 222, § 3; 2008, ch. 792, §§ 1, 2; 2010, ch. 768, §§ 1, 2; 2010, ch. 801, § 1; 2011, ch. 12, §§ 1, 2; 2014, ch. 644, § 1.

Compiler's Notes. Acts 2011, ch. 12, § 3 provided that the act, which amended subsection (b), shall apply to all bid documents submitted in accordance with § 62-6-119 on or after March 24, 2011.

Law Reviews.

Contracts and Sales Law in Tennessee: A Survey and Commentary, II. Contracts (John A. Sebert, Jr.), 45 Tenn. L. Rev. 353.

62-6-120. Penalties.

    1. Any person, firm or corporation that engages or offers to engage in contracting without a license as required by § 62-6-103 or who violates the terms and conditions of any license or renewal granted by the board pursuant to this part commits a Class A misdemeanor. The penalties imposed by this subdivision (a)(1) shall not apply to a person who engages a contractor without a license for the purpose of constructing a residence for the use of that person.
    2. Any person, firm or corporation that engages or offers to engage in contracting without a license as required by § 62-6-103 may, in the discretion of the board, be deemed ineligible to receive a license until six (6) months after the date the person, firm or corporation engaged or offered to engage in contracting. Additionally, no such person, firm or corporation shall be awarded any contract for the project upon which it engaged in contracting without a license or permitted to participate in any rebidding of the project.
  1. Any person, firm or corporation that accepts a bid in excess of twenty-five thousand dollars ($25,000) from a contractor who is not licensed, with appropriate classifications and sufficient monetary limitations, or in the case of a limited licensed electrician where the amount is less than twenty-five thousand dollars ($25,000), in accordance with this part, commits a Class A misdemeanor.
    1. No official of the state other than of the department of transportation shall issue a permit or contract work order to any applicant for a permit or work order to engage in contracting, unless the applicant holds a license as a contractor with appropriate classifications and sufficient monetary limitations, in accordance with this part.
    2. Any official violating this subsection (c) commits a Class A misdemeanor.
  2. Notwithstanding the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, relative to the amount of civil penalties that may be imposed, the board may impose a civil penalty not to exceed five thousand dollars ($5,000) per offense against any person or firm that violates the terms and conditions of an existing license to engage in contracting or against any person or firm that engages in unlicensed contracting.
      1. The director of the board, acting on behalf of the board, is authorized to issue citations against persons:
        1. Acting in the capacity of or engaging in the business of a contractor without a license in violation of § 62-6-103;
        2. Exceeding the monetary limitation on the person's contractor's license; or
        3. Acting in the capacity of or engaging in the business of a contractor in a classification in which the person is not licensed by the board, notwithstanding the person's licensure to perform such services in another classification.
      2. Each citation shall be in writing and shall describe with particularity the basis of the citation.
      3. Each citation shall contain an order to cease all violations of this part and an assessment of a civil penalty in an amount no less than fifty dollars ($50.00) nor more than one thousand dollars ($1,000).
    1. The board shall promulgate rules and regulations to specify those conditions necessary to the issuance of a citation and the range of penalties for violations of this part.
    2. The sanctions authorized pursuant to this subsection (e) shall be in addition to any other remedies, civil and criminal, available to any person harmed by a violation of this part.
    3. Service of a citation issued pursuant to this subsection (e) may be made by certified mail at the last known business address or residence address of the person cited.
    4. A citation issued pursuant to this subsection (e) shall be issued by the director within one (1) year after the act or omission that is the basis for the citation.
    5. Any person served with a citation pursuant to this subsection (e) may appeal to the director by written notice postmarked within fifteen (15) working days after service of the citation with respect to violations alleged, scope of the order or amount of civil penalty assessed.
    6. If a person cited timely notifies the director that the person intends to contest the citation, the director shall afford an opportunity for a contested case hearing pursuant to the Uniform Administrative Procedures Act.
    7. After all administrative appeals have been exhausted, the director may apply to the appropriate court for a judgment in an amount of the civil penalty, plus applicable court costs, and for an order to cease activities in violation of § 62-6-103. A certified copy of the final order of the board, hearing officer, or administrative judge or a certified copy of the unappealed citation shall constitute a sufficient showing to warrant the issuance of the judgment and order.
      1. Notwithstanding any other law to the contrary, the director may waive part of the civil penalty if the person against whom the civil penalty is assessed satisfactorily completes all the requirements for, and is issued, a license as a general contractor.
      2. Any outstanding injury to the public shall be settled satisfactorily before a license as a general contractor is issued.
  3. Any individual or entity that fails to pay a civil penalty assessed by the board pursuant to the terms of a final order entered by the board after a contested case hearing against the individual or entity pursuant to the Uniform Administrative Procedures Act, may be referred to a collection agency.
  4. Failure to pay any civil penalty assessed by the board shall subject the individual or entity to suspension or revocation of a license issued pursuant to this part.

Acts 1976, ch. 822, § 21; 1981, ch. 399, § 2; 1981, ch. 497, § 2; T.C.A., § 62-621; Acts 1984, ch. 888, § 4; 1986, ch. 718, § 3; 1989, ch. 487, § 15; 1989, ch. 591, § 111; 1991, ch. 247, §§ 2, 3; 1994, ch. 986, § 14; 1999, ch. 238, § 6; 2007, ch. 460, § 6; T.C.A., § 62-6-118(e); T.C.A., §§ 62-6-20162-6-207; Acts 2013, ch. 180, § 5; 2015, ch. 290, §§ 1, 2.

Code Commission Notes.

Subsections (d) and (e) were transferred to this section from § 62-6-118(d) and from part 2 of this chapter, respectively, by the code commission in 2009.

Compiler's Notes. Acts 1999, ch. 238, § 10, provided that the state fire marshal is hereby directed to notify by mail and by other means deemed to be reasonable all persons who are registered pursuant to § 68-102-150 on July 1, 1999. Such notification shall include the requirements of Acts 1999, ch. 238, pertaining to limited licensed electricians and the means for obtaining a license as a limited licensed electrician. Such notification shall also include a telephone number which persons needing additional information can call. Acts 1999, ch. 238 is codified in this section and §§ 62-6-102, 62-6-103, 62-6-111, 62-6-130 and 62-6-131.

Acts 2015, ch. 290, § 6 provided that the act shall apply to all civil penalties that are assessed on or after April 24, 2015.

Cross-References. Exclusion of certain contracts from definition of contracting, § 62-6-102.

Penalty for Class A misdemeanor, § 40-35-111.

Law Reviews.

Contracts and Sales Law in Tennessee: A Survey and Commentary, II. Contracts (John A. Sebert, Jr.), 45 Tenn. L. Rev. 353.

Attorney General Opinions. Requirement of separate licensure for different construction classifications, OAG 98-020, 1998 Tenn. AG LEXIS 20 (1/15/98).

NOTES TO DECISIONS

1. Quantum Meruit Not Barred.

Courts in other jurisdictions have interpreted similar penalty statutes as providing sufficient protection to the public to render unnecessary the judicially created bar to enforcement of contracts by unlicensed contractors by use of quantum meruit. Gene Taylor & Sons Plumbing Co. v. Corondolet Realty Trust, 611 S.W.2d 572, 1981 Tenn. LEXIS 401 (Tenn. 1981).

2. Recovery When License Limits Exceeded.

A licensed general contractor does not forfeit his right to recover on a building contract when construction costs exceed the monetary limits of his contractor's license. Helton v. Angelopoulos, 629 S.W.2d 15, 1982 Tenn. LEXIS 387 (Tenn. 1982).

62-6-121. Enforcement.

The board shall inquire into the identity of any person, firm or corporation operating under the general classifications of this part and shall prosecute any person, firm or corporation violating this part.

Acts 1976, ch. 822, § 22; 1978, ch. 906, § 22; T.C.A., § 62-622.

Law Reviews.

Contracts and Sales Law in Tennessee: A Survey and Commentary, II. Contracts (John A. Sebert, Jr.), 45 Tenn. L. Rev. 353.

62-6-122. Injunctions.

  1. In order to secure the effective enforcement of this part, jurisdiction is conferred on the chancery courts of this state to grant injunctive relief against:
    1. Any person, firm or corporation undertaking to engage in the contracting business in violation of the terms of this part; or
    2. Any person, firm, corporation or official of this state or any political subdivision of this state who accepts a bid in violation of § 62-6-120(b) or (c).
  2. The injunction suit shall be filed in the name of the state of Tennessee on relation of the board for licensing contractors, or any member of the board, without bond being required for prosecution of the suit or for the issuance of injunction.
  3. Any expenses incurred, such as depositions, travel expenses or attorney fees, required for the prosecution of the suit, shall be paid in the same manner as other expenses incurred by the board.

Acts 1976, ch. 822, § 23; T.C.A., § 62-623; Acts 1989, ch. 25, § 1.

Cross-References. State Construction Projects Liability Act, title 12, ch. 4, part 5.

Law Reviews.

Contracts and Sales Law in Tennessee: A Survey and Commentary, II. Contracts (John A. Sebert, Jr.), 45 Tenn. L. Rev. 353.

62-6-123. Indemnify or hold harmless agreement invalid.

A covenant promise, agreement or understanding in or in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of a building, structure, appurtenance and appliance, including moving, demolition and excavating connected therewith, purporting to indemnify or hold harmless the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee, the promisee's agents or employees or indemnitee, is against public policy and is void and unenforceable.

Acts 1976, ch. 822, § 24; T.C.A., § 62-624.

Textbooks. Tennessee Jurisprudence, 14 Tenn. Juris., Indemnity, § 3; 15 Tenn. Juris., Insurance, § 144.

NOTES TO DECISIONS

1. Applicability.

There is no language in T.C.A. § 62-6-123 limiting its applicability solely to construction contracts; it includes any agreement relative to the construction of a building. Carroum v. Dover Elevator Co., 806 S.W.2d 777, 1990 Tenn. App. LEXIS 449 (Tenn. Ct. App. 1990).

A contract to provide certain services relative to a building under construction under a separate contract would be included under T.C.A. § 62-6-123 and any provision purporting to indemnify or hold harmless the promisee against liability arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee is against public policy and is void and unenforceable. Carroum v. Dover Elevator Co., 806 S.W.2d 777, 1990 Tenn. App. LEXIS 449 (Tenn. Ct. App. 1990).

Indemnity contract between crane owner and lease was void as being within the contemplation of T.C.A. § 62-6-123, even though owner was not a “contractor” engaged in “contracting” within the contemplation of the other provisions of “The contractor's licensing act of 1976.” Elliott Crane Service, Inc. v. H. G. Hill Stores, Inc., 840 S.W.2d 376, 1992 Tenn. App. LEXIS 657 (Tenn. Ct. App. 1992).

