TNCODE

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Acts 1977, ch. 211, § 1; Acts 1978, ch. 906, §§ 6, 8; ch. 924, § 3; 1980, ch. 451, § 1), concerning accountants, was repealed by Acts 1955, ch. 231, § 1; 1978, ch. 906, § 7; and 1980, ch. 518, § 20.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:

“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;
“Board” means the state board of accountancy established under § 62-1-104 or its predecessor under prior law;
“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;
“Certified public accountant (CPA)” means a person holding a certificate issued under §§ 62-1-106 and 62-1-107;
“Client” means a person or entity that agrees to receive any professional service from a licensee;
“CPA firm” and “PA firm” means a sole proprietorship, corporation, partnership or any other form of organization issued a permit under § 62-1-108;
“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;
“Licensee” means the holder of a license;
“Manager” means a manager of a limited liability company;
“Member” means a member of a limited liability company;
“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;
“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;
“Professional” means arising out of or related to the specialized knowledge or skills associated with CPAs;
“Public accountant” means a person holding a registration issued under § 62-1-109;
“Registration” means the registration issued to a public accountant under § 62-1-109 and includes the licenses issued to public accountants under prior law;
“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;
“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;
“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
“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.

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, 2026. See §§ 4-29-112, 4-29-247.

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.

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.
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.
The board may appoint committees from within or without the board, which shall be compensated in the manner provided in this chapter.
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.
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.

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.
“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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.

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.”
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.
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).
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.
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.
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.
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.
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.
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.

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.

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.
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.
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.
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.
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.
“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.

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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Nothing prohibits a licensee from engaging in personal financial planning without further regulatory requirements.
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.

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.
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.

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.
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.
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.

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.
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.
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.

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.
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.
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.

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.
Disbursements from the fund shall be made solely for the purpose of defraying expenses incurred in the implementation and enforcement of this chapter.
No such expenses shall be payable from the general fund of the state.
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.
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.
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).
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.
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.
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.
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.

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.
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.
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.
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.]

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.
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.

As used in this part, unless the context otherwise requires, “review committee” means any person or persons carrying out, administering or overseeing peer review.
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.

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.
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.

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.
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.

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.
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
4. 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.
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.
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:

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;
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;
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
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.

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.
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.
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.
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.

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.
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.

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.
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.

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.

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.
Nothing in this section shall be construed to provide immunity for gross negligence or willful misconduct.
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.
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.
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, 2026. See §§ 4-29-112, 4-29-247.

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, 56-1-301 — 56-1-306.

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.

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.
2. 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).
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.

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.
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.
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.
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.

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.
The board shall elect annually from its members a chair, a vice chair and a secretary.
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.

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.
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.
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.

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.
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.

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.
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.
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.

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.
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.

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.
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.
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.
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.
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.

Certificates of registration shall expire two (2) years following the date of their issuance or renewal and are invalid on that date unless renewed.
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.
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.
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.
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.
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.
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.
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.

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.
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.

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.

The examinations will be held at times and places that the board directs. The board shall determine the acceptable grade on examinations.
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.
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.

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
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;
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.

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.
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.
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.”
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.

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.
The board shall be responsible for administering and grading the examinations.
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.
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.
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.

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.
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.

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.
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.

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.
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.

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.
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.
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.
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.

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.
The board shall be responsible for administering and grading the examinations.
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.
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.
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.

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.
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.

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.
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.

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.
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.

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:

“Board” means the state board of examiners for architects and engineers; and
“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.”
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.
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:

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
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.”

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.
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.
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.

The practice of barbering shall be governed by the state board of cosmetology and barber examiners, created by § 62-4-103 and this chapter.
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:

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

Persons authorized by the law of this state to practice medicine and surgery;
Commissioned medical or surgical officers of the United States army, navy, air force or marine hospital service;
Registered nurses;
Duly registered cosmetologists operating in accordance with chapter 4 of this title; and
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.

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.
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.
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.
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.

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:

Only persons duly licensed by the board perform barbering services in the shop;
Persons duly licensed by the board perform only those services authorized by their licenses; and
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.

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:

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;
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
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.

62-3-118. Display of certificate.

Every holder of a certificate of registration shall:

Display the certificate in a conspicuous place adjacent to or near the holder's work chair; and
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.

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.

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.
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.

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.
No barber student may render clinical services on patrons until the student has completed at least one hundred (100) hours of instruction.
No barber school or college may operate without the presence of a registered barber instructor.
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.
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.
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.

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.

The board shall issue a certificate of registration as a barber instructor to a person who:
1. 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
2. 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.
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.
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.

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.

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.
Barber shops and barber schools are subject to inspection at any time during business hours.
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.
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.
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.

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.

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:

The violation of any of the provisions of this chapter;
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;
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;
Practicing or attempting to practice by fraudulent misrepresentations;
The willful failure to display a certificate of registration as required by § 62-3-118; and
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.

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.

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

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

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.
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.
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.
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.

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.
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.
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.
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.
Any barber providing residential services shall, prior to performing such services, make the barber's residential barber certificate available to the person for review.
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 §§ 62-4-101 — 62-4-127 (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 §§ 62-4-101 — 62-4-127 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 §§ 62-4-101 — 62-4-127 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.

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.
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.

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.

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.
6. 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.
7. 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.
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.

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, 56-1-301 — 56-1-306.

Former chapter 4, former §§ 62-4-101 — 62-4-127 (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 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.

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.
Prior to beginning their duties, each member of the board shall take and subscribe to the oath of office provided for state officers.
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.
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.

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

The board shall annually elect from its members a chair and vice chair.
A majority of the board shall constitute a quorum for the transaction of business at any board meeting.
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.
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.
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.

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.

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.
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.

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.

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

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.
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.

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.

62-4-109. Persons and activities exempt.

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.
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.

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.

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.
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.
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.
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.
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.

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.

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.
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.

62-4-112. License fees — Penalties.

The board shall issue a license to qualified applicants upon receipt of the appropriate fee.
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.

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.

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.
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.
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.

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.
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.
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.
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.

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

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

Replacement of any lost, misplaced or mutilated license; or
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.

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.

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:

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
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.

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

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.
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.
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.
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.
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.
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.

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.

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.
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.
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.
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.
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.
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.
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.
Each shop shall be inspected at least annually.
All licenses to operate a shop shall expire on the last day of the month of the biennial anniversary date of the licenses.
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.
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.
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.

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:

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

Acts 1986, ch. 817, § 19.

62-4-120. Operation of a school.

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.
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.
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.
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.
Each school shall be inspected at least annually by an inspector or a member of the board.
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.
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.

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 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.

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

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).
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.
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.

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.

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

62-4-122. Students.

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.
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.
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.
Each school shall conspicuously display within the clinic area a sign that reads as follows: “ALL SERVICES IN THIS SCHOOL PERFORMED BY STUDENTS ONLY.”
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.
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.
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.
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.

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.

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.

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

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.
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.
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.
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.

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.

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

The board or its authorized representatives may, at reasonable hours, inspect any place of business operated by any person licensed under this chapter.
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;
7. 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;
8. 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;
9. A violation of this chapter or of any rules duly promulgated under this chapter; or
10. 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.

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.

A violation of this chapter or of any rules promulgated under this chapter is a Class B misdemeanor.
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.

Acts 1986, ch. 817, § 30.

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

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.
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).
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.

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

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.
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.

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.
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.
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.

62-4-138. License for mobile shop.

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.
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.
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.
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:

“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;
“Board” means the board of funeral directors and embalmers;
“Cremation” means the heating process by which a human body or body parts are reduced to bone fragments through combustion and evaporation;
“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;
“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;
“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;
“Licensee” means an embalmer or funeral director who holds a license issued by the board;
“Licensing period” means the period of time that a funeral director's or embalmer's license is in effect in this state;
“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;
“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
“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.

A violation of this chapter is a Class C misdemeanor.
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.

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.
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.
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.

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.

A funeral director shall utilize the services only of licensed crematory facilities.
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.
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.
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.

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.
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.

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.
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.
A member of the board shall not be eligible for at least one (1) term for reappointment to membership on the board.
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.

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.

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.
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.

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.
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.

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.
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.
During the course of inspections, reasonable care shall be used to avoid disruption to invitees being served by the funeral establishment.
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.
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.

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.
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.
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.

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.
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 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; 2020, ch. 625, § 2.

Amendments. The 2020 amendment added “or an individual enumerated in 8 U.S.C. § 1622(b)” in (b)(2).

Effective Dates. Acts 2020, ch. 625, § 4. March 25, 2020.

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.

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.
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.
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.
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.

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.
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.

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.
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.
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.
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.

It is unlawful for any person not a registered funeral director or embalmer to engage in funeral directing or embalming.
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 establishments operating before 1969.

1. [Deleted by 2020 amendment.]
2. [Deleted by 2020 amendment.]
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.
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.
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; 2020, ch. 625, § 1.

Amendments. The 2020 amendment deleted (a)(1) and (a)(2), which read: “(a)(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.”

Effective Dates. Acts 2020, ch. 625, § 4. March 25, 2020.

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

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.
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.
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.
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.

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.
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 or an individual enumerated in 8 U.S.C. § 1622(b);
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.
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.
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; 2020, ch. 625, § 3.

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.

Amendments. The 2020 amendment added “or an individual enumerated in 8 U.S.C. § 1622(b)” in (b)(2).

Effective Dates. Acts 2020, ch. 625, § 4. March 25, 2020.

62-5-313. Requirements for operation.

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.
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.
Each funeral establishment must have its current license available for inspection in the office of the funeral establishment.
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.

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.
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.
No license issued to a funeral director, embalmer or funeral establishment granted under this chapter shall be transferable or assignable.
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.

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.
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.

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.
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.
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.

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.
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.
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.
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.
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.
A violation of this section is a Class C misdemeanor.
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.

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, §§ 62-5-401 — 62-5-409 (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.

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:

“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;
“Commissioner” means the commissioner of commerce and insurance or the commissioner's designee;
“Department” means the department of commerce and insurance;
“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;
“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;
“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;
“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;
“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;
“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;
“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;
“Pre-need funeral trust” means funds set aside in a trust account held by a trustee to provide for a pre-need funeral contract;
“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;
“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.

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.

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.
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.

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.

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.
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.
All registrations issued under this part shall be valid for two (2) years.
All registrations become invalid unless renewed.
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.
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.

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.
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.
No modification of the form, terms, or conditions of the pre-need contract may be made without the prior written approval of the commissioner.
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.
This section shall apply only to pre-need funeral contracts executed subsequent to January 1, 2008.
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.

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.

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.
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.
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.
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.

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).

62-5-408. Management of funeral contract trust.

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.
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.
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.
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.
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.

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).

62-5-409. Prearrangement insurance policy.

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.
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.
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.
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.
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.
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.

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.

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.
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.

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.

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.
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.
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.
Trustees of pre-need funeral trusts shall disclose to the commissioner any information regarding pre-need funeral trust accounts overseen by the trustee.
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.

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.

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.

The commissioner shall administer this part.
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.
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.
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.
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.
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.

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.

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.
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.
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.
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.
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.
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.
3. 1. 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.
  2. 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.
  3. 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.
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.
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.
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.
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.

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.

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.

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.

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:

“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;
“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;
“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
“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.]

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.
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.

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.
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.
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.
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.
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.
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.
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.
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.
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.
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.

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.
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.
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.

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.
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.
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.
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.
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.

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.
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.
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.
This section does not create a new cause of action or substantive legal right against the operator of a crematory facility.
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.

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.
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.
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.
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.
The board, for good cause, shall have the power to excuse licensees from the continuing education requirements set forth in this chapter.
Continuing education credit or credits may be obtained by attending and participating in continuing education courses or workshops approved by the board.
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:

Constitutes an organized program of learning, including a symposium, that contributes directly to the professional competency of the licensee;
Is related to the practice of mortuary science or funeral directing;
Is conducted by individuals considered experts in the subject matter of the program by reason of education, training or experience; and
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.

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.
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.

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.
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.

The board may appoint a committee to oversee the application process and monitoring of continuing education programs.
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.

The license of any funeral director or embalmer who has not met the continuing education requirements prescribed in this chapter shall not be renewed.
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:

The establishment or conduct of a program violates or fails to meet the requirements of this chapter or other applicable laws; or
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:

“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;
“Qualified adult” means a person who is eighteen (18) years of age or older and of sound mind; and
“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.

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.
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:

An attorney in fact designated in a durable power of attorney for health care who is acting pursuant to § 34-6-204;
The surviving spouse;
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;
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;
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;
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;
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;
The guardian of the person of the decedent at the time of the decedent's death, if one had been appointed;
The personal representative of the estate of the decedent;
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;
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
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:

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
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:

The reasonableness and practicality of the proposed funeral arrangements and disposition;
The degree of the personal relationship between the decedent and each of the persons claiming the right of disposition;
The desires of the person who is ready, able and willing to pay the cost of the funeral arrangements and disposition;
The convenience and needs of other families and friends wishing to pay respects;
The desires of the decedent; and
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.

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:

“Board” means the state board for licensing contractors created pursuant to § 62-6-104;
“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;
“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. 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;
2. 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;
3. “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;
4. “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);
5. 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;
“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;
“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;
“Prime contractor” is one who contracts directly with the owner;
“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
“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.
2. 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.
3. 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.
4. The exemption provisions of subdivisions (a)(2) and (3) concerning licensure shall apply to limited licensed electricians.
5. 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.
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.
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.
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).

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).

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).

In a case in which an unlicensed subcontractor was hired to install wiring and machinery for a bowling alley, and the general contractor failed to pay the subcontractor's last five invoices, because the language in T.C.A. § 62-6-103(b) did not create a new cause of action, and the statute was consistent with the measure of damages allowed at common law, the trial court erred in dismissing the complaint based on the subcontractor's failure to assert a cause of action under this subsection. Sifuentes v. D.E.C., LLC, — S.W.3d —, 2020 Tenn. App. LEXIS 367 (Tenn. Ct. App. Aug. 17, 2020).

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. Beacon4, 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 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 executive director 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)(1).
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; 2020, ch. 556, § 3.

Compiler's Notes. The state board for licensing contractors, created by this section, terminates June 30, 2026. See §§ 4-29-112, 4-29-247.

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.

Amendments. The 2020 amendment rewrote (b) which read: “(b) 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.”

Effective Dates. Acts 2020, ch. 556, § 4. March 19, 2020.

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.
2. 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.
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.
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.
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.

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.
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.

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.
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.
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.

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.
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.

The board shall meet at least six (6) times each year for the purpose of transacting business.
At the first meeting of each calendar year the board shall elect officers, including a chair, vice chair and secretary.
Special meetings of the board shall be held at times that the board may provide.
Five (5) members shall constitute a quorum at a board meeting.
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.
The board shall meet in each grand division at least one (1) time each year.
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.

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.
The books and register of the board shall be prima facie evidence of all matters recorded in the books and register.
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. 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.
  2. 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).
2. 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).
3. 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.
4. 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.
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.
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.
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.
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.
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.

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.

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.
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.
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.
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.
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.

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.

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.
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.
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.
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.
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.
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.
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.
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.

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.
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.
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.
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.
The affirmative vote of a majority of the board is necessary to revoke or suspend a license or renewal.
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.

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.
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.
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.
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.
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).
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.
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.
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. 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).
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 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
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.
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., §§ 62-6-201 — 62-6-207; 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.

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).
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.
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.

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.
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.

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.
Any licensee who is not engaged in work or activities that require a contractor's license may apply for a retired license.
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.
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.
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.
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.
In no event may a retired license be renewed for more than seven (7) years dated from the time of initial application.
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.

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.
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.
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.

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.
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.

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.
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.

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].
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.
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.

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).
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.
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.
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.
The bond shall be referenced by a standard form legal agreement, approved by the city or county attorney.
This section shall have no effect unless approved by a two-thirds (2/3) vote of the governing body of any municipality or county.
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.
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.
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.

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.
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.
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.
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.
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.
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.
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.

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.
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.
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, §§ 62-6-301 — 62-6-304 (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:

“Client” means any person who hires or seeks to hire a home inspector to obtain a home inspection or home inspection report;
“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”;
“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;
“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
“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.

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.
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.
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:

Is at least eighteen (18) years of age;
Has graduated from high school or earned a general education development (GED(R)) certificate;
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;
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;
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;
Has passed a commissioner-approved competency examination administered by the state or an entity selected by the state; and
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.

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.
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.

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.
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.
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.
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.
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.
2. 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.

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.
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.
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.
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, 535 S.W.3d 864, 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:

“Board” means the state board for licensing contractors pursuant to § 62-6-104;
“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;
“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);
“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;
“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
“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.

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.

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.
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.
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.
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.
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.
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.
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.

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.
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.
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.

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.
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.
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.
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.
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.

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.
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:

“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;
“Board” means the state board for licensing contractors;
“Claimant” means an owner who:
1. 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
2. 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:

Identifying, researching or creatively solving problems pertaining to the function and quality of interior space;
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
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.

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.

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.
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.
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.
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.
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.

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).
The fee for issuing a duplicate license for one lost, destroyed or mutilated shall be set by the board.
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.

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).
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.

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.
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.
The board shall prescribe and furnish appropriate forms in connection with the issuance, renewal or termination of licenses.
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.
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.
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.
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.
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.

All licenses, except temporary licenses, shall expire the last day of the twenty-fourth month from the date of issuance.
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.
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.
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.

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.
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.
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.

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.
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.
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:

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;
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;
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;
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;
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;
Misrepresentation of a material fact by an applicant in obtaining or attempting to obtain a license;
Failure to notify the board of any change of control in ownership, management or business name or location;
Conducting a home improvement business in any name other than the one in which the contractor is licensed;
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;
Failure to comply with any order, demand or requirement lawfully made by the board pursuant to and within the authority of this part;
The demand for or the receipt of any payments prior to the signing of a home improvement contract;
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;
Failure to obtain the necessary permits as required by any local jurisdiction;
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;
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. 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;
2. 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:

Examine the qualifications and fitness of applicants for licenses under this part;
Keep records of all licenses issued, suspended or revoked. These records shall be open to the public for inspection during regular business hours;
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;
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.

Acts 2007, ch. 460, § 2.

62-6-516. Exemptions.

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.
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.

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).
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.
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.
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.
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.
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.
Any outstanding injury to the public shall be settled satisfactorily before a license as a home improvement contractor is issued.
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.

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.
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.

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.
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.
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.
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.

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.
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.
The members of the subcommittee shall receive the same amount of compensation and reimbursement as they would receive for performing their duties as board members for each day actually spent in the performance of their official duties.

Acts 2007, ch. 460, § 2.

Part 6
Residential Roofing Services

62-6-601. Part definitions.

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

“Agent” means any officer, director, owner, employee, contractor or any other person authorized to act on behalf of a residential roofing services provider;
“Contract” means a contract in this state between a person and a residential roofing services provider for the provision of goods or services related to the repair or replacement of a roof system the costs of which the residential roofing services provider represents are to be paid, or are likely to be paid, in whole or in part, from the proceeds of a property and casualty insurance policy;
“Emergency repairs” means goods or services provided for the purpose of making urgent and necessary repairs to the roof system of residential real estate if, without such repairs, damage to the residential real estate would occur;
“Person” means an individual or entity;
“Residential real estate” means a new or existing building constructed for habitation by one to four (1-4) families, and includes the building's garage, even if the garage is detached from such building;
“Residential roofing services provider”:
1. Means a person in the business of contracting or offering to contract with owners of residential real estate to repair or replace roof systems, or the agent of such person; and
2. Does not mean a person engaged in the demolition of a structure or cleanup of construction waste and debris that contains roofing material; and
“Roof system” means a roof covering, roof sheathing, roof weatherproofing, roof framing, roof ventilation system, or insulation for residential real estate.

Acts 2012, ch. 821, § 2.

Compiler's Notes. Acts 2012, ch. 821, § 3, which enacted this part, provided that the act shall apply to contracts entered into on or after July 1, 2012.

62-6-602. Cancellation of contract if claim or contract not covered loss under insurance policy.

If a person enters into a contract and the person has received written notice from the person's insurer that all or any part of the claim or contract is not a covered loss under an insurance policy, then the person may cancel the contract as provided in subsection (b).
To cancel a contract, a person shall:
1. Provide a written notice of cancellation to the residential roofing services provider prior to midnight on the third business day after receipt of a written notice of no or partial coverage from the insurer; and
2. Mail or deliver the written notice of cancellation to the residential roofing services provider at the business address, facsimile number, or electronic mail address provided by the residential roofing services provider pursuant to § 62-6-603.
A written notice of cancellation:
1. Need not contain particular language provided that it is signed and dated by the person and indicates, by any form of written expression, the intent of the person not to be bound by the contract; and
2. Shall be effective upon receipt by the residential roofing services provider. However, if the person:
  1. Mails the written notice of cancellation, postage prepaid and properly addressed to the residential roofing services provider, then the cancellation is effective upon the date of the postmark; or
  2. Delivers the written notice through electronic transmission properly addressed to the facsimile number or electronic mail address of the residential roofing services provider, then the cancellation is effective upon the time the person transmits the notice.

Acts 2012, ch. 821, § 2.

Compiler's Notes. Acts 2012, ch. 821, § 3, which enacted this part, provided that the act shall apply to contracts entered into on or after July 1, 2012.

62-6-603. Required written statement from residential roofing service provider.

Prior to entering into a contract, a residential roofing services provider shall, in writing, furnish a person with:

The residential roofing services provider's:
1. Business mailing address for cancellation purposes;
2. Telephone number;
3. License or registration number of any contractor, home improvement contractor, or public adjuster license or registration held in this or any other state; and
4. Electronic mail address or facsimile number for cancellation purposes, if available;
A detailed description of all damage or repairs to be claimed or covered by the contract and the location of such damage;
A written statement in boldface type of a minimum size of ten (10) points, containing language substantially similar to the following:
You may cancel this contract at any time before midnight on the third business day after you have received written notification from your insurer that all or any part of the claim or contract is not a covered loss under your insurance policy. This right to cancel is in addition to any other rights of cancellation which may be found in state or federal law or regulation. See the attached notice of cancellation form for an explanation of this right.

; and
A form in duplicate, captioned “NOTICE OF CANCELLATION”, attached in an easily detachable manner to the contract, that contains in boldface type of a minimum size of ten (10) points the following statement or language substantially similar:
NOTICE OF CANCELLATION

If you are notified by your insurer that all or any part of the claim or contract is not a covered loss under your insurance policy, you may cancel the contract by mailing or delivering a signed and dated copy of this cancellation notice or any other signed and dated written notice to (name of residential roofing services provider) at (business mailing address) or (if available, facsimile number or electronic mail address of residential roofing services provider) at any time prior to midnight on the third business day after you have received such notice from your insurer. If you cancel, any payments made by you under the contract, except those for emergency repairs already performed by the residential roofing services provider, will be returned to you within ten (10) business days following receipt by the residential roofing services provider of your cancellation notice.

I HEREBY CANCEL THIS TRANSACTION.

(person's signature).

Acts 2012, ch. 821, § 2.

Compiler's Notes. Acts 2012, ch. 821, § 3, which enacted this part, provided that the act shall apply to contracts entered into on or after July 1, 2012.

62-6-604. Payments and deposits — Emergency repairs.

No residential roofing services provider shall require any payments from a person pursuant to a contract until the person has received written notice from the insurer that the contract or claim is fully covered or the three-day cancellation period required pursuant to this part has expired.
Within ten (10) business days after a person cancels a contract in accordance with this part, the residential roofing services provider shall tender to the:
1. Payor any payments, partial payments, or deposits made to the residential roofing services provider except those made pursuant to subsection (c); and
2. Person any note or other evidence of the person's indebtedness to the residential roofing services provider except indebtedness incurred pursuant to subsection (c).
1. Notwithstanding subsection (a), if the residential roofing services provider has made any emergency repairs, acknowledged by the contracting person in writing to be necessary to prevent damage to the residential real estate, then the residential roofing services provider shall be entitled to collect the amount due from the person for the emergency repairs at the time the repairs are rendered. Any provision in a contract that requires the payment of any fee for any good or service except those provided in relation to emergency repairs shall not be enforceable against any person who has canceled a contract in accordance with this part.
2. No residential roofing services provider shall misrepresent that emergency repairs are necessary to prevent damage to the residential real estate owned or possessed by such person.

Acts 2012, ch. 821, § 2.

Compiler's Notes. Acts 2012, ch. 821, § 3, which enacted this part, provided that the act shall apply to contracts entered into on or after July 1, 2012.

62-6-605. Licensure of residential roofing services providers as public adjusters.

No residential roofing services provider shall act or hold out as being a public adjuster, as defined in § 56-6-902, unless licensed as a public adjuster in accordance with title 56, chapter 6, part 9.

Acts 2012, ch. 821, § 2; 2013, ch. 355, § 5.

Compiler's Notes. Acts 2012, ch. 821, § 3, which enacted this part, provided that the act shall apply to contracts entered into on or after July 1, 2012.

62-6-606. Violations.

A violation of this part is 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 2012, ch. 821, § 2.

Compiler's Notes. Acts 2012, ch. 821, § 3, which enacted this part, provided that the act shall apply to contracts entered into on or after July 1, 2012.

62-6-128. Availability of liens.

Chapter 7
Hotels and Places of Public Accommodation

62-7-101. Rates to be posted.

The person in charge of and conducting any hotel shall post in a conspicuous place in each room of the hotel a card or sign plainly stating the price per day of each room and, in case the hotel is conducted on the American plan, the rate charged for meals. The cards or signs shall be dated as of the day on which they are posted.
1. This subsection (b) applies to hotels, motels and other places of public accommodations as defined by § 62-7-107 and referred to in this subsection (b) as “hotels.”
2. No person shall display or cause to be displayed any sign on the premises that includes, in dollars and cents, a statement of the rates charged at a hotel, unless twenty-five percent (25%) of all rooms in that facility are available at the quoted or advertised rate at all times the sign is posted.
A violation of this section is a Class C misdemeanor.

Acts 1921, ch. 100, § 1; Shan. Supp., § 3052a36b1; mod. Code 1932, § 5301; impl. am. Acts 1937, ch. 254, § 4; Acts 1977, ch. 478, § 1; T.C.A. (orig. ed.), § 62-701; Acts 1985, ch. 171, § 3; 1989, ch. 591, § 113.

Cross-References. Inspection of hotels, food service establishments, public swimming pools, title 68, ch. 14, part 3.

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

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

Textbooks. Tennessee Jurisprudence, 14 Tenn. Juris., Hotels, Inns and Restaurants, §§ 1, 3.

NOTES TO DECISIONS

1. Liability of Innkeepers.

An innkeeper is “practically an insurer” (liable without fault) of personal property of a guest “infra hospitium.” Shepherd Fleets, Inc. v. Opryland USA, Inc., 759 S.W.2d 914, 1988 Tenn. App. LEXIS 294 (Tenn. Ct. App. 1988).

“Infra hospitium” means “in the care and custody of the innkeeper.” Shepherd Fleets, Inc. v. Opryland USA, Inc., 759 S.W.2d 914, 1988 Tenn. App. LEXIS 294 (Tenn. Ct. App. 1988).

The strict liability rule concerning the liability of innkeepers, as adopted in Tennessee, includes any property delivered and accepted into the exclusive custody of the innkeeper and the term “infra hospitium” includes all property deposited and accepted in exclusive control of the innkeeper, wherever the innkeeper elects to physically store the property, whatever its character, so long as it is not the type of property for which special statutory provision exists. Shepherd Fleets, Inc. v. Opryland USA, Inc., 759 S.W.2d 914, 1988 Tenn. App. LEXIS 294 (Tenn. Ct. App. 1988).

An innkeeper is excused from liability for loss of a guest's baggage or goods only when the loss or injury results from an act of God or is caused by the public enemy, or by the fault, direct or implied, of the guest himself. Shepherd Fleets, Inc. v. Opryland USA, Inc., 759 S.W.2d 914, 1988 Tenn. App. LEXIS 294 (Tenn. Ct. App. 1988).

62-7-102. Penalties.

Any person who violates § 62-7-101 or who charges any guest a rate in excess of the posted rates commits a Class C misdemeanor.

Acts 1921, ch. 100, § 2; Shan. Supp., § 3052a36b2; Code 1932, § 5302; T.C.A. (orig. ed.), § 62-702; Acts 1989, ch. 591, § 113.

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

62-7-103. Safekeeping of valuables — Liability for loss.

When the proprietor of any hotel or inn provides a safe in the office in the hotel or inn or other convenient place for the safekeeping of any money, jewels or ornaments belonging to the guests of the hotel or inn or for any samples of merchandise of any kind carried by drummers or commercial travelers and notifies the guests of the hotel or inn by posting a notice that states the fact that in the safe or other convenient place money, jewels, ornaments or samples may be deposited in the rooms occupied by the guests, in a conspicuous manner, and if the guests neglect to deposit the money, jewels, ornaments or samples of merchandise in the safe or other convenient place, the proprietor is not liable for any loss of the money, jewels, ornaments or samples of merchandise sustained by the guest, by theft, or otherwise.

Acts 1921, ch. 49, § 1; Shan. Supp., § 3593; Code 1932, § 6680; C. Supp. 1950, § 6680; T.C.A. (orig. ed.), § 62-703.

Cross-References. Checkrooms and losses therefrom, §§ 62-7-105, 62-7-106.

Restricted liability for losses from safe, § 62-7-104.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Drummers, § 1; 14 Tenn. Juris., Hotels, Inns and Restaurants, §§ 3, 6.

Law Reviews.

Bailor Beware: Limitations and Exclusions of Liability in Commercial Bailments, 41 Vand. L. Rev. 129 (1988).

NOTES TO DECISIONS

1. In General.

The innkeeper is not liable for the loss, by theft or otherwise, of the baggage and goods of a boarder, unless it is shown that the loss resulted from the culpable negligence or wrongful act of himself or his servants. Manning v. Wells, 28 Tenn. 746, 1849 Tenn. LEXIS 119 (1849).

The innkeeper is not liable for the embezzlement or misappropriation of money by his clerk, left by a guest with the clerk, upon his departure to be gone for a time. Whitemore v. Haroldson, 70 Tenn. 312, 1879 Tenn. LEXIS 235 (1879); Tulane Hotel Co. v. Holohan, 112 Tenn. 214, 79 S.W. 113, 1903 Tenn. LEXIS 98, 105 Am. St. Rep. 930 (1904).

A hotel keeper complying with the former law was relieved from liability as an insurer where the guest failed to comply with the provisions thereof. Rains v. Maxwell House Co., 112 Tenn. 219, 79 S.W. 114, 1903 Tenn. LEXIS 99, 64 L.R.A. 470 (1904).

The former law was in derogation of the common law, and was strictly construed with reference to its evident object and purpose, namely, the benefit and protection of hotel keepers. Rains v. Maxwell House Co., 112 Tenn. 219, 79 S.W. 114, 1903 Tenn. LEXIS 99, 64 L.R.A. 470 (1904).

Where an innkeeper, through its servants employed for that purpose, met a traveler on his arrival at the hotel, received his baggage into its possession, deposited it at the usual place, and served him with such refreshments as he desired, for the usual and customary charges, the innkeeper is liable for the loss of the traveler's baggage, and cannot escape such liability upon the ground that the traveler did not formally notify the innkeeper that he was a traveler who had resorted to the hotel to receive entertainment. Hill v. Memphis Hotel Co., 124 Tenn. 376, 136 S.W. 997, 1911 Tenn. LEXIS 52, 34 L.R.A. (n.s.) 420 (1911).

The effect of T.C.A. § 62-7-103 is to shield the innkeeper from the loss of the goods and articles described in the statute if the innkeeper provides a place for safekeeping and notifies the guest of the availability of the safe place in the manner prescribed. Cook v. Columbia Sussex Corp., 807 S.W.2d 567, 1990 Tenn. App. LEXIS 906 (Tenn. Ct. App. 1990).

2. Common Law.

If the provisions of T.C.A. § 62-7-103 are complied with and the guest fails to place his valuables in the safekeeping place the guest cannot recover at all, but if the statutory provisions are not met by the innkeeper the guest may recover under the common law. David Karp Co. v. Read House, Inc., 136 F. Supp. 372, 1954 U.S. Dist. LEXIS 2214 (D. Tenn. 1954), aff'd, David Karp. Co. v. Read House, Inc., 228 F.2d 185, 1955 U.S. App. LEXIS 3667 (6th Cir. Tenn. 1955).

Under the common law an innkeeper was practically an insurer of personalty with the only defense being an act of God or public enemy or fault of the guest himself. David Karp Co. v. Read House, Inc., 136 F. Supp. 372, 1954 U.S. Dist. LEXIS 2214 (D. Tenn. 1954), aff'd, David Karp. Co. v. Read House, Inc., 228 F.2d 185, 1955 U.S. App. LEXIS 3667 (6th Cir. Tenn. 1955); Andrew Jackson Hotel, Inc. v. Platt, 19 Tenn. App. 360, 89 S.W.2d 179, 1935 Tenn. App. LEXIS 48 (Tenn. Ct. App. 1935).

3. Guest.

An innkeeper, to whom one not a guest sends goods to be held without compensation to be made therefore, will not be liable as an innkeeper, if the goods are lost, but only as a gratuitous bailee, that is, for loss or damages occasioned by his gross negligence. Whitemore v. Haroldson, 70 Tenn. 312, 1879 Tenn. LEXIS 235 (1879); Tulane Hotel Co. v. Holohan, 112 Tenn. 214, 79 S.W. 113, 1903 Tenn. LEXIS 98, 105 Am. St. Rep. 930 (1904); Hill v. Memphis Hotel Co., 124 Tenn. 376, 136 S.W. 997, 1911 Tenn. LEXIS 52, 34 L.R.A. (n.s.) 420 (1911).

A traveling salesman, at the railroad depot, turning his suitcases over to the porter of a hotel, with the intention of going there, but changing his mind and not going there, does not become a guest of the hotel, so as to charge the proprietor with the innkeeper's extraordinary liability. Tulane Hotel Co. v. Holohan, 112 Tenn. 214, 79 S.W. 113, 1903 Tenn. LEXIS 98, 105 Am. St. Rep. 930 (1904); Hill v. Memphis Hotel Co., 124 Tenn. 376, 136 S.W. 997, 1911 Tenn. LEXIS 52, 34 L.R.A. (n.s.) 420 (1911).

Where traveler gives porter his baggage intending to become guest but does not, innkeeper does not become a bailee, though the porter deposits the grips or suitcases in the hotel office, without notice to the clerk or other employee of the hotel, and without their knowledge. The porter, and not the innkeeper, is the gratuitous bailee. Tulane Hotel Co. v. Holohan, 112 Tenn. 214, 79 S.W. 113, 1903 Tenn. LEXIS 98, 105 Am. St. Rep. 930 (1904).

It is not necessary that the traveler shall register in order to become a guest of the innkeeper. The traveler's application for the entertainment and the innkeeper's furnishing of the same constitute the relation of host and guest. Hill v. Memphis Hotel Co., 124 Tenn. 376, 136 S.W. 997, 1911 Tenn. LEXIS 52, 34 L.R.A. (n.s.) 420 (1911).

4. Hotel or Inn.

An inn is a house of entertainment for travelers, and an innkeeper is a person who publicly professes that he keeps an inn, and that he will receive therein all travelers who promise to pay an adequate price, and who come in a situation or condition fit to be received. Hill v. Memphis Hotel Co., 124 Tenn. 376, 136 S.W. 997, 1911 Tenn. LEXIS 52, 34 L.R.A. (n.s.) 420 (1911).

The term “hotel” is properly applied to places kept for the entertainment of travelers and casual or transient guests. McClaugherty v. Cline, 128 Tenn. 605, 163 S.W. 801, 1913 Tenn. LEXIS 75 (1913).

The words “innkeeper” and “hotel keeper” are synonymous, but each is distinct from a “boardinghouse keeper,” in that the innkeeper has no right to select his guests, but must receive every one applying for accommodation who conducts himself in a proper manner, while the keeper of a boardinghouse is one who maintains a house for the accommodation of those who enter under contract for entertainment at a certain rate for a certain period at an agreed compensation. McClaugherty v. Cline, 128 Tenn. 605, 163 S.W. 801, 1913 Tenn. LEXIS 75 (1913).

5. —Boardinghouse.

A traveler, who is received and entertained as such by the innkeeper, is a guest; but a person who comes, upon a special contract, to board and sojourn at an inn, is not a guest in the sense of the law, but is a boarder. So, a neighbor or friend, who comes to an inn on the invitation of the innkeeper, is not deemed a guest. Manning v. Wells, 28 Tenn. 746, 1849 Tenn. LEXIS 119 (1849).

A person is a boarder, and not a guest, who, for the purpose of entertaining a visitor, removes from a boardinghouse to a hotel in the same city, and takes rooms in the quarters allotted to regular boarders for himself, family, and such visitor, for two or three weeks, at a special rate less than that charged transient guests. Meacham v. Galloway, 102 Tenn. 415, 52 S.W. 859, 1899 Tenn. LEXIS 63, 73 Am. St. Rep. 886, 46 L.R.A. 319 (1899).

A boardinghouse does not cease to be such because transients are occasionally entertained; nor does a hotel lose its character as such merely because, incidentally, it entertains boarders under contract for compensation for a specified time. McClaugherty v. Cline, 128 Tenn. 605, 163 S.W. 801, 1913 Tenn. LEXIS 75 (1913).

6. Jewels and Ornaments.

A watch and fob are embraced in the words “jewels and ornaments” used in the statute. Rains v. Maxwell House Co., 112 Tenn. 219, 79 S.W. 114, 1903 Tenn. LEXIS 99, 64 L.R.A. 470 (1904).

7. Parking Garage.

A hotel keeper is not liable for damages sustained by an automobile, the property of a guest of the hotel, where an employee of the hotel had delivered the automobile to a garage for storage and repair, and a garage employee, with the knowledge and consent of the hotel guest, had taken the automobile to a repair shop, and on the way back badly damaged the car, notwithstanding that the hotel received a commission on the cars stored by it for its guests in the garage. Andrew Jackson Hotel, Inc. v. Platt, 19 Tenn. App. 360, 89 S.W.2d 179, 1935 Tenn. App. LEXIS 48 (Tenn. Ct. App. 1935).

Where parking garage was designated as agent of hotel for purpose of parking vehicles of hotel's guests but not for the purpose of storing baggage or other personal property and where in accordance with T.C.A. § 62-7-103 and § 62-7-105, hotel provided a checkroom or other convenient place for the checking, storage and safekeeping of the personal baggage of its guests and posted notice to that effect in room of guest, hotel was not liable for loss of personalty by theft from guest's automobile which was parked in garage. Savoy Hotel Corp. v. Sparks, 57 Tenn. App. 537, 421 S.W.2d 98, 1967 Tenn. App. LEXIS 246 (Tenn. Ct. App. 1967).

62-7-104. Restriction on liability for losses from safe.

The liability of the hotel or inn keeper for the safekeeping in the safe or other convenient place as provided in § 62-7-103 shall be limited to an amount not exceeding three hundred dollars ($300), unless a written contract is entered into providing a greater liability between the guest and the proprietor of the hotel or inn. The notice required to be posted by the proprietor of the hotel or inn in a conspicuous manner in the rooms occupied by the guests shall contain a recitation of the limitation of liability as provided in this section and the provision of greater liability being dependent upon a written contract between the proprietor and the guest.

Acts 1935 (E. S.), ch. 8, § 1; C. Supp. 1950, § 6680; T.C.A. (orig. ed.), § 62-704.

Textbooks. Tennessee Jurisprudence, 14 Tenn. Juris., Hotels, Inns and Restaurants, §§ 3, 6.

Law Reviews.

Innkeeper Liability for Criminal Acts of Third Parties: Should Negligence of the Franchisee Extend to the Franchisor?, 14 Mem. St. U.L. Rev. 189 (1984).

NOTES TO DECISIONS

1. In General.

In action for damages for loss of jewelry contained in cases deposited in hotel, question of whether innkeeper had provided a safe or other convenient place for keeping of valuables and whether there was proper notice of the fact posted in salesman's room was properly submitted to jury. David Karp. Co. v. Read House, Inc., 228 F.2d 185, 1955 U.S. App. LEXIS 3667 (6th Cir. Tenn. 1955).

Where innkeeper complied with the requirements of T.C.A. § 62-7-104, salesman who deposited cases containing jewelry with innkeeper for safekeeping was limited to recovery of $300 for their loss. David Karp Co. v. Read House, Inc., 136 F. Supp. 372, 1954 U.S. Dist. LEXIS 2214 (D. Tenn. 1954), aff'd, David Karp. Co. v. Read House, Inc., 228 F.2d 185, 1955 U.S. App. LEXIS 3667 (6th Cir. Tenn. 1955).

2. Common Law.

When the provisions T.C.A. § 62-7-104 have been met by the innkeeper, there is no change of common-law responsibility except as to limit of liability. David Karp Co. v. Read House, Inc., 136 F. Supp. 372, 1954 U.S. Dist. LEXIS 2214 (D. Tenn. 1954), aff'd, David Karp. Co. v. Read House, Inc., 228 F.2d 185, 1955 U.S. App. LEXIS 3667 (6th Cir. Tenn. 1955).

62-7-105. Checkroom — Liability for loss.

When the proprietor of any hotel or inn provides a checkroom or other convenient storage place in the hotel or inn building for the checking, storage and safekeeping of the personal baggage, other than money, jewels, ornaments and samples of merchandise carried by drummers or commercial travelers, or their guests, or those intending to become guests, and notifies the guests of the checkroom or other convenient storage place by posting a notice in its lobby or office in a conspicuous manner that the checkroom or other storage place has been provided, should any guest or person intending to become a guest neglect to deposit any such personal baggage other than money, jewels, ornaments or samples provided for in §§ 62-7-103 and 62-7-104 in the checkroom or storage place and leave the baggage in any other place than a room assigned to the guests, then the proprietor is not liable for the loss or theft of the baggage, unless the baggage was stolen by some employee of the hotel or inn; provided, that the hotel proprietor makes no extra charge for storing or checking property.

Acts 1921, ch. 49, § 2; Shan. Supp., § 3593a1; Code 1932, § 6681; C. Supp. 1950, § 6681; T.C.A. (orig. ed.), § 62-705.

Cross-References. Restricted liability for losses from checkroom, § 62-7-106.

Safes and losses therefrom, §§ 62-7-103, 62-7-104.

Textbooks. Tennessee Jurisprudence, 14 Tenn. Juris., Hotels, Inns and Restaurants, §§ 3, 6.

Law Reviews.

Personal Property and Sales — 1960 Tennessee Survey (Gilbert S. Merritt, Jr.), 13 Vand. L. Rev. 1189.

NOTES TO DECISIONS

1. In General.

Where a hotel operates a check room for its guests in which to deposit overcoats and small baggage where a guest is directed to deposit such articles, it is liable for loss of an overcoat, and a stipulation on the check that the articles are left at the owner's risk is unreasonable and void. It is immaterial that there was a safer place in the basement, or storeroom, or in the clerk's safe, when the guest was not directed to either place. Maxwell Operating Co. v. Harper, 138 Tenn. 640, 200 S.W. 515, 1917 Tenn. LEXIS 70, L.R.A. (n.s.) 1918C672 (1917).

2. Common Law Rule.

The common law rule extending to all personal property brought by the guest to the inn and placed under the care of the innkeeper, subject to statutory provisions, is that an innkeeper is practically an insurer as to the goods of a guest, and is excused from liability only when the injury results from the act of God or is caused by the public enemy or by the direct or implied fault of the guest himself. Andrew Jackson Hotel, Inc. v. Platt, 19 Tenn. App. 360, 89 S.W.2d 179, 1935 Tenn. App. LEXIS 48 (Tenn. Ct. App. 1935).

3. Unchecked Articles.

Where parking garage was designated as agent of hotel for purpose of parking vehicles of hotel's guests but not for the purpose of storing baggage or other personal property and where in accordance with T.C.A. §§ 62-7-103 and 62-7-105 hotel provided a checkroom or other convenient place for the checking, storage and safekeeping of the personal baggage of its guests and posted notice to that effect in room of guest, hotel was not liable for loss of personalty by theft from guest's automobile which was parked in garage. Savoy Hotel Corp. v. Sparks, 57 Tenn. App. 537, 421 S.W.2d 98, 1967 Tenn. App. LEXIS 246 (Tenn. Ct. App. 1967).

62-7-106. Restrictions on liability for losses from checkroom.

The liability of the hotel or innkeeper for personal baggage, as defined in § 62-7-105, shall be limited under all circumstances and conditions to an amount not exceeding one hundred fifty dollars ($150), unless a written contract is entered into involving a greater liability between the proprietor of a hotel or inn and the guest, which limitation of liability and requirement of written contract for greater liability shall be contained in the notice required to be posted by the proprietor of the hotel or inn in a conspicuous manner in the lobby or office of the hotel or inn.

Acts 1935 (E. S.), ch. 7, § 1; C. Supp. 1950, § 6681; T.C.A. (orig. ed.), § 62-706.

Textbooks. Tennessee Jurisprudence, 14 Juris., Hotels, Inns and Restaurants, §§ 3, 6.

Law Reviews.

Bailor Beware: Limitations and Exclusions of Liability in Commercial Bailments, 41 Vand. L. Rev. 129 (1988).

62-7-107. Fraud in obtaining accommodations or restaurant services — Penalties.

As used in this section, unless the context otherwise requires:
1. “Accommodations” means lodging, services, goods, credit or valuable articles procured at a public establishment with lodging or under the pretense of having lodging, after having reasonable notice of the charges for same;
2. “Public establishment” means any food service establishment as defined in § 68-14-302 and also means any establishment that in the usual course of business offers overnight lodging to the general public on a day-to-day basis and also includes incidental businesses located and operated on the premises of the establishment primarily for the convenience of patrons of the establishment; and
3. “Restaurant services” means any services provided by a food service establishment as defined in § 68-14-302.
It is prima facie evidence of intent to defraud for any person to procure accommodations or restaurant services by false pretense or through show or pretense of baggage, key or other property under the false pretense of being registered at a public establishment, for any person to have procured accommodations or restaurant services and thereafter to abscond or surreptitiously remove or attempt to remove baggage or property without paying or offering to pay for the accommodations or for any person to receive restaurant services and thereafter to abscond or surreptitiously leave the premises without paying or offering to pay for the restaurant services.
Any person who pays for accommodations or restaurant services by check, draft or order for the payment of money shall be subject to §§ 39-14-121 and 39-14-122.
Any person who pays for accommodations or restaurant services by credit card shall be subject to §§ 39-14-118 and 39-14-119.
Accommodations or restaurant services paid for by check, draft, order or credit card at the time of registering at a public establishment, or subsequent to registering, up to and including the time of checking out of the public establishment shall, for all purposes, be considered as having been received simultaneously with the time the payment is made or instrument is passed.
Any person who, with intent to defraud, procures accommodations or restaurant services in any public establishment commits a Class C misdemeanor if the total amount procured is two hundred dollars ($200) or less. If the amount procured is more than two hundred dollars ($200), the person commits a Class E felony.

Acts 1895, ch. 67, § 1; Shan., § 3594; Code 1932, § 6682; Acts 1975, ch. 216, § 1; T.C.A. (orig. ed.), § 62-707; Acts 1982, ch. 789, §§ 1-8; Acts 1983, ch. 51, § 1; 1989, ch. 591, §§ 11, 78.

Compiler's Notes. The definition of “food service establishment” in 68-14-302, which is referred to in this section, was deleted pursuant to Acts 2013, ch. 182, § 23, as amended by Acts 2014, ch. 636, § 1, effective July 1, 2015.

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

Penalty for Class E felony, § 40-35-111.

Textbooks. Tennessee Jurisprudence, 14 Tenn. Juris., Hotels, Inns and Restaurants, §§ 3, 7.

Law Reviews.

Selected Tennessee Legislation of 1983 (N. L. Resener, J. A. Whitson, K. J. Miller), 50 Tenn. L. Rev. 785 (1983).

NOTES TO DECISIONS

1. Constitutionality.

The statute is not unconstitutional as violating the provision of Tenn. Const. art. I, § 18, forbidding legislation authorizing imprisonment for debt, because the imprisonment authorized to be inflicted is for the debtor's intentional fraud and misdemeanor, nor as abridging trial by jury in declaring what shall constitute a prima facie case. State v. Yardley, 95 Tenn. 546, 32 S.W. 481, 1895 Tenn. LEXIS 129 (1895).

2. Jurisdiction of Recorder.

A city recorder has no jurisdiction to fine and commit a person for violating this statute where the power, but not the jurisdiction, of (former) justice of the peace is conferred upon such recorder, and where there is no ordinance of the city making the violation of such statute an offense against the city. State ex rel. Wilson v. Haynes, 104 Tenn. 406, 58 S.W. 120, 1900 Tenn. LEXIS 9 (1900); Town of McMinnville v. Stroud, 109 Tenn. 569, 72 S.W. 949, 1902 Tenn. LEXIS 94 (1902).

62-7-108. Sale of guests' baggage by hotels.

At any time after thirty (30) days after the person incurring such debt or obligation has left the hotel, inn or boardinghouse and the debt or obligation is still due and unpaid, the owner or proprietor of the hotel, inn or boardinghouse may sell at public auction, for cash, at the hotel or boardinghouse office, any or all baggage or property left at the hotel, inn or boardinghouse necessary to satisfy the debt or obligation, without any process of law or equity; provided, that the sale shall be advertised by written or printed posters for at least ten (10) days before the sale.

Acts 1895, ch. 67, § 3; Shan., § 3596; mod. Code 1932, § 6684; T.C.A. (orig. ed.), § 62-709.

Cross-References. Innkeeper's lien, title 66, ch. 17.

Textbooks. Tennessee Jurisprudence, 14 Tenn. Juris., Hotels, Inns and Restaurants, § 3.

62-7-109. Right of owners to exclude persons from public places.

The rule of the common law giving a right of action to any person excluded from any hotel, public means of transportation or place of amusement is abrogated.
No keeper of any hotel or public house, or carrier of passengers for hire, except railways, street, interurban and commercial, or conductors, drivers or employees of the carrier or keeper, shall be bound or under any obligation to entertain, carry or admit any person whom the keeper, carrier, conductor, driver or their employees shall, for any reason whatever, choose not to entertain, carry or admit to their house, hotel, vehicle, means of transportation or place of amusement. Nor shall any right exist in favor of the person so refused admission.
The right of keepers of hotels and public houses, carriers of passengers and keepers of places of amusement and their employees to control the access and admission or exclusion of persons to or from their public houses, means of transportation and places of amusement is to be as complete as that of any private person over the private person's private house, vehicle, private theater or places of amusement for the private person's family.

Acts 1875, ch. 130, § 1; impl. am. Acts 1897, ch. 10, §§ 14, 17; Shan., § 3046; Code 1932, § 5262; modified; T.C.A. (orig. ed.), § 62-710.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Carriers, § 12; 14 Tenn. Juris., Hotels, Inns and Restaurants, § 3.

NOTES TO DECISIONS

1. In General.

In action by black plaintiff who had been refused service in restaurant on desegregated basis seeking an injunction against such discrimination since defendants were subject to the strictures of U.S. Const., amend. 14, this and other sections could only have furnished a defense to defendants insofar as they expressed an affirmative state policy fostering segregation in publicly operated facilities, and since such statutes cannot stand consistently with U.S. Const., amend. 14 such injunction should be granted. Turner v. City of Memphis, 369 U.S. 350, 82 S. Ct. 805, 7 L. Ed. 2d 762, 1962 U.S. LEXIS 1568 (1962).

T.C.A. § 62-7-109 does not purport to create an indictable offense. McKinnie v. State, 214 Tenn. 195, 379 S.W.2d 214, 1964 Tenn. LEXIS 464 (1964).

2. Railroad Common Carriers.

T.C.A. § 62-7-109 is impliedly modified or abrogated as to railroad “common carriers” by § 65-5-112 (repealed), and such common carriers, including interurban railroad companies, cannot lawfully refuse to accept as a passenger a person capable of taking care of himself. Hogan v. Nashville I. R. Co., 131 Tenn. 244, 174 S.W. 1118, 1914 Tenn. LEXIS 102, L.R.A. (n.s.) 1915E788 (1915).

62-7-110. Penalty for riotous conduct.

A right of action is given to any keeper of any hotel, inn, theater, public house, common carrier or restaurant against any person guilty of turbulent or riotous conduct within or about the hotel, inn, theater, public house, common carrier or restaurant, and any person found guilty of so doing commits a Class C misdemeanor. The owner or persons so offended against may sue in the owner's or offended person's own name for the turbulent or riotous conduct.

Acts 1875, ch. 130, § 2; Shan., § 3047; mod. Code 1932, § 5263; T.C.A. (orig. ed.), § 62-711; Acts 1989, ch. 591, § 113.

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

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Breach of the Peace, § 4; 14 Tenn. Juris., Hotels, Inns and Restaurants, §§ 3, 4.

Law Reviews.

Constitutional Law — 1964 Tennessee Survey (James G. Kirby, Jr.), 18 Vand. L. Rev. 1103.

NOTES TO DECISIONS

1. Constitutionality.

The statute does not violate the constitutional provision of Tenn. Const., art. I, § 16, against excessive fines and cruel and unusual punishments. State v. Lasater, 68 Tenn. 584, 1877 Tenn. LEXIS 55 (1877).

T.C.A. § 62-7-110 was not unconstitutional as not clearly and sufficiently defining an offense. McKinnie v. State, 214 Tenn. 195, 379 S.W.2d 214, 1964 Tenn. LEXIS 464 (1964).

2. Acts Constituting Offense.

There is no technical definition of “turbulent conduct” that renders it impossible for one person to be guilty of that offense. A charge of “turbulent and riotous conduct” is sufficient to cover either the one or the other kind of conduct. State v. Lasater, 68 Tenn. 584, 1877 Tenn. LEXIS 55 (1877).

Fact that cafeteria may not have had right to deny service to defendants on basis of race or to preclude peaceful picketing would not preclude conviction of conspiring to block entrance of cafeteria where evidence was to the effect that defendants blocked entrance preventing persons from entering and leaving and that they attempted to accomplish their purpose by unlawful means amounting to riotous conduct and by acts injurious to trade and commerce. McKinnie v. State, 214 Tenn. 195, 379 S.W.2d 214, 1964 Tenn. LEXIS 464 (1964).

62-7-111. Discrimination because of method of transportation prohibited.

It is unlawful for owners, proprietors, lessees, keepers, agents, employees or servants of any theaters, shows, parks, places of public resort for observation of scenery or amusement of any kind whatever, where a fee or toll is charged for admission into those places or premises, to refuse admission to any person on account of the fact that the person travels to and from the parks or places over a particular route, or in the vehicles, or other means of conveyance of any person rather than another. It is the duty of all owners, proprietors, lessees, or keepers of the public places to admit all well behaved persons upon equal terms, without regard to the particular route or means of conveyance.
All places kept open for the public and at which a fee or toll is charged, either at that place or for traveling over any route or railway, where the place is the inducement to such travel, shall be conclusively taken to fall within this section.
For each violation of this section, the proprietor, owner or lessee of the place or grounds, together with the keeper of gates or doors, shall forfeit no less than five dollars ($5.00) nor more than fifty dollars ($50.00), to be recovered by action of debt before any general sessions judge, at the suit of the individual who may be denied admission or at the suit of the person owning the vehicle or other mode of conveyance in which the person denied admission may have traveled to the place or ground. The owner, proprietor, lessee or keeper is also liable for all damage done to the business of the person who may be so discriminated against and may be restrained by injunction from continuing the discrimination.
This section shall be liberally construed so as to prevent evasions and subterfuges.

Acts 1885, ch. 68, §§ 1-3, 5; Shan., §§ 3041-3043, 3045; mod. Code 1932, §§ 5257-5259, 5261; modified; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), §§ 62-712 — 62-714, 62-716.

Textbooks. Tennessee Jurisprudence, 14 Tenn. Juris., Hotels, Inns and Restaurants, § 3.

NOTES TO DECISIONS

1. Violation Found.

Defendants' exclusion of the plaintiff from their property was unlawful in that such action violated this section; however, such a violation was not enough to establish an antitrust injury. Hodges v. WSM, Inc., 858 F. Supp. 708, 1992 U.S. Dist. LEXIS 22203 (M.D. Tenn. 1992), aff'd, 26 F.3d 36, 1994 FED App. 199P, 1994 U.S. App. LEXIS 13869 (6th Cir. Tenn. 1994).

62-7-112. Dog guide to be admitted — Penalties.

1. No proprietor, employee or other person in charge of any place of public accommodation, amusement or recreation, including, but not limited to, any inn, hotel, restaurant, eating house, barber shop, billiard parlor, store, public conveyance on land or water, theater, motion picture house, public educational institution or elevator, shall refuse to permit a blind, physically disabled or deaf or hard of hearing person to enter the place or to make use of the accommodations provided when the accommodations are available, for the reason that the blind, physically disabled or deaf or hard of hearing person is being led or accompanied by a dog guide. A dog guide shall be under the control of its handler. A place of public accommodation shall not require documentation, such as proof that the animal has been certified, trained or licensed as a dog guide.
2. 1. No proprietor, employee or other person in charge of any place of public accommodation, amusement or recreation, including, but not limited to, any inn, hotel, restaurant, eating house, barber shop, billiard parlor, store, public conveyance on land or water, theater, motion picture house, public educational institution or elevator, shall refuse to permit a dog guide trainer to enter such place or to make use of the accommodations provided in those places, when the accommodations are available, for the reason that the dog guide trainer is being led or accompanied by a dog guide in training; provided, that the dog guide in training, when led or accompanied by a dog guide trainer, is wearing a harness and is held on a leash by the dog guide trainer or, when led or accompanied by a dog guide trainer, is held on a leash by the dog guide trainer; and provided, further, that the dog guide trainer shall first have presented for inspection credentials issued by an accredited school for training dog guides.
  2. 1. For purposes of this section, “dog guide in training” includes dogs being raised for an accredited school for training dog guides; provided, however, that a dog being raised for that purpose is:
      1. Being held on a leash and is under the control of its raiser or trainer, who shall have available for inspection credentials from the accredited school for which the dog is being raised; and
      2. Wearing a collar, leash or other appropriate apparel or device that identifies the dog with the accredited school for which it is being raised.
    2. “Dog guide in training” also includes the socialization process that occurs with the dog's trainer or raiser prior to the dog's advanced training; provided, that the socialization process is under the authorization of an accredited school.
3. A place of public accommodation may ask a person to remove a dog guide or dog guide in training from the premises if:
  1. The dog guide or dog guide in training is out of control and its handler does not take effective action to control it; or
  2. The dog guide or dog guide in training is not housebroken.
A violation of this section is a Class C misdemeanor.

Acts 1955, ch. 1, §§ 1, 2; 1980, ch. 488, § 3; T.C.A., § 62-717; Acts 1982, ch. 748, § 1; 1984, ch. 612, § 1; 1989, ch. 591, § 113; 1996, ch. 668, § 1; 2001, ch. 174, § 13; 2003, ch. 123, § 1; 2013, ch. 69, § 1.

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

Textbooks. Tennessee Jurisprudence, 14 Tenn. Juris., Hotels, Inns, Restaurants, § 3.

Attorney General Opinions. Requiring the display or presentation of training credentials as a condition for a guide dog's entry into a place of public accommodation is reasonable and is not inconsistent with federal law, OAG 01-156, 2001 Tenn. AG LEXIS 174 (10/22/01).

The federal Americans with Disabilities Act does not conflict with, or preempt, the provisions T.C.A. § 62-7-112 addressing the admission of service dogs to places of public accommodation. OAG 13-59, 2013 Tenn. AG LEXIS 60 (7/26/13).

Chapter 8
Ironworks

62-8-101. Benefiting statutes continued.

All statutes for the benefit of ironworks or the persons owning ironworks remain unless changed, altered or affected by the express provisions of this chapter.

Code 1858, § 1932; Shan., § 3461; mod. Code 1932, § 6535; T.C.A. (orig. ed.), § 62-801.

62-8-102. Obstruction of private roads.

Any person obstructing the roads necessarily used by the owners of ironworks for the purpose of hauling coal, ore, wood, metal or other material is liable in the same manner the person would be for obstructing the public roads of the state.

Code 1858, § 1934 (deriv. Acts 1824, ch. 4, § 6); Shan., § 3463; Code 1932, § 6536; T.C.A. (orig. ed.), § 62-802.

62-8-103. Taxation of lands.

All lands granted by this state to individuals and corporations for the encouragement of the building of ironworks are liable and subject to taxation as other lands.

Acts 1859-1860, ch. 30, § 1; Shan., § 3464; Code 1932, § 6537; T.C.A. (orig. ed.), § 62-803.

Chapter 9
Scrap Metal Dealers

62-9-101. Chapter definitions.

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

“Commissioner” means the commissioner of commerce and insurance or the commissioner's designee or, in the event of the commissioner's or designee's absence or vacancy in the office of the commissioner, the deputy commissioner;
“Department” means the department of commerce and insurance;
“Licensed HVAC contractor” means a person holding a license from the state board for licensing contractors with a CMC, MC, CMC-C, or MC-C classification;
“Person” means an individual, association, partnership, corporation, or any other legally cognizable organization or entity;
“Scrap metal” means any ferrous or nonferrous metal that is no longer used for its original purpose and is capable of being processed for reuse by a metal recycling facility, including, but not limited to, iron, brass, wire, cable, copper, bronze, aluminum, platinum, lead, solder, steel, stainless steel, catalytic converters or other similar obsolete ferrous or nonferrous metals, but shall not include recyclable aluminum cans; and
“Scrap metal dealer” means a person who buys, exchanges or deals in scrap metal or an employee or agent of that dealer who has the express or implied authority to buy, exchange or deal in scrap metal on behalf of the dealer.

Acts 2008, ch. 690, § 1; 2012, ch. 969, § 3; 2017, ch. 414, § 1.

Compiler's Notes. Former chapter 9, §§ 62-9-101 — 62-9-106 (Acts 1903, ch. 182, §§ 1-5; Shan., §§ 3608a100-3608a104; Code 1932, §§ 6751-6755; Acts 1953, ch. 42, § 1; 1968, ch. 602, §§ 1, 2; 1969, ch. 104, §§ 1-3; T.C.A. (orig. ed.), §§ 62-901 — 62-908; Acts 1989, ch. 591, § 113), concerning junk dealers, was repealed and reenacted by Acts 2008, ch. 690, §§ 1, 4, effective July 1, 2008.

Acts 2012, ch. 969, § 8 provided that the commissioner of commerce and insurance is authorized to promulgate rules and regulations to effectuate the purposes of this act. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Cross-References. Regulation of scrap jewelry and metal dealers, title 38, ch. 1, part 2.

Burglary and related offenses, title 39, ch. 14, part 4.

Criminal enhancement factors, § 40-35-114.

Textbooks. Tennessee Jurisprudence, 16 Tenn. Juris., Junk Dealers, §§ 1, 2, 8.

Attorney General Opinions. A person who buys gold or other precious metals in the form of used jewelry is not regulated by T.C.A. §§ 62-9-101—62-9-113 but rather is governed by T.C.A. §§ 38-1-201—38-1-205. Buyers and dealers of scrap jewelry and precious metals must register with the chief of police and sheriff of each county in which they conduct such activity pursuant to T.C.A. § 38-1-201(a). OAG 12-98, 2012 Tenn. AG LEXIS 103 (10/29/12).

NOTES TO DECISIONS

1. Constitutionality.

This provision does not violate Tenn. Const., art. I, §§ 7, 9. State v. Legora, 162 Tenn. 122, 34 S.W.2d 1056, 1930 Tenn. LEXIS 69 (1931).

2. Police Power.

Provisions as to records are reasonable police regulations. State v. Legora, 162 Tenn. 122, 34 S.W.2d 1056, 1930 Tenn. LEXIS 69 (1931).

3. Persons Entitled to Inspect Book.

The provision that the book shall be open to any person refers to any person whose property has been stolen and who demands inspection of the books to assist him in the discovery of the thief. State v. Legora, 162 Tenn. 122, 34 S.W.2d 1056, 1930 Tenn. LEXIS 69 (1931).

62-9-102. Scrap metal dealer registration — Disclosure of conviction — Effect of conviction — Expiration — Place of business.

1. Except as provided in subsection (f), no dealer shall purchase, deal, or otherwise engage in the scrap metal business unless the dealer is registered with the department.
2. Any registration under this chapter expires two (2) years from the date of the registration or the renewal of the registration.
3. The commissioner may promulgate and adopt rules that are reasonably necessary to carry out this chapter. The commissioner shall establish registration and renewal fees that are adequate to cover the administrative costs associated with the registration program.
Included on each registration and renewal form must be a section in which the registrant declares, under penalty of perjury pursuant to § 39-16-702(a)(3), whether the registrant has ever been convicted of a violation of this chapter or convicted of the criminal offense of theft, burglary or vandalism, where the offense involves scrap metal. If the registrant is a legally cognizable organization or entity, convictions of theft, burglary or vandalism, where the offense involves scrap metal, by any member, as defined in title 48, of the organization or entity must be disclosed on the application. Convictions of theft, burglary or vandalism, where the offense involves scrap metal, by members of organizations or entities constitute convictions by the registrant for purposes of subsection (c).
A registrant who has been convicted of a violation of this chapter or has a conviction for the criminal offense of theft, burglary or vandalism, where the offense involves scrap metal, is prohibited from registering under this chapter for five (5) years from the date of conviction.
Notwithstanding any law to the contrary, a registration issued pursuant to this chapter does not expire immediately upon the death of the registrant. The registration continues to be effective for the locations designated in the registration for a period of at least sixty (60) days after the death of the registrant. The sixty-day period may be extended by the commissioner for good cause.
Notwithstanding any law to the contrary, a registration issued pursuant to this chapter expires upon notification to the department that the registrant is no longer in business at the registered location.
Notwithstanding subsection (a):
1. Nothing in this chapter requires an employee of a registered scrap metal dealer to secure a registration under this chapter as long as the employee remains an employee of the registered scrap metal dealer; and
2. Nothing in this chapter prohibits a registered scrap metal dealer from employing another registered scrap metal dealer.
A registered scrap metal dealer shall list each place of business within this state with reference to its specific location, upon registration and upon subsequent renewals of the registration.

Acts 2008, ch. 690, § 1; 2012, ch. 969, § 5; 2013, ch. 271, § 1; 2017, ch. 414, § 2.

62-9-103. Copying and recording required identification of sellers of scrap metal — Scrap metal transaction record requirements — Alternative forms of identification.

Except as provided in subdivision (b)(2), no scrap metal dealer may purchase or otherwise acquire scrap metal from a person unless that person presents a state or federally issued photo identification card that appears valid on its face to the dealer and provides a thumbprint as provided in § 62-9-104.
1. If a valid state or federally issued photo identification card is presented, the scrap metal dealer shall record the name, sex, height, date of birth, residence address and the photo identification card number of the person selling the scrap metal, photocopy the photo identification card presented and maintain this information as part of the transaction record. The scrap metal dealer shall also record the license plate number and make and model of the motor vehicle the seller is driving. If the vehicle is a commercial vehicle, the buyer shall record the name of the business owning or leasing the vehicle.
2. If the person presenting the scrap metal for sale does not have a state or federally issued photo identification card, the dealer shall require the seller to present some form of state or federally issued identification, photograph the person and record the information contained on the identification card prior to the transaction being made. Even if a photograph of the seller is taken, the dealer is prohibited from making the transaction if the seller does not have, or refuses to present, the required identification.

Acts 2008, ch. 690, § 1.

62-9-104. Taking of thumbprint impression — Scrap metal transaction records — Due diligence — Payment procedures — Vouchers — Dealer fees for administrative costs — Age restriction on sellers.

Upon copying and recording the photo or other required identification and the information contained on the identification of the person proposing to sell scrap metal as required in § 62-9-103, the dealer shall also require the person to provide a right thumbprint impression. However, if taking the right thumbprint is not possible, the dealer shall take a fingerprint from the left thumb or another finger and shall identify on the transaction sheet which finger has been used. A thumb or fingerprint taken pursuant to this subsection (a) must be clear and complete and contain no smears or smudges. A thumb or fingerprint taken pursuant to this subsection (a) shall be maintained by the dealer for a period of three (3) years from the date of the scrap metal sale.
1. Before purchasing scrap metal from a person, the dealer shall conduct a reasonably diligent inquiry, based upon the seller, type and quantity of metal offered for sale and other circumstances surrounding the transaction, to determine whether the person selling or delivering the scrap metal has a legal right to do so and whether a lawful transaction may be made. If the person presents a bill of sale, receipt or other document indicating that the person is in lawful possession of the scrap metal or it was otherwise lawfully acquired, the dealer shall photocopy the document and maintain it with the transaction information otherwise required by this section.
2. In addition to identifying information required to be maintained by a dealer pursuant to § 62-9-103, the dealer shall also maintain transaction records of each purchase by date of purchase, name of seller, the amount paid for the scrap metal and the weight of each kind of scrap metal. A detailed description of the metal being purchased shall also be maintained using the uniform terminology developed by the department. The entries shall be made in chronological order of sale from day to day, as the business is transacted.
1. Except as provided in subdivision (c)(2), if it appears that the person is in lawful possession of the scrap metal and buying or otherwise receiving the metal from the seller would not violate this chapter, payment may take place by any method, on site, and at the time of the transaction.
2. 1. If the person is offering for sale scrap metal that, in whole or in part, consists of copper or an unattached catalytic converter, the transaction must occur in accordance with this subdivision (c)(2).
  2. 1. If the person selling scrap metal specified in this subdivision (c)(2) is selling as an agent or employee of a business, payment for the metal shall be made only by check or money order, mailed to the business address of the business for whom the employee or agent is employed, and the payee on the check shall be the name of the business.
    2. Notwithstanding subdivision (c)(2)(B)(i), a business that sells the type of scrap metal specified in this subdivision (c)(2) on a regular or frequent basis may annually preregister with a scrap metal dealer a list of employees who are authorized to sell on behalf of the business. A scrap metal dealer may pay an authorized, preregistered employee by any method, on site, and at the time of the transaction.
  3. 1. If the person selling scrap metal specified in this subdivision (c)(2) is not an employee or agent of a business, payment for the scrap metal shall be by check, money order or voucher, at the option of the seller.
    2. (a) If the seller elects payment by check or money order, it shall be mailed to the physical address provided on the driver license the seller used for identification. If the seller did not produce a driver license with a physical address on it, payment shall be by voucher.
      1. (ii) (a) If the seller elects payment by check or money order, it shall be mailed to the physical address provided on the driver license the seller used for identification. If the seller did not produce a driver license with a physical address on it, payment shall be by voucher.
      2. If a voucher is not redeemed by an authorized person within six (6) months of the date of the transaction, the voucher expires and may no longer be honored by the dealer after the expiration date. The dealer shall have one (1) year from the date of the voucher's expiration to transmit the transaction amount to the department for use in the administration of this chapter. Unredeemed voucher funds may be transmitted to the department in the same manner as dealer registration and renewal fees.
    3. If the seller elects payment by voucher, or if payment must be by voucher, the dealer shall give the seller a voucher for the amount of metal purchased. The voucher shall include the same information required under subdivision (b)(2) and the date on which the voucher can be redeemed. The voucher may only be redeemed by the person whose name appears on the voucher as the seller or by the person's heirs or legal representative. No voucher may be redeemed by the voucher holder or the holder's heirs or legal representative sooner than five (5) days from the date of the scrap metal transaction.
3. The department shall, by rule, establish a reasonable fee a dealer may charge the person selling the scrap metal for the dealer's administrative costs of processing and issuing any check required by this part. The fee may vary according to the dollar value of the purchase or the weight of the purchase, but shall, in no event, exceed five dollars ($5.00) per check.
4. No dealer shall purchase or receive, or otherwise acquire, any scrap metal from a person under eighteen (18) years of age, whether the metal is acquired directly from, through or by the aid of the minor.

Acts 2008, ch. 690, § 1.

Cross-References. Penalty for failure to secure information identifying seller, § 62-9-106.

62-9-105. Maintenance of scrap metal transaction records — Inspection of scrap metals and records by law enforcement or commissioner — Search warrant.

As used in this section, “scrap metal transaction record” includes the information required to be obtained by §§ 62-9-103(b) and 62-9-104(b)(2).
A dealer shall be required to maintain each scrap metal transaction record for a period of three (3) years following the transaction.
1. During the usual and customary business hours of a scrap metal dealer, a law enforcement officer or the commissioner shall have the right to inspect, without a warrant or subpoena, either of the following:
  1. Any purchased scrap metals in the possession of the dealer; and
  2. Any records required to be maintained by the dealer pursuant to this chapter.
2. Notwithstanding subdivision (c)(1), a search warrant or judicial subpoena may be executed at any time for inspection of the items set out in subdivision (c)(1).
3. All records required to be made available pursuant to subdivision (c)(2) shall be maintained on the site where the transaction occurred for a period of three (3) years from the date of the transaction.

Acts 2008, ch. 690, § 1; 2012, ch. 969, § 4.

Cross-References. Failing to provide information concerning certain sellers a violation of chapter, § 62-9-104.

Penalties for failure to secure information identifying seller, § 62-9-106.

Purchasing from minors a violation of chapter, § 62-9-104.

62-9-106. Offense to sell or for dealer to purchase certain types of scrap metal — Exceptions — Uniform scrap metal marking system — Committee to develop marking system — Violations — Prosecution for other offenses.

Except as provided in subsection (b), it is an offense to knowingly sell or attempt to sell to a scrap metal dealer or for a scrap metal dealer to knowingly purchase or attempt to purchase the following types of scrap metal:
1. Scrap metal marked with the initials of an electric, telephone, cable or other public utility or an electric or telephone cooperative;
2. Utility access covers;
3. Street light poles and fixtures;
4. Road and bridge guard rails;
5. Highway or street signs;
6. Water meter covers;
7. Traffic directional and control signs;
8. Traffic light signals;
9. Any scrap metal visibly marked or painted with the name of a government entity, business, company or the name of the owner of the metal;
10. Property owned by a telephone, cable, electric, water or other utility, an electric or telephone cooperative or a railroad, and marked or otherwise identified as such; and
11. Unused and undamaged historical markers or grave markers and vases.
It is an exception to application of this section that the person attempting to sell the scrap metal provides reasonable, written documentation that the seller is the owner of the scrap metal or is an employee, agent or other person authorized to sell the scrap metal on behalf of the owner. The dealer shall make a photo copy of any documentation provided pursuant to this subsection (b) and retain the copy as part of the transaction record.
In order for this section to apply to items of scrap metal covered by subdivision (a)(9), the scrap metal must be marked or painted in accordance with a uniform scrap metal marking system to be devised by the department as part of its rules and regulations. In devising the marking system, the department may consult with, or request recommendations from, other state or local government departments or private companies that currently mark property. The commissioner may also appoint a committee to develop the uniform scrap metal marking system. If so appointed, the committee shall consist of at least five (5) members but no more than seven (7) members with at least one (1) member selected from each of the following groups: the scrap metal industry, the Tennessee Association of Chiefs of Police, the Tennessee Sheriffs' Association, the Home Builders Association of Tennessee, and a member of the public who is not engaged in law enforcement, the scrap metal industry or the home building industry.
1. 1. Any person selling or attempting to sell metal to a scrap metal dealer in violation of this section shall be guilty of a Class A misdemeanor unless the value of the metal, in its original and undamaged condition, in addition to any costs which are, or would be, incurred in repairing or in the attempt to recover any property damaged in the theft or removal of such metal, is in an aggregate amount which exceeds five hundred dollars ($500), in which case such person shall be guilty of a Class E felony and, upon conviction, shall be punished only by a fine of not more than five thousand dollars ($5,000).
  2. Any scrap metal dealer purchasing or attempting to purchase scrap metal in violation of this section shall be guilty of a Class A misdemeanor.
2. Nothing in this section shall be construed to preclude a person violating this section from also being prosecuted for theft or any other applicable offense.

Acts 2008, ch. 690, § 1; 2012, ch. 969, § 1.

Cross-References. Penalty for a Class E felony, § 40-35-111.

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

Record of purchase required, § 62-9-101.

62-9-107. Offense of purchase by dealer of air conditioner evaporator coil or condenser for cash or for making payment at time of sale — Sale only by certain agents, representatives or employees — Required documentation — Payment requirements — Violation — Prosecution for other offenses.

It is an offense for a scrap metal dealer to pay cash to a person who presents an air conditioner evaporator coil or condenser, in whole or in part, for sale as scrap or for the dealer to make payment of any kind at the time of the transaction.
Scrap metal described in subsection (a) may only be sold for scrap by an authorized agent, representative or employee of one of the following:
1. A licensed HVAC contractor who acquired the evaporator coil or condenser in the performance of contracting as defined in § 62-6-102;
2. In a jurisdiction exempt from the requirements of title 68, chapter 120, pursuant to § 68-120-101, a company meeting all local or municipal requirements to obtain a permit from that jurisdiction to repair, replace and install HVAC units containing copper evaporator coils or condensers;
3. In a jurisdiction exempt from the requirements of title 68, chapter 120, pursuant to § 68-120-101, where the exempt jurisdiction does not require a permit to repair, replace and install HVAC units containing copper evaporator coils or condensers, a company holding a current business tax license, with a Class 4 classification, or a current sales tax identification number indicating the business as that of an HVAC installer or repairer; or
4. In a jurisdiction not exempt from the requirements of title 68, chapter 120, a company holding a current business tax license, with a Class 4 classification, or a current sales tax identification number indicating the business as that of an HVAC installer or repairer.
The person offering the air conditioner evaporator coil or condenser for sale as scrap shall have in the person's possession documentation that the company for whom it is being sold is a company described in subsection (b), and that the person selling the evaporator coil or condenser is an authorized agent, representative or employee of that company.
Payment for scrap metal described in subsection (a) must be made by check or money order, mailed to the business address of the company for whom the metal is being sold and the name of the company must be the payee on the check.
1. A violation of this section is a Class A misdemeanor punishable by fine only.
2. Nothing in this section shall be construed to preclude a person violating this section from also being prosecuted for any applicable criminal offense.

Acts 2008, ch. 690, § 1.

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

62-9-108. Offense of purchasing or possessing metal beer kegs — Violation — Prosecution for other offenses.

No scrap metal dealer shall knowingly purchase or possess a metal beer keg, whether damaged or undamaged, or any reasonably recognizable part of a metal beer keg, on any premises that the dealer uses to buy, sell, store, shred, melt, cut or otherwise alter scrap metal.
1. A violation of this section is a Class A misdemeanor punishable by fine only.
2. Nothing in this section shall be construed to preclude a person violating this section from also being prosecuted for any applicable criminal offense.

Acts 2008, ch. 690, § 1.

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

62-9-109. Offense of engaging in business of buying scrap metal without registration — Other offenses — Violations.

It is an offense for a person to engage in the business of buying scrap metal without registering as a scrap metal dealer with the department or falsely registering with the department as a dealer.
A person engaged in the business of buying scrap metal, as a registered scrap metal dealer or otherwise, commits an offense who knowingly:
1. Purchases scrap metal:
  1. That was not property of the seller and the seller did not have the authorization to sell the metal; or
  2. That was unlawfully obtained by the seller; or
2. Commits any other act in violation of this chapter.
A violation of subsection (a) or (b) is a Class A misdemeanor, punishable only by fine, unless the value of the metal, in its original and undamaged condition, in addition to any costs which are, or would be, incurred in repairing or in the attempt to recover any property damaged in the theft or removal of such metal, is in an aggregate amount which exceeds five hundred dollars ($500). In such instance, such scrap metal dealer shall be guilty of a Class E felony and, upon conviction, shall be punished only by a fine of not more than five thousand dollars ($5,000).
1. It is an offense for a person to sell or attempt to sell scrap metal knowing that the metal is stolen, whether by the person selling or by some other person.
2. A violation of subdivision (d)(1) shall be punished as theft and graded according to the value of the metal sold or attempted to be sold as provided in § 39-14-105.
3. In determining the value of the metal sold or attempted to be sold for purposes of grading in subdivision (d)(2), the metal shall be valued in its original and undamaged condition, in addition to any costs which are, or would be, incurred in repairing or in the attempt to recover any property damaged in the theft or removal of such metal and not the amount by which the defendant sold or attempted to sell the metal.

Acts 2008, ch. 690, § 1; 2012, ch. 969, § 6.

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

Penalty for Class E felony, § 40-35-111.

62-9-110. Revocation of registration upon conviction of violations — Denial of application or suspension, revocation, or refusal to issue or renew registration by commissioner — Civil penalty.

The scrap metal registration of a person convicted of a violation of this chapter, or the criminal offense of theft, burglary or vandalism if the offense involved scrap metal, shall be immediately revoked by operation of law upon conviction. A copy of the judgment of conviction shall be transmitted to the commissioner by the law enforcement agency responsible for the conviction.
The commissioner may deny an application for registration or may suspend, revoke or refuse to issue or renew any registration issued under this chapter upon finding that the holder or applicant is guilty of any violation enumerated in § 62-9-114(a) or any rule properly promulgated by the commissioner. In addition to or in lieu of any other lawful disciplinary action under this section, the commissioner may assess a civil penalty of up to one thousand dollars ($1,000) for each violation. Each day of continued violation constitutes a separate violation.
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 2008, ch. 690, § 1; 2012, ch. 969, § 7; 2018, ch. 745, § 8.

62-9-111. Sales of donated scrap metal by governmental entities, regulated landfills and solid waste processing facilities — Payment requirements — Registration of governmental entities, regulated landfills, or solid waste processing facilities as scrap metal dealers.

Nothing contained in this chapter shall be construed to prevent a governmental entity, regulated landfill or solid waste processing facility owner from selling any scrap metal donated to it or otherwise lawfully obtained by it without compensation.
Payment for scrap metal sold by a governmental entity or regulated landfill owner shall be:
1. Made by check or money order to the governmental entity or the owner of the landfill or solid waste processing facility;
2. The check or money order shall be mailed to the business address of the governmental entity or the owner of the landfill or solid waste processing facility; and
3. The payee on the check shall be in the name of the governmental entity or the owner of the landfill or solid waste processing facility.
Nothing contained in this chapter shall be construed to prohibit a governmental entity, regulated landfill or solid waste processing facility owner from registering as a scrap metal dealer as provided in this chapter and coming within § 62-9-112.

Acts 2008, ch. 690, § 1.

62-9-112. Application of chapter to sales between registered scrap metal dealers.

This chapter shall not apply to scrap metal transactions that take place between a scrap metal dealer registered pursuant to this chapter and another registered dealer; provided, that the scrap metal is lawfully obtained by the seller and, at the time of the transaction, may lawfully be sold for scrap. The terms of sale between two (2) registered dealers shall be determined by the parties.

Acts 2008, ch. 690, § 1.

62-9-113. Emergency rules — Committee for development of uniform terminology.

The department is authorized to promulgate emergency rules to implement this chapter.
As part of the rules promulgated pursuant to this section, the commissioner shall develop uniform terminology to describe the types of metal most commonly sold as scrap. The commissioner may appoint a committee to develop the uniform terminology. The committee shall consist of at least five (5) members but no more than seven (7) members with at least one (1) member selected from each of the following groups: the scrap metal industry, the Tennessee Association of Chiefs of Police, the Tennessee Sheriffs' Association, the Home Builders Association of Tennessee and a member of the public who is not engaged in law enforcement, the scrap metal industry or the home building industry. The purpose of uniform terminology is to increase the chances of locating and recovering stolen scrap metal by enabling law enforcement officials to describe the stolen metal in their theft report in the same terms as the scrap metal industry uses to describe the same metal when it is brought in for sale.

Acts 2008, ch. 690, § 4; 2009, ch. 566, § 12; 2013, ch. 211, § 4.

Acts 2009, ch. 566, § 12 provided that the Tennessee code commission is directed to change all references to public necessity rules, wherever such references appear in this code, to emergency rules, as sections are amended and volumes are replaced.

62-9-114. Investigation of unregistered activity.

The commissioner is authorized to investigate, and shall investigate upon the verified complaint in writing of any person, a scrap metal dealer for an alleged violation of an unregistered activity pursuant to § 62-9-102, purchase restrictions pursuant to §§ 62-9-106 and 62-9-107 or payment restrictions pursuant to §§ 62-9-104(c) and 62-9-107(d); provided, that a written complaint shall require evidence, documentary or otherwise, presented in connection with the written complaint, that makes out a prima facie case of a violation of unregistered activity, or purchase restrictions, or payment restrictions as determined by the commissioner.
If, after investigation, the commissioner finds a scrap metal dealer to be in violation of any of the statutes enumerated in subsection (a), then the commissioner shall notify the dealer in writing of the dealer's right to a hearing prior to imposing any sanction permitted under this chapter. If the dealer fails to notify the commissioner in writing within ten (10) days from the date of the commissioner's notice that the dealer seeks a hearing, then such hearing shall be waived and the commissioner may impose upon the dealer any sanction or discipline permitted by this chapter. All hearings conducted pursuant to this subsection (b) shall be in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
In the event the matter contained in the complaint has been filed or made a part of a case pending in any court in this state, the commissioner may withhold its investigation or decision until the court action has been concluded.

Acts 2012, ch. 969, § 2.

Compiler's Notes. Acts 2012, ch. 969, § 8 provided that the commissioner of commerce and insurance is authorized to promulgate rules and regulations to effectuate the purposes of this act. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

62-9-115. [Repealed.]

Acts 2016, ch. 789, § 1; repealed by Acts 2017, ch. 414, § 4, effective July 1, 2017.

Compiler's Notes. Former section § 62-9-115 concerned fees.

62-9-116. Violation by employee.

Any violation of this chapter committed by an employee of a registered scrap metal dealer while acting within the scope of employment constitutes a violation by that dealer for purposes of enforcement of this chapter.

Acts 2017, ch. 414, § 3.

Chapter 10
Laundries

62-10-101. Chapter definitions.

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

“Commercial laundry” means any place where laundry work is done for more than ten (10) persons belonging to different families, whether the laundry is operated by hand or power, except hotels in which laundries are maintained for doing the laundry work of guests of the hotel only;
“Laundry plant” means any place where commercial laundry is done;
“Laundry wagon” means any vehicle in which laundry is collected or delivered to or by a commercial laundry; and
“Person” includes persons, firms and corporations.

Acts 1937, ch. 94, § 1; C. Supp. 1950, § 7182.41 (Williams, § 7182.43); T.C.A. (orig. ed.), § 62-1001.

62-10-102. Marking of plants.

Every laundry plant shall be plainly marked with a sign posted upon the building bearing the name of the laundry, if operated under a corporate or trade name, or the name of the proprietor.

Acts 1937, ch. 94, § 5; C. Supp. 1950, § 7182.45 (Williams, § 7182.47); T.C.A. (orig. ed.), § 62-1002.

62-10-103. Water heating facilities.

Every commercial laundry shall be equipped with facilities for heating water to a temperature of at least one hundred ninety degrees Fahrenheit (190° F.).

Acts 1937, ch. 94, § 6; C. Supp. 1950, § 7182.46 (Williams, § 7182.48); T.C.A. (orig. ed.), § 62-1003.

62-10-104. Treatment of hospital laundry.

No laundry received from any hospital for contagious diseases shall be mingled with other laundry until it has been treated with live steam or water heated to a temperature of at least one hundred ninety degrees Fahrenheit (190° F.) for a period of thirty (30) minutes.

Acts 1937, ch. 94, § 7; C. Supp. 1950, § 7182.47 (Williams, § 7182.49); T.C.A. (orig. ed.), § 62-1004.

62-10-105. Marking of wagons.

Every laundry wagon shall be plainly marked with letters at least three inches (3") high, showing the name of the laundry in the business of which the laundry wagon is operated, the marking or lettering to be painted on the vehicle or attached to the laundry wagon or affixed on the laundry wagon in a permanent manner.

Acts 1937, ch. 94, § 2; C. Supp. 1950, § 7182.42 (Williams, § 7182. 44); T.C.A. (orig. ed.), § 62-1005.

62-10-106. Acceptance of laundry only from marked wagons.

No commercial laundry shall accept, directly or indirectly, any laundry from any vehicle operated in the collection of laundry except from a laundry wagon as defined in this chapter. This shall not be construed as preventing any individual from delivering the individual's laundry or the laundry of a member of the individual's household to the laundry plant.

Acts 1937, ch. 94, § 4; C. Supp. 1950, § 7182.44 (Williams, § 7182.46); T.C.A. (orig. ed.), § 62-1006.

62-10-107. Ticket or card with laundry delivered.

No commercial laundry shall deliver any laundry unless there is delivered with the laundry a ticket or card showing the name of the laundry plant at which the laundering was done.

Acts 1937, ch. 94, § 3; C. Supp. 1950, § 7182.43 (Williams, § 7182.45); T.C.A. (orig. ed.), § 62-1007.

62-10-108. Penalty.

A violation of this chapter is a Class C misdemeanor.

Acts 1937, ch. 94, § 8; C. Supp. 1950, § 7182.48 (Williams, § 7182.50); T.C.A. (orig. ed.), § 62-1008; Acts 1989, ch. 591, § 113.

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

Chapter 11
Locksmith Licensing Act of 2006

62-11-101. Short title.

This chapter shall be known and may be cited as the “Locksmith Licensing Act of 2006.”

Acts 2006, ch. 885, § 2.

62-11-102. Purpose of chapter.

The purpose of this chapter is to provide uniform procedures and qualifications throughout this state for licensing and regulation of locksmiths, to protect the public of this state by prohibiting the unauthorized use of lock picking, safe opening and car opening tools by making it illegal for persons convicted of certain crimes to obtain or possess such tools, and to protect the safety and security of persons and property by assuring that individuals or companies offering locksmithing services to the general public are competent in locksmithing services and are trained in applicable regulations and laws, such as the Americans With Disabilities Act, building codes and life safety codes.

Acts 2006, ch. 885, § 3.

Compiler's Notes. The Americans with Disabilities Act, referred to in this section, is compiled in 42 U.S.C. § 12101 et seq.

62-11-103. Chapter definitions.

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

“Car opening tool” means any tool that is designed by the manufacturer of the tool, or intended by the user, to be used to open any vehicle by means other than that intended by the manufacturer of the vehicle;
“Change key” means a key planed and cut to operate a specific lock or a group of specific locks that all have the same combination of tumblers, pins or wafers;
“Code book or computer code software” means a compilation, in any form, of key codes;
“Commissioner” means commissioner of commerce and insurance;
“Emergency service vehicle” means a vehicle used for police, fire, or emergency medical services or to assist a person from getting in and out of a vehicle;
“Key machine” means any device that is designed to copy or reproduce keys or is designed to make original keys;
“Lock” means any device whose primary function is to prevent or limit movement of one (1) object in relation to another object and requires a tool, device or special knowledge to activate or deactivate;
“Lock picking tool” means any tool or combination of tools that is designed by the manufacturer of the tool, or intended by the user, to be used to open a lock by means other than that intended by the manufacturer of the lock to be the normal operation of the lock;
“Locksmith” means any natural person who provides locksmithing services for any type of compensation;
“Locksmithing services” means:
1. Repairing, rebuilding, repinning, recombinating, servicing, adjusting or installing any lock, safe or vault; or
2. Operating a lock, safe or vault by means other than those intended by the manufacturer of the lock, safe or vault;
“Manipulation key” means any key other than a change key or master key that can be variably positioned or manipulated in a keyway to operate a lock. For purposes of this chapter, “manipulation key” shall also include wiggle keys;
“Master key” means a key planed and cut to operate all locks in a series or group of locks, each lock having its own change key and each lock constructed as an act of the series or group for operation with the master key. For purposes of this chapter, submaster keys, grand master keys, great grand master keys, emergency keys, maid's master keys, over-riding keys or any other similar keys shall be considered as master keys;
“Registered locksmith apprentice” means any natural person who is providing locksmithing services as an employee, contractor or agent, with or without compensation, under the supervision of a licensed locksmith with any sole proprietorship, partnership, association or corporation providing locksmithing services;
“Safe opening tool” means any tool that is designed by the manufacturer of the tool, or intended by the user, to be used to open a safe, strongbox, safe deposit box, vault or similar object by means other than that which is intended by the manufacturer of the safe, strongbox, safe deposit box, vault or similar object for normal opening; and
“Try-out key” means a manipulation key that may or may not be one (1) of a set of similar keys, used for a specific series, keyway or brand of lock.

Acts 2006, ch. 885, § 4; 2007, ch. 526, §§ 1, 2.

Compiler's Notes. Acts 2007, ch. 526, § 22 provided that for the purpose of implementing the Locksmith Licensing Act of 2006, the commissioner is authorized to begin administering applicable examinations and issuing licenses to applicants when such examinations are available.

62-11-104. Registration or licensing requirement — Identification requirement — Broad construction — Financial institutions.