The indemnification provision in crane service's standard rental agreement providing that lessee would indemnify crane service against any damages caused by the crane's operation, except crane service would be liable for damages caused by its sole negligence up to the amount of its liability insurance, was statutorily void as against public policy, in spite of the fact it had liability insurance. It was impossible to predict whether damages from its sole negligence would be covered by its insurance. Armoneit v. Elliott Crane Serv., 65 S.W.3d 623, 2001 Tenn. App. LEXIS 506 (Tenn. Ct. App. 2001).

Negligent party involved in a construction contract cannot insulate itself by having an indemnity or hold harmless agreement with a third party; but the parties to a contract for the sale of goods are still free to allocate the risks between themselves under T.C.A. § 47-2-719. Trinity Indus. v. McKinnon Bridge Co., 77 S.W.3d 159, 2001 Tenn. App. LEXIS 858 (Tenn. Ct. App. 2001).

Statute has been exclusively applied to construction-related contracts and does not apply to railroad crossings or insurance contracts. Am. Guar. & Liab. Ins. Co. v. Norfolk S. Ry. Co., — F. Supp. 2d —,  2017 U.S. Dist. LEXIS 178808 (E.D. Tenn. Oct. 6, 2017).

62-6-124. Access to and use of financial statements.

  1. The financial statements submitted by contractors shall be treated as confidential and shall be used by the board only for the purposes of determining the qualifications of applicants for licenses and the monetary limitations.
  2. The comptroller of the treasury or the comptroller's designated representative shall be accorded access to and may examine any financial statement solely for the purpose of a legitimate audit, § 10-7-508 to the contrary notwithstanding.

Acts 1979, ch. 165, § 1; T.C.A., § 62-625.

Cross-References. Confidential records, § 10-7-504.

Financial statements required, § 62-6-111(b)(2).

Law Reviews.

Toward a Unified Approach to Privileges and Relevancy (Thomas F. Guernsey), 17 Mem. St. U.L. Rev. 1 (1986).

62-6-125. Hearings and judicial review.

The Uniform Administrative Procedures Act, compiled in title 4, chapter 5, governs all matters and procedures respecting the hearing and judicial review of any contested case arising under this part.

Acts 1980, ch. 451, § 11; T.C.A., § 62-626.

62-6-126. Retirement of license — Procedure — Fee — Reinstatement — Disciplinary actions — Renewal — Transferability.

  1. Any licensee may retire the licensee's license by submitting a form prescribed by the board accompanied by the current active license certificate and a fee of twenty-five dollars ($25.00). Upon receipt of an acceptable application to retire, the board shall issue a retired inactive license certificate to the contractor. The holder of a retired license shall not be entitled to practice as a contractor until the licensee is reinstated.
  2. Any licensee who is not engaged in work or activities that require a contractor's license may apply for a retired license.
  3. A retired license shall be valid for a period of one (1) year from the annual renewal date. If the inactive licensee wishes to remain inactive for any portion of a subsequent calendar year, the licensee shall pay an additional inactive fee of twenty-five dollars ($25.00) on or before the annual renewal date of each such year.
  4. The board shall not refund any of the renewal fee that a licensee may have paid prior to the receipt of the application to retire.
  5. A retired license may be reinstated by submitting an application acceptable to the board, by paying the full renewal fee for an active license and by fulfilling all other requirements of this part. No examination shall be required to reinstate a retired license.
  6. The retired status of a license shall not bar any disciplinary action by the board against a licensee for any of the causes provided in this part.
  7. In no event may a retired license be renewed for more than seven (7) years dated from the time of initial application.
  8. No retired license is transferable.

Acts 1991, ch. 216, § 1.

62-6-127. [Reserved.]

Notwithstanding title 66, chapter 11 or any other law to the contrary, title 66, chapter 11, shall not be available on single family residential construction to any person, firm or corporation that performs residential construction and that is required to be licensed as a contractor pursuant to this part and fails to have a valid license when acting as a contractor.

Acts 1994, ch. 986, § 16.

62-6-129. Bid bonds.

In addition to any applicable requirement of § 12-4-201, no contract for the services of a construction manager shall be awarded for any public work in this state by any city, county or state authority or any board of education unless there is posted at the time of the submittal of a proposal for services by a construction manager a bid bond equal to ten percent (10%) of the value of the services proposed and the value of the work to be managed or may at the time of contracting provide payment and performance bonds in amounts equal to the combined monetary value of the services of the construction manager and the value of the work to be so managed.

Acts 1995, ch. 342, § 1.

62-6-130. Limited licensed electricians not contractors.

Nothing in this part shall be construed to provide that a limited licensed electrician is a contractor. It is the intent of this part to provide that a limited licensed electrician is subject to the jurisdiction of the board solely for the purposes of licensure and disciplinary proceedings. No limited licensed electrician shall be authorized to use the appellation “contractor” or any other designation that gives or is designed to give the impression that a limited licensed electrician is a contractor unless the limited licensed electrician also holds a valid contractor's license issued by the board.

Acts 1999, ch. 238, § 3; 2000, ch. 876, § 12.

Compiler's Notes. Acts 1999, ch. 238, § 10, provided that the state fire marshal is hereby directed to notify by mail and by other means deemed to be reasonable all persons who are registered pursuant to § 68-102-150 on July 1, 1999. Such notification shall include the requirements of Acts 1999, ch. 238, pertaining to limited licensed electricians and the means for obtaining a license as a limited licensed electrician. Such notification shall also include a telephone number which persons needing additional information can call. Acts 1999, ch. 238 is codified in this section and §§ 62-6-102, 62-6-103, 62-6-111, 62-6-120, and 62-6-131.

62-6-131. Bonds — Expiration of licenses — Fees.

  1. No person shall be required to post a bond, provide a financial statement or provide a letter of reference in order to obtain a license as a limited licensed electrician.
  2. All limited licensed electrician licenses shall expire biennially on the month of their issuance.
    1. The board shall prescribe fees for the issuance and renewal of licenses of limited licensed electricians. The fees, together with the fees prescribed for limited licensed plumbers pursuant to chapter 6, part 4 of this title, shall be in an amount that provides for the cost of administering the licensing and regulation of limited licensed electricians and limited licensed plumbers.
    2. The fees collected by the board as described in subdivision (c)(1) shall be combined with fees collected for the licensing of limited licensed plumbers, pursuant to chapter 6, part 4 of this title. These fees shall be used to defray expenses incurred in the administration of the licensing of limited licensed electricians, pursuant to this part, and limited licensed plumbers, pursuant to chapter 6, part 4 of this title.
    3. Fees for limited licensed electricians shall be adjusted as necessary to provide that the limited licensed electricians and plumbers fund is fiscally self-sufficient and that revenues from fees do not exceed necessary and required expenditures.
    4. On July 1, 2015, all funds held by the state treasurer for the administration of the licensing of limited licensed electricians shall be combined with funds held for the administration of the licensing of limited licensed plumbers, pursuant to chapter 6, part 4 of this title.
  3. In no event shall the fee for an initial limited licensed electrician license exceed seventy-five dollars ($75.00) per year nor shall the fee for a renewal of the license exceed fifty dollars ($50.00) per year.

Acts 1999, ch. 238, § 9; 2000, ch. 876, § 13; 2015, ch. 291, § 6.

Compiler's Notes. Acts 1999, ch. 238, § 10, provided that the state fire marshal is hereby directed to notify by mail and by other means deemed to be reasonable all persons who are registered pursuant to § 68-102-150 on July 1, 1999. Such notification shall include the requirements of Acts 1999, ch. 238, pertaining to limited licensed electricians and the means for obtaining a license as a limited licensed electrician. Such notification shall also include a telephone number which persons needing additional information can call. Acts 1999, ch. 238, is codified in this section and §§ 62-6-102, 62-6-103, 62-6-111, 62-6-120 and 62-6-130.

62-6-132. Inspection of temporary electrical service.

No person is required to register with the state fire marshal nor obtain a license from the board for licensing contractors to inspect temporary electrical service.

Acts 2000, ch. 876, § 14.

62-6-133. Acts prohibited by residential contractor — Conflicts of interest.

  1. The following acts are prohibited by a residential contractor:
    1. Having a controlling ownership interest in the lender providing a mortgage loan for home improvement for the work being performed by the contractor; or
    2. Being a cosigner or acting as a guarantor for a mortgage loan for home improvement.
  2. As used in this section, “mortgage loan for home improvement” shall have the same meaning as defined in § 45-13-403(c).

Acts 2003, ch. 368, § 3.

62-6-134. Violations by residential contractors — Penalties.

  1. For each violation of § 62-6-133 by a residential contractor, the board is authorized to impose a civil penalty in an amount not to exceed twenty-five thousand dollars ($25,000) after notice and an opportunity for a hearing. The penalty shall be in addition to any other penalty authorized pursuant to this part.
  2. In addition to the civil penalty authorized pursuant to subsection (a), a violation of § 62-6-133 shall be construed to constitute an unfair or deceptive act or practice affecting the conduct of trade or commerce under the Tennessee Consumer Protection Act of 1977, compiled in title 47, chapter 18, part 1; and, as such, the private right of action remedy under the Tennessee Consumer Protection Act of 1977 shall be available to any person who suffers an ascertainable loss of money or property, real, personal or mixed, or any other article, commodity or thing of value wherever situated as a result of the violation.

Acts 2003, ch. 368, § 3.

62-6-135. Applicability to alarm systems contractors.

This part shall not apply to entities certified under chapter 32, part 3, of this title, when those entities are performing functions for which those entities are certified.

Acts 2003, ch. 68, § 1.

62-6-136. Unlawful representation as a licensed contractor or acting as a contractor — Penalties — Liability.

  1. It is unlawful for any person, firm or corporation to represent itself as a licensed contractor or to act in the capacity of a “contractor” as defined in §§ 62-6-102, or 62-37-103 [repealed], and related rules and regulations of this state, or any similar statutes, rules and regulations of another state, while not licensed, unless such person, firm or corporation has been duly licensed under § 62-6-103 or [former] § 62-37-104 [repealed].
  2. In addition to the penalties set out in § 62-6-120, [former] §  62-37-114 [repealed] or [former] §  62-37-127 [repealed], a violation of this section shall be construed to constitute an unfair or deceptive act or practice affecting the conduct of trade or commerce under the Tennessee Consumer Protection Act of 1977, compiled in title 47, chapter 18, part 1; and, as such, the private right of action remedy under the Tennessee Consumer Protection Act of 1977 shall be available to any person who suffers an ascertainable loss of money or property, real, personal or mixed, or any other article, commodity or thing of value wherever situated as a result of the violation.
  3. An individual who violates this section and would, but for this section, have limited liability as owner of an entity having limited liability protection, including, but not limited to, a corporation, is personally liable for the individual's own representations, acts or omissions to the same extent as if that individual rendered the representations, acts or omissions as an individual.

Acts 2004, ch. 492, § 2.

Compiler's note.

Chapter 37 of this title, several sections of which are referred to in this section, was repealed by Acts 2007, ch. 460, § 1, effective July 1, 2007. Provisions regarding home improvement contractors are now in chapter 6, part 5.

62-6-137. Registration with the department of codes administration or other appropriate department — Posting of permit bonds.

  1. It shall be the duty of every person who makes contracts described in subdivisions (a)(1)-(4), and every person, making such contracts or subletting such contracts, or any part of the contracts, to register with the department of codes administration or other appropriate departments and to post a permit bond in the amount set forth in this section:
    1. For the construction, erection, alteration, repair, removal or demolition of any building or structure or part of any building or structure;
    2. For repair or replacement of any damage to a building or structure caused by insects or natural disasters;
    3. To erect or construct any sign, billboard or similar structure or to construct any public or private swimming pool; or
    4. To do or perform any work for which a permit is required.
    1. For building permits under twenty-five thousand dollars ($25,000), the bond amount shall be ten thousand dollars ($10,000).
    2. For all building permits of twenty-five thousand dollars ($25,000) and larger, the bond amount shall be fifty thousand dollars ($50,000).
    3. For all gas/mechanical, plumbing and excavation permits, the bond amount shall be forty thousand dollars ($40,000).
  2. The bond required by this section shall be a permit bond conditioned to conform to the requirements of this section and to all applicable laws, ordinances, rules and regulations of the municipality or county relating to work that is performed by the principal pursuant to a permit issued under this bond or for work performed by the principal for which a permit should have been obtained prior to commencement of the activity, and to indemnify the municipality or county and property owners against any and all loss suffered by them by reason of the failure of the contractor to comply with the laws, ordinances, rules and regulations. The bond shall be continuous and may not be cancelled without at least a ten-day prior notice in writing to the director of codes administration or other appropriate director. The liability of the surety shall continue to attach to work performed pursuant to any permit issued prior to the termination date of the bond, even if the noncomplying act occurs after the termination date of the bond. The liability of the surety for any and all claims, suits or actions under this bond shall not exceed the bond penalty. Regardless of the number of years this bond may remain in force, the liability of the surety shall not be cumulative and the aggregate liability of the surety for any and all claims, suits or actions under this bond shall not exceed the face amount. The bond shall be issued by a United States treasury listed corporate surety or a Tennessee domestic insurance company, on forms provided by the department of codes administration or other appropriate department.
  3. It shall be the duty of every person, firm or corporation desiring to register with the department of codes administration or other appropriate department under this section to secure the required contractor's business license from the municipality or county.
  4. Contractors with multiple trades or contractors involved in the construction, repair or alteration of more than one (1) structure in the municipality or county may provide one (1) fifty thousand dollar ($50,000) bond to meet the requirements of this section.
  5. The bond shall be referenced by a standard form legal agreement, approved by the city or county attorney.
  6. This section shall have no effect unless approved by a two-thirds (2/3) vote of the governing body of any municipality or county.
  7. This section shall not apply to nonprofit housing ministries that, through volunteer labor and donations of money and materials, build and rehabilitate houses with the help of the homeowner families.
  8. This section shall not be construed to extend the amount of time a contractor is liable under current law regarding construction, erection, alteration, repair, removal or demolition of any building or structure.
  9. Nothing in this section shall be construed to apply to or alter or affect any municipality, county or metropolitan government that, on June 22, 2005, has similar or more stringent requirements than those required in this section relative to bonding requirements and insuring that a contractor secures the required business license from the municipality, county or metropolitan government.

Acts 2005, ch. 489, §§ 1-10.

62-6-138. Prelicensing general contractor education courses or workshops.

  1. All prelicensing courses designed to assist an applicant in taking an examination as required by the board must be approved by the board before accepting applicants.
  2. A prelicensing general contractor education course or workshop shall be qualified for approval, if the board determines that it:
    1. Constitutes an organized program of learning, including a symposium, that contributes directly to the professional competency of the licensee;
    2. Is related to the practice of general contracting;
    3. Is conducted by individuals considered experts in the subject matter of the program by reason of education, training or experience; and
    4. Is accompanied by a paper, manual or written outline that substantially describes the subject matter of the program.
  3. The board or its representative shall be admitted to prelicensing general contractor education courses at no charge, in order to monitor the persons present, the content of the course and supporting paperwork.
  4. The person or firm conducting prelicensing general contractor education courses shall apply to the board for renewal of approval of the courses every three (3) years.
  5. The board may charge a fee for reviewing and approving prelicensing general contractor education courses; provided, that the fee shall not be greater than that necessary to carry out this section.
  6. The director of the board, acting on behalf of the board, is authorized to issue citations against persons acting in the capacity of or engaging in the business of conducting prelicensing general contractor education courses without approval of the board as required by this section. Each citation shall be in writing and shall describe with particularity the basis of the citation. Each citation shall contain an order to cease all violations of this part and an assessment of a civil penalty in an amount no less than two hundred fifty dollars ($250) nor more than one thousand dollars ($1,000). The commission shall promulgate rules and regulations to specify those conditions necessary to the issuance of a citation and the range of penalties for violations of this part.
  7. The board is authorized to promulgate rules and regulations pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to effectuate this section.

Acts 2006, ch. 657, §§ 1, 2.

62-6-139. Posting of disciplinary action on board's website — Advertising campaigns.

  1. When the board disciplines a contractor, home improvement services provider as defined by § 39-14-154(a) or home improvement contractor, the board shall post the following information on its website:
    1. The name of the contractor, home improvement services provider or home improvement contractor, together with the specific license and license number held by such person, or if such contractor, home improvement contractor or home improvement services provider is not licensed, information stating such;
    2. The violation or type of violation; and
    3. The date and type of penalty imposed.
  2. The posting made pursuant to subsection (a) shall be made within thirty (30) days of the board's action and shall be retained on the website until there is a three-year period from the date of the contractor's, home improvement contractor's or home improvement services provider's last discipline in which the contractor, home improvement contractor or home improvement services provider has not been disciplined by the board.
  3. In addition to posting such information on its website, to the extent funds are available, the board shall conduct advertising campaigns to inform the public of this section as well as educating the public as to the identity of home improvement services providers who have been convicted of violations of § 39-14-154 and the status of such provider's license.

Acts 2010, ch. 1055, § 4.

Compiler's Notes. Acts 2010, ch. 1055, § 7 provided that the act shall apply to any contract for home improvement services entered into on or after July 1, 2010.

Part 2
[Reserved]

Part 3
Tennessee Home Inspector License Act of 2005

62-6-301. Short title.

This part shall be known and may be cited as the “Tennessee Home Inspector License Act of 2005.”

Acts 2005, ch. 65, § 2.

Compiler's Notes. Former part 3, §§ 62-6-30162-6-304 (Acts 1997, ch. 340, §§ 1-21; Acts 1998, ch. 702, § 1), concerning home inspection contractors, was repealed by Acts 2005, ch. 65, § 1, effective July 1, 2006.

Acts 2005, ch. 65, § 11 provided that, for the purpose of effectuating the intent of the act, the commissioner is authorized to promulgate rules by public necessity (now emergency rules) pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

62-6-302. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Client” means any person who hires or seeks to hire a home inspector to obtain a home inspection or home inspection report;
  2. “Commissioner” means the commissioner of commerce and insurance or the commissioner's designee;
    1. “Home inspection” means a visual analysis for the purpose of providing a professional opinion of the condition of a residential building, ancillary buildings, any reasonably accessible installed components and the operation of the building's systems, including any controls normally operated by the owner of the building, for the following components:
      1. Heating systems;
      2. Cooling systems;
      3. Electrical systems;
      4. Plumbing systems;
      5. Structural components;
      6. Foundations;
      7. Roof coverings;
      8. Exterior and interior components; and
      9. Any other site aspects that affect the residential dwelling;
    2. “Home inspection” does not mean a compliance inspection for building codes or any other codes adopted by this state or a political subdivision of this state. “Home inspection” does not mean any work that is within the scope of practice of architecture, engineering or landscape architecture or is performed by a person qualified to use the title “registered interior designer,” all as defined in chapter 2 of this title. “Home inspection” also does not mean an inspection or assessment by a lender, either as a part of an evaluation of value or for purposes of determining whether or not to extend credit; provided, that that inspection or assessment shall not be represented as a “home inspection report”;
  3. “Home inspection report” means a legibly written document prepared for compensation and issued after a home inspection. The report shall include the following:
    1. A report on any system or component inspected that, in the opinion of the inspector, is significantly deficient. A report under this subdivision (4) must include the reason why the system or component is significantly deficient;
    2. A list of any systems or components that were designated for inspection in the standards of practice adopted by the commissioner but that were not inspected;
    3. The reason a system or component listed under subdivision (4)(B) was not inspected;
    4. A statement that the report does not address environmental hazards, including:
      1. Lead-based paint;
      2. Radon;
      3. Asbestos;
      4. Cockroaches;
      5. Rodents;
      6. Pesticides;
      7. Treated lumber;
      8. Fungus;
      9. Mercury;
      10. Carbon monoxide; or
      11. Other similar environmental hazards;
    5. A statement that the report does not address wood destroying insects and organisms; and
    6. A statement that the report does not address subterranean systems or system components, operational or nonoperational, including:
      1. Sewage disposal;
      2. Water supply; or
      3. Fuel storage or delivery;
  4. “Home inspector” means any person who is licensed under this part as a home inspector and who engages in the business of performing home inspections and writing home inspection reports; and
  5. “Residential building” means a structure that is intended to be or is in fact used as a residence consisting of from one (1) to four (4) family dwelling units.

Acts 2005, ch. 65, § 3.

62-6-303. Powers and duties of commissioner — Advisory committee —Restraining or enjoining violations — Jurisdiction.

  1. The commissioner has the power and the duty to:
    1. Administer and enforce this part;
    2. Issue and renew licenses to home inspectors pursuant to this part;
    3. Suspend, revoke or fail to renew the license of a home inspector;
    4. Establish standards for the initial and continuing education of home inspectors, including prescribing the form and content of examinations to determine the qualifications of persons applying for licensure;
    5. Promulgate rules and regulations that are reasonably necessary to effectuate the purposes of this chapter. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5;
    6. Adopt and publish a code of ethics and standards of practice for home inspectors; and
    7. Charge and collect fees, including license application and renewal fees, to be utilized to fund activities that may be necessary to carry out this part.
  2. The commissioner may appoint a committee of licensed home inspectors with at least five (5) years experience in the field of home inspection to advise the commissioner with respect to any contemplated rulemaking under this section. The commissioner shall include at least one (1) member from each of the following:
    1. The American Society of Home Inspectors;
    2. The Home Inspectors of Tennessee Association;
    3. The National Association of Certified Home Inspectors;
    4. The National Association of Home Inspectors; and
    5. The American Home Inspection Association.
  3. The commissioner may seek relief at law or equity to restrain or enjoin any act or practice in violation of this part or of any rule promulgated under this part. Jurisdiction is conferred upon the chancery and circuit courts of this state to hear and determine such a suit. No bond shall be required for the prosecution of the suit or for the issuance of an injunction.