1. No partnership, association, company, or corporation shall engage in, or hold itself out as engaging in, the business of locksmithing in this state without first registering as a locksmith business in accordance with this chapter. No person, partnership, association, corporation, or local or state governmental employee shall engage in, or hold themselves out as engaging in, the business of locksmithing in this state without first registering or licensing any employee, agents, or contractors operating as locksmith apprentices or locksmiths in accordance with this chapter; provided, however, that employees of state higher education institutions may provide locksmithing services at facilities operated by the board of trustees of the University of Tennessee or the state board of regents in accordance with Chapter 54 of the Public Acts of 2011.
2. When a person, partnership, association, corporation or local or state governmental employee files an application for licensure or for renewal, such person or entity shall provide a permanent fixed business location for such license.
Persons who are not licensed under this chapter shall not provide any locksmithing services in violation of this chapter or any rule adopted pursuant to this chapter. No person or business who is not licensed under this chapter shall use the designation “locksmith,” “locksmith apprentice” or “locksmith company,” a designation which compounds, modifies or qualifies the words “locksmith,” “locksmith apprentice” or “locksmith company” or which gives or is designed to give the impression that the person or business using such designation is a locksmith, locksmith apprentice or locksmith company.
No locksmith may participate in a joint venture to provide equipment or services that require licensing under this chapter, unless all parties to the joint venture are licensed in accordance with this chapter.
No locksmith may subcontract the provision of equipment or services requiring a license under this chapter to any unlicensed person, firm, association or corporation, except as provided in § 62-11-105.
No locksmith shall employ, hire, contract with or associate with any person who is required to be licensed or registered with the commissioner in accordance with this chapter, unless the employee, agent or contractor is properly licensed or registered with the commissioner in compliance with § 62-11-111 or § 62-11-112.
No locksmith shall retain as a registered employee any person known not to be of good moral character.
No person who is not licensed under this chapter shall possess, use, sell or offer to sell any code book, lock picking tool, manipulation key, try-out key, safe opening tool or car opening tool; provided, that the provisions of this subsection (g) restricting the possession or use of the items listed in this subsection (g) shall not apply to students involved in locksmithing training programs or courses, so long as those tools are not used by the students other than in accordance with the programs.
No person shall sell, offer to sell or give to any person not licensed under this chapter any code book, lock picking tool, manipulation key, try-out key, safe opening tool or car opening tool.
No person who is not licensed under this chapter shall design, make, manufacture or install any master key or any system of change keys and master keys.
No locksmith shall open any vehicle or real property, whether or not a fee is charged, without first obtaining personal identification from the person requesting the service. The personal identification may include, but is not limited to, personal knowledge, a driver license or other photo identification, address, telephone number, reference from any reliable source or a description of specific or unusual items that may be found upon entry. The information shall be recorded on a work order or invoice and shall be made available to a law enforcement officer with a properly executed court order at any reasonable time during normal business hours.
Notwithstanding any law to the contrary, no locksmith licensed under this chapter shall be prohibited from providing locksmithing services because of the manner of construction or operation of the lock or because of the location of the lock or application of the lock, whether the lock is applied to any door, window, hatch, lid, gate or other opening in or on any safe, vault, building, vehicle, aircraft or boat. It is the intent of the general assembly that this subsection (k) shall be construed in their broadest possible sense; provided, however, that nothing in this section shall authorize a locksmith to provide services for any bank, savings and loan association or trust company without the consent of the bank, savings and loan association or trust company.
All persons or entities licensed pursuant to this chapter shall provide the department of commerce and insurance with a permanent, fixed business location. The failure to provide such shall cause such persons or entities to be in violation of the Consumer Protection Act, compiled in title 47, chapter 18.
On or after July 1, 2013, any partnership, association, company or corporation seeking initial licensure pursuant to this chapter shall be placed on a probationary licensure status pursuant to a probation period, the requirements of which shall be determined by the commissioner.

Acts 2006, ch. 885, § 5; 2007, ch. 526, §§ 3-5; 2010, ch. 1076, §§ 1, 2; 2010, ch. 1107, § 1; 2011, ch. 54, § 1; 2012, ch. 797, § 1; 2013, ch. 269, §§ 1, 2.

Acts 2011, ch. 54, § 3 provided that the commissioner is authorized to promulgate rules to effectuate the purposes of the act, which amended subsection (a). All such rules shall be promulgated in accordance with the Administrative Procedures Act, compiled in title 4, chapter 5.

Attorney General Opinions. Applicability to state and local governmental employees performing locksmith services in scope of employment; applicability to businesses providing service of gaining entry to vehicles; sale of locksmith tools to exempted entities. OAG 10-76, 2010 Tenn. AG LEXIS 82 (5/28/10).

62-11-105. Exclusions from requirements of chapter — Transferring locksmithing tools and supplies by sale or gift.

The following persons, firms, partnerships, associations or corporations not offering any other locksmithing services are specifically excluded from the requirements of this chapter:
1. An individual property owner or the owner's agent installing locks or assisting in a lock-out situation without compensation on the owner's property, public or private;
2. Property owners or their agent maintaining a file of key cutting data for a master key system for their property;
3. Persons, sole proprietorships, partnerships, associations or corporations having and using key machines and key blanks for their own use;
4. Retail stores or catalog sales not offering locksmithing services nor selling locksmithing tools or retail stores that offer rekeying or key duplication services on the business premises of retail stores;
5. Locksmith trade publications or equipment manufacturers or distributors not providing direct locksmithing services to the public;
6. Contractors licensed under chapter 6 of this title providing direct sales or installation of lock hardware, but who derive less than twenty-five percent (25%) of their gross annual revenue from that business;
7. Architects and engineers not providing direct sales, adjustment or installation of locks;
8. New or used motor vehicle dealers;
9. Emergency service vehicles, for the sole purpose of towing a motor vehicle or allowing the owner entry into a vehicle when the owner is locked out of the vehicle;
10. A bank, savings and loan association, trust company or employee of a bank, savings and loan association or trust company providing services in connection with safe deposit box, vault or safekeeping activities of the financial institution;
11. Federal, state or local law enforcement agents or fire and rescue personnel performing openings in their official line of duty; and
12. Notwithstanding § 62-11-104(a) or any other law to the contrary, employees of state higher education institutions who provide locksmithing services at facilities operated by the board of trustees of the University of Tennessee or the state board of regents.
Nothing in this chapter shall prevent any previously licensed locksmith, the agent of an incapacitated locksmith or the personal representative of the estate of a deceased locksmith from transferring locksmithing tools and supplies by sale or gift to anyone licensed under this chapter or to anyone exempted from this chapter.

Acts 2006, ch. 885, § 6; 2007, ch. 526, § 6; 2011, ch. 54, § 2.

Acts 2011, ch. 54, § 3 provided that the commissioner is authorized to promulgate rules to effectuate the purposes of the act, which added subdivision (a)(12). All such rules shall be promulgated in accordance with the Administrative Procedures Act, compiled in title 4, chapter 5.

62-11-106. Duties of the commissioner.

In accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, the commissioner shall:

Promulgate rules reasonably necessary to implement and administer this chapter in an efficient and effective manner, including rules to require submission of reports and information by licensees and registrants under this chapter and promulgate rules and regulations that the commissioner deems necessary for internal management and control;
1. Establish fees sufficient to pay the annual direct and indirect anticipated expenses of this chapter, including:
  1. A nonrefundable application fee to include the cost of a Tennessee bureau of investigation (TBI) and federal bureau of investigation (FBI) background check for licensure;
  2. A nonrefundable fee for licensure;
  3. A biennial licensure renewal fee; and
  4. An identification card replacement fee;
2. 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 “locksmith and private security regulatory fund”;
  2. Disbursements from the fund shall be made solely for the purpose of defraying expenses incurred in the implementation and enforcement of this chapter, and the Private Protective Services Licensing and Regulatory Act, compiled in chapter 35 of this title;
  3. No such expenses shall be payable from the general fund of the state;
  4. Any part of the locksmith and private security regulatory fund remaining at the end of a fiscal year shall not revert to the general fund, but shall be carried forward to defray future expenses until all the funds are expended in accordance with this chapter and the Private Protective Services Licensing and Regulatory Act;
Establish categories of licensing, such as general locksmithing, safe and vault work and automotive work, that may have different initial qualification and continuing education requirements;
Establish minimum qualifications, minimum education, experience and training standards for applicants for licensure under this chapter. The commissioner may seek assistance from the locksmith organizations of this state, including the Tennessee Organization of Locksmiths, Middle Tennessee Locksmith Association, East Tennessee Locksmith Association, West Tennessee Chapter of ALOA, and any independent locksmiths willing to provide the assistance to the commissioner;
Investigate and approve applicants to be licensed or registered under this chapter including a background check conducted by the commissioner and investigation by the TBI and FBI;
Prepare a written examination. In preparing the examination, the commissioner may appoint a testing advisory board. Members of the testing advisory board shall serve without compensation. The testing advisory board shall include two (2) licensed locksmiths from each grand division of the state who are each members of a Tennessee professional locksmith association or organization and one (1) licensed locksmith appointed from those organizations from any of the grand divisions, as well as other members whom the commissioner may select;
Promulgate rules to establish the minimum necessary standards for continuing education, with such minimum standards to include twelve (12) hours of continuing education, two (2) of which shall be dedicated to life safety;
Conduct investigations regarding alleged violations and make evaluations as may be necessary to determine if licensees and registrants under this chapter are complying with this chapter;
Investigate allegations regarding possible violations of this chapter by unregistered persons and seek enforcement under § 62-11-109;
Investigate complaints containing allegations of violations of applicable laws and rules;
Issue subpoenas to compel the attendance of witnesses and the production of pertinent books, accounts, records and documents;
Deny, suspend or revoke any license, licensure, or renewal issued or to be issued under this chapter to any applicant, registrant, or licensee who fails to satisfy the requirements of this chapter or for any of the reasons stated in § 62-11-109, or who fails to follow the rules established by the commissioner;
Seek civil remedies at law or equity to restrain or enjoin any unauthorized practice or other violation of this chapter; and
Maintain a registry of licensed locksmithing businesses, whether a sole proprietorship, partnership, association, corporation or other entity offering locksmithing services to the public in the state, showing who is licensed and employed by those businesses as locksmiths and apprentices.

Acts 2006, ch. 885, § 7; 2007, ch. 526, §§ 7-11; 2010, ch. 1076, § 3; 2010, ch. 1107, § 2; 2012, ch. 986, § 44.

Acts 2012, ch. 986, § 48 provided that all rules, regulations, orders, and decisions heretofore issued or promulgated by any of the boards or commissions, which the act terminates or merges into another board or commission, shall remain in full force and effect. In the case of the boards or commissions that are merged with another board or commission by the act, all final rules, regulations, orders, and decisions together with any matters that are pending on October 1, 2012, shall hereafter be administered, enforced, modified, or rescinded in accordance with the law applicable to the continuing board or commission.

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

62-11-107. Register of applications.

The commissioner shall keep a register of all applications for licensure or for a licensee, showing on each the date of application, name, qualifications, place of business, place of residence and whether a license was granted or refused.
The books and register of the commissioner shall be prima facie evidence of all matters recorded in the books and register.

Acts 2006, ch. 885, § 8.

62-11-108. Liability insurance coverage — Liability insurance certificates.

No license shall be issued under this chapter unless the applicant files with the commissioner evidence of all of the following liability insurance with the following minimum coverages:
1. One hundred thousand dollars ($100,000) because of bodily injury or death of one (1) person as a result of the negligent act or acts of the principal insured or the principal insured's agents operating in the scope and course of the agent's employment;
2. Subject to the limit for one (1) person, three hundred thousand dollars ($300,000) because of bodily injury or death of two (2) or more persons as the result of the negligent act or acts of the principal insured or the principal insured's agent operating in the course and scope of the agent's employment; and
3. One hundred thousand dollars ($100,000) because of injury to or destruction of property as a result of the negligent act or acts of the principal insured or the principal insured's agent operating in the course and scope of the agent's employment.
The state shall be listed as a certificate holder on the liability insurance policies.
The insurance certificates shall be available for inspection during normal business hours on the request of the commissioner or duly appointed and identified representatives. The certificates shall provide that the insurance shall not be modified or cancelled without ten (10) days prior notice to the commissioner.

Acts 2006, ch. 885, § 9; 2007, ch. 526, § 12.

62-11-109. Hearings and judicial review in contested cases — Written charges for violations — Suspension, nonrenewal or revocation of license.

The Uniform Administrative Procedures Act, compiled in title 4, chapter 5, shall govern all matters and procedures regarding the hearing and judicial review of any contested case arising under this chapter.
Any person may present charges in writing to the commissioner against any licensee or registrant, or other person, firm or business offering locksmithing services in violation of this chapter.
The commissioner may, after notice and an opportunity for hearing, suspend, refuse to renew or revoke a license or licensure issued under this chapter if it is determined that the licensee or registrant has:
1. Made any false statement or given any false information in connection with any application for licensure or a license or for the renewal or reinstatement of licensure or a license;
2. Violated this chapter;
3. Violated any rule promulgated by the commissioner pursuant to the authority contained in this chapter;
4. Been convicted of any crime that may be grounds for denial of licensing as a locksmith or licensure as a registered employee. However, an action taken under this subdivision (c)(4) shall be subject to the applicable provisions of the Fresh Start Act that are compiled in chapter 76, part 1 of this title;
5. Failed to comply with an order of the commissioner;
6. Impersonated or permitted or aided and abetted any other person to impersonate a law enforcement officer of the United States, this state or any of its political subdivisions;
7. Engaged in or permitted any employee to engage in any locksmithing business when not in possession of a valid license under this chapter;
8. Been found guilty by the commissioner of misconduct, gross negligence or incompetence;
9. Committed any act that is grounds for the denial of an application or a license under this chapter;
10. Failed to maintain insurance as required by this chapter; or
11. Engaged in or permitted any employee to engage in any improper, fraudulent or dishonest dealing with the public.

Acts 2006, ch. 885, § 10; 2018, ch. 745, § 9.

62-11-110. Penalties.

Any person, partnership, association or corporation who engages in or offers to engage in locksmithing services without a license, or who violates the terms and conditions of any licensure or license or renewal of any license granted by the commissioner pursuant to this chapter, shall be subject to a civil penalty of no more than two thousand five hundred dollars ($2,500) per occurrence.
Any person, partnership, association or corporation who engages in or offers to engage in locksmithing services without a license, as required by this chapter, shall be ineligible to apply for a license until twelve (12) months after the violation occurred.
In addition to revocation or suspension of a license, a civil penalty of no more than two thousand five hundred ($2,500) may be assessed by the commissioner against any person, partnership, association, or corporation who violates any provision of this chapter, or any rule of the commissioner promulgated pursuant to this chapter.
1. It is an offense for a person to knowingly engage in or offer to engage in locksmithing services if:
  1. The services are rendered in exchange for compensation; and
  2. The person does not have a valid license to do so.
2. A violation of this subsection (d) is a Class B misdemeanor.

Acts 2006, ch. 885, § 11; 2010, ch. 1107, § 3.

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

62-11-111. Written application procedure and application fee — Disclosure of ownership interest in business — Interviews — Photo identification card — Expiration and renewal of license — Penalty for late renewal.

Any person desiring to be licensed as a locksmith shall make written application to the commissioner on forms prescribed by the commissioner. The applicant shall have a street address and zip code at which a summons may be served, except that a walk-in shop open to the public is not required. The application shall contain details of the applicant's training, experience and other qualifications relevant to locksmithing. An application fee, as set by the commissioner, shall accompany the application. The application shall be accompanied by the following documents:
1. Proof that the applicant is at least eighteen (18) years of age;
2. Sets of classifiable fingerprints on standard FBI/TBI application cards;
3. Recent color photograph of acceptable quality for identification;
4. Proof of a valid business license for each business entity for the county and city in which the business is located or proof of employment by an association, corporation, partnership, institution or government agency exempt from paying privilege taxes under title 67, chapter 4 and a notarized statement that no locksmithing services are being offered directly to the public;
5. Proof of insurance as required by § 62-11-108;
6. Proof that the applicant has passed an examination approved by the commissioner pursuant to § 62-11-106; provided, that this subdivision (a)(6) shall not apply to any person who shows satisfactory proof to the commissioner that, on June 26, 2007, the person has the equivalent of, as determined by the commissioner, at least five (5) years of full-time locksmithing experience. If the person is a sole proprietor or an owner of a locksmith shop or business, proof may be established by providing to the commissioner the municipal or county business license, sales tax identification number or federal tax identification number of the business together with the date the license or tax identification number for the locksmithing shop or business was obtained and other information that the commissioner may require for the commissioner to reasonably determine the applicant's locksmithing experience. If the person is an employee, partner or officer of a locksmithing shop or business, the proof shall be established by the owner of the shop or business certifying to the commissioner the number of years the person has been a locksmith or employed by the owner as a locksmith and a description of the duties of the employee, partner or officer. If the person has not been associated with a shop or business or has been employed by a locksmith owner for fewer than five (5) years, the person shall provide the names of previous locksmithing shops or businesses with which the person was associated or for whom the person has been employed;
7. Statements of any criminal records. Certain criminal convictions may disqualify an applicant for licensure as a locksmith; however, rehabilitation of individuals with a criminal record or records may be considered in the commissioner's discretion. Persons convicted of offenses involving fraud or theft shall not be entitled to licensure as a locksmith; and
8. Proof of a permanent, fixed business address as determined appropriate by the department.
Applications shall disclose any and all persons, firms, associations, corporations or other entities that own or control ten percent (10%) or greater interest in the applicant's business. The applicant shall also submit an affidavit accompanying the application stating whether or not any of the persons, associations, corporations or other entities with a ten percent (10%) or greater interest in the locksmith company have been convicted of a felony. In the event the individual or entity has been convicted of a felony, the commissioner may deny the application.
If the application is satisfactory to the commissioner, then the commissioner may issue the license as a locksmith. Included in the documents issued by the commissioner shall be a photo identification card, on which shall be provided the locksmith's name, address, license number and the expiration date of the license. The photo identification card shall be carried by the locksmith at all times when performing duties as a licensed locksmith and shall be shown upon request. The commissioner shall have the authority to enter into agreements with any state agency for the production or distribution of the photo identification cards.
Licenses as a locksmith shall expire on the last day of the twenty-fourth month following their issuance or renewal and shall become invalid on that date, unless renewed.
It shall be the duty of the commissioner to notify every person licensed under this chapter of the date of expiration of the person's certificate of license and the fee required for its renewal for two (2) years. Renewal notices shall be mailed to the last known address of the locksmith ninety (90) days prior to the expiration date of the license.
The renewal must be received in the office of the commissioner no less than thirty (30) nor more than sixty (60) days prior to the expiration of the license.
The commissioner shall establish a late renewal fee in the event that a locksmith renews a license after the expiration of the license.
Locksmith licenses may be renewed up to ninety (90) days after their expiration by payment of the renewal fee plus a penalty established by the commissioner for each month, or portion thereof, which elapses before payment is tendered. In the event that the renewal payment is not tendered within the specified time frame, the locksmith shall submit a new application for licensure as in the case of the issuance of the original license.
The commissioner shall not grant renewal of a locksmith license until the commissioner has received satisfactory evidence of continuing education completed during the immediately preceding license period.
All applications and documents required by subsection (a) shall be maintained by the commissioner in accordance with the policies of the department of commerce and insurance.

Acts 2006, ch. 885, § 12; 2007, ch. 526, §§ 13-19; 2010, ch. 1076, §§ 4-6; 2013, ch. 269, § 3.

62-11-112. Locksmith apprentices.

All locksmith apprentices of any sole proprietorship, partnership, corporation, association, public or private institution or state agency with access to records, diagrams, key codes or other sensitive material pertaining to proposed or installed master key systems, any proposed or installed lock or any safe opening procedure shall be registered with the commissioner.
Any person required to be registered shall make written application to the commissioner on forms prescribed by the commissioner. The application shall disclose the name of the business entity and the names of all locksmiths currently employed by the business entity. The commissioner shall verify that all named locksmiths are properly licensed locksmiths in the state. The application shall contain details of the applicant's training, experience and other qualifications relevant to locksmithing. An application fee as set by the commissioner shall accompany the application. The application shall also be accompanied by the following documents:
1. Proof that the applicant is at least sixteen (16) years of age;
2. A set or sets of classifiable fingerprints on standard FBI/TBI applicant cards;
3. A recent color photograph or photographs of acceptable quality for identification; and
4. Statements of any criminal records. Certain criminal convictions may disqualify an applicant for registration as a locksmith apprentice; however, rehabilitation of individuals with a criminal record or records may be considered at the commissioner's discretion. Persons convicted of offenses involving fraud or theft shall not be entitled to registration as a locksmith apprentice.
If the application is satisfactory to the commissioner, then the commissioner shall issue to the applicant a certificate as a registered apprentice. Included in the documents issued by the commissioner shall be a photo identification card on which the commissioner shall state the registrant's name, address, employer, licensure number and the expiration date of the licensure. The photo identification card shall be carried by the registrant at all times when performing duties as a registered apprentice and shall be shown upon request.
Certificates of registration shall expire on the last day of the twenty-fourth month following their issuance or renewal and shall become invalid on that date, unless renewed.
It shall be the duty of the commissioner to notify every person registered under this chapter by mail of the date of expiration of the person's certificate of registration and the amount of fee required for its renewal for two (2) years. Renewal notices shall be mailed to the last known address of the registrant ninety (90) days prior to the expiration date of the certificate.
The renewal must be received in the office of the commissioner thirty (30) days prior to the expiration of the certificate.
The fee to be paid before the renewal of a certificate of registration after the expiration date shall be increased ten percent (10%) for each month or fraction of a month that payment for renewal is late; provided, that the maximum fee for a late renewal shall not exceed twice the normal fee.
Locksmith apprentice registrations may be renewed up to ninety (90) days after their expiration by payment of the renewal fee plus a penalty established by the commissioner for each month, or portion thereof, which elapses before payment is tendered. In the event that the renewal payment is not tendered within the specified time frame, the locksmith apprentice shall submit a new application for registration as in the case of the issuance of the original registration.
1. An individual holding a valid certificate of registration as an apprentice pursuant to this section for at least two (2) years shall be eligible to take any examination required by the commissioner for initial licensure.
2. An individual holding a valid certificate of registration as an apprentice pursuant to this section for at least four (4) years shall be exempt from taking any qualifying education as required by the commissioner prior to initial licensure.

Acts 2006, ch. 885, § 13; 2010, ch. 1076, §§ 7, 8; 2013, ch. 269, § 4.

62-11-113. Locksmithing services prohibited by state agencies, counties and municipalities — Supersession of local laws — Local registration of businesses.

State agencies, counties and municipalities are prohibited from offering locksmithing services to the general public, whether or not a fee is charged.
No county or municipality shall enact any legislation or promulgate any rules or regulations relating to the licensing of locksmiths required to be licensed under this chapter.
Any resolution, ordinance, law or rules or regulations of any county or municipality requiring the certifying or licensing of a locksmith, locksmith business or its employees shall be superseded by this chapter and shall no longer be effective.
This chapter is not intended to and does not prevent the legally constituted authority of any county or municipality by legislation, rules or regulations and within the police power of the county or municipality from requiring locksmith businesses or licensed locksmiths to register their names, addresses and license certificate numbers with the county or municipality within which they operate. The county or municipality may also require that locksmith businesses give reasonable notice of termination of licenses of registered employees. No fee may be charged, nor any application be required, by any county or municipality for the licensure.

Acts 2006, ch. 885, § 14; 2007, ch. 526, § 20.

62-11-114. Authority to set and collect fees for photo identification card.

The commissioner shall have the authority to set and collect fees for the preparation of a photo identification card for each locksmith working in this state licensed under this chapter.

Acts 2006, ch. 885, § 15.

62-11-115. [Reserved.]

The license number of a locksmith shall be displayed prominently on all motor vehicles used in the course of business and all written advertising by the locksmith.

Acts 2006, ch. 885, § 17.

62-11-117. Listing of license in directories and advertising.

All sole proprietorships, partnerships, or corporations providing locksmith services in the state shall provide a current and valid locksmith license issued in this state when listing such license in directories, and for any other advertising purposes. Failure to list the license as required by this section is a violation of the Consumer Protection Act, compiled in title 47, chapter 18.

Acts 2010, ch. 1107, § 4.

62-11-118. Locksmiths licensed in another state or territory.

Except as provided in subsection (b), a locksmith, licensed in another state or territory, who relocates to this state, shall apply for licensure pursuant to this chapter and meet all requirements set forth in this chapter, and all rules promulgated thereto, prior to providing locksmithing services in this state.
No locksmith, licensed in another state or territory, shall have to meet the initial qualification education requirements for licensure in this state or be required to pass the administrated locksmith exam if such locksmith has any one (1) of the following American Locksmith of America (ALOA) certified designations:
1. Certified registered locksmith (CRL);
2. Certified professional locksmith (CPL); or
3. Certified master locksmith (CML).

Acts 2012, ch. 797, § 2.

62-11-116. Display of license number.

Chapter 12
[Reserved]

Chapter 13
Tennessee Real Estate Broker License Act of 1973

Part 1
General Provisions

62-13-101. Title.

This chapter shall be known and may be cited as the “Tennessee Real Estate Broker License Act of 1973.”

Acts 1973, ch. 181, § 1; T.C.A., § 62-1301.

Cross-References. Discriminatory housing practices, title 4, ch. 21, part 6.

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

Real estate appraisers, title 62, ch. 39.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Brokers, §§ 3, 4, 15, 23; 6 Tenn. Juris., Commercial Law, § 12; 17 Tenn. Juris., Licenses, § 9.

Law Reviews.

Rights and Liabilities of Real Estate Brokers in Tennessee, 23 Tenn. L. Rev. 1005.

NOTES TO DECISIONS

1. Constitutionality.

Chapter was not held unconstitutional under a variety of challenges, including an attack on the codification and enactment of the statutes. Dickerson v. Sanders Mfg. Co., 658 S.W.2d 535, 1983 Tenn. App. LEXIS 566 (Tenn. Ct. App. 1983), overruled, Business Brokerage Centre v. Dixon, 874 S.W.2d 1, 1994 Tenn. LEXIS 95 (Tenn. 1994).

2. Purpose.

This chapter is designed to protect the public from irresponsible or unscrupulous persons dealing in real estate. Bowden Bldg. Corp. v. Tennessee Real Estate Comm'n, 15 S.W.3d 434, 1999 Tenn. App. LEXIS 487 (Tenn. Ct. App. 1999).

3. Auction Sale.

Where the owners of a farm authorized complainants, as real estate brokers, to sell the farm at auction, and agreed to pay them a commission percentage if the price obtained was “satisfactory,” the recovery of such percentage could not be defeated because the brokers instructed the auctioneer to bid for them at the sale, and the auctioneer did so, where it appears that such bidding was merely an attempt to make the farm bring a better price, and that complainants were not attempting to assume a position antagonistic to the defendants. Robeson & Weaver v. Ramsey, 147 Tenn. 25, 245 S.W. 413, 1922 Tenn. LEXIS 18 (1922).

4. Compensation Agreement.

A commission contract fixing the rate for all sales made within a certain period, when breached, entitles the agent to such commissions on sales made within that time, though made by others. Hagan v. Nashville Trust Co., 124 Tenn. 93, 136 S.W. 993, 1910 Tenn. LEXIS 44 (1911).

5. —Exclusive Agency.

An exclusive agency contract was construed as authorizing the agent to sell, that is, to find a purchaser and to consummate a deal, and not authorizing the agent to execute a contract of sale or to give an option agreement for the sale of land. McFadden v. Crisler, 141 Tenn. 531, 213 S.W. 912, 1919 Tenn. LEXIS 6 (1919).

A broker, with a contract entitling him to a commission on sale at a fixed price, did not show a performance entitling him to recover upon procuring an option contract of sale which was not exercised without any fault of the owner, since no absolute purchaser, ready, able, and willing to take the property, was procured. Burton v. Rose, 137 Tenn. 503, 194 S.W. 575, 1917 Tenn. LEXIS 163, L.R.A. (n.s.) 1917E928 (1917).

6. —Paid.

Where the owners of a farm authorized complainants, as real estate brokers, to sell the farm at auction, and agreed to pay a commission percentage if the price obtained was “satisfactory,” they could not defend the suit for commissions on the ground that the purchasers at the auction sale were not bound upon the ground that the memorandum of sale was insufficient under the statute of frauds, where such purchasers had not refused to comply with the terms of sale. Robeson & Weaver v. Ramsey, 147 Tenn. 25, 245 S.W. 413, 1922 Tenn. LEXIS 18 (1922).

7. —Revocation.

Where several persons bought a farm and had the title vested in certain trustees who issued certificates to each of the owners showing the amount each paid, and his interest in the land, and the trustees gave an exclusive agency contract to sell the land, and the certificate holders subsequently sold and transferred all the certificates to two other parties, such transfers constituted a sale of the land and revoked the agency, since there was no stipulation against the sale by the owners and it will never be presumed that an owner has deprived himself of the right to sell his land. McFadden v. Crisler, 141 Tenn. 531, 213 S.W. 912, 1919 Tenn. LEXIS 6 (1919).

8. —Terms of Sale.

An agency contract authorizing the agent to sell land at a price fixed by the owner means a sale for cash, unless the contrary is stated. McFadden v. Crisler, 141 Tenn. 531, 213 S.W. 912, 1919 Tenn. LEXIS 6 (1919).

9. Conflict of Interest.

Broker accepting employment from adverse party, without consent, forfeits compensation. Siler v. Perkins, 126 Tenn. 380, 149 S.W. 1060, 1912 Tenn. LEXIS 63, 47 L.R.A. (n.s.) 232 (1912).

10. Counter Offer.

Where under its terms counter offer by vendor for sale of land expired July 1, but manner of acceptance was not specified, purchasers' notification of acceptance made to real estate brokers, who had shown land and with whom purchaser had dealt in the transaction, was binding on vendor where notice was prior to vendor's attempted withdrawal of offer on July 1. Dobson & Johnson, Inc. v. Waldron, 47 Tenn. App. 121, 336 S.W.2d 313, 1960 Tenn. App. LEXIS 74 (Tenn. Ct. App. 1960).

11. Licensing.

Testimony of plaintiff that he was a licensed broker at the time that the events involved in the litigation were transpiring was sufficient to meet the requirements of this chapter where the issue of the plaintiff's broker's license is raised for the first time on appeal. Smithwick v. Young, 623 S.W.2d 284, 1981 Tenn. App. LEXIS 550, 28 A.L.R.4th 994 (Tenn. Ct. App. 1981).

The restrictive provisions of this chapter only apply where an individual is acting for another; where he is acting on his own behalf, there is no requirement that a person acquire a real estate license before negotiating a conveyance of land. Hermitage House Square, L.P. v. England, 929 S.W.2d 356, 1996 Tenn. App. LEXIS 176 (Tenn. Ct. App. 1996).

12. Sales Commission.

Where defendants, the owners of a farm, authorized complainants, as real estate agents, to sell the farm at auction, and agreed that if the property did not sell for a price that was “satisfactory” to them they were to pay a certain amount for services rendered, but if they confirmed the sale, then they were to pay five per cent of the sale price, where the farm brought a price in excess of its value, and with which the owners, as reasonable men, should have been satisfied, they could not, in an action for the percentage, claim that they had refused to confirm because the price was not “satisfactory.” Robeson & Weaver v. Ramsey, 147 Tenn. 25, 245 S.W. 413, 1922 Tenn. LEXIS 18 (1922).

13. —Amount.

A real estate agent, employed to sell property without any special contract as to his compensation, will be entitled to prove and recover such reasonable commissions as, for similar services, real estate agents in that particular locality are, by usage and custom, entitled. Arrington & Farrar v. Cary, 64 Tenn. 609, 1875 Tenn. LEXIS 139 (1875); Pennsylvania R.R. v. Naive, 112 Tenn. 239, 79 S.W. 124, 1903 Tenn. LEXIS 101, 64 L.R.A. 443 (1903).

14. —Auction Sales.

Where the owners of a farm authorized real estate agents to sell the farm at auction, and agreed to pay them a certain percentage, if the sale was satisfactory and they confirmed it and it appeared that at the sale the auctioneer announced that there would be no by bidding, the owners not contradicting such announcement, the owners could not, after by-bidders procured by them had bid in certain portions of the land, contend in a controversy with the real estate agents as to their commissioners that such bids were not valid and binding. Robeson & Weaver v. Ramsey, 147 Tenn. 25, 245 S.W. 413, 1922 Tenn. LEXIS 18 (1922).

15. —Not Paid.

Commissions were disallowed for parol sale. Gilchrist v. Clarke, 86 Tenn. 583, 8 S.W. 572, 1888 Tenn. LEXIS 10 (1888).

No commissions for first talking to a purchaser where the sale was made by another agent. Glascock v. Vanfleet, 100 Tenn. 603, 46 S.W. 449, 1898 Tenn. LEXIS 23 (1898).

A real estate agent is not entitled to commissions when he does not produce the purchaser, nor make the sale, nor inform the owner of the prospective purchaser who learned that the land was for sale and the name of the owner thereof, independent of the agent and at the same time the agent learned the facts. Nance v. Smyth, 118 Tenn. 349, 99 S.W. 698, 1906 Tenn. LEXIS 101 (1907).

A broker to sell property is not entitled to a commission on the earnest money paid and forfeited to the seller under an option contract, for the broker must rely upon the option ripening into a sale absolute for his commission, or upon the fact that the option purchaser is ready, able, and willing to take a deed thereunder. Burton v. Rose, 137 Tenn. 503, 194 S.W. 575, 1917 Tenn. LEXIS 163, L.R.A. (n.s.) 1917E928 (1917).

16. —Paid.

Where a real estate broker, employed to sell land, produces or first brings to the owner's notice a prospective purchaser to whom the owner makes the sale, such broker is entitled to his commissions. Arrington & Farrar v. Cary, 64 Tenn. 609, 1875 Tenn. LEXIS 139 (1875); Royster v. Mageveney, 77 Tenn. 148, 1882 Tenn. LEXIS 26 (1882); Parker v. Walker, 86 Tenn. 566, 8 S.W. 391, 1888 Tenn. LEXIS 9 (1888); Glascock v. Vanfleet, 100 Tenn. 603, 46 S.W. 449, 1898 Tenn. LEXIS 23 (1898); Nance v. Smyth, 118 Tenn. 349, 99 S.W. 698, 1906 Tenn. LEXIS 101 (1907).

A real estate broker is entitled to his commissions when he has effected a valid written contract for the sale of land. Parker v. Walker, 86 Tenn. 566, 8 S.W. 391, 1888 Tenn. LEXIS 9 (1888); Gilchrist v. Clarke, 86 Tenn. 583, 8 S.W. 572, 1888 Tenn. LEXIS 10 (1888); Siler v. Perkins, 126 Tenn. 380, 149 S.W. 1060, 1912 Tenn. LEXIS 63, 47 L.R.A. (n.s.) 232 (1912).

A real estate agent is entitled to his commissions for the sale of land, when he has procured and presented to his principal a purchaser who is ready, able, and willing to purchase the land and comply with the required terms of sale. Cheatham v. Yarbrough, 90 Tenn. 77, 15 S.W. 1076, 1890 Tenn. LEXIS 104 (1890); Nance v. Smyth, 118 Tenn. 349, 99 S.W. 698, 1906 Tenn. LEXIS 101 (1907); Siler v. Perkins, 126 Tenn. 380, 149 S.W. 1060, 1912 Tenn. LEXIS 63, 47 L.R.A. (n.s.) 232 (1912).

A real estate broker, when the actual moving and efficient cause of the sale, is entitled to his commission. Glascock v. Vanfleet, 100 Tenn. 603, 46 S.W. 449, 1898 Tenn. LEXIS 23 (1898); Nance v. Smyth, 118 Tenn. 349, 99 S.W. 698, 1906 Tenn. LEXIS 101 (1907).

A real estate agent who brings the vendor and a proposed purchaser together is entitled to his commissions on the sale completed by the vendor. Nance v. Smyth, 118 Tenn. 349, 99 S.W. 698, 1906 Tenn. LEXIS 101 (1907).

17. —Sale by Owner.

A real estate broker is entitled to compensation for bringing the parties together, where they consummate the trade, with changes, in the absence of the broker and after telling him there was nothing further he could do. Siler v. Perkins, 126 Tenn. 380, 149 S.W. 1060, 1912 Tenn. LEXIS 63, 47 L.R.A. (n.s.) 232 (1912).

A real estate agent is not entitled to commissions for a sale where the purchase was made from the owner, though the purchaser's attention was called to the property by the newspaper advertisement of the agent. Charltson & Lewis v. Wood, 58 Tenn. 19, 1872 Tenn. LEXIS 221 (1872); Nance v. Smyth, 118 Tenn. 349, 99 S.W. 698, 1906 Tenn. LEXIS 101 (1907).

A real estate agent effecting a sale to a satisfactory purchaser, upon the owner's terms, after the owner had made a sale without notice to the agent, is entitled to full commissions as for a sale. Woodall v. Foster, 91 Tenn. 195, 18 S.W. 241, 1891 Tenn. LEXIS 93 (1892); Siler v. Perkins, 126 Tenn. 380, 149 S.W. 1060, 1912 Tenn. LEXIS 63, 47 L.R.A. (n.s.) 232 (1912).

18. —Salesman.

A real estate salesman merely worked for and was under the control of the real estate broker and was “engaged by and on behalf of a licensed real estate broker” and did not perform services for which he could have claimed commission. Turnblazer v. Smith, 214 Tenn. 277, 379 S.W.2d 772, 1964 Tenn. LEXIS 475 (1964).

62-13-102. Chapter definitions.

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

“Acquisition agent” means a person who by means of personal inducement, solicitation, or otherwise attempts directly to encourage any person to attend a sales presentation for a time-share program; provided, however, that “acquisition agent” shall not include any person or that person's employee who engages in any such activity solely on real property owned or leased by the person on or within the premises of a hotel, motel, private resort or lodging rental office or phone or mail solicitation business;
“Adverse facts” means conditions or occurrences generally recognized by competent licensees that have negative impact on the value of the real estate, significantly reduce the structural integrity of improvements to real property or present a significant health risk to occupants of the property;
“Affiliate broker” means any person engaged under contract by or on behalf of a licensed broker to participate in any activity included in subdivision (4);
1. “Broker” means any person who, for a fee, commission, finders fee or any other valuable consideration or with the intent or expectation of receiving a fee, commission, finders fee or any other valuable consideration from another, solicits, negotiates or attempts to solicit or negotiate the listing, sale, purchase, exchange, lease or option to buy, sell, rent or exchange for any real estate or of the improvements on the real estate or any time-share interval as defined in the Tennessee Time-Share Act, compiled in title 66, chapter 32, part 1, collects rents or attempts to collect rents, auctions or offers to auction or who advertises or holds out as engaged in any of the foregoing;
2. “Broker” also includes any person employed by or on behalf of the owner or owners of lots or other parcels of real estate, at a salary, fee, commission or any other valuable consideration, to sell the real estate or any part of the real estate, in lots or parcels or other disposition of the real estate. It also includes any person who engages in the business of charging an advance fee or contracting for collection of a fee in connection with any contract whereby the person undertakes primarily to promote the sale of real estate either through its listing in a publication issued primarily for that purpose or for referral of information concerning the real estate to brokers, or both;
“Client” means a party to a transaction with whom the broker has entered into a specific written agency agreement to provide services;
“Customer” means any party, other than a client in a transaction, for whom or to whom a licensee provides services;
“Designated agent” refers to a licensee who has been chosen by the licensee's managing broker to serve as the agent of an actual or prospective party to a transaction, to the exclusion of other licensees employed by or affiliated with the broker;
“Dual agency” refers to a situation in which the licensee has agreements to provide services as an agent to more than one (1) party in a specific transaction and in which the interests of the parties are adverse;
“Facilitator” means any licensee:
1. Who assists one (1) or more parties to a transaction who has not entered into a specific written agency agreement representing one (1) or more of the parties; or
2. Whose specific written agency agreement provides that if the licensee or someone associated with the licensee also represents another party to the same transaction, the licensee shall be deemed to be a facilitator and not a dual agent; provided, that notice of assumption of facilitator status is provided to the buyer and seller immediately upon the assumption of facilitator status, to be confirmed in writing prior to execution of the contract. A facilitator may advise either or both of the parties to a transaction but cannot be considered a representative or advocate of either party. “Transaction broker” may be used synonymously with, or in lieu of, “facilitator” as used in any disclosures, forms or agreements under this chapter;
“Limited agency” means an agency relationship created for the purpose of providing real estate services in which the client's or other party's liability for the actions or statements of an agent, subagent or facilitator is limited to actions or statements initiated by specific instruction of the client or other party or those actions or statements about which the client or other party had knowledge;
“Material” means any statement, representation or fact relative to a transaction that would affect a reasonable person's decision to enter into an agreement and that has been identified by the person as being of significance to a particular party;
“Party” means any person or persons seeking to obtain or divest an interest in real estate or a business opportunity as a buyer, seller, landlord, tenant, option grantee or option grantor;
“Person” means and includes individuals, corporations, partnerships or associations, foreign and domestic;
“Real estate” means and includes leaseholds, as well as any other interest or estate in land, whether corporeal, incorporeal, freehold or nonfreehold, and whether the real estate is situated in this state or elsewhere;
“Time-share salesperson” means any person acting as a seller of any time-share interval under contract with or control of a licensed real estate broker pursuant to a registered time-share program. Notwithstanding any law to the contrary, a licensed broker or affiliate broker is entitled to sell time-share intervals pursuant to a registered time-share program; and
“Transaction” means the purchase, sale, rental or option of an interest in real estate or business opportunity.

Acts 1973, ch. 181, § 3; 1981, ch. 372, § 32; 1981, ch. 473, § 1; T.C.A., § 62-1302; Acts 1989, ch. 89, § 1; 1995, ch. 246, § 1; 1996, ch. 772, §§ 1-3; 2002, ch. 812, § 1.

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

Single act identifies broker or affiliate, § 62-13-103.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Brokers, §§ 2, 4; 17 Tenn. Juris., Licenses, § 9.

Attorney General Opinions. Applicability of exemption provided to “corporation, foreign or domestic” in T.C.A. § 62-13-104(a)(1)(F). OAG 14-27, 2014 Tenn. AG LEXIS 28 (3/6/14).

NOTES TO DECISIONS

1. Broker.

Where seller informed plaintiff broker that his farm was for sale on certain terms to anyone, but there was no express contract of employment with broker and where seller specifically disavowed any obligation to pay commissions, the court found that plaintiff was not seller's broker and that seller had no implied liability for commissions. Billington v. Crowder, 553 S.W.2d 590, 1977 Tenn. App. LEXIS 287 (Tenn. Ct. App. 1977).

The language used in this act is broad enough to include the sale of a going business involving an interest in real estate and to require a broker negotiating such a transaction to have a real estate license. Stinson v. Potter, 568 S.W.2d 291, 1978 Tenn. App. LEXIS 293 (Tenn. Ct. App. 1978).

Company which solicited the listing of defendant's real estate at defendant's Tennessee offices, negotiated the terms of the listing with defendant's in-house counsel in Nashville, and entered into a sales listing agreement upon defendant's promise to pay a real estate commission, was acting as a broker within the meaning of T.C.A. § 62-13-102 and § 62-13-103 when it committed these acts, and was therefore required to comply with the licensing requirements of this chapter. Binswanger S. (N.C.), Inc. v. Textron, Inc., 860 S.W.2d 862, 1993 Tenn. App. LEXIS 278 (Tenn. Ct. App. 1993).

An owner of property who lists or sells its own interest in property is not a broker requiring licensing. Bowden Bldg. Corp. v. Tennessee Real Estate Comm'n, 15 S.W.3d 434, 1999 Tenn. App. LEXIS 487 (Tenn. Ct. App. 1999).

Any person, other than an owner of property who lists or sells its own interest but including an employee or other agent of the owner, who lists or sells that property qualifies as a broker if that broker receives or expects to receive any valuable consideration that is associated with their efforts in soliciting or negotiating the listing, sale or purchase of the real estate. Bowden Bldg. Corp. v. Tennessee Real Estate Comm'n, 15 S.W.3d 434, 1999 Tenn. App. LEXIS 487 (Tenn. Ct. App. 1999).

Where evidence showed that the sale of a billboard advertising business was not performed by licensed real estate brokers, and the sale of real estate associated with the business was not merely incidental, the sellers were unable to recover commissions in a breach of contract action; moreover, they were ordered to return the commissions already paid, and the parties' contract was unenforceable since it was illegal. Burks v. Elevation Outdoor Adver., LLC, 220 S.W.3d 478, 2006 Tenn. App. LEXIS 486 (Tenn. Ct. App. 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 1176 (Tenn. Dec. 18, 2006).

2. Real Estate.

Plaintiff, as a stranger to the partnership, cannot benefit from the legal fiction that real estate held by a partnership is considered personalty between the partners. Dickerson v. Sanders Mfg. Co., 658 S.W.2d 535, 1983 Tenn. App. LEXIS 566 (Tenn. Ct. App. 1983), overruled, Business Brokerage Centre v. Dixon, 874 S.W.2d 1, 1994 Tenn. LEXIS 95 (Tenn. 1994).

Business broker is not precluded from recovering a commission if the real estate component is “merely incidental” to the sale of the entire business. Business Brokerage Centre v. Dixon, 874 S.W.2d 1, 1994 Tenn. LEXIS 95 (Tenn. 1994).

Where the sale of a business involves only a transfer of stock, the real estate owned by the corporation should be viewed as incidental to the sale unless it is the business' principal asset. March Group, Inc. v. Bellar, 908 S.W.2d 956, 1995 Tenn. App. LEXIS 383 (Tenn. Ct. App. 1995).

Where the plaintiffs purchased a house that was subject to flooding, the seller or client for purposes of T.C.A. § 62-13-102(5) was not liable for the designated sales agent's alleged knowledge of prior flooding; the contract contained an exculpatory clause and the imputation of the agent's knowledge was barred by T.C.A. § 62-13-406(c). There was no evidence that the sales agent had any knowledge of flood damage or other defects. Ingram v. Cendant Mobility Fin. Corp., 215 S.W.3d 367, 2006 Tenn. App. LEXIS 647 (Tenn. Ct. App. 2006).

3. Affiliate Broker.

There is no appreciable difference between a “real estate salesman” and an “affiliate broker”; an affiliate broker is still under the direction and control of a licensed broker and engaged by the broker to do the broker's bidding. Burke v. KRA Holdings, 42 S.W.3d 868, 2000 Tenn. App. LEXIS 298 (Tenn. Ct. App. 2000).

4. Adverse Facts.

Trial court properly granted a seller and a licensed affiliate broker summary judgment because the broker did not have knowledge of “adverse facts” within the meaning of the Tennessee Residential Property Disclosure Act and the Tennessee Real Estate Broker License Act of 1973; nothing in the record created a genuine issue of material fact as to whether the broker knew that a cabin had been left vacant without a roof, doors, windows, or a deck or was otherwise exposed to the elements. Haynes v. Lunsford, — S.W.3d —, 2017 Tenn. App. LEXIS 69 (Tenn. Ct. App. Feb. 2, 2017).

Because buyers generally alleged that a seller and a licensed affiliate broker breached their duty owed to the buyers by failing to disclose all material facts as to the actual condition of the home, and they did not mention either the Tennessee Real Estate Broker License Act of 1973 or the Tennessee Residential Property Disclosure Act in their complaint, the more comprehensive definition of “adverse facts” applied. Haynes v. Lunsford, — S.W.3d —, 2017 Tenn. App. LEXIS 69 (Tenn. Ct. App. Feb. 2, 2017).

62-13-103. Broker or affiliate identified by single act.

Any person who, directly or indirectly for another, with the intention or upon the promise of receiving any valuable consideration, offers, attempts or agrees to perform or performs any single act defined in § 62-13-102, whether as a part of a transaction or as an entire transaction, is deemed a broker, affiliate broker or time-share salesperson within the meaning of this chapter.
The commission of a single such act by a person required to be licensed under this chapter and not so licensed constitutes a violation of this chapter.

Acts 1973, ch. 181, § 4; T.C.A., § 62-1304; Acts 1989, ch. 89, § 2.

Cross-References. Penalty, § 62-13-110.

Textbooks. Tennessee Jurisprudence, 17 Tenn. Juris., Licenses, § 14.

NOTES TO DECISIONS

1. Party Held to Be Broker.

Company which solicited the listing of defendant's real estate at defendant's Tennessee offices, negotiated the terms of the listing with defendant's in-house counsel in Nashville, and entered into a sales listing agreement upon defendant's promise to pay a real estate commission, was acting as a broker within the meaning of § 63-13-102 and T.C.A. § 62-13-103 when it committed these acts, and was therefore required to comply with the licensing requirements of this chapter. Binswanger S. (N.C.), Inc. v. Textron, Inc., 860 S.W.2d 862, 1993 Tenn. App. LEXIS 278 (Tenn. Ct. App. 1993).

Salaried employees used to sell real estate for corporation engaged in the business of acquiring and selling real estate for its own account, were required to possess a real estate broker's license, despite that the employees were not paid on a commission basis in relation to the value of the corporate real estate sold by the representative. Bowden Bldg. Corp. v. Tennessee Real Estate Comm'n, 15 S.W.3d 434, 1999 Tenn. App. LEXIS 487 (Tenn. Ct. App. 1999).

62-13-104. Exemptions — Firm licenses for vacation lodging services.

1. This chapter does not apply to:
  1. An owner of real estate with respect to property owned or leased by such person;
  2. An attorney-in-fact under a duly executed and recorded power of attorney from the owner or lessor;
  3. The services rendered by an attorney at law in the performance of duties as an attorney at law;
  4. A person acting as receiver, trustee in bankruptcy, administrator, executor or guardian, trustee acting under a trust agreement, deed of trust or will or while acting under a court order or instrument;
  5. A resident manager for a broker or an owner, or employee of a broker, who manages an apartment building, duplex or residential complex where the person's duties are limited to supervision, exhibition of residential units, leasing or collection of security deposits and rentals from the property. The resident manager or employee shall not negotiate the amounts of security deposits or rentals and shall not negotiate any leases on behalf of the broker; or
  6. A corporation, foreign or domestic, acting through an officer duly authorized to engage in a real estate transaction, where the transaction occurs as an incident to the management, lease, sale or other disposition of real estate owned by the corporation; however, this exemption does not apply to a person who performs an act described in § 62-13-102(4)(A), either as a vocation or for compensation, if the amount of the compensation is dependent upon, or directly related to, the value of the real estate with respect to which the act is performed.
2. In addition, except as provided in subsection (b), no other provisions of this chapter or any rules and regulations promulgated pursuant thereto shall apply to vacation lodging services.
1. As used in this section, unless the context otherwise requires:
  1. “Designated agent” means an owner, principal, officer or upper level manager of a vacation lodging service firm;
  2. “Person” means any natural person, corporation, company, partnership, firm or association; and
  3. “Vacation lodging service” means any person that engages in the business of providing the services of management, marketing, booking and rental of residential units owned by others as sleeping accommodations furnished for pay to transients or travelers staying no more than fourteen (14) days.
2. Each vacation lodging service shall be required to have a vacation lodging service firm license but shall not be required to have a licensed real estate broker supervising the business. The application for the license shall be filed in the office of the real estate commission on forms that the commission may prescribe and shall be accompanied by a fee for the issuance of the license as specified in § 62-13-308.
3. 1. Vacation lodging service firm licenses for vacation lodging services shall be granted to all applicants who bear a good reputation for honesty, trustworthiness, integrity and competence to transact the business of providing vacation lodging services in a manner to safeguard the interest of the public and only after satisfactory proof of such qualifications has been presented to the commission. No license shall be denied any person because of race, color, religion, sex or national origin, handicap or familial status.
  2. 1. Upon application for a firm license for a vacation lodging service and each renewal of the license, the firm shall designate one (1) individual from that firm who shall be individually licensed as a designated agent through the Tennessee real estate commission. Such designated agent shall be responsible for the completion of training programs to be taught by an individual in the vacation lodging services business or other person who meets qualifications set by the Tennessee real estate commission. Such training programs shall consist of instruction in the fundamentals of this subsection (b) and related topics. No person shall be licensed by the commission as a designated agent until such person completes the required eight-hour introductory course.
    2. Every two (2) years, as a requisite for the reissuance of a firm license for a vacation lodging service and for reissuance of the designated agent license, the firm shall furnish certification that the designated agent for the firm has completed eight (8) classroom hours in training programs approved by the commission.
    3. No examination shall be required for the issuance or renewal of a firm license for a vacation lodging service.
  3. Upon application for a firm license for a vacation lodging service and each renewal of the license, the firm shall provide proof of the establishment of the firm's escrow account satisfactory to the commission. Every firm shall, in accordance with the rules promulgated by the commission under § 62-13-203, keep an escrow or trustee account of funds deposited with the firm relating to vacation lodging services. The vacation lodging service shall maintain for a period of at least three (3) years accurate records of the account showing:
    1. The depositor of the funds;
    2. The date of deposit;
    3. The payee of the funds; and
    4. Other pertinent information that the commission may require.
  4. 1. No funds shall be distributed from the escrow/trustee account until the customer's stay is complete, unless the distribution is in accordance with terms disclosed to the renter in writing at the time of making the reservation or within a reasonable time thereafter not to exceed three (3) days, mailed to the renter through the United States postal service or transmitted to the renter via electronic mail, facsimile or other tangible form of communication. Commissions earned by the firm and the revenue due owners shall be disbursed at least monthly. Funds held in escrow shall be disbursed in a prompt manner without unreasonable delay.
    2. A vacation lodging service may be exempt from the requirements of subdivision (b)(3)(C) by submitting with its application for a firm license renewal an irrevocable letter of credit from a state or national bank or state or federal savings and loan association having its principal office in this state or any state or national bank or state or federal savings and loan association that has its principal office outside this state and that maintains one (1) or more branches in this state that are authorized to accept federally insured deposits. The terms and conditions of any irrevocable letter of credit shall be subject to the approval of the commission. At the discretion of the bank or savings and loan association, the form of the irrevocable letter of credit shall be provided by the bank or savings and loan association and may be based on either the Uniform Commercial Code, compiled in title 47, chapter 5, or the ICC Uniform Customs and Practice for Documentary Credits (UCP 500). In lieu of the irrevocable letter of credit, the commission is authorized to accept equivalent security. The irrevocable letter of credit or equivalent security shall be in the amount of the vacation lodging service's average advanced monthly deposits or other lesser amount that is reasonably determined by the commission to protect the renters and owners. The commission may draw upon the irrevocable letter of credit or equivalent security to reimburse renters or owners for funds owed to them by the vacation lodging service. The commission shall offer the vacation lodging service a contested case hearing under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, before drawing upon the irrevocable letter of credit or equivalent security if the vacation lodging service continues to maintain the letter of credit or equivalent security during the contested case hearing process. If the vacation lodging service does not continue to maintain the irrevocable letter of credit or equivalent security during the contested case hearing process and the irrevocable letter of credit or equivalent security is subject to expiring during the contested case hearing process, the commission may draw upon the irrevocable letter of credit or equivalent security before conducting the contested case hearing. Where the commission draws upon the irrevocable letter of credit or equivalent security before conducting a contested case hearing, the commission shall offer the vacation lodging service a prompt hearing to be conducted before it distributes the proceeds. A vacation lodging service firm working under an irrevocable letter of credit must submit satisfactory proof of such letter of credit by April 1 of each year. The commission may impose a penalty for failure to disclose such proof by such date.
4. All firm and designated agent licenses for vacation lodging services shall expire two (2) years from the date the license was issued or renewed. The firm license and the license for the designated agent for the firm, and all renewals thereof, shall expire at the same time. If a license is issued to a designated agent following the date the firm license is issued or renewed, the license for the designated agent shall be issued or renewed so that it expires on the date the license of the firm is to expire. The commission is authorized to pro-rate the license for the designated agent or extend the date for the renewal of such a license to ensure the licenses expire concurrently. The licenses must be renewed on or before the expiration date by remitting to the commission the fee as set by the commission together with proof of the existence of the firm's escrow account satisfactory to the commission and certification of satisfactory completion of training pursuant to subdivision (b)(3)(B).
5. Each vacation lodging service shall have an office at a fixed location with adequate facilities located to conform with zoning laws and ordinances. Within ten (10) days after any change of location of the office, the vacation lodging service shall notify the commission in writing of the new business address.
6. Whenever any lodging rental customer or lodging rental owner claiming to have been injured or damaged by the gross negligence, incompetency, fraud, dishonesty or misconduct on the part of any licensee following the calling or engaging in the business of providing vacation lodging services files suit upon the claim against the licensee in any court of record in this state and recovers judgment on the claim, the court may, as a part of its judgment or decree in such cases, if it deems it a proper case in which so to do, revoke the certificate of license granted under this chapter; and the certificate of license shall not be reissued to the licensee except upon the consenting vote of six (6) members in favor of reissuance.
7. 1. The commission may, upon its own motion, and shall, upon the verified complaint in writing of any person setting forth a cause of action under this section, ascertain facts and, if warranted, hold a hearing for reprimand or for the suspension or revocation of a license.
  2. The commission has the power to refuse a license for cause or to suspend or revoke a license where it has been obtained by false representation or by fraudulent act or conduct, or where a licensee, in performing or attempting to perform any of the acts mentioned in this section, is found guilty of:
    1. Making any substantial and willful misrepresentation;
    2. Making any promise of a character likely to influence, persuade or induce any person to enter into any contract or agreement when the licensee could not or did not intend to keep the promise;
    3. Pursuing a continued and flagrant course of misrepresentation or making of false promises through other persons, any medium of advertising or otherwise;
    4. Misleading or untruthful advertising, including use of the term “realtor” by a person not authorized to do so, or using any other trade name, insignia or membership in any real estate association or organization of which the licensee is not a member. No vacation lodging service doing business under this subsection (b) may advertise or hold itself out as a full service real estate business. The authority of the business is limited to those activities described within this subsection (b);
    5. Failing, within a reasonable time, to account for or to remit any moneys coming into the licensee's possession that belong to others;
    6. Failing to preserve for three (3) years accurate records of the firm's escrow account as prescribed by subdivision (b)(3)(C);
    7. Failing to furnish a copy of any contract to provide vacation lodging services to all signatories of the contract at the time of execution;
    8. Using or promoting the use of any contract to provide vacation lodging services for a residential unit that fails to specify a definite termination date;
    9. Being convicted in a court of competent jurisdiction of this or any other state or federal court of forgery, embezzlement, obtaining money under false pretenses, bribery, larceny, extortion, conspiracy to defraud or any similar offense or offenses, or pleading guilty or nolo contendere to any such offense or offenses;
    10. Violating any federal, state or municipal law prohibiting discrimination in the rental of real estate because of race, color, religion, sex or national origin;
    11. Violating this subsection (b) or the terms of any lawful order entered by the commission;
    12. Engaging in the unauthorized practice of law; or
    13. Any conduct, whether of the same or of a different character from that specified in this subdivision (b)(7)(B), that constitutes improper, fraudulent or dishonest dealing.
  3. The director of the division of regulatory boards or the director's duly authorized representatives may, at all reasonable hours, examine and copy the books, accounts, documents or records that are relevant to a determination of whether a licensee has properly maintained and disbursed funds from escrow or trustee accounts required in this subsection (b). In the case of refusal to permit the access accorded by this subsection (b), the director or the director's authorized representatives may pursue the remedies provided by § 4-5-311(b) for disobedience to any lawful agency requirement for information. Refusal shall also constitute grounds for the commission to suspend or revoke a license.
  4. Whenever any licensee pleads guilty or is convicted of any criminal offense enumerated in this section, the licensee must within sixty (60) days notify the commission of that conviction and provide the commission with certified copies of the conviction. The licensee's license shall automatically be revoked sixty (60) days after the licensee's conviction unless the licensee makes a written request to the commission for a hearing during that sixty-day period. Following any hearing held pursuant to this section, the commission in its discretion may impose upon that licensee any sanction permitted by this section.
8. 1. 1. Before refusing to issue a license or suspending or revoking an existing license upon the verified written complaint of any person setting out a cause of action under subdivision (b)(7), the commission shall, in writing, notify the accused applicant or licensee of its receipt of the complaint, enclosing a copy.
    2. The accused applicant or licensee shall, within ten (10) days, file with the commission the applicant's or licensee's answer to the complaint, a copy of which shall be transmitted to the complainant.
    3. If, after investigation, the commission determines that the matter should have a hearing, a time and place for the hearing shall be set.
  2. All notices and answers required or authorized to be made or filed under this subsection (b) may be served or filed personally, or by registered mail, to the last known business address of the addressee. If served personally, the time shall run from the date of service and if by registered mail, from the postmarked date of the letter enclosing the document.
  3. The affirmative vote of a majority of the commission shall be necessary to reprimand a licensee or revoke or suspend a license.
  4. In the event that the matter contained in the complaint has been filed or made a part of a case pending in any court in this state, the commission may then withhold its decision until the court action has been concluded.
9. 1. If a designated agent, as designated by a vacation lodging service firm, leaves or moves from the vacation lodging service firm, the firm or designated agent for such firm must notify the Tennessee real estate commission within ten (10) days of such action. The vacation lodging service firm must replace the designated agent within sixty (60) days of such action and notify the commission of the name of the new designated agent. During such time period, all rules or regulations related to a vacation lodging service firm shall remain in full force and effect with respect to such a vacation lodging service firm until a designated agent is replaced. Any obligation or duty required to be fulfilled by the designated agent shall be fulfilled by another person in the vacation lodging service firm.
  2. A designated agent may serve as a designated agent for multiple offices of the same vacation lodging service firm within a fifty (50) mile radius of the principal office of the firm, but may not serve as a designated agent for multiple firms.
10. The Tennessee real estate commission is authorized to promulgate rules and regulations in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to implement this subsection (b).

Acts 1973, ch. 181, § 5; 1977, ch. 207, § 1; T.C.A., § 62-1307; Acts 1988, ch. 469, § 1; 1998, ch. 881, §§ 1-4; 2003, ch. 277, §§ 1, 2; 2005, ch. 252, § 1; 2010, ch. 1147, §§ 1-14.

Compiler's Notes. Acts 2010, ch. 1147, § 15 provided that if a person named as a designated agent for a vacation lodging service firm has completed the course required by § 62-13-104(b)(3)(B) to be licensed as a designated agent prior to July 1, 2011, or between June 30, 2010, and July 1, 2011, such person shall not be required to retake any such course in order to be licensed as a designated agent by the Tennessee real estate commission.

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

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Brokers, §§ 4, 15; 12 Tenn. Juris., Executors and Administrators, § 52.

Attorney General Opinions. Real estate commission rulemaking authority for vacation lodging services. OAG 12-24, 2012 Tenn. AG LEXIS 24 (2/28/12).

Applicability of exemption provided to “corporation, foreign or domestic” in T.C.A. § 62-13-104(a)(1)(F). OAG 14-27, 2014 Tenn. AG LEXIS 28 (3/6/14).

The term “owner” in T.C.A. § 62-13-104(a)(1)(A), include corporations, limited liability companies, limited liability partnerships, or other business entities because the context makes clear that “owner” refers to a “person” who owns or leases real estate, and for purposes of T.C.A. § 62-13-104 “person” is defined as “any natural person, corporation, company, partnership, firm or association.” Business entities other than corporations, such as limited liability companies and partnership, do not qualify for the “corporate exemption” in T.C.A. § 62-13-104(a)(1)(F). They qualify, if at all, only for the “owner exemption” provided for in T.C.A. § 62-13-104(a)(1)(A). Furthermore, a corporate entity that owns less than 100% of a particular property is exempt from the broker license requirement only with respect to activities involving the specific portion of the property it owns. The license requirement would apply to any actions involving the property as a whole or specific parts of the property that the corporate entity did not own. A lessee of property is an “owner” of real estate who may qualify for the “owner exemption,” but only with respect to the lessee's ownership interest in the lease, not with respect to the entire property. Furthermore, an individual or entity who owns a percentage of a limited liability company, which in turn owns 100% of a piece of real estate, does not qualify for the “owner exemption.” OAG 19-15, 2019 Tenn. AG LEXIS 55 (9/16/2019).

NOTES TO DECISIONS

1. Power of Attorney.

Power of attorney exclusion referred to power of attorney authorizing performance of ministerial acts and did not apply to power of attorney involving exercise of discretion, hence power of attorney to unlicensed real estate agent to consummate sale of property was not within the statutory exclusion. Brown v. Van Pelt, 37 Tenn. App. 352, 263 S.W.2d 956, 1953 Tenn. App. LEXIS 94 (Tenn. Ct. App. 1953).

2. Failure to Satisfy Exemption.

Failure to satisfy both requirements in T.C.A. § 62-13-104(a)(6) removes employees from the section's exemption, and employees would be required to possess a real estate broker's license. Bowden Bldg. Corp. v. Tennessee Real Estate Comm'n, 15 S.W.3d 434, 1999 Tenn. App. LEXIS 487 (Tenn. Ct. App. 1999).

Salaried employees used to sell real estate for corporation who were not paid on a commission basis in relation to the value of the corporate real estate, did not satisfy the exemption contained in T.C.A. § 62-13-104(a)(6); the employees must also be corporate officers authorized to engage in such real estate transactions, and must not perform such real estate services as a vocation. Bowden Bldg. Corp. v. Tennessee Real Estate Comm'n, 15 S.W.3d 434, 1999 Tenn. App. LEXIS 487 (Tenn. Ct. App. 1999).

Exception to the licensing requirement for real estate brokers did not apply where a seller of a business had a partial ownership interest in billboards because they were properly characterized as trade fixtures. Burks v. Elevation Outdoor Adver., LLC, 220 S.W.3d 478, 2006 Tenn. App. LEXIS 486 (Tenn. Ct. App. 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 1176 (Tenn. Dec. 18, 2006).

62-13-105. Action by broker to collect compensation.

No action or suit shall be instituted, nor recovery be had by any person, in any court of this state for compensation for any act done or service rendered, the doing or rendering of which is prohibited under this chapter to other than by licensed brokers, affiliate brokers or time-share salespersons, unless the person was duly licensed under this chapter as a broker, affiliate broker or time-share salesperson at the time of performing or offering to perform any such act or service or procuring any promise or contract or the payment of compensation for any such contemplated act or service.

Acts 1973, ch. 181, § 6; 1981, ch. 473, § 3; T.C.A., § 62-1308; Acts 1989, ch. 89, §§ 3, 4.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Brokers, §§ 15, 23; 17 Tenn. Juris., Licenses, § 23.

NOTES TO DECISIONS

1. In General.

No commissions without a license. Stevenson v. Ewing, 87 Tenn. 46, 9 S.W. 230, 1888 Tenn. LEXIS 33 (1888); Singer Mfg. Co. v. Draper, 103 Tenn. 262, 52 S.W. 879, 1899 Tenn. LEXIS 102 (1899); Watterson v. Mayor of Nashville, 106 Tenn. 410, 61 S.W. 782, 1900 Tenn. LEXIS 176 (1900); Pile v. Carpenter, 118 Tenn. 288, 99 S.W. 360, 1906 Tenn. LEXIS 97 (1906).

A person, acting in good faith reliance upon a temporary license and the recording of his bond as authority to proceed as an affiliate broker, although not legally licensed, was entitled to recover a commission from a seller who was a building contractor and who was in a position to know the qualifications of real estate brokers and to deal at arms length with them because the licensing provisions are intended to protect the public and not persons in the same business dealing at arms length. Tackett v. Mullins, 612 S.W.2d 909, 1981 Tenn. LEXIS 415 (Tenn. 1981).

2. Compensation.

Compensation embraces almost every form of recovery, including quantum meruit. Dickerson v. Sanders Mfg. Co., 658 S.W.2d 535, 1983 Tenn. App. LEXIS 566 (Tenn. Ct. App. 1983), overruled, Business Brokerage Centre v. Dixon, 874 S.W.2d 1, 1994 Tenn. LEXIS 95 (Tenn. 1994).

3. Fraudulent Use of Section.

Unlicensed real estate broker who represented that he was a licensed broker was not entitled to retain earnest money for application on commission since fraud vitiated contract. Brown v. Van Pelt, 37 Tenn. App. 352, 263 S.W.2d 956, 1953 Tenn. App. LEXIS 94 (Tenn. Ct. App. 1953).

Unlicensed plaintiff did not have an action in fraud and deceit despite this section where there were no allegations any defendants knew of this section or intended to use it to strike down the contract no matter what the outcome of sales negotiations and shield themselves behind the statute when brought to answer for their deed. Dickerson v. Sanders Mfg. Co., 658 S.W.2d 535, 1983 Tenn. App. LEXIS 566 (Tenn. Ct. App. 1983), overruled, Business Brokerage Centre v. Dixon, 874 S.W.2d 1, 1994 Tenn. LEXIS 95 (Tenn. 1994).

4. Out-of-State Broker.

Plaintiff was not entitled to receive a commission on the sale of a going business including an interest in real estate since he did not have a Tennessee real estate broker's license while negotiating the sale of defendant's property in this state. Stinson v. Potter, 568 S.W.2d 291, 1978 Tenn. App. LEXIS 293 (Tenn. Ct. App. 1978).

A real estate broker, licensed in a foreign state but not in Tennessee, may sue in Tennessee to recover a real estate commission for procuring a buyer in the foreign state for Tennessee real estate. Bennett v. MV Investors, 799 S.W.2d 221, 1990 Tenn. App. LEXIS 308 (Tenn. Ct. App. 1990).

Inasmuch as the record reflected that none of the acts performed or services rendered by plaintiff, a real estate broker licensed in South Carolina but not Tennessee, was prohibited under Tennessee real estate statutes, plaintiff was not barred from maintaining an action for a commission in Tennessee because of the provisions of T.C.A. § 62-13-105. Bennett v. MV Investors, 799 S.W.2d 221, 1990 Tenn. App. LEXIS 308 (Tenn. Ct. App. 1990).

Inasmuch as plaintiff, a broker licensed in South Carolina but not Tennessee, worked in cooperation with licensed Tennessee brokers to procure a nonresident purchaser for property located in Tennessee, he did not need to be joined in litigation by the licensed Tennessee brokers with whom he was associated in order to enforce his right to a real estate commission. Bennett v. MV Investors, 799 S.W.2d 221, 1990 Tenn. App. LEXIS 308 (Tenn. Ct. App. 1990).

5. Person Almost Licensed.

Real estate dealer who had been issued a license by virtue of payment of privilege tax, but had not complied with provisions requiring a license from real estate commission was not barred from suing for real estate commissions due where he was willing to immediately comply with such provisions. Farris v. McNew, 195 Tenn. 653, 263 S.W.2d 506, 1953 Tenn. LEXIS 392 (1953).

“Almost licensed” doctrine, which waived sanctions for persons who violated regulatory acts in good faith during time they were actively attempting to complete licensing procedure, was not extended to unlicensed plaintiff, who had no intention of becoming licensed, who made single phone call to regulatory agency and was told, incorrectly, that no broker's license was necessary where real estate conveyance was incidental to greater manufacturing sale. Dickerson v. Sanders Mfg. Co., 658 S.W.2d 535, 1983 Tenn. App. LEXIS 566 (Tenn. Ct. App. 1983), overruled, Business Brokerage Centre v. Dixon, 874 S.W.2d 1, 1994 Tenn. LEXIS 95 (Tenn. 1994).

6. Sale of Own Land.

Partner engaged in buying, subdividing and selling real estate was not precluded from suing for amount due from his share of profits earned even though he did not have license where partners were engaged in selling their own property. Lloyd v. Wiseman, 51 Tenn. App. 401, 368 S.W.2d 303, 1963 Tenn. App. LEXIS 79 (Tenn. Ct. App. 1963).

7. Sale of Business.

While a licensed broker could not employ unlicensed agents in conducting a real estate agency, a broker may hire a skilled professional to help put together a sale of a business. March Group, Inc. v. Bellar, 908 S.W.2d 956, 1995 Tenn. App. LEXIS 383 (Tenn. Ct. App. 1995).

8. Affiliate Broker.

An affiliate broker lacks the legal capacity to bring an action directly against the broker's client. Burke v. KRA Holdings, 42 S.W.3d 868, 2000 Tenn. App. LEXIS 298 (Tenn. Ct. App. 2000).

62-13-106. Courses of study.

The real estate commission is authorized and empowered to promulgate rules and regulations relative to the establishment and conducting of any course, courses of study or instruction that are designed to satisfy the educational requirements of § 62-13-303. The commission shall establish application fees for educational courses submitted for approval, which fees shall be deposited in the recovery fund interest account to be used by the commission for educational purposes.
As a condition to meeting the requirements of § 62-13-303, the course, course of study or instruction shall be established and conducted in accordance with the rules and regulations of the commission.
It is unlawful for any person offering courses or conducting classes in real estate subjects to represent that its students are assured of passing examinations given by the commission for the issuance of licenses required by this chapter.
A violation of this section is a Class C misdemeanor.

Acts 1973, ch. 181, §§ 8(g), 10; 1981, ch. 473, § 15; T.C.A., § 62-1331, 62-1332; Acts 1989, ch. 324, § 1; 1989, ch. 591, § 113.

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

62-13-107. Clinics and institutes.

The real estate commission is authorized to conduct, hold or assist in conducting or holding real estate clinics, meetings, courses or institutes and to incur the necessary expenses in connection with the clinics, meetings, courses or institutes, which shall be open to all licensees.

Acts 1973, ch. 181, § 8(h); T.C.A., § 62-1333.

62-13-108. Study and research programs.

The real estate commission is authorized to assist educational institutions within this state in sponsoring studies, research and programs for the purpose of raising the standards of professional practice in real estate and the competence of licensees in the public interest.

Acts 1973, ch. 181, § 8(i); T.C.A., § 62-1334.

62-13-109. Injunctions authorized for enforcement.

In addition to the powers and duties otherwise conferred upon the commission in this chapter, the commission is empowered to petition any circuit or chancery court having jurisdiction of any person in this state who is violating this chapter, either with or without a license under this chapter, to enjoin the person from continuing the violation; and jurisdiction is conferred upon the circuit and chancery courts of this state to hear and determine the causes.

Acts 1973, ch. 181, § 18(d); T.C.A., § 62-1338.

Cross-References. Discriminatory housing practices, title 4, ch. 21, part 6.

62-13-110. Penalties.

1. Any person acting as a broker, affiliate broker, time-share salesperson or acquisition agent without first obtaining a license commits a Class B misdemeanor.
2. A corporation that violates subdivision (a)(1) is ineligible to obtain a license for a period of one (1) year from the date of conviction of the offense.
Any person acting as a broker, affiliate broker, time-share salesperson or acquisition agent without first obtaining a license who has received any money or the equivalent of money as a fee, commission, compensation or profit by or in consequence of a violation of this chapter, is, in addition, liable for a penalty of no less than the amount of the sum of money so received and no more than three (3) times the sum so received, as may be determined by the court, which penalty may be recovered in any court of competent jurisdiction by any person aggrieved.

Acts 1973, ch. 181, § 18(a), (b), (c); T.C.A., § 62-1339; Acts 1982, ch. 589, §§ 1, 2; 1982, ch. 864, §§ 11, 12; 1989, ch. 89, § 5; 1989, ch. 591, § 112; 2002, ch. 812, § 3.

Cross-References. Discriminatory housing practices, title 4, ch. 21, part 6.

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

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Brokers, § 5.

NOTES TO DECISIONS

1. Applicability of Chapter.

Company which solicited the listing of defendant's real estate at defendant's Tennessee offices, negotiated the terms of the listing with defendant's in-house counsel in Nashville, and entered into a sales listing agreement upon defendant's promise to pay a real estate commission, was acting as a broker within the meaning of §§ 62-13-102 and 62-13-103 when it committed these acts, and was therefore required to comply with the licensing requirements of this chapter. Binswanger S. (N.C.), Inc. v. Textron, Inc., 860 S.W.2d 862, 1993 Tenn. App. LEXIS 278 (Tenn. Ct. App. 1993).

2. Contract Held Unenforceable.

When plaintiff offered and agreed to perform real estate brokerage services without a license, upon the promise of receiving a fee from defendant, it entered into a contract expressly condemned by a criminal statute of Tennessee, and was therefore barred as a matter of law from seeking to enforce the contract and from recovering damages for its breach. Binswanger S. (N.C.), Inc. v. Textron, Inc., 860 S.W.2d 862, 1993 Tenn. App. LEXIS 278 (Tenn. Ct. App. 1993).

3. Damages.

The decision of whether treble damages are warranted pursuant to T.C.A. § 62-13-110 is left to the discretion of the trial court. Business Brokerage Centre v. Dixon, 874 S.W.2d 1, 1994 Tenn. LEXIS 95 (Tenn. 1994).

62-13-111. Hearing and judicial review.

Acts 1980, ch. 451, § 11; T.C.A., § 62-1343.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Brokers, § 6.

62-13-112. Errors and omissions insurance — Suspension or revocation.

Each licensee who is licensed under this chapter shall, as a condition to licensing, carry errors and omissions insurance to cover all activities contemplated under this chapter. The requirements of this section shall not apply to acquisition agents.
It is not mandatory that a person who has been issued a firm license obtain errors and omissions insurance in the name of the firm. Persons issued a firm license by the Tennessee real estate commission shall have the option of obtaining errors and omissions coverage in the name of the firm in addition to the mandatory individual coverage for the brokers and affiliate brokers within the firm.
The commission shall make the insurance required under this section available to each licensee by contracting with an insurance provider for errors and omissions insurance coverage for each licensee after competitive, sealed bidding in accordance with title 12, chapter 3.
Any policy obtained by the commission shall be available to each licensee with no right on the part of the insurance provider to cancel coverage for any licensee, other than as set forth by the commission and in compliance with § 56-7-1803.
Each licensee shall have the option of obtaining errors and omissions insurance independently, if the coverage contained in an independently obtained policy complies with the minimum requirements established by the commission.
The commission shall determine the terms and conditions of coverage required under this section, including, but not limited to, the minimum limits of coverage, the permissible deductible and the permissible exemptions.
Each licensee shall be notified of the required terms and conditions of coverage for the policy at least thirty (30) days before the licensee's renewal date. A certificate of coverage, showing compliance with the required terms and conditions of coverage, shall be filed with the commission by the license renewal date by each licensee who elects not to participate in the insurance program administered by the commission.
If the commission is unable to obtain errors and omissions insurance coverage to insure all licensees who choose to participate in the insurance program at a reasonable premium, in such amount as determined by the commission, the requirement of insurance coverage under this section shall be void during the applicable contract period.
The errors and omissions insurance coverage required by this section shall become effective as a condition of license granting or renewal on December 31, 1990.
1. If a licensee fails to obtain, maintain or renew the licensee's errors and omissions insurance which meets or exceeds the minimum requirements established by the commission and provide proof of compliance to the commission if such proof is required by subsection (g), then the licensee's license shall be suspended.
2. The commission shall send notification of the license suspension by regular mail:
  1. To the licensee at the last known business address and home address of the licensee as registered with the commission; and
  2. To the licensee's broker at the broker's address as registered with the commission.
3. While a license is suspended pursuant to this section, the licensee shall not engage in activities which require a license under this chapter, nor will the license be renewed or a new license issued. Any license suspended pursuant to this section shall remain suspended until the licensee establishes, to the satisfaction of the commission, compliance with this section.
4. The licensee may, upon written notice to the commission, request a formal hearing on any license suspended pursuant to this section.
1. A license suspended pursuant to this section shall be reinstated if, within thirty (30) days of suspension, the licensee provides proof of insurance that complies with the required terms and conditions of coverage to the commission without the payment of any fee.
2. A license suspended pursuant to this section shall be reinstated if, on or after thirty-one (31) days of suspension, the licensee provides proof of insurance that complies with the required terms and conditions of coverage to the commission and the licensee pays:
  1. For a license suspended more than thirty (30) days but less than one hundred twenty (120) days, a penalty fee of not more than five hundred dollars ($500); or
  2. For a license suspended for more than one hundred twenty (120) days but less than one (1) year, a penalty fee of five hundred dollars ($500), plus an additional penalty fee of not more than one hundred dollars ($100) per month for months six through twelve (6-12).
1. A license suspended more than one (1) year pursuant to this section shall be automatically revoked without any further action by the commission.
2. The commission shall send notification of the license revocation by regular mail:
  1. To the licensee at the last known business address and home address of the licensee as registered with the commission; and
  2. To the licensee's broker at the broker's address as registered with the commission.
3. The licensee may, upon written notice to the commission, request a formal hearing on any license revoked pursuant to this section.
4. Upon revocation of license, any individual seeking reissuance of such license shall reapply for licensure and pay the penalty fees in subsection (k); provided, however, that the commission may, in its discretion:
  1. Waive reexamination or additional education requirements for such an applicant; or
  2. Reinstate a license subject to the applicant's compliance with such reasonable conditions as the commission may prescribe, including, but not limited to, payment of a penalty fee, in addition to the penalty fee provided in subdivision (k)(2)(B), of not more than one hundred dollars ($100) per month, or any portion thereof, from the time of revocation.
Notwithstanding subsections (k) and (l ), if the licensee proves to the commission that the license suspension or revocation pursuant to subsections (k) or (l ) was in error and that the licensee obtained, maintained or renewed the licensee's errors and omissions insurance as required by this section, then the commission shall immediately reinstate the license to the date of suspension.

Acts 1989, ch. 79, § 1; 1991, ch. 305, § 1; 2002, ch. 812, § 4; 2013, ch. 84, § 1.

NOTES TO DECISIONS

1. Purpose.

The uniform requirement of errors and omissions insurance contained in T.C.A. § 62-13-112 serves to promote the objective of the Licensing Act (T.C.A. § 62-13-101 et seq.) — to protect purchasers against unfair and deceptive practices that are peculiar to the sale of real property — in all instances involving the sale of real property through any form of agent (whether it be an employee or otherwise). Bowden Bldg. Corp. v. Tennessee Real Estate Comm'n, 15 S.W.3d 434, 1999 Tenn. App. LEXIS 487 (Tenn. Ct. App. 1999).

Part 2
Tennessee Real Estate Commission

62-13-201. Creation — Members.

There is created the Tennessee real estate commission, referred to in this part as the “commission,” which consists of nine (9) members appointed by the governor, each of whom shall be a resident of this state and shall possess good moral character.
Seven (7) of the members shall each have been principally engaged as a licensed broker or affiliate broker in this state for at least five (5) years prior to the date of the member's appointment and shall be of recognized business standing.
Each of the remaining two (2) members of the commission shall be a person who is not engaged in or conducting the business or acting in the capacity of a real estate broker or affiliate broker, nor shall the two (2) remaining members be engaged in the business of real estate financing or development.
1. Every member of the commission shall be appointed for a term of five (5) years and shall serve until a successor is appointed and qualifies by subscribing to the constitutional oath of office, which shall be filed with the secretary of state.
2. Any vacancy occurring on the commission shall be filled by the governor for the unexpired term.
3. No members shall be appointed to succeed themselves for more than one (1) full term.
4. The governor may remove any member of the commission for misconduct, incompetency or willful neglect of duty.
5. Three (3) members shall be appointed from the eastern grand division, three (3) members shall be appointed from the middle grand division and three (3) members shall be appointed from the western grand division. No more than one (1) of the members appointed pursuant to subsection (c) shall reside in the same grand division. No more than three (3) of the members appointed pursuant to subsection (b) shall reside in the same grand division.
6. In making appointments to the commission, the governor shall strive to ensure that at least one (1) person serving on the commission is sixty (60) years of age or older and that at least one (1) person serving on the commission is a member of a racial minority.

Acts 1973, ch. 181, § 7(a)-(e); 1980, ch. 870, § 3; T.C.A., § 62-1309; Acts 1984, ch. 676, § 9; 1988, ch. 1013, § 31; 1993, ch. 172, §§ 1-3.

Compiler's Notes. The real estate commission, created by this section, terminates June 30, 2024. See §§ 4-29-112, 4-29-245.

Acts 1993, ch. 172, § 4 provided that the persons appointed to fill the positions created by the amendment by this act to subsection (a) shall be appointed from the middle grand division, and that the allocation of appointments pursuant to the amendment to subsection (d) shall commence with the expiration of the term of vacancy in office which first occurs after April 13, 1993.

Cross-References. Discriminatory housing practices, title 4, ch. 21, part 6.

Grand divisions, title 4, ch.1, part 2.

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

Real estate appraisers, title 62, ch. 39.

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

Law Reviews.

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

62-13-202. Commission a judicial body — Civil liability.

The commission is declared to be a judicial body and the members or its employees are granted immunity from any civil liability when acting in good faith in the performance of their duties under this chapter.
Should litigation be filed against members of the commission arising from the performance of their duties under this chapter, the commissioners shall be defended by the attorney general and reporter.

Acts 1973, ch. 181, § 16(c); T.C.A., § 62-1310.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Brokers, § 6.

62-13-203. Organization — Powers.

Upon qualification of the members appointed, the commission shall organize itself by selecting from its members a chair and a vice chair and shall have the power to do all things necessary and proper for carrying out this chapter not inconsistent with the laws of this state. The commission may promulgate and adopt bylaws, rules and regulations that are reasonably necessary for such purpose. The promulgation and adoption of rules and regulations authorized by this section shall be pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
The commission's rules and regulations may incorporate and establish canons of ethics and minimum acceptable standards of practice for licensees.
Each member of the commission shall receive a certificate of appointment from the governor before entering upon the discharge of the duties of office.
The commission or any committee of the commission shall be entitled to the services of the attorney general and reporter or the legal department of this state in connection with the affairs of the commission.
The commission may prefer a complaint for violation of this chapter before any court of competent jurisdiction, and it may take the necessary legal steps through the proper legal officer of the state to enforce this chapter and collect the penalties provided in this chapter.

Acts 1973, ch. 181, § 7(b), (c); 1981, ch. 473, § 4; T.C.A., § 62-1311; Acts 1987, ch. 419, §§ 1, 2.

Cross-References. Representation by attorney general and reporter, § 8-6-301.

Attorney General Opinions. Tennessee real estate commission education course approval. OAG 10-09, 2010 Tenn. AG LEXIS 9 (1/26/10).

Real estate commission rulemaking authority for vacation lodging services. OAG 12-24, 2012 Tenn. AG LEXIS 24 (2/28/12).

62-13-204. Regulation of fees or commissions.

Nothing in this chapter shall allow the commission to set fees or commissions for real estate contracts or transactions; and if the practice is found to be in actual practice in the field, if because of action of the commission, all members of the commission shall forfeit their licenses.

Acts 1973, ch. 181, § 21; T.C.A., § 62-1312.

62-13-205. Record of proceedings — Seal.

The commission shall keep a record of its proceedings and shall adopt a seal of such design as it shall prescribe for the certification of the record.
The executive director shall have custody and charge of the seal.
Copies of all records and papers in the office of the commission, duly certified and authenticated by its seal, shall be received in evidence in all courts with like effect as the original.

Acts 1973, ch. 181, § 7(f); T.C.A., § 62-1313.

62-13-206. Meetings.

The commission may hold meetings it may deem necessary for the purpose of transacting business that may properly come before it. All members of the commission shall be duly notified of the time and place of each meeting.
A majority of the commission constitutes a quorum at any meeting of the commission.
The commission shall hold at least one (1) meeting annually in each grand division of the state.

Acts 1973, ch. 181, § 7(g); 1981, ch. 473, § 5; T.C.A., § 62-1314; Acts 2007, ch. 572, § 1.

Compiler's Notes. Acts 2007, ch. 572, § 2 provided that any expense incurred by the commission as a result of implementation of the provisions of the act, which added subsection (c), shall be allocated from the real estate education and recovery account.

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

62-13-207. Executive director — Director of education — Qualifications.

The commission shall have an executive director, who shall have passed the broker's examination for this state. The commission shall set all other qualifications necessary for the position of executive director. The executive director shall be appointed by the commission, with the approval of the commissioner of personnel. The term of the executive director shall be four (4) years, and the executive director shall be eligible for reappointment. The commission shall also retain an administrator and other staff members that the commission may deem necessary and proper. The commission shall fix the compensation to be paid to the executive director, the administrator and staff of the commission, subject to applicable rules, regulations and law.
The commission shall have a full-time director of education. The director of education shall have a college degree from an accredited university.

Acts 1973, ch. 181, § 7(d); 1975, ch. 165, § 11; 1978, ch. 906, § 23; T.C.A., § 62-1315; Acts 1993, ch. 293, § 1; 1994, ch. 702, § 1.

62-13-208. Real estate education and recovery account.

There is established within the general fund a real estate education and recovery account, referred to as the “account” in this section. All funds received by the commission under this section shall be deposited into the account and held solely for the purposes of this section. The commission shall maintain a minimum balance of five hundred thousand dollars ($500,000) in the account.
Moneys within the account shall be invested by the state treasurer in accordance with § 9-4-603 for the sole benefit of the account.
1. When any individual applies for an original license as a broker, affiliate broker or time-share salesperson, the applicant shall pay, in addition to the original license fee, a fee in an amount established by the commission for deposit into the account. If the commission refuses to issue a license, this fee shall be returned to the applicant.
2. In addition, the commission may assess each individual broker, affiliate broker and time-share salesperson, as a condition for renewal of the individual's license, a fee, in addition to the renewal fee, not to exceed thirty dollars ($30.00), for the purpose of ensuring that the required minimum balance is maintained in the account.
Any person may, by order of any court having competent jurisdiction, recover from the account actual or compensatory damages, not including interest and costs, resulting from any violation of this chapter or of any rule promulgated under this chapter committed by a broker, affiliate broker or time-share salesperson; provided, that:
1. The liability of the account shall not exceed fifteen thousand dollars ($15,000) per transaction, regardless of the number of persons aggrieved or parcels of real estate involved in the transaction;
2. The liability of the account for the acts of a broker, affiliate broker or time-share salesperson, when acting as a broker, affiliate broker or time-share salesperson, shall be terminated upon the issuance of court orders authorizing payments from the account for judgments, or any unsatisfied portion of judgments, in an aggregate amount of thirty thousand dollars ($30,000) on behalf of the broker, affiliate broker or time-share salesperson;
3. A broker, affiliate broker or time-share salesperson acting as an agent in a real estate transaction shall have no claim against the account; and
4. A bonding company not acting as a principal in a real estate transaction shall have no claim against the account.
When any aggrieved person commences action for a judgment that may result in collection from the account, the person shall promptly notify the commission to this effect in writing, by certified mail, return receipt requested. The commission may, subject to the approval of the attorney general and reporter, take any action it may deem appropriate to protect the integrity of the account.
When any aggrieved person obtains a valid judgment respecting which recourse against the account is permitted under this section, upon termination of all proceedings including reviews and appeals in connection with the judgment and all or any part of the judgment is unpaid after sixty (60) days, and the person has exhausted all remedies at law, including, but not limited to, attachment, execution, levy and garnishment, to satisfy the judgment, the person may apply to the court in which the judgment was entered for an order directing payment from the account of the amount unpaid upon the judgment. Upon determination of the court that the judgment or any part of the judgment is unpaid and all required attempts to secure satisfaction have been made, the court shall enter an order directing the commission to make payment from the account to satisfy the judgment.
If the commission, pursuant to a court order, pays any amount from the account on behalf of a licensed broker, affiliate broker or time-share salesperson, the license of the broker, affiliate broker or time-share salesperson may, in the discretion of the commission, be suspended or revoked. No broker, affiliate broker or time-share salesperson whose license is revoked under this subsection (g) shall be eligible to apply for a new license until that person has repaid in full the amount paid from the account on that person's behalf, plus interest at the effective earnings rate for the account for the period the claim is unpaid.
When, upon the order of the court, the commission has paid from the account any sum to the judgment creditor, the commission shall be subrogated to all of the rights of the judgment creditor in the judgment. Any amount recovered by the commission on the judgment shall be deposited to the account. If the total amount collected on the judgment by the commission exceeds the amount paid from the account to the original judgment creditor plus interest and the cost of collection, the commission may elect to pay such coverage or reassign the remaining interest in the judgment to the original judgment creditor. The payment or reassignment to the original judgment creditor shall not subject the account to further liability for payment to the original judgment creditor based on that transaction or judgment. Any costs incurred by the commission in attempting to collect judgments shall be paid from the account.
If, at any time, the money deposited in the account is insufficient to satisfy any duly authorized claim or portion of the claim, the commission shall, when sufficient money has been deposited in the account, satisfy the unpaid claims or portions of the unpaid claims in the order that they were originally filed, plus interest at the effective earnings rate for the account for the period the claim is unpaid.
The failure of an aggrieved person to comply with all of the provisions of this section shall constitute a waiver of any rights under this section.
It is unlawful for any person to file or cause to be filed with the commission any notice, statement or other document required under this section that is false or contains any material misstatement of fact.
The commission may, in its discretion, utilize any return on investment of the account to cover expenses incurred in the performance of functions authorized by §§ 62-13-107 and 62-13-108 or in the preparation and dissemination of information for the benefit of licensees; provided, that the commission shall not expend or commit sums for any such purpose in an amount that would reduce the account to a balance of less than five hundred thousand dollars ($500,000).
No state funds shall be expended to effectuate this section other than the fees and charges set forth in this section.

Acts 1973, ch. 181, § 11(b), (c); modified; Acts 1978, ch. 906, § 24; T.C.A., § 62-1322; Acts 1984, ch. 810, § 6; 1989, ch. 89, § 6; 1989, ch. 324, § 2; 1990, ch. 946, §§ 1-4.

62-13-209. General counsel.

The commission shall have a full time general counsel. The general counsel shall be a graduate of an accredited law school and admitted to practice law in this state.

Acts 1994, ch. 595, § 2.

Part 3
Qualifications and Licensing

62-13-301. License requirement.

It is unlawful for any person, directly or indirectly, to engage in or conduct, to advertise or claim to be engaging in or conducting the business, or acting in the capacity of a real estate broker, affiliate broker, time-share salesperson or acquisition agent, as defined in § 62-13-102, within this state, without first obtaining a license as broker, affiliate broker, time-share salesperson or acquisition agent, as provided in this chapter, unless exempted from obtaining a license under § 62-13-104. No person shall be permitted to hold, at the same time, an active time-share salesperson license and an active acquisition agent license.

Acts 1973, ch. 181, § 2; 1981, ch. 473, § 2; T.C.A., § 62-1303; Acts 1989, ch. 89, § 7; 2002, ch. 812, § 2; 2004, ch. 456, § 1.

Cross-References. Discriminatory housing practices, title 4, ch. 21, part 6.

License required for certain persons at auctions acting as brokers or affiliate brokers, § 62-19-102.

Real estate appraiser, title 62, ch. 39.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Brokers, § 4; 20 Tenn. Juris., Pleading, § 15; 25 Tenn. Juris., Waiver, § 5.

Law Reviews.

An Overview of Time-Sharing and the Tennessee Time-Share Act: Are Purchasers Now Protected?, 53 Tenn. L. Rev. 779 (1986).

NOTES TO DECISIONS

1. Purpose.

The Tennessee Real Estate Broker License Act of 1973, compiled in title 62, chapter 13, is designed to protect the public from irresponsible or unscrupulous persons dealing in real estate. Business Brokerage Centre v. Dixon, 874 S.W.2d 1, 1994 Tenn. LEXIS 95 (Tenn. 1994).