Acts 2005, ch. 65, § 4; 2009, ch. 181, §§ 1, 2.

62-6-304. License requirement.

It is unlawful for any person, directly or indirectly, to engage in or conduct or to advertise or claim to be engaging in or conducting the business or acting in the capacity of a home inspector as defined in this chapter, within this state, without first obtaining a home inspector license as provided in this part.

Acts 2005, ch. 65, § 5.

62-6-305. Application for licensure — Prerequisites and qualifications.

Any person who applies for licensure as a home inspector must submit an application on a form prescribed by the commissioner. The application shall be accompanied by the fee specified in § 62-6-303. Applicants for licensure shall furnish evidence satisfactory to the commissioner that the applicant:

  1. Is at least eighteen (18) years of age;
  2. Has graduated from high school or earned a general education development (GED(R)) certificate;
  3. Has not been convicted of a crime that has a direct bearing on the applicant's ability to perform competently and fully as a licensee;
  4. Is not the subject of a disciplinary or enforcement action by another state or a local jurisdiction in connection with the performance of home inspections or the licensing or certification of home inspectors;
  5. Has successfully completed ninety (90) hours of a commissioner-approved training program or course of study involving the performance of home inspections and the preparation of home inspection reports;
  6. Has passed a commissioner-approved competency examination administered by the state or an entity selected by the state; and
  7. Has obtained a certificate of insurance in an amount required by the commissioner for general liability as well as errors and omissions to cover all activities contemplated under this part.

Acts 2005, ch. 65, § 6; 2006, ch. 959, § 1.

Code Commission Notes.

Former subsection (b), concerning the issuance of licenses during the first one hundred eighty days after July 1, 2006, was deleted as obsolete by the code commission in 2009.

62-6-306. Issuance of license — Expiration — Roster of licensees — Notification of changes.

  1. If the commissioner determines that an applicant meets the requirements of this part and is qualified for a home inspector license, the commissioner shall issue a license to the applicant that shall expire two (2) years following the date of issuance, unless revoked or suspended prior to the expiration date. The expiration date of the license shall appear on the license and no other notice of its expiration need be given to its holder. The commissioner shall maintain a roster, which shall be made available to the public, showing the name and place of business of each home inspector currently licensed. A licensee shall notify the commissioner immediately of any change of name, name under which the licensee conducts business or business address.
  2. An action taken under this section shall be subject to the applicable provisions of the Fresh Start Act that are compiled in chapter 76, part 1 of this title.

Acts 2005, ch. 65, § 7; 2018, ch. 745, § 6.

62-6-307. License renewal — Inactive status.

  1. To renew a current, valid home inspector license, the holder of the license shall submit an application on a form prescribed by the commissioner. The application for renewal shall be accompanied by the fee specified in § 62-6-303. All documentation and fees that are prerequisite to the renewal of a license shall be delivered to the commissioner prior to the expiration date of the license then held.
  2. Applicants for license renewal shall furnish evidence satisfactory to the commissioner that the applicant has:
    1. Completed thirty-two (32) hours of commissioner-approved continuing education;
    2. Not violated this part or any rules and regulations promulgated under this part; and
    3. Obtained a certificate of insurance in an amount required by the commissioner for general liability, as well as errors and omissions, to cover all activities contemplated under this part.
  3. The commissioner may refuse to renew any license if the licensee has continued to perform home inspections in this state following the expiration of the license.
  4. The license of any home inspector who fails timely to pay a renewal fee or to comply with any prerequisite or condition to licensure or renewal may be reinstated without examination within sixty (60) days after the expiration date of the license upon providing proof of compliance with the prerequisites or conditions, including payment of any penalty fee arising from failure to comply with any prerequisite or condition to renewal prior to the expiration date of the license, and payment of the renewal fee, plus an additional penalty fee of not more than twenty-five dollars ($25.00) per month. Any person desiring reinstatement thereafter must reapply for licensure; provided, that the commissioner has the discretion to:
    1. Waive reexamination or additional education requirements for such an applicant; or
    2. Reinstate a license subject to the applicant's compliance with reasonable conditions that the commissioner may prescribe, including payment of a penalty fee, in addition to the penalty fee provided in this subsection (d), of not more than twenty-five dollars ($25.00) per month or portion of a month, from the time the license expired.
  5. When fees are remitted by mail to the commissioner, the date of payment shall be determined by the official postmark on the mail.
    1. A licensee may request that his license be placed in an inactive status by making application to the commissioner and paying the applicable fee. A licensee whose license is inactive may not directly or indirectly engage in or conduct, or advertise or claim to be engaging in or conducting the business, or acting in the capacity of a home inspector as defined in § 62-6-302, governing home inspectors in this state. No continuing education shall be required for renewal of an inactive license. Licensees holding an inactive license are not required to maintain general liability or errors and omissions insurance. Inactive licenses shall be renewed biannually.
      1. A license that is inactive may be reactivated upon application to the commissioner.
      2. The licensee shall submit an application for reinstatement on a form as prescribed by the commissioner, accompanied by:
        1. A fee as prescribed by the commissioner;
        2. A certificate of insurance in an amount required by the commissioner for general liability and errors and omissions, to cover all activities contemplated under this part; and
        3. Evidence satisfactory to the commissioner that the applicant has not violated this part or any rules or regulations promulgated pursuant to this part during the period the license was inactive.
      3. If more than two (2) years have passed since the license was placed in an inactive status, the applicant shall, in addition to the requirements set forth in subdivision (f)(2)(B), also furnish evidence satisfactory to the commissioner that the applicant has completed thirty-two (32) hours of commissioner-approved continuing education during the twenty-four (24) months immediately preceding the date of application for reinstatement.

Acts 2005, ch. 65, § 8; 2009, ch. 279, § 5; 2010, ch. 666, § 2.

62-6-308. Disciplinary powers of commissioner.

  1. The commissioner may take disciplinary action against a licensee or applicant, deny an application for a license, assess a civil penalty of up to one thousand dollars ($1,000) per violation, or may suspend, revoke, or refuse to issue or renew a license when a licensee performs or attempts to perform any of the following acts:
    1. Accepting or offering commissions or allowances, directly or indirectly, from or to parties other than the client, unless fully disclosed to the client in writing;
    2. Performing or offering to perform repair or maintenance work on a property the licensee has inspected in the preceding twelve (12) months;
    3. Using a home inspection with the intention to obtain work in another field or profession;
    4. Accepting compensation, financial or otherwise, from more than one (1) interested party for the same service without the consent of all interested parties;
    5. Failing to disclose to the client any financial interest or any relationship that may affect the client's interest;
    6. Disclosing information concerning the results of a home inspection without the approval of the client or the client's legal representative, except under a court order;
    7. Knowingly making a false or misleading representation about:
      1. The condition of a residential dwelling for which the licensee has performed or has contracted to perform a home inspection; or
      2. The extent of the services the licensee has performed or will perform;
    8. Committing a felony offense that bears directly on the person's fitness to practice competently, as determined by the commissioner. However, an action taken under this subdivision (a)(8) shall be subject to the applicable provisions of the Fresh Start Act that are compiled in chapter 76, part 1 of this title;
    9. Violating any provisions of this part or rules promulgated by the commissioner under this part;
    10. Making a false or misleading representation:
      1. In a license or renewal application form; or
      2. In information provided to the commissioner;
    11. Failing to pay any fees or fines required by this part;
    12. Failing to continuously maintain the insurance required by this part;
    13. Communicating to the public false or misleading information about the type of license held by the licensee;
    14. Engaging in a course of lewd or immoral conduct in connection with the delivery of services to clients; or
    15. Failing to complete the continuing education requirements established by the commissioner.
  2. The commissioner is authorized to issue citations against persons engaging in or conducting the business or acting in the capacity of a home inspector as defined in this part without a license in violation of § 62-6-304. The commissioner shall promulgate rules and regulations to specify those conditions necessary to the issuance of a citation and the range of penalties for violations of this part. Each citation shall:
    1. Be in writing and shall describe with particularity the basis for the citation; and
    2. Contain an order to cease all violations of this part and an assessment of a civil penalty in an amount not less than fifty dollars ($50.00) nor more than one thousand dollars ($1,000) per violation.
  3. The sanctions authorized pursuant to this part shall be in addition to any other remedies, civil and criminal, available to any person harmed by a violation of this part.
  4. The Uniform Administrative Procedures Act, compiled in title 4, chapter 5, governs all matters and procedures respecting the hearing and judicial review of any contested case arising under this part.

Acts 2005, ch. 65, § 9; 2017, ch. 226, § 4; 2018, ch. 745, § 7.

NOTES TO DECISIONS

1. Duty to Third Parties.

Trial court properly granted summary judgment to a home inspector because, while he failed to report the improper construction of a deck railing, the inspector did not owe a legal duty to a guest who fell from the deck when the railing collapsed where, inter alia, the guest was not a person for whose benefit and guidance the inspector intended to supply the information in the report, the inspector and the inspection company had no reason to suspect that the home inspection report was necessary for the protection of a third person, the Home Inspector License Act and the agreement between the inspector and the owner did not permit third parties to see or rely upon the home inspection report. Grogan v. Uggla, — S.W.3d —, 2015 Tenn. App. LEXIS 768 (Tenn. Ct. App. Sept. 22, 2015), aff'd, — S.W.3d —, 2017 Tenn. LEXIS 725 (Tenn. Nov. 21, 2017).

Part 4
Limited Licensed Plumbers' Act of 2004

62-6-401. Short title.

This part shall be known and may be cited as the “Limited Licensed Plumbers' Act of 2004.”

Acts 2004, ch. 826, § 2.

Compiler's Notes. Acts 2004, ch. 826, § 19 provided that the funding for the act shall not exceed the amount required to perform services required pursuant to the act.

62-6-402. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Board” means the state board for licensing contractors pursuant to § 62-6-104;
  2. “Fixtures” includes, but is not limited to, toilets, sinks, tubs, whirlpool tubs, hot tubs and any faucets or water supply lines used in conjunction with the fixtures;
  3. “General maintenance work” means installing home appliances and making minor repairs to home appliances and kitchen and bathroom fixtures where the labor cost related to the installation or minor repairs does not exceed five hundred dollars ($500);
  4. “Home appliances” means any appliance using water or connected to a water line, including, but not limited to, water heaters, dishwashers, garbage disposals, washers, icemakers and other similar appliances; provided, that the energy source is not changed from electric to gas or from gas to electric;
  5. “Limited licensed plumber” means any person who performs any plumbing work that has a total cost of less than twenty-five thousand dollars ($25,000) and who is required to be registered under this part; and
  6. “Plumbing work” means the construction, alteration, repair, improvement, movement, demolition, putting up, tearing down or furnishing of labor to install material or equipment within any residential or commercial building of all piping, fixtures and appliances for the supply of gas, water, liquids or disposal of waste water or sewage; provided, that there is no intent to require licensure under this part for plumbing work performed outside a residential or commercial building, including, but not limited to, utility connections or irrigation systems.

Acts 2004, ch. 826, § 3; 2006, ch. 570, § 2; 2007, ch. 54, § 1.

Compiler's Notes. Acts 2004, ch. 826, § 19 provided that the funding for the act shall not exceed the amount required to perform services required pursuant to the act.

62-6-403. Construction.

Nothing in this part shall be construed to provide that a limited licensed plumber is a contractor. It is the intent of this part to provide that a limited licensed plumber is subject to the jurisdiction of the board solely for the purposes of licensure and disciplinary proceedings. No limited licensed plumber shall be authorized to use the appellation “contractor” or any other designation that gives or is designed to give the impression that a limited licensed plumber is a contractor unless the limited licensed plumber also holds a valid contractor's license issued by the board.

Acts 2004, ch. 826, § 4.

Compiler's Notes. Acts 2004, ch. 826, § 19 provided that the funding for the act shall not exceed the amount required to perform services required pursuant to the act.

62-6-404. Licensure.

  1. Except as provided in subsection (b):
    1. Any person engaged in plumbing work in this state shall be required to submit evidence of qualification to engage in plumbing and shall be licensed as provided in this part;
    2. It is unlawful for any person to engage in or offer to engage in plumbing work in this state unless the person has been duly licensed under this part or licensed in a municipality or county that issues licenses to persons to perform plumbing work only in that municipality or county; and
    3. Any person engaged in plumbing work, including a person who engages in plumbing work on residential construction on private property for the purpose of resale, lease, rent or any other similar purpose, shall be required to submit evidence of qualification to engage in plumbing work and shall be licensed.
    1. A person who does not have a license is authorized to engage in plumbing work only if employed by a licensed plumber, a licensed plumbing contractor or any other entity approved by the board.
    2. Any single residence homeowner is exempt from the limited licensed plumbing requirements of this part for purposes of performing plumbing work on the homeowner's own residence.
    3. Any person who holds a license issued by the commissioner of commerce and insurance as either a manufactured home installer or a manufactured home retailer pursuant to § 68-126-404 does not have to obtain a separate license as a limited licensed plumber in order to perform plumbing work on a manufactured home as defined in § 68-126-202; provided, that the work is related to the set-up, as defined by § 68-126-402, of a manufactured home or performed in connection with a manufacturer's warranty covering a manufactured home.
    4. Any person who holds a license issued by the commissioner of commerce and insurance as a manufactured home manufacturer pursuant to § 68-126-206 does not have to obtain a separate license as a limited licensed plumber in order to perform plumbing work on a manufactured home as defined in § 68-126-202; provided, that the work is related to the construction of a manufactured home or performed in connection with a manufacturer's warranty covering a manufactured home.
    5. Any person who holds a license issued by the commissioner of commerce and insurance to manufacture or install modular building units pursuant to § 68-126-305 does not have to obtain a separate license as a limited licensed plumber to perform plumbing work on a modular building unit as defined in § 68-126-303; provided, that the work is related to the construction or installation of a modular building unit or performed in connection with a manufacturer's warranty covering a modular building unit.
    6. No person is required to obtain a license issued pursuant to this part to do general maintenance work within a residence.
    7. A dealer, as defined by and licensed pursuant to title 68, chapter 135, part 1, and its authorized officers and employees do not have to obtain a license as a limited licensed plumber to perform plumbing work related to the provision of liquefied petroleum gas to or within any residential or commercial building.
    8. An operator, as defined by 49 CFR 192.3, and its authorized officers and employees do not have to obtain a license as a limited licensed plumber to perform plumbing work related to the provision of natural or commingled gas or its applications to or within any residential, industrial or commercial building.

Acts 2004, ch. 826, § 5; 2006, ch. 570, § 1; 2007, ch. 54, § 2; 2007, ch. 136, § 1.

Compiler's Notes. Acts 2004, ch. 826, § 19 provided that the funding for the act shall not exceed the amount required to perform services required pursuant to the act.

62-6-405. Rules and regulations — Forms.

  1. The board may promulgate rules and regulations in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, that it deems necessary to effectuate this part.
  2. The board may also prescribe forms required for the administration of this part.

Acts 2004, ch. 826, § 6.

Compiler's Notes. Acts 2004, ch. 826, § 19 provided that the funding for the act shall not exceed the amount required to perform services required pursuant to the act.

62-6-406. Application to work as a limited licensed plumber — Examination — Exemptions — Municipal and county licenses — Plumbing inspection.

    1. If a person was not engaged in plumbing work prior to January 1, 2006, after that date, once a person obtains a minimum of one (1) year of plumbing experience satisfactory to the board as required in this part, the person desiring to engage in plumbing work as a limited licensed plumber in this state shall make written application to the board on forms prescribed by the board. The application shall be accompanied by a nonrefundable application fee.
    2. If the application is satisfactory to the board, then the applicant is entitled to take an examination to determine the applicant's qualifications. The board shall charge each applicant an examination fee as set by the board for each examination. The applicant is entitled to an examination to determine the applicant's qualifications. The examination may be written or oral, or both.
    3. If the results of the examination of an applicant are satisfactory to the board, then the board may issue to the applicant a license authorizing the applicant to perform plumbing services as provided in this part and charge a fee for the license.
    4. In addition, if a person was not engaged in plumbing work prior to January 1, 2006, after that date, the board may also issue a license without an examination to a person who has been issued a license by a municipality or county if the person has obtained the minimum of one (1) year of plumbing experience in that municipality or county; provided, that the test required by the municipality or county is satisfactory to the board. In such case, the examination fee shall be waived by the board. The license issued to the person shall indicate that the person is not automatically permitted to work in any municipality or county that issues its own license to engage in plumbing work in that municipality or county.
    5. Except as provided in subsection (h), if a person was not engaged in plumbing work prior to January 1, 2006, after that date, if the license for a limited licensed plumber was issued to a person pursuant to subdivision (a)(2) or (a)(4), once the person submits credible evidence to the board that the person has a minimum of two (2) years of plumbing experience satisfactory to the board, the board shall issue a license to the person, if the application is satisfactory to the board, that permits the person to perform plumbing services in any municipality, metropolitan government or county in this state, as provided by § 62-6-111(i); provided, however, that for purposes of this subdivision (a)(5), the licensee shall pay any local licensing fees in effect on the date the license issued pursuant to this subdivision (a)(5) is applied for.
  1. The board may issue a license as a limited licensed plumber to any person without an examination as required by this part, if the person makes an application to the board prior to August 1, 2006, and provides evidence to the board that the person had obtained the minimum one (1) year of plumbing experience prior to January 1, 2006, satisfactory to the board. The license issued to the person shall indicate that the person is not automatically permitted to work in any municipality or county that issues its own license to engage in plumbing work in that municipality or county.
    1. Except as provided in subsection (b), applications for a license after January 1, 2006, shall provide proof of experience as required by the board; and the plumbing experience shall not be less than one (1) year of plumbing experience satisfactory to the board.
    2. The board shall promulgate rules and regulations that establish uniform criteria to govern the issuance of licenses by the board. The board shall have discretionary authority in individual cases to modify criteria for an applicant, if the public safety and welfare clearly require modification and if the board furnishes the applicant with a written statement justifying the modification; provided, that the minimum one (1) year of plumbing experience satisfactory to the board shall not be waived or modified.
  2. The exemption provisions on licensure of subdivisions (a)(2) and (a)(3) of § 62-6-103 shall apply to limited licensed plumbers.
    1. Notwithstanding any provision of this part to the contrary, a license as a limited licensed plumber shall not be required for a person to engage in plumbing work in any municipality or county that issues licenses to persons to perform plumbing work only in that municipality or county; provided, that the plumbing work may be used toward accumulating the minimum one (1) year of experience required to obtain licensure as a limited licensed plumber.
    2. A current copy of a license or certification issued to a person who was engaged in plumbing work prior to January 1, 2006, by any county or municipality of this state prior to August 1, 2006, is evidence that the applicant had, by examination by an official of the county or municipality, demonstrated the qualifications required to perform plumbing work within its jurisdiction and was actively engaged in that business on January 1, 2006.
  3. Any limited licensed plumber required by this part to be licensed, who requests a plumbing inspection, must first have a license as a limited licensed plumber issued by the board or a license issued by a municipality or county. If a municipality or county provides plumbing inspection services, then the plumbing inspection shall be provided by the municipality or county.
    1. The board shall formulate a system for inspectors when the plumbing inspection services are not provided by a municipality or county to report any problems they may encounter with the workmanship or conduct of a limited licensed plumber. The system shall include the use of inspectors who are employed by the board under § 62-6-107(b).
    2. Inspectors working under the direction of the contractor's licensing board shall inspect a limited licensed plumber's work no later than the time of the rough electrical inspection and the work shall be found to be either satisfactory or unsatisfactory and requiring remedial work.
    3. The board shall formulate an appropriate system and fee structure to be charged for inspections performed by inspectors working under the direction of the contractor's licensing board to effectuate the inspection provisions of this part within five (5) years after January 1, 2006.
  4. Notwithstanding subsections (a)-(g), nothing in this part shall prohibit a city or county from adopting and enforcing stricter testing or experience requirements, or both, for a person to engage in plumbing work within the jurisdiction of the city or county; provided, however, that once an individual passes the license issued by the board to perform plumbing services statewide and the individual meets the stricter requirements, then the individual may perform plumbing services in any municipality, metropolitan government or county in this state.

Acts 2004, ch. 826, § 7; 2006, ch. 570, §§ 3-9; 2017, ch. 454, § 5.

Compiler's Notes. Acts 2004, ch. 826, § 19 provided that the funding for the act shall not exceed the amount required to perform services required pursuant to the act.

Attorney General Opinions. General assembly may constitutionally authorize municipalities to enact more stringent plumbers’ licensing requirements than those found in the general law, OAG 05-082, 2005 Tenn. AG LEXIS 82 (5/13/05).

62-6-407. Hearing and judicial review of contested cases.

The Uniform Administrative Procedures Act, compiled in title 4, part 5, governs all matters and procedures respecting the hearing and judicial review of any contested case arising under this part.

Acts 2004, ch. 826, § 8.

Compiler's Notes. Acts 2004, ch. 826, § 19 provided that the funding for the act shall not exceed the amount required to perform services required pursuant to the act.

62-6-408. Fees.