2. Prosecutions for Failure to Obtain License.

Indictment, which charged that defendant engaged in the business of a real estate salesman without first obtaining a license to do so, which did not allege how he engaged in such business or what he did in connection therewith, or for whom he worked, to whom or what he sold or the date or dates upon which he did one or more of such things was void for indefiniteness. McLemore v. State, 215 Tenn. 332, 385 S.W.2d 756, 1965 Tenn. LEXIS 621 (1965).

3. License Required.

62-13-302. Employment by broker of unlicensed broker or broker in another state.

It is unlawful for any licensed broker to employ or compensate any person who is not a licensed broker or a licensed affiliate broker for performing any of the acts regulated by this chapter. A licensed broker may pay a commission to a licensed broker of another state if the nonresident broker does not conduct in this state any of the negotiations for which a commission is paid.
A real estate licensee shall not give or pay cash rebates, cash gifts or cash prizes in conjunction with any real estate transaction. As part of the Tennessee real estate commission's general rulemaking authority the commission may regulate the practices of real estate licensees regarding gifts, prizes or rebates that are not otherwise prohibited by law.

Acts 1973, ch. 181, § 13(a); T.C.A., § 62-1306; Acts 2007, ch. 266, § 1.

NOTES TO DECISIONS

1. Sale of Business.

62-13-303. Qualifications — Prerequisites for licensing.

1. Licenses shall be granted only to persons who bear a good reputation for honesty, trustworthiness, integrity and competence to transact the business of broker, affiliate broker or time-share salesperson in a manner to safeguard the interest of the public and only after satisfactory proof of such qualifications has been presented to the commission. No license shall be denied any person because of race, color, religion, sex or national origin.
2. All applicants for an affiliate real estate broker's license must provide adequate proof to the commission that they have a high school degree or a general educational development (GED(R)) certificate.
3. 1. All affiliate brokers must complete a Tennessee real estate commission-approved thirty (30) hours of education in specified areas, including contract writing, handling consumer deposits, listing property, agency disclosures or other areas designated by the commission within six (6) months of obtaining their affiliate broker's license. Notwithstanding any other provision contained in this chapter, if the required thirty (30) hours of education are not obtained and proof of compliance provided to the commission within the six-month period, the affiliate broker's license shall automatically expire at the end of the six-month period.
  2. The education requirements specified in this subsection (a), in addition to any other education requirements specified in this chapter to be completed by an applicant prior to licensure, shall be completed by an applicant for an affiliate broker's license prior to the original license being issued. This education requirement is in addition to any continuing education requirements specified in this chapter or the rules of the commission.
Any person who desires an affiliate broker's license shall submit an application for examination to the commission on the prescribed form. The application shall be accompanied by:
1. The fee specified in § 62-13-308; and
2. Certification of satisfactory completion by the applicant of sixty (60) classroom hours in real estate at a school, college or university approved by the commission, including thirty (30) classroom hours covering the basic principles of real estate.
Any person who desires a broker's license shall submit an application for examination to the commission on the prescribed form. The application shall be accompanied by:
1. The fee specified in § 62-13-308;
2. Certification of satisfactory completion by the applicant of one hundred twenty (120) classroom hours in real estate, before or after receipt of an affiliate broker's license, at a school, college or university approved by the commission, including thirty (30) classroom hours covering office or brokerage management; and
3. 1. If the applicant was licensed as an affiliate broker after May 12, 1988, satisfactory proof that the applicant has held an active real estate license for at least thirty-six (36) months, or, if the applicant holds a baccalaureate degree with a major in real estate, for at least twenty-four (24) months; or
  2. If the applicant was licensed as an affiliate broker on or before May 12, 1988, satisfactory proof that the applicant has been engaged as a real estate licensee for at least twenty-four (24) months, or, if the applicant holds a baccalaureate degree with a major in real estate, for at least twelve (12) months.
Each applicant who passes the examination shall submit an application for the appropriate license to the commission. If such application is not filed within six (6) months after the date of the examination passed, the applicant must retake and pass the examination in order to be eligible for a license.
An application for an affiliate broker's license shall be accompanied by:
1. The fee specified in § 62-13-308;
2. Satisfactory proof that the applicant:
  1. Is at least eighteen (18) years of age; and
  2. Has been a resident of this state for at least forty-five (45) days; and
3. A sworn statement by the broker with whom the applicant desires to be affiliated certifying that, in the broker's opinion, the applicant is honest and trustworthy and that the broker will actively supervise and train the applicant during the period the license remains in effect.
An application for a broker's license shall be accompanied by:
1. The fee specified in § 62-13-308; and
2. Satisfactory proof that the applicant:
  1. Is at least eighteen (18) years of age; and
  2. Has been a resident of this state for at least forty-five (45) days.
Every two (2) years, as a requisite for the reissuance of an affiliate broker's license originally issued on or after July 1, 1980, the affiliate broker shall furnish certification of satisfactory completion of sixteen (16) classroom hours in real estate courses at any school, college or university approved by the commission.
Within a period of three (3) years from the date of issuance of an original broker's license, the licensee shall, as a requisite for the reissuance of the license, furnish certification of satisfactory completion of an additional one hundred twenty (120) classroom hours in real estate at any school, college or university approved by the commission. Beginning with the license period immediately following the license period in which the licensee completes the one hundred twenty (120) hours of education specified in this subsection (h), the licensee of a broker's license originally issued after January 1, 2005, every two (2) years shall furnish certification of satisfactory completion of sixteen (16) classroom hours in real estate courses at any school, college or university approved by the commission as a requisite for the reissuance of the license.
The commission shall, at least six (6) months prior to the deadline for furnishing the certification required by subsections (g) and (h), notify each licensee from whom the certification has not been received.
Any person who desires a time-share salesperson license shall submit an application for examination and license to the commission on the prescribed form. The application shall be accompanied by:
1. The fees specified in § 62-13-308 for examination and license;
2. Satisfactory proof that the applicant is:
  1. At least eighteen (18) years of age; and
  2. A resident of this state;
3. A sworn statement by the broker with whom the applicant desires to be affiliated certifying that, in the broker's opinion, the applicant is honest and trustworthy and that the broker will actively supervise and train the applicant during the period the license remains in effect; and
4. Certification, by the broker with whom the applicant desires to be affiliated, stating that the applicant has completed a thirty (30) hour training program consisting of instruction in the fundamentals of the Tennessee Time-Share Act, compiled in title 66, chapter 32, part 1, and related topics.
1. Any person who desires an acquisition agent license shall submit an application for examination and license to the commission on the prescribed form.
2. The application shall be accompanied by:
  1. The fees specified in § 62-13-308 for examination and license;
  2. Proof satisfactory to the commission that the applicant is at least eighteen (18) years of age; and
  3. Proof satisfactory to the commission that the applicant is of good moral character.
3. Compliance by an acquisition agent with the licensing requirements of this section shall constitute compliance with the registration requirements contained in § 66-32-139.
1. The commission shall require all applicants for initial licensure issued under this chapter, including, but not limited to, a time-share license, on or after January 1, 2014, to submit a complete and legible set of fingerprints, on a form prescribed by the commission or in such electronic format as the commission may require, to the commission or to the Tennessee bureau of investigation for the purpose of obtaining a criminal background check from the Tennessee bureau of investigation and the federal bureau of investigation.
2. The commission shall refuse to issue a license to an applicant for initial licensure who does not comply with subdivision (l )(1); provided, that a licensee who requests to renew an existing license issued under this chapter, or obtain a broker license after being licensed as an affiliate broker, shall not be required to submit a set of fingerprints pursuant to this subsection (l ).
3. The commission shall conduct a criminal background check of each applicant described in subdivision (l )(1) by using information:
  1. Provided by the applicant under this subsection (l ); and
  2. Made available to the commission by the Tennessee bureau of investigation, the federal bureau of investigation and any other criminal justice agency.
4. The commission may:
  1. Enter into an agreement with the Tennessee bureau of investigation to administer a criminal background check required under this subsection (l ); and
  2. Authorize the Tennessee bureau of investigation to collect from the applicant the costs incurred by the department in conducting the criminal background check.

Acts 1973, ch. 181, § 8(a)-(f); 1980, ch. 707, § 1; T.C.A., § 62-1316; Acts 1982, ch. 589, § 3; 1982, ch. 864, §§ 1-4; 1984, ch. 810, § 1; 1987, ch. 419, § 3; 1988, ch. 919, §§ 2, 3; 1989, ch. 89, §§ 8, 9; 1989, ch. 242, § 1; 1989, ch. 324, § 3; 1993, ch. 103, §§ 1, 2; 2002, ch. 812, § 5; 2003, ch. 233, § 1; 2003, ch. 234, § 1; 2013, ch. 420, § 1.

Compiler's Notes. Acts 2013, ch. 420, § 2 provided that the Tennessee real estate commission is authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with title 4, chapter 5.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Brokers, § 4.

Attorney General Opinions. Tennessee real estate commission education course approval. OAG 10-09, 2010 Tenn. AG LEXIS 9 (1/26/10).

Real estate licensing requirements for non-Tennessee residents. OAG 10-90, 2010 Tenn. AG LEXIS 96 (8/2/10).

62-13-304. Written examinations.

1. In addition to submitting proof of honesty, trustworthiness, integrity and good reputation, each applicant shall pass a written examination prepared by or under the supervision of the commission.
2. The examination may be given orally at the discretion of the commission if a written examination is precluded by reason of physical disability.
3. The examination shall be given at times and places within the state that the commission shall prescribe. Notwithstanding any law to the contrary, the commission may administer the examination at requested locations and may charge special fees that the commission may deem appropriate.
4. The examination for a license shall include business ethics, composition, arithmetic, elementary principles of land economics and appraisal, closing statements, a general knowledge of the statutes of this state relating to deeds, mortgages, trust deeds, contracts of sale, leases and other related matters and the provisions of this chapter.
5. The examination for a broker's license shall be of more exacting nature and scope than the examination for an affiliate broker's license.
6. An applicant failing to pass an examination may be reexamined under rules that the commission may prescribe.
7. 1. The examination for time-share salesperson license shall include the fundamentals of the time-share business, the Tennessee Time-Share Act, compiled in title 66, chapter 32, and other related topics including the parts of this chapter relative to time-share salespersons.
  2. The minimum passing grade for the time-share salesperson examination shall be seventy percent (70%).
  3. An application for the time-share salesperson license examination must be received by the commission at least ten (10) days before the examination date on which the applicant wishes to be examined.
8. 1. The examination for an acquisition agent license shall be the same as the examination administered for a time-share salesperson license.
  2. The minimum passing grade for an acquisition agent license examination shall be seventy percent (70%).
  3. An application for the acquisition agent license examination must be received by the commission at least ten (10) days before the examination date on which the applicant wishes to be examined.
No applicant shall engage in the real estate business as a broker, affiliate broker, time-share salesperson or acquisition agent until satisfactorily passing the examination and complying with other requirements of this chapter and until a license has been issued to the applicant. An applicant for a time-share salesperson license or acquisition agent license who has passed the examination for either license in the twelve-month period preceding the date of application shall be deemed to have satisfied the examination requirements for the pending application.

Acts 1973, ch. 181, § 9(a), (b); T.C.A., § 67-1317(a), (b); Acts 1989, ch. 89, §§ 10-12; 2002, ch. 812, §§ 6, 7; 2004, ch. 456, § 2; 2011, ch. 47, § 69.

Compiler's Notes. Acts 2011, ch. 47, § 107 provided that nothing in the legislation shall be construed to alter or otherwise affect the eligibility for services or the rights or responsibilities of individuals covered by the provision on the day before the date of enactment of this legislation, which was July 1, 2011.

Acts 2011, ch. 47, § 108 provided that the provisions of the act are declared to be remedial in nature and all provisions of the act shall be liberally construed to effectuate its purposes.

62-13-305, 62-13-306. [Reserved.]

All licenses issued under this chapter shall expire two (2) years from the date the license was issued or renewed. All documentation and fees that are a prerequisite to the renewal of a license or registration shall be delivered to the commission prior to the expiration date of the license.
The license of any broker, affiliate broker, time-share salesperson or acquisition agent who fails to deliver all documentation or to pay fees that are a prerequisite to the renewal of a license or registration no later than sixty (60) days prior to the expiration date of the license shall not be renewed except upon providing the documentation prior to the expiration date of the license and payment of the fees, plus a penalty fee of no more than fifty dollars ($50.00) per month, or portion of a month, that the documentation or fees are late.

Acts 1973, ch. 181, § 12(f); 1979, ch. 148, § 1; 1981, ch. 473, § 8; T.C.A., 62-1320; Acts 1982, ch. 864, §§ 7, 18; 1984, ch. 810, § 2; 1988, ch. 919, § 4; 1989, ch. 89, § 13; 1989, ch. 360, § 7; 1990, ch. 1026, § 40; 2000, ch. 861, § 2; 2003, ch. 97, § 1; 2005, ch. 252, § 2; 2010, ch. 666, § 3.

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

NOTES TO DECISIONS

1. Commission Unauthorized to Change Requirements.

The real estate commission could not nullify the express statutory requirement that a certificate of license be recorded in the office of the county clerk prior to engaging in real estate activities. Tackett v. Mullins, 612 S.W.2d 909, 1981 Tenn. LEXIS 415 (Tenn. 1981).

62-13-308. Examination and license fees.

The commission shall prescribe in its rules and regulations all fees to be paid before any examinations shall be given or licenses issued by the commission as provided in this chapter.

Acts 1973, ch. 181, § 11(a); 1980, ch. 870, § 5; 1981, ch. 473, § 9; T.C.A., § 62-1321; Acts 1984, ch. 810, § 3; 1989, ch. 89, §§ 14-16; 1989, ch. 523, § 148.

Cross-References. Real estate education and recovery account, § 62-13-208.

NOTES TO DECISIONS

Decisions Under Prior Law

1. Renewal.

Renewal under the former law was a matter of course upon payment of the required fee without reexamination or requalification in absence of complaints, such renewal having been largely administrative. Tennessee Real Estate Com. v. Godwin, 53 Tenn. App. 58, 378 S.W.2d 439, 1963 Tenn. App. LEXIS 129 (Tenn. Ct. App. 1963).

62-13-309. Business locations — Display of license — Signs.

1. 1. Each office shall have a real estate firm license, a principal broker and a fixed location with adequate facilities for affiliated licensees, located to conform with zoning laws and ordinances.
  2. Each branch location shall comply with the requirements of subdivision (a)(1)(A).
2. The license of a broker and of each affiliate broker under contract to the broker shall be prominently displayed in the broker's principal place of business.
3. Within ten (10) days after any change of location of the office, the principal broker registered at that office shall notify the commission in writing of the office's new business address and shall pay the fee established in § 62-13-308. The new address shall be considered the new business address for all brokers or affiliate brokers associated with the location unless any such brokers or affiliate brokers otherwise notify the commission of a new business address through a change of affiliation, termination of affiliation, or by other means acceptable to the commission.
1. Each licensed broker shall maintain a sign on the outside of the broker's office of the size and content that local ordinances and the commission prescribe, which shall clearly state that the broker is engaged in the real estate business.
2. In making application for a license or for a change of location, the licensee shall verify, in writing, that the licensee's office conforms with zoning laws and ordinances.
3. The maintenance of the broker's office in the broker's home shall not relieve the broker from the requirement of having a sign outside of the house as required in this subsection (b).
4. Affiliate brokers are not required to display signs at the office of their brokers.
The requirements of subsections (a) and (b) may be waived in cases of certain unusual geographical circumstances.
1. If the applicant for a broker's license maintains more than one (1) place of business within the state, the applicant shall apply for and obtain an additional firm license for each branch office.
2. Every application shall state the location of the branch office and the name of the person in charge of it.
3. Each branch office shall be under the direction and supervision of a broker licensed at that address.
No more than one (1) license shall be issued to any broker or affiliate broker to be in effect at one (1) time.
Upon original application for a firm license and each renewal of the license, the firm shall provide proof of the establishment of the firm's escrow account satisfactory to the commission.
A principal broker may act as a principal broker for two (2) firms as long as both firms are in the same location. As used in this subsection (g), “the same location” means that both firms are located at and use the same physical address.

Acts 1973, ch. 181, § 12(a), (b), (d); T.C.A., § 62-1323; Acts 1982, ch. 864, § 16; 1988, ch. 919, §§ 5, 6; 1989, ch. 324, §§ 4, 5; 2009, ch. 97, § 1; 2017, ch. 226, § 6.

Cross-References. Levy of occupation tax on principal brokers, § 67-4-1708.

62-13-310. Affiliate broker relationship to broker.

Whenever the contractual relationship between a broker and affiliate broker is terminated, the present broker shall immediately sign and date the change of affiliation form prescribed by the commission. The affiliate broker may act under a contract with another broker upon completion and transmittal to the commission of the form, accompanied by the fee established pursuant to § 62-13-308. The affiliate broker shall assure that the completed form and fee are promptly transmitted and that the affiliate broker's license is prominently displayed in the new broker's principal place of business.
Licensees may not post signs on any property advertising themselves as real estate agents unless the firm's name appears on the signs in letters the same size or larger than those spelling out the name of the licensee.
Any unlawful act or violation of this chapter by any affiliate broker may not be cause for the suspension or revocation of the license of the broker with whom the affiliate broker is affiliated.

Acts 1973, ch. 181, §§ 12(c), (e), 16(b); 1981, ch. 473, §§ 10, 11; T.C.A., § 62-1324; Acts 1982, ch. 864, § 8; 1990, ch. 946, § 5.

62-13-311. Revocation of license by court — Reinstatement.

Whenever any person, partnership, association, company, firm or corporation claiming to have been injured or damaged by the gross negligence, incompetency, fraud, dishonesty or misconduct on the part of any licensee following the calling or engaging in the business described in this chapter files suit upon the claim against the licensee in any court of record in this state and recovers judgment on the claim, the court may as part of its judgment or decree in such cases, if it deem it a proper case in which so to do, revoke the certificate of license granted under this chapter, and the certificate of license shall not be reissued to the licensee except upon the consenting vote of six (6) of the members of the commission in favor of reissuance.

Acts 1973, ch. 181, § 15; T.C.A., § 62-1325; Acts 1982, ch. 864, § 9.

Cross-References. Discriminatory housing practices, title 4, ch. 21, part 6.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Brokers, § 6.

62-13-312. Discipline — Refusal, revocation or suspension of license — Downgrading of licenses — Automatic revocation.

The commission may, upon its own motion, and shall, upon the verified complaint in writing of any person setting forth a cause of action under this section, ascertain the facts and, if warranted, hold a hearing for reprimand or for the suspension or revocation of a license.
The commission shall have the power to refuse a license for cause or to suspend or revoke a license where it has been obtained by false representation or by fraudulent act or conduct, or where a licensee, in performing or attempting to perform any of the acts mentioned herein, is found guilty of:
1. Making any substantial and willful misrepresentation;
2. Making any promise of a character likely to influence, persuade or induce any person to enter into any contract or agreement when the licensee could not or did not intend to keep the promise;
3. Pursuing a continued and flagrant course of misrepresentation or making of false promises through affiliate brokers, other persons, any medium of advertising or otherwise;
4. Misleading or untruthful advertising, including use of the term “realtor” by a person not authorized to do so, or using any other trade name, insignia or membership in any real estate association or organization of which the licensee is not a member;
5. Failing, within a reasonable time, to account for or to remit any moneys coming into the licensee's possession that belong to others;
6. Failing to preserve for three (3) years following its consummation records relating to any real estate transaction;
7. Acting for more than one (1) party in a transaction without the knowledge and consent in writing of all parties for whom the licensee acts;
8. Failing to furnish a copy of any listing, sale, lease or other contract relevant to a real estate transaction to all signatories of the contract at the time of execution;
9. Using or promoting the use of any real estate listing agreement form, real estate sales contract form or offer to purchase real estate form that fails to specify a definite termination date;
10. Inducing any party to a contract, sale or lease to break the contract for the purpose of substitution in lieu of the contract a new contract, where the substitution is malicious or is motivated by the personal gain of the licensee;
11. Accepting a commission or any valuable consideration by an affiliate broker for the performance of any acts specified in this chapter, from any person, except the licensed real estate broker with whom the licensee is affiliated;
12. Being convicted in a court of competent jurisdiction of this or any other state or federal court of forgery, embezzlement, obtaining money under false pretenses, bribery, larceny, extortion, conspiracy to defraud or any crime or any similar offense or offenses, or pleading guilty or nolo contendere to any such offense or offenses;
13. Violating any federal, state or municipal law prohibiting discrimination in the sale or rental of real estate because of race, color, religion, sex or national origin;
14. Violating any provision of this chapter, any rule duly promulgated and adopted under this chapter or the terms of any lawful order entered by the commission;
15. In the case of a licensee, failing to exercise adequate supervision over the activities of any licensed affiliate brokers within the scope of this chapter;
16. In the case of a licensee, failing within a reasonable time to complete administrative measures that may be required by the commission upon the transfer or termination of any affiliate broker employed by the broker;
17. Paying or accepting, giving or charging any undisclosed commission, rebate, compensation or profit or expenditures for a principal or in violation of this chapter;
18. Failing to disclose to an owner the licensee's intention or true position if the licensee, directly or indirectly through a third party, purchases for itself or acquires or intends to acquire any interest in or any option to purchase property that has been listed with the licensee's office to sell or lease;
19. Engaging in the unauthorized practice of law;
20. Any conduct, whether of the same or a different character from that specified in this subsection (b), that constitutes improper, fraudulent or dishonest dealing; or
21. Violating any provision of the Tennessee Time-Share Act of 1981, compiled in title 66, chapter 32, part 1 or any rule duly promulgated under the Tennessee Time-Share Act of 1981.
The commission may, in addition to or in lieu of any other lawful disciplinary action against a broker pursuant to this section, order that the broker be downgraded to affiliate broker status.
The director of the division of regulatory boards or the director's duly authorized representatives may, at all reasonable hours, examine and copy books, accounts, documents or records that are relevant to a determination of whether a licensee has properly maintained and disbursed funds from escrow or trustee accounts required under this part. In case of refusal to permit the access accorded by this subsection (d), the director or the director's authorized representatives may pursue the remedies provided by § 4-5-311(b) for disobedience to any lawful agency requirement for information. Refusal shall also constitute grounds for the commission to suspend or revoke a license.
The sole purpose of this section is to provide guidelines for disciplinary actions taken by the Tennessee real estate commission against licensees found guilty of the violations listed in this section.
Whenever any licensee pleads guilty or is convicted of any offense enumerated in this chapter, the licensee must within sixty (60) days notify the commission of that conviction and provide the commission with certified copies of the conviction. The licensee's license shall automatically be revoked sixty (60) days after the licensee's conviction unless the licensee makes a written request to the commission for a hearing during that sixty-day period. Following any such hearing held pursuant to this section, the commission in its discretion may impose upon that licensee any sanction permitted by this chapter.
Whenever the commission revokes or suspends the license of a salesperson, an affiliate broker or a broker, then any school or instructor approval that the licensee holds shall also be revoked. Whenever a licensee surrenders a real estate license, any school or instructor approval that the licensee holds shall also be revoked.

Acts 1973, ch. 181, § 14; 1981, ch. 372, § 33; 1981, ch. 473, § 12; T.C.A., § 62-1326; Acts 1984, ch. 810, § 4; 1986, ch. 893, § 1; 1988, ch. 919, §§ 7-9; 1990, ch. 946, §§ 6, 7; 1994, ch. 595, § 1.

Cross-References. Discriminatory housing practices, title 4, ch. 21, part 6.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Brokers, § 6.

Law Reviews.

The Tennessee Law of Real Estate Broker Licensing (Lewis L. Laska), 4 Memphis State U. L. Rev. 457.

NOTES TO DECISIONS

1. Fraudulent Dealings.

Commission could have revoked license of broker for fraudulent dealings unrelated to real estate transactions. Tennessee Real Estate Com. v. Godwin, 53 Tenn. App. 58, 378 S.W.2d 439, 1963 Tenn. App. LEXIS 129 (Tenn. Ct. App. 1963).

2. Willful Misrepresentation.

Where evidence showed that real estate broker while acting as agent between seller and prospective buyer and who held check for $1,000 as deposit on the contract already negotiated, promoted a sale of same property to another purchaser and told first purchaser that property had been sold by another agent, he acted improperly and unfairly and willfully misrepresented material facts. Porter v. Tennessee Real Estate Com., 38 Tenn. App. 208, 271 S.W.2d 21, 1954 Tenn. App. LEXIS 111 (Tenn. Ct. App. 1954).

3. Oral Listing Agreements.

The guideline set forth in (b)(9) is merely intended to prevent a real estate agent from obtaining a perpetual interest in the property of his principal and does not prohibit an oral listing agreement. Parks v. Morris, 914 S.W.2d 545, 1995 Tenn. App. LEXIS 578 (Tenn. Ct. App. 1995).

4. Voiding of Brokerage Agreements.

T.C.A. § 62-13-312(b)(8) cannot serve as a statement of policy upon which an appellate court will void a real estate brokerage contract. Moody Realty Co. v. Huestis, 237 S.W.3d 666, 2007 Tenn. App. LEXIS 191 (Tenn. Ct. App. Apr. 4, 2007), appeal denied, — S.W.3d —, 2007 Tenn. LEXIS 702 (Tenn. Aug. 13, 2007).

62-13-313. Notice — Hearing.

1. Before refusing to issue a license or suspending or revoking an existing license upon the verified written complaint of any person setting out a cause of action under § 62-13-312, the commission shall, in writing, notify the accused applicant or licensee of its receipt of the complaint, enclosing a copy of the complaint.
2. The accused applicant or licensee shall, within ten (10) days, file with the commission the applicant's or licensee's answer to the complaint, a copy of which shall be transmitted to the complainant.
3. If, after investigation, the commission determines that the matter should have a hearing, a time and place for the hearing shall be set.
4. If, upon review of the complaint or at anytime thereafter, the commission determines that the complaint was not filed in a timely manner or there is no reasonable cause to believe that the applicant or licensee has engaged in the alleged violation or violations of § 62-13-312, the commission shall issue an order to that effect; and a copy of the order shall be furnished to the complainant, the applicant or licensee and the public officers and persons that the commission deems proper.
All notices and answers required or authorized to be made or filed under this section may be served or filed personally or by registered mail to the last known business address of the addressee. If served personally, the time shall run from the date of service and if by registered mail, from the postmarked date of the letter enclosing the document.
The affirmative vote of a majority of the commission shall be necessary to revoke or suspend a license.
In the event the matter contained in the complaint has been filed or made a part of a case pending in any court in this state, the commission may then withhold its decision until the court action has been concluded.
Any complaint filed with the commission pursuant to this chapter shall be filed within the longer of the following:
1. Two (2) years from the date of commission of the alleged violation of § 62-13-312 or the date that the complainant actually became aware of the violation;
2. The applicable statute of limitations set out in § 40-2-101, if the violation of § 62-13-312 also constitutes a criminal offense; or
3. Ten (10) days after a successful criminal prosecution becomes final, if the violation of § 62-13-312 also constitutes a criminal offense and the time required for prosecution of the offense exceeds the time specified in subdivision (e)(1) or (e)(2).

Acts 1973, ch. 181, § 16(a); 1980, ch. 451, § 4; T.C.A., § 62-1327; Acts 2006, ch. 776, §§ 1, 2.

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

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Brokers, § 6.

Law Reviews.

The Tennessee Uniform Administrative Procedures Act: Procedure Before Hearing (Stephen L. Shields), 6 Mem. St. U.L. Rev. 201.

62-13-314. Reciprocity — Service of process on nonresidents.

1. A nonresident of this state who is a licensed broker, affiliate broker or time-share salesperson or equivalent real estate licensee in another state may apply for a license as a broker or affiliate broker in this state by submitting appropriate application to the commission.
2. The nonresident applicant need not maintain a place of business within this state; provided, that the applicant is regularly engaged in the real estate business and maintains a place of business in the other state.
3. The commission may issue the appropriate license to the nonresident applicant if:
  1. The applicant has qualified for the license held in the applicant's state of residence by written examination;
  2. The applicant meets or exceeds each of the qualifications for licensure in this state;
  3. The applicant certifies that the applicant has read this chapter and the rules and regulations promulgated under this chapter; and
  4. The applicant's state of residence permits the issuance of licenses without written examination to brokers, affiliate brokers and time share salespersons resident in and licensed by this state.
4. The commission may, in its discretion, refuse to issue, renew or reinstate a broker's, affiliate broker's or time share salesperson's license if the applicant for, or holder of, the license is not a resident of this state.
1. Every nonresident applicant shall file an irrevocable consent that legal actions may be commenced against the nonresident applicant in the proper court of any county of this state in which a cause of action may arise or in which the plaintiff may reside by service of process or pleading authorized by the laws of this state or by any member of the commission or the director of the commission, the consent stipulating that the service of process or pleading shall be taken in all courts to be valid and binding as if personal service had been made upon the nonresident licensee in this state.
2. The consent shall be duly acknowledged and, if made by a corporation, shall be authenticated by its seal.
3. Any service of process or pleading shall be served on the executive director of the commission by filing duplicate copies, one (1) of which shall be filed in the office of the commission and the other forwarded by registered mail to the last known principal address of the nonresident licensee against whom the process or pleading is directed; and no default in any such action shall be taken except upon affidavit certification of the commission or the director of the commission, that a copy of the process or pleading was mailed to the defendant as provided in this subdivision (b)(3), and no default judgment shall be taken in any such action or proceeding until thirty (30) days after the day of mailing of process or pleading to the defendant.
Notwithstanding any law to the contrary, the Tennessee real estate commission has the authority to enter into reciprocity agreements with another state, if in the judgment of the commission that state has meaningful requirements for licensure. The reciprocity agreement may authorize the licensure of Tennessee licensees in that state and for the licensure of licensees of that state in this state.

Acts 1973, ch. 181, § 13(b), (c); 1977, ch. 206, §§ 1, 2; 1980, ch. 870, § 6; 1981, ch. 473, §§ 13, 14; T.C.A., § 62-1330; Acts 1988, ch. 919, § 10; 1989, ch. 89, §§ 17-19; 1997, ch. 36, § 1.

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

Attorney General Opinions. Real estate licensing requirements for non-Tennessee residents. OAG 10-90, 2010 Tenn. AG LEXIS 96 (8/2/10).

62-13-315. [Reserved.]

The commission shall keep a register of all applicants for license, showing for each the date of application, name, place of business, place of residence and whether the license was granted or refused.
The register shall be prima facie evidence of all matters recorded in the register.

Acts 1973, ch. 181, § 19(a); T.C.A., § 62-1335.

Law Reviews.

The Tennessee Law of Real Estate Broker Licensing (Lewis L. Laska), 4 Memphis State U. L. Rev. 457.

62-13-317. Directory of licensed brokers and affiliate brokers.

The commission may, from time to time, at its discretion, publish a directory of all brokers and affiliate brokers licensed by the commission. The directory shall contain other data that the commission may determine to be in the interest of the public.
The directory shall be mailed to and placed on file in the office of the county clerk of each county.

Acts 1973, ch. 181, § 19(b); impl. am. Acts 1978, ch. 754, § 8; Acts 1980, ch. 707, § 2; T.C.A., § 62-1336; Acts 1982, ch. 864, § 10.

62-13-318. Temporary retirement.

1. Upon written request accompanied by the license and the fee for change of status, any real estate firm, real estate broker, affiliate broker, time-share salesperson, or acquisition agent may temporarily retire the license.
2. If the retiree wishes to remain in retirement for any portion of a subsequent license renewal period, the retiree shall pay the required license renewal fee prior to the license expiration date.
3. No retired licensee may engage in any act defined in § 62-13-102.
4. The retiree is responsible for advising the commission of the retiree's current mailing address.
1. A licensee wishing to reactivate a license from retirement status shall submit the proper form and fee for a change of status.
2. Reactivation of a temporarily retired license shall not be permitted until the licensee provides proof of completion of sixteen (16) classroom hours in real estate courses as specified in § 62-13-303 during the current license renewal period.
Any license in inactive status with the commission on July 1, 2016, shall be transferred to retirement status on that date.

Acts 1975, ch. 148, §§ 1-3; 1980, ch. 707, § 3; 1981, ch. 473, §§ 16, 17; T.C.A., §§ 62-1340 — 62-1342; Acts 1982, ch. 864, § 13; 1984, ch. 810, §§ 8-10; 1988, ch. 919, § 11; 1990, ch. 946, § 8; 2004, ch. 456, § 3; 2016, ch. 838, § 10.

62-13-319. Reinstatement after failure to pay renewal or retirement fee.

The license of any broker, affiliate broker, time-share salesperson or acquisition agent who fails timely to pay a renewal or retirement 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 one hundred dollars ($100) per month. Any person desiring reinstatement thereafter must reapply for licensure; provided, however, that the commission may, in its discretion:
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 commission may prescribe, including payment of a penalty fee, in addition to the penalty fee provided in subsection (a), of not more than one hundred dollars ($100) per month, or portion of a month, from the time the license expired.
When fees are remitted by mail to the commission, the date of payment shall be determined by the official postmark on the mail.

Acts 1982, ch. 864, § 14; 1989, ch. 89, § 20; 2002, ch. 812, § 8; 2003, ch. 97, § 2.

62-13-320. Surrender of broker's for affiliate broker's license.

The holder of a valid broker's license shall, upon the holder's written request, be entitled to surrender the license to the commission in exchange for an affiliate broker's license.

Acts 1984, ch. 810, § 5.

62-13-321. Escrow or trustee account of deposited funds.

Every broker shall, in accordance with rules promulgated by the commission under § 62-13-203, keep an escrow or trustee account of funds deposited with the broker relating to a real estate transaction. The broker shall maintain for a period of at least (3) years accurate records of the account showing:

The depositor of the funds;
The date of deposit;
The date of withdrawal;
The payee of the funds; and
Other pertinent information that the commission may require.

Acts 1988, ch. 919, § 1.

62-13-322. [Repealed.]

Acts 1988, ch. 1031, § 2, repealed by Acts 2016, ch. 838, § 11, effective July 1, 2016.

Compiler's Notes. Former § 62-13-322 concerned exceptions to the applicability of laws, rules and regulations prohibiting reinstatement or reactivation of a license.

62-13-323. Escrow account — Waiver.

The principal broker of a real estate firm that does not engage in activities that require the acceptance of any funds belonging to others may receive from the Tennessee real estate commission a waiver from § 62-13-321.
Upon receipt of a waiver by the Tennessee real estate commission pursuant to subsection (a), a principal broker may close the real estate firm's escrow account.
The principal broker of a real estate firm authorized pursuant to this section to operate without an escrow account may accept funds belonging to others subject to the following:
1. The principal broker shall open an escrow account within one (1) business day of accepting the deposit and deposit the funds into the newly opened escrow account on the same day; and
2. The principal broker shall notify the Tennessee real estate commission within one (1) business day after opening a new escrow account and shall provide the following information:
  1. The name and address of the bank where the new escrow account was opened;
  2. The name of the new escrow account; and
  3. The account identification number of the new escrow account.
A principal broker who opens an escrow account pursuant to subsection (c) shall acknowledge responsibility to operate under all the requirements of § 62-13-321.
No principal broker may obtain a waiver pursuant to subsection (a) for the same real estate firm more than once each license renewal period.

Acts 2002, ch. 553, § 1.

62-13-324. Real estate continuing education instructors — Course requirements.

In order to be eligible for approval by the commission, a course in real estate designed to meet the educational requirements established in § 62-13-303 shall be under the personal and direct supervision of an instructor who:
1. Has completed a Tennessee real estate commission approved course in instructor training;
2. Holds a diploma or certificate evidencing a high school education or the equivalent of a high school education;
3. Has no complaints filed against such person in the office of the commission that have not been satisfactorily resolved;
4. If the course concerns the principles of real estate, mathematics or sales techniques, is a licensed broker, or, with the approval of the commission, an affiliate broker, with at least five (5) years of experience in the subject of the course;
5. If the course concerns the law of real estate, has graduated from a law school accredited by the American Bar Association or approved by the state board of law examiners;
6. If the course concerns any other field in which a degree or other recognized designation is commonly awarded, has earned that degree or designation or has at least five (5) years of satisfactory experience in the field; and
7. If the course is offered for credit at a college or university, has either a master's degree and three (3) years of satisfactory experience in the area of instruction or a terminal degree in the area of instruction.
The commission may charge a fee of up to twenty-five dollars ($25.00) for each instructor in an education cycle in order to review the instructor's qualifications.
Before teaching the core course required every two (2) years by the real estate commission, an instructor shall demonstrate competency in the subject by taking an approved instructor course of at least four (4) hours on the subject matter being presented in the core course.
Before teaching a course on the law of agency, an instructor shall successfully complete an approved instructor course on agency.
The real estate commission shall approve any continuing education course that consists of a minimum of one (1) classroom hour in length; provided, that the course meets all of the requirements of the commission that are not related to course length. Any rule, policy, or requirement of the real estate commission that is in conflict with this subsection (e) is superseded.

Acts 2009, ch. 287, § 1; 2015, ch. 61, § 1.

62-13-325. Distance education courses.

“Distance education” shall be used interchangeably with “correspondence courses” and includes all education in which instruction does not take place in a traditional classroom setting but rather through other media where the teacher and student are separated by distance or by time. Distance education courses approved by the commission shall be completed within one (1) year of the date of enrollment in order for continuing education to be granted to the licensee. Distance education may include, but is not necessarily limited to, printed materials, computer based materials and on-line materials.
A distance education course using printed materials may be approved by the commission if:
1. Students will be provided a manual or other printed material;
2. A comprehensive course outline, requirements for successful completion of the course and information regarding availability of faculty to students are provided;
3. It contains at least six (6) written exercises that are to be submitted periodically to the instructor, graded and returned to the student; and
4. If the class provides more than eight (8) hours of credit, a comprehensive final examination or equivalent measure of achievement is executed prior to the sponsor submitting the roster to the commission indicating successful completion of the course for any and all students.
1. A distance education course using computer-based or online materials or formats may be submitted to the commission for analysis and possible approval if the course is certified by the Association of Real Estate License Law Officials (ARELLO) or other certifying body at the discretion of the commission, as to technology, support of the technology, interactivity and course design.
2. The commission shall review these certified courses on a case by case basis to determine whether the curriculum will meet commission education requirements.
3. Any course that would provide more than eight (8) hours of continuing education shall include a final examination that shall be executed prior to submission to the commission for education credit.
4. Approval of a course under this subsection (c) will be automatically withdrawn should certification by the respective certifying body be discontinued for any reason.
Any distance education version of the basic principles of real estate course required of applicants for an affiliate broker's license under § 62-13-303 shall include at least one (1) student interaction with a commission-approved instructor for every five (5) hours of credit.

Acts 2009, ch. 287, § 2.

Part 4
Representation by Real Estate Agents

62-13-401. Creation of agency relationship.

A real estate licensee may provide real estate services to any party in a prospective transaction, with or without an agency relationship to one (1) or more parties to the transaction. Until such time as a licensee enters into a specific written agreement to establish an agency relationship with one (1) or more parties to a transaction, the licensee shall be considered a facilitator and shall not be considered an agent or advocate of any party to the transaction. An agency or subagency relationship shall not be assumed, implied or created without a written bilateral agreement that establishes the terms and conditions of the agency or subagency relationship. The negotiation and execution of either an exclusive agency listing agreement or an exclusive right to sell listing agreement with a prospective seller shall establish an agency relationship with the seller.

Acts 1995, ch. 246, § 3; 1996, ch. 772, § 4; 2006, ch. 738, § 1.

NOTES TO DECISIONS

1. Agency Relationship.

In accordance with the requirements for establishing an agency relationship set forth in T.C.A. § 62-13-401, the listing agreement expressly designated the agent and set forth the terms of the respective agency relationship, and thus the agreement conferred an agency relationship between the seller, the agent, and the realtor. White v. Miller, — S.W.3d —, 2017 Tenn. App. LEXIS 591 (Tenn. Ct. App. Aug. 30, 2017).

In the absence of a designation of the agent in the agreement, he could not be deemed the agent for the buyers under T.C.A. § 62-13-401. White v. Miller, — S.W.3d —, 2017 Tenn. App. LEXIS 591 (Tenn. Ct. App. Aug. 30, 2017).

62-13-402. Limited agency.

If a real estate licensee is engaged as an agent, the real estate licensee serves as a limited agent retained to provide real estate services to a client. The licensee shall function as an intermediary in negotiations between the parties to a transaction unless the parties negotiate directly.
A real estate licensee shall owe all parties to a transaction the duties enumerated in § 62-13-403. A licensee shall owe to the licensee's client the duties enumerated in § 62-13-404.
Notwithstanding any law to the contrary, the duties enumerated in §§ 62-13-403 and 62-13-404 shall supersede any fiduciary or common law duties owed by a licensee to the licensee's client on January 1, 1996.

Acts 1995, ch. 246, § 4.

62-13-403. Duty owed to all parties.

A licensee who provides real estate services in a real estate transaction shall owe all parties to the transaction the following duties, except as provided otherwise by § 62-13-405, in addition to other duties specifically set forth in this chapter or the rules of the commission:

Diligently exercise reasonable skill and care in providing services to all parties to the transaction;
Disclose to each party to the transaction any adverse facts of which the licensee has actual notice or knowledge;
Maintain for each party to a transaction the confidentiality of any information obtained by a licensee prior to disclosure to all parties of a written agency or subagency agreement entered into by the licensee to represent either or both of the parties in a transaction. This duty of confidentiality extends to any information that the party would reasonably expect to be held in confidence, except for information that the party has authorized for disclosure, information required to be disclosed under this part and information otherwise required to be disclosed pursuant to this chapter. This duty survives both the subsequent establishment of an agency relationship and the closing of the transaction;
Provide services to each party to the transaction with honesty and good faith;
Disclose to each party to the transaction timely and accurate information regarding market conditions that might affect the transaction only when the information is available through public records and when the information is requested by a party;
Timely account for trust fund deposits and all other property received from any party to the transaction; and
1. Not engage in self-dealing nor act on behalf of licensee's immediate family or on behalf of any other individual, organization or business entity in which the licensee has a personal interest without prior disclosure of the interest and the timely written consent of all parties to the transaction; and
2. Not recommend to any party to the transaction the use of services of another individual, organization or business entity in which the licensee has an interest or from whom the licensee may receive a referral fee or other compensation for the referral, other than referrals to other licensees to provide real estate services under this chapter, without timely disclosing to the party who receives the referral the licensee's interest in the referral or the fact that a referral fee may be received.

Acts 1995, ch. 246, § 5; 1996, ch. 772, §§ 5, 6.

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

Law Reviews.

1996 Real Estate Legislation: What You Don't Know Can Hurt You (William R. Bruce), 32 No. 6 Tenn. B.J. 12 (1996).

NOTES TO DECISIONS

1. Real Estate Sales.

Claim against a real estate agent for breach of duty to disclose defects with respect to a contaminated groundwater well failed because there was no proof of causation or of the agent's actual knowledge of the alleged defects. Stanfill v. Mountain, — S.W.3d —, 2008 Tenn. App. LEXIS 74 (Tenn. Ct. App. Feb. 12, 2008), aff'd in part, rev'd in part, 301 S.W.3d 179, 2009 Tenn. LEXIS 832 (Tenn. 2009).

Claim for a violation of the Tennessee Residential Property Disclosure Act, T.C.A. § 66-5-201 et seq., is not the sole avenue for recovery against a real estate licensee; pursuant to T.C.A. § 66-5-208(d), the licensee is not excused from making the disclosures required by T.C.A. § 62-13-403 of the Tennessee Real Estate Broker License Act of 1973, and the Disclosure Act does not remove or otherwise affect any remedy provided by law for such a failure to disclose. Ledbetter v. Schacht, 395 S.W.3d 130, 2012 Tenn. App. LEXIS 604 (Tenn. Ct. App. Aug. 31, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 23 (Tenn. Jan. 9, 2013).

Trial court properly granted a seller and a licensed affiliate broker summary judgment because there were no genuine issues of material fact as to whether they violated the Tennessee Residential Property Disclosure Act and the Tennessee Real Estate Broker License Act of 1973; even though the broker testified the warranty deed transferring the property from the bank to the seller could have meant the property had been involved in a foreclosure, that information had been provided to the buyers. Haynes v. Lunsford, — S.W.3d —, 2017 Tenn. App. LEXIS 69 (Tenn. Ct. App. Feb. 2, 2017).

62-13-404. Duty owed to licensee's client.

Any licensee who acts as an agent in a transaction regulated by this chapter owes to the licensee's client in that transaction the following duties, to:

Obey all lawful instructions of the client when the instructions are within the scope of the agency agreement between licensee and licensee's client;
Be loyal to the interests of the client. A licensee must place the interests of the client before all others in negotiation of a transaction and in other activities, except where the loyalty duty would violate licensee's duties to a customer under § 62-13-402 or a licensee's duties to another client in a dual agency; and
1. Unless the following duties are specifically and individually waived, in writing by a client, a licensee shall assist the client by:
  1. Scheduling all property showings on behalf of the client;
  2. Receiving all offers and counter offers and forwarding them promptly to the client;
  3. Answering any questions that the client may have in negotiation of a successful purchase agreement within the scope of the licensee's expertise; and
  4. Advising the client as to whatever forms, procedures and steps are needed after execution of the purchase agreement for a successful closing of the transaction;
2. Upon waiver of any of the duties in subdivision (3)(A), a consumer shall be advised in writing by the consumer's agent that the consumer may not expect or seek assistance from any other licensees in the transaction for the performance of the duties in subdivision (3)(A).

Acts 1995, ch. 246, § 6; 1996, ch. 772, § 7; 2006, ch. 738, § 2.

NOTES TO DECISIONS

1. Breach of Duty.

Trial court did not make any findings specifically with respect to the claims for breach of fiduciary duty or violation of T.C.A. § 62-13-404, for which remand was required. White v. Miller, — S.W.3d —, 2017 Tenn. App. LEXIS 591 (Tenn. Ct. App. Aug. 30, 2017).

Court affirmed summary judgment to a real estate agent on a breach of fiduciary duty claim and corresponding violation of the statute; the completion of the agent's negotiated sale was within the seller's interest, plus she could not show that receipt of a commission for the sale of the buyers' property was a breach of duty. White v. Miller, — S.W.3d —, 2018 Tenn. App. LEXIS 592 (Tenn. Ct. App. Oct. 5, 2018).

62-13-405. Written disclosure.

If a licensee personally assists a prospective buyer or seller in the purchase or sale of a property and the buyer or seller is not represented by this or any other licensee, the licensee shall verbally disclose to the buyer or seller the licensee's facilitator, agent, subagent or designated agent status in the transaction before any real estate services are provided. Known adverse facts about a property must also be disclosed under the laws governing residential property disclosure, compiled in title 66, chapter 5, part 2, but licensees shall not be obligated to discover or disclose latent defects in a property or to advise on matters outside the scope of their real estate license.
The disclosure of agency status pursuant to subsection (a) must be confirmed in writing with an unrepresented buyer prior to the preparation of an offer to purchase. The disclosure of agency status must be confirmed in writing with an unrepresented seller prior to execution of a listing agreement or presentation of an offer to purchase, whichever comes first. Following delivery of the written disclosure, the licensee shall obtain a signed receipt for the disclosure from the party to whom it was provided. The signed receipt shall contain a statement acknowledging that the buyer or seller, as applicable, was informed that any complaints alleging a violation or violations of § 62-13-312 must be filed within the applicable statute of limitations for the violation set out in § 62-13-313(e). The acknowledgment shall also include the address and telephone number of the commission.
The disclosure of agency or facilitator status, as provided in subsection (a), shall not be construed as or be considered a substitute for a written agreement to establish an agency relationship between the broker and a party to a transaction as referenced in § 62-13-406.
Upon initial contact with any other licensee involved in the same prospective transaction, the licensee shall immediately disclose the licensee's role in the transaction, including any agency relationship, to this other licensee. If the licensee's role changes at any subsequent date, the licensee shall immediately notify any other licensees and any parties to the transaction relative to the change in status.
Real estate transactions involving the transfer or lease of commercial properties, the transfer of property by public auction, the transfer of residential properties of more than four (4) units or the lease or rental of residential properties shall not be subject to the disclosure requirements of §§ 62-13-403, 62-13-404 and this section.

Acts 1995, ch. 246, § 7; 1996, ch. 772, §§ 8-11; 2006, ch. 776, § 3.

Law Reviews.

1996 Real Estate Legislation: What You Don't Know Can Hurt You (William R. Bruce), 32 No. 6 Tenn. B.J. 12 (1996).

NOTES TO DECISIONS

1. Disclosure.

62-13-406. Designated broker — Managing broker.

A licensee entering into a written agreement to represent any party in the buying, selling, exchanging, renting or leasing of real estate may be appointed as the designated and individual agent of this party by the licensee's managing broker, to the exclusion of all other licensees employed by or affiliated with the managing broker. A managing broker providing services under this chapter shall not be considered a dual agent if any individual licensee so appointed as designated agent in a transaction, by specific appointment or by written company policy, does not represent interests of any other party to the same transaction.
The use of a designated agency does not abolish or diminish the managing broker's contractual rights to any listing or advertising agreement between the firm and a property owner, nor does this section lessen the managing broker's responsibilities to ensure that all licensees affiliated with or employed by the broker conduct business in accordance with appropriate laws, rules and regulations.
There shall be no imputation of knowledge or information among or between clients, the managing broker and any designated agent or agents in a designated agency situation.

Acts 1995, ch. 246, § 8.

NOTES TO DECISIONS

1. Imputation of Knowledge.

Where the plaintiffs purchased a house that was subject to flooding, the seller was not liable for the sales agent's alleged knowledge of prior flooding; such imputation was barred by T.C.A. § 62-13-406(c). There was no evidence that the sales agent had any knowledge of flood damage or other defects. Ingram v. Cendant Mobility Fin. Corp., 215 S.W.3d 367, 2006 Tenn. App. LEXIS 647 (Tenn. Ct. App. 2006).

62-13-407. Liability.

A client or other party to whom a real estate licensee provides services as an agent, subagent or facilitator shall not be liable for damages for the misrepresentations of the licensee arising out of the licensee's services unless the client or party knew or had reason to know of the misrepresentation. This section shall not limit the liability of a licensee's managing broker for the misrepresentations of the managing broker's licensees.

Acts 1995, ch. 246, § 9; 1996, ch. 772, § 12.

62-13-408. Application.

This part shall supersede common law to the extent common law is inconsistent with this part.

Acts 1995, ch. 246, § 10.

Part 5
Commercial Real Estate Brokers

62-13-501. Part definitions — Form of notice.

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

“Broker” has the same meaning as used in § 62-13-102;
1. “Commercial real estate” means any real estate other than:
  1. Real estate containing one (1) to four (4) residential units; or
  2. Real estate on which no buildings or structures are located and is zoned for no more than one (1) to four (4) family residential units;
2. “Commercial real estate” does not include single family residential units such as condominiums, town houses or homes in a subdivision when sold, leased or otherwise conveyed on a unit-by-unit basis even though these units may be a part of a larger building or parcel of real estate containing more than four (4) residential units;
“Notice” means a notice specifically referencing an agreement entered into after October 1, 1997, to pay commissions in any brokerage contract or lease or memorandum of the foregoing, sworn to and executed by the broker, identifying the subject real estate by lot and block number or by a metes and bounds description and in the form of notice set out in this subdivision (3) and containing only the information provided for in the form, recorded as provided for in § 62-13-503(e), in the office of the register of deeds of the county in which the property is located, no less than ten (10) business days before the transfer of the commercial real estate that is the subject of the agreement. The form of the notice to be recorded shall be:
NOTICE OF AGREEMENT TO PAY LEASING COMMISSION

THIS NOTICE is made as of this day of , , in accordance with the provisions of T.C.A. Section 62-13-501. The undersigned [Name of Broker][address] makes claim to fees or commissions with respect to the following real property located in the State of Tennessee [property must be identified below by County and City (if any) and by either lot and block or subdivision number, or metes and bounds description].

County:

City:

Lot And Block No. or Subdivision/Development Name:

Property (Metes and Bounds) Description (either fill in here or attach Exhibit):

[The Broker], is entitled to be paid certain leasing fees or commissions as a result of securing a tenant for the real property from the above-described real property pursuant to one or more provisions of the following written instrument (the “Instrument”):

Name/Title of Instrument:

Date of Instrument:

Name of Parties to Instrument:

The Owner of the Property Is:

[NOTE: Any party seeking details or any other information regarding the Instrument shall rely only on the Instrument. Without the express written consent of all parties to the Instrument, neither the Instrument nor any other information regarding the Instrument shall be included in this Notice.]

THIS NOTICE made for the purpose set out above to be effective as of the day and date first above written.

STATE OF

COUNTY OF

The Undersigned Broker, being first duly sworn, hereby certifies that the foregoing Notice of Agreement to Pay Leasing Commission is true and correct, and that the agreement to pay leasing fees or commissions remains in force and has not been terminated.

This the day of ,

BROKER:

By:

Print Name:

Title:

[NOTE: Insert the appropriate acknowledgment form as required by law and have the broker's signature properly acknowledged.];
“Owner” means the person or persons to whom the fee interest of real estate is titled and does not include a lessee or renter;
“Real estate” means and includes leaseholds, as well as any other interest or estate in land, whether corporeal, incorporeal, freehold or nonfreehold, situated in this state; and
“Subsequent owner” means a transferee or purchaser of commercial real estate from the owner or from a previous subsequent owner, but will not include the transferee or purchaser of commercial real estate pursuant to a sale conducted pursuant to title 67, chapter 5, part 25.

Acts 1997, ch. 389, § 1; 2014, ch. 533, §§ 1, 2.

Law Reviews.

1996 Real Estate Legislation: What You Don't Know Can Hurt You (William R. Bruce),32 No. 6 Tenn. B.J. 12 (1996).

62-13-502. Enforcement of fee or commission contract against subsequent owners.

A broker who, pursuant to a contract in writing entered into after October 1, 1997, has earned and is owed a fee or commission with respect to a lease or upon the exercise of an option for renewal or expansion of the lease, whether payable over time or in a lump sum, from the owner of commercial real estate pursuant to such written contract for the broker's services in connection with a lease of commercial real estate, shall have a cause of action to enforce the contract with respect to the fee or commission against a subsequent owner, even though the subsequent owner is not a party to the contract, if and only if the subsequent owner has notice of the contract as provided in this part with respect to the fee before obtaining title to the commercial real estate. There shall be no prohibition against a broker giving the notice as required by this part, and any such prohibition is void and unenforceable.

Acts 1997, ch. 389, § 1; 2014, ch. 533, § 3.

Compiler's Notes. Acts 2014, ch. 533, § 4 provided that § 3 of the act, which amended this section, shall apply to any cause of action for which the subsequent owner has notice on or after March 12, 2014, that fees or commissions are owing.

62-13-503. Obligation subject to original contract — Limitation of actions — Recording of notice.

The obligation of a subsequent owner shall be subject to the terms, conditions and defenses available to the contracting parties. A subsequent owner shall be liable for the fees or commissions only to the extent that the subsequent owner receives rents pursuant to leases with respect to which the broker is entitled to receive a fee or commission under the written contract referenced in the notice provided for in § 62-13-501.
Nothing in this part shall be construed to change any agreement between an owner and a subsequent owner or to release an owner from any liability to a broker for the fees or commissions or to restrict or prevent a third-party claim by a subsequent owner against an owner or a previous subsequent owner for indemnification against a claim made by a broker against a subsequent owner based on a liability of the owner or a previous subsequent owner to the broker.
A broker may enforce an obligation under this section against a subsequent owner by filing suit in a court having appropriate jurisdiction within the latter of the following but in no event more than ten (10) years after the recording of the notice:
1. One (1) year after the transfer of ownership from the owner or a previous subsequent owner to a subsequent owner; or
2. One (1) year after the claim for a fee or commission accrues.
A notice containing only the information provided in § 62-13-501 may be recorded pursuant to this part in the office of the register of deeds in the county where the property is located, and the register of deeds shall accept the notice for recording. After the notice is recorded, the person who tendered it for recording shall promptly deliver a copy to the owner of the subject commercial real estate. Delivery may be by personal delivery, certified mail or any delivery service that provides proof of delivery.
Any notice that may be recorded pursuant to this part shall be deemed to be authenticated and eligible for recordation only if the notice conforms to the requirements of § 62-13-501. The register of deeds will index this recorded notice under the name of the owner identified in the notice and shall index the recorded notice in the reverse index under the name of the broker who is a party to the document.
Upon a written request by the owner or subsequent owner of the subject commercial real estate, made after all fee or commission rights, with respect to which a notice has been recorded under this part, have been paid in full or have otherwise been discharged, expired or otherwise are no longer enforceable under applicable law, the broker who recorded the notice or that broker's successor in interest shall record a release of that notice with the register of deeds for the county where that notice was recorded.
This part shall not be construed to create a lien on any commercial real estate to which this part applies.

Acts 1997, ch. 389, § 1.

62-13-504. Attorney fees and court costs.

The prevailing party in any litigation seeking to enforce the cause of action granted in § 62-13-502 or in seeking to recover damages or other relief for the wrongful refusal or failure to release the notice as required by § 62-13-503(f) shall be entitled to recover attorney fees and court costs incurred by reason of the litigation from the nonprevailing party.

Acts 1997, ch. 389, § 1.

62-13-505. Immunity of title examiners, title insurers, abstracters and closing agents.

No title examiner, title insurer, abstracter or closing agent shall have any responsibility or liability related to the contents of any document that is the subject of a notice recorded pursuant to this part so long as the title examiner, title insurer, abstractor or closing agent fulfills its obligations, if any, under existing law and its contract to disclose in its title report, abstract, commitment or policy the existence of the notice.

Acts 1997, ch. 389, § 1.

Part 6
Agency Contracts and Referral Fees

62-13-601. Part definitions.

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

“Agency contract” means a valid written contract authorizing a real estate licensee to act as a party's exclusive agent for the purchase, sale or lease of real estate;
“Agency relationship” means the relationship resulting from an agency contract; and
“Referral fee” means a commission or any other type of compensation for the referral of a potential buyer, seller, lessor or lessee of real estate.

Acts 1999, ch. 160, § 2.

62-13-602. Reasonable cause to solicit referral fee.

Reasonable cause does not exist unless the party seeking the referral fee actually introduced the business to the real estate licensee from whom the referral fee is sought and at least one (1) of the following other conditions exists as between the party seeking the referral fee and the real estate licensee from whom the referral fee is sought:

Sub-agency relationship;
Contractual referral fee relationship; or
Contractual cooperative brokerage relationship.

Acts 1999, ch. 160, § 3.

62-13-603. Unlawful referral solicitation — Unlawful retribution for existence of agency relationship.

It is unlawful for any person or entity to:
1. Solicit or request a referral fee from a real estate licensee without reasonable cause; or
2. Threaten to reduce or withhold employee relocation benefits or to take other action adverse to the interests of a client of a real estate licensee because of an agency relationship.
Reasonable cause allows a real estate licensee to solicit or request a referral fee but does not necessarily mean that the licensee has a legal right to be paid a referral fee.

Acts 1999, ch. 160, § 4.

62-13-604. Unlawful interference with agency relationship.

It is unlawful for a real estate licensee, a relocation firm or a firm with a corporate relocation policy or benefits, or anyone on behalf of any such licensee or firm, to counsel a client of another real estate licensee on how to terminate or amend an existing agency contract. Communicating corporate relocation policy or benefits to a transferring employee shall not be considered a violation of this part, as long as the communication does not involve advice or encouragement on how to terminate or amend an existing agency contract.

Acts 1999, ch. 160, § 5.

Chapters 14 — 17
[Reserved]

Chapter 18
Land Surveyors and Soil Scientists

Part 1
Land Surveyors

62-18-101. Registration requirement.

In order to safeguard the life, health or property of the public, the practice of land surveying in this state is declared to be subject to regulation in the public interest.
It is unlawful for any person to practice or offer to practice land surveying in the state or to use in connection with the person's name or otherwise assume or advertise any title or description tending to convey the impression that the person is a land surveyor, unless the person has been duly registered or exempted under this part.

Acts 1969, ch. 207, § 1; T.C.A., § 62-1801.

Cross-References. Actions for faulty surveying, § 28-3-114.

County surveyors, title 8, ch. 12.

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

State examining boards, title 4, ch. 19.

Textbooks. Tennessee Jurisprudence, 17 Tenn. Juris., Licenses, § 14.

Law Reviews.

Survey of Tennessee Constitutional Law in 1976-77, VI. Regulation of Businesses and Professions (Kenneth L. Penegar), 46 Tenn. L. Rev. 151.

Attorney General Opinions. As the “practice of land surveying” involves land location and land use services, but does not include the building of things, it is not a construction service. OAG 17-17, 2017 Tenn. AG LEXIS 17 (3/7/2017).

NOTES TO DECISIONS

1. Constitutionality.

Land surveying affects the public interest and therefore may be validly regulated by the legislature. Chapdelaine v. Tennessee State Board of Examiners for Land Surveyors, 541 S.W.2d 786, 1976 Tenn. LEXIS 557 (Tenn. 1976), appeal dismissed, 429 U.S. 1033, 97 S. Ct. 724, 50 L. Ed. 2d 744, 1977 U.S. LEXIS 177 (1977).

62-18-102. Part definitions.

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

“Board” means the state board of examiners for land surveyors, provided for by this part;
“Land surveyor” means a person who is engaged in the practice of land surveying;
“Practice of land surveying” means any service of work, the adequate performance of which involves the application of special knowledge of the principles of mathematics, the related physical and applied sciences and the relevant requirements of law for adequate evidence to the act of measuring and locating lines, angles, elevations, natural and man-made features in the air, on the surface of the earth, within underground workings and on the beds of bodies of water for the purpose of determining areas and volumes, for the monumenting of property boundaries and for the platting and layout of lands and subdivisions of land, including the topography, drainage, alignment and grades of streets, and for the preparation and perpetuation of maps, records, plats, field notes, records and property descriptions that represent these surveys; and
A person shall be construed to “practice or offer to practice” land surveying within the meaning and intent of this part, who:
1. Engages in land surveying;
2. By verbal claim, sign, letterhead, card or in any other way represents that the person is a land surveyor; or
3. Represents that the person is able to perform land surveying in this state.

Acts 1969, ch. 207, § 2; 1979, ch. 97, § 1; T.C.A., § 62-1802.

Attorney General Opinions. In the definition of “practice of land surveying”, the term “drainage” refers to the components of a land drainage system, including storm and wastewater drainage, OAG 04-018, 2004 Tenn. AG LEXIS 18 (2/09/04).

A licensed land surveyor who is not a registered engineer may not conduct and perform drainage design and calculations required for the construction of subdivisions, including determining the detention and retention of storm water as well as determining the size of ponds, basins, pipes and culverts which will hold and through which storm water will flow, OAG 04-018, 2004 Tenn. AG LEXIS 18 (2/09/04).

A city, in the exercise of its land planning authority, is not bound by the minimum standards governing the practice of land surveying and engineering; therefore, a city may require an engineer to perform functions that, arguably, may be performed by a land surveyor, OAG 04-018, 2004 Tenn. AG LEXIS 18 (2/09/04).

62-18-103. Establishment of board — Professional members.

1. To carry out this part, there is hereby created a state board of examiners for land surveyors. This board shall consist of three (3) members to be appointed by the governor under the conditions described as follows: initially the governor shall appoint on the board three (3) land surveyors, qualified as herein required, one (1) of whom shall come from each of the three (3) grand divisions, designating one (1) of those persons to serve for a period of two (2) years, one (1) for a period of four (4) years and one (1) for a period of six (6) years.
2. Shortly before the expiration of the term of each member, a successor shall be appointed from the same grand division.
3. The term of office of all members shall begin on July 1 following their appointment, except those appointed to fill vacancies, but each member shall hold office until a successor is appointed and qualified.
4. Each appointment after the first shall be for a period of six (6) years.
The board is attached for administrative purposes to the division of regulatory boards in the department of commerce and insurance.
1. Appointments to the board may be made by the governor from lists of qualified nominees submitted by interested land surveyor groups, including, but not limited to, the Tennessee Association of Professional Surveyors. The lists shall be submitted at least sixty (60) days before the expiration of any term or, in the case of vacancies occurring during terms of office, within thirty (30) days following the occurrence of the vacancy. The governor shall consult with such interested groups to determine qualified persons to fill the positions.
2. In making appointments to the board under the authority of this section or under the authority of § 62-18-104, 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. The three (3) members of the board shall each have had at least ten (10) years' experience in the practice of land surveying and shall have been in responsible charge of work for at least five (5) years.
2. Each member of the board shall be a citizen of the United States and shall have been a resident of this state for five (5) years at the time of appointment, and shall be at least thirty-five (35) years of age.
The governor may remove any member of the board for misconduct, incapacity or neglect of duty.

Acts 1969, ch. 207, §§ 3, 4; impl. am. Acts 1971, ch. 137, § 1; Acts 1973, ch. 89, § 1; 1977, ch. 73, § 1; 1978, ch. 906, § 25; 1979, ch. 21, § 2; T.C.A., § 62-1803; Acts 1988, ch. 1013, § 33; 2012, ch. 795, § 1.

Compiler's Notes. The board of land survey examiners, created by this section, terminates June 30, 2021. See §§ 4-29-112, 4-29-242.

Cross-References. Board members to hold valid land surveyor's certificates, § 62-18-105.

Grand divisions, title 4, ch. 1, part 2.

62-18-104. Public member.

In addition to appointments made pursuant to § 62-18-103, the board shall also consist of one (1) member who shall be appointed by the governor for a six-year term, each term to begin on July 1 and who shall not be engaged in the practice of land surveying. The member shall be a resident of this state and shall possess good moral character.

Acts 1979, ch. 21, § 2; T.C.A., § 62-1804; Acts 1983, ch. 257, § 1.

62-18-105. Board members' certificates — Legal services — Seal.

Each member of the board shall receive a certificate of appointment from the governor and, before beginning the member's term of office, shall file with the secretary of state the constitutional oath of office.
No one, except a person appointed pursuant to § 62-18-104, shall be eligible for membership on the board who does not at the time hold an unexpired certificate to practice land surveying issued under this part.
The board or any committee of the board shall be entitled to the services of an attorney general in connection with the affairs of the board, and the board shall have power to compel the attendance of witnesses, may administer oaths and may take testimony concerning matters within its jurisdiction.
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 in performing its duty.

Acts 1969, ch. 207, § 5; 1979, ch. 21, § 3; T.C.A., § 62-1805.

62-18-106. Board meetings — Officers — Rules.

1. The board shall hold at least one (1) regular meeting each year.
2. Special meetings shall be held at such times as the bylaws of the board may provide.
3. Notice of all meetings shall be given in the manner that the bylaws of the board may provide.
4. The board shall elect annually from its members a chair and vice chair.
5. A quorum of the board shall consist of a simple majority of the members.
The director of the division of regulatory boards in the department of commerce and insurance or the director's designee shall serve as secretary for the board.
The board shall, in compliance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, promulgate rules and regulations that incorporate and establish minimum acceptable standards of practice for licensed land surveyors.
The board has the authority to establish continuing educational requirements and standards for land surveyors. Any rules promulgated to effect this subsection (d) shall be promulgated in compliance with the Uniform Administrative Procedures Act.
Any continuing education requirements established pursuant to this part shall provide that persons practicing land surveying who were born prior to January 1, 1928, shall be exempt from complying with continuing education standards and requirements.

Acts 1969, ch. 207, § 6; 1978, ch. 906, § 26; 1979, ch. 21, § 4; T.C.A., § 62-1806; Acts 1991, ch. 6, § 1; 1996, ch. 783, § 1; 1998, ch. 754, § 1; 2000, ch. 652, § 1.

Compiler's Notes. Acts 1996, ch. 783, § 2 provided that the act shall apply to all licenses renewed or subject to renewal in 1995 and subsequent years.

Cross-References. Powers and duties of director of division of regulatory boards, title 56, ch. 1, part 3.

62-18-107. Deposit of fees — Operating funds.

The secretary of the board shall receive and account for all moneys derived under this part and shall deposit the moneys into the state treasury as provided by law.
Financial operation of the board shall be governed by existing laws and financial practices of this state.
All expenses certified by the board as properly and necessarily incurred in the discharge of its duties, including authorized compensation and the necessary expenses incident to cooperation with like boards of other states, shall be paid on the warrant of the commissioner of finance and administration issued on requisitions signed by the chair and secretary of the board.
Funds received under this part shall be subject to allotment by the commissioner, and no expenditures shall be made by the board out of fees collected by it unless and until the allotments have been made by the commissioner under §§ 4-3-1006, 9-4-5101 — 9-6-5106 and 9-6-5108 — 9-6-5114, inclusive.

Acts 1969, ch. 207, § 7; 1972, ch. 578, § 1; 1976, ch. 806, § 1(106); 1978, ch. 906, § 27; T.C.A., § 62-1807; Acts 1984, ch. 676, § 10.

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

62-18-108. Records.

The board shall keep a record of its proceedings and 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.
A roster showing the names and places of business and of residence of all registered land surveyors shall be prepared by the secretary of the board each year. The roster may be printed out of the funds of the board as provided in § 62-18-107.

Acts 1969, ch. 207, § 8; 1975, ch. 165, § 12; 1978, ch. 906, § 28; T.C.A., § 62-1808; Acts 1983, ch. 257, §§ 2, 3; 2001, ch. 261, § 3.

62-18-109. Applications for registration.

1. The board shall consider and evaluate a land surveyor applicant's qualifications based upon:
  1. The applicant’s education, technical, and land surveying experience;
  2. Exhibits of land surveying projects with which the applicant has been associated;
  3. Recommendations and character references; and
  4. The payment by the applicant of a fee set by the board in accordance with § 62-18-125 with the approval of the commissioner of commerce and insurance.
2. The board shall, in proper cases as authorized in this part, issue a certificate of registration as a land surveyor to any person who submits evidence satisfactory to the board that the person is fully qualified to practice land surveying.
3. A land surveyor applicant's qualifications may be reviewed at an interview if the board determines it necessary.
4. Educational credit for institute courses, correspondence courses, or other courses shall be determined by the board.
5. No person shall be eligible for registration who:
  1. Does not have a high school education diploma or a general equivalency diploma (GED(R));
  2. Does not speak and write the English language; or
  3. Is not of good character and repute.
The following shall be considered as the minimum evidence satisfactory to the board that the applicant meets the qualifications of a professional land surveyor:
1. To be certified as a land surveyor intern (PLSIT), an applicant shall:
  1. Make a complete application to the board;
  2. Be of good character and reputation;
  3. Submit three (3) character references to the board, one (1) of whom is a professional land surveyor;
  4. Comply with the requirements of this part;
  5. Pass the Fundamentals of Land Surveying examination; and
  6. Satisfy one (1) of the following requirements related to education and experience:
    1. Obtain a baccalaureate degree from a surveying or surveying technology curriculum of four (4) or more years, approved by the board;
    2. Obtain a baccalaureate degree from a science, engineering or technology curriculum of four (4) or more years related to the practice of land surveying, approved by the board, with a minimum of twenty-four (24) semester hours of board-approved coursework in the surveying sciences;
    3. Obtain a baccalaureate degree from a nonsurveying related curriculum of four (4) or more years, approved by the board, plus an additional thirty-six (36) semester hours of board-approved coursework in the surveying sciences;
    4. Obtain an associate degree in surveying technology or a related science, engineering or technical field, approved by the board, with a minimum of thirty (30) semester hours of board-approved coursework in the surveying sciences, a record of four (4) years of progressive practical experience, two (2) years of which shall have been under the direct supervision of a practicing professional land surveyor; or
    5. Obtain a high school education diploma or a general equivalency diploma (GED(R)) with a record satisfactory to the board of ten (10) years of progressive practical experience, six (6) years of which shall have been under the direct supervision of a practicing professional land surveyor;
2. To be licensed as a professional land surveyor, an applicant shall:
  1. Make a complete application to the board;
  2. Be of good character and reputation;
  3. Submit five (5) character references to the board, three (3) of whom are professional land surveyors or individuals acceptable to the board and who have personal knowledge of the applicant's land surveying experience;
  4. Comply with the requirements of this part; and
  5. Satisfy one (1) of the following requirements:
    1. Obtain a baccalaureate degree from a surveying or surveying technology curriculum of four (4) or more years, approved by the board, and a record satisfactory to the board of two (2) years of progressive practical experience after the applicant passes the Fundamentals of Land Surveying examination, one (1) year of which shall have been in responsible charge of duties performed under a practicing professional land surveyor. An applicant who passes the Principles and Practice of Land Surveying examination and the Tennessee State Jurisdictional examination shall be granted licensure as a professional land surveyor;
    2. Obtain a baccalaureate degree from a science, engineering or technology curriculum of four (4) or more years related to the practice of land surveying, approved by the board, with a minimum of twenty-four (24) semester hours of board-approved coursework in the surveying sciences, and a record satisfactory to the board of two (2) years of progressive practical experience after the applicant passes the Fundamentals of Land Surveying examination, one (1) year of which shall have been in responsible charge of duties performed under a practicing professional land surveyor. An applicant who passes the Principles and Practice of Land Surveying examination and the Tennessee State Jurisdictional examination shall be granted licensure as a professional land surveyor;
    3. Obtain a baccalaureate degree from a nonsurveying related curriculum of four (4) or more years, approved by the board, plus an additional thirty-six (36) semester hours of board-approved coursework in the surveying sciences, and a record satisfactory to the board of two (2) years of progressive practical experience after the applicant passes the Fundamentals of Land Surveying examination, one (1) year of which shall have been in responsible charge of duties under a practicing professional land surveyor. An applicant who passes the Principles and Practice of Land Surveying examination and the Tennessee State Jurisdictional examination shall be granted licensure as a professional land surveyor;
    4. Obtain an associate degree in surveying technology or a related science, engineering or technical field approved by the board with a minimum of thirty (30) semester hours of board-approved coursework in the surveying sciences, and a record satisfactory to the board of four (4) years of progressive practical experience, three (3) years of which shall have been in responsible charge of duties performed under a practicing professional land surveyor if the applicant passes the Fundamentals of Land Surveying examination on or before June 30, 2016, or if the applicant does not pass the Fundamentals of Land Surveying on or before June 30, 2016, a record satisfactory to the board of six (6) years of progressive practical experience after the applicant passes the Fundamentals of Land Surveying examination, four (4) years of which shall have been in responsible charge of duties under a practicing professional land surveyor. An applicant who passes the Principles and Practice of Land Surveying examination and the Tennessee State Jurisdictional examination shall be granted licensure as a professional land surveyor; or
    5. Comply with the requirements of subdivision (b)(1)(F)(v) as approved by the board and pass the Fundamentals of Land Surveying examination on or before June 30, 2017, or if the applicant does not pass the Fundamentals of Land Surveying examination on or before June 30, 2017, obtain six (6) years of progressive practical experience which shall have been in responsible charge of the duties performed under a professional land surveyor after the applicant passes the Fundamentals of Land Surveying examination, plus an additional twelve (12) hours of board-approved coursework in the surveying sciences. An applicant who passes the Principles and Practice of Land Surveying examination and the Tennessee State Jurisdictional examination shall be granted licensure as a professional land surveyor.

Acts 1969, ch. 207, § 9; 1972, ch. 578, § 2; 1977, ch. 182, § 1; T.C.A., § 62-1809; Acts 1983, ch. 257, § 4; 1985, ch. 147, §§ 1-3; 1986, ch. 545, §§ 1, 2; 1997, ch. 270, §§ 1-3; 2014, ch. 714, § 1.

Compiler's Notes. Acts 2014, ch. 714, § 2 provided that the act, which amended this section, shall apply to any person seeking to become a certified land surveyor intern or a registered or licensed land surveyor on or after April 16, 2014.

Cross-References. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Law Reviews.

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

62-18-110. Reciprocity.

Any applicant may, in the absence of disqualifying evidence, be deemed by the board to be fully qualified to practice land surveying if the applicant holds a like unexpired certificate of registration issued to the applicant after examination by proper authority in the District of Columbia or in any state or territory in the United States in which the examination and requirements for the registration of land surveyors are of a standard satisfactory to the board.

Acts 1969, ch. 207, § 10; T.C.A., § 62-1810.

62-18-111. New evidence — Prerequisites for third examination.

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 present further evidence, which may include the results of a required examination, for the consideration of the board.
Any applicant who fails the examination twice shall not be admitted to another examination unless the applicant demonstrates to the board's satisfaction that the applicant has diligently studied the subjects covered on the examination.

Acts 1969, ch. 207, § 10; T.C.A., § 62-1810; Acts 1983, ch. 257, § 5.

62-18-112. Determination of qualifications — Fee retained in case of rejection.

In determining the qualifications of applicants for registration as land surveyor, a majority vote of the members of the board is required.
In case the board denies the issuance of a certificate to an applicant, the registration fee deposited shall be retained by the board as an examination fee.

Acts 1969, ch. 207, § 10; T.C.A., § 62-1811.

62-18-113. Expiration date of certificates.

Certificates of registration expire on December 31 of each odd-numbered year and are invalid after that date unless renewed. It is the sole responsibility of any person registered as a land surveyor to renew the person's registration on or before the date of its expiration.

Acts 1969, ch. 207, § 10; T.C.A., § 62-1812; Acts 1998, ch. 676, § 1; 2001, ch. 77, § 1.

Cross-References. Director of division of regulatory boards to promulgate rules establishing renewal dates of licenses, certificates or permits, § 56-1-302.

62-18-114. Notice of expiration — Renewal.

The board shall notify each person registered under this part of the date of expiration of the person's certificate and the amount of the fee required for its renewal. The notice shall be sent at least sixty (60) days in advance of the expiration of the certificate.
It is the responsibility of any person registered under this part to notify the board, in writing, of any change of address. Persons registered under this part may notify the board by e-mail of a change in their address.
Certificates of registration shall be subject to late renewal for a period of one (1) year following their expiration date by payment of the renewal fee, plus a penalty in an amount set by the board, for each month or fraction of a month that elapses before payment is received. Any person whose registration has expired for more than one (1) year shall make application for registration; provided, that the board may, in its discretion, waive any further examination of such an applicant.

Acts 1969, ch. 207, § 10; 1971, ch. 86, § 1; 1977, ch. 182, § 2; T.C.A., § 62-1813; Acts 1983, ch. 257, § 6; 1985, ch. 147, § 4; 1989, ch. 360, § 9; 1990, ch. 1026, § 41; 1998, ch. 676, § 2; 2001, ch. 77, § 2.

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

62-18-115. Investigations and prosecutions.

It is the duty of the board to inquire into the identity of any person claiming to be a land surveyor and to prosecute any person violating this part.

Acts 1969, ch. 207, § 10; T.C.A., § 62-1814.

62-18-116. Denial, suspension or revocation of certificate — Disciplinary action.

1. The board may refuse to issue a certificate of registration, may revoke, suspend or refuse to renew a certificate of registration or may take other lawful disciplinary action against any land surveyor registered under this part for any of the following causes:
  1. Any fraud or deceit in obtaining a certificate of registration;
  2. Any incompetency, misconduct or gross negligence in the practice of land surveying;
  3. Any violation of this part or of any rules duly adopted under this part;
  4. Any failure to comply with the minimum acceptable standards of practice established pursuant to § 62-18-106(c);
  5. Any conviction of a felony for the commission of an offense that bears directly on the person's fitness to practice competently. However, an action taken under this subdivision (a)(1)(E) shall be subject to the applicable provisions of the Fresh Start Act that are compiled in chapter 76, part 1 of this title; or
  6. Any revocation, suspension, disciplinary action or voluntary surrender of a license or certificate of registration to practice land surveying in any jurisdiction.
2. Any person may prefer charges against any land surveyor registered under this part on any of the grounds in subdivision (a)(1). The charges shall be in writing, sworn to by the complainant, and shall specifically state the factual basis for the charges.
3. Subdivision (a)(2) shall not be construed to preclude the board from filing charges against a land surveyor on its own motion.
Nothing in this part shall be construed to negate the right of any person, partnership, firm, joint stock association or corporation from appealing to the civil courts for relief.
The affirmative vote of a majority of the members of the board shall be necessary in order to revoke the certificate of registration of any land surveyor registered under this part or to reissue a certificate of registration to any person whose certificate has been revoked.
The board shall notify the register of deeds of each county that would likely be affected by the revocation or suspension of a certificate of registration or the reissuance of a revoked or suspended certificate of registration.

Acts 1969, ch. 207, § 11; 1980, ch. 451, § 5; T.C.A., § 62-1815; Acts 1983, ch. 257, §§ 7, 8; 1998, ch. 676, §§ 3-5; 2016, ch. 719, § 4; 2018, ch. 745, § 10.

Compiler's Notes. Acts 2016, ch. 719, § 11 provided that this act, which amended (a)(1)(E), shall take effect on April 6, 2016, and shall apply to actions instituted by state entities on or after April 6, 2016.

62-18-117. Replacement of lost or destroyed certificates.

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. A charge of fifty dollars ($50.00), or such other amount as set by the board, shall be made for reissuance.

Acts 1969, ch. 207, § 11; T.C.A., § 62-1816; Acts 1990, ch. 1026, § 24; 1998, ch. 676, § 6.

62-18-118. Certificate as evidence.

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 a land surveyor while the certificate remains unrevoked or unexpired.

Acts 1969, ch. 207, § 12; T.C.A., § 62-1817.

62-18-119. Seal of registrant.

Each registrant under this part shall, upon registration, obtain a seal of the design authorized by the board, bearing the registrant's name and the legend “Registered Land Surveyor.”
Maps, plats, surveys or other documents issued by a registrant shall be stamped with the seal during the life of the registrant's certificate, but it is unlawful for anyone to stamp or seal any documents with the seal after the certificate of the registrant named on the certificate has expired or has been revoked, unless the certificate has been renewed or reissued.
1. No surveyor shall affix a seal or stamp to any document that has not been prepared by that surveyor or under that surveyor's individual supervision.
2. The survey used in making plats must be made by the surveyor or the surveyor's employees or members of a partnership, firm or joint stock association of which the surveyor is a member, and the surveyor affixing the surveyor's seal to the survey must be in responsible charge of those making the surveys in such association with the surveyor.
The board may adopt rules and regulations pertaining to the affixing to and endorsement of the registrant's seal on surveying documents that may be necessary to implement compliance with this section.

Acts 1969, ch. 207, § 12; 1973, ch. 89, § 2; T.C.A., § 62-1818.

62-18-120. Violations.

A person commits a Class C misdemeanor who:
1. Presents or attempts to file as that person's own the certificate of registration of another;
2. Gives forged or willfully false evidence of any kind to the board or any member of the board for the purpose of obtaining a certificate;
3. Falsely impersonates any other practitioner; or
4. Uses or attempts to use an expired or revoked certificate of registration.
Any person who practices or offers to practice land surveying in this state in violation of this part commits a Class C misdemeanor. Each day of violation constitutes a separate offense.
A person shall be construed to practice, or offer to practice, land surveying who, by verbal claim, sign, advertisement, letterhead, card or any other way, represents the person to be a land surveyor, with or without qualifying adjectives, or through the use of some other title implies that the person is a land surveyor.
The grand juries of the state are given inquisitorial power over all violations of this part, and the judges of the courts shall give inquisitorial power in their charges to the grand juries.
It is the duty of the members of the board to report any violations of this part to the proper authorities.
“Person,” as used in this section, includes firms and corporations.
Prosecutions for any person who practices or offers to practice land surveying in this state in violation of this part shall be commenced within four (4) years next after the offense has been committed.

Acts 1969, ch. 207, § 13; T.C.A., § 62-1819; Acts 1985, ch. 146, § 2; 1989, ch. 591, § 113.

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

Subsection (g) exception from misdemeanor provisions, § 40-2-102.

Law Reviews.

The Tennessee Court Systems — The Jury System, 8 Mem. St. U.L. Rev. 489.

62-18-121. [Reserved.]

The right to engage in the practice of land surveying shall be deemed a personal right, based upon the qualifications of the individual, evidenced by the individual's registration certificate and shall not be transferable.
Any registered land surveyor may practice the profession through the medium of, or as a member or as an employee of, a partnership, firm, joint stock association or corporation; provided, that all surveys are signed and stamped with the signature and seal of the registered land surveyor in responsible charge.
The registered land surveyor signing and sealing surveys is responsible, personally and professionally, for the surveys.

Acts 1969, ch. 207, § 15; 1979, ch. 97, § 2; T.C.A., § 62-1821.

62-18-123. 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., § 62-1823.

62-18-124. Right-of-entry — Liability — Notice to landowners — Injunctions.

A professional land surveyor, the professional land surveyor's agents, employees and personnel under the professional land surveyor's supervision, may go on, over and upon the lands of others when necessary to perform surveys for the location of property corners, boundary lines, rights-of-way and easements, and, in so doing, may carry with them their customary equipment and vehicles.
A professional land surveyor, the professional land surveyor's agents, employees and personnel under the professional land surveyor's supervision entering the lands of others under the right granted by subsection (a), and doing no unnecessary injury, are liable only for the actual damage done, and, if sued in such case, the plaintiff shall recover only as much costs as damages.
Nothing in this section shall be construed as giving authority to a professional land surveyor, the professional land surveyor's agents, employees or personnel under the professional land surveyor's supervision to destroy, injure, damage or move anything on the lands of another without the written permission of the landowner, and nothing in this section shall be construed as removing civil liability for such damage.
A licensed land surveyor during the conduct of a boundary survey where there is discovered, or reasonably should have been discovered, any major apparent discrepancy as defined by the board between the deed descriptions of adjoiners, evidence of use or possession not consistent with deed descriptions or otherwise has notice that there is an adverse claim across a boundary, shall notify the affected adjoiners. Notice to nonresident or absentee owners will be by mail to the current address used for mailing property tax notices. In cases in which the landowner does not reside on the property, reasonable effort shall mean notification by certified mail.
No owner or occupant of the land shall be liable for any injury or damage sustained by any person entering upon the land under this section.
Injunctive relief may be had against a landowner restricting entry to the landowner's land in violation of this section by petition addressed to the circuit or chancery court of the division in which the violation is alleged to have occurred.

Acts 1984, ch. 934, §§ 2-5; 2000, ch. 930, § 1.

62-18-125. Schedule of fees.

The board shall establish a schedule of fees for the following categories:
1. Examination fee;
2. Licensing fee; and
3. Renewal fee.
The board shall, in compliance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, promulgate necessary rules and regulations to establish the schedule of fees authorized by this section.

Acts 1985, ch. 147, § 5; 1989, ch. 523, § 157.

62-18-126. Nonmonumentation procedures authorized as closing or loan surveys.

Notwithstanding any other law to the contrary, all limited nonmonumentation procedures or practices, such as mortgage loan inspections, mortgage loan certificates, mortgage title inspections and improvement loan certificates, shall be authorized as closing or loan surveys.

Acts 1990, ch. 1026, § 66.

62-18-127. Duty to research common boundaries.

A professional land surveyor shall search the land records of the land to be surveyed filed in the register of deeds office and obtain the deeds of record of all the adjoining landowners as it pertains to the common boundaries. The professional land surveyor shall have the additional responsibility to utilize documents of public record or unrecorded documents or plats supplied to the surveyor at the time of the survey to resolve any discrepancies between the subject land and any adjoining lands. Evidence found from these sources shall be carefully compared with that located or found in the field survey in order to aid in the establishment of the original boundaries of the land being surveyed. It is not the intent of this section to require the professional land surveyor to research the title or encumbrances on the land involved.

Acts 2004, ch. 520, § 1.

62-18-128. Retiring license — Reinstatement — Retirement of license no bar to disciplinary action — Nontransferable.

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 license certificate to the surveyor. The holder of a retired license shall not be entitled to practice as a surveyor unless the licensee is reinstated in accordance with subsection (c).
Any licensee who is not engaged in work or activities that require a surveyor's license may apply for a retired license.
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, including, but not limited to, successfully completing all examination requirements.
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.
No retired license is transferable.
The board is authorized to promulgate rules and regulations to effectuate the purposes of this section. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2010, ch. 1139, §§ 1, 3.

Part 2
Soil Scientist Licensure Act of 2009

62-18-201. Short title.

This part shall be known and may be cited as the “Soil Scientist Licensure Act of 2009.”

Acts 2010, ch. 1032, § 2.

62-18-202. Legislative findings — Purpose.

The general assembly finds that the competent and proper application of soil science principles by soil scientists is vital to the lives, property, economy, security, and environment of the people of this state. In order to safeguard life, health, and property and to promote the public welfare, the practice of soil science in this state is hereby declared to be subject to regulation in the public interest. Furthermore, the practice of soil science is hereby declared a learned profession to be practiced and regulated as such, and its practitioners in this state shall be held accountable to the state and members of the public by high professional standards in keeping with the ethics and practices of other learned professions in this state. The purpose of this part is to introduce additional qualifying criteria in a professional field at present only partially regulated, thereby benefiting the safety, health, and property of the people of Tennessee and promoting the public welfare. The fields of soil science expected to benefit are those related to the environment, soil classification and mapping, the inventory of the soil as a resource, basic soil science research, and other soil science matters of concern to the people of this state. This legislation does not attempt to infringe upon the current licensed professions of engineers, geologists, surveyors, or the persons who work directly for them as either their employees or as subcontractors. This legislation differentiates the principles of soil science from those respected and established fields.

Acts 2010, ch. 1032, § 3.

62-18-203. Part definitions.

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

“Classification” means the use and application of the current United States department of agriculture (USDA) soil taxonomy standard as revised, classifying soils to the order, suborder, great group, subgroup, family, series, or phase of series level;
“Commissioner” means the commissioner of commerce and insurance, or the commissioner's designee;
“Department” means the department of commerce and insurance;
“Licensed professional soil scientist” means a person who is licensed as a soil scientist under this part;
“Practice of soil science” means providing soil science services except as specifically exempted by this part. Soil science services include the investigation, inspection, collection, or evaluation of soil as a means to classify soil pursuant to the use and application of the USDA soil taxonomy standard, as revised, or the interpretation, inventory, planning, or mapping resulting from classifying soils;
“Responsible charge of work” means accountable, independent control and direction by the use of initiative, skill, and independent judgment, of soil science work or supervision of soil science work;
“Soil science” means the science concerning the earth's mantle and its use by all humans including:
1. The classification, investigation, mapping and inventorying of soil; and
2. The study of the interaction of soil forming factors;
  1. Climate;
  2. Organisms;
  3. Relief;
  4. Parent material; and
  5. Time;
“Soil scientist” means a person qualified by education and practical experience to engage in the practice of soil science; and
“Soil scientist in training” means a person who has met or is pursuing the educational requirements of § 62-18-208, but is not qualified to be licensed as a professional soil scientist.

Acts 2010, ch. 1032, § 4.

62-18-204. Restrictions on the practice of soil science.

No person shall:

Classify soils pursuant to the use and application of the USDA soil taxonomy standard, as revised, prepare any soil maps, reports, or documents resulting from the classification of soils, other than a licensed professional soil scientist or a subordinate under such soil scientist's direction;
Practice soil science in this state unless such person is licensed under this part. A certificate of licensure is not transferable;
Offer to practice soil science in this state unless such person is licensed under this part. To offer to practice soil science in this state includes the making of a verbal claim, displaying a sign or other advertisement, using letterhead, printing cards, or using in connection with a person's name any title or description stating or implying that the person is a licensed professional soil scientist;
On or after July 1, 2011, seal or stamp any plans, plats, reports or other documents with the seal or stamp of a licensed professional soil scientist, or use in any manner the title “licensed professional soil scientist” or the title of any licensed certified specialty soil scientist unless licensed or licensed and certified under this part;
Affix such person's signature, seal, or stamp to any maps, reports, or other documents after such person's licensure has expired or has been suspended or revoked, unless such person's licensure has been renewed or reissued;
Give any false or forged evidence of any kind to the commissioner when seeking to obtain the person's certificate of licensure;
Falsely impersonate any other licensee of like or different name; or
Attempt to use an expired or revoked certificate of licensure or continue to practice soil science at any time during a period during which the commissioner has suspended or revoked the person's certificate of licensure.

Acts 2010, ch. 1032, § 5.

62-18-205. Contracting for soil science services.

This state and any county, municipality, agency, board, district, commission, authority, or other political subdivision of the state shall only contract for soil science services with persons licensed under this part or with a firm employing a licensed professional soil scientist who shall be in responsible charge of providing such services, except as otherwise provided by this part.

Acts 2010, ch. 1032, § 6.

62-18-206. Applicability of part — Exemptions.

Any person, except a person exempted by this part, who practices or offers to practice soil science in this state, including a person employed by the state or its political subdivisions, is subject to this part. The following persons are exempt:

Any person engaged solely in teaching the science of soil science or engaged solely in nonpublic soils research in this state. However, a teacher or researcher shall be certified as licensed professional soil scientist if the teacher or researcher wishes to engage in the practice of soil science or services for which licensure as a soil scientist is required by this part;
An employee or subordinate of a licensed professional soil scientist insofar as the employee or subordinate acts solely in such capacity. This exemption shall not permit any such employee or subordinate to practice soil science independently or use the term “licensed professional soil scientist;” and
Any person who is employed either by the state or federal government, or by a person, firm, or corporation not engaged in the practice of soil science, if such person provides soil science services only as part of his job duties for the employer and does not receive any payments for soil science services from the general public.

Acts 2010, ch. 1032, § 7.

62-18-207. Engaging in practice of soil science — Construction of part.

A sole proprietorship, partnership, or corporation that provides soil science services as defined in this part as its primary activity may engage in the practice of soil science; provided, that at least one (1) principal or officer is in responsible charge of such activity and is a licensed professional soil scientist. A sole proprietorship, partnership, or corporation whose primary activity is other than the practice of soil science may offer soil science services; provided, that a licensed professional soil scientist is in responsible charge of such activity. The exemptions of § 62-18-206 shall apply to sole proprietorships, partnerships, and corporations.
This part shall not be construed to prevent or to affect the practice of any profession or trade related to soil science for which a license or registration is required under any other law of this state when such work is permitted under the applicable licensing or registration law.