    1. The board shall prescribe fees for the application, examination, issuance, and renewal of licenses of limited licensed plumbers. The fees, together with the fees prescribed for limited licensed electricians pursuant to chapter 6, part 1 of this title, shall be in an amount that provides for the cost of administering the licensing and regulation of limited licensed plumbers and limited licensed electricians.
    2. The fees collected by the board as described in subdivision (a)(1) shall be combined with fees collected for the licensing of limited licensed electricians, pursuant to chapter 6, part 1 of this title. These fees shall be used to defray expenses incurred in the administration of the licensing of limited licensed plumbers, pursuant to this part, and limited licensed electricians, pursuant to chapter 6, part 1 of this title.
    3. Fees for limited licensed plumbers shall be adjusted as necessary to provide that the limited licensed electricians and plumbers fund is fiscally self-sufficient and that revenues from fees do not exceed necessary and required expenditures.
    4. On July 1, 2015, all funds held by the state treasurer for the administration of the licensing of limited licensed plumbers shall be combined with all funds held for the administration of the licensing of limited licensed electricians, pursuant to chapter 6, part 1 of this title.
  1. In no event shall the fee for an initial license exceed seventy-five dollars ($75.00) or fifty dollars ($50.00) for subsequent renewal of the license.

Acts 2004, ch. 826, § 9; 2015, ch. 291, § 7.

Compiler's Notes. Acts 2004, ch. 826, § 19 provided that the funding for the act shall not exceed the amount required to perform services required pursuant to the act.

62-6-409. Violations — Refusal to issue or renew license — Revocation or suspension of license — Civil penalty.

  1. The board may refuse to issue or renew a license and revoke or suspend the license of a limited licensed plumber for faulty plumbing workmanship as determined by the board or for gross negligence, incompetency, fraud, dishonest dealing or misconduct in performing plumbing work.
  2. The board may refuse to issue or renew a license and revoke or suspend a license of any person for lack of expertise, submission of false evidence with regard to any application for license or renewal, conviction of a felony, or any other conduct that constitutes improper, fraudulent or dishonest dealing or any other violation of this part.
  3. In addition to or in lieu of any other lawful disciplinary action, the board may assess a civil penalty against any limited licensed plumber or any person required to be licensed as a limited licensed plumber for each separate violation of this part.

Acts 2004, ch. 826, § 10.

Compiler's Notes. Acts 2004, ch. 826, § 19 provided that the funding for the act shall not exceed the amount required to perform services required pursuant to the act.

62-6-410. Duplicate license.

A duplicate license to replace any license lost, destroyed or mutilated may be issued subject to the rules and regulations of the board.

Acts 2004, ch. 826, § 11.

Compiler's Notes. Acts 2004, ch. 826, § 19 provided that the funding for the act shall not exceed the amount required to perform services required pursuant to the act.

62-6-411. Expiration — Renewal — Fee for delayed renewal.

  1. A license expires on the last day of the twenty-fourth month following its issuance or renewal and becomes invalid on that date unless renewed.
  2. Renewal notices shall be mailed ninety (90) days prior to the expiration date of the license. The renewal must be received by the board thirty (30) days prior to the expiration of the license and shall be accompanied by a renewal fee.
  3. It is the duty of the board to notify by mail every person licensed under this part of the date of expiration of the license and the amount of fee required for its renewal. The notice shall be mailed in accordance with this part.
  4. The fee to be paid for the renewal of a license after the expiration date shall be increased ten percent (10%) for each month or fraction of a month that payment for renewal is delayed. The maximum fee for a delayed renewal shall not exceed twice the normal fee.
  5. No limited licensed plumber shall be qualified to receive a renewal license when the limited licensed plumber has failed to comply with this part for a period of ninety (90) days; and in that event, the limited licensed plumber, in order to qualify under the law, shall make a new application as in the case of the issuance of the original license.

Acts 2004, ch. 826, § 12; 2006, ch. 570, § 10.

Compiler's Notes. Acts 2004, ch. 826, § 19 provided that the funding for the act shall not exceed the amount required to perform services required pursuant to the act.

62-6-412. Violations.

Any person who engages or offers to engage in plumbing work without a license as required by this part or who violates this part or any rule or regulation duly promulgated under this part commits a Class A misdemeanor.

Acts 2004, ch. 826, § 13.

Compiler's Notes. Acts 2004, ch. 826, § 19 provided that the funding for the act shall not exceed the amount required to perform services required pursuant to the act.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

62-6-413. Inquiry into identity.

The board shall inquire into the identity of any person operating under this part and shall prosecute any person violating this part.

Acts 2004, ch. 826, § 14.

Compiler's Notes. Acts 2004, ch. 826, § 19 provided that the funding for the act shall not exceed the amount required to perform services required pursuant to the act.

62-6-414. Injunctions — Incurred expenses.

  1. In order to secure the effective enforcement of this part, jurisdiction is conferred on the chancery courts of this state to grant injunctive relief against any person or legal entity undertaking to perform plumbing work in violation of this part.
  2. Any expenses incurred, such as depositions, travel expenses or attorney fees required for the prosecution of the suit, shall be paid in the same manner as other expenses incurred by the board.

Acts 2004, ch. 826, § 15.

Compiler's Notes. Acts 2004, ch. 826, § 19 provided that the funding for the act shall not exceed the amount required to perform services required pursuant to the act.

62-6-415. Bonds.

No person shall be required to post a bond or provide a financial statement in order to obtain a license as a limited licensed plumber.

Acts 2004, ch. 826, § 16; 2006, ch. 570, § 11.

Compiler's Notes. Acts 2004, ch. 826, § 19 provided that the funding for the act shall not exceed the amount required to perform services required pursuant to the act.

62-6-416. Applicability.

This part does not apply to any county having a population, according to the 2000 federal census or any subsequent federal census, of:

not less than  nor more than

7,600  7,700

7,900  7,970

11,300 11,368

11,700 11,800

12,369 12,450

16,500 16,575

17,900 18,000

22,200 22,300

25,450 25,550

29,400 29,450

31,100 31,200

32,300 32,500

34,800 34,900

39,900 40,000

43,100 43,200

Acts 2004, ch. 826, §§ 17, 18.

Compiler's Notes. Acts 2004, ch. 826, § 19 provided that the funding for the act shall not exceed the amount required to perform services required pursuant to the act.

For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Part 5
Home Improvement Contractors

62-6-501. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Actual loss” means amounts paid or payable for the cost of restoration, repair, replacement or completion of work performed in a poor or unworkmanlike manner or that is otherwise inadequate or incomplete;
  2. “Board” means the state board for licensing contractors;
  3. “Claimant” means an owner who:
      1. Resides in a residence or dwelling unit with respect to which a claim is made; or
      2. Owns not more than four (4) residences or dwelling units; and
    1. Makes a claim against the bond;
    1. “Home improvement” means the repair, replacement, remodeling, alteration, conversion, modernization, improvement or addition to any land or building, or that portion of the land or building, that is used or designed to be used as a residence or dwelling unit for one (1), two (2), three (3) or four (4) dwelling units, and includes the construction, replacement or improvement of driveways, swimming pools, porches, garages, landscaping, fences, fall-out shelters, roofing, painting and other improvements to structures or upon land that is adjacent to a dwelling house for one (1), two (2), three (3) or four (4) dwelling units. Without regard to the extent of affixation, “home improvement” includes the installation of central heating or air conditioning systems, storm windows or awnings;
    2. “Home improvement” does not include:
      1. The construction of a new home building or work done by a contractor in compliance with a guarantee of completion of a new building project;
      2. Any home improvement for which the contract price is three thousand dollars ($3,000) or less;
      3. The sale of goods or materials by a seller who neither arranges to perform nor performs directly or indirectly any work or labor in connection with the installation of or application of the goods or materials, including the incidental installation of the goods or materials; provided, that the installation does not involve alterations to the structure of the building or its plumbing or wiring;
      4. Any replacement, installation or connection of appliances to existing exposed plumbing lines that requires alteration of the existing lines;
      5. The replacement, installation and connection of dishwashers, disposals and refrigerators with icemakers to existing exposed household plumbing lines; or
      6. The replacement, installation and connection of dryers; or
      7. Interior design services that are services in connection with the design, utilization, furnishing or fabrication of elements in interior spaces of buildings and related structures and includes, without being limited to, any or all of the following:
  1. Identifying, researching or creatively solving problems pertaining to the function and quality of interior space;
  2. Performing services to include consultations, programming, design analysis, drawings, specifications and installations in connection with space utilization, the specification of fixtures and their location, furnishings, reflected ceiling plans and the fabrication of nonstructural elements of interior spaces of buildings, excluding those services specified by law to require other licensed professionals, such as the design of mechanical, plumbing, electrical and load-bearing structural systems; and
  3. Preparing drawings and documents relative to the design of interior spaces;

“Home improvement contract” means an agreement between a contractor and an owner for the performance of home improvement, and includes all labor, services and materials to be furnished and performed under the agreement;

“Home improvement contractor” means any person, other than a bona fide employee of the owner, who undertakes or offers to undertake or agrees to perform any home improvement for the owner, whether or not the person is licensed or subject to the licensing requirements of this chapter;

“Licensee” means a person licensed to engage in the home improvement business under this part;

“Owner” means any homeowner, tenant or any other person who orders, contracts for or purchases the home improvement services of a contractor or the person entitled to the performance of the work of a contractor pursuant to a home improvement contract;

“Person” includes an individual, partnership, corporation, trust, association, owner, contractor, salesperson or any other legal entity; and

“Subcontractor” means any person other than a materialman or laborer who enters into a contract with a contractor for the performance of any part of the contractor's contract or who enters into a contract with any subcontractor for the performance of any part of the subcontractor's contract and who does not perform work other than as a subcontractor.

Acts 2007, ch. 460, § 2.

62-6-502. Prohibited activities.

  1. No person may engage in or transact any home improvement business, represent to the public as doing home improvement business or offer to transact any home improvement business in this state, except in compliance with the applicable provisions of this part. No person, whether subject to licensing by any law or otherwise, may engage in this state in any trade practice or other act that is prohibited by this part. Every person who willfully participates in a prohibited act or violation with knowledge of the prohibited act or violation is subject to the criminal penalty for the prohibited act or violation. This part may not be waived by agreement.
    1. No person shall maintain, own, operate or transact a home improvement business unless a license is first obtained as prescribed  in this part.
    2. An applicant for a home improvement contractor's license shall establish that the applicant is the real owner and possesses title to, or is entitled to, the possession of the establishment and will conduct, operate, engage in and transact a home improvement business.

Acts 2007, ch. 460, § 2.

62-6-503. Local licensing prohibited — License number required for permitting — Treble damages.

  1. No county or municipality of this state may require that any person obtain an additional authorization or license to transact a home improvement business in that county or city. Nothing contained in this subsection (a) prohibits counties, municipalities or metropolitan governments from requiring licenses for persons performing plumbing work, electrical work or gas and mechanical work.
  2. A license issued pursuant to this part may not be construed to authorize the licensee to perform any particular type of work or kind of business that is reserved to qualified licensees under separate state or local law.
  3. Nothing in this part may be construed to limit or restrict the power of a municipality or county to regulate the quality, performance or character of work of home improvement contractors, including a system of permits and inspections that are designed to secure compliance with and aid in the enforcement of applicable state and local building laws or to enforce other laws necessary for the protection of the public health and safety. Nothing in this part limits the power of a municipality or county to adopt any system of permits requiring submission to and approval by the municipality or county of plans and specifications for an installation prior to the commencement of construction of the installation or of inspection of work done; provided, that nothing in this section may be construed as authorizing a municipality or county to enact ordinances or regulations relating to the qualifications necessary to engage in the home improvement business. Nothing contained in this section prohibits counties, municipalities or metropolitan governments from requiring licenses for persons performing plumbing work, electrical work or gas and mechanical work.
  4. Except for a permit for any home improvement work to be performed by the owner of property, a municipality or county may not issue a permit for any home improvement work unless the permit lists each contractor's home improvement license number.
  5. Any person subject to this part who engages in construction or the home improvement business without a license shall, in any tort action arising out of the construction or home improvement business, be subject to the awarding of treble damages.

Acts 2007, ch. 460, § 2.

62-6-504. Licensing fees.

  1. No license may be issued or become effective until the applicant pays all required fees as set by the board for licensing contractors. The biennial license fee shall not exceed two hundred fifty dollars ($250).
  2. The fee for issuing a duplicate license for one lost, destroyed or mutilated shall be set by the board.
  3. The fee for copies of documents on file in the commissioner's office is two dollars ($2.00) per page.

Acts 2007, ch. 460, § 2.

62-6-505. Exemption from licensing requirements.

  1. No home improvement contractor's license may be required of any person when acting in the particular capacity or particular type of transaction set forth in this section:
    1. An individual who performs labor or services for a home improvement contractor or subcontractor for wages or salary;
    2. A plumber, electrician, architect or any other person who is required by state or local law to attain standards of competency or experience as a prerequisite to engaging in a craft or profession, and who is acting exclusively within the scope of the craft or profession for which the person is currently licensed pursuant to such other law. The installation of central heating or air conditioning systems by such a person shall be deemed within the scope of the person's craft or profession;
    3. Any retail clerk, clerical employee, salesperson or other employee of a licensed home improvement contractor;
    4. Any residential or commercial contractor who holds a valid license issued pursuant to this chapter and is engaged in contracting within the terms and conditions of the license; or
    5. An interior designer performing services as set forth in § 62-6-501(4)(B)(vii).
  2. A homeowner may secure a permit without a state license to do any improvements on the homeowner's own properties; however, in so doing, the homeowner shall have no claim to the fund.

Acts 2007, ch. 460, § 2.

62-6-506. Application procedure for licensing — Temporary licenses — Expiration.

  1. An application for an original license required by this part shall be in writing on a form prescribed by the board. The board may seek from an applicant information pertinent to the applicant's character, experience, financial stability and other information deemed necessary in order to evaluate the applicant's qualifications to be licensed pursuant to this part.
  2. The applicant shall file with the board information that includes, but is not limited to:
    1. A complete statement of the general nature of the applicant's home improvement contracting business or the applicant's duties;
    2. If the applicant is:
    3. A record of the previous experience of the applicant in the field of home improvements or other construction work, including dates and addresses where the applicant has resided and done business;
    4. Whether the applicant has ever been licensed in this state or any other state or has had a professional or a vocational license refused, suspended or revoked;
    5. Evidence of worker's compensation coverage pursuant to title 50, chapter 6 and evidence of general liability insurance, including the amount of the coverage, or submission to the board of a copy of the applicant's insurance policies or certificates of insurance issued by the carrier or self-insurer to the applicant indicating the date and duration of the coverage. Evidence of insurance coverage pursuant to this subdivision (b)(5) also shall be required to be submitted for renewal of licensure;
    6. Whether, in the five (5) years prior to the date of application, the applicant had any judgment rendered against the applicant in actions arising out of the field of home improvements or other construction work;
    7. Whether the applicant presently has outstanding judgments against the applicant in actions arising out of the field of home improvements or other construction work; and
    8. Whether the applicant is involved in pending litigation arising out of the field of home improvements or other construction work.
  3. The board shall prescribe and furnish appropriate forms in connection with the issuance, renewal or termination of licenses.
  4. Temporary licenses may be issued in accordance with rules or regulations adopted by the board to any applicant for a license who files an application in proper form and pays all required fees. A temporary license shall automatically expire at the time the board either refuses to issue or grants a license and shall be subject to termination at any time prior to action by the board.
  5. Unless revoked or suspended by the board, a license shall expire the last day of the twenty-fourth month from issuance and may be renewed upon payment of all required fees and upon completion of a statement indicating all material changes from the original application for a license.
  6. Every licensee, within thirty (30) days after change of control in ownership, management or a change of address or trade name, shall notify the board of the change.
  7. The board, at any time, may require:
    1. Reasonable information of an applicant or licensee; and
    2. The production of books and accounts and financial statements.
  8. An applicant for a home improvement contractor's license shall file with the board a surety bond or an irrevocable letter of credit in the amount of ten thousand dollars ($10,000) for the benefit of any person who is damaged because of the breach of the home improvement contract. Any person so damaged may sue directly on the bond without assignment thereof. The bond may not be construed to require any surety to be responsible for the completion of a home improvement contract entered into by the principal on the bond. The liability of the surety under any bond may not exceed in the aggregate the amount of the bond. If the bond ceases to be in effect, the home improvement contractor's license shall become invalid.

An individual, the applicant's name and address;

A partnership, the names and addresses of all partners;

A joint venture, the names and addresses of the parties to it; or

A corporation, the names and addresses of all officers;

Acts 2007, ch. 130, § 2; 2007, ch. 460, § 2; 2017, ch. 226, § 5.

Compiler's Notes. Acts 2007, ch. 130, § 2 amended this section as enacted by Acts 2007, ch. 460, § 2, by rewriting subdivision (b)(5), which read: “Evidence of workers' compensation coverage pursuant to title 50, chapter 6, or submission to the board of a copy of the applicant's insurance policy or a certificate of insurance issued by the carrier or self-insurer to the applicant indicating the date and duration of such coverage;”.

62-6-507. Expiration of licenses — Assignment and transfer — Renewal — Issuance of duplicate licenses.

  1. All licenses, except temporary licenses, shall expire the last day of the twenty-fourth month from the date of issuance.
  2. No license shall be assignable or transferable except as provided in this subsection (b). A license to conduct a home improvement business issued to an individual may be assigned or transferred for the remainder of the license period to a partnership or stockholder of a corporation owning not less than twenty-five percent (25%) of the outstanding stock at the time of assignment or transfer. A license issued to a partnership may be assigned or transferred for the remainder of the license period to any one (1) member of the partnership; provided, that the member obtains the consent of all of the other members of the partnership. The application for transfer or assignment shall be accompanied by proof satisfactory to the board that there has been compliance with the requirements of this subsection (b). No assignment or transfer shall become effective unless and until the endorsement of the transfer or assignment has been made on the face of the license by the commissioner and the license, so endorsed, has been returned to the assignee or transferee. All endorsements shall be made without payment of any fee.
  3. Any license, except a temporary license, that has not been suspended or revoked, may, upon the payment of the renewal fee prescribed by this part, be renewed for an additional period of twenty-four (24) months from its expiration, upon the filing of an application for renewal, on a form to be prescribed by the board. The form shall include a statement to be completed by the applicant indicating all material changes from the original application for a license. A penalty fee of ten dollars ($10.00) per month, not to exceed thirty dollars ($30.00), shall be assessed on any renewal application postmarked after the date of expiration. No renewal application shall be accepted more than ninety (90) days after the expiration of the license.
  4. A duplicate license may be issued for one lost, destroyed or mutilated upon application for a duplicate on a form prescribed by the board and the payment of the fee prescribed by this part. Each duplicate license shall have the word “duplicate” stamped across the face of the license and shall bear the same number as the one it replaces.

Acts 2007, ch. 460, § 2; 2008, ch. 1038, §§ 1, 2.

62-6-508. Requirements of home improvement contracts.

  1. Every home improvement contract shall:
    1. Be in legible writing and contain the complete agreement between the owner and the home improvement contractor;
    2. State the full names and addresses of all parties, the license number of the home improvement contractor, the date when executed by the parties and contain a description of the work to be done and the goods to be used;
    3. Be completed in full without any blank spaces to be filled in after the contract is signed by the owner and clearly describe any other documents that are to be incorporated and shall contain the following notice directly above the space provided for the signature of the owner:

      NOTICE TO OWNER: Do not sign this contract if blank. You are

      entitled to a copy of the contract at the time you sign.

    4. Contain the approximate dates when the work will begin and be substantially completed;
    5. Contain the agreed upon consideration for the work;
    6. Contain a notice that all home improvement contractors must be licensed by the board and that any inquiries about a contractor should be transmitted to the board's office;
    7. Contain all other matters upon which the parties lawfully agree; and
    8. Not contain any power of attorney to confess judgment.
  2. No sales person, agent or employee of the home improvement contractor shall be authorized to make any changes in the agreement on behalf of the owner.
  3. Contracts that fail to comply with the requirements of this section shall not be invalid solely because of noncompliance.

Acts 2007, ch. 460, § 2.

62-6-509. Grounds for loss of license.

  1. The board may refuse to issue or renew, or suspend or revoke a license under this part, if it finds that the applicant or licensee:
    1. Has made a material omission or misrepresentation of fact on an application for a license;
    2. Has failed to furnish information to the board concerning an application for a license as required by this part;
    3. Lacks competence to engage in the home improvement business, as evidenced by work performed in a poor and unworkmanlike manner or when the work involved is inadequate or incomplete;
    4. Has been convicted of a felony, is untrustworthy or not of good character;
    5. Has consistently failed to perform contracts, has manipulated assets or accounts or has engaged in fraud or bad faith; or
    6. Has violated this part or is performing or attempting to perform any act prohibited by this part.
  2. In addition to or in lieu of any lawful action taken under subsection (a), the board may assess a civil penalty of not more than one thousand dollars ($1,000) for each violation of this part. In determining whether to impose a civil penalty, the board shall consider the seriousness of the violation, the deleterious effect of the violation, any good faith on the part of the violator, and the violator's history of previous violations.
  3. Notwithstanding the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, relative to the amount of civil penalties that may be imposed, the commission may impose a civil penalty not to exceed one thousand dollars ($1,000) against any person who engages in unlicensed home improvement contracting.

Acts 2007, ch. 460, § 2; 2015, ch. 290, § 3.

Compiler's Notes. Acts 2015, ch. 290, § 6 provided that the act shall apply to all civil penalties that are assessed on or after April 24, 2015.

62-6-510. Prohibited acts.