Acts 2010, ch. 1032, § 8.

62-18-208. Eligibility for certificate of licensure.

To be eligible for a certificate of licensure, an applicant shall meet each of the following minimum qualifications:
1. Be a graduate of an accredited college or university with a bachelor of science degree or higher in soils, agronomy or a closely related field. The applicant shall have successfully completed a minimum of fifteen (15) semester hours of course work in soil science;
2. Have at least three (3) years of soil science professional experience. Any combination of the following kinds of education and experience qualify toward accumulating the required three (3) years:
  1. Masters of science degree in soils, agronomy or a closely related field and two (2) years of professional experience;
  2. Doctor of philosophy degree in soils, agronomy or a closely related field and one (1) year of professional experience; or
  3. Each year of teaching or soil science research by persons teaching upper-level soil science courses at the college or university levels; provided, that such teaching or research can be demonstrated to be of a sufficiently responsible nature to be equivalent to a year of professional experience; and
3. Have successfully passed such examination or examinations developed or determined by the commissioner to assess adequately the knowledge and skills that are common to the competent practice of soil science as a profession. The commissioner shall waive the examination requirement for licensure as a soil scientist for an applicant who makes written application to the commissioner not later than July 1, 2011, and who otherwise meets the requirements of this subsection (a).
Any person who meets subdivisions (a)(1) and (2) and who is:
1. Approved by the department of environment and conservation prior to July 1, 2011;
2. An employee of the federal government 470 series;
3. A soil scientist employed by this state; or
4. A member of the Soil Scientist Association of Tennessee certified list prior to July 1, 2011;
  shall be deemed to have met the requirements of subdivisions (a)(1)-(3). Such person shall be issued a certificate of licensure when renewal is due under the established renewal cycle upon applying for and meeting all requirements for renewal. The commissioner shall assign the registration number of the registration certificate as the certificate of licensure number. Any person holding an active certificate as a registered soil scientist or licensed professional soil scientist prior to July 1, 2011, who does not renew such certificate when renewal is due shall be required to apply for licensure under this part and meet all requirements of subsection (a) except that a reasonable period of time shall be accorded by the commissioner for late renewals.

Acts 2010, ch. 1032, § 9.

62-18-209. Certificate of licensure.

The commissioner shall issue a certificate of licensure, upon payment of a fee prescribed by the commissioner, to any applicant who complies with the requirements of this part. Certificates of licensure shall state the full name of the licensee, bear a certificate of licensure number and be signed by the commissioner under the seal of the commissioner. The commissioner shall consider and may implement all reasonable operating cost reductions suggested by the advisory committee in calculating any recurring or nonrecurring fees or additional charges to licensed professional soil scientists.
A certificate of licensure shall be valid for a period of two (2) years. A fee prescribed by the commissioner shall be imposed for each late certificate of licensure renewal.
A new certificate of licensure may be issued to replace any certificate of licensure lost, destroyed, or mutilated, subject to the rules of the commissioner and payment of a fee prescribed by the commissioner.
Upon a written request accompanied by a fee prescribed by the commissioner for change in status, a licensee shall be placed on retired or inactive status. No retired or inactive licensee shall engage in practicing soil science or services for which licensure as a soil scientist is required by this part. The commissioner shall prescribe rules outlining the procedure for placing a licensee in retired or inactive status and subsequent reinstatement to active status.

Acts 2010, ch. 1032, § 10.

62-18-210. [Repealed.]

Acts 2010, ch. 1032, § 11; repealed by Acts 2020, ch. 641, § 4, effective April 1, 2020.

Compiler's Notes. Former § 62-18-210 concerned the soil scientist advisory commission.

Acts 2020, ch. 641, § 2 provided that notwithstanding § 4-29-112, the soil scientist advisory committee, created by § 62-18-210, shall terminate and shall cease to exist on April 1, 2020.

62-18-211. Duties of commissioner.

In addition to other powers and duties specified in this chapter, the commissioner shall:

Promulgate rules and regulations necessary to carry out this part in compliance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5;
Design and adopt an official seal for licensed professional soil scientists to be applied to all drawings, reports, maps, documents, or other papers involving practicing soil science as defined in this part, that have been prepared or approved by a licensed soil scientist or a subordinate employee under such soil scientist's direction for the use of or for delivery to any person or for public record within this state. Such drawings, reports, maps, documents, or other papers shall be signed by the licensee and impressed with the licensee's seal. Such acts shall indicate a licensee's responsibility for such drawings, reports, or other papers or documents;
Set the amount of all fees required by this part;
Promulgate rules requiring continuing education;
Identify and approve continuing education programs for persons regulated by the commissioner under this part;
Receive, administer, and account for all moneys derived under this part and transfer such funds to the state treasurer who shall keep such moneys in a fund, herein established, to be known as the “geologist and soil scientist regulatory fund”. The fund shall be used to defray expenses incurred in the administration of the Geologist Licensure Act of 2007, compiled in chapter 36, part 1 of this title, and this chapter;
Prepare, administer, and grade a nationally recognized soil scientist examination for the purposes of licensure as required by this part; and
Have such other powers and duties as are necessary to effectuate this part.

Acts 2010, ch. 1032, § 12; 2014, ch. 921, § 1; 2020, ch. 641, § 3.

Amendments. The 2020 amendment deleted “, under advisement from SSAC,” following “commissioner” in the introductory language of the section.

Effective Dates. Acts 2020, ch. 641, § 6. April 1, 2020.

62-18-212. Recognition of foreign registration.

Any applicant may, in the absence of disqualifying evidence, be deemed by the commissioner to be fully qualified to practice soil science if such applicant holds a like, unexpired certificate of registration issued to the applicant after examination by proper authority in the District of Columbia or in any state or territory in the United States in which the examination and requirements for the registration of soil scientists are of a standard satisfactory to the commissioner.

Acts 2010, ch. 1032, § 13.

62-18-213. Confidential information.

Except as otherwise provided by this part, the following shall be treated as confidential and may not be disclosed except by order of a court of competent jurisdiction or by permission of the applicant:

Applications and other personal information submitted by applicants, except to the applicant, the commissioner, department, or its staff; and
Information submitted by a reference concerning an applicant, except to the commissioner, department, or its staff.

Acts 2010, ch. 1032, § 14; 2020, ch. 641, § 5.

Amendments. The 2020 amendment substituted “department, or its staff” for “department, its staff, or the SSAC” in (1) and (2).

Effective Dates. Acts 2020, ch. 641, § 6. April 1, 2020.

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

62-18-214. Roster of licensed soil scientists.

A roster showing the names and places of business of all licensed soil scientists shall be prepared by the commissioner each year. Copies of this roster shall be placed on file with the secretary of state and furnished to any licensee upon request, free of charge, or to the public upon request and payment of a fee, not to exceed actual cost, to be established by the commissioner.

Acts 2010, ch. 1032, § 15.

62-18-215. Code of ethics.

The commissioner shall promulgate a code of professional ethics that shall be made known in writing to every licensee and applicant for licensure under this part. The department may revise and amend this code of professional ethics from time to time and shall forthwith notify each licensee in writing of such revision or amendments.

Acts 2010, ch. 1032, § 16.

62-18-216. Complaints against licensees.

Any person may file a complaint with the commissioner against a licensee alleging fraud, deceit, gross neglect, incompetence, or misconduct. Complaints shall be made in writing.

Acts 2010, ch. 1032, § 17.

62-18-217. Grounds for suspension, revocation or refusal to renew licensure — Hearing — Administrative or judicial review — Injunction — Reissuance.

The commissioner shall have the power to suspend, revoke, or refuse to renew the certificate of licensure of any licensee who:
1. Is found to have been convicted of:
  1. Any fraud or deceit in obtaining a certificate of licensure;
  2. A felony for the commission of an offense that bears directly on the licensee's fitness to practice competently, as determined by the commissioner. However, an action taken under this subdivision (a)(1)(B) shall be subject to the applicable provisions of the Fresh Start Act that are compiled in chapter 76, part 1 of this title; or
  3. Any unlawful act as set forth in this chapter; or
2. Who is found guilty of fraud, deceit, gross neglect, incompetence, or misconduct in the practice of soil science as a licensed professional soil scientist.
Any such action by the commissioner to suspend, revoke, or refuse to renew a certificate of licensure shall be taken after a hearing held in accordance with the procedures set forth in the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
Any administrative or judicial review of such action shall likewise be in accordance with the procedures set forth in the Uniform Administrative Procedures Act.
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 to effectuate the purposes of 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.
The commissioner may reissue a certificate of licensure to any person whose certificate of licensure has been revoked upon written application to the commissioner by the applicant, showing good cause to justify such reissuance.

Acts 2010, ch. 1032, § 18; 2016, ch. 719, § 5; 2018, ch. 745, § 11.

Compiler's Notes. Acts 2016, ch. 719, § 11 provided that this act, which amended (a)(1)(B), shall take effect on April 6, 2016, and shall apply to actions instituted by state entities on or after April 6, 2016.

62-18-218. Legal counsel.

Legal counsel shall be provided by the division of regulatory boards.

Acts 2010, ch. 1032, § 19.

62-18-219. Violations — Disciplinary actions — Penalties.

A violation of this part is a Class B misdemeanor.
In addition to, or in lieu of, any other lawful disciplinary action under this part, the commissioner may assess a civil penalty not exceeding one thousand dollars ($1,000) per violation. All penalties owed under this part shall be paid to the commissioner for deposit into the treasury of the state of Tennessee and shall accrue to the state and may be recovered in a civil action in the name of the state in any court of record in the county where the violation is alleged to have occurred.
Any civil penalty shall be assessed in the following manner:
1. A notice of such assessment shall be sent to the person receiving it by certified mail, return receipt requested;
2. Any person against whom an assessment has been issued may petition the commissioner for a review of the assessment;
3. The petition for review shall be in writing, and shall be filed no later than thirty (30) days after the notice of assessment is received;
4. If a petition for review of the assessment is not filed within thirty (30) days after the date the notice is received, then the violator shall be deemed to have consented to the assessment and it shall become final; and
5. If a petition for review of the assessment is filed as provided by this section, then the proceedings on such appeal shall be conducted in accordance with the provisions set forth in the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, with respect to the conduct of contested cases.

Acts 2010, ch. 1032, § 20.

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

62-13-307. Expiration and renewal of licenses — Penalty.

62-13-316. Register of applicants required.

62-18-122. Business associations — Personal liability.

Chapter 19
Auctioneers

62-19-101. Chapter definitions.

As used in this chapter:

“Affiliate auctioneer” means an individual who, for compensation or valuable consideration, or otherwise, is employed, directly or indirectly, by a principal auctioneer to deal or engage in any activity described in subdivision (9);
“Auction” means a sales transaction conducted by oral, written, or electronic exchange between an auctioneer and members of the audience, consisting of a series of invitations by the auctioneer for offers to members of the audience to purchase goods or real estate, culminating in the acceptance by the auctioneer of the highest or most favorable offer made by a member of the participating audience;
“Auctioneer” means a principal auctioneer, bid caller auctioneer, or public automobile auctioneer;
“Bid caller auctioneer” means an individual who, for compensation or valuable consideration, or otherwise, is hired by a principal auctioneer, public automobile auction, or public automobile auctioneer to solicit bids for the purchase of goods at an auction;
“Commission” means the Tennessee auctioneer commission;
“Continuing education” means six (6) hours each renewal period;
“Goods” means chattels, merchandise, real or personal property, or commodities of any form or type that may lawfully be kept or offered for sale;
“Person” includes an individual, association, partnership, corporation, and the officers, directors, and employees of a corporation;
“Principal auctioneer” means an individual who, for a fee, commission, or any other valuable consideration, or with the intention or expectation of receiving a fee, commission, or any other valuable consideration by the means or process of auction or sale at auction, offers and executes a listing contract, sale, purchase, or exchange of goods, and is responsible for the management and supervision of an auction company, including its wholly owned subsidiary or affiliate company;
“Public automobile auction” means offering motor vehicles for sale to the highest bidder, where buyers are members of the public, by a motor vehicle dealer licensed to sell used motor vehicles and licensed as a public automobile auctioneer by the commission. However, no public automobile auction may otherwise limit the auctioning of used motor vehicles exclusively to licensed motor vehicle dealers or their duly authorized agents;
“Public automobile auctioneer” means an individual who, for a fee, commission, or any other valuable consideration, or with the intention or expectation of receiving a fee, commission, or any other valuable consideration at an auction or sale at auction, offers, negotiates, or attempts to negotiate a listing contract, sale, purchase, or exchange of goods, including motor vehicles; and
“Timed listing” means offering goods for sale with a fixed ending time and date that does not extend based on bidding activity.

Acts 1967, ch. 335, § 1; 1976, ch. 824, § 1; 1978, ch. 569, § 1; T.C.A., § 62-1901; Acts 1983, ch. 250, § 1; 1997, ch. 91, § 7; 2008, ch. 724, § 1; 2015, ch. 291, § 8; 2019, ch. 471, § 4.

Compiler's Notes. Acts 2008, ch. 724, § 8 provided that the Tennessee auctioneer commission is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added the definitions of “public automobile auction” and “public automobile auctioneer.” All the rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Amendments. The 2019 amendment rewrote the section which read: “As used in this chapter, unless the context otherwise requires:“(1) ‘Apprentice auctioneer’ means any individual who, for compensation or valuable consideration, or otherwise, is employed, directly or indirectly, by an auctioneer to deal or engage in any activity defined in subdivision (3);“(2) ‘Auction’ means a sales transaction conducted by means of oral or written exchange between an auctioneer and members of the audience, which exchange consists of a series of invitations for offers for purchase of goods or real estate made by the auctioneer and offers to purchase made by members of the audience culminating in the acceptance by the auctioneer of the highest or most favorable offer made by a member of the participating audience;“(3) ‘Auctioneer’ means any individual who, for a fee, commission or any other valuable consideration, or with the intention or expectation of receiving a fee, commission or any other valuable consideration, by the means or process of auction or sale at auction, offers, negotiates or attempts to negotiate a listing contract, sale, purchase or exchange of goods;“(4) ‘Commission’ means the Tennessee auctioneer commission;“(5) ‘Continuing education’ means six (6) hours each renewal period;“(6) ‘Firm’ means any person who, as part of the person's business, arranges, manages, sponsors, advertises or carries out auctions;“(7) ‘Goods’ means any chattels, merchandise, real or personal property or commodities of any form or type that may lawfully be kept or offered for sale;“(8) ‘Person’ includes an individual, association, partnership, corporation and the officers, directors and employees of a corporation;“(9) ‘Principal auctioneer’ means the auctioneer who is responsible for the management and supervision of a firm;“(10) ‘Public automobile auction’ means offering motor vehicles for sale to the highest bidder where buyers are members of the public by any motor vehicle dealer licensed to sell used motor vehicles and which dealer is licensed as a public automobile auctioneer by the Tennessee auctioneer commission; provided, that no public automobile auction shall otherwise limit the auctioning of used motor vehicles exclusively to licensed motor vehicle dealers or their duly authorized agents; and“(11) ‘Public automobile auctioneer’ means any individual who, for a fee, commission or any other valuable consideration, or with the intention or expectation of receiving a fee, commission or any other valuable consideration, by the means or process of auction or sale at auction, offers, negotiates or attempts to negotiate a listing contract, sale, purchase or exchange of goods, including motor vehicles.”

Effective Dates. Acts 2019, ch. 471, § 21. July 1, 2019.

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

Motor vehicle auctions, § 55-17-120.

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

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Auctions and Auctioneers, § 2.

Attorney General Opinions. Internet drop-off stores, which assist individuals in selling items through Internet sites such as eBay, do not fit the statutory definition of “auction” or “auctioneer,” OAG 06-053, 2006 Tenn. AG LEXIS 54 (3/27/06).

NOTES TO DECISIONS

1. License Requirement.

Since an auctioneer is a person who “negotiates or attempts to negotiate, a listing contract,” a contract for the sale of articles at auction by an unlicensed person is void. David Witherspoon, Inc. v. Wood, 588 S.W.2d 558, 1979 Tenn. App. LEXIS 333 (Tenn. Ct. App. 1979).

62-19-102. License requirement.

It is unlawful for a person to:
1. Act as, advertise as, or represent to be an auctioneer without holding a valid license issued by the commission;
2. Conduct or offer to conduct an auction of real property unless the person is duly licensed as an auctioneer or affiliate auctioneer and as a broker or affiliate broker under chapter 13 of this title. However, with respect to the authority of an affiliate auctioneer to conduct or offer to conduct an auction of real property, the auctioneer for whom the affiliate auctioneer is employed for such purposes must be on the premises of the property during the auction. This subdivision (a)(2) does not require ringpersons or other persons not vocally conducting an auction to be duly licensed as auctioneers, nor duly licensed under chapter 13 of this title, unless the ringpersons or other persons act as an affiliate broker or broker within the meaning of chapter 13 of this title; or
3. Act as, advertise as, or represent to be a public automobile auctioneer unless the person is duly licensed as a public automobile auctioneer and as a motor vehicle dealer under title 55, chapter 17, part 1.
All auctions arranged by or through a principal auctioneer must be conducted exclusively by individuals licensed under this chapter.

Acts 1967, ch. 335, § 2; T.C.A., § 62-1902; Acts 1983, ch. 250, § 2; 1985, ch. 357, § 1; 2003, ch. 24, §§ 1, 2; 2008, ch. 724, § 2; 2019, ch. 471, § 5.

Compiler's Notes. Acts 2008, ch. 724, § 8 provided that the Tennessee auctioneer commission is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added subdivision (a)(3). All the rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Amendments. The 2019 amendment substituted “a person” for “any person” in the introductory language of (a); rewrote (a)(1) and (a)(2) which read: “(1) Act as or advertise or represent to be an auctioneer, apprentice auctioneer or firm without holding a valid license issued by the commission under this chapter or prior state law;“(2) Conduct or offer to conduct an auction of real property unless the person is duly licensed as an auctioneer or apprentice auctioneer and as a broker or affiliate broker under the provisions of the Tennessee Real Estate Broker License Act of 1973, compiled in chapter 13 of this title; provided, however, with respect to the authority of an apprentice auctioneer to conduct or offer to conduct an auction of real property, that the auctioneer for whom the apprentice auctioneer is employed for such purposes must be on the premises of the property during the auction. This subdivision (a)(2) shall not be construed to require ringpersons or other persons not vocally conducting an auction to be duly licensed as auctioneers, nor to be duly licensed under chapter 13 of this title, unless the ringpersons or other persons act as an affiliate broker or broker within the meaning of chapter 13 of this title; or”; substituted “Act as, advertise as, or represent” for “Act as or advertise or represent” at the beginning of (a)(3); and substituted “or through a principal auctioneer must be conducted exclusively by individuals licensed” for “or through a firm shall be conducted exclusively by individuals who are licensed as auctioneers” in (b).

Effective Dates. Acts 2019, ch. 471, § 21. July 1, 2019.

Cross-References. Real estate broker and affiliate broker defined, § 62-13-102.

62-19-103. Exemptions.

This chapter does not apply to:

A person acting as a receiver, trustee in bankruptcy, guardian, administrator, executor, or other person acting under order of a court;
A trustee acting under a trust agreement, deed of trust or will, or a secured party selling collateral after default by a debtor in accordance with title 47, chapter 9;
An auction conducted by or under the direction of a governmental entity or pursuant to a judicial order or decree;
An auction conducted by or on behalf of a political party, church, or charitable corporation or association, if the individual conducting the sale receives no compensation and does not, by advertising or otherwise, hold their self out as available to engage in the sale of goods at auction;
A person performing acts in the regular course of or as an incident to the management of and investment in property owned or leased by the person, if the property was not acquired for the purpose of resale. When a sales tax, as prescribed in title 67, is not levied upon the sale of personal property, there is a presumption that the personal property was purchased for the purpose of resale;
An auction conducted for the sale of livestock sponsored through or in cooperation with the state department of agriculture or the University of Tennessee extension, or both;
An auction sale of tobacco at or for a warehouse operated pursuant to title 43, chapter 19;
A livestock auction sale regulated by the United States department of agriculture packers and stockyards administration, if the sale uses:
1. The shipper's proceeds account required by federal regulations; and
2. An auctioneer licensed under this chapter;
Any fixed price or timed listings that allow bidding on an internet website, but do not constitute a simulcast of a live auction;
An exclusive online auction whose primary business activity is selling nonrepairable or salvage vehicles in this state and holds the appropriate license issued by the Tennessee motor vehicle commission;
An in-person or simulcast auction whose primary business activity is selling nonrepairable or salvage vehicles in this state, and holds the appropriate license issued by the Tennessee motor vehicle commission and that uses a licensed auctioneer; and
An individual who generates less than twenty-five thousand dollars ($25,000) in revenue a calendar year from the sale of property in online auctions.

Acts 1967, ch. 335, § 3; 1969, ch. 247, § 1; 1976, ch. 824, § 2; 1978, ch. 569, § 2; T.C.A., § 62-1903; Acts 1983, ch. 250, § 3; 1984, ch. 1000, §§ 1-4; 1986, ch. 915, § 1; 1991, ch. 485, § 4; 2006, ch. 533, § 1; 2019, ch. 471, § 6.

Amendments. The 2019 amendment substituted “A” for “Any” at the beginning of (1), (2), (5) and (8); substituted “An” for “Any” at the beginning of (3), (4) and (6); substituted “prescribed in title 67,” for “provided by title 67, chapter 1,” in (5); substituted “An auction sale of tobacco” for “Any auctioneer conducting a sale of tobacco” at the beginning of (7); rewrote (8)(B) which read: “(B) A Tennessee licensed auctioneer; or”; deleted “that” preceding “do not” in (9); and added (10)-(12).

Effective Dates. Acts 2019, ch. 471, § 21. July 1, 2019.

62-19-104. Auctioneer commission.

There is created in the division of regulatory boards the Tennessee auctioneer commission for issuing licenses to auctioneers and affiliate auctioneers engaged in the auction business.
1. The commission shall be composed of five (5) members. The term of each member shall be three (3) years. The additional member appointed pursuant to Acts 1989, ch. 331 shall be appointed to serve a regular three-year term and shall meet the requirements of subdivision (b)(2).
2. Four (4) members of the commission shall be auctioneers. Each member shall have been actively and principally engaged as a licensed auctioneer for a period of no less than five (5) years next preceding the appointment, shall be of recognized standing in the member's branch of the auction business and shall be at least thirty (30) years of age and of good moral character.
3. One (1) member of the commission shall not be engaged in the auction business. The member shall be at least thirty (30) years of age and of good moral character and shall be appointed from the state at large.
4. 1. The new auctioneer member authorized by Acts 1989, ch. 331, shall be appointed from the state at large.
  2. The governor, in making appointments of the auctioneer members to the commission, shall ensure that each grand division of the state is represented.
All members of the commission shall be appointed by the governor. In making appointments to the commission, the governor shall strive to ensure that at least one (1) person serving on the commission is sixty (60) years of age or older and that at least one (1) person serving on the commission is a member of a racial minority.
Each member shall hold over after the expiration of the member's term until a successor shall have been duly appointed and qualified.
The governor may remove any member of the commission for misconduct, incompetency or willful neglect of duty.

Acts 1967, ch. 335, § 4; impl. am. Acts 1971, ch. 137, § 1; Acts 1979, ch. 29, § 1; T.C.A., § 62-1904; Acts 1983, ch. 250, § 4; 1988, ch. 1013, § 34; 1989, ch. 331, § 1; 2019, ch. 471, § 7.

Compiler's Notes. The Tennessee auctioneer commission, created by this section, terminates June 30, 2024. See §§ 4-29-112, 4-29-245.

Amendments. The 2019 amendment substituted “affiliate auctioneers” for “apprentice auctioneers” in (a).

Effective Dates. Acts 2019, ch. 471, § 21. July 1, 2019.

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

Law Reviews.

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

62-19-105. Certificates of appointment — Legal assistance — Prosecution of complaints.

Each member of the commission shall receive a certificate of appointment from the governor before entering upon the discharge of the duties of office.
The commission or any committee of the commission shall be entitled to the services of the attorney general and reporter in connection with the affairs of the commission.
The commission may prefer a complaint for violation of this chapter before any court of competent jurisdiction, and it may take the necessary legal steps through the proper legal officers of the state to enforce this chapter and collect the penalties provided in this chapter.
Complaints shall be prosecuted in the name of the Tennessee auctioneer commission.

Acts 1967, ch. 335, § 5; 1979, ch. 422, § 16; T.C.A., § 62-1905.

62-19-106. Organization of commission — Rules — Seal — Records.

Immediately upon their qualification, the commission shall meet and organize by selecting from among its members a chair and other officers considered necessary and may do all things necessary and convenient for carrying into effect this chapter.
The commission has the power to make bylaws, rules and regulations that it considers necessary that are not inconsistent with this chapter or other general laws of the state.
The commission shall adopt a seal for its use, which shall bear the words “Tennessee Auctioneer Commission,” and the administrative director of the commission shall have care and custody of the seal.
Copies of all records and papers in the office of the commission shall be received in evidence in all courts and with like effect as the originals.
1. The commission has the authority to establish continuing education requirements and standards for individual licensees. This subsection (e) shall apply only to those licensees who received their licenses after January 1, 1985.
2. An auctioneer shall be exempt from continuing education requirements if:
  1. The auctioneer has reached sixty (60) years of age and has been licensed as an auctioneer for ten (10) years or longer;
  2. The auctioneer has been licensed pursuant to this chapter since July 1, 1999; or
  3. The auctioneer holds only a bid caller license.
3. No affiliate auctioneer is exempt from continuing education requirements.

Acts 1967, ch. 335, § 6; T.C.A., § 62-1906; Acts 1997, ch. 91, § 3; 1999, ch. 358, §§ 1, 2; 2016, ch. 726, § 1; 2019, ch. 471, §§ 8, 9.

Amendments. The 2019 amendment added (e)(2)(C); and substituted “No affiliate auctioneer is exempt” for “No apprentice shall be exempt” in (e)(3).

Effective Dates. Acts 2019, ch. 471, § 21. July 1, 2019.

62-19-107. Meetings of commission.

The commission shall meet at least one (1) time each quarter of every calendar year for the purpose of transacting business that may properly come before it.
Special meetings of the commission shall be held at times that the commission may provide in the bylaws it may adopt.
Three (3) members shall constitute a quorum at a commission meeting.
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.

Acts 1967, ch. 335, § 7; T.C.A., § 62-1907; Acts 1983, ch. 250, § 5; 1997, ch. 91, § 4.

Cross-References. Notice to director of division of regulatory boards as ex officio member of commission, § 56-1-304.

62-19-108. Liens for unpaid commissions and fees.

Notwithstanding § 62-19-119, any auctioneer who performs auctioneering services and is subsequently denied payment for a commission or fee for services performed shall have a lien for the work upon the property that the auctioneer was hired to auction; provided, however, that the lien shall only extend to property that is owned by the person who has denied payment for a commission or fee for services performed by the auctioneer.
Notice of the lien shall be filed within sixty (60) days after the date of the auction with the register's office in the county or counties in which the property is located. The lien shall not be effective against a bona fide purchaser for value.
The lien shall continue for a period of ninety (90) days from the date of filing in the register's office in the county or counties in which the property is located and until the final termination of any suit for enforcement brought within that period.

Acts 2007, ch. 192, § 1; 2008, ch. 615, § 1.

62-19-109. Administrative director.

The director of the division of regulatory boards in the department of commerce and insurance or the director's designee shall serve as administrative director for the commission and shall provide all administrative functions for the commission.

Acts 1967, ch. 335, § 8; 1975, ch. 165, § 13; 1976, ch. 806, § 1(29); 1976, ch. 824, § 4; 1978, ch. 569, § 3; 1978, ch. 906, § 29; T.C.A., § 62-1909; Acts 1999, ch. 358, § 1.

Compiler's Notes. Acts 1999, ch. 358, § 13 provided for authorization of the commissioner to promulgate rules and regulations to effectuate the purposes of the amendment to this section by the act, and that all such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1999, ch. 358, § 14 provided that the amendment to this section by the act will not apply to any court sale.

Cross-References. Authorization to issue citations, rules and regulations, § 62-19-126.

62-19-110. Register of applicants.

The administrative director of the commission shall keep a register of all applicants for license, showing for each the date of application, name, place of business, place of residence and whether the license was granted or refused.
The register shall be prima facie evidence of all matters recorded in the register.

Acts 1967, ch. 335, § 11; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A., § 62-1911; Acts 1983, ch. 250, § 7; 1986, ch. 915, § 2; 1990, ch. 1024, § 31; 1990, ch. 1026, § 23; 1995, ch. 60, § 1; 1999, ch. 358, §§ 1, 3.

62-19-111. General licensing provisions.

1. An individual applying for a license as a bid caller auctioneer must submit an application to the commission on the prescribed form. The application must be accompanied by satisfactory proof that the applicant:
  1. Is at least eighteen (18) years of age; and
  2. Has successfully completed sixteen (16) hours of classroom or online instruction on the basic fundamentals of auctioneering at an auction school accredited by the commission; and
2. Auction chant instruction is optional and is not to be included in the basic fundamentals of auctioneering, nor may auction chant instruction be completed online.
An individual applying for a license as an affiliate auctioneer must submit an application to the commission on the prescribed form. The application must be accompanied by a nonrefundable examination fee as set by the commission and must prove that the applicant:
1. Is at least eighteen (18) years of age; and
2. Has successfully completed, in addition to the education requirements under subdivision (a)(1)(B), thirty-four (34) hours of classroom or online instruction in the fundamentals of auctioneering at an auction school accredited by the commission.
An individual applying for a license as a principal auctioneer must submit an application to the commission on the prescribed form. The application must be accompanied by a nonrefundable examination fee as set by the commission and must prove that the applicant:
1. Is at least eighteen (18) years of age;
2. Has served as an affiliate auctioneer under the supervision of a licensed, full-time principal or public automobile auctioneer for a period of six (6) months; and
3. Has obtained a high school diploma, general equivalency diploma (GED), or HiSET(r) diploma.
The commission may require other proof as necessary, through the application or otherwise, to assess the honesty, trustworthiness, integrity, reputation, and competency of the auctioneer applicant.
An individual who meets the requirements of subsections (b)-(d) may take an examination prescribed by the commission to determine the individual's qualifications. The examination must include, but not be limited to, reading, writing, spelling, elementary arithmetic, elementary principles of land economics, ethics, the law of this state relating to bulk sales, auctions and brokerage, and the provisions of this chapter. The examination for a principal auctioneer's license must be more specific in nature and scope than the examination for an affiliate auctioneer's license.
An applicant who fails an examination shall pay a fee as set by the commission for each reexamination.
The commission shall issue a license and pocket card, upon receipt of the appropriate fee as set by the commission, to an applicant who meets the requirements for licensure under this chapter. The license must be conspicuously displayed at all times in the office of the licensee.
Except as provided in § 62-19-117, every auctioneer licensed under this chapter shall maintain a place of business in this state. A bid caller licensee may list their home address as their place of business with the commission.
All licenses issued by the commission expire two (2) years from the original date the license was issued. Each license must be renewed on or before its expiration date.
If a licensee fails to renew a license on or before its expiration date, the commission may, in its discretion, renew the license upon application within two (2) months of the expiration date. The application must be accompanied by the prescribed fee and payment of a monetary penalty as set by the commission. A person seeking to renew a license later than two (2) months after its expiration must reapply for licensure. The commission may, in its discretion:
1. Waive reexamination or additional education requirements for the applicant; or
2. Reinstate a license subject to the applicant's compliance with reasonable conditions that the commission may prescribe, including payment of an additional reasonable fee to be set by the commission.
When fees are remitted by mail to the commission, the date of payment is determined by the official postmark of the mail.
When an affiliate auctioneer's employment with an auctioneer is terminated for any reason, the auctioneer shall immediately deliver, or send by registered mail, the affiliate auctioneer's license to the commission. The affiliate auctioneer shall not engage in the business of an auctioneer until the affiliate auctioneer receives a new license and pocket card for the unexpired term bearing the name and address of the new employer. The fee for the new license and pocket card is set by the commission.
No more than one (1) license may be issued to an affiliate auctioneer to be in effect at any one (1) time.
No license issued by the commission may authorize the licensee to engage in business at a location other than what is stated on the license. A licensee shall immediately notify the commission in writing in the event of a change of business location. The written notice must be accompanied by the current license and pocket card and a fee as set by the commission.
Auctions for the sale of registered livestock must be conducted by a licensed auctioneer. The auctioneer is exempt from issuing closing statements and disbursing funds if such responsibilities are performed by a duly chartered livestock association or livestock breed association.
An affiliate auctioneer may be employed by a licensed auctioneer who is not designated as the affiliate's sponsor upon receiving written permission from the affiliate's sponsor and notifying the commission of the employment in the proper form and manner as prescribed by rules promulgated by the commission. An auctioneer employing an affiliate who is not under the auctioneer's sponsorship is responsible for the actions of the affiliate while under that auctioneer's employment. The sponsor is responsible for the actions of the affiliate at all other times.
The commission may deny an applicant for an affiliate auctioneer or auctioneer the right to take an examination for a period of up to two (2) years if the applicant is found by the commission to have conducted business within this state as an affiliate auctioneer or auctioneer without being licensed.
An individual applying for a license as a public automobile auctioneer must submit an application to the commission on the prescribed form. The application must be accompanied by a nonrefundable examination fee as set by the commission and satisfactory proof that the applicant:
1. Is at least twenty-one (21) years of age;
2. Has served as a principal auctioneer for a period of two (2) years; and
3. Has successfully completed, in addition to the education required by subdivision (b)(2), fifteen (15) hours of more rigorous classroom or online instruction in automobile auctioneering as approved by the commission.
An individual who receives a public automobile auctioneer license may exercise all activities authorized under a principal auctioneer license or bid caller license without having to meet additional licensure requirements.

Acts 1967, ch. 335, § 12; 1971, ch. 161, § 2; 1971, ch. 218, § 1; 1976, ch. 824, § 5; 1978, ch. 569, §§ 4, 5; impl. am. Acts 1978, ch. 934, §§ 22, 36; Acts 1981, ch. 416, §§ 6, 7; T.C.A., § 62-1912; Acts 1983, ch. 250, § 8; 1986, ch. 915, § 3; 1989, ch. 360, § 10; 1989, ch. 523, §§ 158-165; 1990, ch. 1026, § 42; 1991, ch. 485, §§ 1-3; 1997, ch. 91, §§ 1, 2, 5; 1999, ch. 358, §§ 4-6; 2008, ch. 724, § 3; 2019, ch. 471, § 10.

Compiler's Notes. Acts 1999, ch. 358, § 13 provided for authorization of the commissioner to promulgate rules and regulations to effectuate the purposes of that act and that all such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1999, ch. 358, § 14 provided that the provisions of that act do not apply to any court sale.

Acts 2008, ch. 724, § 8 provided that the Tennessee auctioneer commission is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added subsection (s). All the rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Amendments. The 2019 rewrote the section which read: “(a) Any individual who desires a license as an apprentice auctioneer shall submit an application to the commission on the prescribed form. The application shall be accompanied by a nonrefundable examination fee as set by the commission and satisfactory proof that the applicant has:“(1) Reached at least eighteen (18) years of age; and“(2) Successfully completed eighty (80) hours of classroom instruction in the fundamentals of auctioneering at an auction school accredited by the commission.“(b) Any individual who desires a license as an auctioneer shall submit an application to the commission on the prescribed form. The application shall be accompanied by a nonrefundable examination fee as set by the commission and satisfactory proof that the applicant has:“(1) Reached at least eighteen (18) years of age;“(2) Served as an apprentice auctioneer under the supervision of a licensed, full-time auctioneer for a period of two (2) years;“(3) Successfully completed, in addition to the education required by subdivision (a)(2), thirty (30) hours of more rigorous classroom instruction in an auctioneering-related subject approved by the commission; and“(4) Obtained a high school diploma or general equivalency diploma (GED(R)).“(c) The commission may require other proof, through the application or otherwise, that it deems desirable as to the honesty, trustworthiness, integrity, reputation and competency of the auctioneer or apprentice auctioneer applicant.“(d) Any person who meets the requirements of subsections (a)-(c) is entitled to an examination prescribed by the commission to determine the person's qualifications. The examination shall include, but not be limited to, reading, writing, spelling, elementary arithmetic, elementary principles of land economics, ethics, the law of this state relating to bulk sales, auctions and brokerage and the provisions of this chapter. The examination for an auctioneer's license shall be of more exacting nature and scope than the examination for an apprentice auctioneer's license.“(e) Any applicant who fails an examination must pay a fee as set by the commission for each reexamination.“(f) The commission shall issue to a qualified applicant a license and pocket card upon receipt of the appropriate fee as set by the commission. The license shall be conspicuously displayed at all times in the office of the licensee.“(g) Except as provided in § 62-19-117(a), every auctioneer licensed under this chapter shall maintain a place of business in this state at a firm that has been duly licensed by the commission.“(h)(1) A person who desires a license for a firm shall submit an application to the commission on the prescribed form. A firm license must be issued in the name of the firm with a specific person acting as principal and holder of a valid auctioneer's license. The application shall be accompanied by a nonrefundable examination fee as set by the commission and satisfactory proof that:“(A) The applicant has reached at least eighteen (18) years of age;“(B) The applicant, if not a holder of a principal auctioneer's license, has completed thirty (30) hours of rigorous classroom instruction in an auctioneering-related subject approved by the commission; and“(C) The applicant has obtained a high school diploma or general equivalency diploma (GED(R)).“(2) The commission may require other proof, through the application or otherwise, that it deems desirable as to the honesty, trustworthiness, integrity, reputation and competency of the auctioneer or apprentice auctioneer applicant.“(3) Any person who meets the requirements of subdivisions (h)(1) and (2) shall be entitled to an examination prescribed by the commission to determine the person's qualifications. The examination shall include, but shall not be limited to, reading, writing, spelling, elementary arithmetic, elementary principles of land economics, ethics, the law of this state relating to bulk sales, auctions and brokerage and the provisions of this chapter.“(4) The examination for a firm license shall be of a more exacting nature and scope than the examination for an apprentice auctioneer's license, except that a nonauctioneer applying for a firm license shall not be required to take the oral part of the auctioneer's test consisting of actual bid calling.“(5) Any applicant who fails an examination must pay a fee as set by the commission for each reexamination.“(6) The commission shall issue to qualified applicants a license and pocket card upon receipt of the appropriate fee as set by the commission. The firm license shall be conspicuously displayed at all times in the office of the licensee.“(7) Any person currently holding a valid auctioneer firm license may renew the license by filing an application for renewal and paying the required fee before the expiration date of the firm license.“(8) If the applicant for a firm license maintains more than one (1) place of business within the state, the applicant shall apply for and obtain an additional firm license for each branch office.“(9) A firm license shall automatically be suspended if no licensed auctioneer is engaged in business in the firm. The license may be reinstated by the commission for the unexpired term upon proof that a duly licensed auctioneer has been affiliated with the firm.“(10) Any person in this state who for a fee is in the business of managing auctions to the extent the person is responsible for the advertising, consignments, promotion or distribution of funds must hold a valid firm license.“(11) All contracts for services to be performed by an auction firm, except an auto auction as defined in § 55-17-102, must be negotiated for and signed by an auctioneer who is a member of the firm or by the auctioneer's attorney.“(i) All licenses issued by the commission shall expire two (2) years from the original date the license was issued. Each license must be renewed on or before its expiration date.“(j) If a licensee fails to renew a license on or before its expiration date, the commission may, in its discretion, renew the license upon application within two (2) months thereafter. The application shall be accompanied by the prescribed fee plus a penalty as set by the commission. Any person wishing to renew a license later than two (2) months after its expiration shall reapply for licensure; provided, that the commission may, in its discretion:“(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 commission may prescribe, including payment of an additional reasonable fee to be set by the commission.“(k) When fees are remitted by mail to the commission, the date of payment shall be determined by the official postmark of the mail.“(l) When an apprentice auctioneer's employment with an auctioneer is terminated for any reason, the auctioneer shall immediately deliver or send by registered mail the apprentice auctioneer's license to the commission. The apprentice auctioneer shall not engage in any activity defined in § 62-19-101(3) until the apprentice auctioneer receives a new license and pocket card for the unexpired term, bearing the name and address of the new employer. The fee for the new license and pocket card shall be set by the commission.“(m) No more than one (1) license shall be issued to any apprentice auctioneer to be in effect at any one time.“(n) No license issued by the commission shall authorize the licensee to engage in business at any location other than that set forth on the license. A licensee shall immediately notify the commission in writing in the event of a change of business location. The written notice shall be accompanied by the current license and pocket card and a fee as set by the commission.“(o) Notwithstanding subdivision (b)(2), any individual who otherwise would qualify for the auctioneer's examination by January 1, 1984, need complete only one (1) year of apprenticeship in order to be eligible for the examination.“(p) Auctions for the sale of registered livestock must be conducted by a licensed auctioneer. The auctioneer shall be exempt from the responsibilities of issuing closing statements and disbursing funds if the responsibilities are performed by a duly chartered livestock association or livestock breed association.“(q) An apprentice auctioneer may be employed by a licensed auctioneer who is not designated as the apprentice's sponsor upon receiving written permission from the apprentice's sponsor and notifying the commission of the employment in the proper form and manner as prescribed by the rules of the commission. An auctioneer employing an apprentice who is not under that auctioneer's sponsorship shall be responsible for the actions of the apprentice while under that auctioneer's employment, and the sponsor shall be responsible for the actions of the apprentice at all other times.“(r) The commission may deny any applicant for an apprentice, auctioneer or firm license the right to take an examination for a period up to two (2) years if the applicant is found by the commission to have conducted business within this state as an apprentice auctioneer, auctioneer or firm owner without first having been properly licensed.“(s) Any individual who desires a license as public automobile auctioneer shall submit an application to the commission on the prescribed form. The application shall be accompanied by a nonrefundable examination fee as set by the commission and satisfactory proof that the applicant has:“(1) Reached at least twenty-one (21) years of age;“(2) Served as an auctioneer for a period of two (2) years; and“(3) Successfully completed, in addition to the education required by subdivision (a)(2), thirty (30) hours of more rigorous classroom instruction in automobile auctioneering approved by the commission.”

Effective Dates. Acts 2019, ch. 471, § 21. July 1, 2019.

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

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

62-19-112. Denial, revocation or suspension of license by commission — Retirement of license.

The commission may, upon its own motion, and shall, upon the verified complaint in writing of any person, hold a hearing as provided in this chapter and investigate the actions of any auctioneer, affiliate auctioneer or any person who assumes to act in either capacity; provided, that the complaint with the evidence, documentary or otherwise, presented in connection with the complaint, makes out a prima facie case.
The commission may suspend, revoke or refuse to renew any license issued under this chapter where the license has been obtained by false or fraudulent representations or for any of the following causes:
1. Making any substantial misrepresentation including, but not limited to, individuals licensed solely as bid caller auctioneers who hold themselves out to others as principal auctioneers or public automobile auctioneers;
2. Pursuing a continued and flagrant course of misrepresentation or making false promises through agents or advertising or otherwise;
3. Accepting valuable consideration as an affiliate auctioneer for the performance of any of the acts specified in this chapter, from any person, except the licensee's employer auctioneer;
4. Failing to account for or remit, within a reasonable time, any money belonging to others that comes into the licensee's possession, commingling funds of others with the licensee's own or failing to keep the funds of others in an escrow or trustee account; provided, however, that nothing in this section shall be construed to require an auto auction as defined in § 55-17-102(1)(A) to maintain or use an escrow account when the auction does not accept and deposit funds of others;
5. Paying valuable consideration to any person for services performed in violation of this chapter;
6. Being convicted in a court of competent jurisdiction of this or any other state, or of the United States, of a criminal offense involving moral turpitude or a felony. However, an action taken under this subdivision (b)(6) shall be subject to the applicable provisions of the Fresh Start Act that are compiled in chapter 76, part 1 of this title;
7. Violating any provision of this chapter, or any rule or regulation duly promulgated under this chapter;
8. Failing to furnish voluntarily to all interested parties, at the time of execution, copies of all written instruments prepared by the auctioneer or affiliate auctioneer;
9. Failing prior to the sale at public auction to enter into a written contract with the owner or consignee of any property to be sold, containing the terms and conditions upon which the licensee receives the property for sale;
10. Engaging in the business of auctioning real property without being duly licensed as a broker or affiliate broker under the Tennessee Real Estate Broker License Act of 1973, compiled in chapter 13 of this title;
11. Knowingly using false bidders, cappers or pullers;
12. Any conduct of any auctioneer that demonstrates improper, fraudulent, incompetent or dishonest dealings;
13. Violating title 55, chapter 17, or any rule duly promulgated under title 55, chapter 17, pertaining to the sale or auction of motor vehicles; or
14. Negotiating or executing an auction contract to sell goods, take possession of seller assets, or take possession of auction proceeds as a bid caller auctioneer licensee.
The affirmative vote of a majority of the commission shall be necessary to revoke or suspend a license.
An auctioneer or affiliate auctioneer may retire the auctioneer's or affiliate auctioneer's license by making such request in writing and paying the appropriate fees set by the commission. The written request must be accompanied by the license certificate and pocket card. The retiree shall be responsible for notifying the commission of any change in address. Only licenses that are current and in good standing with the commission may be retired.

Acts 1967, ch. 335, §§ 13, 14; 1976, ch. 824, § 6; 1980, ch. 451, §§ 6, 7; 1980, ch. 716, §§ 1, 2; T.C.A., §§ 62-1913, 62-1914; Acts 1983, ch. 250, §§ 9-11; 1986, ch. 915, §§ 4, 5; 1989, ch. 171, § 1; 1991, ch. 359, § 1; 1999, ch. 358, § 7; 2003, ch. 159, § 2; 2018, ch. 745, § 12; 2019, ch. 471, §§ 11-13.

Compiler's Notes. Acts 1999, ch. 358, § 13 provided for authorization of the commissioner to promulgate rules and regulations to effectuate the purposes of the amendment to (d) by the act and that all such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1999, ch. 358, § 14 provided that the amendment to (d) by the act will not apply to any court sale.

Amendments. The 2019 amendment substituted “affiliate auctioneer” for “apprentice auctioneer” and “affiliate auctioneer’s” for “apprentice auctioneer’s” throughout; added “including, but not limited to, individuals licensed solely as bid caller auctioneers who hold themselves out to others as principal auctioneers or public automobile auctioneers” at the end of (b)(1); and added (b)(14).

Effective Dates. Acts 2019, ch. 471, § 21. July 1, 2019.

Cross-References. Judicial revocation of license, § 62-19-114.

Law Reviews.

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

Attorney General Opinions. Consequences of advertising an “absolute auction”, OAG 05-182, 2005 Tenn. AG LEXIS 184 (12/22/05).

62-19-113. Immunity of commissioners.

The commission is declared to be a quasi-judicial body and the members or the employees of the commission are granted immunity from civil liability when acting in good faith and in the performance of their duties as described in this chapter.

Acts 1967, ch. 335, § 14; 1980, ch. 451, § 7; T.C.A., § 62-1914.

62-19-114. Judicial revocation of license.

Whenever any person claiming to have been injured or damaged by the gross negligence, incompetency, fraud, dishonesty or misconduct on the part of any licensee following the calling or engaging in the business described in this chapter files suit upon the claim against the licensee in any court of record in this state and recovers judgment on the claim, the court may as part of its judgment or decree in the case, if it deems it a proper case in which so to do, revoke the defendant's license, which shall not be reissued to the licensee except upon unanimous vote of all members of the commission in favor of reissuance and only then after the lapse of a period of ninety (90) days from the date of revocation.

Acts 1967, ch. 335, § 15; T.C.A., § 62-1915; Acts 1983, ch. 250, § 12.

62-19-115. Rights and duties of licensee — Sponsorship of affiliate auctioneer.

Any auctioneer licensed under this chapter may conduct auctions at any time or place in this state. The licensee shall, upon request, furnish to the chief of police or sheriff of the city or county where the auction is to be held a list of properties to be sold twenty-four (24) hours prior to the auction.
A principal auctioneer may sponsor an affiliate auctioneer after one (1) year of licensure. There is no limit as to how many affiliate auctioneers a principal auctioneer or public automobile auctioneer may sponsor.

Acts 1967, ch. 335, § 16; T.C.A., § 62-1916; Acts 1983, ch. 250, § 13; 1987, ch. 62, § 1; 2019, ch. 471, § 14.

Amendments. The 2019 amendment added (b).

Effective Dates. Acts 2019, ch. 471, § 21. July 1, 2019.

Cross-References. Requirements of bond, § 62-19-116.

62-19-116. Auctioneer education and recovery account.

There is established within the general fund an auctioneer education and recovery account, referred to as the “account” in this section. All funds received by the commission under this section shall be deposited into the account and held solely for the purposes of this section. The commission shall maintain a minimum balance of one hundred fifty thousand dollars ($150,000) in the account.
Moneys within the account shall be invested by the state treasurer in accordance with § 9-4-603 for the sole benefit of the account.
1. No new auctioneer or affiliate auctioneer license shall be issued unless the applicant pays, in addition to the license fee, a fee of fifty dollars ($50.00) or a lesser amount that the commission may by rule establish for deposit into the account.
2. No renewal auctioneer or affiliate auctioneer license shall be issued unless the applicant pays, in addition to the renewal fee, a fee of fifty dollars ($50.00) or a lesser amount that the commission may by rule establish for the purpose of ensuring that the required minimum balance is maintained in the account.
Any person may, by order of any court of competent jurisdiction, recover from the account actual or compensatory damages, not including interest and costs, resulting from any violation of this chapter or of any rule promulgated under this chapter, committed by a licensee on or after June 30, 1987; provided, that:
1. The liability of the account shall not exceed ten thousand dollars ($10,000) per transaction, regardless of the number of persons aggrieved;
2. The liability of the account for the acts of a licensee, when acting as such, shall be terminated upon the issuance of court orders authorizing payments from the account for judgments, or any unsatisfied portion of judgments, in an aggregate amount of twenty thousand dollars ($20,000) on behalf of the licensee;
3. A licensee acting as such shall have no claim against the account; and
4. A bonding company not involved in an auction shall have no claim against the account.
When any aggrieved person commences an action for a judgment that may result in collection from the account, the person shall promptly notify the commission to this effect in writing by certified mail, return receipt requested. The commission may, subject to the approval of the attorney general and reporter, take any action it may deem appropriate to protect the integrity of the account.
When any aggrieved person obtains a valid judgment respecting which recourse against the account is permitted under this section and all or any part of the judgment is unpaid sixty (60) days after the date of the judgment, the person may, upon termination of all proceedings, including reviews and appeals in connection with the judgment, apply to the court in which the judgment was entered for an order directing payment from the account of the amount unpaid upon the judgment. Upon determination of the court that the judgment or any part of the judgment is unpaid, the court shall enter an order directing the commission to make payment from the account to satisfy the judgment.
If the commission, pursuant to a court order, pays any amount from the account on behalf of a licensed auctioneer or affiliate auctioneer, the commission may, in its discretion, suspend or revoke the license of the auctioneer or affiliate auctioneer. No auctioneer or affiliate auctioneer whose license is revoked under this subsection (g) shall be eligible to apply for a new license until the person has repaid in full the amount paid from the account on the person's behalf, plus interest at the effective earnings rate for the account for the period the claim is unpaid.
When, upon the order of the court, the commission has paid from the account any sum to the judgment creditor, the commission shall be subrogated to all of the rights of the judgment creditor in the judgment. Any amount recovered by the commission on the judgment shall be deposited to the account. If the total amount collected on the judgment by the commission exceeds the amount paid from the account to the original judgment creditor, plus interest and the cost of collection, the commission may elect to pay the overage or reassign the remaining interest in the judgment to the original judgment creditor. The payment or reassignment to the original judgment creditor shall not subject the account to further liability for payment to the original judgment creditor based on that transaction or judgment. Any costs incurred by the commission in attempting to collect judgments shall be paid from the account.
If, at any time, the money deposited in the account is insufficient to satisfy any duly authorized claim or portion of the claim, the commission shall, when sufficient money has been deposited in the account, satisfy the unpaid claims or portions of the claim in the order that they were originally filed, plus interest at the effective earnings rate for the account for the period the claim is unpaid.
The failure of an aggrieved person to comply with this section constitutes a waiver of any rights under this section.
It is unlawful for any person to file or cause to be filed with the commission any notice, statement or other document required under this section that is false or contains any material misstatement of fact.
1. The commission may, in its discretion, utilize any return on investment of funds in the account and any balance in the account over one hundred fifty thousand dollars ($150,000) to:
  1. Sponsor, conduct or assist in conducting, education, training or research designed to improve the competence, effectiveness or professionalism of licensees, the members of the commission or its staff;
  2. Prepare and disseminate information for the benefit of licensees and the general public; and
  3. Employ an investigator to assist the commission. The investigator shall carry an identification badge issued by the department of commerce and insurance and has the authority to make investigations concerning the enforcement of the laws, rules and policies promulgated under this chapter. The investigator shall have the authority to stop any auction activity that is being promoted, managed or supervised by unlicensed individuals in violation of this chapter.
2. The commission shall not expend or commit sums pursuant to subdivision (l )(1) in an amount that would reduce the account to a balance of less than one hundred fifty thousand dollars ($150,000).
No state funds shall be expended to effectuate this section other than the fees and charges set forth in this section.

Acts 1967, ch. 335, § 17; 1976, ch. 824, § 7; 1978, ch. 569, §§ 6, 7; T.C.A., § 62-1917; Acts 1983, ch. 250, § 14; 1987, ch. 62, § 2; 1997, ch. 62, §§ 1, 2; 1999, ch. 358, § 8; 2019, ch. 471, §§ 15, 16.

Compiler's Notes. Acts 1999, ch. 358, § 13 provided for authorization of the commissioner to promulgate rules and regulations to effectuate the purposes of the amendment to (l )(1)(C) by the act and that all such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1999, ch. 358, § 14 provided that the amendment to (l )(1)(C) by the act will not apply to any court sale.

Amendments. The 2019 amendment substituted “or affiliate auctioneer license” for “apprentice auctioneer or firm license” in (c)(1) and (c)(2); and substituted “affiliate auctioneer” for “apprentice auctioneer” twice in (g).

Effective Dates. Acts 2019, ch. 471, § 21. July 1, 2019.

62-19-117. Reciprocity — Service of process on nonresidents.

A nonresident of this state may become an auctioneer or affiliate auctioneer in this state by conforming to this chapter, except that a nonresident auctioneer or affiliate auctioneer regularly engaged in the auction business as a vocation and maintaining a definite place of business in some other state is not required to maintain a place of business in this state.
1. The commission may recognize a license issued by any other state to a nonresident auctioneer or affiliate auctioneer if the nonresident auctioneer or affiliate auctioneer is domiciled in the other state that issued the license, the other state reciprocates with this state in like manner and the licensure requirements of the other state include the passing of an examination of equal or higher standards than those required by this state.
2. The nonresident shall, however, be required to secure a license from the commission, which shall be issued upon application for the license, accompanied by the license fee required by this chapter and the filing of a certified copy of the applicant's license issued by the other state.
Every nonresident auctioneer shall maintain an escrow account for all funds belonging to others that come into the nonresident auctioneer's possession as a result of an auction sale in this state.
Every nonresident applicant shall file an irrevocable consent that suits and actions may be commenced against the applicant in the proper court in the county in this state in which a cause of action may arise, in which the plaintiff may reside, by service of any process or pleadings authorized by laws of this state on the commission, or a deputy to be designated by it, the consent stipulating and agreeing that the service of process or pleading shall be begun and held in all courts to be as valid and binding as if due service had been made upon the applicant in this state. The consent shall be duly acknowledged and, if made by a corporation, shall be authenticated by the seal of the corporation.
1. In case of any process or pleadings mentioned in this chapter being served upon the commission or upon a deputy to be designated by it, duplicate copies shall be made, one (1) of which shall be filed in the office of the administrative director of the commission and the other immediately forwarded by registered mail to the main office of the applicant against which the process or pleadings are directed.
2. No default in the proceedings or action shall be taken unless it is made to appear by affidavit of a member of the commission or a deputy designated by it that a copy of the process or pleadings was mailed to defendant as required by this subsection (e).
3. No judgment by default shall be taken in any such action or proceedings within twenty (20) days after the date of the mailing of the process or pleadings to the nonresident defendant.
The Tennessee auctioneer commission has the authority to impose any fee or licensing requirements on applicants for licenses from a reciprocal state that the reciprocal state imposes on Tennessee licensees by rule, regulation, policy or law.

Acts 1967, ch. 335, § 18; 1976, ch. 824, § 8; T.C.A., § 62-1918; Acts 1983, ch. 250, § 15; 1987, ch. 62, § 3; 1990, ch. 1026, § 4; 1995, ch. 61, § 1; 1997, ch. 91, § 6; 1999, ch. 358, § 1; 2019, ch. 471, §§ 17, 18.

Compiler's Notes. Acts 1999, ch. 358, § 13 provided for the authorization of the commissioner to promulgate rules and regulations to effectuate the purposes of the amendment to (e)(1) by the act and that all such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1999, ch. 358, § 14 provided that the amendment to (e)(1) by the act will not apply to any court sale.

Amendments. The 2019 amendment substituted “affiliate auctioneer” for “apprentice auctioneer” throughout (a) and (b)(1); and deleted “shall obtain a firm license as provided in § 62-19-111 and” preceding “shall maintain an escrow account” in (c).

Effective Dates. Acts 2019, ch. 471, § 21. July 1, 2019.

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

62-19-118. Business location — Sign.

Every person licensed under this chapter shall maintain a definite place of business in this state, except as provided in § 62-19-117 as to nonresidents, and shall erect and maintain a sign in a conspicuous place on the premises at or near the outside entrance to the principal office and all branch offices.
1. The sign shall be written in clear and legible letters of no less than two inches (2") in height and shall clearly show the person's name and indicate that the person is an auctioneer or show the firm name and indicate that the firm is in the auction business.
2. The sign shall be placed so that it can easily be observed and read by anyone entering the place of business; however, licensees maintaining a place of business in multistory office buildings shall be deemed to comply with this section if their names and professions are displayed on the directories of the building in the usual fashion and manner of other tenants located in the building.
1. The commission may waive the requirements of subsections (a) and (b) in the event of a conflict with local ordinances or other unusual circumstances.
2. The commission has the authority to promulgate rules with regard to advertising auctions in this state.

Acts 1967, ch. 335, § 19; 1976, ch. 824, § 9; T.C.A., § 62-1919; Acts 1983, ch. 250, §§ 16, 17; 1999, ch. 358, § 9.

Compiler's Notes. Acts 1999, ch. 358, § 13 provided for authorization of the commissioner to promulgate rules and regulations to effectuate the purposes of the amendment to (c)(2) by the act and that all such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1999, ch. 358, § 14 provided that the amendment to (c)(2) by the act will not apply to any court sale.

62-19-119. Actions for the collection of compensation.

No person engaged in the business of or acting in the capacity of an auctioneer or an affiliate auctioneer shall bring or maintain any action in the courts of this state for the collection of compensation for any services performed as an auctioneer or affiliate auctioneer without first alleging and proving that the person was a duly licensed auctioneer or affiliate auctioneer at the time the alleged cause of action arose.
No affiliate auctioneer shall have the right to institute a suit in the affiliate auctioneer's own name for the recovery of a commission, fee or compensation for services as an affiliate auctioneer, but any such action shall be instituted and brought by the licensed auctioneer employing the affiliate auctioneer.
Nothing contained in this section shall be construed so as to prevent a licensed affiliate auctioneer from suing the affiliate auctioneer's employing auctioneer for any compensation, fees or commissions due the affiliate auctioneer from the auctioneer.

Acts 1967, ch. 335, § 20; T.C.A., § 62-1920; Acts 2019, ch. 471, § 7.

Amendments. The 2019 amendment substituted “affiliate auctioneer” for “apprentice auctioneer” and “affiliate auctioneer’s” for “apprentice auctioneer’s” throughout the section.

Effective Dates. Acts 2019, ch. 471, § 21. July 1, 2019.

Cross-References. Court costs and attorney's fees included in award, § 62-19-124.

62-19-120. Effect of revocation of auctioneer's license on affiliate auctioneers.

The license of an affiliate auctioneer shall be automatically suspended upon the revocation or suspension of the license of the auctioneer by whom the affiliate auctioneer is employed. The affiliate auctioneer may retain the affiliate auctioneer's license by transferring to the employment of another licensed auctioneer within twenty-one (21) days of the effective date of the revocation or suspension.

Acts 1967, ch. 335, § 21; T.C.A., § 62-1921; Acts 1983, ch. 250, § 18; 2019, ch. 471, § 7.

Amendments. The 2019 amendment substituted “affiliate auctioneer” for “apprentice auctioneer” and “affiliate auctioneer’s” for “apprentice auctioneer’s” throughout the section.

Effective Dates. Acts 2019, ch. 471, § 21. July 1, 2019.

62-19-121. Penalties.

A violation of this chapter or any rule or regulation of the commission is a Class C misdemeanor.

Acts 1967, ch. 335, § 22; 1976, ch. 824, § 10; 1978, ch. 569, § 8; T.C.A., § 62-1922; Acts 1989, ch. 591, § 113.

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

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Auctions and Auctioneers, § 2.

NOTES TO DECISIONS

1. Liability of Licensed Auctioneer.

Where unlicensed party negotiated a contract for the sale of items at auction, such contract being in violation of this section was void, and licensed auctioneer hired to cry the sale by such party was responsible for the sale and liable to the person whose property was sold. David Witherspoon, Inc. v. Wood, 588 S.W.2d 558, 1979 Tenn. App. LEXIS 333 (Tenn. Ct. App. 1979).

62-19-122. [Reserved.]

Acts 1980, ch. 451, § 11; T.C.A., § 62-1924.

62-19-124. Court costs and attorney's fees in collection actions.

Any judgment obtained by a licensed auctioneer as the result of an action in the courts of this state for the collection of the sales price for goods or real estate sold by a licensed auctioneer or affiliate auctioneer may include an award for court costs and reasonable attorney's fees.

Acts 1985, ch. 272, § 1; 2019, ch. 471, § 7.

Amendments. The 2019 amendment substituted “licensed auctioneer or affiliate auctioneer” for “licensed auctioneer or apprentice auctioneer”.

Effective Dates. Acts 2019, ch. 471, § 21. July 1, 2019.

62-19-125. [Repealed.]

Acts 1999, ch. 358, § 10; repealed by Acts 2019, ch. 471, § 19, effective July 1, 2019.

Compiler's Notes. Former § 62-19-125 concerned gallery licenses.

62-19-126. Citations for violations.

1. The administrative director and the investigator, acting on behalf of the commission, are authorized to issue citations against persons acting in the capacity of engaging in the auction business without a license in violation of this chapter.
2. Each citation shall be in writing and shall describe with specificity the basis of each citation.
3. Each citation shall contain an order to cease all violations of this chapter and an assessment of a civil penalty in an amount of not less than fifty dollars ($50.00) nor more than two thousand five hundred dollars ($2,500) for each violation.
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 chapter.
Service of a citation issued pursuant to this section may be made in person or by certified mail at the last known business address or residence address of the person cited.
A citation issued pursuant to this section shall be issued by the administrative director or investigator within one (1) year after the act or omission that is the basis for the citation.
Any person served with a citation pursuant to this section may appeal to the administrative 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 administrative director that the person intends to contest the citation, the administrative 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 administrative director may apply to the appropriate court for judgment in an amount of the civil penalty, plus applicable court costs, and for an order to cease activities in violation of this chapter. The motion for the order, which shall include a certified copy of the final order of the hearing officer or administrative judge, shall constitute a sufficient showing to warrant the issuance of judgment and order.
The commission may waive any or all of a civil penalty by stating the reasons for the waiver in the official minutes of the commission.

Acts 1999, ch. 358, § 11.

Compiler's Notes. Acts 1999, ch. 358, § 13 provided for authorization of the commissioner to promulgate rules and regulations to effectuate the purposes of this section and that all such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1999, ch. 358, § 14 provided that this section will not apply to any court sale.

62-19-127. Commission's power to petition for judicial jurisdiction.

In addition to the powers and duties otherwise conferred upon the commission in this chapter, the commission is empowered to petition directly any circuit or chancery court having jurisdiction over any person in this state who is violating any of the provisions of this chapter, either with or without a license under this chapter, to enjoin the person from continuing the violation; and jurisdiction is conferred upon the chancery and circuit courts of this state to hear and determine such causes.

Acts 1999, ch. 358, § 12.

Acts 1999, ch. 358, § 14 provided that this section will not apply to any court sale.

Cross-References. Authorization to issue citations, rules and regulations, 62-19-126.

Chancery courts, title 16, ch. 11.

Circuit and criminal courts, title 16, ch. 10.

62-19-128. Licensed public automobile auctions — Minimum requirements.

Public automobile auctions shall be licensed and regulated by the Tennessee auctioneer commission and the Tennessee motor vehicle commission when engaged in the sale of motor vehicles.
The following are minimum requirements for licensed public automobile auctions:
1. The public automobile auction shall have a letter of compliance with local ordinances from the local zoning authority;
2. The public automobile auction shall have garagekeeper's legal liability insurance in an amount not less than five hundred thousand dollars ($500,000);
3. The public automobile auction shall have a surety bond of fifty thousand dollars ($50,000) issued by a licensed bonding company;
4. The public automobile auction shall have a compiled financial statement prepared in accordance with generally accepted accounting principles by a certified public accountant or public accountant dated not earlier than twelve (12) months prior to the date of the application and shall furnish a copy of the financial statement to the commission along with any changes to the statement;
5. The public automobile auction shall have a minimum net worth of at least one hundred thousand dollars ($100,000);
6. The public automobile auction shall have a business telephone in the auction company name. For purposes of this subdivision (b)(6), cellular telephones are not acceptable;
7. All signs shall be visible, and a permanent professional business sign shall be installed and have letters that are at least eight inches (8") tall;
8. The public automobile auction shall hold a current business tax license as required by local applicable law;
9. The public automobile auctioneer shall obtain and have displayed on its premises a valid motor vehicle dealer license from the Tennessee motor vehicle commission; and
10. The public automobile auction shall obtain and have displayed on its premises a valid license from the Tennessee auctioneer commission.
Prior to a motor vehicle being subject to a public automobile auction, the public automobile auctioneer shall verify that the motor vehicle has a clean and unencumbered title, by obtaining a valid motor vehicle title history from the department of revenue or if the motor vehicle is registered in a state other than this state, the appropriate titling agency in the other state.
All public automobile auctions must take place at the established place of business listed on the motor vehicle dealer license.
The public automobile auction shall not sell new or unused motor vehicles or vehicles with a manufacturer's statement of origin.
The public automobile auctioneer shall take possession of and retain title to each motor vehicle offered for sale at the auction. If the sale is finalized on a motor vehicle, the owner of the vehicle shall sign the title over to the public automobile auctioneer, who shall then sign the title over to and deliver the title to the buyer on the date of the sale. If a sale of the vehicle is not made, then the unsigned title shall be returned to the owner of the vehicle who offered the vehicle for sale at the auction. At all times, the public automobile auction shall be deemed the seller of the motor vehicle with the same duties and responsibilities as other licensed motor vehicle dealers.
The public automobile auction may hire a licensed auctioneer to solicit bids at an auction.

Acts 2008, ch. 724, § 4; 2019, ch. 471, § 20.

Compiler's Notes. Acts 2008, ch. 724, § 8 provided that the Tennessee auctioneer commission is authorized to promulgate rules and regulations to effectuate the purposes of the act. All the rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Amendments. The 2019 amendment added (g).

Effective Dates. Acts 2019, ch. 471, § 21. July 1, 2019.

62-19-123. Hearings and judicial review.

Chapter 20
Tennessee Collection Service Act

62-20-101. Short title.

This chapter shall be known and may be cited as the “Tennessee Collection Service Act.”

Acts 1981, ch. 170, § 1.

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

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

Attorney General Opinions. Constables as collections agents, OAG 97-043, 1997 Tenn. AG LEXIS 42 (4/7/97).

Application of licensure requirements, OAG 97-131, 1997 Tenn. AG LEXIS 164 (9/23/97).

Application of collection service licensure requirements to purchasers of judgments, OAG 99-224, 1999 Tenn. AG LEXIS 232 (12/1/99).

62-20-102. Chapter definitions.

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

“Board” means the Tennessee collection service board;
“Client” means any person who retains the services of a collection service and for such services directly provides the fee, commission or other compensation;
“Collection service” means any person that engages in, or attempts to engage in, the collection of delinquent accounts, bills or other forms of indebtedness irrespective of whether the person engaging in or attempting to engage in collection activity has received the indebtedness by assignment or whether the indebtedness was purchased by the person engaging in, or attempting to engage in, the collection activity. “Collection service” does not include any person that engages in, or attempts to engage in, the collection of notes or guarantees. “Collection service” includes, but is not limited to:
1. Any deputy sheriff, constable or other individual who, in the course of that person's duties, accepts any compensation other than that fixed by statute in connection with the collection of an account;
2. Any person who, in the process of collecting that person's own accounts, uses or causes to be used any fictitious name that would indicate to a debtor that a third party is handling the accounts;
3. Any person who offers for sale, gives away or uses any letter or form designed for use in the collection of accounts that deceives the receiver into believing that an account is in the hands of a third party, even though the letter or form may instruct the debtor to pay directly to the debtor's creditor; and
4. Any person who engages in the solicitation of claims or judgments for the purpose of collecting or attempting to collect claims or judgments or who solicits the purchase of claims or judgments for the purpose of collecting or attempting to collect claims or judgments by engaging in or attempting to engage in collection activity relative to claims or judgments;
“Collection service license” means a license granted to a collection service;
“Financially responsible” means capable, as demonstrated to the board's satisfaction, of sound financial management and fiscal discretion. The board may deem to be not financially responsible any person who:
1. Submits a balance sheet reflecting liabilities in excess of assets;
2. Is unable to pay debts as they mature;
3. Submits materially inaccurate financial information; or
4. Issues a check to a client without sufficient funds for the payment of the check in full;
“Person” means an individual, firm, corporation, association or other legal entity; and
“Solicitor” means any individual who is employed by or under contract with a collection service to solicit accounts or sell collection service forms or systems on its behalf.

Acts 1981, ch. 170, § 2; modified; Acts 1988, ch. 823, §§ 1-5; 2009, ch. 279, § 6; 2013, ch. 180, § 6; 2014, ch. 996, § 1.

Compiler's Notes. Acts 2014, ch. 996, § 5 provided that it is the legislative intent that the provisions contained in the act are remedial in nature and are intended to clarify the statute and policies of the collection services board. The clarifying provisions in the act are intended to provide a restatement of the statute and policies as the statute existed prior to May 22, 2014.

Attorney General Opinions. A company that is owned and operated by licensed attorneys that obtains assignments of judgments for a fee from judgment creditors and that divides net proceeds collected on the judgments with the judgment creditors operates as a “collection service” within the meaning of the statute, OAG 00-105, 2000 Tenn. AG LEXIS 107 (6/8/00).

The term “notes” in T.C.A. § 62-20-102(3), which exempts from the definition of “collection service” any person that engages in the “collection of notes or guarantees,” is best understood as encompassing only written promissory notes, i.e., unconditional written promises, signed by the maker, to pay absolutely and in any event a certain sum of money either to, or to the order of, the bearer or a designated person. When the Collection Services Board receives a complaint against a collection service licensee, it should inquire as to the nature of the underlying debt to make sure that is covered by the Tennessee Collection Services Act. OAG 19-17, 2019 Tenn. AG LEXIS 57 (9/25/2019).

62-20-103. Exemptions.

This chapter does not apply to:
1. Any person handling claims, accounts or collections under order of any court;
2. Attorneys at law;
3. Any person engaged in the collection of indebtedness incurred in the normal course of business or the business of a parent, subsidiary or affiliated firm or corporation; however, no person who is or represents the person to be a collection service is exempt from this chapter;
4. Any state or national bank; state or federal mutual savings bank; state or federal savings institution; or any parent, subsidiary, or affiliate of any of the foregoing;
5. Any state or federal credit union;
6. Any industrial loan and thrift company licensed or authorized by title 45, chapter 5;
7. Any small business development corporation authorized by title 45, chapter 8;
8. Any person that services or collects obligations secured by a consensual lien on a dwelling as defined by 12 C.F.R. 1026.2(a)(19) or any successor regulation; or
9. Any person that holds or acquires accounts, bills or other forms of indebtedness through purchase, assignment, or otherwise; and only engages in collection activity through the use of a licensed collection agency or an attorney authorized to practice law in this state.
Nothing contained within this chapter shall be construed to require an individual or business entity that collects only the individual's or its own unpaid accounts to submit to licensure or regulation by the collection service board.

Acts 1981, ch. 170, §§ 3, 27; T.C.A., § 62-20-123; Acts 2014, ch. 996, § 2.

Attorney General Opinions. Constitutionality of collection services board regulation of attorneys, OAG 98-079, 1998 Tenn. AG LEXIS 79 (4/6/98).

Application of collection service licensure requirements to purchasers of judgments, OAG 99-224, 1999 Tenn. AG LEXIS 232 (12/1/99).

The attorney exemption to the requirements of the Collection Service Act is only applicable to those attorneys who seek to collect the debts owing to their clients who have retained them for their services as attorneys; thus, attorneys who own or work for a collection service agency have a distinct identity from that of the agency and their mere connection to the agency does not relieve that agency of the requirements specified in the Collection Service Act, OAG 00-105, 2000 Tenn. AG LEXIS 107 (6/8/00).

The regulatory and rule-making authority granted to the Tennessee Collection Service Board does not allow it to limit the scope of the attorney exemption in T.C.A. § 62-20-103(a)(2) to only attorneys licensed to practice law in Tennessee. OAG 15-03, 2015 Tenn. AG LEXIS 3 (1/7/15).

62-20-104. Collection service board.

There is created the Tennessee collection service board, which shall consist of five (5) members appointed by the governor. Members shall serve for a period of three (3) years, except that appointments made to fill unexpired terms shall be for the period of the unexpired terms.
Members of this board shall be residents of this state for at least five (5) years prior to their appointment. At least two (2), but no more than three (3), of the members shall be engaged in the collection service industry. 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.
The board may hold meetings that it may deem necessary for the purpose of transacting any business authorized under this chapter. All members of the board shall be duly notified of the time and place of each meeting. A majority of the board constitutes a quorum at any such meeting.
Each member of the board shall receive the sum of fifty dollars ($50.00) for each meeting of the board attended by the member. Each board member shall also be reimbursed for actual travel and other expenses incurred by the member in attending each meeting of the board and in performing any other duties provided for in this chapter. All reimbursement for expenses shall be in accordance with the comprehensive travel regulations promulgated by the department of finance and administration and approved by the attorney general and reporter.
The board shall annually select from its members a chair, vice chair and secretary. No member of the board shall hold more than one (1) such office.
All questions, submissions or requests directed to the board shall be addressed to the board's office in Nashville.
The board shall promulgate rules relating to the general conduct of collection service business that are consistent with recognized business practice and this chapter.
The director of the division of regulatory boards in the department of commerce and insurance or the director's designee shall serve as executive director of the board and shall perform all administrative functions for the board. The executive director of the board shall keep an accurate record of its proceedings and transactions.
Members of the board, while acting in good faith, shall not be subject to civil liability relative to the performance of duties delegated to the board by this chapter.

Acts 1981, ch. 170, § 4; 1987, ch. 292, §§ 3, 4; 1988, ch. 1013, § 35.

Compiler's Notes. The collection service board, 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, see §§ 4-3-1304, 56-1-301 — 56-1-306.

62-20-105. License requirement.

No person shall commence, conduct or operate any collection service business in this state unless the person holds a valid collection service license issued by the board under this chapter or prior state law.
Regular employees of licensed collection services need not procure a separate collection service license.
A licensed collection service maintaining more than one (1) place of business within the state shall register each place of business with reference to its specific location, name and purpose upon application for license and upon subsequent renewals of the license. The fees for each location for registration and renewal shall be established by the board.
Nothing in this chapter shall be construed to impair or impede the obligation of any contract, delinquent account, bills or other forms of indebtedness, nor prevent or deny any person the right to purchase, sell, assign, or take by assignment any obligation.
Notwithstanding subsection (a), no debt or obligation that has been collected by a voluntary payment or by a final judgment of any court may be set aside or challenged based on the lack of a license.
Any person who is alleged to have violated subsection (a) in the collection of a delinquent account, bill or other form of indebtedness:
1. May cure the default at any time, even after collection may have started, by filing an application for a license with the collection services board as provided in this chapter, and the board may not use a prior collection effort in violation of this section or § 62-20-124 as a basis or consideration for the denial of a license; and
2. May be subject to sanction by the collection service board, but may not be subject to other civil action or defense based on such alleged violation.

Acts 1981, ch. 170, § 5; 1988, ch. 823, § 6; 1990, ch. 1026, § 10; 2014, ch. 996, § 4.

62-20-106. Application for license.

An application for a collection service license shall be submitted on the form prescribed by the board and shall be accompanied by:

A nonrefundable application fee as set by the board;
A current personal or corporate financial statement prepared by a licensed public accountant or certified public accountant;
1. A surety bond executed by the applicant and a surety company authorized to do business in this state, made payable to the state of Tennessee. The amount of this surety bond shall be pro rated and based on the certified number of employees per collection agency as follows:
  1. One to four (1-4) employees — fifteen thousand dollars ($15,000);
  2. Five to nine (5-9) employees — twenty thousand dollars ($20,000);
  3. Ten (10) or more employees — twenty-five thousand dollars ($25,000); or
  4. Instead of the bond, a certificate of deposit in the sums as outlined in this subdivision (3)(A), which shall be assigned to the board;
2. The bond or assignment of certificate of deposit shall be conditioned that the applicant shall faithfully and truly perform all agreements entered into with its clients accounting for the net proceeds of all collections in accordance with this chapter; and
Any other relevant information and documentation that may be requested by the board to determine whether the applicant meets the requirements for initial licensure as set forth in § 62-20-107.

Acts 1981, ch. 170, § 6; 1988, ch. 823, § 7; 1989, ch. 523, § 166; 1990, ch. 1026, § 9; 2015, ch. 291, § 9.

62-20-107. Qualifications of applicant.

No license to conduct or operate a collection service business in this state shall be issued to any person:

Who is not trustworthy;
Who does not have a proven reputation for honesty and fair dealings;
Who is not financially responsible;
Who, in the opinion of the board, is not competent to engage in the collection of the accounts and claims of others;
Who, within the past seven (7) years, has been convicted in any court of fraud or any felony or had judgment entered against the person in any court for failure to account to a client for money or property collected;
Whose license to practice law has been suspended or revoked within the past seven (7) years;
Who, unless a nonresident applicant, does not maintain in this state a regular office in which are kept complete records of collections and claims handled for clients and against debtors residing in this state;
Who, unless a nonresident applicant, does not maintain in this state bank accounts with sufficient funds at all times to disburse amounts due clients; and
Who, within the past seven (7) years, has filed a petition under the federal bankruptcy laws or state insolvency laws or has had a receiver, fiscal agent or similar officer appointed by a court for the person's business or property.

Acts 1981, ch. 170, § 7; 1988, ch. 823, § 8.

62-20-108. Notice to board.

The board shall be promptly notified in writing of any change in address, management or ownership of a collection service business.

Acts 1981, ch. 170, § 8; 1987, ch. 292, § 2; 1988, ch. 823, §§ 10-16; 1989, ch. 523, §§ 167, 168; 2001, ch. 130, § 1; 2009, ch. 279, § 7; 2013, ch. 180, § 7.

62-20-109. License fee and display.

The board shall grant a collection service license to a qualified applicant upon receipt of a fee as set by the board. The fee shall not be prorated for any portion of a year.
The collection service license shall be prominently displayed at all times at the licensee's place of business.

Acts 1981, ch. 170, § 9; 1985, ch. 354, § 13; 1987, ch. 292, § 5; 1988, ch. 823, § 17; 1989, ch. 523, § 169.

Cross-References. License renewal, § 62-20-112.

62-20-110. Bond posted or certificate of deposit assigned.

The bond posted or the certificate of deposit assigned in accordance with this chapter shall be in full force and effect during all periods and in all places and areas in which the licensee is doing business within this state as a collection service.
If any collection service violates the conditions of the bond or certificate of deposit, the injured client may maintain an action in the client's own name on the bond or certificate of deposit of the collection service in any court of competent jurisdiction.
In no event shall the aggregate liability of the surety exceed the amount of the bond, nor shall the board or this state be liable to any client relative to an assigned certificate of deposit.

Acts 1981, ch. 170, § 10.

62-20-111. Solicitors' identification cards.

1. No person may act as a solicitor for any collection service unless the person possesses a valid solicitor's identification card issued by the board to the collection service.
2. Identification cards shall be obtainable by written application of the collection service licensee, accompanied by an annual fee as set by the board.
3. The identification cards shall be the property of and in the name of the collection service licensee, who may transfer them from one (1) of the collection service licensee's solicitors to another.
4. The collection service licensee shall be responsible for the proper training and conduct of each solicitor acting in the collection service licensee's behalf.
In order to protect the rights of creditors, all letters of collection or notices of collection from a collection agency to a debtor shall contain language stating that the collection agency is licensed by the collection service board of the department of commerce and insurance.

Acts 1981, ch. 170, § 11; 1985, ch. 354, § 14; 1988, ch. 823, § 18; 1989, ch. 523, § 170; 1992, ch. 580, § 3; 2001, ch. 130, § 2.

62-20-112. Expiration and renewal of licenses.

All licenses or identification cards shall expire the last day of the twenty-fourth month from issuance or renewal.
Application for renewal of a collection service license shall be submitted to the board prior to the expiration date and shall be accompanied by:
1. A fee as set by the board;
2. Evidence of renewal of the bond or certificate of deposit under the terms required by this chapter;
3. A current balance sheet prepared by a licensed public accountant or certified public accountant; and
4. Proof that all taxes that are applicable to the collection service licensee and that are then due and payable have been paid.
All licenses shall be subject to late renewal for a period of sixty (60) days following their expiration date by payment of the prescribed fee plus a penalty as set by the board.

Acts 1981, ch. 170, § 12; 1985, ch. 354, § 15; 1988, ch. 823, §§ 19-23; 1989, ch. 360, § 11; 1989, ch. 523, §§ 171-173; 1990, ch. 1026, § 43; 2008, ch. 1038, § 3; 2013, ch. 180, § 8.

Cross-References. Director of division of regulatory boards to promulgate rules establishing renewal dates of licenses, certificates or permits, § 56-1-302.

62-20-113. Licenses nontransferable.

No license shall be transferable to another person.
Upon change of ownership of a collection service, the new owner shall apply for and obtain a new collection service license before commencing or continuing business.

Acts 1981, ch. 170, § 13; 1988, ch. 823, § 24.

62-20-114. Requirements of collection service licensees.

Each collection service licensee shall:

Keep and retain for a period of three (3) years accurate individual records of collections, including the amount and date of payment and the names of the debtor and creditor;
Issue, upon request, individual collection receipts, showing the amount and date of payment, names of the debtor and creditor and the balance, if any, remaining unpaid;
Maintain a separate fiduciary or trust bank account with sufficient funds at all times to disburse amounts due all clients; and
Maintain records and books reflecting the true condition of bank accounts at the end of each calendar month.

Acts 1981, ch. 170, § 14; 1988, ch. 823, § 26.

62-20-115. Investigations — Denial, revocation or suspension of licenses.

1. The board may, upon its own motion, or shall, upon the sworn complaint in writing of any person, investigate any collection service or licensee operating in the state.
2. The board shall transmit any such complaint within fifteen (15) days of receipt of the complaint to the accused licensee by registered or certified mail.
3. The licensee shall, within twenty (20) days, file with the board the licensee's sworn answer to the complaint.
The board may suspend, revoke or refuse to renew any license held under this chapter for any of the following causes:
1. Obtaining a license through misrepresentation or fraud;
2. Collecting or attempting to collect from the debtor any fee, commission or other compensation not provided by law for collection services rendered to a client, except that a collection service may recover from debtors reasonable charges imposed by banks for processing insufficient fund checks; provided, that the charges do not exceed nine dollars ($9.00) per check;
3. Failing to report and pay to a client the net proceeds of all collections made during a calendar month within thirty (30) days, unless otherwise provided by mutual agreement between the licensee and the client;
4. Violating or cooperating with others in violating any provision of this chapter or any rule lawfully promulgated by the board;
5. Failing to comply with any applicable state or federal law or regulation pertaining to the credit and collection industry; and
6. 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.

Acts 1981, ch. 170, § 15; 1987, ch. 292, § 1; 1988, ch. 823, §§ 27, 28; 1998, ch. 843, § 1.

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

62-20-116. Actions required at expiration or revocation of license.

Upon the expiration or revocation of any license held under this chapter, the licensee shall:
1. Within ninety (90) days, return or assign all uncollected accounts to the licensee's clients or their order;
2. Not charge or receive any fee or compensation for the return or assignment of uncollected accounts;
3. Not charge or receive any fee or compensation on any moneys received or collected subsequent to the expiration, suspension or revocation; and
4. Within ninety (90) days, remit all moneys to the owners of the accounts on which the moneys were paid.
This section shall not be construed to:
1. Prohibit a bulk sale of the business, assets and good will of a collection service whose license becomes invalid; or
2. Deprive a licensee of the privilege of late renewal granted by § 62-20-112.

Acts 1981, ch. 170, § 16; 1988, ch. 823, § 29; 2013, ch. 180, § 9.

62-20-117. Reciprocity — Service of process on nonresidents — Default judgments.

A nonresident of this state who is regularly engaged in the collection business in another state may obtain a license as a collection service in this state by complying with this chapter; provided, that the nonresident applicant maintains a place of business in the other state and that state offers the same privilege to the licensees of this state.
1. Every nonresident applicant shall file an irrevocable consent that legal action may be commenced against the nonresident applicant in the proper court of any county of this state in which a cause of action may arise, in which the plaintiff may reside, by service of process or pleading authorized by the laws of this state, or by any member of the board, the consent stipulating that the service of process or pleading shall be taken in all courts to be valid and binding as if personal service had been made upon the nonresident licensee in this state. The consent shall be duly acknowledged and, if made by a corporation, shall be authenticated by its seal.
2. Any service of process or pleading shall be served on the secretary of the board by filing duplicate copies, one (1) of which shall be filed in the office of the board and the other forwarded by registered mail to the last known principal address of the nonresident licensee against whom the process or pleading is directed.
3. No default in any such action shall be taken, except upon affidavit certification of the board or the secretary of the board that a copy of the process or pleading was mailed to the defendant as provided in this subsection (b). No default judgment shall be taken in any such action or proceeding until thirty (30) days after the day of mailing of process or pleading to the defendant.

Acts 1981, ch. 170, § 17.

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

62-20-118. User responsible for ascertaining service is licensed.

Any person who places an account with a collection service is responsible for determining that the service is licensed as required by this chapter.

Acts 1981, ch. 170, § 18.

62-20-119. Confidentiality of information.

Any financial information submitted by applicants for or holders of licenses pursuant to this chapter shall be treated as confidential and shall be used by the board only for the purpose of determining qualifications to engage in the collection service business.

Acts 1981, ch. 170, § 19.

Cross-References. Confidential records, § 10-7-504.

62-20-120. Unauthorized acts.

Nothing in this chapter shall be construed to permit:

The use or sale of forms that simulate legal forms so as to deceive a debtor or the general public;
The unauthorized practice of law; or
A collection agency to notify a credit bureau or credit agency concerning the owner of record of a motor vehicle who has failed to pay an overdue parking ticket or tickets without first notifying the owner of record of the motor vehicle that, if the ticket is not timely paid to the collection agency by a date included in the notification, the credit bureau or credit agency will be notified of such fact, which could affect the owner's credit rating.

Acts 1981, ch. 170, § 20; 2009, ch. 577, § 3.

62-20-121. Temporary retirement.

Any licensee may temporarily retire the licensee's license for a period of three (3) years by giving written notice of such intent and paying each year an annual retirement fee of ten dollars ($10.00) to the board.
Any license not activated within the three-year period becomes invalid.

Acts 1981, ch. 170, § 21.

62-20-122. Hearings and judicial review.

Acts 1981, ch. 170, § 22.

62-20-123. Violations.

A willful violation of this chapter or of any rule lawfully promulgated under this chapter is a Class C misdemeanor.

Acts 1981, ch. 170, § 23; T.C.A., § 62-20-124; Acts 1989, ch. 591, § 113.

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

62-20-124. Conditions to assignment of accounts — Commencement of litigation — Application of payments.

A collection service, holding a valid license under this chapter, may bill, collect or file suit in its own name, as the real party in interest, on any form of indebtedness, so long as the owner or holder of the indebtedness has assigned this limited right to the collection service licensee and the following conditions have been met:
1. The assignment was voluntary, properly executed and acknowledged by the person making the assignment to the collection service licensee;
2. The original agreement between the creditor and the debtor does not prohibit an assignment for the limited purpose of billing, collecting or filing suit in the assignee's own name, as the real party in interest;
3. The assignment was manifested by a written agreement stating the effective date of the assignment and any consideration given for the assignment. The written agreement must also disclose that the collection service licensee may, for purposes of litigation, consolidate the assigned account, bill, note or other form of indebtedness with those of other creditors against the individual debtor or codebtors;
4. The assignment to the collection service licensee does not transfer title or any ownership interest in the underlying account, bill, note or other form of indebtedness to the collection service licensee; and
5. A collection service licensee bringing suit in its own name as an assignee may submit an affidavit of sworn account that has been executed under oath by the assigning party or by a person qualified to execute a sworn account pursuant to § 24-5-107(a). The licensee shall file a copy of the sworn account with the court for service upon the debtor.
A collection service licensee may commence litigation for the collection of an assigned account, bill, note or other indebtedness in a court of competent jurisdiction located in any of the following counties:
1. The county in which the debtor signed the account, bill, note or other indebtedness sued upon;
2. In the case of consolidated accounts that all arose from the same county, the county in which all of the consolidated accounts, bills, notes or other indebtednesses arose; or
3. The county in which the debtor resides at the commencement of the action.
No collection service licensee shall commence any litigation authorized by this section, unless the collection service licensee appears by an attorney admitted to practice law in this state.
1. For purposes of commencing litigation, a collection service licensee that has taken an assignment or assignments pursuant to this section may consolidate the assigned accounts, bills, notes or other indebtedness of one (1) or more creditors against one (1) individual debtor or codebtors, in one (1) case. Each assigned account, bill, note or indebtedness must be separately identified and pled in any consolidated action authorized by this section. The individual amount of each account, bill, note or other indebtedness that forms the basis for any consolidated action shall not exceed two hundred dollars ($200) each, as identified and pled by the collection service licensee, exclusive of court costs, attorney fees and interest that may have accrued before the filing of the consolidated action. The aggregate amount of consolidated accounts, bills, notes and other indebtedness in any one (1) case shall not exceed five hundred dollars ($500), as identified and pled by the collection service licensee, exclusive of court costs, attorney fees and interest that may have accrued before the filing of the consolidated action. Court costs shall be assessed to the losing party. Interest, attorney fees and reimbursable expenses shall be assessed against the losing party, if provided in any of the consolidated accounts, bills, notes or other indebtedness or as otherwise permitted or required by law.
2. If a debtor or codebtor files a sworn denial or otherwise raises a dispute concerning any account, bill, note or other evidence of indebtedness, the court shall dismiss the account, bill, note or other evidence of indebtedness, without prejudice. The collection service licensee may bring a separate case for any such disputed account, bill, note or other evidence of indebtedness within one (1) year of dismissal; provided, however, that the disputed account, bill, note or other evidence of indebtedness cannot be consolidated with any other account, bill, note or other evidence of indebtedness.
3. For any account on which an affidavit of sworn account is filed pursuant to § 24-5-107(a), a separate affidavit shall be filed for each account in a consolidated action.
Nothing in this section relieves a collection service licensee from complying with the Fair Debt Collection Practices Act (15 U.S.C. § 1692) or deprives any debtor of the right to assert defenses as provided in that act.
On the face of any warrant or other pleading filed in any consolidated action or in an attachment to the warrant or pleading, the collection service licensee shall state the order in which the creditor intends to apply payments received on any judgment obtained in the consolidated action. The collection service licensee shall also state that payments will be applied as stated unless the debtor instructs otherwise in writing or the court orders otherwise.

Acts 2004, ch. 674, § 1; 2014, ch. 996, § 3; T.C.A. § 62-20-127.

Code Commission Notes.

This section was renumbered from § 62-20-127 to § 62-20-124 by authority of the Code Commission in 2019.

Chapter 21
Tennessee Application of Pesticides Act of 1978

Part 1
General Provisions

62-21-101. Short title.

This chapter shall be known and may be cited as the “Tennessee Application of Pesticides Act of 1978.”

Acts 1978, ch. 844, § 1; T.C.A., § 62-2101.

Cross-References. Commercial aerial application of pesticides, title 43, ch. 8, part 3.

Hazardous Chemical Right to Know Law, title 50, ch. 3, part 20.

Insecticides, fungicides and rodenticides, title 43, ch. 8.

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

Pest control compact, title 43, ch. 6, part 3.

Plant pest act, title 43, ch. 6, part 1.

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

62-21-102. Chapter definitions.