The following acts are prohibited:

  1. Abandonment or willful failure to perform, without justification, any home improvement contract or project engaged in or undertaken by a contractor or willful deviation from or disregard of plans or specifications in any material respect without the consent of the owners;
  2. Making any substantial misrepresentation in the procurement of a home improvement contract or making any false promise of character likely to influence, persuade or induce;
  3. Any fraud in the execution of, or in the material alteration of, any contract, mortgage, promissory note or other document incident to a home improvement transaction;
  4. Preparing or accepting any mortgage, promissory note or other evidence of indebtedness upon the obligations of a home improvement transaction with knowledge that it recites a greater monetary obligation than the agreed consideration for the home improvement work;
  5. Willful or deliberate disregard and violation of the building, sanitary and health laws of this state or of any political subdivision of this state or of the safety, labor, or workers' compensation insurance laws of this state;
  6. Misrepresentation of a material fact by an applicant in obtaining or attempting to obtain a license;
  7. Failure to notify the board of any change of control in ownership, management or business name or location;
  8. Conducting a home improvement business in any name other than the one in which the contractor is licensed;
  9. Advertising in any manner that a licensee is licensed pursuant to this part, unless the advertisement includes an accurate reference to the appropriate current license number consisting of and limited to a form as prescribed by the board;
  10. Failure to comply with any order, demand or requirement lawfully made by the board pursuant to and within the authority of this part;
  11. The demand for or the receipt of any payments prior to the signing of a home improvement contract;
  12. Receipt at or before the time of execution of a contract of a deposit of more than one third (1/3) of the contract price, unless:
    1. The home improvement contract allows for the home improvement contractor to furnish a performance and payment bond, lien and completion bond or bond equivalent covering full performance and completion of the home improvement contract and the bond is furnished by the home improvement contractor; provided, that the amount of the bond or bond equivalent is not less than one percent (1%) of the net sales of the home improvement contractor's home improvement business with respect to the home improvement labor to be determined on an annual basis at January 1 of each year; or
    2. After being fully advised by the contractor in writing of the right to withhold final payment up to one hundred percent (100%) of payment before completion of the project, the owner elects to make final payment to the home improvement contractor for the project before completion for the owner's convenience or the parties agree on a schedule of payments to be made before, during and after completion of the project;
  13. Failure to obtain the necessary permits as required by any local jurisdiction;
  14. Making false or deceptive representations in any advertisement or solicitation for services or products that the services or products have sponsorship, approval, affiliation or connection with a bank, savings and loan association, savings bank or subsidiary or affiliate of a bank, savings and loan association or savings bank;
  15. Using the name or logo of any bank, savings and loan association, savings bank or subsidiary or affiliate of a bank, savings and loan association or savings bank, without the express written consent of the person whose name is used; and
      1. Having a controlling ownership interest in the lender providing a mortgage loan for home improvement for the work being performed by the home improvement contractor;
      2. Accepting anything of value for the referral of a borrower to the lender; or
      3. Being a cosigner or acting as a guarantor for a mortgage loan for home improvement;
    1. As used in subdivision (16)(A), “mortgage loan for home improvement” shall have the same meaning as defined in § 45-13-403(c).

Acts 2007, ch. 460, § 2.

62-6-511. False documentation.

Any person who accepts or receives a completion certificate or other evidence that performance of a home improvement contract is complete or satisfactorily concluded, with knowledge that the document is false and that the performance is not completed, or who utters, offers or uses the document in connection with the making or accepting of any assignment or negotiation of the right to receive any payment from the owner, under or in connection with a home improvement contract, or for the purpose of obtaining or granting any credit or loan on the security of the right to receive any payment, as mentioned in this section, knowing or having good reason to know the document to be false, commits a Class A misdemeanor.

Acts 2007, ch. 460, § 2.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

62-6-512. Criminal penalty.

Any person who owns, operates, conducts a home improvement business or procures a home improvement contract without a license pursuant to this part or who violates any of the provisions of this part, or having had a home improvement contractor's license suspended or revoked continues to engage in the business, commits a Class A misdemeanor. Each violation is deemed a separate offense.

Acts 2007, ch. 460, § 2.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

62-6-513. Powers and duties of board.

In addition to the powers and duties elsewhere prescribed in this part, the board may:

  1. Examine the qualifications and fitness of applicants for licenses under this part;
  2. Keep records of all licenses issued, suspended or revoked. These records shall be open to the public for inspection during regular business hours;
  3. Promulgate rules and regulations with respect to license applications, investigation and examination of applicants and their qualifications and any other matters incidental or appropriate to the board's powers and duties as prescribed by this part and for the proper administration and enforcement of this part and to amend or repeal any of the rules and regulations;
  4. Receive complaints from the public regarding home improvement contractors and maintain records of the complaints.

Acts 2007, ch. 460, § 2.

62-6-514. Issuance of injunctions.

If the board concludes that any continuing conduct by any person alleged to be in violation of this part may result in substantial or irreparable harm to any citizen of this state, the board may seek a permanent or temporary injunction with respect to the conduct from the circuit or chancery court of any county in which the alleged violation is occurring or in which the violator has its principal place of business.

Acts 2007, ch. 460, § 2.

62-6-515. Administrative procedures.

The Uniform Administrative Procedures Act, compiled in title 4, chapter 5, governs all matters and procedures respecting the hearing and judicial review of any contested case arising pursuant to this part.

Acts 2007, ch. 460, § 2.

62-6-516. Exemptions.

  1. This part does not apply to the official transactions of an authorized representative of the United States or an instrumentality of the United States, any state or territory of the United States, any municipality or county of a state or territory or any instrumentality of a state or a political subdivision of an instrumentality of a state.
  2. If home improvement contractors in a county are exempted from licensure under this chapter on July 1, 2007, due to a county exclusion, the legislative body of the county may, by a two-thirds (2/3) majority vote, elect to make this part applicable in the county. Any county electing to come within this part shall so notify the board.

Acts 2007, ch. 460, § 2.

62-6-517. Citations — Service — Appeal — Settlement of injuries prior to license.

  1. The executive director of the board, acting on behalf of the board, is authorized to issue citations against persons acting in the capacity of or engaging in the business of home improvement without a license in violation of this part. Each citation shall be in writing and shall describe with particularity the basis of the citation. Each citation shall contain an order to cease all violations of this part and an assessment of a civil penalty in an amount no less than fifty dollars ($50.00) nor more than one thousand dollars ($1,000).
  2. The board shall promulgate rules and regulations to specify those conditions necessary to the issuance of a citation and the range of penalties for violations of this part.
  3. The sanctions authorized by this part are in addition to any other remedies, civil and criminal, available to any person harmed by a violation of this part.
  4. Service of a citation issued pursuant to this section may be made by certified mail at the last known business address or residence address of the person cited.
  5. A citation issued pursuant to this section shall be issued by the executive director within one (1) year after the act or omission that is the basis for the citation.
  6. Any person served with a citation pursuant to this section may appeal to the executive director by written notice postmarked within fifteen (15) working days after service of the citation with respect to violations alleged, scope of the order, or amount of civil penalty assessed. If a person cited timely notifies the executive director that the person intends to contest the citation, the executive director shall afford an opportunity for a contested case hearing pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. After all administrative appeals have been exhausted, the executive director may apply to the appropriate court for a judgment in an amount of the civil penalty, plus applicable court costs, and for an order to cease activities in violation of this part. A certified copy of the final order of the board, hearing officer, or administrative judge or a certified copy of the unappealed citation shall constitute a sufficient showing to warrant the issuance of the judgment and order. The executive director may waive part of the civil penalty if the person against whom the civil penalty is assessed satisfactorily completes all the requirements for, and is issued, a license as a home improvement contractor.
  7. Any outstanding injury to the public shall be settled satisfactorily before a license as a home improvement contractor is issued.
  8. Section 62-6-509(c) and this section do not apply to the construction, repair or replacement of detached permanent structures designed for the storage of tools, farm implements, lawn care machinery, bulk products and other such items.

Acts 2007, ch. 460, § 2; 2015, ch. 290, §§ 4, 5.

Compiler's Notes. Acts 2015, ch. 290, § 6 provided that the act shall apply to all civil penalties that are assessed on or after April 24, 2015.

62-6-518. Civil penalty.

  1. After notice and an opportunity for a hearing, the board is authorized to impose a civil penalty in an amount not to exceed twenty-five thousand dollars ($25,000) per violation for a violation of § 62-6-510(3), (4) or (14). The penalty shall be in addition to any other penalty authorized pursuant to this part.
  2. In addition to the civil penalty authorized pursuant to subsection (a), a violation of § 62-6-510(3), (4) or (14) shall be construed to constitute an unfair or deceptive act or practice affecting the conduct of trade or commerce under the Tennessee Consumer Protection Act, compiled in title 47, chapter 18; and, as such, the private right of action remedy under that act shall be available to any person who suffers an ascertainable loss of money or property, real, personal, or mixed, or any other article, commodity or thing of value wherever situated as a result of a violation.

Acts 2007, ch. 460, § 2.

62-6-519. Transfer of staff.

The existing staff of the home improvement commission shall be transferred to the state board for licensing contractors.

Acts 2007, ch. 460, § 2.

62-6-520. Establishment of subcommittee on home improvement contractors.

  1. There is established a subcommittee whose focus shall be related to issues concerning home improvement contractors. The subcommittee shall act as an advisory committee concerning home improvement contractors and report all findings and recommendations concerning licensure and disciplinary actions relative to home improvement contractors to the board; provided, that all final decisions concerning those actions shall be decided by the board.
  2. All current members of the home improvement commission appointed pursuant to former § 62-37-116 [repealed] on or before July 1, 2007, shall serve as the initial subcommittee and the members shall serve until the term of the most recent appointee expires. The terms of every other member of the commission shall be extended to coincide with the expiration of the term of the most recent appointee. At the expiration of the terms, the subcommittee as constituted pursuant to this subsection (b) shall cease to exist, and the board shall appoint a new subcommittee of board members to focus on issues relating to home improvement contractors.
  3. The members of the subcommittee shall receive the same amount of compensation and reimbursement as received by board members for each day actually spent in the performance of their official duties.
  4. All issues concerning home improvement contractors shall be heard by the subcommittee, which shall, pursuant to subsection (a), report its findings and recommendations to the board for final disposition and action by the board concerning those findings and recommendations.

Acts 2007, ch. 460, § 2.

Compiler's Notes. Former § 62-37-116, referred to in this section, was repealed Acts 2007, ch. 460, § 1, effective July 1, 2007.

62-6-521. Additional subcommittees.

  1. In addition to the appointment of a subcommittee established pursuant to § 62-6-520, the board shall appoint two (2) additional subcommittees in accordance with the following:
    1. A subcommittee of board members whose focus shall be related to issues concerning home builders; and
    2. A subcommittee of board members whose focus shall be related to general contractor issues dealing with commercial construction, including electrical, mechanical, plumbing and heating, ventilation and air conditioning.
  2. Each subcommittee shall act as an advisory committee concerning their respective areas pursuant to subsection (a) and shall report its findings and recommendations concerning licensure and disciplinary actions and other substantive issues to the board; provided, that all final decisions concerning those actions shall be decided by the board.