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

“Adjuvant” means any substance that, when added to a pesticide, is intended to aid, modify or enhance its effectiveness by its properties of serving as a wetting agent, detergent, spreading agent, synergist, deposit builder, adhesive, surfactant, emulsifying agent, deflocculating agent, water modifier or similar agent, with or without toxic properties of its own, and when sold in a package or container separate from that of the pesticide with which it is to be used;
“Branch office” means any location other than the principal base of operation from which a pest control firm carries out its pest control activities. The maintenance of personnel and equipment at these locations where pest control activities are carried out constitutes a branch office under this chapter;
“Category” means an area of licensing or certification for which commercial pest control operators or restricted use applicators are qualified;
“Certification” means the authorization by the commissioner to use, supervise the use of, buy or sell restricted use pesticides or to issue a wood destroying insect infestation inspection report;
“Certified applicator” means any individual who is certified by the commissioner as authorized to use, buy, sell or supervise the use of restricted use pesticides;
“Charter” means an instrument issued by the department, authorizing a person, firm or corporation to engage in the business of commercial pest control operations;
“Commercial pest control operator” means a person or business entity who engages in the custom application of pesticides or inspection of real property for the purpose of issuing a wood destroying insect infestation inspection report and who has demonstrated to the satisfaction of the commissioner the person's qualifications to design and direct pest control and inspection operations;
“Commissioner” means the commissioner of agriculture;
“Custom application of pesticides” means the application of pesticides for a fee;
“Department” means the department of agriculture;
“Labeling” means all labels and written, printed or graphic matter accompanying the pesticide or device at any time or to which reference is made on the label and the pesticide must be used consistent with the label;
“Licensee” means any person duly licensed under this chapter;
“Office” means point of headquarters or location of the principal operation of a pest control firm or a point or location where branch offices are supervised;
“Pesticide” means any substance or mixture of substances or chemical intended for defoliating or desiccating plants or for preventing, destroying, repelling or mitigating any insects, rodents, fungi, bacteria, weeds or other forms of plant or animal life the commissioner declares to be a pest. This includes, but is not limited to, insecticides, fungicides, bacteriacides, herbicides, desiccants, defoliants, adjuvants or nematocides;
“Prevention” means the prevention of conditions conducive to termite harborage or activity, or both, by advice of a licensed operator;
“Private applicator” means an individual who uses, supervises the use of or buys any pesticide that is classified for restricted use for purposes of producing an agricultural commodity on property owned or rented by the individual or the individual's employer or if applied without compensation other than trading of personal services between producers of agricultural commodities on the property of another person;
“Recertification” means the reauthorization every three (3) years by the commissioner to use, supervise the use of, buy or sell restricted use pesticides;
“Registration” means an instrument authorizing a person to act as solicitor, salesperson or agent for a chartered pest control business;
“Restricted use applicator” means a person who uses or supervises the use of, sells or buys restricted use pesticides for any use or for use on any property other than as defined under private applicator or commercial pest control operator;
“Restricted use pesticide” means any pesticide, the efficacy data on which indicates it may have adverse effect on people or the environment, or both;
“Termite warranty without initial chemical treatment” means any agreement entered into between a chartered commercial pest control operator and any other person or entity for the purpose of termite prevention or control for any structure or building, regardless of any initial chemical application for prevention or control to the property;
“Under the direct supervision” means any application or sale of a pesticide by a certified applicator acting under the instructions and control of a private applicator, commercial applicator or commercial pest control operator who is available if and when needed, if the applicator or operator is physically present or in direct communication by conventional means of communication; and
“Wood destroying insect infestation inspection report” means a report written by a chartered commercial pest control operator employing a person licensed in the category of wood destroying organisms. The report shall indicate the presence or absence of visible wood destroying insects and the presence or absence of visible damage caused by the insects and shall be issued after an on-site inspection of the property.

Acts 1978, ch. 844, § 2; T.C.A., § 62-2102; Acts 1988, ch. 545, §§ 1-5; 1996, ch. 805, §§ 7, 8; 2000, ch. 668, §§ 1-3; 2001, ch. 105, §§ 1, 2; 2009, ch. 363, § 1; 2011, ch. 87, § 1; 2020, ch. 640, § 1.

Amendments. The 2020 amendment substituted “commissioner” for “pest control licensing and advisory board” in (7).

Effective Dates. Acts 2020, ch. 640, § 16. April 1, 2020.

62-21-103. Business charter requirement.

No person shall engage in business as a commercial pest control operator until the person has secured a charter from the department.
Any form of solicitation for pest control business or advertising is forbidden under this chapter unless the person has a charter issued in one (1) or all of the categories established by regulation under this chapter.
The charter may be granted in any one (1) or all of the categories established by regulation under this chapter.
The charter may be issued only if the requirements of this chapter have been met and the stipulated fees have been received by the department.
A charter shall be required for each office and each branch office. The requirements of this chapter do not apply to any class of commercial pest control operators such as, but not limited to, aerial applicators, when that class of commercial pest control operators is the subject of specific laws and regulations relating to that specific class in the commercial application of pesticides.
All chartered companies are required to label the sides of company vehicles with the name of the company and the charter number. The size of the lettering shall not be less than two inches (2") tall.
All chartered persons, companies or corporations shall have a physical address and shall maintain a physical address while the charter is in effect.

Acts 1978, ch. 844, § 3; T.C.A., § 62-2103; Acts 1988, ch. 545, § 6; 2005, ch. 427, § 3; 2018, ch. 636, § 1.

Cross-References. Commercial aerial application of pesticides, title 43, ch. 8, part 3.

62-21-104. Creation of board — Notification of vacancy — Termination due to vacancy.

A seven-member pest control advisory board is created and established. The board shall consist of the commissioner or the commissioner's designated representative, the director of the division of plant industries, a member of the staff of a university of this state, two (2) licensed commercial pest control operators and two (2) Tennessee citizens who are not associated with the pest control industry.
1. The governor shall appoint the members of the board to serve four-year terms, and, in the event of a vacancy, the governor shall appoint an interim member to fill the unexpired portion of the previous member's term. If the board incurs a vacancy, it shall notify the appointing authority in writing within ninety (90) days after the vacancy occurs and shall provide a list of qualified persons to be appointed to the board and information regarding the qualified persons that is sufficient for the appointing authority to make an informed decision. All vacancies on the board, other than ex officio members, shall be filled by the appointing authority within ninety (90) days of receiving written notice of the vacancy and sufficient information is provided for the appointing authority to make an informed decision in regard to filling the vacancy. If the board has more than one (1) vacancy that is more than one hundred eighty (180) days in duration, the board shall report to the government operations committees of the house of representatives and the senate on why the vacancies have not been filled. If more than one-half (½) of the positions on the board are vacant for more than one hundred eighty (180) consecutive days, the board shall terminate; provided, that the board shall wind up its affairs pursuant to § 4-29-112. The board that is terminated pursuant to this subsection (b) shall be reviewed by the evaluation committees pursuant to the Uniform Administrative Procedures Act, compiled at title 4, chapter 5, before ceasing all its activities. Nothing in this section shall prohibit the general assembly from continuing, restructuring or reestablishing the board. This subsection (b) shall only apply if the governor is authorized to make appointments to at least one-half (½) of the positions on the board.
2. 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.
With the exception of the commissioner, no proxies nor power to designate a representative to serve in the place of a board member shall be allowed.
The department shall establish by written policy, rule or regulation, provisions relative to conflicts of interest of board members.

Acts 1978, ch. 844, § 4; T.C.A., § 62-2104; Acts 1983, ch. 125, §§ 1, 2; 1988, ch. 545, § 7; 1988, ch. 1013, § 36; 2000, ch. 835, § 3; 2003, ch. 177, § 3; 2020, ch. 640, §§ 2, 3.

Compiler's Notes. The pest control advisory board, created by this section, terminates June 30, 2022. See §§ 4-29-112, 4-29-243.

Acts 2020, ch. 640, § 13 provided that notwithstanding § 4-29-112, the pest control board created by § 62-21-104 is terminated and ceases to exist on April 1, 2020.

Acts 2020, ch. 640, § 15 provided that the members serving on the pest control board on March 31, 2020, may continue to serve on the pest control advisory board until the expiration of the member's term, at the will of the appointing authority.

Amendments. The 2020 amendment inserted “advisory” between “control” and “board” in the first sentence of (a); and deleted “when this board sits as a licensing examining board” following “allowed” in (c).

Effective Dates. Acts 2020, ch. 640, § 16. April 1, 2020.

Attorney General Opinions. Validity of appointment to board, OAG 95-051, 1995 Tenn. AG LEXIS 51 (5/15/95).

62-21-105. Board's advice to commissioner.

The board shall advise the commissioner as to the promulgation of rules, categories of licenses, qualifications of applicants, and examinations for licenses.

Acts 1978, ch. 844, § 5; T.C.A., § 62-2105; Acts 2020, ch. 640, § 4.

Amendments. The 2020 amendment rewrote the section which read: “(a) The board has the following powers and duties: “(1) Advise the commissioner as to the promulgation of rules and regulations;“(2) Determine the different categories of service or classes that will require separate charters or licenses, prescribe the required qualifications for applicants for the various licenses and charters and devise or approve the necessary examinations or testing procedures for the examination of applicants; and“(3) Certify the qualifications of applicants to the commissioner requesting issuance of a license.“(b)(1) The board shall meet quarterly for the purpose of examining and certifying applicants for licenses and at any time when requested by the commissioner or by a majority of the board.“(2) The questions and answers of all examinations to determine the qualifications of those seeking to be licensed as commercial pest control operators to engage in the various classes of pest control shall be written, and all such examinations shall be substantially uniform in content, difficulty and equity as to each of the various classes.”

Effective Dates. Acts 2020, ch. 640, § 16. April 1, 2020.

62-21-106. Office and branch office requirements — Employees.

1. Each person applying for or holding a charter shall have, for each office or branch office, a licensed commercial pest control operator for each category of service offered.
2. The technical service work of each office or branch office shall be under the direct supervision of the licensed operator.
3. The technical service work shall be performed by employees who meet the qualifications established by rule.
1. Each person chartered shall be required to have a commercial pest control operator for the main or supervisory office.
2. Branch offices must be supervised by licensed operators.
No licensed commercial pest control operator shall be permitted to supervise more than one (1) office or branch office. The commercial pest control operator for each office or branch shall be domiciled and resident at or near the office that the operator supervises and shall report to the office the operator supervises on a regular routine work basis.

Acts 1978, ch. 844, § 6; 1981, ch. 78, § 2; T.C.A., § 62-2106; Acts 1988, ch. 545, § 9; 2020, ch. 640, § 5.

Amendments. The 2020 amendment substituted “established by rule” for “that the board may establish by regulation” in (a)(3).

Effective Dates. Acts 2020, ch. 640, § 16. April 1, 2020.

62-21-107. Bond.

Each application for a charter must be accompanied by a corporate surety bond satisfactory to the commissioner and conditioned that the principal named therein shall honestly conduct the business in accordance with the pest control laws of this state and the rules and regulations promulgated under the laws of this state and shall faithfully perform any contracts for pest control work.
Any person having a right of action against the charter operation may bring suit against the principal and sureties of the bond.
The amount of the bond shall be at least ten thousand dollars ($10,000).

Acts 1978, ch. 844, § 7; T.C.A., § 62-2107; Acts 2000, ch. 668, § 4.

62-21-108. Insurance required.

Each application for a charter must be accompanied by evidence that the applicant holds occurrence liability insurance of two hundred fifty thousand dollars ($250,000) for a single occurrence of liability and five hundred thousand dollars ($500,000) aggregate liability for the annual period of insurance. Applicants filing for charters desiring to conduct work in the wood destroying organisms category shall, in addition to the above occurrence liability insurance, hold errors and omissions insurance of one hundred thousand dollars ($100,000) for a single occurrence of liability and three hundred thousand dollars ($300,000) aggregate errors and omissions liability for the annual period of insurance.

Acts 1978, ch. 844, § 8; T.C.A., § 62-2108; Acts 1988, ch. 545, § 8; 2000, ch. 668, § 5; 2005, ch. 427, § 2.

62-21-109. Registration of solicitors.

A person chartered under this chapter shall list with the department the name, residence and address of each salesperson or agent who is authorized to solicit business or anyone authorized to enter into a pest control contract on behalf of the chartered person. A person listed as a licensee or registered technician is considered to be a registered solicitor for the chartered person without a requirement of separate solicitor registration.
1. Each person chartered is required to secure from the department a solicitor's registration for any salespersons or agents.
2. Registration shall be issued when it has been shown that the prospective solicitor or agent is an employee of the chartered firm and has written authority to solicit business for the firm and bind the firm to contracts for pest control service and when the fees provided for in this chapter have been paid and received by the department.
No person registered under this section shall possess more than one (1) registration card at a time and can be gainfully employed by only one (1) chartered person.
It is a violation for a registered solicitor under this chapter knowingly to use false information or a deceptive representation to sell pesticide application services.
Each person registered under this section shall possess commercial certification in each category of service offered for sale or provided.

Acts 1978, ch. 844, § 9; T.C.A., § 62-2109; Acts 1994, ch. 960, § 11.

62-21-110. List of employees.

All persons chartered under this chapter shall be required to list with the department the names, residences and addresses of all employees, exclusive of clerical employees, who are engaged in the handling, transportation or application of pesticide chemicals.
Immediate notification of any changes in employment of these employees shall be forwarded to the department by the chartered person, including any change of address or residence.

Acts 1978, ch. 844, § 10; T.C.A., § 62-2110.

Textbooks. Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), § 401.12.

62-21-111. Cost.

The cost for a charter shall be set by rule pursuant to § 43-1-703.
The cost for a license shall be set by rule pursuant to § 43-1-703, applicable for each category in which a license is requested.
The cost for a registration of all nonclerical employees shall be set by rule pursuant to § 43-1-703.
The cost for a consultant's license shall be set by rule pursuant to § 43-1-703.

Acts 1978, ch. 844, § 11; T.C.A., § 62-2111; Acts 1991, ch. 441, § 1; 2015, ch. 485, § 40.

Cross-References. Delinquent fees, § 62-21-121.

Examination fees, § 62-21-112.

Wood destroying organisms, operation fee, § 62-21-114.

62-21-112. Examination of license applicants — Fees.

The cost for an initial examination of a license applicant is established by rule pursuant to § 43-1-703 for each category in which examination is requested.
1. When a license application has been examined and the applicant fails to meet the qualifications for licensure, the applicant may be examined at a subsequent date in accordance with rules promulgated by the commissioner. Each application for reexamination is accompanied by a reexamination fee established by rule pursuant to § 43-1-703 for each category in which examination is requested.
2. An applicant shall submit a separate application and reexamination fee each time a reexamination is requested for any category except the category of private pesticide applicator.

Acts 1978, ch. 844, § 12; 1981, ch. 78, § 3; T.C.A., § 62-2112; Acts 1991, ch. 441, §§ 2, 3; 2020, ch. 640, § 6.

Amendments. The 2020 amendment rewrote the section which read: “(a) Each application for initial examination of a license applicant shall be accompanied by an examination fee of one hundred fifty dollars ($150) for each category in which examination is requested.“(b)(1) When a license applicant has been examined by the board and found not qualified, the applicant may be reexamined at a subsequent date in accordance with regulations promulgated by the board. Each application for reexamination shall be accompanied by a reexamination fee of one hundred fifty dollars ($150) for each category in which reexamination is requested.“(2) A separate application and reexamination fee must be filed by an applicant each time a reexamination is requested for any category except the category of private pesticide applicator.”

Effective Dates. Acts 2020, ch. 640, § 16. April 1, 2020.

62-21-113. [Reserved.]

1. Every chartered person shall enter into a written contract for any service rendered in the category of wood destroying organisms.
2. A separate contract must be given for each structure or building; provided, that an industrial complex or group of buildings may be covered by a single contract when it is an integral part of one (1) industrial unit.
3. A garage, pump house or other outbuilding commonly a part of a residential establishment may be covered by the same contract as that covering the residence itself; provided, that the garages, pump houses or other outbuildings are not used as separate residential units.
4. An apartment complex cannot be construed to be an industrial complex.
1. No person or business entity may enter into an agreement to provide services for termite prevention, control or a termite warranty without initial treatment unless properly chartered as a commercial pest control operator pursuant to § 62-21-103.
2. 1. Notwithstanding this chapter or any other law to the contrary, a chartered commercial pest control operator may enter into an agreement to provide ongoing services for a termite warranty without initial treatment for any structure or building regardless of any initial chemical application for prevention or control of termites of any such structure or building.
  2. Any agreement for a termite warranty without initial treatment shall clearly state in one-half inch (½") high letters on the front of the agreement if a damage repair guarantee is not offered. A violation of this subdivision (b)(2)(B) constitutes a violation of the Tennessee Consumer Protection Act, compiled in title 47, chapter 18, part 1.
3. Prior to entering into a termite warranty without initial treatment agreement with any person or entity under this subsection (b), the chartered commercial pest control operator must conduct an initial inspection and issue an initial report that includes:
  1. A graph or diagram of the property where any visible damage or infestation, if any, is located;
  2. A written description of the type of damage, if any; and
  3. The date of the initial inspection report.
4. The commissioner shall, subject to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, promulgate all necessary rules and regulations, consistent with this chapter. Rules promulgated to implement this subsection (b) shall regulate the commercial pest control industry and provide for the protection of the consumer.

Acts 1978, ch. 844, § 14; T.C.A., § 62-2114; Acts 1991, ch. 441, § 5; 1994, ch. 960, § 12; 2009, ch. 363, § 2.

62-21-115. Operator or aerial applicator license requirement.

To use, buy or sell a restricted use pesticide, an individual must be certified by the commissioner, hold a valid commercial pest control operator's license or hold an aerial applicator's license under § 43-8-301.

Acts 1978, ch. 844, § 15; T.C.A., § 62-2115.

62-21-116. Use of pesticide consistent with labeling.

No person shall use a pesticide in a manner inconsistent with its labeling.

Acts 1978, ch. 844, § 16; T.C.A., § 62-2116.

62-21-117. Labeling of pesticides.

It is illegal to store or transport any pesticide chemicals unless the containers for the chemicals are labeled to show the:
1. Name of the pesticide; and
2. Concentration of the pesticide.
When pesticides are stored or transported in containers other than those in which they were placed by the manufacturer or formulators, the label must also show the name of the chartered person, firm or corporation.

Acts 1978, ch. 844, § 17; T.C.A., § 62-2117.

62-21-118. Powers and duties of commissioner.

The commissioner has the power and duty to:
1. Administer this chapter;
2. Promulgate rules and regulations that are consistent with the requirements of the United States environmental protection agency implementing and supplementing this chapter and provide for its orderly administration;
3. Issue licenses, collect appropriate fees and issue charters upon application and qualification as provided by this chapter;
4. Determine requirements for and issue certification and recertification for users of restricted use pesticides;
5. Promulgate rules and regulations concerning handling and usage of pesticides;
6. Classify pesticides as to whether of general or restricted use;
7. Hold hearings and deny, revoke, modify or suspend charters, licenses and certification, and/or impose civil penalties of up to one thousand dollars ($1,000) for each violation;
8. The commissioner or the commissioner's designee may enter any place during normal business hours where pesticides are used or stored for the purposes of inspection, sampling or observation;
9. Through rule and regulation require the maintenance or filing of records;
10. Issue subpoenas for persons and records incidental to any hearing; and
11. Inspect periodically the operation and conduct of a charter holder, licensee or certificate holder.
The commissioner shall promulgate rules and regulations that may be requested by a two-thirds' (2/3) affirmative vote of the legislative body of any municipal or county government within any county having a population of less than two hundred fifty thousand (250,000), according to the 1990 federal census or any subsequent federal census, that have as their purpose the regulation of the use of pesticides in their specific area of jurisdiction. These regulations must be reasonable and not in conflict with state or federal law and regulations, but for good cause shown may be more stringent than those standards.

Acts 1978, ch. 844, § 18; T.C.A., § 62-2118; Acts 1988, ch. 545, § 10; 1988, ch. 878, § 6; 1992, ch. 667, § 6; 2020, ch. 640, § 7.

Compiler's Notes. For tables of population of Tennessee municipalities, and for U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Amendments. The 2020 amendment deleted “upon approval by the board” following “Issue licenses” in (a)(3).

Effective Dates. Acts 2020, ch. 640, § 16. April 1, 2020.

Attorney General Opinions. The Commissioner of Agriculture has authority to impose penalties at his discretion for any amount up to $1,000 for each violation of title 62, chapter 21 or title 43, chapter 8, parts 1 and 2, and the rules and regulations promulgated under these respective chapters, OAG 00-189, 2000 Tenn. AG LEXIS 193 (12/20/00).

62-21-119. Denial, suspension, modification or revocation of charter, license or certificate — Penalties — Warnings.

1. If the commissioner has reason to believe that any person has violated this chapter, including its rules, or has used economic poison in violation of the Tennessee Insecticide, Fungicide, and Rodenticide Act, compiled in title 43, chapter 8, parts 1 and 2, including its rules, the commissioner may:
  1. Deny, revoke, suspend, or modify a license, charter, or certification. The denial, suspension, revocation, or modification may be indefinite or for a time certain;
  2. Impose civil penalties of up to one thousand dollars ($1,000) for each violation or issue a warning notice; or
  3. Deny, revoke, suspend, or modify a license, charter, or certification pursuant to subdivision (a)(1)(A) and impose civil penalties pursuant to subdivision (a)(1)(B).
2. The commissioner shall send the person against whom a violation is alleged written notice setting forth the charges. The person shall have ten (10) days from the date the notice was sent to request a hearing. If a hearing is requested, it shall be conducted in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
A charter shall automatically be suspended should the licensed pest control operator whose name appears on the charter cease to be in charge of the charter holder's pest control operations. A grace period of no more than one hundred twenty (120) days may be granted to the charter holder so that another qualified person may be examined in accordance with this chapter.

Acts 1978, ch. 844, § 19; T.C.A., § 62-2119; Acts 1988, ch. 545, § 11; 2015, ch. 198, § 1.

Attorney General Opinions. The Commissioner of Agriculture must conduct a hearing, upon notice and without request, before any action may be taken against a charter, license, or certification, or any civil monetary penalty may be imposed; however, the commissioner may issue a warning notice without a hearing, OAG 00-189, 2000 Tenn. AG LEXIS 193 (12/20/00).

The Commissioner of Agriculture has authority to impose penalties at his discretion for any amount up to $1,000 for each violation of title 62, chapter 21 or title 43, chapter 8, parts 1 and 2, and the rules and regulations promulgated under these respective chapters, OAG 00-189, 2000 Tenn. AG LEXIS 193 (12/20/00).

62-21-120. Offense — Penalties — Limited term of ineligibility following conviction.

It is an offense for any person required by this chapter to be chartered or licensed to engage in commercial pest control activities to knowingly engage in commercial pest control activities without first obtaining the required charter or license.
Violation of subsection (a) is a Class A misdemeanor.
Each custom application of pesticides without the required charter or license constitutes a separate offense.
Persons convicted under subsection (a) are ineligible to obtain a charter or license to engage in commercial pest control activities for a period of one (1) year from the date of the person's conviction of the offense.

Acts 1978, ch. 844, § 20; T.C.A., § 62-2120; Acts 1989, ch. 591, § 113; 1994, ch. 960, § 13; 2001, ch. 105, § 3.

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

62-21-121. Delinquent fees — Collection.

The fees and taxes imposed by this chapter shall become delinquent on the last day of each succeeding month.
The commissioner is empowered and may act to collect delinquent fees and taxes as provided by §§ 67-6-516 — 67-6-518.

Acts 1978, ch. 844, § 21; T.C.A., § 62-2121.

62-21-122. [Repealed.]

Acts 1978, ch. 844, § 22; T.C.A., § 62-2122; repealed by Acts 2020, ch. 640, § 8, effective April 1, 2020.

Compiler's Notes. Former § 62-21-122 concerned deposit of funds and operating expenses.

62-21-123. [Repealed.]

Acts 1978, ch. 844, § 23; T.C.A., § 62-2123; Acts 1989, ch. 360, § 12; repealed by Acts 2020, ch. 640, § 9, effective April 1, 2020.

Compiler's Notes. Former § 62-21-123 concerned expiration and renewals of charters and licenses.

62-21-124. Pesticides in buildings used for food preparation and service, lodging, educational purposes or commerical food processing.

Whether or not engaged in the business of applying pesticides, a person may not apply a pesticide within any of the following buildings, except under the direct supervision of a person licensed to apply pesticides in accordance with this chapter:
1. Any building used for the preparation or serving of food;
2. Any building used for the temporary or permanent lodging of others;
3. Any building used primarily for educational purposes, except those buildings used primarily for religious instruction or for providing education to no more than ten (10) persons; or
4. Any commercial food processing facility.
Subsection (a) does not apply to the application of pesticides by an individual in the individual's dwelling nor to the application of pesticides by the owner of a multi-unit dwelling in which the owner resides and that contains no more than three (3) additional units used for the temporary or permanent lodging of others.

Acts 1978, ch. 844, § 24; 1981, ch. 78, § 4; T.C.A., § 62-2124; Acts 1985, ch. 217, § 1; 1994, ch. 960, § 14.

62-21-125. [Repealed.]

Acts 1978, ch. 844, § 25; T.C.A., § 62-2125; repealed by Acts 2020, ch. 640, § 10, effective April 1, 2020.

Compiler's Notes. Former § 62-21-125 concerned rules and regulations promulgated under former statute.

62-21-126. [Repealed.]

Acts 1978, ch. 844, § 26; T.C.A., § 62-2126; repealed by Acts 2020, ch. 640, § 11, effective April 1, 2020.

Compiler's Notes. Former § 62-21-126 concerned licenses issued to pest control operators licensed under former statute.

62-21-127. [Repealed.]

Acts 1978, ch. 844, § 27; T.C.A., § 62-2127; repealed by Acts 2020, ch. 640, § 12, effective April 1, 2020.

Compiler's Notes. Former § 62-21-127 concerned rules and regulations subject to review.

62-21-128. Monthly report requirement — Exemption.

Notwithstanding any law, rule or regulation to the contrary, persons licensed in the category of wood destroying organisms shall not be required to file a monthly report to the department. A monthly report shall not be required to be filed whether any application of chemicals was made or not.

Acts 1991, ch. 441, § 6.

62-21-129. Local regulation of pesticides.

Except as provided in § 62-21-118(b) or § 43-8-115, no city, town, county or other political subdivision of this state shall adopt or continue in effect any ordinance, rule, regulation or statute regarding pesticide sale or use, including, but not limited to, registration, notification of use, advertising and marketing, distribution, applicator training and certification, storage, transportation, disposal, disclosure of confidential information or product composition.
This section shall not be construed to limit the authority of a city, town or county to zone for storage of such products or to provide or designate sites for disposal of such products, to regulate discharge to sanitary sewer system or to implement an approved pesticide management plan as may be required by the Safe Drinking Water Act (42 U.S.C. § 300f et seq.)
This section does not apply to any municipality having a population of not less than sixteen thousand five hundred (16,500) nor more than seventeen thousand five hundred (17,500), according to the 1990 federal census or any subsequent federal census.

Acts 1992, ch. 667, §§ 3, 5.

Compiler's Notes. For table of populations of Tennessee municipalities see Volume 13 and its supplement.

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

62-21-130. Assessment of investigation and hearing costs — Rules and regulations.

Notwithstanding any contrary law, the department or any division, board, commission or agency attached to the department may assess the actual and reasonable costs of the investigation, prosecution and hearing of any disciplinary action held in accordance with the contested case provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3, in which sanctions of any kind are imposed on any person or entity required to be licensed, permitted, registered or otherwise authorized or regulated by the department or its respective divisions, boards, commissions or agencies. These costs may include, but are not limited to, those incurred and assessed for the time of the prosecuting attorneys, investigators, expert witnesses, administrative judges, court reporters and any other persons involved in the investigation, prosecution and hearing of the action.
1. All costs assessed pursuant to this section shall become final thirty (30) days after the date a final order of assessment is served.
2. If the individual or entity disciplined fails to pay an assessment when it becomes final, the department may apply to the appropriate court for a judgment and seek execution of the judgment.
3. Jurisdiction for recovery of costs shall be in the chancery court of Davidson County.

Acts 2001, ch. 105, § 4.

62-21-131. Surety bond for new charter in category 7.

A person, company or corporation applying for a new charter in category 7 shall furnish a surety bond in the amount of fifty thousand dollars ($50,000) for the first three (3) years a person, company or corporation is in business. In the fourth year and subsequent years in business, the surety bond shall be ten thousand dollars ($10,000) per year. This section shall not apply to a person, company or corporation that, on July 1, 2005, has a current commercial pest control operator business charter as required by § 62-21-103.

Acts 2005, ch. 427, § 1.

Part 2
Wood Destroying Insect Infestation Inspection Reports

62-21-201. Persons authorized to issue reports — Persons authorized to conduct inspections.

Wood destroying insect infestation inspection reports, as defined in this chapter, issued in conjunction with the sale or transfer of any real property shall only be issued by a chartered pest control operator licensed or employing personnel licensed in the category of wood destroying organisms. Only those persons licensed in the category of wood destroying organisms or certified in the category of industrial, institutional, structural and health related pest control working under the direct supervision of one licensed in the category of wood destroying organisms are authorized to conduct inspections for wood destroying insect infestation reports.

Acts 2000, ch. 668, § 7.

62-21-202. Contents of report — Warranty — Civil liability.

A wood destroying insect infestation inspection report issued by a chartered pest control operator evidences the presence or absence of visible wood destroying insects and the presence or absence of visible damage caused by the insects noted on the day the inspection is made. Obstructions and inaccessible areas shall be so noted in the report.
The wood destroying insect infestation inspection report shall be submitted on forms prescribed by the National Pest Management Association and the department of housing and urban development. In addition to other information, the report shall include the address of the property, a graph or other diagram showing the layout of the property, the areas of damage or active infestation, if any, the name of the licensed or certified employee conducting the inspection, the pest control operator name, address and charter number, the date of the inspection and any recommendations for corrective action.
Notwithstanding any law to the contrary, a wood destroying insect infestation inspection report is a warranty for ninety (90) days of the accuracy of any representations in the inspection report.
The person to whom a wood destroying insect infestation inspection report is issued may recover from the warrantor for breach of warranty compensatory damages, including all repair costs that are proximately related to the warranty as provided in § 62-21-203.
Any person knowingly issuing a false report or who issues a report without making a physical inspection of the site shall be liable in treble the amount of damages resulting from or incident to the breach of the warranty. The party injured by the breach may bring suit for the breach and for the damages.

Acts 2000, ch. 668, § 8.

NOTES TO DECISIONS

1. Warranty Unavailable.

Summary judgment was properly granted in favor of the pest control operators on the homeowners' negligent misrepresentation and breach of warranty action relative to the issuance by the operators of a wood-destroying insect infestation inspection report; the warranty created by T.C.A. § 62-21-202 was not available to the homeowners except under the limited conditions set forth in that statute, and no misrepresentation of fact had been made within the limited scope of statutory requirement in the wood-destroying insect infestation inspection report. Sears v. Gregory, 146 S.W.3d 610, 2004 Tenn. App. LEXIS 46 (Tenn. Ct. App. 2004), review or rehearing denied, — S.W.3d —, 2004 Tenn. LEXIS 806 (Tenn. Sept. 13, 2004).

62-21-203. Remedies.

Disputes which cannot be resolved between property owners, lenders, and/or trustees and persons issuing a wood destroying insect infestation inspection report may be resolved in a court of appropriate jurisdiction. Prior to filing a suit for compensatory damages, the issuer of the report shall be given an opportunity to inspect the premises and to offer within thirty (30) days of such inspection a proposal for repair and treatment of the premises. Notwithstanding any other provision of law or rule to the contrary, if the property owner files suit prior to offering the issuer of the report an opportunity to inspect and propose repairs and treatments as required by this section, the issuer of the report shall have, in addition to the thirty (30) days in which to answer the complaint as provided in Tenn. R. Civ. P. 12, another thirty (30) days from the service of the summons and complaint within which to inspect and propose repairs and treatments before being required to answer the complaint. No property owner or lender shall be required to engage in an alternate dispute resolution process before filing a suit for compensatory damages.

Acts 2000, ch. 668, § 9.

62-21-204. Effect of transfer of commercial pest control operation assets.

When the assets of a commercial pest control operation that issues wood destroying insect infestation inspection reports or performs other services relating to wood destroying organisms are sold or transferred or any servicing or financing rights are transferred, any contracts for wood destroying insect infestation inspections or other services that are a part of the assets or that are subject to such servicing or financing rights shall be enforceable against the persons or entities to which the assets, servicing or financing rights are transferred.

Acts 2000, ch. 668, § 10.

62-21-205. Penalty.

Any person issuing a wood destroying insect infestation inspection report who does not hold a valid commercial pest control charter and who is not licensed in the category of wood destroying organisms is in violation of this chapter and commits a Class A misdemeanor punishable only by a fine of no more than two thousand five hundred dollars ($2,500).

Acts 2000, ch. 668, § 11.

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

62-21-206. Rules and regulations.

The commissioner has the authority, pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to promulgate all necessary rules and regulations concerning this part.

Acts 2000, ch. 668, § 12.

62-21-114. Termite service contracts.

Chapter 22
Antique Dealers

62-22-101. Record keeping — Penalties.

Every person, firm or corporation in the business of purchasing and selling antiques shall maintain a permanent ledger in which each item purchased exceeding the value of fifty dollars ($50.00) in the course of business shall be listed.
Each antique dealer shall, at the time of making any purchase, enter upon the book a clear and accurate description of each item purchased exceeding the value of fifty dollars ($50.00), the date of purchase, the amount paid for the item, the name and residence address of the seller and, if the article bears a serial number, the serial number.
The book shall be carefully preserved without alteration and shall at all times be open to the inspection of the sheriff of the county and the chief of police or any police officer of the city or county.
Every person, firm or corporation, or their agents or employees, who violates this chapter commits a Class C misdemeanor.

Acts 1972, ch. 562, § 1; T.C.A., § 62-2201; Acts 1989, ch. 591, § 113.

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

Chapters 23, 24
[Reserved]

Chapter 25
Rental Location Agent Act of 1978

62-25-101. Short title.

This chapter shall be known and may be cited as the “Rental Location Agent Act of 1978.”

Acts 1978, ch. 663, § 1; T.C.A., § 62-2501.

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

62-25-102. Chapter definitions.

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

“Person” means any natural person, corporation, partnership, firm or association; and
“Rental location agent” means any person who engages in or is employed in the business of locating, providing assistance in locating or furnishing information concerning the location or availability of real property, including apartment housing, that may be leased or rented as a private dwelling, abode or place of residence and who receives or solicits a fee or other valuable consideration from a prospective tenant.

Acts 1978, ch. 663, § 2; T.C.A., § 62-2502.

62-25-103. License requirements — Rules and regulations — Enforcement of chapter — Penalties.

It is unlawful for any person to engage in the business or capacity of a rental location agent in this state without first having obtained a license from the real estate commission. A license held by a real estate broker or real estate salesperson employed by a licensed real estate broker is deemed to satisfy the license requirements of this chapter.
The application for the license shall be filed in the office of the real estate commission on the forms and accompanied by the fee that the commission may prescribe. All licenses shall expire two (2) years from the date the license was issued or renewed.
In order to effectuate the purposes of this chapter, the commission shall have the power to promulgate all necessary rules and regulations.
1. The real estate commission may apply to a court of competent jurisdiction for an order enjoining any act or practice that constitutes a violation of this chapter.
2. Upon a finding by the court that there are reasonable grounds to believe that a person is engaging in any such act or practice or is about to engage in any such act or practice, an injunction, a restraining order or any other appropriate order shall be granted by the court, regardless of the existence of another remedy.
3. Any proceeding for relief pursuant to this section shall be in accordance with the Tennessee rules of civil procedure.
1. Every rental location agent shall secure a bond executed to the state of Tennessee by a surety company duly authorized to do business in this state.
2. 1. The bond shall be in a form approved by the district attorney general and shall be for the use and benefit of any person who may be injured or aggrieved by the wrongful act or default of the rental location agent.
  2. Any person so injured or aggrieved may bring an action in the person's own name on the bond without assignment thereof.
3. 1. The bond required by subdivisions (e)(1) and (2) shall be in the amount of ten thousand dollars ($10,000); provided, that the bond may be in the amount of two thousand five hundred dollars ($2,500) for any rental location agent employed by a corporation, partnership, firm or association that is licensed under this chapter.
  2. The bond shall be in full force and effect at all times and places in which the licensee acts as a rental location agent in this state.
4. Each bond secured pursuant to this subsection (e) shall be recorded in the office of the clerk of the county in which the licensee maintains an office or is employed. Until the bond is so recorded, the holder of the license shall not exercise any of the rights and privileges conferred in the license.
5. Any licensed real estate broker or affiliate broker who has obtained a bond in accordance with chapter 13 of this title need not secure an additional bond under this chapter; however, § 62-13-306 [repealed] shall apply with respect to any wrongful act or default of a broker or affiliate broker occurring in the broker's or affiliate broker's capacity as a rental location agent.
A violation of this section is a Class C misdemeanor.

Acts 1978, ch. 663, § 3; 1981, ch. 298, § 1; T.C.A., § 62-2503; Acts 1982, ch. 864, § 17; 1989, ch. 591, § 113; 2005, ch. 252, § 3.

Compiler's Notes. Former § 62-13-306, referred to in subdivision (e)(5), was repealed by Acts 1984, ch. 810, § 7, which act enacted § 62-13-208 concerning the real estate education and recovery account.

Cross-References. Director of division of regulatory boards to promulgate rules establishing renewal dates of licenses, certificates or permits, § 56-1-302.

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

62-25-104. Contract or receipt requirement — Refund of fee.

Every rental location agent engaged in any of the activities described in § 62-25-102(2) shall give a prospective tenant a contract or receipt, and the contract or receipt shall include a recital that any amount in excess of ten dollars ($10.00) shall be repaid or refunded to the prospective tenant if the prospective tenant after bona fide effort does not obtain a rental through the listing furnished by the rental location agent.
Notwithstanding any other provision of this section, if the information concerning rentals furnished by the rental location agent is not current or accurate in regard to the type of rental desired, the full fee shall be repaid or refunded to the prospective tenant upon demand.
The contract or receipt furnished to the prospective tenant shall also conform to rules and regulations adopted by the real estate commission designed to effect disclosure of material information regarding the services to be provided to the prospective tenant.

Acts 1978, ch. 663, § 4; T.C.A., § 62-2504.

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

Violation of this section is a Class C misdemeanor, § 62-25-105.

62-25-105. Penalties.

It is unlawful for any person to knowingly refer a prospective tenant to:
1. A nonexistent address;
2. Property that is not for lease or rent;
3. Property that does not meet the specifications of the prospective tenant;
4. Property that leases or rents for a different price from that quoted by the rental location agent;
5. Property that has already been leased or rented; or
6. Property listed without the consent of the landlord.
It is unlawful for any person acting as a rental location agent to advertise in any manner without including the person's name and the fact that the person is a rental location agent in the advertisement.
It is unlawful for any person acting as a rental location agent to solicit a listing from a landlord after receipt of written notice from the landlord requesting that no further solicitations be made.
A violation of subsection (a), (b) or (c) or § 62-25-104 is a Class C misdemeanor.

Acts 1978, ch. 663, § 5; T.C.A., § 62-2505; Acts 1989, ch. 591, § 113.

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

62-25-106. Award for damages, costs and attorney fees.

In a civil action, any successful prospective tenant shall be entitled to an award for damages, court costs and reasonable attorney fees.

Acts 1978, ch. 663, § 6; T.C.A., § 62-2506.

62-25-107. Investigation by real estate commission — Suspension or revocation of license.

The real estate commission, upon its own motion or upon a signed complaint made by any person in writing, may investigate the activities of any rental location agent in this state or any person who acts in that capacity.
The commission may suspend, revoke or refuse to issue or renew a rental location agent's license on any of the following grounds:
1. Proof of financial irresponsibility or insolvency;
2. Making any materially false or misleading statement or omission in an application for a license;
3. Conviction of or a plea of nolo contendere to a felony or misdemeanor, if the commission finds that the conviction or plea renders the applicant or licensee insufficiently trustworthy to deal with the public. However, an action taken under this subdivision (b)(3) shall be subject to the applicable provisions of the Fresh Start Act that are compiled in chapter 76, part 1 of this title; or
4. Any violation of this chapter or of any rule duly adopted by the commission under this chapter.
The license of any real estate broker or affiliate broker who acts as a rental location agent may be suspended or revoked on any of the grounds stated in subsection (b).

Acts 1978, ch. 663, § 7; 1981, ch. 298, §§ 2, 3; T.C.A., § 62-2507; Acts 2018, ch. 745, § 13.

62-25-108. Service of process.

1. If a rental location agent cannot with reasonable diligence be found at the last known place of business as reflected by the real estate commission records, the real estate commission shall be an agent of the rental location agent upon whom any process, notice or demand may be served.
2. Service on the commission of any process, notice or demand shall be made in the same manner provided for service on the secretary of state pursuant to § 20-2-205.
The commission shall keep a record of all processes, notices and demands served upon it under this section and shall record the time of the service and its action with reference to the service.
Nothing in this section limits or affects the right to serve any process, notice or demand required or permitted by law to be served upon a rental location agent in any other manner now or hereafter permitted by law or by applicable rules of procedure.

Acts 1978, ch. 663, § 8; T.C.A., § 62-2508.

Chapter 26
Private Investigators

Part 1
[Reserved]

Part 2
Private Investigators Licensing and Regulatory Act

62-26-201. Short title.

This part shall be known and may be cited as the “Private Investigators Licensing and Regulatory Act.”

Acts 1990, ch. 780, § 2.

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

Law Reviews.

Selected Tennessee Legislation of 1983 (N. L. Resener, J. A. Whitson, K. J. Miller), 50 Tenn. L. Rev. 785 (1983).

62-26-202. Part definitions.

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

“Branch manager” means the individual who is immediately responsible for the operation of a branch office;
“Branch office” means any office of an investigations company within this state other than its principal place of business within this state;
“Commission” means the private investigation and polygraph commission;
“Commissioner” means the commissioner of commerce and insurance or the commissioner's designee;
“Identification card” means a pocket card issued by the commissioner evidencing that the holder has met the qualifications required by this part to perform the duties of a private investigator in this state;
“Investigations company” means any person who engages in the business or accepts employment to obtain or furnish information with reference to:
1. Crime or wrongs done or threatened against the United States or any state or territory of the United States;
2. The identity, habits, conduct, business, occupation, honesty, integrity, credibility, knowledge, trustworthiness, efficiency, loyalty, activity, movement, whereabouts, affiliations, associations, transactions, acts, reputations or character of any person;
3. The location, disposition or recovery of lost or stolen property;
4. The cause or responsibility for fires, libels, losses, accidents, damages or injuries to persons or to property; or
5. The securing of evidence to be used before any court, board, commission, officer or investigating committee;
“Licensee” means any investigations company and private investigator licensed in accordance with this part;
“Person” means any individual, firm, association, company, partnership, corporation, nonprofit organization, institution or similar entity;
“Principal corporate officer” means the chief executive officer, president, vice president, treasurer, secretary or comptroller, as well as any other responsible officer or executive employee who performs functions for the corporation corresponding to those performed by the chief executive officer, president, vice president, treasurer, secretary or comptroller;
“Private investigator” means any person who performs one (1) or more services described in subdivision (6); and
“Qualifying agent” means a principal corporate officer meeting the qualifications set forth in this part for operating an investigations company.

Acts 1990, ch. 780, § 3; 1991, ch. 457, § 1; 1993, ch. 511, §§ 1, 2; 1999, ch. 253, §§ 1, 4.

Attorney General Opinions. Acts 1999, ch. 253 did not create a conflict within the statute and was accurately codified, OAG 00-116, 2000 Tenn. AG LEXIS 118 (6/27/00).

Inapplicability of private investigators licensing act to photographic traffic monitoring systems. OAG 11-3, 2011 Tenn. AG LEXIS 3 (1/7/11).

Application of private investigators licensing act to digital forensics providers. OAG 12-84, 2012 Tenn. AG LEXIS 84 (9/10/12).

License for Providing Canine Detection Services to Public Schools and Private Entities. OAG 15-62, 2015 Tenn. AG LEXIS 62 (7/28/15).

62-26-203. [Reserved.]

Compiler's Notes. Former § 62-26-203 (Acts 1990, ch. 780, § 4), concerning applicability of this part, was repealed by Acts 1991, ch. 457, § 2.

62-26-204. License required.

Except as otherwise provided in this part, it is unlawful for any person to act as an investigations company or private investigator without first obtaining a license from the commission.
After expiration of a license issued under former part 1, holders of such licenses may obtain the equivalent license under this part by complying with the terms and conditions for renewal prescribed in this part.
Every private investigator licensed in accordance with this part shall maintain a place of business at an investigations company that has been duly licensed by the commission.
In the event an applicant for an investigations company license maintains more than one (1) place of business within the state, the applicant shall apply for and obtain a branch office license for each branch office, in addition to the company license for the principal place of business.
1. A private investigator may retire the license issued in accordance with this part by making a request for retirement of the license in writing and paying the appropriate fees set by the commission. The written request must be accompanied by the license certificate and pocket card. The retiree shall be responsible for notifying the commission of any change in address. Only licenses that are current and in good standing with the commission may be retired. No retired licensee may engage in any act defined in § 62-26-202.
2. A retired license shall not be reactivated unless the licensee shows proof of completion of continuing education requirements as provided in § 62-26-225 sufficient to meet a licensee's current requirements. Upon receipt of proof of the continuing education requirements and payment of appropriate fees set by the commission, a retired license shall automatically be changed from retired to active.

Acts 1990, ch. 780, § 5; 1991, ch. 457, § 3; 1993, ch. 511, §§ 4, 5; 2000, ch. 677, § 1.

Compiler's Notes. Part 1 of this chapter, referred to in this section, was repealed effective January 1, 1991 by Acts 1990, ch. 780, § 1.

Attorney General Opinions. Applicability of private investigators licensure requirements to death penalty mitigation experts, OAG 99-181, 1999 Tenn. AG LEXIS 216 (9/17/99).

An “attorney-at-law” is exempt from the private investigators licensure requirement even if that attorney maintains an active license to practice in a state other than Tennessee, OAG 03-097, 2003 Tenn. AG LEXIS 116 (8/13/03).

Inapplicability of private investigators licensing act to photographic traffic monitoring systems. OAG 11-3, 2011 Tenn. AG LEXIS 3 (1/7/11).

License for Providing Canine Detection Services to Public Schools and Private Entities. OAG 15-62, 2015 Tenn. AG LEXIS 62 (7/28/15).

NOTES TO DECISIONS

1. Expert Witness.

A person who performs any of the duties for a fire investigations company, but does not have a license, is not necessarily disqualified as an expert witness on fire progression. Doochin v. United States Fidelity & Guar. Co., 854 S.W.2d 109, 1993 Tenn. App. LEXIS 25 (Tenn. Ct. App. 1993).

62-26-205. Investigations company license — Application.

An application for an investigations company license shall be filed with the commission on the prescribed form. The application shall include:
1. The full name and business address of the applicant:
  1. If the applicant is a partnership, the name and address of each partner; or
  2. If the applicant is a corporation, the name and address of the qualifying agent;
2. The name under which the applicant intends to do business;
3. The address of the principal place of business and all branch offices of the applicant within this state;
4. As to each individual applicant, or, if the applicant is a partnership, as to each partner or, if the applicant is a corporation, as to the qualifying agent, the following information:
  1. Full name;
  2. Date and place of birth;
  3. All residences during the immediate past five (5) years;
  4. All employment or occupations engaged in during the immediate past five (5) years;
  5. Three (3) sets of classifiable fingerprints;
  6. Three (3) credit references from lending institutions or business firms with whom the subject has established a credit record; and
  7. A list of all convictions and pending charges of the commission of a felony or misdemeanor in any jurisdiction;
5. If the applicant is a corporation, the following information:
  1. The correct legal name of the corporation;
  2. The state and date of incorporation;
  3. The date the corporation qualified to do business in this state;
  4. The address of the corporate headquarters, if located outside of this state; and
  5. The names of two (2) principal corporate officers other than the qualifying agent, and the business address, residence address and the office held by each in the corporation; and
6. Other information that the commission may reasonably require.
The application shall be subscribed and sworn to:
1. By the applicant, if the applicant is an individual;
2. By each partner, if the applicant is a partnership; or
3. By the qualifying agent, if the applicant is a corporation.
Any individual signing the application must be at least twenty-one (21) years of age.

Acts 1990, ch. 780, § 6; 1991, ch. 457, § 4.

62-26-206. Investigations company license — Applicants — Requirements.

On and after July 1, 2009, each individual applicant, or, if the applicant is a partnership, each partner, or, if the applicant is a corporation, the qualifying agent, must:
1. Be at least twenty-one (21) years of age;
2. Be a citizen of the United States or a resident alien;
3. Not have been declared by any court of competent jurisdiction incompetent by reason of mental defect or disease unless a court of competent jurisdiction has since declared the applicant competent;
4. Not be suffering from habitual drunkenness or narcotics addiction or dependence;
5. Be of good moral character;
6. Possess or employ at least one (1) person who possesses at least two thousand (2,000) hours of compensated, verifiable, investigative experience satisfactory to the commission or has one (1) year of applicable, related experience or education in a related area of study approved by the commission; and
7. Pass an examination to be administered at least twice annually by the commissioner, designed to measure knowledge and competence in the investigations company business.
Subdivision (a)(6) shall not apply to any person who has been issued an investigations company license prior to August 17, 2009, and such a license may continue to be renewed in accordance with this part or any rules and regulations promulgated by the commission in effect prior to July 1, 2009.

Acts 1990, ch. 780, § 7; 1991, ch. 457, § 5; 1993, ch. 511, § 6; 2009, ch. 595, §§ 1-3.

62-26-207. Private investigator license — Applicants — Requirements — Apprentice status.

Each applicant for a private investigator license must:
1. Be at least twenty-one (21) years of age;
2. Be a citizen of the United States or a resident alien;
3. Not have been declared by any court of competent jurisdiction incompetent by reason of mental defect or disease unless a court of competent jurisdiction has since declared the applicant competent;
4. Not be suffering from habitual drunkenness or narcotics addiction or dependence;
5. Be of good moral character; and
6. Pass an examination to be administered at least twice annually by the commission, designed to measure knowledge and competence in the investigations field.
The commission shall grant apprentice status, by correspondence, to an applicant for an individual investigator's license; provided, that the applicant is employed by an investigative company. The apprentice is enjoined from working without the direct supervision of a licensed investigator until such time as the apprentice's license application is fully processed.
An apprenticeship may not commence until the sponsoring company has submitted a notice of intent to sponsor. The notice shall be by written endorsement to the application of the apprentice.
An apprentice status shall be limited to six (6) months, and a person shall be able to apply for an apprentice status only once.
Apprenticeship is intended to serve as a learning process. Sponsors shall assume a training status by providing direction and control of the apprentice. No sponsor may sponsor more than six (6) apprentices at one time. The sponsor shall certify completion of training or the termination of the apprentice within fifteen (15) days of such action. The report shall be in a form that may be required by the commission, but shall include as a minimum the following:
1. The inclusive dates of the apprenticeship;
2. A narrative explaining the primary duties, types of experiences gained and the scope of the training received; and
3. An evaluation of the performance of the apprentice and a recommendation regarding future licensing.

Acts 1990, ch. 780, § 8; 1991, ch. 457, §§ 6, 7; 1993, ch. 511, §§ 7, 25.

62-26-208. Commission — Investigation of applications — Issuance of license — Notification of denial — Identification card.

1. Upon receipt of an application for a license, accompanied by a nonrefundable, nonproratable application fee as set by the commission in accordance with subdivision (a)(2), the commission shall:
  1. Conduct an investigation to determine whether the statements made in the application are true;
  2. Request that the Tennessee bureau of investigation compare the fingerprints submitted with the application to fingerprints filed with the Tennessee bureau of investigation. On subsequent applications, the Tennessee bureau of investigation shall, at the request of the commission, review its criminal history files, based upon the name, date of birth, sex and race and social security number of an applicant whose fingerprints have previously been submitted to the bureau, for any new information since the date of the fingerprint comparison and shall furnish any information thereby derived to the commission; and
  3. Submit the fingerprints to the federal bureau of investigation for a search of its files to determine whether the individual fingerprinted has any recorded convictions.
2. The nonrefundable, nonproratable application fees shall be set by the commission according to the following schedule:
  Private investigator license $
  
  Company license
  
  Number of private investigators
  
  Employed by company
  
  Sole practitioner private investigator $
  
  Two to five (2-5) employees $
  
  Over five (5) employees $
The commission shall issue a license, in a form that the commission prescribes, to qualified applicants upon receipt of a nonrefundable, nonproratable fee as set by the commission in accordance with the following schedule:
Private investigator license $

Company license

Number of private investigators

Employed by company

Sole practitioner private investigator $

Two to five (2-5) employees $

Over five (5) employees $
If an application for a license is denied, the commission shall notify the applicant in writing and shall set forth the grounds for denial. If the grounds are subject to correction by the applicant, the notice of denial shall so state and specify a reasonable period of time within which the applicant must make the required correction.
The commission shall issue with every private investigator license an identification card that shall contain at least the following information:
1. Name;
2. Photograph;
3. Physical characteristics;
4. Private investigator license number; and
5. Expiration date of license.
The identification card shall be issued in a wallet-sized card and shall be permanently laminated.
The identification card shall be carried on the person of the licensee when engaged in the activities of the licensee.
An application shall be accompanied by a notarized statement sworn to by the applicant as to the identity and number of private investigators employed by or affiliated with the investigations company. Making a false statement shall be punishable by a civil penalty not to exceed one thousand dollars ($1,000) and assessment of the maximum application fee.

Acts 1990, ch. 780, § 9; 1991, ch. 457, §§ 8-11; 1993, ch. 511, §§ 8-10.

62-26-209. Posting of license.

Every license issued under this part shall be posted conspicuously in the licensee's principal place of business.

Acts 1990, ch. 780, § 10; 1993, ch. 511, § 11.

62-26-210. License not transferable or assignable.

No license issued under this part shall be transferable or assignable.

Acts 1990, ch. 780, § 11.

62-26-211. Renewal — Validity.

A license or renewal of a license issued under this part shall be valid for a period of two (2) years from the date of issuance. The commission shall provide each licensee with a renewal application form sixty (60) days prior to the expiration of the license.
1. The fee for the timely renewal of a license shall be as set by the commission in accordance with the following schedule:
  Private investigator license $
  
  Company license
  
  Number of private investigators
  
  Employed by company
  
  Sole practitioner private investigator $
  
  Two to five (2-5) employees $
  
  Over five (5) employees $
2. A penalty as prescribed by the commission will be assessed on any renewal application postmarked after the expiration date of the license.
No renewal application will be accepted more than thirty (30) days after the expiration date of the license.
A renewal application shall be accompanied by a notarized statement sworn to by the applicant as to the identity and number of private investigators employed by or affiliated with the investigations company. Making a false statement shall be punishable by a civil penalty not to exceed one thousand dollars ($1,000) and assessment of the maximum renewal fee.

Acts 1990, ch. 780, § 12; 1991, ch. 457, §§ 12-14; 1993, ch. 511, §§ 12, 13.

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

62-26-212. Termination of duties — Notice — Substitute agent.

If the qualifying agent of a licensee ceases to perform that agent's duties on a regular basis, the licensee shall:
1. Within thirty (30) days, notify the commission by certified or registered mail; and
2. Within three (3) months, obtain a substitute qualifying agent.
The commission may, in its discretion, extend the period for obtaining a substitute qualifying agent for a reasonable time.

Acts 1990, ch. 780, § 13; 1991, ch. 457, § 15.

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

62-26-213. Notice to the commission — When required.

A licensee shall notify the commission in writing within thirty (30) days of:

Any change in the qualifying agent or principal corporate officers identified in its application for license;
Any material change in the information previously furnished or required to be furnished to the commission;
Any occurrence that could reasonably be expected to affect the licensee's right to a license under this part, including, but not limited to, any criminal charges placed against any licensee by any person. An investigations company must also, within thirty (30) days, notify the commission of any criminal charges placed against any investigator employed by or affiliated with the company; or
Any judgment received by any person for punitive damages against any licensee.

Acts 1990, ch. 780, § 14; 1991, ch. 457, § 16; 1993, ch. 511, §§ 14, 15.

62-26-214. Investigations company — Change in ownership.

If the ownership of an investigations company changes, the new owner, if not already a licensee, may not operate that company 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. If the application is submitted, the new owner may continue to operate the company until the application has been finally determined by the commission.
For good cause, the commission may extend the period for submitting an application pursuant to subsection (a) for a reasonable time.

Acts 1990, ch. 780, § 15; 1991, ch. 457, § 17.

62-26-215. [Reserved.]

62-26-217. Revocation of license.

The commission may suspend, revoke or refuse to issue or renew any license under this part upon finding that the holder 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 a license or renewal;
4. Been convicted by a court of competent jurisdiction of a felony or a misdemeanor. However, an action taken under this subdivision (a)(4) shall be subject to the applicable provisions of the Fresh Start Act that are compiled in chapter 76, part 1 of this title; or
5. Committed any act that would have been cause for refusal to issue the license or registration card had it existed and been known to the commission at the time of issuance.
In addition to or in lieu of any other lawful disciplinary action under this section, the commission may assess a civil penalty not exceeding two thousand dollars ($2,000).
A license shall be subject to expiration and renewal during any period in which the license is suspended.

Acts 1990, ch. 780, § 18; 1991, ch. 457, § 20; 2018, ch. 745, § 14.

62-26-218. Municipality or county — Licensing requirement prohibited — Business tax permitted.

No licensee or registrant shall be required to obtain any authorization, permit or license from or pay any other fee or post a bond in any municipality, county or other political subdivision of this state to engage in any business or activity regulated under this part.
Notwithstanding subsection (a), a municipality, county or other political subdivision of this state may impose a bona fide business tax.

Acts 1990, ch. 780, § 19.

62-26-219. Reciprocal agreements.

The commission may negotiate and enter into reciprocal agreements with appropriate officials in other states to permit licensed investigations companies and private investigators who meet or exceed the qualifications established in this part to operate across state lines under mutually acceptable terms.

Acts 1990, ch. 780, § 20; 1991, ch. 457, § 21.

62-26-220. Distribution of copies of this part.

The commission shall provide a copy of this part and any rules promulgated under this part to:

Each licensee every two (2) years at no charge; and
Any other person, upon request, for a reasonable fee that the commission may fix.

Acts 1990, ch. 780, § 21; 1991, ch. 457, § 22.

62-26-221. Violations.

No individual licensed as an investigations company or a private investigator in this state shall:

In order to obtain employment, knowingly make a material misrepresentation as to the person's ability to perform the investigation required by a potential client;
Make unsubstantiated monetary charges to a client for services not rendered or transportation not utilized;
Knowingly make a false report to a client in relation to the investigation performed for the client;
Continue an investigation for a client when it becomes obvious to the investigator that a successful completion of an investigation is unlikely without first so advising the client and obtaining the client's approval for continuation of the investigation; or
Reveal information obtained for a client during an investigation to another individual, except as required by law.

Acts 1990, ch. 780, § 22.

62-26-222. Hearing and review of contested cases — Governing provisions.

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 1990, ch. 780, § 23.

62-26-223. Exceptions to applicability of part.

This part does not apply to a public accountant and a certified public accountant, or the agent of either, performing duties relating to public accountancy.
This part does not apply to:
1. A governmental officer or employee performing official duties;
2. A person engaged exclusively in the business of obtaining and furnishing information regarding the financial rating or standing and credit of persons;
3. 1. 1. An attorney at law in good standing and licensed to practice law;
    2. An employee of a single attorney or single law firm who is acting within the employee's scope of employment for the attorney or law firm; or
    3. A consultant when the person is retained by an attorney or appointed by a court to make tests, conduct experiments, draw conclusions, render opinions or make diagnoses, where those services require the use of training or experience in a technical, scientific or social science field;
  2. These exceptions do not apply to any other person or company that otherwise provides or offers to provide investigative services as described in § 62-26-202;
4. An insurance company, licensed insurance agent or staff or independent adjuster performing investigative duties in connection with insurance business transacted;
5. A private business employee conducting investigations relating to the internal affairs of the business;
6. Any individual conducting investigative activities in connection with the repossession of a vehicle;
7. An individual conducting undercover investigations meeting the criteria set forth in § 62-26-229;
8. Any person duly licensed by this state in another profession while the person is engaged in activities within the scope of that profession;
9. Any student from any college or university who is working as an intern in a public defender's or district attorney's program in this state who is directly supervised by an attorney at law in the public defender's or district attorney's office and who is not compensated for the services; or
10. A person engaged exclusively in the business of obtaining and furnishing information regarding a candidate for employment to the candidate's potential employer.
An insurance adjuster claiming an exemption to this part under subdivision (b)(4) must be an employee of an insurance company duly licensed to do business in this state, a licensed insurance agent in this state or a staff employee of the agent, or an independent adjuster performing investigative activity limited to matters directly pertaining to an insurance transaction. The employee of the insurance company, the insurance agent or employee of the agent or the independent adjuster or employee of the adjuster must be acting within the scope of that person's employment with respect to the investigative activity.

Acts 1991, ch. 457, §§ 28, 29; 1992, ch. 879, §§ 1, 2; 1993, ch. 511, §§ 3, 16, 17; 1995, ch. 234, § 1; 2000, ch. 812, §§ 1, 2; 2004, ch. 539, §§ 1, 2; 2004, ch. 733, § 1; 2017, ch. 391, § 1.

Attorney General Opinions. “Insurance adjuster” and “independent adjuster,” OAG 94-76, 1994 Tenn. AG LEXIS 79 (7/8/94).

Applicability of private investigators licensure requirements to death penalty mitigation experts, OAG 99-181, 1999 Tenn. AG LEXIS 216 (9/17/99).

Death penalty mitigation experts are generally exempt from the licensure requirements imposed on private investigators and investigations companies under T.C.A. § 62-26-223(b); however, if such an expert engages in other private investigations work that is not specifically exempted, the expert must be licensed, OAG 00-175, 2000 Tenn. AG LEXIS 178 (11/20/00).

Inapplicability of private investigators licensing act to photographic traffic monitoring systems. OAG 11-3, 2011 Tenn. AG LEXIS 3 (1/7/11).

Application of private investigators licensing act to digital forensics providers. OAG 12-84, 2012 Tenn. AG LEXIS 84 (9/10/12).

License for Providing Canine Detection Services to Public Schools and Private Entities. OAG 15-62, 2015 Tenn. AG LEXIS 62 (7/28/15).

62-26-224. Investigative arm of commission — Access to records — Subpoenas.

The division of investigation is designated the official investigative arm of the commission.
Licensees are required to provide the investigative staff all records kept within the normal course of business, as they directly pertain to the exact nature of the complaint under investigation.
The commissioner is granted authority to subpoena to deposition those persons or documents necessary to any investigation undertaken under this part; provided, that all other means, including, but not limited to, notification by return receipt registered United States mail, have been exhausted and have not produced the desired results.

Acts 1993, ch. 511, § 19.

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

62-26-225. Continuing professional education.

A private investigator license holder seeking biennial renewal shall, as a prerequisite for renewal, complete twelve (12) hours of continuing professional education acceptable to the commission during the two-year period prior to renewal.
The commission shall make every effort to ensure that at least one (1) seminar per year will be held in each grand division of the state and that each seminar provides an opportunity to fulfill the continuing professional education requirements of this section. The commission is encouraged to require that at least one (1) hour per year of continuing professional education be devoted to ethics.
The commission shall promulgate rules that are necessary to carry out this section.

Acts 1993, ch. 511, § 20; 2004, ch. 555, § 1.

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

62-26-226. Training.

Any person or company offering private investigator training for a fee must first be certified by the commission. The commission shall ensure that the instructors employed by the training company possess both the experience and academic credentials to ensure that the curriculum and instruction of the training company will be beneficial to those seeking to enter the profession. In order to qualify as a certified trainer/instructor, the trainer:
1. Must be at least twenty-one (21) years of age;
2. Has at least three (3) years of supervisory experience satisfactory to the commission with an investigations company or proprietary entity, or with any federal, United States military, state, county or municipal law enforcement agency; and
3. Is personally qualified to conduct the training required by this chapter.
A certified trainer may, in the trainer's discretion, instruct personally or use a combination of personal instruction, audio and visual training aids.
To assist in the implementation of the training program, the certified trainer may use as an assistant trainer any person who:
1. Is at least twenty-one (21) years of age; and
2. Has at least one (1) year of experience with an investigations company or any United States military, state, county or municipal law enforcement agency.
A certified trainer may be an employee of a private investigative or proprietary agency. If the applicant is not so employed, the applicant must be licensed as a company under this part.
The certified trainer shall certify to the successful completion of the training and shall submit the certification to the commission.
The training program, fees and requirements shall be established by rules promulgated by the commission.

Acts 1993, ch. 511, § 21.

62-26-227. Prosecutions.

No action taken under this part shall preclude prosecution under § 39-16-302.

Acts 1993, ch. 511, § 22.

62-26-228. Penalties.

Any person violating this part or any rule promulgated under this part commits a Class A misdemeanor.

Acts 1990, ch. 780, § 24; 1989, ch. 591, § 111; T.C.A. § 62-26-230.

Code Commission Notes.

This section was renumbered from § 62-26-230 to § 62-26-228 by authority of the Code Commission in 2019.

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

62-26-229. Exemption from licensing requirement.

An individual exempted by § 62-26-223(b)(7) from the licensing requirements for private investigators must be:
1. Employed by and under the control of a licensed private investigation company;
2. Employed by a private business entity, the internal affairs of which are the subject of investigation by the individual; and
3. Engaged only in investigating the internal affairs of the private business entity by which they are employed.
A private investigation company employing an individual exempted by § 62-26-223(b)(7) shall be held responsible for the actions of that individual in the individual's capacity as an undercover investigator as if that individual was a licensed private investigator.

Acts 1995, ch. 234, § 2; T.C.A. § 62-26-231.

Code Commission Notes.

This section was renumbered from § 62-26-231 to § 62-26-229 by authority of the Code Commission in 2019.

Part 3
Private Investigation and Polygraph Commission

62-26-301. Creation — Members — Terms — Vacancies.

There is created the Tennessee private investigation and polygraph commission, referred to as the “commission” in this part, which shall consist of nine (9) members appointed by the governor, each of whom shall be a resident of this state and shall possess good moral character.
Seven (7) of the members shall each have been principally engaged as private investigators in this state for at least five (5) years prior to the date of their appointment and shall be of recognized business standing.
1. Of the remaining two (2) members of the commission, one (1) member shall be a polygraph examiner licensed pursuant to chapter 27 of this title and one (1) member shall be a person who is not engaged in or conducting the business of or acting in the capacity of a private investigator or polygraph examiner, and who has no commercial or professional association with the private investigation or polygraph examiner professions or industries, either directly or indirectly.
2. Initially, the governor shall appoint one (1) such member for a term of three (3) years. Thereafter, the members shall be appointed for terms as provided in subsection (d).
1. Notwithstanding § 3-6-304 or any other law to the contrary, and in addition to all other requirements for membership on the commission:
  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 commission shall terminate all employment and business association as a lobbyist with any entity whose business endeavors or professional activities are regulated by the commission, prior to serving as a member of the commission. This subdivision (d)(1)(A) shall apply to all persons appointed or otherwise named to the commission after July 1, 2010;
  2. No person who is a member of the commission 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 commission during such person's period of service as a member of the commission. This subdivision (d)(1)(B) shall apply to all persons appointed or otherwise named to the commission after July 1, 2010, and to all persons serving on the commission on such date who are not registered as lobbyists; and
  3. No person who serves as a member of the commission shall be employed as a lobbyist by any entity whose business endeavors or professional activities are regulated by the commission for one (1) year following the date such person's service on the commission ends. This subdivision (d)(1)(C) shall apply to persons serving on the commission as of July 1, 2010, and to persons appointed to the commission 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.
1. All members of the commission shall be appointed for a term of five (5) years and until their successors are appointed and qualified by subscribing to the constitutional oath of office, which shall be filed with the secretary of state.
2. Any vacancy occurring on the commission shall be filled by the governor for the unexpired term.
3. No members shall be appointed to succeed themselves for more than one (1) full term.
4. The governor may remove any member of the commission for misconduct, incompetency or willful neglect of duty.
5. At least two (2) members, but no more than three (3), shall be appointed from each grand division of the state.
6. In making appointments to the commission, the governor shall strive to ensure that at least one (1) person serving on the commission is sixty (60) years of age or older and that at least one (1) person serving on the commission is a member of a racial minority.

Acts 1991, ch. 457, § 23; 1993, ch. 511, §§ 23, 24; 1999, ch. 253, §§ 2, 3, 4; 2010, ch. 1012, §§ 3, 4.

Compiler's Notes. The private investigation and polygraph commission, created by this section, terminates June 30, 2024. See §§ 4-29-112, 4-29-245.

Acts 1999, ch. 252, § 8(a) provided that all staff, staff positions, offices, equipment, supplies, property, funds and other resources of the board of polygraph examiners shall be transferred to the private investigation and polygraph commission.

Acts 2010, ch. 1012, § 5 provided that the provision of the act prohibiting a member who is not engaged in the practice of private investigating or polygraph examining, and who has no direct or indirect affiliation with the private investigation or polygraph examiner professions or industries from serving on the commission shall apply to all member appointments made to the commission after July 1, 2010.

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

62-26-302. Immunity from civil liability — Defense of litigation.

The commission is declared to be a judicial body and the members or its employees are granted immunity from any civil liability when acting in good faith in the performance of their duties under this chapter.
Should litigation be filed against members of the commission arising from the performance of their duties under this chapter, the members shall be defended by the attorney general and reporter.

Acts 1991, ch. 457, § 24.

62-26-303. Officers — Bylaws, rules and regulations — Certificates of appointment.

Upon qualification of the members appointed, the commission shall organize itself by selecting from its members a chair and a vice chair and shall have the power to do all things necessary and proper for carrying out this chapter not inconsistent with the laws of this state. The commission may promulgate and adopt bylaws, rules and regulations that are reasonably necessary for that purpose. The promulgation and adoption of rules and regulations authorized by this section shall be pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
The commission's rules and regulations may incorporate and establish canons of ethics and minimum acceptable standards of practice for licensees.
Each member of the commission shall receive a certificate of appointment from the governor before entering upon the discharge of the duties of office.
The commission or any committee of the commission shall be entitled to the services of the attorney general and reporter or the legal department of this state in connection with the affairs of the commission.

Acts 1991, ch. 457, § 25.

62-26-304. Meetings — Notice — Quorum.

The commission may hold meetings that it may deem necessary for the purpose of transacting business that may properly come before it. All members of the commission shall be duly notified of the time and place of each meeting.
A majority of the commission constitutes a quorum at any meeting of the commission.

Acts 1991, ch. 457, § 26.

62-26-305. Executive director.

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

Acts 1991, ch. 457, § 27.

62-26-216. [Reserved.]

Chapter 27
Polygraph Examiners Act

62-27-101. Short title.

This chapter shall be known and may be cited as the “Polygraph Examiners Act.”

Acts 1978, ch. 900, §§ 1, 2; T.C.A., § 62-2701; Acts 1982, ch. 720, § 3.

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

Private investigation and polygraph commission, title 62, ch. 26, pt. 3.

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

Law Reviews.

Selected Tennessee Legislation of 1986, 54 Tenn. L. Rev. 457 (1987).

62-27-102. Chapter definitions.

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

“Commission” means the private investigation and polygraph commission, created by § 62-26-301;
“Intern sponsor” means any qualified licensed Tennessee examiner who is approved by the commission for the purpose of supervising and furthering the education of the intern during the commission approved training program;
“Internship” means the study of polygraph techniques and of the administration of polygraph techniques by a trainee, referred to as an “intern” in this chapter, under the personal supervision and control of a local licensed polygraph examiner in accordance with a course of study prescribed by the commission at the commencement of the internship;
“Person” means any natural person, firm, association, copartnership or corporation; and
“Polygraph examiner” means any person who purports to be able to detect deception or verify truth of statements through instrumentation or by means of a mechanical device.

Acts 1978, ch. 900, § 3; impl. am. Acts 1981, ch. 489, § 1; T.C.A., § 62-2702; Acts 1982, ch. 720, § 4; 1999, ch. 252, §§ 1, 2, 4, 5, 6.

62-27-103. Minimum requirements for polygraph machines.

Any polygraph machine used to test or question individuals for the purpose of detecting deception or verifying truth of statements shall record visually, permanently and simultaneously:
1. A person's cardiovascular pattern;
2. A person's respiratory or breathing pattern; and
3. Electrodermal or galvanic skin response pattern as minimum standards of instrumentation.
Patterns of other physiological changes in addition to subdivisions (a)(1) and (2) may also be recorded.
The use of any other instrument or device to detect deception or to verify truth of statements that does not meet these minimum instrumentation requirements is prohibited except that another instrument or device may be used by law enforcement officers in the course of their full-time employment with a federal, state or local law enforcement agency who are certified to operate the instrument or device.

Acts 1978, ch. 900, § 4; T.C.A., § 62-2703; Acts 2000, ch. 821, § 1.

62-27-104. [Reserved.]

1. The commission shall issue rules and regulations necessary for the administration and enforcement of this chapter and shall prescribe forms to be used in connection with it.
2. The commission shall prescribe rules requiring continuing education as a prerequisite for renewal of licenses as polygraph examiners in accordance with § 62-27-129.
The commission shall have the right and power to contract for the services of any licensed qualified polygraph examiner to assist with the administration and analysis of polygraph examinations.

Acts 1978, ch. 900, § 6; 1979, ch. 133, § 2; 1980, ch. 705, § 1; 1981, ch. 489, § 4; T.C.A., § 62-2705; Acts 1982, ch. 720, §§ 6-8; 1988, ch. 805, § 2; 1998, ch. 777, § 1; 1999, ch. 252, §§ 4, 5; 2003, ch. 206, § 5.

62-27-106. License requirement.

It is unlawful for any person, including a city, county or state employee, to administer polygraph examinations or to represent to be a polygraph examiner without holding a valid polygraph examiner's license issued by the commission.
It is unlawful for any person, other than a law enforcement officer acting in accordance with § 62-27-103(c), to operate any instrument or device to detect deception or verify the truth of statements that does not meet the minimum instrumentation requirements set forth in § 62-27-103(a) or to use any title or make any representation tending to indicate that the person is qualified to detect deception or verify truth of statements through the use of the instrument or device.
A violation of this section is a Class B misdemeanor.

Acts 1978, ch. 900, § 7; 1981, ch. 489, §§ 5, 7; T.C.A., § 62-2706; Acts 1982, ch. 720, § 9; 1989, ch. 591, § 112; 1999, ch. 252, § 4; 2000, ch. 821, § 2.

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

62-27-107. Qualifications for license.

In order to be eligible for a license as a polygraph examiner, an applicant must demonstrate to the satisfaction of the commission that the applicant:
1. Is at least twenty-one (21) years of age;
2. Is a citizen of the United States;
3. Is of good moral character;
4. Has not been convicted of any felony or misdemeanor involving moral turpitude;
5. Holds a baccalaureate degree from a college or university accredited by a recognized regional or local accreditation committee or, in lieu of a baccalaureate degree, has at least two (2) years of college credits and has, for at least five (5) years immediately preceding the date of application, actively engaged in substantial criminal, counterintelligence or private investigative work;
6. Has graduated from a school of polygraph approved by the American Polygraph Association or the commission;
7. Has passed a licensing examination conducted by or under the supervision of the commission; and
8. Has satisfactorily completed an internship of six (6) months or, in lieu of the completion of the internship, has provided satisfactory evidence the applicant is currently actively engaged in the polygraph examinations business in another state that may or may not have professional licensing requirements and has been principally engaged in the business of conducting polygraph examinations in that state for at least five (5) consecutive years. An applicant pursuant to this subdivision (a)(8) shall also submit evidence of a current business license, tax records and a minimum of two (2) letters of recommendation from either former clients or government agency officials.
Each polygraph examining company organized for the purpose of employing two (2) or more polygraph examiners on a full-time salaried basis shall make application to the commission in writing under oath on forms prescribed by the commission. The application shall be accompanied by the required fee, which is not refundable. The application shall contain information that the commission deems necessary, including, but not limited to, the names of the corporate officers, the principal place of business, the business telephone number at the principal place of business and the specific name of the person to be contacted. Each company shall be required to certify that it employs only qualified licensed polygraph examiners who meet the qualifications required by this chapter.

Acts 1978, ch. 900, § 8; T.C.A., § 62-2707; Acts 1982, ch. 720, § 10; 1986, ch. 739, § 2; 1999, ch. 252, §§ 4, 5, 6; 2007, ch. 249, § 1.

62-27-108. License applications.

An application for original license shall be made to the commission in writing under oath on forms prescribed by the commission and shall be accompanied by the required fee, which is not refundable.
The application shall contain information that the commission deems necessary to enable it to judge the qualifications of the applicant.
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 1978, ch. 900, § 10; T.C.A., § 62-2709; Acts 1982, ch. 720, § 11; 1999, ch. 252, § 4; 2018, ch. 745, § 15.

62-27-109. Reciprocity — Service of process on nonresidents.

1. Each nonresident applicant for an original license or a renewal license shall file with the commission an irrevocable consent that actions against the applicant may be filed in any appropriate court of any county or municipality of this state in which the plaintiff resides or in which some part of the transaction occurred out of which the alleged cause of action arose and that process on any such action may be served on the applicant by leaving two (2) copies of the process with the commission. The consent shall stipulate and agree that the service of process shall be taken and held to be valid and binding for all purposes.
2. The commission shall send forthwith one (1) copy of the process to the applicant at the address shown on the records of the commission by registered or certified mail.
A nonresident of this state who is a licensed polygraph examiner under the laws of another state or territory of the United States may apply for a license as a polygraph examiner in this state by submitting an application to the commission as provided in § 62-27-108. The commission may issue a license to the nonresident applicant without examination if the commission determines that the applicant has substantially met the qualifications for a license in this state. The commission may, in its discretion, refuse to issue a polygraph examiner's license to an applicant who is not a resident of this state.

Acts 1978, ch. 900, § 11; T.C.A., § 62-2710; Acts 1982, ch. 720, § 12; 1999, ch. 252, §§ 4, 5, 6.

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

62-27-110. [Reserved.]

1. Upon approval by the commission, an internship permit shall be issued to an intern applicant who has completed a recognized polygraph school; provided, that the intern applicant applies for the license and pays the required fee.
2. The application shall contain information that may be required by the commission.
An internship permit shall be valid for the term of twelve (12) months from the date of issue. The permit may be extended or renewed for any term not to exceed six (6) months upon good cause shown to the commission. The intern may apply for an examiner's license after completion of six (6) months from the date of issue of the internship; provided, however, that all other requirements of this chapter are met.
An intern shall not be entitled to hold an internship permit after the expiration date of the original twelve (12) month period and six (6) month extension if an extension is granted by the commission until twelve (12) months after the date of expiration of the last internship license held by the intern.
All intern applicants are required to take and pass an intern examination as prescribed by the commission prior to commencement of the internship unless the applicant has completed a polygraph school or held a polygraph examiner license in this state in the immediate preceding twenty-four month period.
No intern may administer an actual polygraph examination without an intern permit.
All internship programs shall be subject to inspection and review by the commission at the times and in the manner that it prescribes. The commission may require that interns administer certain numbers and types of polygraph examinations during their period of internship.
1. In order to be eligible to serve as a sponsor for an intern polygraph examiner, a person must have held a valid Tennessee polygraph examiner's license for at least the immediately preceding two (2) years.
2. No licensed polygraph examiner may sponsor more than two (2) interns at any one time. Each sponsor shall submit to the commission on the prescribed forms progress reports on the sponsor's intern or interns every sixty (60) days.

Acts 1978, ch. 900, § 13; T.C.A., § 62-2712; Acts 1982, ch. 720, §§ 14-16; 1999, ch. 252, §§ 4-6; 2003, ch. 206, §§ 6-9.

62-27-112. Fees — Rules and regulations.

The commission shall issue rules and regulations to prescribe all fees necessary to administer this chapter.
The fees required by this chapter may be paid by the governmental agency employing the examiner.

Acts 1978, ch. 900, § 14; 1980, ch. 705, § 6; 1981, ch. 489, § 8; T.C.A., § 62-2713; Acts 1986, ch. 739, § 4; 1988, ch. 805, § 1; 1989, ch. 523, § 146; 1999, ch. 252, § 4.

62-27-113. Display of license.

A license or duplicate license, intern permit or duplicate intern permit must be prominently displayed at the place of business of the polygraph examiner or at the place of internship, or in the case of a company license, at the principal business location.

Acts 1978, ch. 900, § 15; T.C.A., § 62-2714; Acts 1986, ch. 739, § 5; 1999, ch. 252, § 4; 2003, ch. 206, § 10.

62-27-114. Notice of change of business address.

Any polygraph examiner or company licensed under this chapter shall notify the commission in writing within thirty (30) days of any change of business address.

Acts 1978, ch. 900, § 16; T.C.A., § 62-2715; Acts 1982, ch. 720, § 17; 1986, ch. 739, § 6; 1999, ch. 252, § 5.

62-27-115. Expiration and renewal of licenses.

All licenses shall expire the last day of the twenty-fourth month from issuance or renewal.
1. A license shall be subject to late renewal for a period of six (6) months following its expiration date by payment of the renewal fee plus a penalty as set by the commission for each month or portion of a month that elapses before payment is tendered.
2. Any person who fails to renew the person's license within six (6) months after its expiration must reapply for licensure.
1. Any polygraph examiner whose license expired while the polygraph examiner was in the federal service on active duty with the armed forces of the United States, the national guard called into service or training or in training or education under the supervision of the United States preliminary to induction into the military service may have the license renewed without examination if within two (2) years after termination of the service, training or education, except under conditions other than honorable, and this includes any charges of drug violations or felonies, the polygraph examiner furnishes the commission with an affidavit to the effect that the polygraph examiner has been so engaged and that the polygraph examiner's service, training or education has been so terminated.
2. Section 62-27-107(a)(2)-(4) and (8) must also be satisfied.
The continuing education requirements established pursuant to § 62-27-105 shall be satisfied prior to a license renewal.

Acts 1978, ch. 900, § 17; T.C.A., § 62-2716; Acts 1982, ch. 720, § 18; 1986, ch. 739, § 3; 1988, ch. 805, § 4; 1989, ch. 360, § 13; 1989, ch. 523, § 147; 1990, ch. 1026, § 44; 1999, ch. 252, § 4; 2008, ch. 1038, § 4.

Cross-References. Continuing education requirements, § 62-27-129.

62-27-116. Valid license prerequisite to court claim.

No action or counterclaim shall be maintained by any person rendering polygraph examiner services as defined by this chapter in any court in this state with respect to any agreement or service for which a license is required by this chapter, to recover the agreed price or any compensation under the agreement or for services for which a license is required by this chapter without alleging and proving that the person had a valid license at the time of making the agreement or performing the services.

Acts 1978, ch. 900, § 18; 1980, ch. 705, § 7; T.C.A., § 62-2717.

62-27-117. Grounds for license refusal, revocation or suspension.

The commission may refuse to issue or may suspend or revoke a license on any one (1) or more of the following grounds:

Failing to inform a subject to be examined as to the nature of the examination;
Failing to inform a subject to be examined that the subject's participation in the examination is voluntary;
Material misstatement in the application for original license or in the application for any renewal license under this chapter;
Willful disregard or violation of this chapter or of any regulation or rule issued pursuant to this chapter, including, but not limited to, willfully making a false or misleading report, including an oral report, concerning an examination for polygraph examination purposes and for inquiring into areas prohibited by this chapter;
If the holder of any license has been adjudged guilty of the commission of any felony or has been adjudged guilty of the commission of any misdemeanor involving moral turpitude. However, an action taken under this subdivision (5) shall be subject to the applicable provisions of the Fresh Start Act that are compiled in chapter 76, part 1 of this title;
Making any willful misrepresentation or false promises to the person being examined or causing to be printed any false or misleading advertisement for the purpose of directly or indirectly obtaining business or interns;
Having demonstrated unworthiness or incompetency to act as a polygraph examiner as defined by this chapter or by any rule or regulation issued pursuant to this chapter;
Allowing one's license under this chapter or the polygraph instrument to be used by an unlicensed person in violation of this chapter;
Knowingly or willingly aiding or abetting another in the violation of this chapter or any regulation or rule issued pursuant to this chapter;
Where the license holder has been adjudged mentally incompetent as provided by state law;
Failing, within thirty (30) calendar days, to provide information requested by the commission as the result of a formal complaint to the commission that would indicate a violation of this chapter;
Failing to inform the subject of the results of the examination upon written request;
Failing to fully and completely inform the examinee of the examinee's rights and to follow the procedure for examination, as provided in this chapter; or
In the case of a company, willful disregard in the employment of polygraph examiners who demonstrate unworthiness or incompetency to act as polygraph examiners.

Acts 1978, ch. 900, § 19; 1980, ch. 705, §§ 8, 9; T.C.A., § 62-2718; Acts 1982, ch. 720, §§ 19, 20; 1986, ch. 739, § 7; 1999, ch. 252, §§ 4, 5, 6; 2018, ch. 745, § 16.

Cross-References. Revocation of license for violation by employee, § 62-27-119.

62-27-118. Review of license refusals, revocations or suspensions — Appellate review.

Any action by the commission pursuant to § 62-27-117, or any appellate review thereafter, shall be conducted in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1978, ch. 900, § 20; 1980, ch. 705, § 10; T.C.A., § 62-2719; Acts 1999, ch. 252, § 4.

62-27-119. Violation of chapter by polygraph examiner or intern.

Any unlawful act or violation of this chapter on the part of any polygraph examiner or intern shall not be cause for revocation of the license of any other polygraph examiner for whom the offending examiner or intern may have been employed, unless it appears to the satisfaction of the commission that the polygraph examiner-employer has willfully or negligently aided or abetted the illegal actions or activities of the offending polygraph examiner or intern.

Acts 1978, ch. 900, § 21; T.C.A., § 62-2720; Acts 1986, ch. 739, § 9; 1999, ch. 252, § 4.

62-27-120. [Reserved.]

62-27-122. Enjoining of violation of chapter.

The commission, in addition to the powers and duties expressly granted by this chapter, is authorized and empowered to petition any circuit or chancery court having jurisdiction to enjoin any person who is practicing or attempting to practice as a polygraph examiner without possessing a valid license to so practice in accordance with this chapter.

Acts 1978, ch. 900, § 24; 1980, ch. 705, § 11; T.C.A., § 62-2723; Acts 2003, ch. 206, § 1.

62-27-123. Violations — Penalties.

General polygraph examinations.
1. It is unlawful for any person to:
  1. Falsify information on any intern progress report submitted pursuant to this chapter;
  2. Include any question concerning a subject's sexual behavior or orientation in a polygraph examination, unless the matter is relevant to the examination. Before proceeding with the examination, the examiner must obtain the subject's written permission and the permission shall be made a part of the test record; and
  3. Conclude a polygraph examination without affording the subject a reasonable opportunity to explain any deceptive reactions to relevant questions that are evident on the charts unless the examinee is represented by legal counsel and counsel requests the results be given to counsel rather than to the examinee.
2. A violation of subdivision (a)(1) is a Class C misdemeanor.
Tampering with license applicant's examination papers. It is a Class C misdemeanor for any commission member, its agents or employees to alter or in any way tamper with any person's examination paper that has been submitted for any examination for a license or for any intern permit conducted under this chapter.
Discrimination in approving applications for license. It is a Class C misdemeanor for any commission member, its agents or employees to in any way discriminate on the basis of race, national origin or sex in:
1. Accepting or approving applications for internships or for polygraph examiners;
2. The submission of examinations pursuant to the applications;
3. Administering or grading the examinations;
4. Suspending or revoking a license or intern permit; or
5. Any other action or decision made in the administration or enforcement of this chapter.
Polygraph examinations with respect to employment.
1. It is unlawful for a polygraph examiner to inquire into any of the following areas during a polygraph examination with respect to employment, unless the examination is administered as a result of an investigation of illegal activity in such area and the inability to pose relevant questions in relation to the illegal activity would be detrimental to the investigation:
  1. Religious beliefs or affiliations;
  2. Beliefs or opinions regarding racial matters;
  3. Political beliefs or affiliations;
  4. Beliefs, affiliations or lawful activities regarding unions or labor organizations;
  5. Sexual preferences or activities;
  6. Any disability covered by the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.); or
  7. Actions or activities more than five (5) years preceding the date of the examination, except for felony convictions and violations of the Tennessee Drug Control Act, compiled in title 39, chapter 17, part 4.
2. A violation of subdivision (d)(1) is a Class C misdemeanor.

Acts 1978, ch. 900, § 25; T.C.A., § 62-2724; Acts 1982, ch. 720, §§ 22, 24, 25; 1986, ch. 739, § 8; 1989, ch. 591, § 113; 1998, ch. 777, § 2; 2003, ch. 206, §§ 2, 3, 12, 13.

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

62-27-124. Recordkeeping — Confidentiality.

All polygraph charts, question sheets, written reports, data sheets, opinions of the polygraph examiner based on chart analysis and other pertinent papers shall be kept on file for at least three (3) years from the date of the examination in a safe place under the direct control of the examiner or, if the examiner is not independent, the examiner's employer.
No records obtained by law enforcement officers or employees during official polygraph examinations shall be subject to disclosure under this chapter.

Acts 1978, ch. 900, § 7; 1981, ch. 489, §§ 5, 7; T.C.A., § 62-2706; Acts 1982, ch. 720, § 23; 1986, ch. 739, § 3; 1998, ch. 777, §§ 3, 4; 2003, ch. 206, § 14.

Cross-References. Audio and video taping of examinations, § 62-27-126.

Confidential records, § 10-7-504.

62-27-125. Protection of rights of examinee.

In order to protect the rights of the examinee in the administration of the polygraph examination, the following minimum procedures must be followed:

Each prospective examinee shall be required to sign a notification and receive a copy of the notification on a form prescribed by the commission prior to the beginning of a polygraph examination. The notification shall contain the following information:
1. That the examinee is consenting voluntarily to the examination;
2. That the examinee has the right to refuse to take a polygraph examination;
3. That the examinee has the right to refuse to answer any question;
4. That the examinee may terminate the examination at any time;
5. That the examinee has the right to make a written request to the examiner within thirty (30) days of the examination to be furnished the results of the examination upon the payment of a reasonable fee to be established by the board to cover the cost of the results and that, upon receipt of the written request and payment of the fee, the examiner shall, within thirty (30) days of receipt of the written request, provide the examinee with a written copy of any opinions or conclusions rendered as a result of the examination;
6. That the examinee or the examinee's attorney has the right to make an audio or video recording of the examination and pretest interview;
7. The name of the polygraph examiner, the examiner's polygraph examiner license number issued by the board and the examiner's business address; and
8. The name and address of the private investigation and polygraph commission.
If the polygraph examiner is a law enforcement official or other officer of the court, that fact shall be disclosed to the examinee prior to the commencement of the examination. The examiner shall further inform the examinee that should the examinee choose to proceed with the examination under such circumstances, any illegal activity disclosed during the examination may be used against the examinee in a court of law.
The board shall by rule and regulation establish appropriate forms and language to be contained on the forms to accomplish the purposes of this section.

Acts 1986, ch. 739, § 10; 2003, ch. 206, §§ 4, 15, 16.

Law Reviews.

Labor Law — Employment at Will — Public Policy Exceptions to the Employment at Will Doctrine, 53 Tenn. L. Rev. 199 (1985).

62-27-126. Recording of examinations.

If prior to the commencement of the examination the examinee requests in writing that the examination be taped, an audio tape recording of the entire examination including pretest interviews shall be made. In the event that a test result shows that the examinee has been deceptive and the examinee has requested in writing that the examination be taped, the polygraph examiner shall keep the tape recording on file with other test results for a one-year period. The polygraph examiner shall inform the examinee that the tape recording and test results will be available to the examinee for inspection or copying during the one-year period.
Failure to tape record a preemployment examination pursuant to subsection (a) constitutes separate acts of examiner misconduct, which may result in revocation or suspension of the examiner's license by the commission.
The commission may, upon its own motion, and shall, upon the verified complaint in writing of any person setting forth a cause of action under this section, investigate and ascertain the facts and, if warranted, hold a hearing for reprimand or for the suspension or revocation of a license.
Complaints of alleged violations shall be filed in writing with the commission in a manner to be prescribed by the commission, and the commission shall prescribe the manner in which complaints shall be investigated.
All hearings shall be conducted pursuant to the requirements of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
If a polygraph examiner is found guilty of any violation of this section, the commission shall impose penalties and fines for the violations, including, but not limited to:
1. For a first violation, six (6) months' suspension of the examiner's license and a five hundred dollar ($500) fine upon reapplication for a license. Section 62-27-115(b)(2) is applicable to reapplication;
2. For a second violation, one-year suspension of the examiner's license and a one thousand dollar ($1,000) fine upon reapplication for a license. Section 62-27-115(b)(2) is applicable to reapplication; and
3. For a third violation, permanent suspension of the examiner's license and a fine of two thousand five hundred dollars ($2,500).

Acts 1986, ch. 739, § 11; 1999, ch. 252, § 4.

Cross-References. Effect of failure to maintain audio and video tape files of examinations, § 62-27-124.

62-27-127. Frequency of exams by an examiner.

No licensed polygraph examiner shall conduct more than one (1) polygraph examination per hour.

Acts 1986, ch. 739, § 11.

62-27-128. Employer action based on polygraph exam.

No employer may take any personnel action based solely upon the results of a polygraph examination.

Acts 1986, ch. 739, § 11.

Law Reviews.

Revisiting the Tennessee Employment-At-Will Doctrine—What Is the Exception and What Is the Rule? (Frederick J. Lewis, Jeffery A. Jarratt), 19 Mem. St. U.L. Rev. 171 (1989).

62-27-129. Continuing education requirements.

In prescribing requirements for continuing education as a prerequisite for licensure renewal under § 62-27-105, the commission shall, at a minimum:
1. Define the basic requirements to be no less than twenty-four (24) credit hours every two (2) years in polygraph;
2. Delineate qualifying programs; and
3. Establish a system of control and reporting.
The commission may extend the time within which licensees under this chapter are required to comply with continuing education requirements for reasons of poor health, military service or other reasonable and just causes.

Acts 1988, ch. 805, § 3; 1999, ch. 252, § 4; 2008, ch. 1038, § 5.

Cross-References. Expiration of license, § 62-27-115.

62-27-105. Rules and regulations — Assistance.

62-27-111. Internship.

62-27-121. [Reserved.]

Chapter 28
Ginseng Dealers

62-28-101. Registration and permit requirements.

Any ginseng dealer who purchases ginseng collected in this state shall register with the department of environment and conservation and obtain a ginseng dealer permit from the department.

Acts 1983, ch. 445, § 1.

Cross-References. Ginseng harvest season, title 70, ch. 8, part 2.

Rare plant protection and conservation, title 70, ch. 8, part 3.

62-28-102. Monthly records — Annual report.

Each registered ginseng dealer shall submit monthly purchase records for the period of September 1 through March 31 of each year and an annual report of purchases and sales of ginseng.

Acts 1983, ch. 445, § 2; 1988, ch. 782, § 1; 2012, ch. 591, § 2.

62-28-103. Ginseng export certificate.

Any ginseng dealer who exports or sells to another ginseng dealer shall attach a Tennessee ginseng export certificate with each sale of ginseng roots. The information on this certificate must be verified and signed by a representative of the department of environment and conservation, except where otherwise specified in reciprocal agreements with neighboring ginseng exporting states.

Acts 1983, ch. 445, § 3; 1988, ch. 782, § 3.

62-28-104. Regulations.

The commissioner of environment and conservation may promulgate regulations in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to implement this chapter. The commissioner may establish, by regulation, fees for the registration of dealers and issuance of permits in amounts sufficient to pay the approximate cost of administering the registration and permit program. The commissioner may not promulgate any rule or regulation concerning the planting, harvesting or selling of ginseng that is more restrictive than that required by the United States department of the interior, fish and wildlife service, in order that ginseng may be eligible for exportation.

Acts 1983, ch. 445, § 4; 1985, ch. 170, § 1.

62-28-105. Violations.

A violation of §§ 62-28-102 — 62-28-104 is a Class C misdemeanor.

Acts 1983, ch. 445, § 5; 1989, ch. 591, § 113.

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

62-28-106. Annual disposition of roots.

All ginseng roots remaining in the possession of a ginseng dealer on March 31 of each year must be weighed and receipted by a department of environment and conservation representative.

Acts 1988, ch. 782, § 2.

62-28-107. Agreements with neighboring states.

The commissioner of environment and conservation is authorized to enter into agreements with neighboring ginseng exporting states for the purpose of facilitating the trade of ginseng by and between this state and those states.

Acts 1988, ch. 782, § 4.

Chapter 29
Tax Returns and Refunds

Part 1
Tax Return Preparer Act of 1969

62-29-101. Short title.

This part shall be known and may be cited as the “Tax Return Preparer Act of 1969.”

Acts 1969, ch. 317, § 1; T.C.A., § 67-5701.

62-29-102. Part definitions.

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

“Person” means a natural person, corporation, association, partnership or any organized group of persons; and
“Preparer of tax returns” means a person who, in consideration of compensation received or to be received by the person, offers to perform or holds that person out to perform services for residents or taxpayers of this state that involve advice concerning the preparation of returns required under state law, except the tax on income. For the purpose of this part, a person is not a “preparer of tax returns” when:
1. It is the person's legal obligation to prepare the return as the taxpayer;
2. Acting as a regular and bona fide employee of the taxpayer. A regular and bona fide employee of the taxpayer shall be an individual and shall not be an employer in matters relating to the preparation of state tax returns;
3. Acting as an agent of the department of revenue;
4. Acting as an agent of the department of labor and workforce development; or
5. As an employee of a nonprofit corporation or its wholly owned subsidiary, the person prepares a tax return for a member of the corporation.

Acts 1969, ch. 317, § 2; 1970, ch. 490, § 1; T.C.A., § 67-5702; Acts 1999, ch. 520, § 44.

62-29-103. Persons who may act as tax preparers.

Unless otherwise exempt as stated in § 62-29-102, a person shall not act as a preparer of tax returns unless the person is:

An attorney at law, duly licensed and admitted to practice in the courts of records of this state or the attorney's employee acting within the scope of employment;
A certified public accountant licensed to practice as such in this state or the certified public accountant's employee acting within the scope of employment;
A public accountant licensed to practice as such in this state or the public accountant's employee acting within the scope of employment; or
Any of the persons in subdivisions (1)-(3) holding a proper license from another state or territory.

Acts 1969, ch. 317, § 3; T.C.A., § 67-5703.

62-29-104. Declaration of tax preparer.

A person who prepares or assists in the preparing of state tax returns, except those required on income, must sign in the space so provided on the return a declaration, based on all information of which the person has any knowledge and under penalties provided within this part, that the return, including accompanying schedules, has been examined by the person and, to the best of the person's knowledge and belief, is a true, correct and complete return.

Acts 1969, ch. 317, § 4; T.C.A., § 67-5704.

62-29-105. Penalties.

A willful violation of this part is a Class B misdemeanor.

Acts 1969, ch. 317, § 5; T.C.A., § 67-5705; 1989, ch. 591, § 112.

Cross-References. Penalty of Class B misdemeanors, § 40-35-111.

62-29-106. Counties exempt from application.

This part shall not apply to the following counties of this state having the following populations, according to the 1960 federal census or any subsequent federal census:

not less than nor more than

5,100 5,200

8,500 8,600

9,500 9,570

10,700 10,800

12,075 12,100

12,300 12,350

12,500 12,550

14,700 15,400

16,000 16,500

17,000 17,500

18,000 18,500

21,500 21,750

24,500 25,000

36,000 37,000

41,560 41,685

52,000 53,000

56,000 57,000

Acts 1969, ch. 317, § 6; 1970, ch. 555, § 1; 1970, ch. 585, § 1; 1972, ch. 451, § 1; T.C.A., § 67-5706.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Part 2
Refund Anticipation Loans

62-29-201. Part definitions.

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

“Applicant” means a customer who applies for a refund anticipation loan through a facilitator;
“Borrower” means an applicant who receives a refund anticipation loan through a facilitator;
“Customer” means an individual for whom tax preparation services are performed;
“Facilitator” means a person who receives or accepts for delivery an application for a refund anticipation loan, delivers a check in payment of refund anticipation loan proceeds or in any other manner acts to allow the making of a refund anticipation loan. “Facilitator” does not include a bank, thrift, savings association, industrial bank or credit union operating under the laws of the United States or this state, an affiliate that is a servicer for such an entity or any person that acts solely as an intermediary and does not deal with an applicant in the making of the refund anticipation loan;
“Person” means an individual, a firm, a proprietorship, an association, a corporation or another entity;
“Refund anticipation loan” means a loan, whether provided through a facilitator or by another entity such as a financial institution, in anticipation of and whose payment is secured by a customer's federal or state income tax refund, or by both;
“Refund anticipation loan fee” means any fee, charge or other consideration imposed by a lender or a facilitator for a refund anticipation loan. The term does not include any fee, charge or other consideration usually imposed by a facilitator in the ordinary course of business for nonloan services, such as fees for preparing tax returns and fees for the electronic filing of tax returns;
“Refund anticipation loan fee schedule” means a list or table of refund anticipation loan fees that includes three (3) or more representative refund anticipation loan amounts. The schedule shall separately list each fee or charge imposed, as well as a total of all fees imposed, related to the making of a refund anticipation loan. The schedule shall also include, for each representative loan amount, the estimated annual percentage rate calculated under the guidelines established by the federal Truth in Lending Act (15 U.S.C. § 1601 et seq.); and
“Tax return” means a return, declaration, statement, refund claim or other document required to be made or filed in connection with state or federal income taxes.

Acts 2007, ch. 172, § 1.

62-29-202. Disclosures — Display of fees by facilitator — Prohibited activities.

Any facilitator who advertises the availability of a refund anticipation loan shall not directly or indirectly represent the loan as a customer's actual refund. Any advertisement that mentions a refund anticipation loan shall state conspicuously that it is a loan and that a fee or interest will be charged by the lending institution. The advertisement shall also disclose the name of the lending institution.
Every facilitator who offers to facilitate or who facilitates a refund anticipation loan to a customer shall display a refund anticipation loan schedule showing the current fees for refund anticipation loans facilitated at the office, for the electronic filing of customer's tax return, for setting up a refund account and for any other related activities necessary to receive a refund anticipation loan. The fee schedule shall also include a statement indicating that a customer may have the tax return filed electronically without also obtaining a refund anticipation loan.
The posting required by subsection (b) shall be made in no less than twenty-eight (28) point type on a document measuring no less than sixteen inches by twenty inches (16" x 20"). The postings required in this section shall be displayed in a prominent location at each office where any facilitator is offering to facilitate or facilitating a refund anticipation loan.
1. Prior to an applicant's completion of the refund anticipation loan application, a facilitator that offers to facilitate a refund anticipation loan shall provide to the applicant a clear disclosure containing all of the following information:
  1. The refund anticipation loan fee schedule;
  2. That a refund anticipation loan is a loan and is not the applicant's actual income tax refund;
  3. That a customer can file an income tax return electronically without applying for a refund anticipation loan;
  4. The average amount of time, according to the internal revenue service, within which a customer who does not obtain a refund anticipation loan can expect to receive a refund if a customer's return is filed or mailed as follows:
    1. Filed electronically and the refund is deposited directly into a customer's bank account or mailed to the customer; and
    2. Mailed to the internal revenue service and the refund is deposited directly into a customer's bank account or mailed to a customer;
  5. That the internal revenue service does not guarantee that it will pay the full amount of the anticipated refund and it does not guarantee a specific date that a refund will be deposited into a customer's bank account or mailed to a customer;
  6. That the borrower is responsible for the repayment of the refund anticipation loan and the related fees in the event that the tax refund is not paid or paid in full;
  7. The estimated time within which the loan proceeds will be paid to the borrower if the loan is approved; and
  8. The fee that will be charged, if any, if the applicant's loan is not approved.
2. Prior to an applicant's consummation of the refund anticipation loan transaction, a facilitator shall provide to the applicant, in either written or electronic form, the following information:
  1. The estimated total fees for obtaining the refund anticipation loan;
  2. The estimated annual percentage rate for the applicant's refund anticipation loan, using the guidelines established under the federal Truth in Lending Act (15 U.S.C. § 1601 et seq.); and
  3. The various costs, fees and finance charges, if applicable, associated with receiving a refund by mail or by direct deposit directly from the internal revenue service, a refund anticipation loan, a refund anticipation check or any other refund settlement options facilitated by the facilitator.
Any facilitator who offers to facilitate or who facilitates a refund anticipation loan may not engage in any of the following activities:
1. Requiring a customer to enter into a loan arrangement in order to complete a tax return;
2. Misrepresenting a material factor or condition of a refund anticipation loan;
3. Failing to process the application for a refund anticipation loan promptly after an applicant applies for the loan; or
4. Engaging in any transaction, practice or course of business that operates a fraud upon any person in connection with a refund anticipation loan.
When an application involves more than one (1) customer, notification pursuant to this section need only be given to one (1) customer.

Acts 2007, ch. 172, § 2.

62-29-203. Rescission of loan.

A borrower who obtains a refund anticipation loan may rescind the loan on or before the close of business on the next day of business, by either returning the original check issued for the loan or providing the amount of the loan in cash to the lender or the facilitator. The facilitator may not charge the borrower a fee for rescinding the loan or a refund anticipation loan fee if the loan is rescinded. For the purpose of establishing or maintaining an account to electronically receive and distribute the refund, a customer may be charged a fee by a federally insured depository institution.

Acts 2007, ch. 172, § 3.

62-29-204. Preemption.

This part shall preempt and be exclusive of all local acts, statutes, ordinances and regulations relating to refund anticipation loans.

Acts 2007, ch. 172, § 4.

62-29-205. Violations.

Any person who knowingly and willfully violates this part is guilty of a misdemeanor and shall be punished by a fine of no more than five hundred dollars ($500) for each violation.

Acts 2007, ch. 172, § 5.

Chapter 30
Transitory Vendors

62-30-101. Chapter definitions.

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

“Merchandise” means any consumer item that is or is represented to be new or not previously owned by a consumer;
“Temporary premises” means any public or quasi-public place, including a hotel, rooming house, storeroom, building or part of a building, tent, vacant lot, railroad car or motor vehicle, temporarily occupied for the purpose of exhibiting stocks of merchandise to the public. Premises are not temporary if the same person has conducted business at those premises for more than six (6) consecutive months or has occupied the premises as the person's permanent residence for more than six (6) consecutive months; and
“Transitory vendor” means any person who brings into temporary premises and exhibits to the public stocks of merchandise for the purpose of selling or offering to sell the merchandise to the public.

Acts 1983, ch. 482, § 1.

62-30-102. Permit requirement.

Prior to conducting business in a county, a transitory vendor shall obtain a mobile vendor's permit from the county clerk of the county.
The transitory vendor shall furnish reasonable proof of identity and permanent address to the satisfaction of the county clerk and shall provide an adequate description of any motor vehicle or vehicles used in conducting business in the county, which description shall include the state of registration of the motor vehicle or vehicles and the license plate number or numbers assigned to the vehicle or vehicles.
The vendor shall also specify the dates, place or places and times during which business shall be conducted in the county.

Acts 1983, ch. 482, § 2.

62-30-103. Fees — Display of permits.

The county clerk shall charge a fifty dollar ($50.00) fee for issuing a mobile vendor's permit, which shall be valid for the dates, place or places and times specified.
The transitory vendor shall display the permit at the place where business is conducted so that it is visible to the public.

Acts 1983, ch. 482, § 3; 2001, ch. 228, § 1.

62-30-104. Exceptions from chapter.

This chapter does not apply to:

Any corporation, community chest, fund or foundation organized and operated exclusively for religious, charitable, scientific, literary or educational purposes of which no part of the new earnings benefits any private shareholder or individual;
State fairs, arts and crafts fairs and other fairs and festivals conducted primarily for amusement and entertainment;
Wholesale trade shows;
The sale of agricultural or handcrafted products;
A person who operates a permanent business, occupies temporary premises and prominently displays the business name and address while business is conducted from the temporary premises; or
Flea markets.

Acts 1983, ch. 482, § 4.

62-30-105. Administration by chief of police in certain counties.

In any county having a metropolitan form of government and a population of more than one hundred thousand (100,000), according to the 1990 federal census or any subsequent federal census, the chief of police shall have full responsibility to administer this chapter in that county.

Acts 1983, ch. 482, § 6; 2001, ch. 228, § 2.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

62-30-106. Penalties.

Any person violating this chapter commits a Class A misdemeanor and, upon first conviction of the violation, shall be punished by a fine of no less than fifty dollars ($50.00) nor more than one hundred dollars ($100).
Any person who subsequently violates this chapter after a first conviction commits a Class E felony and, upon conviction of the violation, shall be punished by imprisonment for a term of no less than one (1) year nor more than two (2) years.

Acts 1983, ch. 482, § 5; 1989, ch. 591, §§ 1, 6.

Code Commission Notes.

The misdemeanor and felony in this section has been designated as Class A and E, respectively, by authority of § 40-35-110, which provides that offenses designated misdemeanors and felonies without specification as to category are Class A misdemeanors and Class E felonies. See also § 39-11-114.

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

Penalty for Class E felony, § 40-35-111.

Chapter 31
[Reserved]

Chapter 32
Fire Protection and Alarm Systems

Part 1
Fire Protection Sprinkler Systems

62-32-101. Part definitions.

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

“Department” means the department of commerce and insurance;
“Fire protection sprinkler system” means an assembly of underground or overhead piping or conduit, including fire pumps, valves and fire hydrants, that conveys water or other agents to dispersal openings or devices to extinguish, control or contain fire and to provide protection from exposure to fire or other products of combustion; provided, that “fire protection sprinkler system” does not include public water service mains;
“Fire protection sprinkler system contractor” means a person that contracts, offers to contract or represents that the person is able to contract with a general contractor, subcontractor or the general public for the undertaking of the sale, installation or service of a fire protection sprinkler system or any part of a fire protection sprinkler system or that actually installs or services a fire protection sprinkler system; provided, that an owner of real property on which a fire protection sprinkler system is located or a full-time employee of the owner of real property on which a fire protection sprinkler system is located may perform simple maintenance of the fire protection sprinkler system, such as replacing a sprinkler head;
“Installation” means the initial placement of fire protection equipment or the extension, modification or alteration of equipment after initial placement. “Installation” includes work throughout the entire fire protection sprinkler system;
“Person” means a natural person, sole proprietorship, partnership, corporation, governmental entity or any other legal entity;
“Responsible managing employee” means an individual who is or is designated to be in active and responsible charge of the work of a fire protection sprinkler system contractor; and
“Work in progress” means any work for which bids are complete and a contractual agreement has been reached among the parties but the necessary labor to fulfill the contract is not yet complete.

Acts 1984, ch. 949, § 1; 1985, ch. 209, § 1; 1986, ch. 721, § 17; 1987, ch. 268, § 1; 2002, ch. 624, §§ 1-3; 2005, ch. 183, § 1.

Cross-References. Fire extinguishers and related equipment, title 62, chapter 32, part 2.

Fire protection and sprinkler systems, parking garages and bus terminals, § 68-101-103.

Rural fire protection equipment, title 4, ch. 31, part 5.

Smoke alarms in dwellings and residential buildings, §§ 68-120-111, 68-120-112.

62-32-102. Exemptions.

This part shall not apply to:

A registered professional architect or engineer acting solely in that professional capacity;
A regular employee of a fire protection sprinkler system contractor acting under its control and supervision; or
A person selling or supplying products or materials to a registered fire protection sprinkler system contractor.

Acts 1984, ch. 949, § 2; 1985, ch. 209, § 2.

62-32-103. Administration of part — Rules — Testing materials.

This part shall be administered by the department.
The state fire marshal may promulgate rules that are reasonably necessary to ensure the effective administration of this part. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
The National Institute for Certification in Engineering Technology (NICET) testing material shall be used to determine qualification to act as a responsible managing employee. The testing materials shall be reviewed for any changes by the department on an annual basis to determine their consistency with the purposes, goals and application of this part.

Acts 1984, ch. 949, § 3; 1985, ch. 209, § 3; 2005, ch. 183, § 2.

62-32-104. Prohibited activities.

No person shall:

Act as a fire protection sprinkler system contractor without a valid certificate of registration issued by the department; provided, that a partnership or joint venture may act as a fire protection sprinkler system contractor without a certificate of registration if and only if each partner or joint venturer is duly registered;
Act as a fire protection sprinkler system contractor under a certificate of registration without having on staff a responsible managing employee who holds a valid license issued by the department. A person holding a valid certificate of registration may continue work in progress for ninety (90) days after the death or disassociation of its licensed responsible managing employee or for a longer period that may be approved pursuant to rules adopted under this part;
Act as a responsible managing employee for a fire protection sprinkler system contractor without a valid license issued by the department; or
Sell, install or service a fire protection sprinkler system in violation of this part or the rules adopted under this part.

Acts 1984, ch. 949, § 4; 1985, ch. 209, § 4; 1987, ch. 268, §§ 2, 3; 2005, ch. 183, § 2.

62-32-105. Application for certification of registration as contractor.

An application for a certificate of registration as a fire protection sprinkler system contractor shall be submitted on a form prescribed by the department.
The application shall be accompanied by:
1. A nonrefundable application fee in an amount not to exceed one hundred dollars ($100); and
2. A surety bond executed by the applicant and a surety company authorized to do business in this state, made payable to the state of Tennessee in the amount of ten thousand dollars ($10,000). The bond shall be for the use and benefit of any person who may be injured or aggrieved by a wrongful act or omission of an employee, servant, officer or agent in the conduct of business of the fire protection sprinkler system contractor. Any person so injured or aggrieved may sue directly on the bond without assignment of the bond.
The bonding requirement of this section shall not apply to any person who is licensed to engage in fire protection sprinkler system work by the board for licensing contractors under chapter 6 of this title.

Acts 1984, ch. 949, § 5.

62-32-106. Application for license as responsible managing employee.

An application for a license as a responsible managing employee shall be submitted on a form prescribed by the department and shall be accompanied by a nonrefundable application fee in an amount not to exceed twenty-five dollars ($25.00).
One (1) of the following documents must accompany the application to evidence technical qualifications for a license:
1. Proof of registration in this state as a professional engineer or architect; or
2. A copy of a NICET notification letter regarding the applicant's successful completion of the examination requirements for certification at Level III for fire protection automatic sprinkler systems layout.

Acts 1984, ch. 949, § 6; 1985, ch. 209, § 5.

62-32-107. Issuance of certificates and licenses — Copies — Transferability.

1. The department shall issue to qualified applicants a certificate of registration as a fire protection sprinkler system contractor upon receipt of a fee in an amount not to exceed five hundred dollars ($500).
2. The department shall issue to qualified applicants a license as a responsible managing employee upon receipt of a fee in an amount not to exceed two hundred dollars ($200).
3. Upon written request, the department shall issue a revised certificate.
Upon written request accompanied by a fee in an amount not to exceed seventy-five dollars ($75.00), the department shall issue a duplicate certificate of registration or license.
No certificate of registration or license shall be transferable.
No certificate of registration or license will be issued to any individual under eighteen (18) years of age.

Acts 1984, ch. 949, § 7; 1985, ch. 209, § 6; 2005, ch. 183, § 2.

62-32-108. Posting of certificates and licenses — Number and expiration date to be conspicuous.

Each certificate of registration and license issued under this part shall be conspicuously posted in the fire protection sprinkler system contractor's place of business.
All bids, advertising, promotions or solicitations for the sale, installation or service of fire protection sprinkler systems shall prominently indicate the certificate of registration number and expiration date of the fire protection sprinkler system contractor.

Acts 1984, ch. 949, § 8; 1987, ch. 268, § 4.

62-32-109. Bond requirements — Effect of invalid bond — Liability of surety.

The bond required by § 62-32-105 shall be in effect at all times and places in which the fire protection sprinkler system contractor engages in business in this state. If the bond ceases to be in effect, the certificate of registration of the contractor shall become invalid.
In no event shall the aggregate liability of the surety exceed the amount of the bond.

Acts 1984, ch. 949, § 9.

62-32-110. Expiration of certificates and licenses — Notice — Renewal — Fees.

At least thirty (30) days before the expiration of a certificate of registration or license, the department shall send written notice of the impending expiration to the registrant or licensee at the registrant's or licensee's last known address.
All certificates of registration and licenses issued under this part shall expire on June 30 of each year and shall be invalid on that date unless renewed. The certificates and licenses may be renewed on or before the expiration date by remitting to the department a renewal fee not to exceed two hundred dollars ($200).
Certificates of registration and licenses shall be subject to late renewal for a period of ninety (90) days following their expiration date by payment of the renewal fee plus a penalty of one half (½) of the renewal fee. Any person desiring reinstatement thereafter must reapply for registration or licensure.

Acts 1984, ch. 949, § 10.

Cross-References. Director of division of regulatory boards to promulgate rules establishing renewal dates of licenses, certificates or permits, § 56-1-302.

62-32-111. Refusal to issue or renew certificate or license — Suspension or revocation.

The state fire marshal may refuse to issue, renew, suspend, or revoke a certificate of registration or license under this part, if the state fire marshal finds that the applicant, registrant, or licensee has violated this part or any rule lawfully promulgated under this part, including, but not limited to:

Obtaining or attempting to obtain a certificate of registration or license by fraudulent misrepresentation; or
Willfully or consistently failing to comply with any applicable code or standard relating to the sale, installation, or service of fire protection sprinkler systems.

Acts 1984, ch. 949, § 11; 1985, ch. 209, § 7; 1987, ch. 268, § 5; 2015, ch. 381, § 1.

Compiler's Notes. Acts 2015, ch. 381, § 7 provided that the act, which amended this section, shall apply to violations occurring on or after May 8, 2015.

62-32-112. Submission of installation plans for review.

A registered fire protection sprinkler system contractor, through its responsible managing employee, may submit shop drawings of proposed fire protection sprinkler system installations in projects whose construction plans and specifications are subject to review by the department. Upon receipt of the prescribed review fee, the department shall review and approve or disapprove the shop drawings.

Acts 1984, ch. 949, § 12; 1985, ch. 209, § 8; 2005, ch. 183, § 2.

62-32-113. Disposition of fees.

All fees collected under this part shall constitute expendable receipts of the department for use in administering this part.

Acts 1984, ch. 949, § 16; 2005, ch. 183, § 2.

62-32-114. Uniformity of application and effect — Powers of political subdivisions.

This part and the rules promulgated under this part shall have uniform force and effect throughout the state. No political subdivision of this state may adopt or enforce any order, ordinance, rule or regulation requiring any person to obtain any form of permission from the political subdivision to act as a fire protection sprinkler system contractor. A political subdivision may require a fire protection sprinkler system contractor to pay for and obtain a permit for the installation of a fire protection sprinkler system and require the installation to conform with applicable building codes and requirements; however, the political subdivision may not impose on fire protection sprinkler system contractors qualification or financial responsibility requirements other than proof of a valid certificate of registration issued under this part.

Acts 1984, ch. 949, § 15.

62-32-115. Act supplemental.

This part is supplemental to chapter 6 of this title.

Acts 1984, ch. 949, § 17.

62-32-116. Procedure governing contested cases.

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 1984, ch. 949, § 13.

62-32-117. Penalties.

A violation of this part or any rule lawfully promulgated under this part is a Class B misdemeanor.
In addition to the penalty set forth in subsection (a):
1. The state fire marshal shall, upon receipt of the first violation, send a written notice of violation which shall include the possible actions that may be taken in response to any second or subsequent violation;
2. The state fire marshal may issue the following civil penalties for second or subsequent violations of this part or the rules lawfully promulgated under this part:
  1. For a second violation, a civil penalty not to exceed one hundred dollars ($100);
  2. For a third violation, a civil penalty not to exceed five hundred dollars ($500); and
  3. For a fourth or subsequent violation, a civil penalty not to exceed one thousand dollars ($1,000).

Acts 1984, ch. 949, § 14; 1989, ch. 591, § 112; 2015, ch. 381, § 2.

Compiler's Notes. Acts 2015, ch. 381, § 7 provided that the act, which amended this section, shall apply to violations occurring on or after May 8, 2015.

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

Part 2
Fire Extinguishers and Related Equipment

62-32-201. Purpose of part.

The purpose of this part is to regulate the leasing, selling and servicing of portable fire extinguishers and the installing and servicing of fixed fire extinguisher systems (nonwater) in the interest of safeguarding lives and property.

Acts 1986, ch. 721, §§ 1, 2.

Cross-References. Fire protection sprinkler systems, title 62, chapter 32, part 1.

Smoke alarms, in dwellings and residential buildings, §§ 68-120-111, 68-120-112.

62-32-202. Administration of part — Promulgation of rules and regulations.

The commissioner of commerce and insurance shall administer this part and may promulgate rules and regulations that the commissioner considers necessary. The commissioner, in adopting necessary rules and regulations, may use recognized standards such as, but not limited to, those of the National Fire Protection Association, those recognized by federal law or regulation, those published by any nationally recognized standards-making organization or those in the manufacturer's installation manuals. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1986, ch. 721, § 3.

62-32-203. Part definitions.

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

“Commissioner” means the commissioner of commerce and insurance;
“Department” means the department of commerce and insurance;
“Division” means the division of fire prevention;
“Extinguisher specialist” means an individual who is or is designated to be in active and responsible charge of the work of installing or servicing portable fire extinguishers or installing or servicing fixed fire extinguisher systems;
“Extinguisher technician” means an individual who may perform the work of installing or servicing portable fire extinguishers or installing or servicing fixed fire extinguisher systems and who services portable extinguishers or fixed systems only under direct supervision of a licensed extinguisher specialist;
“Firm” means any person, partnership, corporation or association offering service and servicing of portable fire extinguishers or fixed fire extinguisher systems, including installation;
“Fixed fire extinguisher system” means a device mounted to a permanent structure and containing powder, liquid or gases that can be expelled under pressure for the purpose of suppressing or extinguishing a fire;
“Hydrostatic testing” means pressure testing by hydrostatic methods;
“Portable fire extinguisher” means a portable device containing powder, liquid or gases that can be expelled under pressure for the purpose of suppressing or extinguishing a fire; and
“Service and servicing” means servicing portable fire extinguishers or fixed fire extinguisher systems by charging, filling, maintaining, recharging, refilling, repairing or testing.

Acts 1986, ch. 721, § 4.

62-32-204. Certificates, licenses and permits — Fees.

1. Each firm engaged in the business of installing or servicing portable fire extinguishers or installing or servicing fixed fire extinguisher systems must have a certificate of registration issued by the commissioner.
2. The initial fee for the certificate of registration must be in an amount not to exceed five hundred dollars ($500) and the renewal fee for each year thereafter must be in an amount not to exceed three hundred dollars ($300).
3. A nonrefundable application fee, in an amount not to exceed one hundred dollars ($100), shall accompany the initial application.
4. Each separate office location of a firm engaged in the business of installing or servicing portable fire extinguishers or installing or servicing fixed extinguisher systems, other than the location identified on the certificate of registration, must have a branch office registration certificate issued by the board. The initial fee for a branch office registration certificate must be in an amount not to exceed one hundred dollars ($100), and the renewal fee for each year thereafter must be in an amount not to exceed one hundred dollars ($100). The division shall identify each branch office location as a part of a registered firm before a branch office registration certificate may be issued.
5. A nonrefundable application fee for branch offices, in an amount not to exceed one hundred dollars ($100), shall accompany the initial application.
No firm shall perform hydrostatic testing of fire extinguishers without a valid authorization to do such work from the department. Authorization shall be noted on the firm's certificate of registration. The initial authorization fee must be in an amount not to exceed fifty dollars ($50.00) and the renewal fee for each year thereafter must be in an amount not to exceed twenty-five dollars ($25.00).
Each extinguisher specialist of firms engaged in the business of installing or servicing portable fire extinguishers or installing or servicing fixed fire extinguisher systems who services extinguishers or fixed systems must have a license issued by the department.
1. The department shall issue a license to only qualified extinguisher specialists. A manufacturer's examination approved by the department shall be used as a basis to determine the qualification for each extinguisher specialist and for each extinguisher technician.
2. An application for a license as an extinguisher specialist shall be submitted on a form prescribed by the department.
3. The application shall be accompanied by:
  1. A nonrefundable application fee, in an amount not to exceed twenty-five dollars ($25.00), for initial applications;
  2. Proof of qualification from a manufacturer test and school;
  3. The initial license fee in an amount not to exceed fifty dollars ($50.00); or
  4. A license renewal fee in an amount not to exceed fifty dollars ($50.00).
Each person servicing portable fire extinguishers or fixed fire extinguisher systems as an extinguisher technician shall, before servicing any portable fire extinguisher or servicing any fixed fire extinguisher system, apply to the commissioner for an extinguisher technician permit. The fee for the extinguisher technician permit must be in an amount not to exceed thirty dollars ($30.00). An extinguisher technician may perform the services only under direct supervision of a person holding a valid license under this part who works for the same firm as the extinguisher specialist. An extinguisher technician permit is valid for one (1) year from the date of issuance.
Each firm must have one (1) employee who is a qualified licensed extinguisher specialist and each branch office must have one (1) employee who is a qualified licensed extinguisher specialist, and each qualified licensed extinguisher specialist will have no more than three (3) extinguisher technicians.
A fee in an amount not to exceed fifty dollars ($50.00) shall be charged for a duplicate certificate of registration, license or extinguisher technician permit issued under this part or for any request requiring changes to a certificate of registration, license or permit. A new certificate of registration with a new number shall be issued to a registered firm on a change of ownership for a fee in an amount not to exceed five hundred dollars ($500). A fee in an amount not to exceed one hundred dollars ($100) shall be charged for a change of ownership of a branch office.

Acts 1986, ch. 721, § 5.

62-32-205. Label of approval — Certificates and licenses must be current — Employees — Transferability of certificates, licenses and permits.

No portable fire extinguisher or fixed fire extinguisher system may be leased, sold or installed in this state unless it carries a label of approval of a testing laboratory approved by the department.
Except as provided in § 62-32-206, only the holder of a current and valid certificate of registration or an extinguisher specialist license issued pursuant to this part may service portable fire extinguishers or install or maintain fixed fire extinguisher systems.
A person who has been issued a license pursuant to this part to service portable fire extinguishers or install and service fixed fire extinguisher systems must be an employee, agent or servant of a firm that holds a certificate of registration issued pursuant to this part.
A certificate of registration, license or permit issued under this part is not transferable.

Acts 1986, ch. 721, § 6.

62-32-206. Exemptions.

This part does not apply to:

The filling or charging of a portable fire extinguisher by the manufacturer prior to its initial sale;
The servicing by a firm of its own portable fire extinguishers or fixed systems, or both, by its own personnel specially trained for such servicing;
The sale, installation, maintenance or service of a fire protection sprinkler system by a fire protection sprinkler contractor registered pursuant to part 1 of this chapter;
Firms engaged in the retailing or wholesaling of portable fire extinguishers as defined in § 62-32-203, but not engaged in the installation or recharging of them; or
Fire departments recharging portable fire extinguishers as a public service where no charge is made; provided, that members of the fire department performing such a public service shall be trained in the proper filling and recharging of the fire extinguishers.

Acts 1986, ch. 721, § 7.

62-32-207. Prohibited practices.

No person may:

Engage in the business of servicing portable fire extinguishers without a current certificate of registration;
Engage in the business of installing or servicing fixed fire extinguisher systems without a current certificate of registration;
Service portable fire extinguishers or service or install fixed fire extinguisher systems without a current license;
Perform hydrostatic testing of portable fire extinguishers without a valid authorization to do such work;
Obtain or attempt to obtain a certificate of registration or license by fraudulent representation;
Service portable fire extinguishers or service or install fixed fire extinguisher systems contrary to this part or the rules and regulations formulated and administered under the authority of this part;
Service or perform hydrostatic testing of a fire extinguisher that does not have a label of approval of a testing laboratory approved by the department;
Sell, service or recharge a carbon tetrachloride fire extinguisher; or
Sell, rent or lease a portable fire extinguisher that has not been approved as provided by § 62-32-205(a).

Acts 1986, ch. 721, § 8.

62-32-208. Violations — Nonissuance, nonrenewal, suspension or revocation of certificates, licenses or permits.

The commissioner may refuse to issue, renew, suspend, or revoke a certificate of registration, license, or permit, if the commissioner finds that the applicant, registrant, licensee, or permit holder has violated this part or any rule lawfully promulgated under this part.

Acts 1986, ch. 721, § 9; 2015, ch. 381, § 3.

Compiler's Notes. Acts 2015, ch. 381, § 7 provided that the act, which amended this section, shall apply to violations occurring on or after May 8, 2015.

62-32-209. Applicability of administrative procedures.

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

Acts 1986, ch. 721, § 10.

62-32-210. Certificates, licenses and permits — Application and reapplication — Renewal — Reexamination where license revoked — Continuing education.

Applications and qualifications for licenses, permits and certificates issued under this part shall be made pursuant to regulations adopted by the commissioner.
An applicant, registrant, licensee or permit holder whose certificate of registration, license or permit has been refused or revoked under this part may not file another application for a certificate of registration, license or permit within one (1) year from the effective date of the refusal or revocation. After one (1) year from that date, the applicant may reapply and show good cause why the issuance of the applicant's certificate of registration, license or permit is not against the public safety and welfare.
A person whose license to service portable fire extinguishers or to install or service fixed fire extinguisher systems has been revoked must retake and pass the required written examination by the manufacturer before a new license may be issued.
An unexpired license or registration may be renewed by paying the required renewal fee to the department before the expiration date of the license or registration. If a license or registration has been expired for no longer than ninety (90) days, the license or registration may be renewed by paying to the division the required renewal fee and a fee that is one half (½) of the original fee for the license or registration. If a license or registration has been expired for longer than ninety (90) days but less than two (2) years, the license or registration may be renewed by paying the division all unpaid renewal fees and a fee that is equal to the original fee for the license or registration. If a license or registration has been expired for two (2) years or longer, the license or registration may not be renewed. A new license or certificate of registration may be obtained by complying with the requirements and procedures for obtaining an original license or registration. At least thirty (30) days before the expiration of a license or registration, the division shall send written notice of the impending license or registration expiration to the licensee or registrant at the licensee's or registrant's last known address. This subsection (d) may not be construed to prevent the board from denying or refusing to renew a license under applicable law or rules of the department.
The commissioner may promulgate rules under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, for the certifying of continuing education programs for persons licensed under this part.

Acts 1986, ch. 721, § 11.

62-32-211. Powers and duties of commissioner.

The commissioner shall:

Formulate and administer rules and regulations as may be determined essentially necessary for the protection and preservation of life and property, in controlling the:
1. Registration of firms engaging in the business of servicing portable fire extinguishers or installing and maintaining fixed fire extinguisher systems;
2. Registration of firms engaging in the business of hydrostatic testing of portable fire extinguishers;
3. Examining of applications of persons applying for a license to service portable fire extinguishers for proper qualification;
4. Licensing of persons to service portable fire extinguishers and install fixed fire extinguisher systems; and
5. Requirements for the servicing of portable fire extinguishers and the maintenance of fixed fire extinguisher systems;
Evaluate the qualifications of firms or individuals for a certificate of registration to engage in the business of servicing portable fire extinguishers or installing fixed fire extinguisher systems;
Issue certificates of registration for those firms that qualify under the rules and regulations to engage in the business of servicing portable fire extinguishers or installing and servicing fixed fire extinguisher systems and issue licenses, extinguisher technician permits and authorizations to perform hydrostatic testing to the firms or individuals who qualify; and
Evaluate the qualifications of firms seeking approval as testing laboratories for portable fire extinguishers and fixed fire extinguisher systems.

Acts 1986, ch. 721, § 12.

62-32-212. Fees constitute expendable receipts.

All fees collected under this part constitute expendable receipts of the department for use in administering this part.

Acts 1986, ch. 721, § 13.

62-32-213. Applicability of provisions — State preemption of regulatory field.

This part and the rules promulgated under this part shall have uniform force and effect throughout the state. No political subdivision of this state may adopt and enforce any order, ordinance, rule or regulation requiring any person to obtain any form of permission from the political subdivision to act as a fire extinguisher firm. A political subdivision may require a fire extinguisher system contractor to pay for and obtain a permit for the installation of fire extinguisher systems and require the installation to conform with applicable building codes and requirements; however, the political subdivision may not impose on fire extinguisher system firms qualification or financial responsibility requirements other than proof of a valid certificate of registration issued under this part.

Acts 1986, ch. 721, § 14.

62-32-214. Surety bond — Alternatives to bond.

A surety bond shall be executed by the applicant and a surety company authorized to do business in this state, made payable to the state of Tennessee in the amount of ten thousand dollars ($10,000). The bond shall be for the use and benefit of any person who may be injured or aggrieved by a wrongful act or omission of any employee, servant, officer or agent in the conduct of business of the fire extinguisher system firm. Any person so injured or aggrieved may sue directly on the bond without assignment of the bond.
The bond shall be in effect at all times and places in which the fire extinguisher system firm engages in business in this state. If the bond ceases to be in effect, the certificate of registration of the firm shall become invalid.
The aggregate liability of the surety shall not exceed the amount of the bond.
The bonding requirement of this section does not apply to any person who is licensed to engage in fire protection sprinkler system work by the board for licensing contractors under chapter 6 of this title.
In lieu of the surety bond required by this section, the applicant may deposit with the division:
1. A federally insured certificate of deposit issued by any financial institution in this state in an amount no less than ten thousand dollars ($10,000);
2. An irrevocable letter of credit issued by any federally insured bank or savings and loan association in an amount no less than ten thousand dollars ($10,000); or
3. A written proof of liability insurance coverage provided by a single-limit policy with a limit of no less than one hundred thousand dollars ($100,000) for bodily injury and for damage to property in any one (1) accident. The policy shall be for the use and benefit of any person who may be injured or aggrieved by a wrongful act or omission of any employee, servant, officer or agent in the conduct of business of the fire extinguisher system firm.

Acts 1986, ch. 721, § 15; Acts 1987, ch. 371, §§ 1, 2.

62-32-215. Penalty.

Any person violating this part or any rule lawfully promulgated under this part commits a Class A misdemeanor, punishable by a fine not to exceed one thousand dollars ($1,000).
In addition to the penalty set forth in subsection (a):
1. The commissioner shall, upon receipt of the first violation, send a written notice of violation which shall include the possible actions that may be taken in response to any second or subsequent violation;
2. The commissioner may issue the following civil penalties for second or subsequent violations of this part or the rules lawfully promulgated under this part:
  1. For a second violation, a civil penalty not to exceed one hundred dollars ($100);
  2. For a third violation, a civil penalty not to exceed five hundred dollars ($500); and
  3. For a fourth or subsequent violation, a civil penalty not to exceed one thousand dollars ($1,000).

Acts 1986, ch. 721, § 16; 2015, ch. 381, § 4.

Compiler's Notes. The misdemeanor penalty provisions of this section may be affected by the Criminal Sentencing Reform Act of 1989. See §§ 39-11-114, 40-35-110, 40-35-111.

Acts 2015, ch. 381, § 7 provided that the act, which amended this section, shall apply to violations occurring on or after May 8, 2015.

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

Part 3
Alarm Contractors Licensing Act of 1991

62-32-301. Short title.

This part shall be known and may be cited as the “Alarm Contractors Licensing Act of 1991.”

Acts 1991, ch. 400, § 1.

62-32-302. Purpose.

The purpose of this part is to provide uniform procedures and qualifications throughout this state for the certifying, licensing and regulation of alarm systems contractors and to protect the safety and security of persons and property by assuring the competence of individuals or companies offering alarm systems and services to the general public.

Acts 1991, ch. 400, § 2.

62-32-303. Part definitions.

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

“Alarm system” means any mechanical, electrical or electronic system, or any combination of those systems, designed to:
1. Record, view, monitor, protect against, avoid or reduce the probability of personal or property loss or injury resulting from fire, smoke, heat, burglary, theft, shoplifting, pilferage or other losses of that type;
2. Monitor, detect or prevent intrusion; or
3. Detect and summon aid for other emergencies;
“Alarm systems contractor” means any person, firm, association or corporation that sells or attempts to sell, installs, services or monitors alarm systems, signal devices, fire alarms, burglar alarms, television cameras or still cameras used to detect fire, burglary, breaking or entering, intrusion, shoplifting, pilferage or theft;
“Alarm verification” means an attempt by a monitoring company or its representative to contact a burglar alarm location or a burglar alarm user by telephone or other electronic means to determine whether a burglar alarm signal is valid in an attempt to avoid unnecessary police response before requesting law enforcement to be dispatched to the location. Alarm verification further means that at least a second call shall be made to a different number if the first attempt fails to reach an alarm user;
“Board” means the state board for licensing alarm systems contractors created by § 62-32-306;
“Burglar alarm system” means an alarm or monitoring system that has the primary function of detecting or responding to emergencies other than fire;
“Business entity” means each location from which alarm systems are sold, installed or serviced;
“Certification” means the authority granted by the board to do business as an alarm systems contractor;
“Fire alarm system” means an alarm or monitoring system that is intended to respond to or detect fire, heat, smoke or other byproducts of combustion;
1. “Good moral character” means an individual with high legal, moral and ethical values;
2. 1. The following shall be prima facie evidence that an individual does not have good moral character:

Conviction by any local, state, federal or military court of any crime involving the illegal use, possession, sale, manufacture, distribution or transportation of a controlled substance, controlled substance analogue, drug or narcotic;
Conviction of a crime involving felonious assault;
Conviction of a crime involving unlawful breaking or entering, burglary, larceny or arson;
Conviction as an habitual criminal; or
An addiction to alcohol or a narcotic drug;

For purposes of subdivision (9)(B)(i), “conviction” means and includes the entry of a plea of guilty, plea of no contest or a verdict rendered in open court by a judge or jury;

“Installation” means the installation, maintenance, service and repair of alarm systems;

“Monitoring” means any off-site central monitoring station or location that receives electronic burglar alarm, closed circuit television or fire alarm signals from multiple locations and notifies or dispatches, or both, other persons to emergency burglaries, hold ups, thefts, vandalism, civil unrest, personal emergencies or fire alarm conditions; and

“Qualifying agent” means any individual licensed by the board whose qualifications have been demonstrated to the board for overseeing and supervising alarm systems contractor operations of any classification or combination of classifications.

Acts 1991, ch. 400, § 3; 1993, ch. 429, § 6; 1996, ch. 848, §§ 1, 2; 2007, ch. 160, § 1; 2012, ch. 848, § 63.

62-32-304. Prohibited activities — Requirements.

No person shall engage in or hold out as engaging in the business of an alarm systems contractor without first being certified in accordance with this part.
No person shall do business under this part unless the business entity has in its employ a qualifying agent who meets the requirements for licensing by the board and who is, in fact, licensed under this part. The qualifying agent who is licensed under this part shall be in a management position and be responsible for overseeing the quality of operations of the alarm systems contractor.
In the event that the qualifying agent upon whom the business entity relies in order to do business ceases to perform the agent's duties as qualifying agent, the business entity shall notify the board within ten (10) working days. The business entity must obtain a substitute qualifying agent within thirty (30) days after the original qualifying agent ceases to serve as qualifying agent unless the board, in its discretion, extends this period for good cause for a period not to exceed three (3) months.
The certification application shall designate at least one (1) qualifying agent who is or shall be licensed for each classification of service to be performed by the certified business entity. No qualifying agent who has been so designated may serve on behalf of or be employed by any other business entity. The certification application shall designate for which classification or classifications the applicant is seeking a certification.
No alarm systems contractor may participate in a joint venture to provide equipment or services that require certification under this part unless all parties to the joint venture are certified in accordance with this part.
No contractor may subcontract the provision of equipment or services requiring a certification under this part to any uncertified person, firm, association or corporation except as provided in § 62-32-305(7).
No alarm systems contractor shall retain as an employee any person known not to be of good moral character.
No person shall act as an alarm systems contractor under a certification without having a licensed qualified agent who holds a valid license in the category for which business is sought or work is to be done.
No person shall act as a qualified agent without a valid license issued by the board.
No person shall sell and install, service, monitor or respond to alarm signals, signal devices, fire alarms, burglar alarms, television or still cameras used to detect fire, burglary, breaking or entering, intrusion, shoplifting, pilferage or theft in violation of this part or the rules adopted under this part.
No person shall advise anyone as to the need, quantity or quality of alarm systems and sell the systems unless certified, licensed or registered under this part.

Acts 1991, ch. 400, § 4; 1992, ch. 977, § 1; 1996, ch. 848, §§ 3, 13.

62-32-305. Exclusions from requirements of part.

The following persons, firms, associations or corporations are specifically excluded from the requirements of this part:

Equipment manufacturers not providing direct sales, monitoring or installation of service to system end users;
Telephone installers/dealers not providing direct sales, monitoring, installation or maintenance service of alarm systems;
Equipment distributors or suppliers not offering sales, monitoring or installation services directly to the system user;
Retail stores or catalog sales not offering installation or consulting services to the system user;
Utility companies not installing, selling, servicing or monitoring alarm systems;
Sprinkler contractors not providing direct sales, monitoring, installation or maintenance service of alarm systems;
Electrical, mechanical or HVAC contractors licensed under chapter 6 of this title who do provide direct sales, monitoring, installation or maintenance service of alarm systems, but who derive less than fifty percent (50%) of their gross annual revenues from that business;
Architects and engineers not providing direct sales, monitoring, installation or maintenance service of alarm systems;
Individual property owners personally installing an alarm system within the owner's residence or other building not open to the general public;
Direct sellers and installers dealing exclusively with alarm systems for motor vehicles;
Locksmiths not providing direct sales, monitoring, installation or maintenance service of alarm systems. Locksmiths who install only mechanical locks or mechanical locks that have an integral alarm as part of their design without electrical components and electromechanical locks such as self-contained, low voltage exit alarm devices that secure a single entry point, that are not part of an integrated system, are also exempt from the requirements of this part;
A company that does not provide monitoring services and that has fifty million dollars ($50,000,000) or more in annual sales and whose product requires no internal building wiring to install;
Medical alert or medical monitoring services to individuals made available by a hospital or an affiliate of a hospital;
The monitoring and minor maintenance of alarm systems by a hospital or an affiliate of a hospital solely for its own use; and
The sale or installation of delayed egress locks by a company when the locks are used to detect and monitor the wandering of residents of a nursing home.

Acts 1991, ch. 400, § 5; 1993, ch. 429, §§ 7, 10-12; 1996, ch. 848, § 24; 1998, ch. 681, § 1; 2000, ch. 641, § 3.

Code Commission Notes.

Former subdivision (11)(B), concerning the exclusion of applicants with pending applications as alarm system contractors or for licensure as qualifying agents prior ot July 1, 1993, was deleted as obsolete by the code commission in 2009.

Attorney General Opinions. Exclusion from requirements, OAG 94-099, 1994 Tenn. AG LEXIS 102 (9/9/94).

62-32-306. Board for licensing alarm systems contractors.

1. There is created a state board for licensing alarm systems contractors, called the “board” in this part. The board shall be composed of five (5) members, to be appointed by the governor. At least one (1) member shall be a person who is not engaged in the contracting business in any county of this state. The remaining members of the board shall be alarm systems contractors as defined in § 62-32-303, all of whom shall have been actively engaged in the business for a period of no less than four (4) years next preceding their appointment and may be appointed from lists of qualified persons submitted by interested burglar and fire alarm organizations, including, but not limited to, the Tennessee Burglar and Fire Alarm Association. No more than two (2) members of the board shall be residents of the same grand division of the state. 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 consult with interested groups including, but not limited to, the organizations listed in subdivision (a)(1) to determine qualified persons to fill positions on the board.
All subsequent appointments of successor members shall be made by the governor at the expiration of the respective terms of the members.
In the event of a vacancy on the board for any reason and the governor failing to appoint a successor within ninety (90) days after the vacancy occurs, the board is empowered to fill that vacancy from lists of nominees submitted by the interested burglar and fire alarm organizations described in subsection (a), until the governor makes an appointment.

Acts 1991, ch. 400, § 6; 1993, ch. 429, § 9; 1996, ch. 848, § 4; 2012, ch. 619, § 3.

Compiler's Notes. The state board for alarm systems contractors, 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.

62-32-307. Powers and duties of board — Registration of persons employed by alarm systems contractors — Reciprocal agreements.

In accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, the board shall promulgate rules that may be reasonably necessary to implement and administer this part in an efficient and effective manner, including rules to require submission of reports and information by certified companies, licensees and registrants under this part.
The board has the power to establish fees under § 62-32-318 sufficient to pay the annual expenses of the board.
The board shall determine minimum qualifications or establish minimum education, experience and training standards for applicants for certifications and licenses under this part, including those required for renewal.
All persons employed by an alarm systems contractor shall apply for registration with the board within thirty (30) days after employment and shall submit to a background check conducted by the board, including investigation by the Tennessee bureau of investigation and the federal bureau of investigation.
The board shall conduct investigations regarding alleged violations and make evaluations as may be necessary to determine if certified companies, licensees and registrants under this part are complying with this part. The board may also investigate allegations regarding possible violations of this part by unregistered persons and shall seek enforcement under § 62-32-320.
The board may investigate allegations regarding improper, inadequate or ineffective alarm system installations and seek enforcement under § 62-32-320.
The board has the power to promulgate rules and regulations not inconsistent with the laws of this state that it deems necessary for internal management and control.
The board shall investigate and approve applicants to be certified, licensed or registered according to this part.
The board may deny, suspend or revoke any certification, license or registration issued or to be issued under this part to any applicant or licensee who fails to satisfy the requirements of this part or the rules and bylaws established by the board.
The board may issue subpoenas to compel the attendance of witnesses and the production of pertinent books, accounts, records and documents.
The board may enter into reciprocal agreements with other states whose laws are similar to this part; provided, that the other state's law provides for liability insurance coverage, background checks, educational or experience requirements equal to or greater than those contained in this part. The board through regulations shall establish registration and fee requirements for such reciprocity. The fees shall be equal to or no less than those fees paid by Tennessee alarm contractors.
The board shall provide a procedure for the renewal of registrations issued under this part.

Acts 1991, ch. 400, § 7; 1996, ch. 848, §§ 6-8, 14.

62-32-308. Board members — Qualifications — Terms — Vacancies — Removal.

1. Each member of the board shall be at least twenty-five (25) years of age and of good moral character.
2. Each member shall be of recognized standing in the alarm contracting business; provided, that this subdivision (a)(2) shall not apply to the member who is not engaged in the business of alarm contracting.
The terms of members shall be for five-year periods and shall be staggered so that the term of at least one (1) member shall expire each December 31.
In the event of death, resignation or failure of a member to serve the member's full term, the member's successor shall be appointed to serve the balance of the unexpired term. Each member shall hold over after the expiration of the member's term until the member's successor has been duly appointed and qualified. If vacancies occur on the board for any cause, the vacancies shall be filled by appointment of the governor within ninety (90) days.
No person shall be eligible for appointment on the board who is not a qualifying agent under this part; provided, that this subsection (d) shall not apply to the member who is not engaged in the business of alarm contracting. At least two (2) of the members of the board shall be qualifying agents employed by a certified contractor who has fewer than seven (7) employees.
1. The governor may remove any member of the board for official misconduct, incompetency, willful neglect of duty, or demonstrated lack of good moral character by conduct that would disqualify an applicant from being registered under this part.
2. 1. Notwithstanding subdivision (e)(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 (e)(2)(A).

Acts 1991, ch. 400, § 8; 1996, ch. 848, § 5; 2016, ch. 614, § 3.

62-32-309. Executive director.

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

Acts 1991, ch. 400, § 9.

62-32-310. Meetings — Officers — Quorum.

The board shall establish in its bylaws a regular meeting schedule for the purpose of transacting business.
At the first meeting of each calendar year, the board shall elect officers, including a chair, vice chair and secretary.
Special meetings of the board shall be held at times that the board may require. Special meetings shall be at the call of the chair or by a majority of the board members.
Three (3) members shall constitute a quorum for transaction of board business.
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.
Board members shall serve without compensation but shall be entitled to reimbursement for travel expenses, to be paid in accordance with the comprehensive travel regulations promulgated by the commissioner of finance and administration and approved by the attorney general and reporter.

Acts 1991, ch. 400, § 10; 1993, ch. 429, § 3.

62-32-311. Register of applications.

The board shall keep a register of all applications for certification, license or registration, showing on each the date of application, name, qualifications, place of business, place of residence and whether a license or registration was granted or refused.
The books and register of the board shall be prima facie evidence of all matters recorded in the books and register.

Acts 1991, ch. 400, § 11.

62-32-312. Employee registration — Procedure.

All alarm systems contractor employees with access to records, diagrams, plans or other sensitive information pertaining to monitored, installed or proposed alarm systems shall be registered with the board.
In accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, the board shall promulgate rules to establish an appropriate system of employee classifications and registration.
An alarm systems contractor may not employ any employee required to be registered with the board unless the employee is properly registered with the board in compliance with subsection (d) and meets the training requirements of subsection (g).
All alarm systems contractors, within thirty (30) working days of the beginning of employment of any employee, shall furnish the board with the following:
1. A set or sets of classifiable fingerprints on standard FBI/TBI applicant cards;
2. A recent color photograph or photographs of acceptable quality for identification; and
3. Statements of any criminal records in each area where the employee has resided within the immediately preceding forty-eight (48) months.
Upon receipt of an application, the board shall cause an FBI/TBI background investigation to be made, during which the applicant shall be required to show that the applicant meets all the following requirements and qualifications, prerequisite to registration or licensure:
1. The applicant is at least eighteen (18) years of age;
2. The applicant is of good moral character; and
3. Registration of an employee shall be for two (2) years and shall be subject to renewal.
Employee registration pursuant to this section shall be renewed every two (2) years.
1. All alarm system contractor employees who sell, install or repair alarm systems, including closed circuit television systems, shall take and successfully complete the National Burglar and Fire Alarm Association Level 1 or equivalent training. The board may determine what constitutes equivalent training.
2. New employees after January 1, 2005, must successfully complete such training within one (1) year of employment.
3. Employees not in compliance with this subsection (g) shall not sell, install or repair alarm systems, including closed circuit television systems.
All alarm system contractors shall provide proof of employee training upon request by the board.
Any costs associated with the alarm system training required by this section shall be the responsibility of and paid by the alarm system contractor who employs the person being trained.

Acts 1991, ch. 400, § 12; 1996, ch. 848, §§ 9-12, 22; 2004, ch. 895, §§ 1, 2; 2008, ch. 1038, §§ 6, 7.

Code Commission Notes.

Former subdivision (g)(1), concerning the requirement that current employees successfully complete the Level 1 or equivalent training within two years of January 1, 2005, was deleted as obsolete by the code commission in 2009.

62-32-313. Qualifying agents — Application for license — Requirements — Examination — Term of license — Renewal.

Anyone desiring to be licensed as a qualifying agent shall make written application to the board on forms prescribed by the board. The application shall be accompanied by an application fee as set by the board.
An applicant shall meet all of the requirements for a registered employee as indicated in § 62-32-312(e). Application shall be accompanied by the documents required for employee registration as detailed in § 62-32-312(d).
An applicant for qualifying agent shall meet the following combination of experience and educational requirements:
1. The applicant must hold a four-year baccalaureate degree in electrical engineering, industrial technology, computer engineering, or industrial engineering from an accredited university or college acceptable to the board with at least two (2) years actual experience in the alarm industry;
2. The applicant must hold an associates degree in engineering technology from an accredited two-year technical college acceptable to the board with at least four (4) years actual experience in the alarm industry; or
3. The applicant must hold current certification by a national training program approved by the board in the field of work to be installed, serviced or monitored and have at least five (5) years of working experience in the alarm industry covering the actual installation of alarms.
If the application is satisfactory to the board, the qualifying agent shall be entitled to an examination to determine the agent's qualifications. This examination may be written or oral, or both. The board shall be entitled to charge each applicant an examination fee as set by the board for each written or oral examination, or both.
If the results of the examination of any applicant are satisfactory to the board, then it shall issue to the applicant a license as a qualified agent in this state. The board shall state the classifications in which the applicant is qualified to engage.
Licenses as a qualifying agent shall expire on the last day of the twenty-fourth month following its issuance or renewal and shall become invalid on that date unless renewed.
Renewal notices shall be mailed to the last known address of the qualified agent ninety (90) days prior to the expiration date of the license. The renewal must be received in the office of the board prior to the expiration of the license.
It is the duty of the board to notify every person registered under this part by mail to the last known address of the date of expiration of the person's certificate of license and the amount of fee required for its renewal for two (2) years. The notice shall be mailed in accordance with this section.
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; provided, that the maximum fee for a delayed renewal shall not exceed twice the normal fee.
No qualifying agent shall be qualified to receive a renewal license when the agent has been in default in complying with this part for a period of three (3) months, and, in that event, the qualifying agent, in order to qualify under the law, shall make a new application as in the case of the issuance of the original license.
The board shall not grant renewal of a qualifying agent license until it has received satisfactory evidence of continuing education during the previous two (2) years. The board shall promulgate rules to establish minimum satisfactory standards of continuing education.
The board may, after notice and an opportunity for hearing, suspend, revoke or deny renewal of a license to a qualifying agent who is a qualifying agent for a person, firm, association or corporation that has had its certification suspended or revoked under § 62-32-319. The board shall in all cases before hearing any charges against any registrant 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 right to an attorney if the accused so desires. The revocation or suspension of license shall be in writing, stating the grounds upon which the board decision is based. The aggrieved person shall have the right to appeal from the decision.
No qualifying agent may be the qualifying agent for more than one (1) business location.

Acts 1991, ch. 400, § 13; 1996, ch. 848, §§ 15, 16; 2008, ch. 1038, §§ 8-10, 15; 2013, ch. 142, § 1.

62-32-314. Certification as alarm systems contractor — Application — Requirements.

Anyone desiring to be certified as an alarm systems contractor shall make written application to the board on forms prescribed by the board. The application shall be accompanied by an application fee as set by the board. The alarm systems contractor shall:
1. Have a regular place of business at a permanent fixed location;
2. Have a business license or licenses for the city and county in which the business is located;
3. Provide proof of insurance as required by § 62-32-315(a);
4. Submit an application for certification with the notarized signature of a qualified agent licensed by the board for the classifications of alarm systems being applied for; and
5. Submit applications for registration of all employees on forms provided by the board as required by § 62-32-312(d) and accompanied by registration fees as required by § 62-32-318(a)(5).
Applications for certification shall be on forms prescribed by the board. The application shall disclose any and all persons, firms, associations, corporations or other entities that own or control a ten percent (10%) or greater interest in the applicant. The board may require FBI/TBI background checks and other information deemed necessary by the board from any individual, firm or business owning or controlling ten percent (10%) or greater interest in the applicant and may at the board's discretion withhold certification until the information is satisfactorily produced and verified.
In accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, the board shall promulgate rules that establish uniform criteria to govern issuance by the board of the classifications required by §§ 62-32-313(e) and 62-32-316(b).
An alarm systems contractor may bid on a contract requiring work in some classification or classifications other than the one or ones in which the alarm systems contractor is licensed, if and only if the work is incidental or supplemental to the performance of work in which the alarm systems contractor is licensed to engage.

Acts 1991, ch. 400, § 16; 1993, ch. 429, § 5; 1996, ch. 848, § 17.

62-32-315. Insurance.

No certification shall be issued under this part unless the applicant files with the board as evidence of insurance a policy of liability insurance providing for the following minimum coverage:
1. One hundred thousand dollars ($100,000) because of bodily injury or death of one (1) person as a result of the negligent act or acts of the principal insured or the principal insured's agents, operating in the course and scope of the agents' employment;
2. Subject to the limit for one (1) person, three hundred thousand dollars ($300,000) because of bodily injury or death of two (2) or more persons as the result of the negligent act or acts of the principal insured or the principal insured's agent operating in the course and scope of the agent's agency; and
3. One hundred thousand dollars ($100,000) because of injury to or destruction of property in the course and scope of the agent's agency.
Every certified company shall provide proof of insurance to the board upon request from the board. Failure to provide proof of insurance shall be grounds for suspension or revocation of a certified company's certification.

Acts 1991, ch. 400, § 15; 1996, ch. 848, § 18; 2000, ch. 641, § 2.

62-32-316. Alarm systems contractors — Certification — Branch offices.

The certification, when issued, shall be in the form that may be determined by the board and shall state:
1. The name of the certified company;
2. The name under which the certified company is to operate;
3. The qualifying agent; and
4. The number and expiration date of the certification.
There shall be four (4) classifications of alarm systems contractor: “burglar alarm systems,” “fire alarm systems,” “monitoring,” and “closed circuit television.” Alarm systems contractors may be certified in one (1) or more classifications.
Following issuance, the certification shall at all times be posted in a conspicuous place in the place of business of the certified company. A certification issued under this part is not assignable.
All alarm systems contractors shall permanently display their certification number on all advertising, service vehicles, correspondence, business cards, letterheads and the like.
No certified company shall engage in any business regulated by this part under a name other than the certification name or names that appear on the certificate issued by the board.
Any branch office of an alarm systems contractor shall be properly certified. A separate certification, stating the location and qualifying agent, shall be posted at all times in a conspicuous place in each branch office. Every business covered under this part shall file in writing with the board the address of each of its branch offices. All certified branch offices shall notify the board in writing, within thirty (30) working days after the establishment, closing or changing of the location of any branch office. A qualifying agent may not be responsible for more than one (1) branch office of an alarm system contracting business. Each business location must be certified.

Acts 1991, ch. 400, § 14; 1992, ch. 977, § 2; 1993, ch. 429, § 4; 1996, ch. 848, § 19.

62-32-317. Term of certification — Renewal.

Each certification, license or registration granted by the board shall expire on the last day of the twenty-fourth month following its issuance or renewal and shall become invalid on that date unless renewed.
Renewal notices shall be mailed ninety (90) days prior to the expiration date of the certification. The renewal must be received in the office of the board prior to the expiration of the certification.
It is the duty of the board to notify by mail every person certified under this part of the date of expiration of the person's certificate of certification and the amount of fee required for its renewal. The notice shall be mailed in accordance with this section.
Applications for certification and renewal of certification shall list all persons required to be licensed in accordance with § 62-32-312(a).
The fee to be paid for the renewal of a certification after the expiration date shall be increased ten percent (10%) for each month or fraction of a month that payment for renewal is delayed; provided, that the maximum fee for a delayed renewal shall not exceed twice the normal fee.
No alarm systems contractor shall be qualified to receive a renewal certification when the alarm systems contractor has been in default in complying with this part for a period of three (3) months, and, in such event, the alarm systems contractor, in order to qualify under the law, shall make a new application as in the case of the issuance of the original license.

Acts 1991, ch. 400, § 17; 1996, ch. 848, §§ 20, 21; 2004, ch. 509, § 1; 2008, ch. 1038, §§ 11, 16.

62-32-318. Fees.

The board is authorized to establish and charge reasonable application, certification, registration and license fees as follows:
1. A nonrefundable application fee for a certification as alarm systems contractor;
2. Upon approval of application, a certification fee;
3. A renewal certification fee;
4. A nonrefundable application fee to include the cost of an FBI/TBI background check for a qualifying agent's license;
5. Upon approval of the board of a qualifying agent's license, a license fee;
6. A nonrefundable application fee to include the cost of an FBI/TBI background check for an employee registration; and
7. A nonrefundable registration fee set by the board.
The total amount of fees annually established by the board shall equal the direct and indirect anticipated expenses of the board for the year.

Acts 1991, ch. 400, § 18; 1996, ch. 848, § 23; 2008, ch. 1038, §§ 12-14.

62-32-319. Suspension or revocation of certificate or license — Grounds.

Any person may prefer charges in writing to the board against any certificate holder, licensee, registrant or other person, firm or business offering alarm systems or services in violation of this part.
The board may, after notice and an opportunity for hearing, suspend or revoke a certification or license issued under this part if it is determined that the licensee or certified person has:
1. Made any false statement or given any false information in connection with any application for a license or for the renewal or reinstatement of a license;
2. Violated any provision of this part;
3. Violated any rule promulgated by the board pursuant to the authority contained in this part;
4. Been convicted of any crime indicating lack of good moral character. However, an action taken under this subdivision (b)(4) shall be subject to the applicable provisions of the Fresh Start Act that are compiled in chapter 76, part 1 of this title;
5. Failed to correct business practices or procedures that have resulted in a prior reprimand by the board;
6. Impersonated or permitted or aided and abetted any other person to impersonate a law enforcement officer of the United States, this state or any of its political subdivisions;
7. Engaged in or permitted any employee to engage in any alarm contracting business when not lawfully in possession of a valid certification or license issued under this part;
8. Been convicted on an unlawful breaking or entering, assault, battery or kidnapping;
9. Been found guilty by the board of misconduct, gross negligence or incompetence or committed any other act that is a ground for the denial of an application for a certification or a license under this part; or
10. Failed to maintain insurance and bond as required by this part.
The board has the power to revoke or suspend any certification or license or renewal granted by it for any of the reasons stated in this section or for a failure to observe the terms and conditions of any certification, license or renewal.
The board may refuse to issue or renew a certification or license to any person, firm or corporation for lack of financial stability, misconduct, gross negligence, 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 this part.
The Uniform Administrative Procedures Act, compiled in title 4, chapter 5, governs all matters and procedures regarding the hearing and judicial review of any contested case arising under this part.

Acts 1991, ch. 400, § 19; 2018, ch. 745, § 17.

62-32-320. Penalties.

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 part.
Any person, firm or corporation that engages or offers to engage in contracting without a certification as required by § 62-32-304 or who violates the terms and conditions of any certification, license or renewal of a certification or license granted by the board pursuant to this part shall be subject to a civil penalty of no less than one thousand dollars ($1,000) and no more than five thousand dollars ($5,000) per occurrence. Any person, firm or corporation that engages or offers to engage in contracting without a certification as required by § 62-32-304 shall be ineligible to apply for the certification until six (6) months after the violation has occurred.
In addition to revocation or suspension of a certification or license under § 62-32-319, a civil penalty of no more than five thousand dollars ($5,000) may be assessed by the board against any person who violates any provision of this part or any rule of the board adopted pursuant to this part. In determining the amount of any penalty, the board shall consider the degree and extent of harm caused by the violation.
A violation of this part or any rule lawfully promulgated under this part is a Class B misdemeanor subject to fine only.

Acts 1991, ch. 400, § 20; 2000, ch. 641, § 1.

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

62-32-321. Counties and municipalities.

Counties and municipalities are prohibited from offering services as alarm systems contractors to the general public except as follows:
1. Counties and municipalities may provide those services that would normally be provided by an alarm systems contractor for facilities that are wholly owned and occupied by that county or municipality; and
2. 1. Counties and municipalities may provide monitoring or response services, or both, to alarm systems when deemed in the best public interest; provided, that:
    1. No charge is made by the county or municipality for the service unless the county or municipality was charging for the service on or before July 1, 1991;
    2. Use of local governmental services shall not be mandatory; and
    3. Response by local law enforcement, firefighters or other emergency personnel may not be conditional upon use of the services;
  2. Notwithstanding any language of subdivision (a)(2)(A)(i) to the contrary, no county or municipality shall impose or collect any charge for responding to a false alarm occasioned exclusively by a violent act of nature.
No county or municipality shall enact any legislation or promulgate any rules or regulations relating to the licensing of alarm businesses or alarm systems contractors required to be licensed under this part.
On July 1, 1993, any provision of any legislation or rules or regulations of any county or municipality requiring the certifying or licensing of an alarm business or its employees shall be superseded by this part and no longer be effective.
This part is not, however, intended to and does not prevent the legally constituted authority of any county or municipality by legislation, rules or regulations, and within the police power of the county or municipality, from requiring alarm businesses or alarm agents to register their names, addresses and license certificate numbers with the county or municipality within which they operate. The county or municipality may also require that alarm businesses give reasonable notice of termination of licenses or agents. No fee may be charged nor may any application be required by any county or municipality for the registration.
1. Nothing in this part shall be construed to prohibit counties or municipalities from enacting and imposing penalties for false alarms; provided, that the penalties shall not exceed fifty dollars ($50.00) for each false alarm.
2. Notwithstanding subdivision (e)(1) or a charter, ordinance, or resolution to the contrary, a county or municipality shall not enact any legislation, ordinance, or resolution requiring an alarm systems contractor or alarm business to pay for, collect, or be responsible for fines or fees relative to false alarms, false alarm dispatches, alarm permits, or alarm renewal permits.
Notwithstanding a charter, ordinance, or resolution to the contrary, a county or municipality shall not require an alarm systems contractor or alarm business to acquire or pay for a permit or renewal permit to operate an alarm system at an alarm site that is owned or leased by a customer of the contractor or business. However, this subsection (f) does not apply to an installation permit required by code.
Notwithstanding subdivision (e)(2) and subsection (f), an alarm systems contractor or alarm business:
1. Shall collect monies until December 31, 2019, from a customer of the contractor or business to pay for an annual alarm permit fee imposed on the customer by the county or municipality pursuant to this section if the contractor or business was collecting that fee prior to May 8, 2019; and
2. May, in the sole discretion of the contractor or business, collect monies from a customer of the contractor or business to pay for an annual alarm permit fee imposed on the customer by the county or municipality pursuant to this section if the customer agrees to such collection by the contractor or business.
A contractor or business that collects monies pursuant to subsection (g):
1. Shall pay the collected monies to the applicable county or municipality in accordance with the deadline established by the applicable county or municipality for the payment of the collected monies;
2. May stop the collection of monies pursuant to subdivision (g)(2) at any time in the sole discretion of the contractor or business; and
3. Is not subject to an audit by the county or municipality relative to the collection of monies pursuant to subsection (g).

Acts 1991, ch. 400, § 21; 1992, ch. 977, § 3; 1992, ch. 993, §§ 1-3; 2013, ch. 191, § 1; 2019, ch. 315, §§ 1, 2.

Amendments. The 2019 amendment added (e)(2) and (f) – (h).

Effective Dates. Acts 2019, ch. 315, § 4. May 8, 2019.

62-32-322. Cancellation of contract for alarm system services.

An owner of residential property, that serves as the owner's primary residence, may cancel a contract between the owner and an alarm systems contractor for the provision of alarm system services when the term of the contract is for a period longer than two (2) years by giving thirty-days' written notice to the alarm systems contractor after the initial two (2) years in the term if:

The owner is required to sell the residential property due to medical reasons; and
The owner provides the alarm systems contractor with a letter from the owner's treating physician verifying the medical reasons.

Acts 2017, ch. 209, § 1.

Code Commission Notes.

Former § 62-23-322, concerning initial implementation of title 62, ch. 32, part 3, was deleted as obsolete by the code commission in 2009.

Compiler's Notes. Acts 2017, ch. 209, § 2 provided that the act, which enacted this section, shall apply to contracts for the provision of alarm system services that are entered into or renewed on or after January 1, 2018.

62-32-323. Fund of the state board of alarm contractors.

Notwithstanding any other law to the contrary, all moneys collected pursuant to this part shall be deposited in the state treasury in a separate fund to be known as the fund of the state board of alarm contractors.
Disbursements from the fund shall be made solely for the purpose of defraying expenses incurred in the implementation and enforcement of this part.
Any part of the fund of the state board of alarm contractors 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 part.

Acts 1991, ch. 400, § 23.

62-32-324. Alarm verification.

All persons licensed to monitor alarms in this state shall employ alarm verification for all burglar alarm signals except for hold-up alarms.
Notwithstanding § 62-32-303 or any other law to the contrary, no monitoring company or its representative shall be required to perform an alarm verification prior to requesting law enforcement to be dispatched to a pharmacy.

Acts 2007, ch. 160, § 2; 2011, ch. 52, § 1.

62-32-325. Automatic renewal clauses — Cancellation during automatic renewal period.

A contract having an automatic renewal clause between an alarm systems contractor and any homeowner or renter for the provision of alarm services may automatically be renewed for a period not to exceed one (1) year at a time. Any waiver of the renewal limitation period included in the contract shall be void as contrary to public policy.
At any time during an automatic renewal period provided by contract in accordance with subsection (a), a party to the contract who is being relocated to a hospital, nursing home or assisted living facility may cancel the contract by giving thirty (30) days' written notice to the alarms system contractor.

Acts 2009, ch. 565, § 1.

Chapter 33
[Reserved]

Chapter 34
[Reserved]

Chapter 35
Private Protective Services Licensing and Regulatory Act

62-35-101. Short title.

This chapter shall be known and may be cited as the “Private Protective Services Licensing and Regulatory Act.”

Acts 1987, ch. 436, § 1.

Cross-References. Weapons, title 39, ch. 17, part 13.

Attorney General Opinions. Ability of an armed security guard to carry a weapon on breaks and during off duty hours, OAG 99-189, 1999 Tenn. AG LEXIS 209 (9/22/99).

The Private Protective Services Licensing and Regulatory Act does not prohibit employment of private security guards to protect public property, OAG 03-132, 2003 Tenn. AG LEXIS 155 (10/08/03).

It is possible that a court could conclude that federal law giving United States Department of Energy (DOE) exclusive jurisdiction over nuclear safety at DOE-owned facilities preempts state law, and that private security guards employed by a private security company under contract with DOE could direct traffic on public roads to the extent necessary to maintain nuclear safety, OAG 05-011, 2005 Tenn. AG LEXIS 11 (1/26/05).

Authority of private security guards employed by a company under contract with United States Department of Energy to direct traffic on public roads to the extent necessary to maintain nuclear safety, OAG 05-011, 2005 Tenn. AG LEXIS 11 (1/26/05).

Part-time officers as licensed security guards. OAG 12-77, 2012 Tenn. AG LEXIS 73 (7/25/12).

Searches and arrests on school property. OAG 14-21, 2014 Tenn. AG LEXIS 22 (2/24/14).

62-35-102. Chapter definitions.

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

“Armed security guard/officer” means a security guard/officer who at any time wears, carries, possesses or has access to a firearm or any facsimile of any firearm that may leave the impression that the person is armed and who works in plainclothes or wears dress of a distinctive design or fashion or dress having any symbol, badge, emblem, insignia or device that identifies or tends to identify the wearer as a security guard/officer;
“Branch manager” means the individual who is immediately responsible for the operation of a branch office;
“Branch office” means any office of a contract security company within this state other than its principal place of business within this state;
“Certified trainer” means any individual certified by the commissioner as qualified to administer and certify to successful completion of the minimum training requirements prescribed by this chapter for a security guard/officer;
“Commissioner” means the commissioner of commerce and insurance or the commissioner's designee;
“Contract security company” means any person engaging in the business of providing or undertaking to provide a security guard and patrol service on a contractual basis for another person;
“Licensee” means any contract security company licensed in accordance with this chapter;
“Person” means any individual, firm, association, company, partnership, corporation, nonprofit organization, institution or similar entity;
“Principal corporate officer” means the chief executive officer, president, vice president, treasurer, secretary or comptroller, as well as any other responsible officer or executive employee who performs functions for the corporation corresponding to those performed by the chief executive officer, president, vice president, treasurer, secretary or comptroller;
“Proprietary security organization” means any person or department of the organization that employs a security guard/officer solely for the person in an employer/employee relationship;
“Qualifying agent” means a principal corporate officer meeting the qualifications set forth in this chapter for operating a contract security company;
“Qualifying manager” means an individual designated by a proprietary security organization to be responsible for compliance with this chapter on behalf of the organization;
“Registrant” means an individual who holds a valid registration card;
“Registration card” means a pocket card issued by the commissioner evidencing that the holder has met the qualifications required by this chapter to perform the duties of a security guard/officer in this state;
“Security guard/officer” means an individual employed by a contract security company or a proprietary security organization whose primary duty is to perform any function of a security guard and patrol service;
“Security guard and patrol service” means protection of persons or property, or both, from criminal activities, including, but not limited to:
1. Prevention or detection, or both, of intrusion, unauthorized entry, larceny, vandalism, abuse, fire or trespass on private property;
2. Prevention, observation or detection of any unauthorized activity on private property;
3. Enforcement of rules, regulations or local or state laws on private property;
4. Control, regulation or direction of the flow or movements of the public, whether by vehicle or otherwise on private property; or
5. Street patrol service;
“Street patrol service” means the utilization of foot patrols, motor patrols or any other means of transportation in public areas or on public thoroughfares in order to serve multiple customers or facilities. “Street patrol service” does not apply to:
1. A management supervisor moving from one (1) customer or facility to another to inspect personnel; or
2. A security guard/officer traveling from one (1) facility to another to serve the same customer with multiple facilities;
“Sworn peace officer” means any individual who derives plenary or special law enforcement powers, such as the power of arrest, from, and is an employee of, a federal, state, or local governmental agency or instrumentality;
“Unarmed security guard/officer” means a security guard/officer who never wears, carries or has access to a firearm or any facsimile of a firearm that may leave the impression that the person is armed with a firearm, but who may carry other nonlethal devices as prescribed in this chapter with the proper certification and who works in plainclothes or wears dress of a distinctive design or fashion or dress having any symbol, badge, emblem, insignia, or device that identifies or tends to identify the wearer as a security guard/officer; and
“Undercover agent” means an individual hired by another person, through a contract security company to perform a job in or for that person, and while performing the job, to act as an undercover employee, independent contractor or operative of the person, but under the supervision of the contract security company.

Acts 1987, ch. 436, § 2; 1988, ch. 987, § 1; 1996, ch. 1009, §§ 5-7, 28; 1997, ch. 391, § 1; 2020, ch. 580, § 10.

Amendments. The 2020 amendment substituted “security guard/officer” for “security officer/guard” throughout the definitions of “armed security officer/guard” and “unarmed security officer/guard”.

Effective Dates. Acts 2020, ch. 580, § 19. July 1, 2020.

Attorney General Opinions. Retail employees not within definition of “security guard/officer,” OAG 97-120, 1997 Tenn. AG LEXIS 153 (9/02/97).

A city police department may restrict or prohibit a law enforcement officer from working secondary employment for a “contract security company” during off-duty time, OAG 01-075, 2001 Tenn. AG LEXIS 66 (5/8/01).

A city police department may refuse to enter into a contract for a fee with a “contract security company” to provide “on duty” law enforcement officers for the primary use and benefit of the “contract security company;” however, the police department and its officers might incur liability if the police department discriminated between a “contract security company” and a “proprietary security company” by allowing officers to work for a “proprietary security company” but not a “contract security company,” OAG 01-075, 2001 Tenn. AG LEXIS 66 (5/8/01).

A company or other “person” that provides funeral escort services is not required to be licensed as a contract security company, and registration of either such company's personnel or any other “person,” as either armed or unarmed security guard, is also not required, OAG 02-123, 2002 Tenn. AG LEXIS 128 (11/15/02).

Security officers have the same power of arrest as that afforded to private citizens, OAG 03-018, 2003 Tenn. AG LEXIS 23 (2/19/03).

Negligent actions or omissions by private security guards and other private citizens would not trigger liability under the Governmental Tort Liability Act, OAG 03-088, 2003 Tenn. AG LEXIS 107 (7/15/03).

Tennessee Code Annotated Title 62, Chapter 35 security officers do not have the authority to enforce motor vehicle restrictions under T.C.A. title 55, chapter 8, OAG 03-088, 2003 Tenn. AG LEXIS 107 (7/15/03).

If a security officer has a reasonable belief that unauthorized activity is taking place on the property, the officer may stop the person, OAG 03-149, 2003 Tenn. AG LEXIS 166 (11/17/03).

A security guard is authorized to stop a vehicle for trespassing, or any other violation of law, OAG 03-149, 2003 Tenn. AG LEXIS 166 (11/17/03).

A security officer has the right to stop a person for questioning on property he/she is hired to protect, but only within the scope of the suspect's consent unless the officer has placed the suspect under arrest, OAG 04-006, 2004 Tenn. AG LEXIS 4 (1/12/04).

A security officer has the right to stop a person in a vehicle for trespassing or any other law violation that occurs in his/her view on property the officer was hired to protect, but the officer may not detain the suspect without consent; he or she must either arrest the suspect on supportable probable cause or expel the suspect from the property, OAG 04-006, 2004 Tenn. AG LEXIS 4 (1/12/04).

A security officer lacks the authority to detain a suspect without consent unless the officer has arrested the suspect on supportable probable cause, OAG 04-006, 2004 Tenn. AG LEXIS 4 (1/12/04).

A private college that employs unarmed security guards comes within the definition of a proprietary security organization, OAG 06-146, 2006 Tenn. AG LEXIS 166 (9/26/06).

License for Church Congregations Using Volunteer Members for Security Purposes, OAG 15-64, 2015 Tenn. AG LEXIS 64 (8/21/15).

The registration requirements of the Private Protective Services Licensing and Regulatory Act do not apply to companies that use or provide certified law enforcement officers to others exclusively for traffic control purposes within temporary work zones. Since the Act “does not apply to” companies that employ law enforcement officers exclusively to direct traffic in temporary work zones, the Commissioner of Commerce and Insurance has no authority to regulate or inspect or investigate them. A law enforcement agency is not a “person” as defined by the Act. OAG 17-28, 2017 Tenn. AG LEXIS 27 (4/11/2017).

NOTES TO DECISIONS

1. Security Guards.

Private security guards are authorized to enforce local and state laws and to protect persons and property against general criminal activities, whether the guard is a private citizen or an off-duty police officer. White v. Revco Discount Drug Ctrs., Inc., 33 S.W.3d 713, 2000 Tenn. LEXIS 650 (Tenn. 2000), rehearing denied, White v. Revco Disc. Drug Ctr., Inc., 37 S.W.3d 885, 2001 Tenn. LEXIS 508 (Tenn. 2001).

Trial court did not err by denying defendant's motion to suppress because the seizure of defendant's cell phone by a private security guard, licensed by the State did not constitute state action in violation of defendant's Fourth Amendment rights, as the intent of the security guard was to identify the owner of the phone, the security guard was not endowed by law with plenary police powers such that he was a de facto police officer, and the choice of private establishments to use private security guards was not an affirmative action by the State to control, designate, or direct private security guards to act in a certain way in the course of their employment. State v. Simpson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 594 (Tenn. Crim. App. Sept. 1, 2020).

62-35-103. Exemptions from chapter provisions.

This chapter does not apply to:
1. A government officer or employee performing official duties;
2. A consumer reporting agency, as defined by the Federal Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.);
3. An attorney at law or the attorney's agent performing duties relating to the attorney's practice of law;
4. An insurance company, agent, broker or adjuster performing investigative duties in connection with insurance business transacted;
5. A holder of a purchase money security interest or the holder's agent repossessing the personal property in which the interest is held;
6. A private business employee conducting investigations relating to the internal affairs of the business;
7. A full-time sworn peace officer receiving compensation for services as a guard, patrol or watchperson under a contract with a private business that is properly licensed by the state;
8. An unarmed employee, whether uniformed or nonuniformed, in the course and scope of employment of a hospital who exceeds all training requirements established in § 62-35-118 by having received no less than twelve (12) classroom hours of training. The course curriculum for the training shall be on file with the commissioner;
9. Private entities contracting with governmental entities for the care, supervision or transportation of inmates. This exemption shall in no way authorize government contracts for the care, supervision or transportation of inmates;
10. A private special deputy appointed pursuant to § 38-8-118;
11. A special deputy appointed pursuant to § 8-8-212 or a special police officer appointed by the chief of police in a county having a metropolitan form of government and a population in excess of five hundred thousand (500,000), according to the 1990 federal census or any subsequent federal census;
12. A retired peace officer receiving compensation for services as a guard, patrol or watchperson under a contract with a private business that is properly licensed by the state; provided, that the retired peace officer:
  1. Completes the firearms and marksmanship training required by § 62-35-118(b); and
  2. Has a written directive issued by the executive supervisor of the organization to which the person was attached or employed authorizing the person to carry a handgun;
13. 1. One (1) designated employee per business location of a private company, firm, partnership or corporation that is not a contract security company or proprietary security organization whose duties include those of an unarmed security guard/officer during nonbusiness hours;
  2. Pursuant to this subdivision (a)(13), no person, while performing any function of a security guard and patrol service during nonbusiness hours, shall:
    1. Wear or display any badge, insignia, shield, patch or pattern that:
      1. Indicates or tends to indicate that the person is a sworn peace officer;
      2. Contains or includes the word “police” or the equivalent of that word; or
      3. Is similar in wording to any law enforcement agency in this state; or
    2. Have or utilize any vehicle or equipment that:
      1. Displays the words “police,” “law enforcement officer,” or the equivalent of those words; or
      2. Has any sign, shield, accessory or insignia that may indicate that the vehicle or equipment belongs to a public law enforcement agency;
14. A special police officer appointed by a chief of police or by the sheriff in any county having a population of no less than one hundred fifty-three thousand (153,000) nor more than one hundred fifty-three thousand one hundred (153,100), according to the 2000 federal census or any subsequent census. A special police officer appointed pursuant to this subdivision (a)(14) shall have qualifications that are equivalent or superior to those required for a law enforcement officer under the standards established by the peace officer standards and training commission for law enforcement officers; or
15. 1. A company using or providing certified law enforcement officers to others exclusively for traffic control purposes within temporary work zones located in the public right-of-way and established in accordance with the manual on uniform traffic control devices (MUTCD); provided, however, that any department providing the law enforcement officers may require the company to have on staff a traffic control supervisor or a traffic engineer in order to insure compliance with the MUTCD and may also require the company to demonstrate proof of liability insurance; or
  2. Commissioned, uniformed police officers, state troopers and/or sheriff deputies, upon departmental approval, are authorized, regardless of primary jurisdiction, to direct traffic in departmental approved uniforms or utilizing other governmental equipment, as may be required, in temporary work zones or for incident management purposes, to meet the needs of and control all road users, whether motorists, bicyclists, or pedestrians, within the highway, including persons with disabilities in accordance with the Americans with Disabilities Act of 1990 (ADA), Title II, Paragraph 35.130, upon any public roadway located within the state.
1. Section 62-35-118(a), only, shall not apply to a person employed as an unarmed security guard/officer by a proprietary security organization.
2. For the purposes of this subsection (b), an unarmed security guard/officer shall not carry a weapon of any kind.
3. It is the desire of the general assembly that unarmed proprietary security guards/officers whose primary duties involve contact with the public should have training in the areas of legal powers and limitations and of emergency procedures as deemed necessary by their employers. The commissioner may provide the employers information concerning these areas.

Acts 1987, ch. 436, § 3; 1988, ch. 987, § 2; 1989, ch. 142, § 1; 1990, ch. 816, §§ 1, 2; 1996, ch. 1009, §§ 8, 9; 1997, ch. 118, § 1; 1997, ch. 137, § 1; 1997, ch. 274, § 1; 1998, ch. 865, § 1; 2001, ch. 452, § 2; 2002, ch. 590, § 1; 2004, ch. 661, § 2; 2006, ch. 862, § 4; 2006, ch. 1013, § 5.

Compiler's Notes. Acts 1997, ch. 137, § 2 provided that (a)(10), added by that act, is retroactive to October 31, 1996.

For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

The Americans with Disabilities Act, referred to in this section, is codified as 42 U.S.C. § 12101 et seq.

Attorney General Opinions. A security officer is authorized to detect trespassers, OAG 03-148, 2003 Tenn. AG LEXIS 165 (11/17/03).

Security guards are authorized to enforce state and local laws on private property, OAG 03-148, 2003 Tenn. AG LEXIS 165 (11/17/03).

A security guard may enter a room to prevent and detect the use of illegal drugs, OAG 03-148, 2003 Tenn. AG LEXIS 165 (11/17/03).

A security officer may be considered an agent of the person in control of the property, OAG 03-148, 2003 Tenn. AG LEXIS 165 (11/17/03).

Part-time officers as licensed security guards. OAG 12-77, 2012 Tenn. AG LEXIS 73 (7/25/12).

Authority of full-time law enforcement officers and reserve officers, both on or off duty, and funeral escort services as to use of flashing blue lights and sirens. OAG 13-52, 2013 Tenn. AG LEXIS 52 (7/2/13).

The departmental approval required under T.C.A. § 62-35-103(a)(15)(B) refers to approval from the law enforcement agency of the individual peace officer’s primary jurisdiction, not to approval from the Commissioner. The exemption in T.C.A. § 62-35-103(a)(15)(B) applies to part-time or reserve peace officers who are commissioned by a Tennessee law enforcement agency but not certified by Tennessee Peace Officer Standards and Training Commission (“POST”). OAG 16-43, 2016 Tenn. AG LEXIS 43 (12/14/2016).

Under T.C.A. § 62-35-141(a), the licensed contract security company that employs the peace officer outside the peace officer’s primary jurisdiction is responsible for notifying the chief law enforcement officer of the jurisdiction in which the peace officer is temporarily employed. The Commissioner may pursue disciplinary action against the licensed contract security company if it violates the notification requirement. T.C.A. § 62-35-141(a) applies only to full-time peace officers. The notification requirement under TC.A. § 62-35-141(a) does not apply to part-time or reserve officers regardless of their certification status with POST or the types of services they provide. OAG 16-43, 2016 Tenn. AG LEXIS 43 (12/14/2016).

62-35-104. License required to act as contract security company.

Except as otherwise provided in this chapter, it is unlawful for any person to act as a contract security company without having first obtained a license from the commissioner.

Acts 1987, ch. 436, § 4.

Cross-References. Hiring armed guards without permit from governor, § 50-1-102.

Attorney General Opinions. A company or other “person” that provides funeral escort services is not required to be licensed as a contract security company, and registration of either such company's personnel or any other “person,” as either armed or unarmed security guard, is also not required, OAG 02-123, 2002 Tenn. AG LEXIS 128 (11/15/02).

License for Church Congregations Using Volunteer Members for Security Purposes, OAG 15-64, 2015 Tenn. AG LEXIS 64 (8/21/15).

62-35-105. Application for licenses — Filing — Form — Contents.

An application for a contract security company license shall be filed with the commissioner on the prescribed form. The application shall include:
1. 1. The full name and business address of the applicant;
  2. If the applicant is a partnership, the name and address of each partner; or
  3. If the applicant is a corporation, the name and address of the qualifying agent;
2. The name under which the applicant intends to do business;
3. The address of the principal place of business and all branch offices of the applicant within this state;
4. As to each individual applicant or, if the applicant is a partnership, as to each partner or, if the applicant is a corporation, as to the qualifying agent, the following information:
  1. Full name;
  2. Date and place of birth;
  3. [Deleted by 2020 amendment.]
  4. [Deleted by 2020 amendment.]
  5. One (1) set of classifiable electronic fingerprints; and
  6. [Deleted by 2020 amendment.]
  7. A list of all convictions and pending charges of commission of a felony or misdemeanor in any jurisdiction;
5. If the applicant is a corporation, the following information:
  1. The correct legal name of the corporation;
  2. The state and date of incorporation;
  3. The date the corporation qualified to do business in this state;
  4. The address of the corporate headquarters, if located outside this state; and
  5. The names of two (2) principal corporate officers other than the qualifying agent and the business address, residence address and the office held by each in the corporation; and
6. Other information the commissioner may reasonably require.
The application shall be subscribed and sworn to:
1. By the applicant, if the applicant is an individual;
2. By each partner, if the applicant is a partnership; or
3. By the qualifying agent, if the applicant is a corporation.
Any individual signing the application must be at least twenty-one (21) years of age.
1. Notwithstanding any provision of this chapter to the contrary, a properly licensed contract security company may use temporary employees not registered with the department as temporary security guard/officers for special events upon the approval of a special event permit by the commissioner. A temporary security guard/officer used pursuant to this subdivision (d)(1) must:
  1. Be at least eighteen (18) years of age;
  2. Act as a temporary security guard/officer under a special event permit for no more than ten (10) days in a calendar year;
  3. Have no arrest authority; and
  4. Not be armed during the temporary employment.
2. Applications for a special event permit must include:
  1. The names of the temporary employees;
  2. The addresses of the temporary employees;
  3. The birth dates of the temporary employees;
  4. The fee as set by subsection (e);
  5. The identity, location, and date of the special event or events for which the temporary employees are to be employed; and
  6. Other information as the commissioner may reasonably require.
Applications for a special event permit must be submitted to the commissioner at least five (5) days prior to the commencement of the special event and accompanied by a fee for each temporary employee or special event permit as set by rule. If the commissioner has not set a fee for registration of a temporary employee or special event permit by rule, then the fee shall be thirty-five dollars ($35.00) per temporary employee.
A special event permit shall only be valid for the dates, locations, and events disclosed on the permit application. A new application for a special event permit must be filed for any additional dates or locations not authorized.
The commissioner may decline to issue a special event permit if the commissioner, in the commissioner's sole discretion, determines that the issuance of such a permit is not in the best interest of the public based on the size of the event, the level of security required by the event, the number of permits previously issued to a contract security company during the past year, or other factors as the commissioner may reasonably consider.
Prior to approving the request for a special event permit, the commissioner may require that any person requesting a permit provide a bond on a form acceptable to the commissioner in an amount set by the commissioner. The bond shall be for the benefit of any person who is damaged by a temporary security guard/officer acting under a special event permit.

Acts 1987, ch. 436, § 5; 2017, ch. 226, § 7; 2020, ch. 580, §§ 1, 2, 11.

Amendments. The 2020 amendment substituted “temporary security guard/officers” for “temporary security guards” and “temporary security guard/officer” for “temporary security guard” throughout the section; deleted (a)(4)(C) which read: “All residences during the immediate past five (5) years;”; deleted (a)(4)(D) which read: “All employment or occupations engaged in during the immediate past five (5) years;”; substituted “One (1) set of classifiable electronic fingerprints” for “Three (3) sets of classifiable fingerprints” in (a)(4)(E); and deleted (a)(4)(F) which read: “Three (3) credit references from lending institutions or business firms with whom the subject has established a credit record; and”.

Effective Dates. Acts 2020, ch. 580, § 19. July 1, 2020.

62-35-106. Qualifications of applicants.

Each individual applicant or, if the applicant is a partnership, each partner or, if the applicant is a corporation, the qualifying agent, must:

Be at least twenty-one (21) years of age;
Be a citizen of the United States or a resident alien;
Not have been declared by any court of competent jurisdiction incompetent by reason of mental defect or disease unless a court of competent jurisdiction has since declared the applicant competent;
Not be suffering from habitual drunkenness or narcotics addiction or dependence;
Be of good moral character; and
1. Possess at least three (3) years of experience as a manager, supervisor or administrator with a contract security company or proprietary security organization;
2. Possess at least three (3) years of experience satisfactory to the commissioner with any federal, United States military, state, county or municipal law enforcement agency; or
3. Pass an examination to be administered at least twice annually by the commissioner, designed to measure knowledge and competence in the contract security company business.

Acts 1987, ch. 436, § 6.

62-35-107. Action upon applications — Investigations — Approval or denial of licenses.

Upon receipt of an application for a license, the commissioner shall:
1. Conduct an investigation to determine whether the statements made in the application are true;
2. Compare or request that the Tennessee bureau of investigation compare the fingerprints submitted with the application to fingerprints filed with the bureau; and
3. Submit the fingerprints to the federal bureau of investigation for a search of its files to determine whether the individual fingerprinted has any recorded convictions.
The commissioner shall issue a license in a form which the commissioner shall prescribe to qualified applicants upon receipt of a nonrefundable, nonproratable fee in accordance with the schedule promulgated by the commissioner.
If an application for a license is denied, the commissioner shall notify the applicant in writing and shall set forth the grounds for denial. If the grounds are subject to correction by the applicant, the notice of denial shall so state and specify a reasonable period of time within which the applicant must make the required correction.
An application shall be accompanied by a notarized statement sworn to by the applicant as to the number of employees in service. Making a false statement shall be punishable by a civil penalty not to exceed one thousand dollars ($1,000) and assessment of the maximum application fee.

Acts 1987, ch. 436, § 7; 1988, ch. 717, §§ 1, 3; 1989, ch. 523, § 187; 1990, ch. 1026, § 25.

62-35-108. Posting of license.

Every license issued under this chapter shall be posted conspicuously in the licensee's principal place of business in this state.

Acts 1987, ch. 436, § 8.

62-35-109. License not transferable or assignable.

No contract security company license shall be transferable or assignable.

Acts 1987, ch. 436, § 9.

62-35-110. Renewal of license.

A contract security company license or renewal of the license shall be valid for a period of two (2) years from the date of issuance. The commissioner shall provide each licensee with a renewal application form sixty (60) days prior to the expiration of the license.
The fee for timely renewal of a license shall be in accordance with the schedule promulgated by the commissioner. A penalty fee as prescribed by the commissioner will be assessed on any renewal application postmarked after the expiration date of the license.
Licenses may be renewed up to three (3) months after their expiration by the payment of the renewal fee plus a penalty established by the commissioner for each month or portion of a month that elapses before payment is tendered.
A renewal application shall be accompanied by a notarized statement sworn to by the applicant as to the number of employees in service. Making a false statement shall be punishable by a civil penalty of two hundred fifty dollars ($250) and assessment of the maximum renewal fee.

Acts 1987, ch. 436, § 10; 1988, ch. 717, §§ 2, 4; 1989, ch. 523, § 188; 1996, ch. 1009, § 26.

62-35-111. Qualifying agent ceasing to perform duties.

If the qualifying agent of a licensee ceases to perform the qualifying agent's duties on a regular basis, the licensee shall:
1. Within thirty (30) days, notify the commissioner by certified or registered mail; and
2. Within three (3) months, obtain a substitute qualifying agent.
The commissioner may, in the commissioner's discretion, extend the period for obtaining a substitute qualifying agent for a reasonable time.

Acts 1987, ch. 436, § 11.

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

62-35-112. Licensee to notify commissioner of certain changes in status.

A licensee shall notify the commissioner in writing within thirty (30) days of:

Any change in the qualifying agent or principal corporate officers identified in its application for license;
Any material change in the information previously furnished or required to be furnished to the commissioner; or
Any occurrence that could reasonably be expected to affect the licensee's right to a license under this chapter.

Acts 1987, ch. 436, § 12.

62-35-113. Change in ownership — Application for license — Operation under old license.

If the ownership of a contract security company changes, the new owner, if not already a licensee, may not operate that company 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. If the application is submitted, the new owner may continue to operate the company until the application has been finally determined by the commissioner.
For good cause, the commissioner may extend the period for submitting an application pursuant to subsection (a) for a reasonable time.

Acts 1987, ch. 436, § 13.

62-35-114. Certificates of insurance — General liability coverage.

All licensees and employers of private security guards/officers shall retain a certificate of insurance evidencing general liability coverage for the negligent act or acts of the principal insured or the principal insured's agents operating in the course and scope of employment for bodily injury, personal injury and property damage, with endorsements for personal injury, including false arrest, libel, slander and invasion of privacy, in the minimum amount of three hundred thousand dollars ($300,000) for bodily or personal injury and one hundred thousand dollars ($100,000) for property damage. The certificate shall be available for inspection during normal business hours on request of the commissioner or duly appointed and identified representative or representatives. The certificates shall provide that the insurance shall not be modified or cancelled without thirty (30) days' prior notice to the commissioner. All persons required to be insured by this chapter must be insured by a carrier approved in the state in which the insurance has been purchased or in this state.

Acts 1987, ch. 436, § 14; 1988, ch. 987, § 3.

62-35-115. Registration cards — Guards, officers and agents.

Except as otherwise provided in this chapter, it is unlawful for any individual to act as an armed or unarmed security guard/officer without having first obtained the appropriate registration card from the commissioner.
Any individual who holds a valid armed security guard/officer registration card may act as an armed or unarmed security guard/officer under that registration card.
Any individual who is employed exclusively as an undercover agent is not required to hold a registration card.

Acts 1987, ch. 436, § 15.

Cross-References. Carrying of firearms by guards, § 62-35-125.

Hiring armed guards without permit from governor, § 50-1-102.

Attorney General Opinions. Any person, including a sworn peace officer regardless of jurisdiction, who meets the statutory qualifications and requirements, may act as a security guard for a licensed contract security company, OAG 00-166, 2000 Tenn. AG LEXIS 169 (10/24/00).

Unless one of the exemptions listed in T.C.A. § 62-35-103 applies to the individual unarmed security guard, he or she is required to register with the department of commerce and insurance, OAG 06-146, 2006 Tenn. AG LEXIS 166 (9/26/06).

62-35-116. Registration cards — Filing — Form — Fee — Contents — Change of registration status.

An application for a registration card shall be filed with the commissioner on the prescribed form. The application shall be accompanied by nonrefundable and nonproratable fees for both armed and unarmed registrations. The commissioner shall establish the amounts of the fees in varying amounts for different types of registrations at reasonable levels. The applicant shall furnish the following information:
1. Name and current residence address;
2. Date and place of birth;
3. Social security number;
4. Telephone number, if any;
5. [Deleted by 2020 amendment.]
6. [Deleted by 2020 amendment.]
7. One (1) set of classifiable electronic fingerprints;
8. One (1) head-and-shoulder photograph taken within the last six (6) months;
9. A general physical description;
10. A list of all convictions and pending charges of commission of a felony or misdemeanor in any jurisdiction;
11. A list of all names used by the applicant other than the name by which the applicant is currently known, with a statement explaining where, when and why the names were used;
12. A statement whether the applicant has ever been issued or denied a registration card in any jurisdiction and whether the card, if issued, has ever been revoked or suspended;
13. Type of military discharge; and
14. Type of security guard/officer registration card, armed or unarmed, applied for. If the applicant seeks an armed registration card, the application shall also include a signed sworn statement that the applicant has had no convictions in any state for a felony.
Any applicant who has already submitted an application for registration or to whom a valid registration card has been issued may submit an application to change registration status from unarmed to armed or from armed to unarmed status. The commissioner may establish the amounts of the fees at levels lower than those required for an initial application for registration.

Acts 1987, ch. 436, § 16; 1988, ch. 987, § 4; 1990, ch. 1026, § 5; 1991, ch. 425, §§ 1, 2; 2020, ch. 580, §§ 3-5.

Amendments. The 2020 amendment deleted (a)(5) which read: “All residences during the immediate past five (5) years;”; deleted (a)(6) which read: “All employment or occupations engaged in during the immediate past five (5) years;”; substituted “One (1) set of classifiable electronic fingerprints” for “Three (3) sets of classifiable fingerprints” in (a)(7); and substituted “One (1) head-and-shoulder photograph” for “Three (3) head-and-shoulder photographs” in (a)(8).

Effective Dates. Acts 2020, ch. 580, § 19. July 1, 2020.

62-35-117. Registration cards — Qualifications of applicants.

Each applicant for a registration card must:

Be at least twenty-one (21) years of age if applying for an armed registration card or at least eighteen (18) years of age if applying for unarmed registration;
Be a citizen of the United States or resident alien;
Not have been declared by any court of competent jurisdiction incompetent by reason of mental defect or disease unless a court of competent jurisdiction has since declared the applicant competent;
If convicted in any jurisdiction of any of the crimes listed in this subdivision (4), have completed serving sentence or court ordered probation at least five (5) years prior to application. Conviction of the following crimes shall disqualify an applicant, subject to the conditions stated in this section:
1. Any felony; or
2. Any misdemeanor involving:
  1. Shooting a firearm or other weapon;
  2. Shoplifting;
  3. Assault and battery or other act of violence against persons or property;
  4. Crimes involving the sale, manufacture or distribution of controlled substances, controlled substance analogues, drugs or narcotics;
  5. Theft of property; or
  6. Theft of services;
Not be suffering from habitual drunkenness or narcotics addiction or dependence;
Not have any disability that, in the opinion of the commissioner, prevents the applicant from performing the duties of a security guard/officer; and
Be of good moral character.

Acts 1987, ch. 436, § 17; 1988, ch. 987, § 16; 1993, ch. 200, § 2; 2012, ch. 848, § 64.

62-35-118. Registration cards — Training and examination of applicants.

1. Within fifteen (15) days of employment, an unarmed security guard/officer applicant must complete general training and pass an examination and an armed security guard/officer applicant must complete general training, pass an examination and complete the training in subsection (b) within sixty (60) days of employment.
2. Both unarmed security guard/officer and armed security guard/officer applicants must complete at least four (4) hours of general training administered by a certified trainer and pass an examination, covering at least the following subjects:
  1. Orientation: one (1) hour;
  2. Legal powers and limitations of a security guard/officer: one (1) hour;
  3. Emergency procedures: one (1) hour; and
  4. General duties: one (1) hour.
3. For applicants for private security guard/officer registration who will carry a club, stun gun, chemical spray, night stick or other less than lethal device, the commissioner shall require appropriate training specific to the device by a certified trainer who is certified to instruct for the specific device. It shall be the employers' responsibility to keep training records of their employees for each specific device. The security guard/officer shall also have in the person's possession a certification card issued by an instructor/trainer who is certified to instruct/train in the legal use of the specific device and shall exhibit the card upon demand by the commissioner, the commissioner's duly authorized agent or any full-time law enforcement officer.
If applying for an armed security guard/officer registration card, before being issued a firearm, the applicant must also:
1. Complete at least eight (8) additional classroom hours of firearms training administered by a certified trainer and pass an examination covering at least the following subjects:
  1. Legal limitations of the use of a firearm;
  2. Handling of a firearm; and
  3. Safety and maintenance; and
2. Complete at least four (4) hours of marksmanship training administered by a certified trainer, and achieve a minimum of seventy percent (70%) on any silhouette target course approved by the commissioner.
A certified trainer shall submit a statement to the commissioner certifying that an applicant has satisfactorily completed the required training within fifteen (15) days of training.
1. The requirements of subsection (a) do not apply to those applicants for registration as unarmed security guards/officers who have at least one (1) year of experience as a security guard/officer as of July 1, 1988, or who have had no less than four (4) hours of training equivalent to that required in subsection (a) in the year prior to filing the application.
2. The requirements of subsection (b) do not apply to those applicants for registration as armed security guards/officers who have had no less than twelve (12) hours of training equivalent to that required in subsection (b) in the year prior to filing the application.
3. The requirements of subsections (a) and (b) do not apply to an applicant for registration who is a sworn peace officer and certified by the police officer standards and training commission. The commissioner may issue a temporary registration card to the officer upon the commissioner's verification of the officer's certification.
4. The requirements of subsection (a) do not apply to an applicant for registration who is a state or local correctional officer or jailer; provided, that the state officer has successfully completed the appropriate basic training required by § 41-1-116 and is current on all annual refresher courses required by § 41-1-116 and the local officer or jailer has successfully completed comparable basic training and annual in-service training courses. The commissioner may issue a temporary registration card to the officer upon the commissioner's verification that the officer meets the requirements of this subdivision (d)(4).

Acts 1987, ch. 436, § 18; 1988, ch. 987, §§ 5-7; 1993, ch. 200, § 3; 1995, ch. 249, § 1; 1996, ch. 1009, § 4; 1997, ch. 369, § 1; 2004, ch. 661, § 1; 2006, ch. 1013, §§ 1, 2; 2020, ch. 580, §§ 10, 12, 13.

Amendments. The 2020 amendment, in (a)(1), substituted “unarmed security guard/officer applicant must complete” for “unarmed guard applicant shall complete” and “armed security guard/officer applicant must complete” for “armed guard applicant shall complete”; substituted “Both unarmed security guard/officer and armed security guard/officer applicants must complete” for “Both the armed and unarmed guard applicants shall complete” in (a)(2); and substituted “security guard/officer” for “security officer/guard” twice in (a)(3).

Effective Dates. Acts 2020, ch. 580, § 19. July 1, 2020.

Cross-References. Applicability of section to unarmed security guards or officers, § 62-35-103.

Carrying of firearms by guards, § 62-35-125.

Certified trainers, instructors, § 62-35-126.

62-35-119. Registration cards — Investigation of applicants — Issuance or denial of cards.

1. Upon receipt of an application for a registration card, the commissioner:
  1. Shall conduct an investigation to determine whether the statements made in the application are true;
  2. Shall cause the applicant's fingerprints to be compared with fingerprints filed with the Tennessee bureau of investigation; and
  3. If the application is for an armed security guard/officer registration card, shall, or if the application is for an unarmed security guard/officer registration card may, submit the applicant's fingerprints and photograph to the federal bureau of investigation for a search of its files to determine whether the applicant has any recorded convictions.
2. 1. The department of commerce and insurance has the authority to query the Tennessee bureau of investigation's Tennessee criminal history records system for the following information:
    1. Tennessee criminal history records;
    2. Tennessee repository for apprehension of persons (TRAP); and
    3. State of Tennessee orders of protection files (STOP).
  2. The records may be used in lieu of fingerprint background checks for the issuance of unarmed security guard/officer registrations, if requested.
Pending issuance, denial, or renewal of a registration card by the commissioner, the applicant may work as an unarmed security guard/officer, if the applicant submits a completed application form, one (1) set of classifiable electronic fingerprints, one (1) head-and-shoulder photograph taken within the last six (6) months, and the application fee to the commissioner, and the applicant keeps a copy of the completed application form on the applicant's person while on duty.
1. The commissioner shall issue to a qualified applicant a registration card for armed security guard/officer or unarmed security guard/officer registration upon receipt of the appropriate payment of fees and a statement from a certified trainer that the training required by this chapter has been completed. The commissioner shall establish the appropriate amounts for the fees required by this subsection (c).
2. [Deleted by 2020 amendment.]

Acts 1987, ch. 436, § 19; 1988, ch. 987, § 8; 1990, ch. 1026, § 6; 1991, ch. 425, § 3; 1995, ch. 249, § 2; 2000, ch. 705, § 1; 2006, ch. 1013, § 3; 2020, ch. 580, §§ 6-8, 14.

Amendments. The 2020 amendment deleted “or for the issuance of conditional armed security guard/officer registrations” following “registrations” in (a)(2)(B); in (b), substituted “one (1) set” for “three (3) sets”, inserted “electronic”, substituted “one (1) head-and-shoulder photograph” for “three (3) sets of head-and-shoulder photographs”, and deleted the former last six sentences, which read: “The applicant may only work using the completed application form for seventy-five (75) business days from the date that the completed application form, three (3) sets of classifiable fingerprints, three (3) sets of head-and-shoulder photographs taken within the last six (6) months and the application fee are received by the commissioner, pending the issuance or denial of the registration card by the commissioner. A qualified applicant may receive a conditional armed registration card pending receipt of the federal bureau of investigation report. The commissioner shall notify the applicant by postcard that all elements required for the armed registration card have been satisfied, except for receipt of the federal bureau of investigation report. The applicant may use the postcard as a conditional armed registration card until the application is ultimately granted or denied. The postcard shall include an expiration date, which shall be established by the department. If no determination is made on the original application before the expiration of the conditional armed registration card, a second conditional armed registration card may be issued.”; substituted “armed security guard/officer or unarmed security guard/officer” for “armed or unarmed security officer” in (c)(1); and deleted former (c)(2) which read: “The commissioner shall issue to a qualified applicant who is a sworn peace officer a registration card for armed or unarmed security officer registration upon receipt of the appropriate payment of fees and verification of the officer's police officer standards and training commission certification.”

Effective Dates. Acts 2020, ch. 580, § 19. July 1, 2020.

62-35-120. Registration cards — Possession and exhibition — Notice of arrest and conviction.

The application or registration card shall be exhibited upon request of the commissioner, the commissioner's designee, a full-time law enforcement officer or an employer to verify that the security guard/officer is working pursuant to the requirements of this chapter.
A security guard/officer shall provide written notice to the commissioner or the commissioner's designee and to the licensee or the proprietary security organization that employs the security guard/officer of any arrest and resulting conviction, except for minor traffic violations, within thirty (30) days of the arrest or conviction.

Acts 1987, ch. 436, § 20; 1996, ch. 1009, §§ 1, 10; 2006, ch. 1013, § 4; 2020, ch. 580, § 10.

Amendments. The 2020 amendment substituted “security guard/officer” for “security officer/guard” throughout the section.

Effective Dates. Acts 2020, ch. 580, § 19. July 1, 2020.

62-35-121. Registration cards — Not transferable or assignable.

No registration card shall be transferable or assignable.

Acts 1987, ch. 436, § 21.

62-35-122. Registration cards — Expiration — Renewal.

All registration cards or renewals of registration cards shall expire two (2) years from date of issuance.
The commissioner shall establish the fees in reasonable amounts for the timely renewal of armed or unarmed registration cards.
Registrations may be renewed up to three (3) months after their expiration by payment of the renewal fee plus a penalty established by the commissioner for each month or portion of a month that elapses before payment is tendered.
Every armed security guard/officer shall as a prerequisite for the renewal of the person's registration card:
1. Complete four (4) hours of refresher training administered by a certified trainer in the subjects listed in § 62-35-118(b)(1); and
2. Requalify in the use of a firearm by achieving a minimum of seventy percent (70%) on any silhouette target course approved by the commissioner.

Acts 1987, ch. 436, § 22; 1988, ch. 987, § 9; 1990, ch. 1026, § 7; 1991, ch. 425, § 4; 1996, ch. 1009, § 11.

62-35-123. Notice to commissioner prior to acting as proprietary security organization.

It is unlawful for any person to act as a proprietary security organization without first having notified the commissioner in writing. The notice shall include:
1. The full name and business address of the proprietary security organization;
2. The full name and the business and residence addresses of the qualifying manager; and
3. Other information that the commissioner may reasonably require.
Notwithstanding the requirements of subsection (a), a hospital that employs only unarmed security guards/officers may voluntarily elect to submit to the requirements for a proprietary security organization under this chapter and evidence the election by filing with the commissioner the notice required in subsection (a). The notice is revocable by the hospital at any time upon appropriate notice of revocation.

Acts 1987, ch. 436, § 23; 1988, ch. 987, § 10.

Attorney General Opinions. License for Church Congregations Using Volunteer Members for Security Purposes, OAG 15-64, 2015 Tenn. AG LEXIS 64 (8/21/15).

62-35-124. Registration cards — Notice concerning eligibility to hold.

A licensee or proprietary security organization shall immediately notify the commissioner upon receipt of any information relating to a registrant's continuing eligibility to hold a registration card under this chapter.
A licensee or proprietary security organization shall provide written notice to the commissioner or the commissioner's designee of any arrest or conviction, or both, except for minor traffic violations, within thirty (30) days of being notified or learning of the arrest or conviction, or both, of:
1. The licensee or its qualifying agent; or
2. Any person employed as a security guard/officer by the licensee or the proprietary security organization.

Acts 1987, ch. 436, § 24; 1996, ch. 1009, § 2; 2020, ch. 580, § 10.

Amendments. The 2020 amendment substituted “security guard/officer” for “security officer/guard” in (b)(2).

Effective Dates. Acts 2020, ch. 580, § 19. July 1, 2020.

62-35-125. Carrying of weapons by security guards/officers.

An armed security guard/officer may carry only the types of firearms that the commissioner prescribes, by rules and regulations, in the performance of the person's duties. A security guard/officer may carry a firearm only if certified to carry the firearm. With proper certification, an unarmed or armed security guard/officer may carry any other type weapon, including, but not be limited to, clubs or batons, stun guns, the chemical spray known as mace or any other tool or weapon that the commissioner may prescribe.

Acts 1987, ch. 436, § 25; 1988, ch. 987, § 11; 1996, ch. 1009, § 12; 1997, ch. 369, § 4; 2020, ch. 580, § 10.

Amendments. The 2020 amendment substituted “security guard/officer” for “security officer/guard” throughout the section.

Effective Dates. Acts 2020, ch. 580, § 19. July 1, 2020.

Cross-References. Unlawful activities regarding firearms, § 62-35-134.

62-35-126. Certified trainers — Instructors.

An individual is eligible to become a certified trainer only if the individual:
1. Is at least twenty-one (21) years of age;
2. Has at least one (1) year of supervisory experience satisfactory to the commissioner with a contract security company or proprietary security organization or with any federal, United States military, state, county or municipal law enforcement agency; and
3. Is personally qualified to conduct the training required by this chapter.
A certified trainer may, in the trainer's discretion, instruct personally or use a combination of personal instruction, audio or visual training aids.
To assist in the implementation of the training program, the certified trainer may appoint as an instructor any individual who:
1. Is at least twenty-one (21) years of age; and
2. Has at least one (1) year of experience with any federal, United States military, state, county or municipal law enforcement agency or with a contract security company or proprietary security organization.
A certified trainer may be an employee of a contract security company or proprietary security organization.
The certified trainer shall certify to the successful completion of training required by this chapter and shall submit the certification to the commissioner prior to issuance of a registration card or renewal of the registration card, in the case of armed security guards/officers.
All certifications shall expire the last day of the twenty-fourth month from issuance or renewal. The commissioner shall establish reasonable fees for the timely renewal of certifications.
Certifications may be renewed up to three (3) months after their expiration by payment of the renewal fee, plus a penalty established by the commissioner for each month or portion of a month that elapses before payment is tendered.

Acts 1987, ch. 436, § 26; 1988, ch. 987, § 12; 1990, ch. 1026, § 8; 1996, ch. 1009, § 27; 2008, ch. 1038, § 17.

Attorney General Opinions. The commissioner of commerce and insurance is free to consider a National Rifle Association certificate in deciding whether an applicant is “personally qualified to conduct the training” of security guards; however, such a certificate is merely one aspect of this decision and the commissioner may look at all the material included with the individual's application and conclude that, based on all the experience the individual is personally qualified to conduct the training required under the statute, OAG 01-163, 2001 Tenn. AG LEXIS 167 (11/5/01).

62-35-127. Prohibited law enforcement representations on badges, insignias, vehicles or equipment.

While performing any function of a security guard and patrol service, no person shall:

Wear or display any badge, insignia, shield, patch or pattern that:
1. Indicates or tends to indicate that the person is a sworn peace officer;
2. Contains or includes the word “police” or the equivalent of the word “police;” or
3. Is similar in wording to any law enforcement agency in this state; or
Have or utilize any vehicle or equipment that:
1. Displays the words “police,” “law enforcement officer,” or the equivalent of those words; or
2. Has any sign, shield, accessory or insignia that may indicate that the vehicle or equipment belongs to a public law enforcement agency.

Acts 1987, ch. 436, § 27.

Attorney General Opinions. A law enforcement officer working for a security company outside of the officer's jurisdiction may not self-identify as a law enforcement officer in a non-departmental issued uniform, OAG 00-166, 2000 Tenn. AG LEXIS 169 (10/24/00).

Part-time officers as licensed security guards. OAG 12-77, 2012 Tenn. AG LEXIS 73 (7/25/12).

62-35-128. Restrictions regarding military or police-style uniforms.

No security guard/officer shall wear any military or police-style uniform, except for rainwear or other foul-weather clothing, unless the uniform has:

Affixed over the left breast pocket on the outermost garment and on any cap a badge or insignia distinct in design from that utilized by any law enforcement agency in this state, unless the licensed security guard/officer is in plain clothes; and
Affixed over the right breast pocket on the outermost garment a name plate or tape with the name of the security guard/officer on it, unless the licensed security guard/officer is in plain clothes.

Acts 1987, ch. 436, § 28; 1996, ch. 1009, § 13; 2020, ch. 580, § 15.

Amendments. The 2020 amendment substituted “security guard/officer” for “security officer” in (1) and following "licensed" in (2).

Effective Dates. Acts 2020, ch. 580, § 19. July 1, 2020.

62-35-129. Administration and enforcement of chapter — Rules and regulations.

The commissioner shall be responsible for administering and enforcing this chapter.
The commissioner may promulgate rules 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.
The commissioner may seek relief at law or equity to restrain or enjoin any act or practice in violation of this chapter or of any rule promulgated under this chapter. 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.
The commissioner or the commissioner's designee may at all reasonable hours conduct inspections/investigations of contract security companies, proprietary security organizations and security guards/officers to ensure compliance with this chapter.

Acts 1987, ch. 436, § 29; 1988, ch. 987, § 13; 1996, ch. 1009, § 25; 2011, ch. 3, § 2; 2020, ch. 580, § 16.

Amendments. The 2020 amendment substituted “security guards/officers” for “security officers/guards” in (d).

Effective Dates. Acts 2020, ch. 580, § 19. July 1, 2020.

62-35-130. Disciplinary powers of commissioner — Civil penalties.

The commissioner may take disciplinary action against a licensee, registrant or applicant, deny an application for a license or registration or may suspend, revoke or refuse to issue or renew any certificate, certified trainer license, license or registration card under this chapter upon finding that the holder or applicant has:
1. Violated this chapter or any rule promulgated under this chapter;
2. Practiced fraud, deceit or misrepresentation;
3. Knowingly and willfully made a material misstatement in connection with an application for a license or registration card;
4. Been convicted by a court of competent jurisdiction of any felony or of a misdemeanor. However, an action taken under this subdivision (a)(4) shall be subject to the applicable provisions of the Fresh Start Act that are compiled in chapter 76, part 1 of this title;
5. Committed any act that would have been cause for refusal to issue the license or registration card had it existed and been known to the commissioner at the time of issuance;
6. Engaged in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public;
7. Willfully deceived or defrauded a member of the public being protected;
8. Acted as a contract security company or proprietary security company without a currently valid license;
9. Acted as an armed security guard/officer or unarmed security guard/officer on a registration card that has expired or without a valid registration card as this chapter requires;
10. Violated any disciplinary order of the commissioner; or
11. Failed or refused to cooperate with any inspection or investigation to determine compliance with this chapter or rules and regulations promulgated pursuant to this chapter.
In addition to or in lieu of any other lawful disciplinary action under this section, the commissioner may assess a civil penalty of up to two thousand dollars ($2,000) for each statute or rule violation.
The commissioner may assess a civil penalty of up to two thousand dollars ($2,000) per occurrence upon any person who operates without the proper license or other authorization required.
A license or registration card shall be subject to expiration and renewal during any period in which the license or registration card is suspended.
Whenever an armed or unarmed security guard/officer pleads guilty or is convicted of any offense enumerated in this chapter, the licensee must within thirty (30) days notify the commissioner of that conviction and provide the commissioner with certified copies of the conviction. The licensee's license shall automatically be revoked thirty (30) days after the licensee's conviction unless the licensee makes a written request to the commissioner for a hearing during the thirty-day period. Following any such hearing held pursuant to this section, the commissioner may impose upon that licensee any sanction or discipline permitted by this chapter.

Acts 1987, ch. 436, § 30; 1990, ch. 1026, § 33; 1996, ch. 1009, § 3; 1997, ch. 369, §§ 2, 3; 2010, ch. 729, § 1; 2018, ch. 745, § 18; 2020, ch. 580, § 9.

Amendments. The 2020 amendment substituted “armed security guard/officer or unarmed security guard/officer” for “armed or unarmed security officer/guard” in (a)(9).

Effective Dates. Acts 2020, ch. 580, § 19. July 1, 2020.

Attorney General Opinions. Under T.C.A. § 62-35-130(e) licensed armed and unarmed security guards/officers are required to notify the Commissioner of Commerce and insurance only of “conviction[s],” and a guilty plea entered as a condition of judicial diversion is not a “conviction” under T.C.A. § 40-35-313. OAG 16-17, 2016 Tenn. AG LEXIS 18 (5/6/2016).

62-35-131. Regulation by municipalities, counties or other political subdivisions.

1. No licensee or registrant shall be required to obtain any authorization, permit or license from or to pay any other fee or post a bond in any municipality, county or other political subdivision of this state to engage in any business or activity regulated under this chapter.
2. Notwithstanding subdivision (a)(1), a municipality, county or other political subdivision of this state may impose:
  1. A bona fide business tax; and
  2. Regulations upon any person who furnishes street patrol services, including a requirement that the person register with a designated agency.
When a security guard/officer is working in another jurisdiction other than the security guard/officer's primary county, the chief law enforcement officer of the county in which the security guard/officer is working shall be notified where the security guard/officer will be assigned and the length of the assignment. This shall be done in writing by the employer of the security guard/officer, unless other arrangements are made with the chief law enforcement officer of the county within five (5) days of the date of first service. The chief law enforcement officer and the officers/deputies shall recognize the state-issued security armed card as valid in their jurisdiction while any security guard/officer is traveling to or from a job site and while performing duties while at the job site, or while any representative of a security company, supervisor or officers are traveling to or from job sites or operating as a street patrol service.
The chief law enforcement officer of a county may require an individual to present proof of compliance with this chapter.
The chief law enforcement officer shall waive provisions relative to training for those individuals properly and duly registered and in possession of a valid armed registration card. If a valid objection exists, however, proof or information indicating training should not be waived shall be sent to the commissioner or the commissioner's designee within ten (10) days of the objection, along with a written explanation of the chief law enforcement officer's objection. A security guard/officer shall not work in any jurisdiction in which the chief law enforcement officer has a pending objection to the training qualifications of the security guard/officer.
In any county having a metropolitan form of government, the chief of police shall be the chief law enforcement officer (CLEO). In counties not having a metropolitan form of government the sheriff shall be the CLEO.

Acts 1987, ch. 436, § 32; 1988, ch. 987, § 14; 1996, ch. 675, § 68; 1996, ch. 1009, § 14; 2001, ch. 452, § 1.

Cross-References. Penalty for violations of section, § 62-35-136.

Attorney General Opinions. Ability of an armed security guard to carry a weapon on breaks and during off duty hours, OAG 99-189, 1999 Tenn. AG LEXIS 209 (9/22/99).

62-35-132. Reciprocal agreements with officials of other states.

The commissioner may negotiate and enter into reciprocal agreements with appropriate officials in other states to permit licensed or registered contract security companies or security guards/officers who meet or exceed the qualifications established in this chapter to operate across state lines under mutually acceptable terms.

Acts 1987, ch. 436, § 33.

62-35-133. Copies of chapter and rules.

The commissioner shall provide a copy of this chapter and any rules promulgated under this chapter to:

Each licensee and proprietary security organization every two (2) years, at no charge; and
Any other person, upon request, for a reasonable fee that the commissioner may fix.

Acts 1987, ch. 436, § 34.

62-35-134. Unlawful employments, publications and activities.

It is unlawful for any person knowingly to employ as a security guard/officer any individual who does not hold a valid registration card of the appropriate type, except as provided in § 62-35-119(c).
It is unlawful for any contract security company knowingly to publish any advertisement, letterhead, circular, statement or phrase of any sort that suggests that the company is a government agency or instrumentality.
It is unlawful for any security guard/officer knowingly to:
1. Fail to return immediately on demand, or within twenty-four (24) hours of termination of employment, a firearm issued to the security guard/officer by an employer;
2. Fail to return immediately on demand, or within seven (7) days of termination of employment, any uniform, badge, device, insignia, credential, keys or other item of equipment issued to the security guard/officer by an employer;
3. Carry a firearm or facsimile of any firearm or item that may leave the impression that the security guard/officer is armed with a firearm of any type in the performance of the security guard/officer's duties if not the holder of a valid armed security guard/officer registration card;
4. Carry a firearm or facsimile of any firearm or item that may leave the impression that the security guard/officer is armed with a firearm of any type in performance of the security guard/officer's duties if not authorized to carry the firearm;
5. Make any statement that would reasonably cause another person to believe that the security guard/officer functions as a sworn peace officer or other government official; or
6. Divulge to anyone other than the security guard/officer's employer or to persons that the security guard/officer's employer may direct or as may be required by law any information acquired during the security guard/officer's employment that may compromise the security of any premises to which the security guard/officer has been assigned by the employer.

Acts 1987, ch. 436, § 35; 1988, ch. 987, § 15; 1996, ch. 1009, §§ 15, 16; 2020, ch. 580, § 17.

Amendments. The 2020 amendment substituted “security guard/officer” for “security officer” and “security guard/officer's” for “security officer's” in (c)(1), (c)(2), the first two occurrences in (c)(3), twice in (c)(4), and throughout (c)(6).

Effective Dates. Acts 2020, ch. 580, § 19. July 1, 2020.

Cross-References. Hiring armed guards without permit from governor, § 50-1-102.

Penalty for violation of section, § 62-35-136.

Attorney General Opinions. Statute requiring police officers to provide notice of their authority or grounds for arrest does not apply to security officers; however, a security officer must provide notice of the grounds of an arrest, OAG 03-018, 2003 Tenn. AG LEXIS 23 (2/19/03).

Statute setting forth the grounds for arrest by private citizens governs arrests by security officers, OAG 03-018, 2003 Tenn. AG LEXIS 23 (2/19/03).

Use of speed monitoring equipment by private security guards, OAG 03-088, 2003 Tenn. AG LEXIS 107 (7/15/03).

62-35-135. Administrative procedures regarding contested cases.

Acts 1987, ch. 436, § 31.

62-35-136. Penalty for violations.

Except as otherwise provided in this chapter or in any rule or regulation promulgated pursuant to this chapter, a violation of this chapter or any rule promulgated under this chapter is a Class A misdemeanor.

Acts 1987, ch. 436, § 36; 1989, ch. 591, § 113; 1996, ch. 1009, § 17.

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

62-35-137. Locksmith and private security regulatory fund.

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 “locksmith and private security regulatory fund.”
Disbursements from the fund shall be made solely for the purpose of defraying expenses incurred in the implementation and enforcement of the Locksmith Licensing Act of 2006, compiled in chapter 11 of this title, and this chapter.
No such expenses shall be payable from the general fund of the state.
Any part of the locksmith and private security regulatory fund remaining at the end of a fiscal year shall not revert to the general fund, but shall be carried forward to defray future expenses until all the funds are expended in accordance with the Locksmith Licensing Act of 2006 and this chapter.

Acts 1991, ch. 425, § 5; 2012, ch. 986, § 45.

Compiler's Notes. Acts 2012, ch. 986, § 48 provided that all rules, regulations, orders, and decisions heretofore issued or promulgated by any of the boards or commissions, which the act terminates or merges into another board or commission, shall remain in full force and effect. In the case of the boards or commissions that are merged with another board or commission by the act, all final rules, regulations, orders, and decisions together with any matters that are pending on October 1, 2012, shall hereafter be administered, enforced, modified, or rescinded in accordance with the law applicable to the continuing board or commission.

62-35-138. Preemption of local regulations.

No city, county or urban county government shall occupy any part of the field of regulation of private protective services unless expressly provided for in this chapter.

Acts 1996, ch. 1009, § 18.

62-35-139. Limitation on exemption from licensing requirements.

No person who is exempt from the licensing requirements of this chapter pursuant to § 62-35-103(13) shall perform any private protective services duties at a shopping center complex or other business facility that has two (2) or more contiguous businesses. A person performing private protective services pursuant to § 62-35-103(13) shall perform the services solely upon the premises of the business of the person's employer.

Acts 2001, ch. 452, § 3.

62-35-140. Continuing education requirements.

Every certified trainer must complete twelve (12) hours of continuing education approved by the commissioner every two (2) years as a prerequisite for renewal. Proof of the continuing education must be submitted to the commissioner in conjunction with the application for renewal.

Acts 2002, ch. 710, § 1; 2008, ch. 1038, § 18.

Compiler's Notes. The version of T.C.A. § 62-35-141 originally enacted by Acts 2002, ch. 846, § 1, has been redesignated as present T.C.A. § 62-35-141, due to multiple enactments at this section.

62-35-141. Notification and uniform requirements for peace officers providing security outside of primary jurisdiction.

1. Notwithstanding any provision of this chapter to the contrary, if a full-time sworn peace officer is working to provide uniformed security, direct traffic, exercise crowd control or perform any other such duty in a jurisdiction other than the officer's primary jurisdiction, then the chief law enforcement officer of the jurisdiction in which the full-time sworn peace officer is working shall be notified of the location of the officer's assignment as well as the length of the assignment. For work performed in unincorporated areas of a county or within the limits of a municipality that does not maintain a police department, the chief law enforcement officer of the jurisdiction is the county sheriff. For work performed within the limits of a municipality that maintains a police department, the chief law enforcement officer of the jurisdiction is the municipal police chief.
2. Notice shall be provided in writing by the employer of the full-time sworn peace officer within five (5) days prior to the date of first service, unless other arrangements are made with the chief law enforcement officer of the jurisdiction.
1. While a full-time sworn peace officer certified pursuant to § 38-8-107 is employed in a jurisdiction other than the full-time sworn peace officer's primary jurisdiction, the officer's clothing shall bear insignia and markings clearly designating that the peace officer is a private duty law enforcement officer. The Tennessee peace officer standards and training commission, created by title 38, chapter 8, part 1, shall establish design criteria for the insignia and markings.
2. Notwithstanding subdivision (b)(1), a full-time sworn peace officer certified pursuant to § 38-8-107, while employed in a jurisdiction other than the officer's primary jurisdiction, may wear the primary jurisdiction's uniform, if the jurisdiction has authorized its officers to do so. The jurisdiction may establish reasonable regulations for the wearing of its uniforms during the employment.
This section shall only apply to sworn peace officers engaged in employment outside their primary jurisdiction and within a county having a:
1. Metropolitan form of government and a population greater than one hundred thousand (100,000), according to the 2000 federal census or any subsequent federal census; or
2. Population of no less than one hundred eighty-two thousand (182,000) nor greater than one hundred eight-three thousand (183,000), according to the 2000 federal census or any subsequent federal census.

Acts 2002, ch. 846, § 1; 2003, ch. 222, § 1.

Compiler's Notes. The version of T.C.A. § 62-35-141 originally enacted by Acts 2002, ch. 846, § 1, has been redesignated as present T.C.A. § 62-35-141, due to multiple enactments at this section.

For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Attorney General Opinions. Part-time officers as licensed security guards. OAG 12-77, 2012 Tenn. AG LEXIS 73 (7/25/12).

62-35-142. Private protective services in a restaurant licensed to sell alcohol.

1. Each licensee shall submit to the local law enforcement agency of any jurisdiction in which the licensee provides services for a restaurant, as defined in § 57-4-102, licensed to serve alcoholic beverages, wine or beer for consumption on the premises, a form promulgated by the commissioner notifying the local law enforcement agency that the licensee provides services within the agency's jurisdiction. The form shall include the name, license number and armed or unarmed status of each security guard/officer providing services for compensation to the licensee and the name and location of the licensee's clients within the agency's jurisdiction.
2. Any licensee providing services for a restaurant, as defined in § 57-4-102, licensed to serve alcoholic beverages, wine or beer for consumption on the premises on January 1, 2010, shall submit the form required by this section to any applicable agency within fifteen (15) days of January 1, 2010. Otherwise, the licensee shall submit the form within fifteen (15) days of the date the licensee commences offering services in an agency's jurisdiction. The licensee shall ensure that the information submitted to the local law enforcement agency is kept current and shall notify the local law enforcement agency in writing of the substance of any change within fifteen (15) days of the date of the event necessitating the change.
Any local law enforcement agency that has knowledge of a violation of this section or this chapter shall notify the commissioner. The commissioner shall communicate in writing to the local law enforcement agency any action taken in response to the notification.
For purposes of this section, “local law enforcement agency” means:
1. Within the territory of a municipality, the municipal police department;
2. Within the territory of a county having a metropolitan form of government, the metropolitan police department; or
3. Within the unincorporated territory of a county, the sheriff's office.
The commissioner of commerce and insurance is authorized to promulgate rules to effectuate the purposes of this section. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2009, ch. 465, §§ 1, 2; 2020, ch. 580, § 10.

Amendments. The 2020 amendment substituted “security guard/officer” for “security officer/guard” in (a)(1).

Effective Dates. Acts 2020, ch. 580, § 19. July 1, 2020.

Chapter 36
Geologist Licensure Act of 2007

62-36-101. Short title.

This chapter shall be known and may be cited as the “Geologist Licensure Act of 2007.”

Acts 2007, ch. 495, § 2.

Compiler's Notes. Former chapter 36, §§ 62-36-101 — 62-36-111 and 62-36-120 (Acts 1988, ch. 553, §§ 1-7; T.C.A., § 62-36-107; 1989, ch. 523, §§ 189, 190; Acts 1989, ch. 591, §§ 1, 6; 1990, ch. 741, §§ 1-6; 1992, ch. 548, § 1; 1993, ch. 170, §§ 1, 3), concerning geologists, was repealed effective January 1, 2008, by Acts 2007, ch. 495, § 1, which also enacted a new title 62, ch. 36 effective January 1, 2008.

62-36-102. Legislative findings — Purpose.

The general assembly finds that the competent and proper application of geologic principles by geologists is vital to the lives, property, economy, security and environment of the people of this state. In order to safeguard life, health and property and to promote the public welfare, the practice of geology in this state is declared to be subject to regulation in the public interest. Furthermore, the practice of geology is declared a learned profession to be practiced and regulated as such, and its practitioners in this state shall be held accountable to the state and members of the public by high professional standards in keeping with the ethics and practices of other learned professions in this state.
The purpose of this chapter is to introduce additional qualifying criteria in a professional field at present only partially regulated, thereby benefiting the safety, health and property of the people of this state and promoting the public welfare. The fields of geology expected to benefit are those related to the environment, mineral and fuels exploration and development, geologic hazards, basic geologic research and other geologic matters of concern to the people of this state.

Acts 2007, ch. 495, § 3.

62-36-103. Chapter definitions.

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

“Commissioner” means the commissioner of commerce and insurance or the commissioner's designee;
“Department” means the department of commerce and insurance;
“Geologist” means a person qualified by education and practical experience to engage in the practice of geology;
“Geologist in training” means a person who has met the educational requirements of § 62-36-109, but is not qualified to be licensed as a professional geologist;
“Geology” means the science concerning the earth and its history, including:
1. The investigation, prediction of existence and location of:
  1. Minerals;
  2. Rocks;
  3. Liquids, including groundwater; and
  4. Gases;
2. The natural processes that cause developments and changes in the earth; and
3. The applied science that uses knowledge of the earth and its constituent rocks, minerals, liquids, gases and other materials for the benefit of mankind;
“Licensed professional geologist” means a person who is licensed as a geologist under this chapter;
“Practice of geology” means providing geological services, except as specifically exempted by this chapter. Geological services include consultation, investigation, including the collection, removal and analysis of samples of minerals, rocks, fluids, gases and paleontological specimens, survey, evaluation, planning, mapping, inspection of work in the field of geology and the responsible supervision of work in the field of geology. The practice of geology means the practice of any branch of the profession of geology;
“Responsible charge of work” means accountable, independent control and direction by the use of initiative, skill and independent judgment of geological work or supervision of geological work; and
“Subordinate” means any person who assists a licensed professional geologist in the practice of geology without assuming the responsible charge of work.

Acts 2007, ch. 495, § 4.

62-36-104. Prohibited activities.

No person shall:

Prepare any geologic plans, reports or documents other than a licensed professional geologist or a subordinate under the geologist's direction;
Practice geology in this state unless the person is licensed under this chapter. A certificate of licensure is not transferable;
Offer to practice geology in this state unless the person is licensed under this chapter. To offer to practice geology in this state includes the making of a verbal claim, displaying a sign or other advertisement, using letterhead, printing cards or using in connection with a person's name any title or description stating or implying that the person is a licensed professional geologist;
Seal or stamp any plans, plats, reports or other documents with the seal or stamp of a licensed professional geologist, or use in any manner the title licensed professional geologist or the title of any licensed certified specialty geologist unless licensed or licensed and certified under this chapter;
Affix the person's signature, seal or stamp to any geologic plans, plats, reports or other documents after that person's licensure has expired or has been suspended or revoked, unless the person's licensure has been renewed or reissued;
Give any false or forged evidence of any kind to the department when seeking to obtain the person's certificate of licensure;
Falsely impersonate any other licensee of like or different name; or
Attempt to use an expired or revoked certificate of licensure or continue to practice geology at any time during a period during which the department has suspended or revoked the person's certificate of licensure.

Acts 2007, ch. 495, § 5.

Compiler's Notes. Former chapter 36, §§ 62-36-101 — 62-36-111 and 62-36-120 (Acts 1988, ch. 553, §§ 1-7; T.C.A., § 62-36-107; 1989, ch. 523, §§ 189, 190; Acts 1989, ch. 591, §§ 1, 6; 1990, ch. 741, §§ 1-6; 1992, ch. 548, § 1; 1993, ch. 170, §§ 1, 3), concerning geologists, is repealed effective January 1, 2008, by Acts 2007, ch. 495, § 1, which also enacted a new title 62, ch. 36 effective January 1, 2008.

62-36-105. Contracting for services only with licensed geologists.

This state and any county, municipality, agency, board, district, commission, authority or other political subdivision of the state shall only contract for geological services with persons licensed under this chapter or with a firm employing a licensed professional geologist who is in responsible charge of providing the services, except as otherwise provided by this chapter.

Acts 2007, ch. 495, § 6.

62-36-106. Exemptions.

Any person, except a person exempted by this chapter, who practices or offers to practice geology in this state, including a person employed by the state or its political subdivisions, is subject to this chapter. The following are exempt:

Any person engaged solely in teaching the science of geology or engaged solely in nonpublic geologic research in this state; however, a teacher or researcher shall be certified as a licensed professional geologist if the teacher or researcher wishes to perform any geologic work or services for which licensure as a geologist is required by this chapter;
An employee or subordinate of a licensed professional geologist, as long as the employee or subordinate acts solely in that capacity. This exemption shall not permit any such employee or subordinate to practice geology independently or use the term licensed professional geologist; and
Any person who is employed either by the state or by a person, firm or corporation not engaged in the practice of geology, if the person provides geologic services to the employer only and not to the general public.

Acts 2007, ch. 495, § 7.

Compiler's Notes. Former chapter 36, §§ 62-36-101 — 62-36-111 and 62-36-120 (Acts 1988, ch. 553, §§ 1-7; T.C.A., § 62-36-107; 1989, ch. 523, §§ 189, 190; Acts 1989, ch. 591, §§ 1, 6; 1990, ch. 741, §§ 1-6; 1992, ch. 548, § 1; 1993, ch. 170, §§ 1, 3), concerning geologists, is repealed effective January 1, 2008, by Acts 2007, ch. 495, § 1, which also enacted a new title 62, ch. 36 effective January 1, 2008.

62-36-107. Sole proprietorships, partnerships and corporations — Construction of chapter with other related professions.

A sole proprietorship, partnership or corporation that provides geological services as its primary activity may engage in the practice of geology; provided, that at least one (1) principal or officer is in responsible charge of the activity and is a licensed professional geologist. A sole proprietorship, partnership or corporation whose primary activity is other than the practice of geology may offer geological services; provided, that a licensed professional geologist is in responsible charge of the activity. The exemptions of § 62-36-106 shall apply to sole proprietorships, partnerships, and corporations.
This chapter shall not be construed to prevent or to affect:
1. The practice of any profession or trade related to geology for which a license or registration is required under any other law of this state; provided, that the work is permitted under the applicable licensing or registration law;
2. The right of licensed professional engineers to lawfully practice foundation engineering, geotechnical engineering, soils mechanics or other professional engineering as provided by chapter 2 of this title; or
3. Registered architects lawfully practicing architecture as provided by chapter 2 of this title.

Acts 2007, ch. 495, § 8.

62-36-108. Application for licensure — Fee — Transcript.

An application for licensure as a geologist shall indicate the applicant's education and provide a detailed summary of geologic work. The application shall be accompanied by an application fee fixed by the department and shall include a certified transcript.

Acts 2007, ch. 495, § 9.

Compiler's Notes. Former chapter 36, §§ 62-36-101 — 62-36-111 and 62-36-120 (Acts 1988, ch. 553, §§ 1-7; T.C.A., § 62-36-107; 1989, ch. 523, §§ 189, 190; Acts 1989, ch. 591, §§ 1, 6; 1990, ch. 741, §§ 1-6; 1992, ch. 548, § 1; 1993, ch. 170, §§ 1, 3), concerning geologists, is repealed effective January 1, 2008, by Acts 2007, ch. 495, § 1, which also enacted a new title 62, ch. 36 effective January 1, 2008.

62-36-109. Minimum qualifications.

To be eligible for a certificate of licensure, an applicant shall meet each of the following minimum qualifications:
1. Be a graduate of an accredited college or university. The applicant shall have successfully completed a minimum of thirty (30) semester or forty-five (45) quarter hours of course work in geology, geophysics, geochemistry, engineering geology or their subdivisions. The department may waive the academic requirements for a person who is a geologist; provided, that application for licensure is made no later than January 1, 2009, and the applicant can provide evidence to satisfy the department that the applicant is competent to practice geology;
2. Have at least five (5) years of geological education and professional experience. Any combination of the following kinds of education and experience qualify toward accumulating the required five (5) years:
  1. Each year of graduate study shall count as one (1) year of experience; provided, that credit for graduate study or graduate courses, individually or in any combination of graduate study and courses, shall in no case exceed a total of two (2) years toward meeting the five-year requirement of this subdivision (a)(2);
  2. Each year of teaching or geological research by persons teaching upper-level geology courses at the college or university levels; provided, that the teaching or research can be demonstrated to be of a sufficiently responsible nature to be equivalent to a year of professional experience; and
  3. The geologic ability of an applicant shall be demonstrated by the applicant performing professional geologic work in a responsible position as determined by the department. The adequacy of the required supervision and experience shall be determined by the department in accordance with rules promulgated by the department; and
3. Has successfully passed any examination or examinations developed or determined by the department to assess adequately the knowledge and skills that are common to the competent practice of geology as a profession. The department shall waive the examination requirement for licensure as a geologist for an applicant who makes written application to the department no later than January 1, 2009, and who otherwise meets the requirements of this subsection (a).
1. Any person who holds an active certificate as a registered geologist or licensed professional geologist under the Geologists Registration Act of 1988, formerly compiled in this chapter, prior to January 1, 2008, shall be deemed to have met the requirements of subdivisions (a)(1)-(3). The person shall be issued a certificate of licensure when renewal is due under the established renewal cycle upon applying for and meeting all requirements for renewal. The department shall assign the registration number of the registration certificate as the certificate of licensure number.
2. Any person holding an active certificate as a registered geologist or licensed professional geologist prior to January 1, 2008, who does not renew the certificate when renewal is due shall be required to apply for licensure under this chapter and meet all requirements of subsection (a), except that a reasonable period of time shall be accorded by the department for late renewals.

Acts 2007, ch. 495, § 10.

62-36-110. Licensure or registration in foreign jurisdiction.

A person holding a license or registered to practice geology issued by proper authority of a state, territory or possession of the United States, the District of Columbia or any foreign country, on the basis of comparable licensing or registration requirements and who, in the opinion of the department otherwise meets the requirements of this chapter, based on verified evidence, may, upon approval of an application for licensure, be licensed without further examination; provided, that the state, agency or country issuing the license or certificate of registration has entered into a reciprocity agreement with the department, is part of a general reciprocity agreement among all applicable states or has established some other form of mutual recognition of licensure or comity with the department.

Acts 2007, ch. 495, § 11.

Compiler's Notes. Former chapter 36, §§ 62-36-101 — 62-36-111 and 62-36-120 (Acts 1988, ch. 553, §§ 1-7; T.C.A., § 62-36-107; 1989, ch. 523, §§ 189, 190; Acts 1989, ch. 591, §§ 1, 6; 1990, ch. 741, §§ 1-6; 1992, ch. 548, § 1; 1993, ch. 170, §§ 1, 3), concerning geologists, is repealed effective January 1, 2008, by Acts 2007, ch. 495, § 1, which also enacted a new title 62, ch. 36 effective January 1, 2008.

62-36-111. Certificate of licensure.

The department shall issue a certificate of licensure, upon payment of a fee prescribed by the department, to any applicant who complies with the requirements of this chapter. Certificates of licensure shall state the full name of the licensee, bear a certificate of licensure number and be signed by the commissioner or the commissioner's designee under the seal of the department.
A certificate of licensure shall be valid for a period of two (2) years. A fee prescribed by the department shall be imposed for each late certificate of licensure renewal.
A new certificate of licensure may be issued to replace any certificate of licensure lost, destroyed or mutilated, subject to the rules of the department and payment of a fee prescribed by the department.
Upon a written request accompanied by a fee prescribed by the department for change in status, a licensee shall be placed on retired or inactive status. No retired or inactive licensee shall engage in any geologic work or services for which licensure as a geologist is required by this chapter. The department shall prescribe rules outlining the procedure for placing a licensee on retired or inactive status and subsequent reinstatement to active status.

Acts 2007, ch. 495, § 12.

62-36-112. Licensee's seal.

A licensed professional geologist, upon issuance of a certificate of licensure, shall obtain a seal of the design authorized by the department, bearing the licensee's name and the legend “licensed professional geologist” and identifying the state of Tennessee. All drawings, reports or other geologic papers or documents involving geologic work, as defined in this chapter, that have been prepared or approved by a licensed geologist or a subordinate employee under the geologist's direction for the use of or for delivery to any person or for public record within this state, shall be signed by the licensee and impressed with the licensee's seal. These acts shall indicate a licensee's responsibility for the drawings, reports or other geologic papers or documents.

Acts 2007, ch. 495, § 13.

Compiler's Notes. Former chapter 36, §§ 62-36-101 — 62-36-111 and 62-36-120 (Acts 1988, ch. 553, §§ 1-7; T.C.A., § 62-36-107; 1989, ch. 523, §§ 189, 190; Acts 1989, ch. 591, §§ 1, 6; 1990, ch. 741, §§ 1-6; 1992, ch. 548, § 1; 1993, ch. 170, §§ 1, 3), concerning geologists, is repealed effective January 1, 2008, by Acts 2007, ch. 495, § 1, which also enacted a new title 62, ch. 36 effective January 1, 2008.

62-36-113. Advisory committee for geology.

The commissioner may establish an advisory committee for geology composed of seven (7) members.
In making appointments to the committee, the commissioner shall strive to ensure that the committee includes at least one (1) female, at least one (1) member of a racial minority and at least one (1) person who is at least sixty (60) years of age. The commissioner may also strive to ensure that the geologist members are from each of the following professional groupings: environmental, mineral and fuel exploration and development, geologic hazards and geologic research.
The committee shall be administratively attached to the department's division of regulatory boards.
Committee members shall receive no compensation but shall be reimbursed for actual travel and other expenses incurred in attending each meeting and in performing any other duties provided for in this chapter. All reimbursement for expenses shall be in accordance with the comprehensive travel regulations promulgated by the commissioner of finance and administration and approved by the attorney general and reporter.
The committee shall assist the commissioner with the promulgation of rules for the implementation of the requirements of this chapter.

Acts 2007, ch. 495, § 14.

62-36-114. Powers and duties of department.

In addition to other powers and duties specified in this chapter, the department shall:

Promulgate rules and regulations necessary to carry out this chapter in compliance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5;
Design and adopt an official seal for licensed professional geologists;
Set the amount of all fees required by this chapter;
Identify and approve continuing education programs for persons regulated by the department under this chapter. The department may prescribe regulations requiring continuing education as a prerequisite for renewal of certificates of licensure;
Receive, administer and account for all moneys derived under this chapter and transfer these funds to the state treasurer, who shall keep the moneys in a fund to be known as the “geologist and soil scientist regulatory fund”. The fund shall be used to defray expenses incurred in the administration of the Soil Scientist Licensure Act of 2009, compiled in chapter 18, part 2 of this title, and this chapter;
Prepare, administer and grade examinations required by this chapter. The department shall have the authority to adopt or recognize, in part or in whole, examinations prepared, administered or graded by other organizations, on a regional or national basis, that the department determines are appropriate to measure the qualifications of an applicant for licensure as a geologist; provided, that the examination questions and correct answers, and any individual applicant's completed examination, are available to the department, and that the department retains the authority to determine a passing grade for purposes of licensure in this state; and
Have other powers and duties that are necessary to effectuate this chapter.

Acts 2007, ch. 495, § 15; 2014, ch. 921, § 2.

Compiler's Notes. Former chapter 36, §§ 62-36-101 — 62-36-111 and 62-36-120 (Acts 1988, ch. 553, §§ 1-7; T.C.A., § 62-36-107; 1989, ch. 523, §§ 189, 190; Acts 1989, ch. 591, §§ 1, 6; 1990, ch. 741, §§ 1-6; 1992, ch. 548, § 1; 1993, ch. 170, §§ 1, 3), concerning geologists, is repealed effective January 1, 2008, by Acts 2007, ch. 495, § 1, which also enacted a new title 62, ch. 36 effective January 1, 2008.

62-36-115. Public records of proceedings — Registration of applicants.

The department shall keep a public record of its proceedings and a register of all applicants for licensure.
All official records of the department or affidavits by the commissioner as to the contents of the records shall be prima facie evidence of all matters required to be kept in the records.
Except as otherwise provided by this section, the following shall be treated as confidential and may not be disclosed except by order of a court of competent jurisdiction or by permission of the applicant:
1. Applications and other personal information submitted by applicants, except to the applicant, the department, its staff or the advisory committee; and
2. Information submitted by a reference concerning an applicant, except to the department, its staff or the advisory committee.

Acts 2007, ch. 495, § 16.

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

62-36-116. Roster of licensees.

The department shall publish a roster semiannually showing the names and places of business of all geologists licensed in this state. Copies of this roster shall be placed on file with the secretary of state and the offices of the Tennessee division of geology and furnished to any licensee upon request free of charge or to the public upon request and payment of a fee, not to exceed cost, to be established by the department.

Acts 2007, ch. 495, § 17.

Compiler's Notes. Former chapter 36, §§ 62-36-101 — 62-36-111 and 62-36-120 (Acts 1988, ch. 553, §§ 1-7; T.C.A., § 62-36-107; 1989, ch. 523, §§ 189, 190; Acts 1989, ch. 591, §§ 1, 6; 1990, ch. 741, §§ 1-6; 1992, ch. 548, § 1; 1993, ch. 170, §§ 1, 3), concerning geologists, is repealed effective January 1, 2008, by Acts 2007, ch. 495, § 1, which also enacted a new title 62, ch. 36 effective January 1, 2008.

62-36-117. Code of professional conduct.

The department shall promulgate a code of professional conduct that shall be made known in writing to every licensee and applicant for licensure under this chapter. The department may revise and amend this code of ethics from time to time and shall immediately notify each licensee in writing of any revision or amendments.

Acts 2007, ch. 495, § 18.

62-36-118. Complaints against licensees.

Any person may file a complaint with the commissioner against a licensee alleging fraud, deceit, gross neglect, incompetence or misconduct. Complaints shall be made in writing.

Acts 2007, ch. 495, § 19.

62-36-119. Suspension, revocation or refusal to renew license — Hearings — Administrative and judicial review — Injunctions — Governmental immunity.

The department shall have the power to suspend, revoke or refuse to renew the certificate of licensure of any licensee who:
1. Is found to have been convicted of:
  1. Any fraud or deceit in obtaining a certificate of licensure;
  2. Any felony or any crime involving moral turpitude. However, an action taken under this subdivision (a)(1)(B) shall be subject to the applicable provisions of the Fresh Start Act that are compiled in chapter 76, part 1 of this title; or
  3. Any unlawful act as set forth in this chapter; or
2. Is found guilty of fraud, deceit, gross neglect, incompetence or misconduct in the practice of geology as a licensed professional geologist.
Any action by the department to suspend, revoke or refuse to renew a certificate of licensure shall be taken after a hearing held in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
Any administrative or judicial review of such action shall likewise be in accordance with the procedures set forth in the Uniform Administrative Procedures Act.
The department may seek relief at law or equity to restrain or enjoin any act or practice in violation of this chapter or of any rule promulgated to effectuate the purposes of this chapter. 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.
Members of the department 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 2007, ch. 495, § 20; 2018, ch. 745, § 19.

62-36-120. Reissue of revoked license.

The department may reissue a certificate of licensure to any person whose certificate of licensure has been revoked upon written application to the department by the applicant, showing good cause to justify reissuance.

Acts 2007, ch. 495, § 21.

62-36-121. Legal counsel.

Legal counsel shall be provided by the division of regulatory boards.

Acts 2007, ch. 495, § 22.

62-36-122. Violations — Penalties.

A violation of this chapter is a Class B misdemeanor.
In addition to or in lieu of any other lawful disciplinary action under this chapter, the commissioner may assess a civil penalty not exceeding one thousand dollars ($1,000) per violation. All penalties owed under this chapter shall be paid to the department for deposit into the treasury of the state and shall accrue to the state and may be recovered in a civil action in the name of the state in any court of record in the county where the violation is alleged to have occurred.
Any civil penalty shall be assessed in the following manner:
1. A notice of the assessment shall be sent to the person receiving it by certified mail, return receipt requested;
2. Any person against whom an assessment has been issued may petition the commissioner for a review of the assessment;
3. The petition for review shall be in writing and shall be filed no later than thirty (30) days after the notice of assessment is received;
4. If a petition for review of the assessment is not filed within thirty (30) days after the date the notice is received, then the violator shall be deemed to have consented to the assessment and it shall become final; and
5. If a petition for review of the assessment is filed as provided by this section, then the proceedings on the appeal shall be conducted in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, with respect to the conduct of contested cases.

Acts 2007, ch. 495, § 23.

Compiler's Notes. Former chapter 36, §§ 62-36-101 — 62-36-111 and 62-36-120 (Acts 1988, ch. 553, §§ 1-7; T.C.A., § 62-36-107; 1989, ch. 523, §§ 189, 190; Acts 1989, ch. 591, §§ 1, 6; 1990, ch. 741, §§ 1-6; 1992, ch. 548, § 1; 1993, ch. 170, §§ 1, 3), concerning geologists, is repealed effective January 1, 2008, by Acts 2007, ch. 495, § 1, which also enacted a new title 62, ch. 36 effective January 1, 2008.

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

Chapter 37
[Reserved]

Chapter 38
Tattoos and Body Piercing

Part 1
[Reserved]

Part 2
General Provisions

62-38-201. Part definitions.

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

“Antibacterial solution” means any solution used to retard the growth of bacteria approved for application to human skin and includes all products so labeled;
“Client” means any person desiring to receive a tattoo;
“Commissioner” means the commissioner of health;
“Department” means the department of health;
“Disinfectant” means a solution intended to destroy or inactivate specific viruses, bacteria or fungi on inanimate surfaces;
“Germicidal solution” means any solution that destroys germs and is so labeled;
“License” means the issuance of a license to perform tattooing to any individual, partnership, firm or corporation;
“Permit” means the issuance of a permit to a tattoo studio or establishment;
“Registration” means license or permit, as applicable;
“Sanitary” means clean and free of agents of infection;
“Single use” means an item is used one (1) time on one (1) client and then is properly disposed of by appropriate measures;
“Sterilization” means holding in an autoclave for fifteen (15) minutes, at fifteen pounds (15 lbs.) pressure and at a temperature of two hundred fifty degrees fahrenheit (250°F) or one hundred twenty-one degrees celsius (121°C);
“Tattoo” means any method of placing designs, letters, figures, symbols, cosmetics or any other marks under the skin of a person with ink or color by the aid of needles or instruments;
“Tattoo artist” means any person, regardless of age, who engages in the practice/service of tattooing regardless of the type of tattoo or area to be tattooed;
“Tattoo artist registration” means the issuance of a state license authorizing the person named therein to engage in the practice/service of tattooing in this state after fulfilling the requirements in this part;
“Tattoo operator” means any person who controls, operates, conducts or manages any tattoo studio, whether actually engaging in tattooing or not;
“Tattoo studio” means any room or space where tattooing is practiced or where the service of tattooing is conducted;
“Tattoo studio certificate” means the issuance of a written permit, issued by the local county health department, to a tattoo studio stating that the studio, after inspection, was found to be in compliance with this part; and
“Universal precautions” means that all blood and body fluids are treated as to contain all bloodborne pathogens and taking proper precautions to prevent the spread of any bloodborne pathogens.

Acts 1996, ch. 1004, § 2; 1999, ch. 229, §§ 1-3.

Attorney General Opinions. 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).

62-38-202. Registration, certification, and inspections for studios — Permit fee schedule — Violations and penalties.

No person shall operate a tattoo studio unless the person is registered with the state as an operator or as an artist and the studio has been issued a studio certificate by the local health department. No studio certificate shall be issued or renewed unless the studio has been inspected and found to be in compliance by the local health department.
A studio certificate shall expire on December 31 of each year.
The local health department shall inspect each tattoo studio a minimum of four (4) times each year to ensure compliance with this part.
Tattoo studio violations shall be classified into two (2) categories: critical and minor. Tattoo studios found to have critical violations shall be subject to a one hundred dollar ($100) civil penalty and, if deemed necessary, the immediate shutdown of the tattoo studio. Reinspection for a critical violation shall be within seven (7) days, at which time the tattoo studio may be reopened if the studio is found to be in compliance. If a second critical violation is committed within the period of one (1) year, calendar or otherwise, the tattoo studio shall be subject to a civil penalty of up to five hundred dollars ($500) and the tattoo studio's certificate may be revoked.
Minor violations means all other violations of this part. Tattoo studios with minor violations shall be subject to a twenty-five dollar ($25.00) civil penalty and shall have fourteen (14) days to address and correct the violations. Reinspection for a minor violation shall be at the discretion of the local health department.
A violation may be reviewed by the local health department upon written request of the person or studio committing the violation. A request for review by the local health department shall be made in writing within ten (10) days of receipt of notification of the violation. The local health department should respond to this review within fourteen (14) days.
Critical violations shall include the following:
1. Autoclave is not in good working order;
2. Tubes and needles are not sterilized in an approved manner;
3. Work room is not equipped as required or is not stocked;
4. Prohibited reuse of single use articles;
5. Sterile instruments are not handled properly;
6. Reusable instruments are not handled properly;
7. Employees with infectious lesions on hands not restricted from tattooing;
8. Employees not practicing proper cleanliness and good hygiene practices;
9. Water supply not approved, hot and cold running water under pressure not available;
10. Approved sewage and liquid waste disposal not available;
11. Cross connection allowing back-siphonage present in plumbing system;
12. Toilet and hand washing facilities not available for employees;
13. Insect and rodent evidence, harborage or outer opening present; or
14. Toxic items not properly stored, labeled or used.
In all instances of violations, the local health department shall give written notice to the tattoo operator specifying the violations and measures that are necessary to correct the violations. A copy of this notice/inspection sheet shall be signed by the studio and retained by the local health department. Payment of all registrations, fees or fines shall be payable to the local health department having jurisdiction for administrative costs.
A tattoo studio shall pay a permit fee of two hundred eighty dollars ($280).
If the permit fee is delinquent for more than thirty (30) calendar days, a penalty of one half (½) the permit fee shall be added to the fee. If a check is returned for any reason, a penalty of one half (½) the permit fee shall be added to the fee. The permit fee plus any penalty must be paid before the permit is issued.
A percentage of permit fees, fines and penalties collected within a contract county pursuant to § 62-38-202 shall be conveyed by contract to the respective county health department to assist the county health department in implementing the program in the local jurisdiction. This amount shall be calculated based upon fees collected in the contract county during the state's fiscal year multiplied by ninety-five percent (95%).

Acts 1996, ch. 1004, § 3; 1999, ch. 229, §§ 4, 10-12; 2001, ch. 311, § 5.

Code Commission Notes.

Former subsection (i), concerning submitting an application for a license within thirty days of October 1, 1996, was deleted as obsolete by the code commission in 2009.

62-38-203. Inspections — Work areas — Premises and equipment.

Before a permit to operate a tattoo establishment is granted, the local health department or its duly authorized agent shall inspect the premises in which the business is to be conducted. If the condition of the premises or its equipment does not conform to the requirements of this part, the local health department shall refuse to issue a permit. If the tattoo establishment conforms to the requirements of this part, the local health department or its duly authorized agent shall issue the permit requested.
Each studio where tattoos are administered shall provide a work area separate from any observers present. No smoking or eating shall take place in the tattoo work area. Clients shall be tattooed only while in the tattoo work area.
Adequate restroom facilities for clients and operators shall be provided within each studio.
A sink with hot and cold running water for handwashing and sterilization, other than a bathroom sink, shall be provided. Sinks shall be equipped with an antibacterial solution and single use towels.
All waste products shall be disposed of in accordance with universal precaution guidelines. All needles or other sharp instruments shall be segregated from other wastes and placed in an approved sharps container.
All furniture and fixtures necessary to the practice of tattooing shall be provided and constructed to ensure adequate cleaning and sanitation. Adequate lighting and ventilation shall be provided in the tattoo studio. Equipment necessary to provide for proper aseptic techniques and sterilization shall be provided, including an autoclave in good repair. Floors, ceilings, walls and restrooms shall be maintained in a sanitary condition. The studio and equipment shall be maintained in good repair and the premises shall be kept clean, neat and free of litter and rubbish.

Acts 1996, ch. 1004, § 4.

62-38-204. Tattoo artist and operator registration, licensing and permits — Temporary and apprentice artists.

No person shall engage in the practice of tattooing or act as a tattoo artist unless the person has registered as a tattoo artist with the department of health. A statewide tattoo artist license shall be issued and is transferable within this state to any studio holding a current studio certificate issued by a local health department. The department of health may, at its option, direct the local health department to act in its behalf in the application, examination and collection of funds concerning tattoo artist registration.
No holder of a studio permit issued under this part shall allow a tattoo artist to engage in tattooing unless the tattoo artist:
1. Has attained eighteen (18) years of age;
2. Currently holds a tattoo artist license; and
3. Either has a fourteen-day temporary permit or has an apprentice artist license.
Any person desiring to engage in the practice of tattooing shall submit an application to the department of health or its designee. There shall be three (3) types of tattoo artist licenses: tattoo artist, apprentice artist and temporary artist. All tattoo artist and apprentice artist registrations shall expire on December 31 of each year. A tattoo artist, apprentice artist and temporary artist shall pay an annual fee of one hundred forty dollars ($140).
All tattooing shall be under the auspices of a tattoo studio holding a current studio certificate issued by the local health department.
Each tattoo operator or tattoo artist shall, before receiving a permit to operate a tattoo establishment or to apply a tattoo, undergo a training program to include:
1. The alliance of professional tattooist course in sterilization;
2. A local or state health department program;
3. A course approved by the local health department in methods and techniques for the proper sterilization of instruments and materials used in tattooing; or
4. Present acceptable evidence of having satisfactorily completed a course of instruction in sterilization techniques and methods from a college/medical sterilization course.
The tattoo operator or tattoo artist, or both, shall be required to take and pass an examination concerning this part before a tattoo artist permit shall be issued. The examination shall be a written examination prescribed by the local health department. After passing the examination and complying with the other provisions of this part, a license shall be issued.
In order to receive a tattoo artist license, the tattooist shall be trained in the profession of tattooing to include sterilization methods in a certified shop for at least one (1) year, under a currently licensed tattoo artist who has been certified and operating in compliance with applicable laws in this state for no less than three (3) years. Out of state tattoo artists must be able to show proof of at least two (2) years' experience as a professional tattoo artist in another state. Business licenses, tax records, etc. may be used to show proof of prior work. Artists currently in business in Tennessee on October 1, 1996, shall be exempt from this subsection (g).
An apprentice artist license shall be issued if an artist is unable to comply with any of this part. An artist shall remain an apprentice artist until all qualifications or provisions of this part have been met.
A tattoo operator shall, unless registered as a tattoo artist, register with the department of health and shall comply with all provisions of this part, except for subsection (g). A tattoo operator shall pay an annual fee of one hundred forty dollars ($140).
All fees shall be paid to the commissioner. If any fee is delinquent for more than thirty (30) calendar days, a penalty of one half (½) the fee shall be added to the fee. If a check is returned for any reason, a penalty of one half (½) the fee shall be added to the fee. The permit fee plus any penalty must be paid before the permit is issued.
An applicant whose license has expired for more than one (1) year must reapply for licensure pursuant to subsection (g).

Acts 1996, ch. 1004, § 5; 1999, ch. 229, §§ 5-7; 2001, ch. 311, §§ 6-8.

62-38-205. Temporary locations.

A registered tattoo business may set up at temporary locations other than a tattoo studio, e.g., tattoo conventions, with the written approval of the local health department, for a period not to exceed ten (10) days; provided, that each artist not previously registered with the department of health shall register and pay a fee of fifty dollars ($50.00) to the department.
Temporary facilities, e.g., tattoo conventions, shall be held to the same sanitary standards as those required of tattoo studios. Temporary facility permits shall be issued by the local health department, to include:
1. An area where tattooing can be performed in a limited access location;
2. Adequate sterilization equipment supplied;
3. Waste receptacles and sharps containers supplied;
4. Individual containers of water for each client in single use rinse cups; and
5. Disinfectant sprays at each tattoo artist's work area.
A temporary tattoo artist registration may be issued for no more than fourteen (14) days. The holder of the studio certificate shall also sign for the temporary license from the department of health and all tattooing shall be under the auspices of the studio certificate holder and in compliance with this part. Artists may apply tattoos if a copy of the state application and a receipt for the fifty dollar ($50.00) fee is on display at the studio. The sterilization course, written examination and work experience shall be waived for the temporary permit. A temporary license is not transferable nor may it be renewed.

Acts 1996, ch. 1004, § 6.

62-38-206. Posting studio certificate permit and copy of statutes.

It is the duty of the owner or operator of a tattoo establishment to post the current studio certificate permit in a conspicuous place where it may be readily observed by the public.
It is the duty of the owner or operator of a tattoo establishment to post a copy of the statutes contained in this part in a conspicuous place where it may be readily observed by the public.

Acts 1996, ch. 1004, § 7; 2012, ch. 981, § 2.

62-38-207. Records — Signed acknowledgement by parent or guardian of minor — Attestations — Instructions.

1. A record showing the date of a client's visit, the client's name, with the client's signature, address and date of birth, design of the tattoo, its location on the client's body and the name of the tattoo artist who performed the service shall be maintained by tattoo studios for two (2) years.
2. If tattooing services are provided to a minor pursuant to § 62-38-211, the tattoo artist performing such services shall obtain a signed acknowledgement from the minor's parent or guardian that such parent or guardian has reviewed the statutes contained in this part, and the tattoo studio where such services are performed shall send a copy of both the signed acknowledgement and the record made pursuant to subdivision (a)(1) to the department. The department shall maintain any copy of a record and accompanying signed acknowledgement that it receives pursuant to this subdivision (a)(2) until two (2) years following the eighteenth birthday of the minor who is the subject of the record.
Records shall be entered in ink and shall be made available to the local health department upon request, at a reasonable time, for examination.
Clients receiving a tattoo shall attest to the fact that they are not under the influence of drugs or alcohol.
Printed instructions on the care of skin shall be given to each client after tattooing and a copy of the instructions shall be posted in a conspicuous place in the tattoo studio.

Acts 1996, ch. 1004, § 8; 2008, ch. 803, § 1; 2012, ch. 981, § 3.

Compiler's Notes. Acts 2008, ch 803, § 5 provided that for purposes of carrying out the provisions of sections 1 and 2 of the act, which transferred provisions regarding the tattooing of minors from § 62-38-207 to new § 62-38-211, the department of health is authorized to promulgate rules and regulations. The rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Cross-References. Tattooing of minors a misdemeanor, § 39-15-403.

62-38-208. Violation for operating without a permit or with a revoked or suspended permit.

Any person who does not obtain a permit as required in § 62-38-202 or whose permit has been revoked or suspended and who continues to tattoo or operate a tattoo establishment commits a Class B misdemeanor punishable only by a fine of five hundred dollars ($500).
Any suspension or revocation may be appealed to the local health officer who shall then conduct a hearing of the appeal in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. The decision made by the local health officer concerning the appeal may be appealed to the commissioner, the appeal to the commissioner being limited to the issue of determining whether a material error of law was made at the hearing level.
The department is encouraged to utilize its existing resources to collaborate with local law enforcement to identify and assess administrative penalties against persons who violate this part.

Acts 1996, ch. 1004, § 9; 1999, ch. 229, § 8; 2012, ch. 981, § 4.

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

62-38-209. Hygiene — Equipment — Bandaging, removal of tattoos.

Each tattoo artist shall use a single use lap cloth.
Each tattoo artist shall thoroughly wash the tattoo artists's hands with an antibacterial solution and hot running water prior to and after administering any tattoo.
Disposable, latex examination gloves shall be worn by a tattoo artist at all times while administering any tattoo. Gloves shall be changed and properly disposed of each time there is an interruption in the application of a tattoo or whenever their ability to function as a barrier is compromised.
Only single use supplies or sterilized equipment may be used to apply a tattoo and shall be disposed of after each tattoo. This subsection (d) includes single use disposable razors, single use towels or wipes, lubricants from a collapsible tube and single use paper stencils or plastic stencils soaked in a germicidal solution. If the design is drawn directly onto the skin, it shall be applied only with a single use article. Dyes or pigments should be manufactured for the sole purpose of tattooing. Single use or individual portions of dye and ink pots or trays shall be used. After tattooing, single use items, dyes and containers shall be discarded and the tattoo area disinfected.
All tubes and needles should be sealed for individual client use in autoclave bags with an autoclave indicator and date of sterilization clearly visible. Autoclave bags may be stored for use for up to one (1) year. Autoclave sterilization minimum standards shall mean holding in an autoclave for twenty (20) minutes, at fifteen pounds (15 lbs.) pressure, at a temperature of two hundred sixty degrees fahrenheit (260° F.) or one hundred twenty-seven degrees celsius (127° C). After tattooing, used nondisposable instruments such as tubes shall be kept in a separate, puncture resistant container until properly cleaned, disinfected and sterilized using universal precautions and recognized medical methods.
Each tattoo shall be bandaged, when applicable, before leaving the tattoo studio.
No tattoo artist shall remove or attempt to remove any tattoo.

Acts 1996, ch. 1004, § 10.

62-38-210. Local regulations superseded — Applicability to physicians and surgeons.

This part shall supersede all county and local regulations concerning tattooing to give uniformity in compliance within this state.
This part does not apply to any physician, surgeon or any person under the supervision of a physician or surgeon who is licensed to practice medicine in this state.
The commissioner shall promulgate rules governing implementation of this chapter.

Acts 1996, ch. 1004, § 11; 1999, ch. 229, § 9; 2012, ch. 981, § 7.

62-38-211. Tattoos for persons under 18 years of age — Reporting tattooing of minors — Tattoos to cover up existing tattoos for minors 16 years of age or older — False statements of age or exhibiting false identification by minors for purpose of obtaining tattoos.

Except as provided in subsection (c), it is a Class A misdemeanor to tattoo a person under eighteen (18) years of age.
1. Any parent, legal guardian, teacher or medical provider or school resource officer for a minor under eighteen (18) years of age, who discovers that a minor has been tattooed is encouraged to report such discovery to the department within three (3) weekdays of making such discovery. Any report made pursuant to this subdivision (b)(1) shall be accompanied by the following information, to the extent that such information is known to the person making the report:
  1. The name, mailing address, telephone number, and email address of the minor's parent or legal guardian; and
  2. The name, mailing address, telephone number, and email address of the person who tattooed the minor.
2. Within fourteen (14) days of receiving a report that is made pursuant to subdivision (b)(1), which report includes the name and mailing address of the parent or legal guardian of the minor who is the subject of the report, the department shall provide to the minor's parent or legal guardian, by first class United States mail, a written acknowledgement of receipt of the report.
3. The department shall establish by rule a process whereby the reports that are required by this subsection (b) may be made by telephone. The department is authorized to establish by rule processes whereby the reports that are required by this subsection (b) may be made in person or by mail, email or other means of communication.
1. With the written consent of the parent or legal guardian, a minor sixteen (16) years of age or older may be tattooed to cover up an existing tattoo. A parent or legal guardian must present proof of guardianship or custody of the minor, an acknowledgement of receipt of a report provided pursuant to subdivision (b)(2), and must be present during the procedure.
2. For purposes of subdivision (c)(1), “proof of guardianship or custody” includes a copy of an order of guardianship, a decree for custody, a birth certificate or any other form of proof of guardianship or custody that is permitted by rule of the department of health.
Any person under eighteen (18) years of age who knowingly makes a false statement or exhibits false identification to the effect that the person is eighteen (18) years of age or older to any person providing tattoo services licensed or permitted under this part for the purpose of purchasing or obtaining the same commits delinquent acts taken through juvenile courts and the person shall be punished by a fine of not less than fifty dollars ($50.00) nor more than two hundred fifty dollars ($250) and not less than twenty (20) hours of community service work, which fine or penalty shall not be suspended or waived.

Acts 2008, ch. 803, § 2; 2012, ch. 981, § 5.

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

62-38-212. Possession of tattoo paraphernalia.

For the purposes of this section, “tattoo paraphernalia” includes, but is not limited to, any equipment, design patterns or needles used or intended for use in tattooing, whether professionally made or homemade, with the intent to permanently mark or color the skin with any pigment, ink, or dye that leaves a visible scar on the skin.
1. Except when used or possessed with the intent to use by a person licensed under this part, it is unlawful for any person to use, or to possess with intent to use, tattoo paraphernalia.
2. Any person who violates this subsection (b) commits a Class A misdemeanor.

Acts 2012, ch. 981, § 6.

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

Part 3
Body Piercing

62-38-301. Part definitions.

As used in this part:

“Antibacterial” means a substance that inhibits and reduces the growth of bacteria;
“Approval” means written approval from the department of health indicating that the body piercing establishment has been inspected and meets all the terms of this part and the applicable rules;
“Body piercing” means the piercing of any part of the body for compensation by someone, other than a physician licensed under title 63, who utilizes a needle or other instrument for the purpose of inserting an object into the body for nonmedical purposes. “Body piercing” includes ear piercing except when the ear piercing procedure is performed on the ear with an ear piercing gun;
“Body piercing establishment” means any place, whether temporary or permanent, stationary or mobile, wherever situated, where body piercing is performed, including any area under the control of the operator;
“Body piercing establishment permit” or “permit” means the issuance of a written permit by the department to a body piercing establishment stating that the establishment, after inspection, was found to be in compliance with this part;
“Body piercing operator” or “operator” means a person who controls, operates, conducts or manages a body piercing establishment, whether or not the operator is actually engaging in body piercing;
“Body piercing service” or “body piercing procedure” means the service performed or the procedure utilized for body piercing;
“Body piercing technician” or “technician” means a person at least eighteen (18) years of age who engages in the practice or service of body piercing, regardless of the type of body ornament utilized or the body area to be pierced;
“Body piercing technician license” means the issuance of a state license authorizing the person named in the license to engage in the practice or service of body piercing after fulfilling the requirements of this part;
“Business” means any entity that provides body piercing services or procedures for compensation;
“Commissioner” means the commissioner of health or the designee of the commissioner;
“Department” means the department of health;
“Disinfecting” means a process that kills or destroys nearly all disease-producing microorganisms, with the exception of bacterial spores;
“License” means the issuance of a license to perform body piercing to an individual, partnership, firm, association or corporation;
“Minor” means an individual under the age of eighteen (18);
“Patron” means a person requesting and receiving body piercing services;
“Premises” means the physical location of an establishment that offers and performs body piercing services;
“Proof of age” means a driver license or other generally accepted means of identification that describes the individual as eighteen (18) years of age or older, contains a photograph or other likeness of the individual and appears on its face to be valid;
“Sterilization” means holding in an autoclave for fifteen (15) minutes at fifteen (15) pounds of pressure and at a temperature of two hundred and fifty degrees Fahrenheit (250° F) or one hundred and twenty-one degrees Celsius (121° C);
“Sterilize” means a process by which all forms of microbial life, including bacteria, viruses, spores, and fungi, are destroyed; and
“Universal precautions” means that all blood and body fluids are treated so as to contain all blood borne pathogens and taking proper precautions to prevent the spread of any blood borne pathogens.

Acts 2001, ch. 336, § 2.

Compiler's Notes. Former part 3, §§ 62-38-301 — 62-38-303 (Acts 1999, ch. 333, § 1), was repealed and replaced by Acts 2001, ch. 336 § 1, effective January 1, 2002.

62-38-302. License required — Sanitation and sterilization compliance required.

No person shall perform a body piercing procedure without a license and in a manner that does not meet the standards for appropriate disinfecting and sterilization of invasive equipment used in performing the procedures established by this part and the rules adopted pursuant to this part.

Acts 2001, ch. 336, § 3.

Compiler's Notes. Former part 3, §§ 62-38-301 — 62-38-303 (Acts 1999, ch. 333, § 1), was repealed and replaced by Acts 2001, ch. 336 § 1, effective January 1, 2002.

62-38-303. Permit required.

To receive approval to offer body piercing services, a business must obtain a permit and demonstrate to the commissioner the ability to meet the requirements established by this part and the rules adopted pursuant to this part for safe performance of the body piercing procedures, training of the individuals who perform the procedures and maintenance of the required records.
No person shall operate a business that offers body piercing services unless the commissioner has approved the business pursuant to this part. No person shall perform a body piercing procedure in a way that does not meet the safety and sanitation standards established pursuant to this part.

Acts 2001, ch. 336, § 4.

Compiler's Notes. Former part 3, §§ 62-38-301 — 62-38-303 (Acts 1999, ch. 333, § 1), was repealed and replaced by Acts 2001, ch. 336 § 1, effective January 1, 2002.

62-38-304. Inspections.

The commissioner shall conduct at least one (1) inspection of a business prior to issuing a permit under this part for a business to offer and perform body piercing services. The commissioner may conduct additional inspections as necessary for the approval process relative to each business. The commissioner may inspect an approved business at any time the commissioner deems necessary. In an inspection, the commissioner shall be given access to the premises of the business and to all records deemed relevant by the commissioner for the inspection.

Acts 2001, ch. 336, § 5.

62-38-305. Minimum age for procedure — Exception authorized with consent — Recordkeeping.

No person shall perform a body piercing procedure on an individual who is under eighteen (18) years of age unless written consent has been given by the individual's parent, legal guardian or legal custodian in accordance with subsection (b); however, this subsection (a) shall not apply to an individual who has been emancipated by marriage or by a court order directly pertaining to body piercing.
A parent, legal guardian or legal custodian of an individual under age eighteen (18) who desires to give consent to a business for performance of a body piercing procedure on the individual under the age of eighteen (18) shall do all of the following:
1. Appear in person at the business at the time the procedure is performed;
2. Sign a document provided by the business that explains the manner in which the procedure will be performed and the methods for proper care of the affected body area following performance of the procedure;
3. Produce proof of age;
4. Sign a statement that the individual is the minor's parent, legal guardian or legal custodian;
5. 1. Present proof of guardianship or custody of the minor;
  2. For purposes of subdivision (b)(5)(A), “proof of guardianship or custody” includes a copy of an order of guardianship, a decree for custody, a birth certificate or any other form of proof of guardianship or custody that is permitted by rule of the department of health; and
6. Sign a statement as specified by rule stating in writing that the individual consents to the procedure being performed on the minor and that the individual providing consent is in fact the parent, legal guardian or legal custodian of the minor. The statement shall include the following declarations and disclosures:
  1. The undersigned is fully aware that to falsify legal standing as to parentage or being the legal guardian or legal custodian is a Class C misdemeanor; and
  2. Pursuant to § 40-35-111, a Class C misdemeanor means imprisonment for a period of no greater than thirty (30) days or a fine not to exceed fifty dollars ($50.00), or both.
Records of body piercing procedures performed on minors shall be maintained by the operator for two (2) years. A copy of all paperwork on a minor shall be forwarded to the department within thirty (30) business days following the performance of the body piercing procedure, and the department shall retain such paperwork for two (2) years. The paperwork shall include, but not be limited to:
1. The signed document that explains the manner in which the procedure will be performed and the methods for proper care;
2. A copy of the proof of age;
3. The statement in writing that the individual is the minor's parent, legal guardian or legal custodian; and
4. The signed statement that provides consent to perform a body piercing procedure on a minor that stipulates that the individual understands the consequences for falsifying the individual's legal standing as to parentage or being the legal guardian or legal custodian.

Acts 2001, ch. 336, § 6; 2008, ch. 803, § 3.

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

62-38-306. Age restrictions — Required records — Penalty for violations.

1. Unless consent has been given in accordance with § 62-38-305, no individual who is under age eighteen (18) shall obtain or attempt to obtain a body piercing procedure.
2. No individual shall knowingly show or give false information concerning the individual's name, age or emancipation.
1. No individual shall knowingly show or give any false information as to the name, age or other identification of an individual who is under age eighteen (18) for the purpose of obtaining for the individual under age eighteen (18) a body piercing procedure.
2. No individual shall impersonate the parent, legal guardian or legal custodian of an individual who is under age eighteen (18) for the purpose of obtaining for the individual under age eighteen (18) a body piercing procedure.
3. The operator shall require proof of age for any patron under the age of twenty-seven (27) and the operator shall retain a copy of the patron's proof of age documentation in the files of the business for a period of two (2) years from the time of the body piercing.
It is a Class C misdemeanor for a violation of subdivision (b)(2) by an individual over the age of seventeen (17) who impersonates a parent, legal guardian or legal custodian.

Acts 2001, ch. 336, § 7.

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

62-38-307. Continuing requirements of body piercing business.

Each operator of a business that offers body piercing services shall do all of the following:

Maintain procedures for ensuring that the technicians who perform body piercing procedures are adequately trained to perform the procedures properly;
Comply with the safety and sanitation requirements for preventing transmission of infectious diseases;
Require the technicians who perform body piercing procedures to disinfect and sterilize all invasive equipment or parts of equipment used in performing the procedures; and
Ensure that weekly tests of the business's heat sterilization devices are performed that indicate whether the devices are killing microorganisms. The operator shall maintain documentation that the weekly tests are being performed, as well as the results of each test.

Acts 2001, ch. 336, § 8.

62-38-308. Administrative and regulatory action authorized.

The commissioner shall promulgate emergency rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, for the implementation and enforcement of this part. The rules shall include, at a minimum, all of the following:
1. Safety and sanitation standards and procedures to be followed to prevent the transmission of infectious diseases during the performance of body piercing procedures, including a requirement that the operator provide to each patron printed instructions on the care of the skin after body piercing and requiring a copy of the instructions to be posted in a conspicuous place in the body piercing establishment;
2. Standards and procedures to be followed for appropriate disinfecting and sterilization of all invasive equipment or parts of equipment used in body piercing procedures; and
3. Procedures for suspending and revoking licenses and permits pertaining to body piercing.
The rules promulgated pursuant to this part shall establish universal blood and body fluid precautions to be used by any technician who performs body piercing procedures.
The rules promulgated pursuant to this part may include standards and procedures to be followed by a business that offers body piercing services to ensure that the technicians who perform body piercing procedures for the business are adequately trained to perform the procedures properly.
The rules promulgated pursuant to this part shall establish fees for issuing licenses and permits, as well as penalties for late payment. The fees shall be sufficient to cover one hundred percent (100%) of the department's cost of the program.

Acts 2001, ch. 336, § 9; 2009, ch. 566, § 12.

62-38-309. Application for commissioner's approval — Requirements — Inspections — Renewals — Temporary permits.

No person shall operate a business offering body piercing services without first obtaining approval of the commissioner.
Persons seeking approval to operate a business offering body piercing services shall apply to the commissioner on forms provided by the department. An applicant shall submit all applicable fees and information required by the department for processing the application. Information required by the department shall include, but not be limited to, the following:
1. If the operator is an individual, the operator's name, personal address, personal telephone number, business address, business telephone number and the operator's occupation;
2. A statement attesting that the operator intends to comply with all requirements of this part and the rules promulgated pursuant to this part;
3. Plans and specifications of the place of business to clearly show that applicable provisions of the rules promulgated pursuant to this part are met, such plans and specifications to include, but not be limited to, the following:
  1. The total area to be used for the business;
  2. All entrances and exits;
  3. Number, location and types of plumbing fixtures, including all water supply facilities;
  4. A lighting plan;
  5. A floor plan showing the general layout of fixtures, equipment and body piercing stations; and
  6. A listing of all equipment to be used for body piercing procedures;
4. Evidence that the operator shall perform the following functions:
  1. The operator shall maintain procedures ensuring that all technicians performing body piercing on the business premises have received appropriate training in body piercing;
  2. The operator shall maintain procedures ensuring that all technicians performing body piercing services for the business shall have received training, as evidenced by records of completion of courses or seminars provided by licensed physicians, registered nurses, organizations such as the American Red Cross, accredited learning institutions, appropriate governmental entities or other authorities recognized by the commissioner as being qualified to provide training in the following categories:
    1. First aid;
    2. Safety and sanitation requirements for preventing transmission of infectious diseases;
    3. Universal precautions against blood borne pathogens;
    4. Appropriate piercing aftercare; and
    5. Any other training deemed appropriate by the commissioner;
  3. The operator shall maintain written records of equipment utilized by the business, including manufacturers, model numbers and dates of acquisition or purchase;
  4. The operator shall maintain procedures ensuring that technicians performing body piercing services on the business premises shall disinfect and sterilize all nondisposable equipment or parts of equipment used in performing procedures, as well as properly dispose of disposable items used in the procedures;
  5. The operator shall maintain procedures ensuring the performance of weekly biological monitoring tests of the business's heat sterilization devices to include the following:
    1. Maintenance of a log of all tests performed, the date of each test and the name of the person or independent testing entity performing the test;
    2. Procedures for remedial action on the part of the operator to assure compliance with all sterilization requirements in the event a test indicates a heat sterilization device is not functioning properly; and
    3. Any other tests deemed appropriate by the commissioner;
  6. The operator shall maintain records of each test performed and the results of each test for at least two (2) years and shall make the test records available to the commissioner upon request during normal business hours; and
  7. The operator shall maintain procedures ensuring the general health and safety of all individuals employed by the business;
5. The operator shall identify any previous, current or similar approvals held by the operator for body piercing services in this state or any other state;
6. The operator shall provide evidence and documentation of all applicable fee payments, inspections and approvals; and
7. The operator shall make inquiry with each patron as to whether the patron is under the influence of drugs or alcohol, and the patron must state in writing that the patron is not under the influence of drugs or alcohol before any body piercing procedure may be performed.
The commissioner shall conduct at least one (1) inspection of a business prior to approving it and before a permit is issued. The commissioner may conduct additional inspections as deemed necessary for approval purposes.
Licenses and permits shall be valid for up to one (1) year; however, all licenses and permits shall expire on December 31 following the date of issuance.
The operator shall give the commissioner access to the business premises and to all records required by this part that are deemed relevant by the commissioner for the purpose of making an inspection. All records shall be entered in ink or other permanent form and shall be made available to the commissioner upon request at any time during normal business hours of operation.
A permit is not transferable. Any permanent change in location or change in ownership to any degree shall necessitate the operator's applying for a new permit with payment of all fees established by the commissioner.
The department shall approve any such business for the purposes of operating on a time-limited basis in conjunction with a specific event. Time-limited body piercing establishments may be permitted at such events as fairs and other time-limited gatherings, if the commissioner determines that the body piercing operator meets the provisions contained in this part and the rules promulgated by the department. For the purpose of approval, the following shall occur:
1. A permitted body piercing establishment may set up temporary locations, including, but not limited to, body piercing conventions, at a place other than a body piercing establishment only with the approval of the commissioner for a period not to exceed ten (10) days; provided, that each technician not previously licensed with the Tennessee department of health shall obtain a license prior to performing body piercing at a temporary location;
2. Temporary facilities shall be held to the same sanitary standards as those required of body piercing establishments;
3. Temporary facility permits shall be issued by the commissioner and shall not be transferable or renewable;
4. A temporary body piercing technician license shall not be issued for more than fourteen (14) days. The operator of the related establishment shall also sign for the temporary license from the department, and all body piercing shall be under the auspices of the body piercing establishment operator and shall be in compliance with this part. Technicians may perform body piercing if a copy of the temporary permit and the temporary technician license are on display at the temporary site. The sterilization course, written examination and work experience requirements may be waived by the commissioner for a temporary license;
5. The applicant or operator shall submit all applicable fees and information the department determines necessary to process the application. The department shall take into consideration the department's costs associated with carrying out this subsection (g) when determining the appropriate fee.
The permit of a business may be renewed annually by the department. Renewal shall occur following an annual inspection, assurance that all conditions set forth in this part, as well as the rules, are met and the payment of all fees set by the commissioner has been received.

Acts 2001, ch. 336, § 10.

62-38-310. Penalty.

A violation of this part by an operator or a technician is a Class B misdemeanor.

Acts 2001, ch. 336, § 11.

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

Chapter 39
State Licensing and Certified Real Estate Appraisers Law

Part 1
General Provisions

62-39-101. Short title.

This chapter shall be known and may be cited as the “State Licensing and Certified Real Estate Appraisers Law.”

Acts 1990, ch. 865, § 2.

Attorney General Opinions. Insurance adjuster acting as appraiser, OAG 99-205, 1999 Tenn. AG LEXIS 193 (10/14/99).

62-39-102. Chapter definitions.

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

“Analysis assignment” means an analysis, opinion or conclusion prepared by a real estate appraiser that relates to the nature, quality or utility of identified real estate or identified real property;
“Applicant for initial registration, licensure, or certification”:
1. Means any person applying for a registration, license, or certification issued under this chapter who does not currently hold a valid registration, license, or certification issued by the commission;
2. Includes:
  1. Any person who previously held a registration, license or certification issued under this chapter who failed to timely renew such registration, license, or certification and is required to reapply for a new registration, license or certification; or
  2. Any person applying for a reciprocal registration; and
3. Does not include:
  1. Any person renewing an existing registration, license, or certification issued under this chapter;
  2. A current registrant applying for a license or certification;
  3. A current licensee applying for certification; or
  4. Any person applying for a reciprocal license or certification if such person holds an active license or certification that is appraiser qualifications board compliant in the other jurisdiction;
“Appraisal” means the act or process of developing an opinion of value of identified real estate. That opinion of value may be numerically expressed either as a specific amount, as a range of numbers or as a relationship to a previous value opinion or other numerical benchmark;
“Appraisal assignment” means an engagement for which an appraiser is employed or retained to act, or would be perceived by third parties or the public as acting, as a disinterested third party in rendering an unbiased analysis, opinion or conclusion relating to the nature, quality, value or utility of specified interests in, or aspects of, identified real estate;
“Appraisal foundation” means the appraisal foundation incorporated as an Illinois not for profit corporation on November 30, 1987;
“Appraisal report” means any communication, written or oral, of an opinion of value of identified real estate. For the purposes of this chapter, an appraiser who testifies as to the value of an identified real property is deemed to have provided an oral appraisal report;
“Certified appraisal report” means a written or oral appraisal report that is certified as such by a state certified real estate appraiser. Some federal agencies require appraisals to be in writing;
“Commission” means the real estate appraiser commission established pursuant to § 62-39-201;
“Real estate” means an identified parcel or tract of land, including improvements, if any;
“Real estate appraisal activity” means the act or process of making an appraisal of real estate or real property and preparing an appraisal report;
“Real estate appraiser” means a person who engages in real estate appraisal activity for a fee or other valuable consideration;
“Real property” means one (1) or more defined interests, benefits and rights inherent in the ownership of real estate;
“Review assignment” means an analysis, opinion or conclusion prepared by a real estate appraiser that forms an opinion as to the adequacy and appropriateness of a valuation appraisal or an analysis assignment;
“Specialized services” means those appraisal services that do not fall within the definition of appraisal assignment. “Specialized services” may include valuation work and analysis work. Regardless of the intention of the client or employer, if the appraiser would be perceived by third parties or the public as acting as a disinterested third party in rendering an unbiased analysis, opinion or conclusion, the work is classified as an appraisal assignment and not specialized services;
“State certified real estate appraiser” means a person who develops and communicates real estate appraisals and who holds a current, valid certificate issued to the person for either general or residential real estate under this chapter;
“State licensed real estate appraiser” means a person who holds a current, valid real estate appraiser license issued pursuant to this chapter; and
“Valuation appraisal” refers to an analysis, opinion or conclusion prepared by a real estate appraiser that estimates the value of an identified parcel of real estate or identified real property at a particular point in time.

Acts 1990, ch. 865, §§ 3, 39; 1991, ch. 366, §§ 1-3; 1992, ch. 697, §§ 2-4; 2008, ch. 727, §§ 1, 2; 2009, ch. 279, § 8; 2014, ch. 621, § 1.

Compiler's Notes. Acts 2014, ch. 621, § 3 provided that the Tennessee real estate appraiser commission is authorized to promulgate rules and regulations to effectuate the purposes of this act. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in Tennessee Code Annotated, title 4, chapter 5.

Cross-References. Employing or retaining an appraiser as disinterested third party or for specialized services, § 62-39-330.

Attorney General Opinions. Whether an “evaluation” of real property constitutes an “appraisal” and an “appraisal report”. OAG 10-25, 2010 Tenn. AG LEXIS 20 (3/5/10).

NOTES TO DECISIONS

1. Application.

Principles of Appraisal Practice and Code of Ethics expressly state that an appraiser may not serve more than one client with regards to either an appraisal of the same property or “with respect to the same legal action” unless all parties consent to the dual representation. The appraiser could not continue his employment for general purposes with debtors and at the same time testify for the creditor on its motion for relief, which was unequivocally an interest adverse to debtors; accordingly, the appraiser was disqualified as the creditor's expert witness regarding its motion. In re McCarter, 296 B.R. 750, 2003 Bankr. LEXIS 932 (Bankr. E.D. Tenn. 2003).

62-39-103. License or certificate required.

Except as provided in § 62-39-104, it is unlawful for anyone to solicit an appraisal assignment or to prepare an appraisal or an appraisal report relating to real estate or real property in this state without first obtaining a real estate appraiser's license or certificate.
This section shall not be construed to apply to individuals who render professional assistance in arriving at a real estate analysis, opinion or conclusion.
Nothing in this chapter shall be construed to prohibit any person who is licensed to practice in this state under any other law from engaging in the practice for which the person is licensed.

Acts 1990, ch. 865, § 4; 1991, ch. 366, §§ 4, 5; 1995, ch. 222, § 1.

NOTES TO DECISIONS

2. Property Valuation.

Because a land consultant was not a licensed appraiser, he was not legally qualified to give an appraisal of property; however, the fact that the consultant could not appraise property did not automatically disqualify him from rendering an opinion as to the value of property, and although he could not appraise the property at issue, the fact he was not a licensed appraiser did not render him incompetent to render an opinion as to the value of the property. Breen v. Sharp, — S.W.3d —, 2017 Tenn. App. LEXIS 742 (Tenn. Ct. App. Nov. 14, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 182 (Tenn. Mar. 15, 2018).

62-39-104. Applicability.

This chapter does not apply to a real estate broker or salesperson licensed by this state who, in the ordinary course of business, gives an opinion to a potential seller or third party as to the recommended listing price of real estate or an opinion to a potential purchaser or third party as to the recommended purchase price of real estate. This opinion as to the listing price or the purchase price shall not be referred to as an appraisal and no opinion shall be rendered as to the value of the real estate or real property.
This chapter does not apply to a full-time employee who, in the ordinary course of business, gives an opinion of the value of real estate to the employee's employer; provided, that the opinion may not be represented as an appraisal.
This chapter shall in no way affect any person who is registered with the state board of equalization in accordance with § 67-5-1514 while performing any service of any nature for any taxpayer before any tax or assessment authority, agency or board of equalization.
1. This chapter does not apply to any evaluation of the value of real estate serving as collateral for a loan made by a federally regulated financial institution or to any evaluation of the value of the assets of a trust held by the institution; provided, that:
  1. The applicable federal regulator does not require an appraisal by a state-licensed or state-certified appraiser for the loan or trust;
  2. The evaluation is used solely by the financial institutions in their records to document the collateral or asset value;
  3. The evaluation shall be labeled on its face “this is not an appraisal”; and
  4. Individuals performing these evaluations may be compensated for their services.
2. Nothing in this chapter shall prevent a state-licensed or state-certified appraiser from performing the evaluation.

Acts 1990, ch. 865, § 5; 1991, ch. 366, § 6; 1992, ch. 697, § 5; 1994, ch. 605, § 9.

Attorney General Opinions. Whether an “evaluation” of real property constitutes an “appraisal” and an “appraisal report”. OAG 10-25, 2010 Tenn. AG LEXIS 20 (3/5/10).

62-39-105. Certification — Restrictions on use — Prerequisite to preparing and signing certified appraisal.

No person other than a state certified real estate appraiser under this chapter shall assume or use that title or any title, designation or abbreviation likely to create the impression of certification as a real estate appraiser by this state.
1. Only an individual who has qualified as a state certified real estate appraiser under this chapter is authorized to prepare and sign a certified appraisal report relating to real estate or real property in this state.
2. If an appraisal report is prepared and signed by a state certified real estate appraiser and the appraisal report is certified as such by the state certified real estate appraiser, a holder of a real estate appraiser license or a certificate of registration as a real estate appraiser trainee who assisted in the preparation of the appraisal report is authorized to co-sign the appraisal report.
3. An individual who has not qualified as a state certified real estate appraiser shall not describe nor refer to any appraisal or appraisal report relating to real estate or real property in this state by the terms “certified appraisal” or “certified appraisal report.”

Acts 1990, ch. 865, § 6; 2009, ch. 279, § 9.

Cross-References. Penalties, § 62-39-319.

62-39-106. State law not to be more stringent than federal law.

No state law regulating real estate appraisers shall be more stringent than any federal law regulating real estate appraisers.

Acts 1992, ch. 697, § 7.

Part 2
Real Estate Appraiser Commission

62-39-201. Creation — Composition.

1. There is created an independent real estate appraiser commission under the division of regulatory boards in the department of commerce and insurance, whose duty shall be to administer and enforce this chapter.
2. The commission shall consist of nine (9) members, one (1) of whom shall be a public member, one (1) of whom shall be a full-time educator of appraisal-related education with the state's universities, colleges and junior colleges, and one (1) of whom shall be from an appraisal management company or financial institution providing appraisal services in Tennessee.
3. Six (6) of the members shall be real estate appraisers.
4. No more than three (3) commission members may be from any one (1) grand division of the state.
The governor shall appoint the members of the real estate appraiser commission. In making appointments to the commission, the governor shall strive to ensure that at least two (2) persons serving on the commission are sixty (60) years of age or older and that at least two (2) persons serving on the commission are members of a racial minority. The governor shall strive to appoint to the commission no more than two (2) members of any one (1) appraiser organization.
Each of the real estate appraiser members first appointed to the commission shall possess a minimum of ten (10) years of active experience as a real estate appraiser.
Each real estate appraiser member of the commission appointed must be a state certified real estate appraiser or a state licensed real estate appraiser. The governor, in making appointments, shall strive to achieve a balance between certified general, certified residential and licensed appraisers.
The governor shall make initial appointments of three (3) members for terms of one (1) year, three (3) members for terms of two (2) years, and three (3) members for terms of three (3) years. Thereafter, all members shall be appointed for terms of three (3) years.
Upon expiration of their terms, members of the commission shall continue to hold office until the appointment and qualification of their successors. No person shall serve as a member of the commission for more than two (2) consecutive terms. The governor may remove a member for cause.
The public members of the commission shall not be engaged in the practice of real estate appraising.

Acts 1990, ch. 865, § 7; 1991, ch. 366, §§ 7-9; 1992, ch. 697, § 1; 2006, ch. 598, § 1; 2010, ch. 963, § 28.

Compiler's Notes. The real estate appraiser commission, created by this section, terminates June 30, 2024. See §§ 4-29-112, 4-29-245.

Acts 2010, ch. 963, § 29 provided that: “(a) For purposes of making appointments to meet the revised board composition provided for in § 62-39-201(a)(2), appointments to fill vacant positions shall be made as follows:

“(1) First, a person from a qualified appraisal management company or financial institution providing appraisal services in Tennessee;

“(2) Second, a person who is public member;

“(3) Thereafter, qualified appraisers.

“(b) This Act shall not affect the terms of the current members of the commission, but all appointments after July 1, 2011, shall be made so as to meet the requirements established in Section 28 [§ 62-39-201(a)(2)], as terms expire and vacancies occur.”

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

62-39-202. Meetings — Compensation.

The commission shall meet at least three (3) times each year to conduct its business. Places of future meetings shall be decided by the vote of members at meetings. Written notice shall be given to each member of the time and place of each meeting of the commission at least ten (10) days before the scheduled date of the meetings.
The members of the commission shall elect a chair from among the members to preside at commission meetings.
A majority of the commission shall constitute a quorum. A majority of the members present for a quorum shall be appraiser members.
Each member of the commission shall be entitled to a per diem allowance of fifty dollars ($50.00) for each meeting of the commission at which the member is present and for each day or substantial part of a day actually spent in the conduct of the business of the commission. In addition, members shall receive actual expenses to be paid in accordance with the comprehensive travel regulations promulgated by the commissioner of finance and administration and approved by the attorney general and reporter.
The commission at its organizational meeting shall appoint a subcommittee whose duties will be to work with the state's universities, colleges and junior colleges to implement a statewide educational network of appraisal courses leading to an associate or baccalaureate, or both, of applied science degree in real estate appraisal.

Acts 1990, ch. 865, § 7.

62-39-203. Rules and regulations.

The commission shall adopt rules and regulations in aid or in furtherance of this chapter.

Acts 1990, ch. 865, § 8.

62-39-204. Powers and duties.

The commission has the power and duty to:

Further define by regulation, for state licensed appraisers and with respect to each category of state certified real estate appraiser, the type of educational experience, appraisal experience and equivalent experience that will meet the statutory requirements of this chapter;
Establish the examination specifications for state licensed appraisers and for each category of state certified real estate appraiser, to provide or procure appropriate examination questions and answers and to establish procedures for grading examinations;
Solicit bids and enter into contracts with one (1) or more educational testing services or organizations for the preparation of a bank of questions and answers for licensing and certification examinations that meet the examination specifications adopted from time to time by the commission;
Approve licensing and certification examinations, based upon the bank of questions and answers and the question selection process approved by the commission, in places and at times that may be required to carry out its responsibilities under this chapter;
Approve or disapprove applications for licenses and certification and issue real estate appraisal licenses and certificates;
Further define by regulation, for state licensed appraisers and with respect to each category of state licensed and certified real estate appraiser, the continuing education requirements for the renewal of certification that will meet the statutory requirements provided in this chapter;
Review from time to time the standards for the development and communication of real estate appraisals provided in this chapter and to adopt regulations explaining and interpreting the standards;
Establish administrative procedures for disciplinary proceedings conducted pursuant to this chapter;
Censure, suspend and revoke licenses and certificates pursuant to the disciplinary proceedings provided for in §§ 62-39-326 — 62-39-328;
Receive applications for state licenses and certification;
Establish the administrative procedures for processing applications for state licenses and certification;
Maintain a registry of the names and addresses of people licensed or certified under this chapter;
Retain records and all application materials submitted to it;
Collect from the individuals who perform or seek to perform appraisals in federally related transactions an annual registry fee in an amount designated by the federal appraisal subcommittee, the fees to be transmitted to the subcommittee annually;
Audit from time to time the experience of license and certificate holders for compliance with standards of practice; and
Perform other functions and duties that may be necessary in carrying out this chapter.

Acts 1990, ch. 865, § 8; 1991, ch. 366, § 10; 1995, ch. 222, § 2.

62-39-205. Fees.

The commission shall charge and collect fees to be utilized to fund activities that may be necessary to carry out this chapter.

Acts 1990, ch. 865, § 9; T.C.A. § 62–39–206.

Code Commission Notes.

This section was renumbered from § 62-39-206 to § 62-39-205 by authority of the Code Commission in 2019.

Part 3
Licensing, Certification and Examination

62-39-301. Application for license, certification or examination — Fingerprinting and criminal history information.

Applications for an initial registration, license or certification, a renewal license or certification and examinations shall be made in writing to the commission on forms approved by the commission.
Appropriate fees, as fixed by the commission pursuant to § 62-39-205, must accompany all applications for an:
1. Initial or renewal registration, license, or certification; and
2. Examination.
At the time of filing an application for registration, license or certification, an applicant shall sign a pledge to comply with the standards set forth in this chapter. The pledge shall also state that the applicant understands the types of misconduct for which disciplinary proceedings may be initiated against a registered trainee, licensed real estate appraiser or certified real estate appraiser, as set forth in this chapter.
1. The commission shall require each applicant applying on or after January 1, 2015, for initial registration, licensure, or certification under this chapter to submit a full set of the applicant’s fingerprints in order for the commission to obtain and receive national criminal history records from the FBI criminal justice information services division. Unless the commission contracts, or makes use of an existing contract pursuant to subdivision (d)(2), the commission shall submit the applicant’s fingerprints and the fee required to perform the criminal history record checks to the Tennessee bureau of investigation and the federal bureau of investigation for state and national criminal history record checks. The commission may require any fingerprints submitted pursuant to this subsection (d) be provided in an electronic format.
2. The commission may contract, or make use of any existing contract with this state, for the collection and transmission of fingerprints authorized under this section. If the commission contracts, or makes use of an existing contract, the commission may order the applicant to pay the fee for collecting and transmitting fingerprints to the contractor. The commission may agree to a reasonable fingerprinting fee to be charged by the contractor to the applicant.
3. The commission shall treat and maintain an applicant’s fingerprints and any criminal history record information obtained under this section as confidential and limit the use of records solely to the purposes authorized in this section. The fingerprints and any criminal history record information shall not be subject to subpoena, other than one issued in a criminal action or investigation, and shall be confidential by law and privileged, and shall not be subject to discovery or admissible in evidence in any private civil action.
4. The commission shall refuse to issue an initial registration, license, or certification to an applicant who does not provide fingerprints in compliance with this subsection (d).

Acts 1990, ch. 865, § 10; 2014, ch. 621, § 2.

62-39-302. Authorization to appraise certain types of real estate — Licensed appraiser — Certified residential appraiser — Certified general appraiser.

A state licensed appraiser may perform appraisals of the following properties:
1. All properties with a transaction value of up to two hundred fifty thousand dollars ($250,000);
2. Noncomplex residential properties with a transaction value up to, but not including, one million dollars ($1,000,000); and
3. Agricultural properties, including agricultural properties with up to two (2) dwelling units, with a value up to, but not including, one million dollars ($1,000,000).
A state certified residential appraiser shall be authorized to appraise all properties that a state licensed appraiser may appraise and also all residential real property consisting of one (1) to four (4) units.
A state certified general appraiser shall have no transaction value limits on the appraiser's appraisal practice.
Nothing contained within the language of this section shall be construed to authorize a state licensed appraiser to appraise property that federal agencies require to be appraised by a state certified appraiser.

Acts 1990, ch. 865, § 11; 1991, ch. 366, § 12; 1992, ch. 702, § 3.

62-39-303. License — Appraiser — Qualifications.

To qualify for a real estate appraiser license, an applicant must:

Have a high school diploma or its equivalent; and
Have met the current requirements for licensure as set forth by the appraisal qualifications board of the appraisal foundation.

Acts 1990, ch. 865, § 12; 1991, ch. 108, § 1; 1991, ch. 366, §§ 13, 14; 1994, ch. 605, § 1.

62-39-304. Real estate appraiser trainee — Rules.

As a prerequisite to making application for licensure as a state-licensed real estate appraiser, a state-certified residential real estate appraiser or a state-certified general appraiser, an applicant must register as a real estate appraiser trainee, in addition to all other lawful requirements, then demonstrate two (2) years of service under a state-certified residential real estate appraiser or a state-certified general real estate appraiser as a real estate appraiser trainee or equivalent experience as determined by the commission and in compliance with the Uniform Standards of Professional Appraisal Practice promulgated by the appraisal standards board of the appraisal foundation.
Eligibility for registration as a real estate appraiser trainee shall be determined by the Tennessee real estate appraisal commission.
An application for registration as a real estate appraiser trainee shall be accompanied by a nonrefundable application fee.
A certificate of registration as a real estate appraiser trainee will expire two (2) years following the date of issuance, unless renewed prior to expiration.
This section shall not apply to persons serving as a trainee under the supervision of a state-certified residential real estate appraiser or a state-certified general real estate appraiser as of June 30, 1997.

Acts 1990, ch. 865, § 13; 1991, ch. 366, § 16; 1997, ch. 370, § 1.

62-39-305. License — Appraiser — Expiration.

If the commission determines that an applicant meets the requirements of this chapter and is qualified for a real estate appraiser license, it shall issue a license to the applicant that shall expire two (2) years following the date of issuance unless revoked or suspended prior to expiration. The expiration date of the license shall appear on the license and no other notice of its expiration need be given to its holder.

Acts 1990, ch. 865, § 14.

62-39-306. License — Renewal — Regulations.

The commission shall promulgate regulations to ensure that each individual renewing the individual's license as a real estate appraiser under this chapter has a working knowledge of current real estate appraisal theories, practices and techniques that will enable the individual to provide competent real estate appraisal services to the members of the public with whom the individual deals in a professional relationship under the authority of the individual's real estate appraiser license.
No amendment or repeal of a regulation adopted by the commission pursuant to this section shall operate to deprive a licensed real estate appraiser of credit toward renewal of the appraiser's license for any course of instruction that is successfully completed by the applicant prior to the date of the amendment or repeal of the regulation.

Acts 1990, ch. 865, § 15; 1991, ch. 366, § 17.

62-39-307. Current, valid license — Application for renewal — Refusal to renew.

To renew a current, valid real estate appraiser license, the holder of the license shall file an application on a form approved by the commission and pay the prescribed renewal fee to the commission no earlier than one hundred twenty (120) days prior to the expiration date of the license then held. Each application for renewal shall be accompanied by evidence in the form prescribed by the commission of having completed the continuing education requirement for renewal specified in this chapter.
The commission may refuse to renew any license if the licensee has continued to perform real estate appraisal activities in this state following the expiration of the license.

Acts 1990, ch. 865, § 16; 1991, ch. 366, § 18; 2014, ch. 570, § 1.

Compiler's Notes. The language “other than a temporary license issued under § 62-39-322,” following “appraiser license” in the first sentence of (a) was deleted by the code commission in 1991. Acts 1991, ch. 366, § 34 deleted the former provisions in § 62-39-322 concerning temporary licenses that were referred to in (a).

62-39-308. Commission — Power to discipline and penalize.

The commission has the power to discipline and penalize a license or certificate holder for violations of this chapter or the rules and regulations of the commission.

Acts 1990, ch. 865, § 17; 1991, ch. 366, § 19.

62-39-309. [Reserved.]

There shall be at least two (2) classes of certification for state certified real estate appraisers. These classes shall include:
1. The state certified residential real estate appraiser classification shall consist of those persons meeting the requirements for certification relating to the appraisal of residential real property; and
2. The state certified general real estate appraiser classification shall consist of those persons meeting the requirements for certification relating to the appraisal of all types of real property.
The application for original certification, renewal certification and examination shall specify the classification of certification being applied for or previously granted.

Acts 1990, ch. 865, § 19; 1991, ch. 366, § 21.

62-39-311. Certification examination.

It is the intent of this chapter that any certification examination be consistent with and equivalent to the uniform state certification examination issued or endorsed by the appraisal qualifications board of the appraisal foundation, and the commission may adopt changes in the examination to meet these criteria. An original certification as a state certified real estate appraiser shall not be issued to any person who has not demonstrated through a written examination process that the person possesses the following:

Appropriate knowledge of technical terms commonly used in or related to real estate appraising, appraisal report writing and economic concepts applicable to real estate;
Understanding of the principles of land economics, real estate appraisal processes and of problems likely to be encountered in gathering, interpreting and processing of data in carrying out appraisal disciplines;
Understanding of the standards for the development and communication of real estate appraisals as provided in this chapter;
Knowledge of theories of depreciation, cost estimating, methods of capitalization and the mathematics of real estate appraisal that are appropriate for the classification of certificate applied for;
Knowledge of other principles and procedures as may be appropriate for the respective classifications;
Basic understanding of real estate law; and
Understanding of the types of misconduct for which disciplinary proceedings may be initiated against a state certified real estate appraiser.

Acts 1990, ch. 865, § 20.

62-39-312. Prerequisites to taking certification examination.

As a prerequisite to taking the examination for certification as a state-certified general real estate appraiser, applicants shall submit satisfactory evidence that they have met the current requirements for certification as a certified general real estate appraiser as set forth by the appraisal qualifications board of the appraisal foundation.
As a prerequisite to taking the examination for certification as a state-certified residential real estate appraiser, an applicant shall present satisfactory evidence to the commission that the applicant has completed the current requirements for certification as set forth by the appraisal qualifications board of the appraisal foundation.
It is the intent of this chapter to meet the minimum criteria for certification established from time to time by the appraisal qualifications board of the appraisal foundation, and the commission may recommend changes to this section to meet those criteria.

Acts 1990, ch. 865, § 21; 1991, ch. 366, §§ 22-24; 1994, ch. 605, §§ 2, 3.

62-39-313. Certification — Experience requirement.

As a prerequisite to certification, a person must have completed the appraisal experience requirement currently set forth by the appraisal qualifications board of the appraisal foundation.
Each applicant for certification shall furnish under oath a detailed listing of the real estate appraisal reports or file memoranda for each year for which experience is claimed by the applicant. Upon request, the applicant shall make available to the commission for examination a sample of appraisal reports that the applicant has prepared in the course of the applicant's appraisal practice.
It is the intent of this chapter to meet the minimum criteria for certification established from time to time by the appraiser qualifications board of the appraisal foundation and the commission may recommend changes to this section to meet those criteria.

Acts 1990, ch. 865, § 22; 1991, ch. 108, § 2; 1994, ch. 605, § 4.

62-39-314. Certification — Expiration.

The initial certification issued under the authority of this chapter shall expire upon the expiration date of the certificate held by a certificate holder. Thereafter, the term of a certificate issued under the authority of this chapter shall be two (2) years from the date of issuance unless revoked or suspended prior to expiration.
The expiration date of the certificate shall appear on the certificate and no other notice of its expiration need be given to its holder.

Acts 1990, ch. 865, § 23; 1991, ch. 366, § 25.

62-39-315. Renewal certificate — Requirements.

To obtain a renewal certificate as a state certified real estate appraiser, the holder of a current, valid certificate shall make application and pay the prescribed fee to the commission no earlier than one hundred twenty (120) days prior to the expiration date of the certificate then held. With the application for renewal, the state certified real estate appraiser shall present evidence in the form prescribed by the commission of having completed the continuing education requirements for renewal specified in this chapter.

Acts 1990, ch. 865, § 24; 1991, ch. 366, § 26; 2014, ch. 570, § 2.

62-39-316. Denial of certificate — Grounds.

The commission may deny the issuance of a certificate as a state licensed or certified real estate appraiser to an applicant who has been convicted of a felony or on any of the grounds enumerated in this chapter.

Acts 1990, ch. 865, § 25; 1991, ch. 366, § 27.

Cross-References. Hearings, § 62-39-328.

62-39-317. Required notice to commission of addresses — Places of business — Residence — Change of address.

Each state licensed or certified real estate appraiser shall advise the commission of the address of the appraiser's principal place of business and all other addresses at which the appraiser is currently engaged in the business of preparing real property appraisal reports.
Whenever a state licensed or certified real estate appraiser changes a place of business, the appraiser shall within thirty (30) days give written notification of the change to the commission.
Every state licensed or certified real estate appraiser shall notify the commission of the appraiser's current residence address.
The commission shall charge a fee of twenty-five dollars ($25.00) for processing a change of address request. Failure to promptly notify the commission of the change of address and pay the applicable fee shall be grounds for disciplinary action.

Acts 1990, ch. 865, § 26; 1991, ch. 366, §§ 28-30; 1994, ch. 605, §§ 6, 7.

Compiler's Notes. Acts 1991, ch. 366, § 29 directed that, in (b), “within thirty (30) days” be substituted for “immediately give written notification of the change to the commission and apply for an amended certificate”; however, “within thirty (30) days” has been substituted for “immediately” in order to implement the perceived legislative intent.

62-39-318. Suit to collect compensation for appraisal services — License or certificate required.

No person engaged in the business of real estate appraising in this state or acting in the capacity of a real estate appraiser in this state may bring or maintain any action in any court of this state to collect compensation for the performance of real estate appraisal services for which a license or certificate is required by this chapter, without alleging and proving that the person was the holder of a valid real estate appraiser license or certificate in this state at all times during the performance of the services.

Acts 1990, ch. 865, § 27; 1991, ch. 366, § 31.

62-39-319. Penalties.

Any person required by this chapter to be licensed who engages in real estate appraisal activity in this state without obtaining a license for the appraisal activity or who violates this chapter commits a Class A misdemeanor and shall be ineligible to obtain a license for a period of one (1) year from the date of the person's conviction of the offense.
The board shall not deny, revoke, suspend, refuse to renew or discriminate against any applicant for membership or lack of membership in any real estate appraiser organization.
No person, corporation, governmental entity, bank or other financial institution shall discriminate against any appraiser for membership or lack of membership in any appraisal organization. A violation of this subsection (c) is a Class A misdemeanor.
Any attempt by any person, corporation, governmental entity, bank or other financial institution to unduly intimidate an appraiser or influence an appraiser's report relating to market conditions or determination of value is a Class A misdemeanor.
The commission shall use all available means to locate and communicate with all persons holding themselves out as appraisers.

Acts 1990, ch. 865, § 28; 1991, ch. 366, § 32.

Code Commission Notes.

The misdemeanor in (a) has been designated as a Class A misdemeanor by authority of § 40-35-110, which provides that an offense of 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.

62-39-320. Roster of licensed appraisers.

The commission shall prepare and issue at least once each calendar year a roster showing the name and place of business of each real estate appraiser currently licensed and each real estate appraiser currently certified. A copy of the roster shall be made available to the public, upon application to the commission, at a reasonable price per copy that may be fixed by the commission.

Acts 1990, ch. 865, § 29.

62-39-321. Certificate of good standing.

The commission, upon payment of a fee in an amount specified in its regulations, shall issue a letter stating that a license or certificate holder is in good standing in this state.

Acts 1990, ch. 865, § 30; 1991, ch. 366, § 33.

62-39-322. Nonresident licensees and certificate holders — Reciprocity — Fees.

If, in the determination of the commission, a state is deemed to have meaningful requirements for licensure and certification, then the commission shall grant reciprocal rights to licensees and certificate holders who are in good standing in that state.
The commission shall set reasonable fees for the practice of appraisal in this state by licensees and certificate holders of other states that have been granted reciprocity.

Acts 1990, ch. 865, § 31; 1991, ch. 366, § 34; 2013, ch. 180, § 14.

62-39-323. License or certificate number to appear on appraisal reports — Authorized use of initials.

A license or certificate issued under authority of this chapter shall bear the license or certificate number assigned by the commission.
Each state licensed real estate appraiser shall place the real estate appraiser's license number adjacent to or immediately below the title “State Licensed Real Estate Appraiser” when used in an appraisal report or in a contract or other instrument used by the license holder in conducting appraisal activities, unless the licensed appraiser is also a state certified appraiser.
Each state certified real estate appraiser shall place the real estate appraiser's certificate number adjacent to or immediately below the title “State Certified Residential Real Estate Appraiser” or “State Certified General Real Estate Appraiser” when used in an appraisal report or in a contract or other instrument used by the certificate holder in conducting appraisal activities.
In lieu of spelling out the full title as set forth in this section, a state-certified general real estate appraiser may use the initials “C.G.,” a state-certified residential real estate appraiser may use the initials “C.R.” and a state licensed real estate appraiser may use the initials “L.I.” The initials should be immediately followed by the license or certificate number. The unauthorized use of these initials by an unlicensed person to imply that the person is a licensed or certified appraiser constitutes a Class A misdemeanor.

Acts 1990, ch. 865, § 32; 1994, ch. 605, § 8; 1995, ch. 222, § 3.

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

62-39-324. Use of certain titles restricted to individual holders of license or certificate — Issuance of license or certificate to certain entities prohibited.

“State certified real estate appraiser,” “state certified residential real estate appraiser,” “state certified general real estate appraiser” or “state licensed real estate appraiser” may only be used to refer to individuals who hold the license or certificate and may not be used following or immediately in connection with the name or signature of a firm, partnership, corporation or group or in such manner that it might be interpreted as referring to a firm, partnership, corporation, group or anyone other than an individual holder of the license or certificate.
No license or certificate shall be issued under this chapter to a firm, partnership, corporation or group. This shall not be construed to prevent a state licensed or certified real estate appraiser from signing an appraisal report on behalf of a firm, partnership, corporation or group practice.

Acts 1990, ch. 865, § 33.

62-39-325. Renewal of license or certificate — Rules — Legislative intent.

In accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, the commission shall promulgate rules to ensure that each individual renewing the individual's license or certificate has a working knowledge of current real estate appraisal theories, practices and techniques sufficient to enable the individual to provide competent real estate appraisal services to the members of the public with whom the individual deals in a professional relationship.
It is the intent of this chapter to meet the minimum criteria for certification established from time to time by the appraiser qualifications board of the appraisal foundation, and the commission may recommend changes to this section to meet those criteria.

Acts 1990, ch. 865, § 34; 1991, ch. 366, § 35.

62-39-326. Violations — Revocation or suspension.

The rights of any applicant or holder under a certificate as a state licensed or certified real estate appraiser may be revoked, suspended or restricted, or the owner of the certificate may be assessed a civil penalty of up to one thousand dollars ($1,000) per violation, or otherwise disciplined in accordance with this chapter, upon any of the following grounds:

Procuring or attempting to procure a license or certificate pursuant to this chapter by knowingly making a false statement, submitting false information, refusing to provide complete information in response to a question in an application for a license or certificate or through any form of fraud or misrepresentation;
Paying money other than provided for by this chapter to any member or employee of the commission to procure a license or certificate under this chapter;
Conviction, including conviction based upon a plea of guilty or nolo contendere, of a crime that is substantially related to the qualifications, functions, and duties of a person developing appraisals and communicating appraisals to others or conviction of any felony. However, an action taken under this subdivision (3) shall be subject to the applicable provisions of the Fresh Start Act that are compiled in chapter 76, part 1 of this title;
An action or omission involving dishonesty, fraud or misrepresentation; or
A violation of any of the standards for appraisals and appraisal practice as set forth in this chapter and the rules and regulations promulgated by the commission.

Acts 1990, ch. 865, § 35; 1991, ch. 366, § 36; 1995, ch. 222, § 4; 2018, ch. 745, § 20.

62-39-327. Notice of charges — Requirements — Subpoenas.

Before suspending or revoking any license or certification, the commission shall notify the appraiser in writing of any charges within a reasonable period of time prior to the date set for the hearing and shall afford the appraiser an opportunity to be heard in person or by counsel.
The written notice may be served either personally or sent by registered or certified mail to the last known business address of the appraiser.
The commission shall have the power to subpoena and issue subpoenas duces tecum and to bring before it any person in this state and to take testimony by deposition, in the same manner as prescribed by law in judicial proceedings in the courts of this state.
The commission shall not consider a complaint for disciplinary action against a real estate appraiser if the complaint relates to an appraisal that was completed more than three (3) years before the complaint was submitted to the commission.

Acts 1990, ch. 865, § 36; 1991, ch. 366, § 37; 2017, ch. 234, § 2.

Compiler's Notes. Acts 2017, ch. 234, § 3 provided that the act, which added (d), shall apply to actions accruing and appraisals conducted on or after July 1, 2017.

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

62-39-328. Hearing.

The hearing on the charges shall be at a time and place prescribed by the commission and in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1990, ch. 865, § 37; 1991, ch. 366, § 38.

62-39-329. Appraisal standards.

It is the intent of this chapter that real estate appraisals be performed in accordance with generally accepted appraisal standards; therefore, state licensed and/or certified real estate appraisers must comply with the Uniform Standards of Professional Appraisal Practice promulgated by the appraisal standards board of the appraisal foundation and any other duly established standards of the commission. The commission shall not establish any criteria for licensure that are more stringent than the criteria established by the federal appraiser qualification board.

Acts 1990, ch. 865, § 38; 1991, ch. 366, § 39.

Attorney General Opinions. Whether an “evaluation” of real property constitutes an “appraisal” and an “appraisal report”. OAG 10-25, 2010 Tenn. AG LEXIS 20 (3/5/10).

NOTES TO DECISIONS

1. Application.

62-39-330. Employing or retaining an appraiser as disinterested third party or for specialized services.

A client or employer may retain or employ a state licensed or certified real estate appraiser to act as a disinterested third party in rendering an unbiased estimate of value or analysis. A client or employer may also retain or employ a state licensed or certified real estate appraiser to provide specialized services to facilitate the client's or employer's objectives. In either case, the appraisal and the appraisal report must be prepared in compliance with this chapter.

Acts 1990, ch. 865, § 39; 1991, ch. 366, § 40.

Cross-References. Definitions, § 62-39-102.

62-39-331. Certain contingent fees prohibited — Exception.

A state licensed or certified real estate appraiser may not accept a fee for an appraisal assignment that is contingent upon the appraiser reporting a predetermined estimate, analysis or opinion or is contingent upon the opinion, conclusion or valuation reached or upon the consequences resulting from the appraisal assignment.
A state licensed or certified real estate appraiser who enters into an agreement to perform specialized services may be paid a fixed fee or a fee that is contingent on the results achieved by the specialized services.

Acts 1990, ch. 865, § 40.

62-39-332. Records retention.

A state licensed or certified real estate appraiser shall retain the following records for five (5) years or for at least two (2) years after the disposition of any civil, criminal or administrative proceeding in which testimony was given about an appraisal assignment or appraisal report, whichever period expires last:
1. Originals and true copies of all engagement letters and written contracts engaging the appraiser's services for real property appraisal work; and
2. All reports and support data assembled and formulated by the appraiser in preparing the report.
The five-year period for the retention of records shall commence on the date that the appraiser submits the appraisal to the client.
All records required to be maintained under this chapter shall be made available by the state licensed or certified real estate appraiser for inspection and copying by the commission on reasonable notice to the appraiser.

Acts 1990, ch. 865, § 41; 2007, ch. 101, § 1.

62-39-333. Commission — Authority to promulgate rules and regulations.

The commission shall have the authority to promulgate rules and regulations pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, as may be necessary to ensure compliance with the Financial Institutions Reform, Recovery and Enforcement Act of 1989, and other federal law that may be applicable.
It is the intent of this chapter to enact policies, practices and procedures consistent with Title XI of the Financial Institutions Reform, Recovery and Enforcement Act of 1989. Under federal law, this chapter is subject to judicial review and review by the appraisal subcommittee of the federal financial institutions examination council. If any provision of this chapter or its application to any person or in any circumstance is declared by the appraisal subcommittee and a court of competent jurisdiction to be invalid or unenforceable, provisions constituting the remainder of the chapter and the application of those provisions to other persons and in other circumstances shall not be affected.

Acts 1990, ch. 865, § 42.

Compiler's Notes. The Financial Institutions Reform, Recovery and Enforcement Act of 1989, referred to in this section, is codified primarily in 12 U.S.C. §§ 93 et seq., with parts codified in 5, 15, 18 and 26 U.S.C.

62-39-334. Court testimony — Receipt of fee.

This chapter shall not act or be construed to prohibit a real estate broker licensed under chapter 13 of this title from testifying as to the value of property in court cases as an expert witness and receiving a fee for the testimony subject to review by the court.

Acts 1990, ch. 865, § 47; T.C.A. § 62-39-335.

Code Commission Notes.

This section was renumbered from § 62-39-335 to § 62-39-334 by authority of the Code Commission in 2019.

62-39-335. Minimum requirements.

It is the legislative intent that this chapter shall not require an applicant to have more than the minimum hourly requirements of education and experience in order to qualify for full licensure or certification. The minimum requirements are those requirements set forth by the appraisal foundation. The Tennessee real estate appraisal commission has the authority to adjust hourly education and experience requirements in order to meet the minimum federal standards.

Acts 1991, ch. 366, § 43; 1994, ch. 605, § 5; T.C.A. § 62-39-337.

Code Commission Notes.

This section was renumbered from § 62-39-337 to § 62-39-335 by authority of the Code Commission in 2019.

62-39-336. Temporary practice permits — Administrative action — Consent to suit.

The commission may issue a temporary practice permit to a nonresident of this state who is properly licensed or certified in another state. The holder of a valid temporary practice permit shall be authorized to perform appraisals in this state subject to the requirements of this chapter and the rules promulgated by the commission.
The commission shall have the authority to promulgate rules and regulations governing temporary practice, pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, as may be necessary to ensure compliance with the Financial Institutions Reform, Recovery and Enforcement Act of 1989 and other federal law that may be applicable. The commission may also adopt emergency rules as determined to be necessary to effectuate this section, in accordance with the Uniform Administrative Procedures Act.
Under no circumstances, other than as stated in this chapter, shall an appraiser who is not licensed or certified in this state be authorized to perform appraisals in this state.
Every applicant for a temporary practice permit shall file with the commission, on a form approved by the commission, an irrevocable consent that legal actions may be properly commenced against the applicant in this state. The consent shall be duly notarized and, if made by a corporation, shall be authenticated by its seal.

Acts 1992, ch. 697, § 6; 2001, ch. 81, § 1; 2009, ch. 566, § 12; T.C.A. § 62-39-338.

Code Commission Notes.

This section was renumbered from § 62-39-338 to § 62-39-336 by authority of the Code Commission in 2019.

Compiler's Notes. The Financial Institutions Reform, Recovery and Enforcement Act of 1989, referred to in (b), is codified primarily in 12 U.S.C. §§ 93 et seq., with parts codified in 5, 15, 18 and 26 U.S.C.

Part 4
Tennessee Appraisal Management Company Registration and Regulation Act

62-39-401. Short title.

This part shall be known and may be cited as the “Tennessee Appraisal Management Company Registration and Regulation Act.”

Acts 2010, ch. 963, § 2.

62-39-402. Part definitions.

For purposes of this part, unless the context otherwise requires:

“Affiliate” has the meaning provided in 12 U.S.C. § 1841;
“AMC National Registry” means the registry of state-registered AMCs and federally regulated AMCs maintained by the appraisal subcommittee;
“Appraisal” means the act or process of developing an opinion of value of identified real estate. That opinion of value may be numerically expressed either as a specific amount, as a range of numbers, or as a relationship to a previous value opinion or other numerical benchmark. “Appraisal” does not include any opinion of value referred to as evaluations under § 62-39-104;
“Appraisal management company” or “AMC”:
1. Means a person that:
  1. Provides appraisal management services to creditors or to secondary mortgage market participants, including affiliates;
  2. Provides such services in connection with valuing a consumer's principal dwelling as security for a consumer credit transaction or incorporating such transactions into securitizations; and
  3. Within a given twelve-month period, as defined in 12 C.F.R. 1222.22(d), oversees an appraiser panel of more than fifteen (15) state-certified or state-licensed appraisers in a state or twenty-five (25) or more state-certified or state-licensed appraisers in two (2) or more states, as described in 12 C.F.R. 1222.22;
2. Does not include a department or division of an entity that provides appraisal management services only to that entity;
“Appraisal management services” means one (1) or more of the following:
1. Recruiting, selecting, and retaining appraisers;
2. Contracting with state-certified or state-licensed appraisers to perform appraisal assignments;
3. Managing the process of having an appraisal performed, including providing administrative services such as receiving appraisal orders and appraisal reports, submitting completed appraisal reports to creditors and secondary mortgage market participants, collecting fees from creditors and secondary mortgage market participants for services provided, and paying appraisers for services performed; and
4. Reviewing and verifying the work of appraisers;
“Appraisal subcommittee” or “ASC” means the Appraisal Subcommittee of the Federal Financial Institutions Examination Council;
“Appraiser” means an individual who holds a license under part 1 of this chapter;
“Appraiser panel” means a network, list, or roster of appraisers approved by an AMC to perform appraisals as independent contractors for the AMC. Appraisers on an AMC's appraiser panel under this part include both appraisers accepted by the AMC for consideration for future appraisal assignments in covered transactions or for secondary mortgage market participants in connection with covered transactions and appraisers engaged by the AMC to perform one (1) or more appraisals in covered transactions or for secondary mortgage market participants in connection with covered transactions. An appraiser is an independent contractor for purposes of this subdivision (8) if the appraiser is treated as an independent contractor by the AMC for purposes of federal income taxation;
“Commission” means the real estate appraiser commission created by § 62-39-201;
“Consumer credit” means credit offered or extended to a consumer primarily for personal, family, or household purposes;
“Controlling person” means:
1. An owner, officer or director of a corporation, partnership, or other business entity seeking to offer appraisal management services in this state;
2. An individual employed, appointed, or authorized by an appraisal management company that has the authority to enter into a contractual relationship with other persons for the performance of appraisal management services and has the authority to enter into agreements with appraisers for the performance of appraisals; or
3. An individual who possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of an appraisal management company;
“Covered transaction” means any consumer credit transaction secured by the consumer's principal dwelling;
1. “Creditor” means a person who regularly extends consumer credit that is subject to a finance charge or is payable by written agreement in more than four (4) installments, not including any down payment, and to whom the obligation is initially payable, either on the face of the note or contract, or by agreement when there is no note or contract;
2. A person regularly extends consumer credit if the person either:
  1. Extended credit, other than credit subject to the requirements of 12 C.F.R. 1026.32, more than five (5) times for transactions secured by a dwelling in the preceding calendar year or, if a person did not meet these numerical standards in the preceding calendar year, in the current calendar year; or
  2. In any twelve-month period, originates more than one (1) credit extension that is subject to the requirements of 12 C.F.R. 1026.32 or originates one (1) or more such credit extensions through a mortgage broker;
1. “Dwelling” means a residential structure that contains one to four (1-4) units, whether or not that structure is attached to real property. “Dwelling” includes individual condominium units, cooperative units, mobile homes, and trailers, if used as a residence;
2. A consumer may have only one (1) principal dwelling at a time. A vacation or other second home is not a principal dwelling. However, if a consumer buys or builds a new dwelling that will become the consumer's principal dwelling within one (1) year or upon the completion of construction, the new dwelling is considered the principal dwelling for purposes of this section;
“Federally regulated AMC” means an AMC that is owned and controlled by an insured depository institution, as defined in 12 U.S.C. § 1813, and that is regulated by the office of the comptroller of the currency, the board of governors of the federal reserve system, or the federal deposit insurance corporation;
“Person” means a natural person or an entity, including a corporation, limited liability company, partnership, sole proprietorship, association, cooperative, estate, trust, or government unit;
“Secondary mortgage market participant” means a guarantor or insurer of mortgage-backed securities, or an underwriter or issuer of mortgage-backed securities, and only includes an individual investor in a mortgage-backed security if that investor also serves in the capacity of guarantor, insurer, underwriter, or issuer for the mortgage-backed security;
“States” means the fifty (50) states, the District of Columbia and the territories of Guam, Mariana Islands, Puerto Rico, and the U.S. Virgin Islands; and
“Uniform Standards of Professional Appraisal Practice” or “USPAP” means the appraisal standards promulgated by the Appraisal Standards Board of the Appraisal Foundation.

Acts 2010, ch. 963, § 3; 2017, ch. 226, § 8.

62-39-403. Registration requirement.

No person shall directly or indirectly engage or attempt to engage in business as an appraisal management company, to directly or indirectly engage or attempt to perform appraisal management services, or to advertise or hold itself out as engaging in or conducting business as an appraisal management company without first obtaining a registration issued by the commission under this part.
The registration required by subsection (a) shall, at a minimum, include the following:
1. Name of the entity seeking registration;
2. Business address of the entity seeking registration which must be located and maintained within this state;
3. Phone contact information of the entity seeking registration;
4. If the entity is not a corporation that is domiciled in this state, the name and contact information for the company's agent for service of process in this state;
5. The name, address, and contact information for any individual or any corporation, partnership, or other business entity that owns ten percent (10%) or more of the appraisal management company;
6. The name, address, and contact information for a designated controlling person to be the primary communication source for the commission;
7. A certification that the entity has a system and process in place to verify that a person being added to the appraiser panel of the appraisal management company for appraisal services to be performed in Tennessee holds a license or certification in good standing in Tennessee pursuant to part 3 of this chapter, if a license or certification is required to perform appraisals, pursuant to § 62-39-415;
8. A certification that the entity has a system in place to review the work of all appraisers who are performing real estate appraisal services in Tennessee for the appraisal management company on a periodic basis to validate that the real estate appraisal services are being conducted in accordance with USPAP, pursuant to § 62-39-416;
9. A certification that the entity maintains a detailed record of each service request that it receives for appraisal services within this state and the appraiser who performs the real estate appraisal services for the appraisal management company, pursuant to § 62-39-417;
10. An irrevocable uniform consent to service of process, pursuant to § 62-39-407; and
11. Any other reasonable information required by the commission to complete the registration process.

Acts 2010, ch. 963, § 4.

62-39-404. Applicability.

This part shall not apply to:

A national or state bank or federal or state savings institution that is subject to direct regulation or supervision by an agency of the United States government, or by the department of financial institutions, that receives a request for the performance of an appraisal from one (1) employee of the financial institution, and another employee of the same financial institution assigns the request for the appraisal to an appraiser who is an independent contractor to the institution. An entity exempt as provided in this subdivision (1) shall file a notice with the commission that contains the information required in § 62-39-403;
An appraiser that enters into an agreement, whether written or otherwise, with an appraiser for the performance of an appraisal, and upon the completion of the appraisal, the report of the appraiser performing the appraisal is signed by both the appraiser who completed the appraisal and the appraiser who requested the completion of the appraisal;
Any state agency or local municipality that orders appraisals for ad valorem tax purposes or any other business on behalf of this state;
Any person licensed to practice law in this state, a court-appointed personal representative, or a trustee who orders an appraisal in connection with a bona fide client relationship when such person directly contracts with an independent appraiser;
A certified public accountant or CPA firm regulated under chapter 1, part 1 of this title; or
1. A federally regulated AMC;
2. Notwithstanding subdivision (6)(A), any federally regulated AMC operating in this state shall report to the commission the information required to be submitted by the commission to the appraisal subcommittee pursuant to the appraisal subcommittee's policies regarding the determination of the AMC National Registry fee, including, but not limited to, the collection of information related to the limitations set forth in 12 C.F.R. 34.215, as applicable.

Acts 2010, ch. 963, § 5; 2017, ch. 226, § 9.

62-39-405. Application for registration.

An applicant for a registration as an appraisal management company shall submit to the commission an application containing information required in § 62-39-403(b) on a form prescribed by the commission.

Acts 2010, ch. 963, § 6.

62-39-406. Length of validity of registration.

Registration shall be valid for two (2) years from its issuance.

Acts 2010, ch. 963, § 7.

62-39-407. Completion of irrevocable uniform consent to service of process.

Each entity applying for a registration as an appraisal management company in Tennessee shall complete an irrevocable uniform consent to service of process, as prescribed by the commission.

Acts 2010, ch. 963, § 8.

62-39-408. Registration fees — Surety bond.

The commission shall establish by rule and regulation the fee to be paid by each appraisal management company seeking registration under this part, such that the sum of the fees paid by all appraisal management companies seeking registration under this section shall be sufficient for the administration of this part. The commission shall charge and collect fees to be utilized to fund activities that may be necessary to carry out this chapter.
Each applicant for registration shall post with the commission and maintain on renewal a surety bond in the amount of twenty thousand dollars ($20,000). The details of the bond shall be prescribed by rule and regulation of the commission, however, the bond may not be used to assist appraisers in collection efforts of credit extended by the appraiser.

Acts 2010, ch. 963, § 9.

62-39-409. Appraisal management company ownership restrictions.

1. An appraisal management company applying for a registration in this state shall not be owned, in whole or in part, directly or indirectly, by:
  1. Any person who has had a license or certificate to act as an appraiser refused, denied, canceled, revoked, or surrendered in lieu of revocation in any state for a substantive cause, as determined by the commission; or
  2. An entity that is more than ten percent (10%) owned by any person who has had a license or certificate to act as an appraiser refused, denied, canceled, revoked, or surrendered in lieu of revocation in any state for a substantive cause, as determined by the commission.
2. Each person who owns more than ten percent (10%) of an appraisal management company in this state shall:
  1. Be of good moral character, as determined by the commission; and
  2. Submit to a background investigation, as may be required by the commission.
3. The commission may, in its discretion, issue a registration to an appraisal management company that is ineligible under subdivision (a)(1), but is otherwise qualified, if the license or certificate of the appraiser with an ownership interest in the appraisal management company or the owning entity was not revoked for a substantive cause, as determined by the commission, and has been reinstated by the state or states in which the appraiser was licensed or certified.
Each appraisal management company applying for registration shall certify to the commission that it has reviewed each person with an ownership interest in the appraisal management company and that no person with an ownership interest in the appraisal management company has had an appraiser license or certificate to act as an appraiser refused, denied, cancelled, revoked, or surrendered in lieu of a pending revocation.
Each appraisal management company shall notify the commission within thirty (30) days of a change in its controlling principal, agent of record, or ownership composition.

Acts 2010, ch. 963, § 10; 2017, ch. 226, § 10; 2020, ch. 579, § 1.

Amendments. The 2020 amendment, in (b), substituted “person with an ownership interest in” for “entity that owns more than ten percent (10%) of” twice, and substituted “has had an appraiser license” for “is more than ten-percent owned by any person who has had a license.”

Effective Dates. Acts 2020, ch. 579, § 3. July 1, 2020.

62-39-410. Designated controlling person.

Each appraisal management company applying to the commission for a registration in this state shall designate one (1) controlling person who will be the main contact for all communication between the commission and the appraisal management company.
The designated controlling person pursuant to subsection (a) shall:
1. Have never had a license or certificate to act as an appraiser refused, denied, canceled, revoked, or surrendered in lieu of a pending revocation in any state;
2. Be of good moral character, as determined by the commission; and
3. Submit to a background investigation, as determined by the commission.

Acts 2010, ch. 963, § 11.

62-39-411. Appraisal management company restrictions.

An appraisal management company that applies to the commission for registration to do business in this state as an appraisal management company or a financial institution qualified under § 62-39-404(1) shall not:

Employ any person directly involved in appraisal management services who has had a license or certificate to act as an appraiser in Tennessee or in any other state, refused, denied, cancelled, revoked, or surrendered in lieu of a pending revocation;
Knowingly enter into any independent contractor arrangement, whether in verbal, written, or other form, with any person who has had a license or certificate to act as an appraiser in Tennessee or in any other state, refused, denied, cancelled, revoked, or surrendered in lieu of a pending revocation;
Knowingly enter into any contract, agreement, or other business relationship directly involved with the performance of real estate appraisal or appraisal management services, whether in verbal, written, or any other form, with any entity that employs, has entered into an independent contract arrangement, or has entered into any contract, agreement, or other business relationship, whether in verbal, written, or any other form, with any person who has ever had a license or certificate to act as an appraiser in Tennessee or in any other state, refused, denied, cancelled, revoked, or surrendered in lieu of a pending revocation.

Acts 2010, ch. 963, § 12.

62-39-412. Assignments — Disclosures.

Prior to placing an assignment, for real estate appraisal services within this state, with an appraiser on the appraiser panel of an appraisal management company, the appraisal management company shall have a system in place to verify that the appraiser receiving the assignment holds a credential in good standing in this state. Letters of engagement shall include instructions to the appraiser to decline the assignment in the event the appraiser is not geographically competent or the assignment falls outside the appraiser's scope of practice restrictions.
Each appraisal management company shall, at the request of the commission, provide the names of all persons on the AMC's appraisal panel and a list of all state appraisal licenses or certifications each appraiser on the panel holds, including the state of issuance, expiration date, and number of each certification or license, which the commission may verify.

Acts 2010, ch. 963, § 13; 2017, ch. 226, § 11.

62-39-413. License requirement for employees and independent contractors — Declining letters of engagement.

Any employee or independent contractor of the appraisal management company who performs an appraisal review service on an appraisal done on real property located within Tennessee must be an individual who holds a license as defined in § 62-39-102 or certification as defined in § 62-39-102. Letters of engagement shall include instructions to the appraiser to decline the appraisal review assignment in the event the appraiser is not geographically competent or the assignment falls outside the appraiser's scope of practice restrictions.

Acts 2010, ch. 963, § 14.

62-39-414. Biennial certification of system and process of verification of licensure of individual being added to appraiser panel.

Each appraisal management company seeking to be registered shall certify to the commission on a biennial basis on a form prescribed by the commission that the appraisal management company has a system and process in place to verify that an individual being added to the appraiser panel for appraisal services within Tennessee of the appraisal management company holds a license in good standing in this state pursuant to this chapter.

Acts 2010, ch. 963, § 15; 2013, ch. 180, § 12.

62-39-415. Biennial certification of system and process of verification of licensure of individual to whom appraisal management company is making assignments.

Each appraisal management company seeking to be registered shall certify to the commission on a biennial basis on a form prescribed by the commission that the appraisal management company has a system in place to verify that an individual to whom the appraisal management company is making assignments for the completion of appraisals has not had a license or certification as an appraiser refused, denied, cancelled, revoked, or surrendered in lieu of a pending revocation on a regular basis.

Acts 2010, ch. 963, § 16; 2013, ch. 180, § 12.

62-39-416. Biennial certification of system for periodic appraisal review.

Each registered appraisal management company shall certify to the commission on a biennial basis that it has a system in place to perform an appraisal review on a periodic basis of the work of all appraisers who are performing appraisals in Tennessee for the appraisal management company to validate that the appraisals are being conducted in accordance with USPAP. An AMC shall report to the commission the results of any appraisal reviews in which an appraisal is found to be substantially noncompliant with USPAP, state laws or federal laws pertaining to appraisals.

Acts 2010, ch. 963, § 17; 2013, ch. 180, §§ 12, 13.

62-39-417. Biennial certification of maintenance of detailed records.

Each appraisal management company registered or seeking to be registered must certify to the commission biennially that it maintains a detailed record of each service request for appraisal services within this state that it receives and of each appraiser who performs an appraisal for the appraisal management company in this state.
The commission may examine the books and records of an appraisal management company operating in this state and require such an appraisal management company to submit such reports, information, and documents as the commission may reasonably require.

Acts 2010, ch. 963, § 18; 2013, ch. 180, § 12; 2017, ch. 226, § 12.

62-39-418. Appraiser allowed to record fee appraiser paid for appraisal — Separate statement to client.

An appraisal management company shall not prohibit an appraiser who is part of an appraiser panel from recording the fee that the appraiser was paid by the appraisal management company for the performance of the appraisal within the appraisal report that is submitted by the appraiser to the appraisal management company.
An appraisal management company shall separately state to the client, the fees paid to an appraiser for appraisal services and the fees charged by the appraisal management company for services associated with the management of the appraisal process, including procurement of the appraiser's services.

Acts 2010, ch. 963, § 19.

62-39-419. Improper influence — Proper requests for information.

No employee, director, officer, or agent of an appraisal management company shall influence or attempt to influence the development, reporting, or review of an appraisal through coercion, extortion, collusion, inducement, intimidation, bribery or in any other manner, including but not limited to:
1. Withholding or threatening to withhold timely payment for an appraisal, except in cases of substandard performance or noncompliance with conditions of engagement;
2. Withholding or threatening to withhold future business, or demoting, terminating or threatening to demote or terminate an appraiser;
3. Expressly or impliedly promising future business, promotions, or increased compensation for an appraiser;
4. Conditioning the request for an appraisal or the payment of an appraisal fee or salary or bonus on the opinion, conclusion, or valuation to be reached, or on a preliminary estimate or opinion requested from an appraiser;
5. Requesting that an appraiser provide an estimated, predetermined, or desired valuation in an appraisal report, or provide estimated values or comparable sales at any time prior to the appraiser's completion of an appraisal;
6. Providing to an appraiser an anticipated, estimated, encouraged, or desired value for a subject property or a proposed or target amount to be loaned to the borrower, except that a copy of the sales contract for purchase transactions may be provided;
7. Providing to an appraiser, or any entity or person related to the appraiser, stock or other financial or nonfinancial benefits;
8. Allowing the removal of an appraiser from an appraiser panel, without prior written notice to such appraiser;
9. Any other act or practice that knowingly impairs or attempts to impair an appraiser's independence, objectivity, or impartiality;
10. Requiring an appraiser to collect an appraisal fee on behalf of the appraisal management company from the borrower, homeowner, or other third party; or
11. Requiring an appraiser to indemnify an appraisal management company or hold an appraisal management company harmless for any liability, damage, losses or claims arising out of the services performed by the appraisal management company, and not the services performed by the appraiser.
Nothing in subsection (a) shall prohibit the appraisal management company from requesting that an appraiser:
1. Provide additional information about the basis for a valuation; or
2. Correct objective factual errors in an appraisal report; or
3. Provide additional information within the appraisal regarding additional sales provided through an established dispute process.

Acts 2010, ch. 963, § 20.

62-39-420. Prohibited requirements.

An appraisal management company shall not:

Require an appraiser to modify any aspect of an appraisal report unless the modification complies with § 62-39-419;
Require an appraiser to prepare an appraisal if the appraiser, in the appraiser's own independent professional judgment, believes the appraiser does not have the necessary expertise for the assignment or for the specific geographic area and has notified the AMC and declined the assignment;
Require an appraiser to prepare an appraisal under a time frame that the appraiser, in the appraiser's own professional judgment, believes does not afford the appraiser the ability to meet all the relevant legal and professional obligations if the appraiser has notified the AMC and declined the assignment;
Prohibit or inhibit legal or other allowable communication between the appraiser and:
1. The lender;
2. A real estate licensee; or
3. Any other person from whom the appraiser, in the appraiser's own professional judgment, believes information would be relevant;
Knowingly require the appraiser to do anything that does not comply with:
1. USPAP;
2. The State Licensing and Certified Real Estate Appraisers Law, compiled in this chapter, or the rules promulgated thereunder; or
3. Any assignment conditions and certifications required by the client; or
Make any portion of the appraiser's fee or the AMC's fee contingent on a predetermined or favorable outcome, including but not limited to:
1. A loan closing; or
2. Specific dollar amount being achieved by the appraiser in the appraisal.

Acts 2010, ch. 963, § 21.

62-39-421. Payment deadlines to appraisers.

Each appraisal management company shall, except in cases of breach of contract or substandard performance of services, make payment to an appraiser for the completion of an appraisal or valuation assignment within sixty (60) days, unless a mutually agreed upon alternate payment schedule exists, from when the appraiser transmits or otherwise provides the completed appraisal or valuation study to the appraisal management company or its assignee.

Acts 2010, ch. 963, § 22.

62-39-422. Alterations, modifications and changes to completed appraisals prohibited — Providing appraiser's digital signature or seal.

An appraisal management company may not alter, modify, or otherwise change a completed appraisal report submitted by an appraiser by:
1. Permanently removing the appraiser's signature or seal; or
2. Adding information to, or removing information from, the appraisal report with an intent to change the valuation conclusion.
No registered appraisal management company may require an appraiser to provide the appraisal management company with the appraiser's digital signature or seal. Nothing in this subsection (b) shall prohibit an appraiser from voluntarily providing such appraiser's digital signature to another person.

Acts 2010, ch. 963, § 23.

62-39-423. Unique registration number — Publication of list of registrations — Disclosure of registration number.

The commission shall issue a unique registration number to each appraisal management company.
The commission shall publish a list of the appraisal management companies that have registered pursuant to this part and have been issued a registration number.
An appraisal management company shall be required to disclose the registration number on each engagement letter utilized in assigning an appraisal request for real estate appraisal assignments within this state.

Acts 2010, ch. 963, § 24.

62-39-424. Removal of an appraiser from appraiser panel.

An appraisal management company may not remove an appraiser from its appraiser panel, or otherwise refuse to assign requests for real estate appraisal services to an appraiser without:
1. Notifying the appraiser in writing of the reasons why the appraiser is being removed from the appraiser panel of the appraisal management company;
2. If the appraiser is being removed from the panel for illegal conduct, violation of the USPAP, or a violation of state licensing standards, describing the nature of the alleged conduct or violation; and
3. Providing an opportunity for the appraiser to respond to the notification of the appraisal management company.
An appraiser who is removed from the appraiser panel of an appraisal management company for alleged illegal conduct, violation of the USPAP, or violation of state licensing standards, may file a complaint with the commission for a review of the decision of the appraisal management company, except that in no case shall the commission make any determination regarding the nature of the business relationship between the appraiser and the appraisal management company which is unrelated to the actions specified in subsection (a).
If after notice and an opportunity for hearing and review, the commission determines that an appraiser did not commit a violation of law, a violation of the USPAP, or a violation of state licensing standards, the commission shall order that such appraiser be added to the appraiser panel of the appraisal management company.
If the commission has found that the appraisal management company acted improperly in removing the appraiser from the appraiser panel, an appraisal management company may not refuse to make assignments for real estate appraisal services to an appraiser, or reduce the number of assignments, or otherwise penalize the appraiser.

Acts 2010, ch. 963, § 25; 2020, ch. 579, § 2.

Amendments. The 2020 amendment substituted “An” for “Except within the first thirty (30) days after an appraiser is first added to the appraiser panel of an appraisal management company, an” in (a).

Effective Dates. Acts 2020, ch. 579, § 3. July 1, 2020.

62-39-425. Grounds for censure, suspension or revocation of registration.

The commission may censure an appraisal management company, conditionally or unconditionally suspend or revoke any registration issued under this part or impose administrative fines not to exceed the maximum allowable amount defined by the state of Tennessee, if an appraisal management company is:

Knowingly committing any act in violation of this part;
Violating any rule or regulation adopted by the commission; or
Procuring a license by fraud, misrepresentation, or deceit.

Acts 2010, ch. 963, § 26.

62-39-426. Adjudicatory proceedings.

The conduct of adjudicatory proceedings in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, for violations of this part is vested in the commission; provided:

Before censuring any registrant, or suspending or revoking any registration, the commission shall notify the registrant in writing of any charges made at least twenty (20) days before the hearing and shall afford the registrant an opportunity to be heard in person or by counsel; and
Written notice shall be satisfied by personal service on the controlling person of the registrant, or the registrant's agent for service of process in this state, or by sending the notice by certified mail, return receipt requested to the controlling person of the registrant to the registrant's address on file with the commission.

Acts 2010, ch. 963, § 27.

62-39-427. Power and authority of commission.

In addition to all other powers and authority provided by this chapter or other applicable law, the commission shall have the power to:

Conduct investigations of an AMC to assess potential violations of applicable appraisal-related laws, regulations, or orders;
Discipline, suspend, terminate, or deny renewal of the registration of an AMC that violates applicable appraisal-related laws, regulations, or orders;
Report an AMC's violation of applicable appraisal-related laws, regulations, or orders, as well as disciplinary and enforcement actions and other relevant information about an AMC's operations, to the appraisal subcommittee;
Submit to the appraisal subcommittee any information required to be submitted by the appraisal subcommittee's regulations or guidance concerning AMCs that operate in this state; and
Collect and transmit to the appraisal subcommittee an annual registry fee, in the amount set by the appraisal subcommittee, from state registered AMCs and AMCs operating as subsidiaries of a federally regulated financial institution in this state.

Acts 2017, ch. 226, § 13.

62-39-428. Requirements for certain AMCs.

All AMCs operating in this state that are not owned and controlled by an insured depository institution and are not regulated by a federal financial institution's regulatory agency shall:

Register with and be subject to supervision by the commission, unless otherwise exempt;
For appraisals in this state, engage only state-certified or state-licensed appraisers holding a credential in good standing in this state;
Establish and comply with processes and controls reasonably designed to ensure that the AMC, in engaging an appraiser, selects an appraiser who is independent of the transaction and who has the requisite education, expertise, and experience to competently complete the appraisal assignment for the particular market and property type;
Direct the appraiser to perform the assignment in accordance with the USPAP; and
Establish and comply with processes and controls reasonably designed to ensure that the AMC conducts its appraisal management services in accordance with the requirements of section 129E(a)-(i) of the Truth in Lending Act (15 U.S.C. § 1639e(a)-(i)) and regulations promulgated thereunder.

Acts 2017, ch. 226, § 14.

62-39-310. Classes of certification.

Chapter 40
Industrial Hygienists

62-40-101. Chapter definitions — Qualifications — Penalties.

As used in this chapter, unless the context otherwise requires:
1. “Industrial hygiene” means the science and art devoted to anticipation, recognition, evaluation and control of environmental factors or stressors arising in or from the workplace that may cause sickness, impaired health and well-being or significant discomfort and inefficiency among workers;
2. “Industrial hygienist” means a person who possesses a baccalaureate degree issued by an accredited college or university in industrial hygiene engineering, chemistry, physics, biology, medicine or related physical and biological sciences and who, by virtue of special studies and training, has acquired competence in industrial hygiene. The special studies and training shall have been sufficient in industrial hygiene engineering, chemistry, physics, biology, medicine or related physical and biological sciences to provide the ability to:
  1. Recognize environmental stressors in the workplace and to understand their effects;
  2. Evaluate, on the basis of experience and with the aid of quantitative measurement techniques, the magnitude of these stressors in terms of ability to impair health and well-being; and
  3. Prescribe methods to eliminate, control or reduce the stressors when necessary to alleviate their effects; and
3. “Professional industrial hygienist” means a person who possesses a baccalaureate degree issued by an accredited college or university in industrial hygiene, engineering, chemistry, physics, biology, medicine or related physical and biological sciences and who has a minimum of three (3) years full-time industrial hygiene experience. A completed master's degree in a related physical or biological science, or in a related engineering discipline, may be substituted for one (1) year of the experience requirement; and a similar doctoral degree may be substituted for an additional year of the experience requirement. Nonexclusive examples of professional industrial hygienists are certified industrial hygienists and industrial hygienists in training, as recognized by the American Board of Industrial Hygiene.
An individual shall meet the requirements or qualifications of a professional industrial hygienist as set out in subdivision (a)(3), certified industrial hygienist and industrial hygienist in training, as recognized by the American Board of Industrial Hygiene, before the individual may use the title or represent the individual to the public as a professional industrial hygienist, certified industrial hygienist and industrial hygienist in training.
A person who violates subdivision (a)(3) or subsection (b) is subject to a civil penalty of no more than one thousand dollars ($1,000) in chancery court.

Acts 1992, ch. 624, § 1; 1994, ch. 632, §§ 1-7.

62-40-102. Limitation on government prohibiting or restricting practice of industrial hygiene.

Notwithstanding any law to the contrary, no entity of state government shall by rule prohibit or restrict a qualified industrial hygienist who complies with the provisions established by or pursuant to this chapter from engaging in the practice of industrial hygiene.

Acts 1992, ch. 624, § 1.

Chapter 41
Tennessee Asbestos Contractor Accreditation and Regulation Act

62-41-101. Short title.

This chapter shall be known and may be cited as the “Tennessee Asbestos Contractor Accreditation and Regulation Act.”

Acts 1993, ch. 285, § 2.

62-41-102. Purpose.

The purpose of this chapter is to establish an asbestos contractor accreditation program for this state in compliance with Title II, Section 206 of the federal Toxic Substances Control Act (15 U.S.C.A. § 2646).

Acts 1993, ch. 285, § 1.

62-41-103. Rules and regulations.

The commissioner of environment and conservation, in consultation with the commissioner of commerce and insurance, has the authority to promulgate rules and regulations for the purpose of establishing an asbestos contractor accreditation program for this state. The commissioner shall prescribe in the rules and regulations any fees to be paid in order for a contractor to be accredited under this program. The rules and regulations shall be approved by the state building commission before they are filed with the secretary of state.

Acts 1993, ch. 285, § 3.

Chapter 42
[Reserved]

Chapter 43
Tennessee Professional Employer Organization Act

62-43-101. Short title.

This chapter shall be known and may be cited as the “Tennessee Professional Employer Organization Act.”

Acts 2012, ch. 1081, § 1.

62-43-102. Chapter definitions.

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

“Applicant” means a person seeking an initial or renewal registration pursuant to this chapter;
“Audit” means an engagement performed in accordance with the Statements on Auditing Standards (SAS);
“Client” means any person who enters into a professional employer agreement with a professional employer organization;
“Co-employer” means either a professional employer organization or a client;
“Co-employment relationship” means a relationship which is intended to be an ongoing relationship rather than a temporary or project specific one, wherein the rights, duties, and obligations of an employer which arise out of an employment relationship have been shared and allocated between co-employers pursuant to a professional employer agreement and this chapter;
“Covered employee”:
1. Means an individual having a co-employment relationship with a professional employer organization and a client who meets all of the following criteria:
  1. The individual has received written notice of co-employment with the professional employer organization; and
  2. The individual's co-employment relationship results pursuant to a professional employer agreement; and
2. Includes individuals who are officers, directors, shareholders, partners, and managers of the client; provided, that such individuals meet the criteria of subdivision (6)(A) and act as operational managers or perform day-to-day operational services for the client, unless the professional employer organization and the client have expressly agreed in the professional employer agreement that such individuals shall not be covered employees;
“Department” means the department of commerce and insurance;
“Local governmental entity” means a governing body, board, commission, committee or department of a municipality or county;
“Person” has the same meaning as in § 1-3-105 and as amended;
“Professional employer agreement” means a written contract between a client and a professional employer organization that provides:
1. For the co-employment of covered employees;
2. For the allocation of employer rights and obligations between the client and the professional employer organization with respect to covered employees; and
3. That the professional employer organization and the client assume the responsibilities required by this chapter;
“Professional employer organization”:
1. Means any person engaged in the business of providing professional employer services, regardless of the use of the term or conducting business as a “professional employer organization,” “PEO,” “staff leasing company,” “registered staff leasing company,” “employee leasing company,” “administrative employer,” or any other name; and
2. Includes a professional employer organization group;
“Professional employer organization benefit and welfare plan” means a plan offered to covered employees of a professional employer organization registered pursuant to this chapter;
“Professional employer organization group” means two (2) or more professional employer organizations that are majority owned or commonly controlled by the same entity, parent or controlling person;
“Professional employer services” means the service of entering into co-employment relationships under this chapter in which all or a majority of the employees providing services to a client, a division or work unit of a client are covered employees;
“Registrant” means a professional employer organization registered under this chapter;
“Small operations” means an applicant or registrant with less than fifty million dollars ($50,000,000) in annualized wages;
“Temporary help services” means services consisting of a person:
1. Recruiting and hiring its own employees;
2. Finding other organizations that need the services of its employees;
3. Assigning its employees:
  1. To perform work at or services for the other organizations to support or supplement the other organizations' workforces;
  2. To provide assistance in special work situations such as, but not limited to, employee absences, skill shortages or seasonal workloads; or
  3. To perform special assignments or projects; and
4. Customarily attempting to reassign its employees to other organizations when they finish each assignment; and
“Working capital” means the excess of current assets over current liabilities as determined by generally accepted accounting principles.

Acts 2012, ch. 1081, § 1.

62-43-103. Rules — Creation of professional employer organization advisory council — Composition of council — Officers — Compensation — Powers and duties — Administration — Recommendations for appointments to council.

1. The department may promulgate rules and prescribe forms reasonably necessary for the administration and enforcement of §§ 62-43-106, 62-43-107 and 62-43-112.
2. Rules shall be promulgated pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5 and as amended.
1. The professional employer organization advisory council is created and shall consist of five (5) members to be appointed by the governor to four (4) year terms. A term shall become effective on appointment and continue until a successor has been appointed. A vacancy shall be filled by appointment to the unexpired term by the governor.
2. 1. Three (3) members of the council shall be individuals owning or working for a professional employer organization.
  2. The remaining two (2) members shall:
    1. Be residents of this state; and
    2. Not be, or ever have been, connected with a professional employer organization.
  3. Among the members described in subdivision (b)(2)(B):
    1. One (1) such member shall represent the consumer interests of this state; and
    2. One (1) such member shall be a representative of the department.
3. The council shall elect a chair and other officers to a term of one (1) year or until a successor is elected. Meetings may be called by the chair or by any two (2) members. A meeting may be held by electronic means. Three (3) members shall constitute a quorum to conduct business. Whenever vacancies prevent a quorum, the remaining members shall constitute a quorum for the purposes of recommending to the governor appointments to the council.
4. Members shall serve without compensation.
5. The following are the powers and duties of the council:
  1. Determine its rules of order and procedure;
  2. Recommending to the governor appointments to the council;
  3. Send notice of its agenda and proceedings to any requesting person;
  4. Petition the department, pursuant to § 4-5-201 and as amended; and
  5. Advise the department on this chapter.
6. 1. The council is attached to the department for the purposes of administration and cooperation.
  2. The department shall notify the council of any action pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5 and as amended, relating to a rule promulgated pursuant to this chapter.
  3. Any nonprofit organization representing five (5) or more professional employer organizations registered in this state may recommend appointments to the council.

Acts 2012, ch. 1081, § 1.

62-43-104. Confidentiality.

All records, reports and other information obtained from an applicant or registrant under this chapter, except to the extent necessary for the proper administration of this chapter by the department, shall be confidential and shall not be published or open to public inspection other than to public employees in the actual performance of their public duties.

Acts 2012, ch. 1081, § 1.

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

62-43-105. Chapter or professional employer agreements do not affect collective bargaining agreements, or federal or state labor relations law — Limits on chapter or professional employer agreements — Determination of tax credits and economic incentives.

Nothing contained in this chapter or in any professional employer agreement shall affect, modify or amend any collective bargaining agreement, or the rights or obligations of any client, professional employer organization or covered employee under:
1. The National Labor Relations Act (29 U.S.C. §§ 151 et seq.), and as amended;
2. The Railway Labor Act (45 U.S.C. §§ 151 et seq.), and as amended; or
3. Applicable state labor relations law, compiled in titles 12 and 50 and as amended.
Nothing in this chapter or in any professional employer agreement shall:
1. Diminish, abolish or remove rights of covered employees to a client or obligations of such client to a covered employee existing prior to the effective date of the professional employer agreement;
2. Affect, modify or amend any contractual relationship or restrictive covenant between a covered employee and any client in effect at the time a professional employer agreement becomes effective;
3. Prohibit or amend any contractual relationship or restrictive covenant that is entered into subsequently between a client and a covered employee;
4. Impose responsibility or liability on a professional employer organization in connection with, or arising out of, any such existing or new contractual relationship or restrictive covenant between the client and a covered employee unless the professional employer organization has specifically agreed otherwise in writing; or
5. Create any new or additional enforceable right of a covered employee against a professional employer organization that is not specifically provided by the professional employer agreement or this chapter.
1. Nothing contained in this chapter or any professional employer agreement shall affect, modify or amend any state, local governmental entity or federal licensing, registration, or certification requirement applicable to any client or covered employee.
2. A covered employee who must be licensed, registered or certified according to law or regulation is deemed solely an employee of the client for purposes of any such license, registration or certification requirement.
3. A professional employer organization shall not be deemed to engage in any occupation, trade, profession or other activity that is subject to licensing, registration or certification requirements, or is otherwise regulated by a local governmental entity solely by entering into and maintaining a co-employment relationship with a covered employee who is subject to such requirements or regulation.
4. A client shall have the sole right of direction and control of the professional or licensed activities of covered employees and of the client's business. Such covered employees and clients shall remain subject to regulation by the state or local governmental entity responsible for licensing, registration or certification of such covered employees or clients.
1. For purposes of determination of tax credits and other economic incentives provided by this state, or a local government entity, and based on employment, covered employees may be deemed employees solely of the client.
2. A client may be eligible for any tax credit, economic incentive, or other benefit arising as the result of the employment of covered employees of the client.
3. Notwithstanding that the professional employer organization is the W-2 reporting employer, the client may continue to qualify for the benefit, incentive, or credit.
4. If the grant or amount of any such credit, incentive or benefit is based on the number of employees, then each client shall be treated as employing only those covered employees co-employed by the client. Covered employees working for other clients of the professional employer organization shall not be counted.
5. Each professional employer organization shall provide, upon request by a client, an agency or department of this state or local governmental entity, employment information reasonably required by any agency or department of this state responsible for administration of any such tax credit, economic incentive or benefit and necessary to support any request, claim, application or other action by a client seeking any such tax credit, economic incentive or benefit.
With respect to a bid, contract, purchase order or agreement entered into with this state or a local governmental entity, a client company's status or certification as a Tennessee small business, minority-owned business, Tennessee service-disabled veteran-owned business, disadvantaged business or woman-owned business, or as a historically underutilized business enterprise, is not affected because the client company has entered into an agreement with a professional employer organization or uses the services of a professional employer organization.
In a co-employment relationship:
1. The professional employer organization is entitled to enforce only such employer rights, and is subject to only those obligations, specifically allocated to the professional employer organization by the professional employer agreement or this chapter;
2. The client is entitled to enforce:
  1. The rights, and obligated to provide and perform the employer obligations, allocated to the client by the professional employer agreement and this chapter; and
  2. Any right or obligation, not specifically allocated to the professional employer organization by the professional employer agreement or this chapter.
A person is not a professional employer organization if the person:
1. 1. Engages in a principal business activity that does not involve entering into professional employer arrangements;
  2. Does not hold itself out as a professional employer organization; and
  3. Shares employees with a commonly owned company within the meaning of §§ 414(b) and (c) of the Internal Revenue Code of 1986, as amended;
2. Provides temporary help services; or
3. Assumes responsibility through independent contractor arrangements for the product produced or service performed by such person or such person's agents and retains and exercises primary direction and control over the work performed by the individuals whose services are supplied under such arrangements.

Acts 2012, ch. 1081, § 1; 2015, ch. 84, §§ 1-3.

Cross-References. Confidential records, § 10-7-504.

62-43-106. Registration.

1. No person shall provide, advertise or otherwise hold itself out as providing professional employer services in this state unless such person is registered under this chapter.
2. The department shall register an applicant meeting the requirements of this chapter.
3. 1. If the department denies registration to an applicant, the department shall provide written notice that includes the reasons for the denial. The applicant shall have sixty (60) days from the date the notice was sent to:
    1. Submit proof to the department that the reasons for the denial have been cured; or
    2. Request, in writing, reconsideration from the commissioner.
  2. The department shall provide written notice of its determination after considering the applicant's submission or request under subdivisions (a)(3)(A)(i) or (a)(3)(A)(ii) within thirty (30) days of receiving a submission or request.
  3. 1. After submission of a written request for consideration, an initial applicant shall have the right to appear before the commissioner or the commissioner's designee to present the applicant's request for reconsideration. If an applicant wishes to appear before the commissioner or the commissioner's designee to present their request for reconsideration, then the department shall provide written notice of its determination within thirty (30) days after such appearance; provided, that it is the commissioner's decision as to whether or not the defect or defects have been cured and whether or not to issue the registration.
    2. An applicant who is not an initial applicant may request a hearing pursuant to § 4-5-320 before the commissioner makes a final determination to deny a renewal registration.
4. Registration under this chapter shall remain in force for two (2) years from the date of issuance of registration.
Each applicant for initial registration under this chapter shall submit to the department the following:
1. Any name under which the applicant conducts business;
2. The address of the principal place of business of the applicant and of each office it maintains in this state;
3. The applicant's taxpayer or employer identification number;
4. A list by state of each name under which the applicant has operated in the preceding five (5) years, including any alternative names, names of predecessors and, if known, successor business entities;
5. A statement of ownership, which shall include the name, address and principal occupation of any person that, individually or acting in concert with one (1) or more other persons, owns or controls, directly or indirectly:
  1. Twenty percent (20%) or more of the equity interests of the applicant who is a publicly traded entity; or
  2. Ten percent (10%) or more of the equity interest of the applicant who is not a publicly traded entity;
6. A statement of management, which shall include the name, address and principal occupation of any person who serves as president, chief executive officer or otherwise has the authority to act as a senior executive officer of the applicant;
7. If the applicant or a person listed in subdivisions (b)(5) or (6) has in any jurisdiction:
  1. Been convicted of or entered a plea of nolo contendere to a crime relating to the operation of a professional employer organization;
  2. Been disciplined relating to the operation of a professional employer organization;
  3. Been convicted of or entered a plea of nolo contendere to an offense relating to bribery, dishonesty or fraud;
  4. Been convicted of or entered a plea of nolo contendere to any felony. However, an action taken under this subdivision (b)(7)(D) shall be subject to the applicable provisions of the Fresh Start Act that are compiled in chapter 76, part 1 of this title; or
  5. Been found liable for civil fraud;
8. A financial statement setting forth the financial condition of the applicant; provided, that:
  1. The applicant shall submit the most recent audit of the applicant with its initial application;
  2. No financial statement submitted with the initial application shall be older than thirteen (13) months from the date of the report of the auditor;
  3. Within one hundred eighty (180) days of the close of an applicant's fiscal year, the applicant shall submit its most recent financial statement; provided, that an applicant may apply to the department for additional time to submit its financial statements, and such a request shall be accompanied by a letter from the auditors stating the reasons for the delay and the anticipated audit completion date;
  4. Financial statements submitted pursuant to this subdivision (b)(8) shall be prepared in accordance with generally accepted accounting principles and audited by an independent certified public accountant licensed to practice in the jurisdiction in which such accountant is located; provided, that no resulting report of the auditor shall include:
    1. A qualification or disclaimer of opinion as to adherence to generally accepted accounting principles; or
    2. A statement expressing substantial doubt about the ability of the applicant to continue as a going concern;
  5. An applicant may submit combined or consolidated audited financial statements to meet the requirements of this section;
  6. Notwithstanding subdivision (b)(8)(D)(i):
    1. An applicant that has not had sufficient operating history to have financial statements based upon at least twelve (12) months of operating history shall meet the financial capacity requirements in subsection (c) and submit financial statements reviewed by an independent certified public accountant; and
    2. If an applicant is a subsidiary or is related to a variable interest entity, then the applicant may submit financial statements of the professional employer organization, professional employer organization group or the controlling organization;
  7. 1. In lieu of audited financial statements required by this subdivision (b)(8), an applicant or registrant with small operations may submit financial statements compiled by an independent certified public accountant;
    2. The department shall consider an applicant or registrant a professional employer organization with small operations if the applicant or registrant submits to the department:
      1. A request to be deemed a PEO with small operations on a form prescribed by the department; and
      2. The most recent fourth quarter federal Form 941 of the applicant or registrant and any related person that offers professional employer services; provided, the aggregate annualized wages shall be less than fifty million dollars ($50,000,000);
    3. The form required in subdivision (b)(8)(G)(ii) shall be submitted to the department in any year the applicant or registrant seeks to be considered a professional employer organization with small operations;
    4. In any year that an applicant or registrant with small operations does not meet the requirements to maintain such status, that applicant or registrant shall have six (6) months from the close of the current fiscal year of the applicant or registrant to either:
      1. Meet the requirements of this subdivision (b)(8)(G); or
      2. Submit audited financial statements;
9. Evidence of workers' compensation coverage for covered employees in this state who are subject to the Tennessee Workers' Compensation Law, compiled in title 50, chapter 6 and as amended; and
10. A written statement in regards to whether the applicant sponsors a self-insured health plan.
Except as provided by subdivision (b)(8)(F)(i) and subsection (f), an applicant shall maintain either:
1. Positive working capital at registration as reflected in the financial statements submitted to the department under subdivision (b)(8); or
2. An applicant that does not have positive working capital may provide a bond, irrevocable letter of credit or securities with a minimum market value equaling the deficiency plus one hundred thousand dollars ($100,000) to the department; provided, that such instruments are to be held by an institution designated by the department, securing payment by the applicant of all taxes, wages, benefits or other entitlements due to or with respect to covered employees if the applicant does not make such payments when due.
1. No later than one hundred eighty (180) days after the applicant's fiscal year that is the second year of its current registration, the applicant may renew its registration by:
  1. Notifying the department of any changes in the information submitted under subsection (b); and
  2. Submitting the financial statement required under subdivision (b)(8) or the alternatives under subdivision (b)(8)(G) or subsection (c), as applicable.
2. An applicant's existing registration shall remain in effect during the pendency of a renewal application.
An applicant who is a professional employer organization group may satisfy the requirements in this section on a combined or consolidated basis; provided, that each member of the professional employer organization group guarantees the financial capacity obligations under this chapter of each other member of the professional employer organization group. In the case of a professional employer organization group that submits a combined or consolidated audited financial statement including entities that are not professional employer organizations or that are not in the professional employer organization group, the controlling entity of the professional employer organization group under the consolidated or combined statement shall guarantee the obligations of the professional employer organizations in the professional employer organization group.
1. An applicant is eligible for a limited registration under this chapter if such applicant:
  1. Submits a request for limited registration to the department;
  2. Is domiciled outside this state and is licensed or registered as a professional employer organization in another state;
  3. Does not maintain an office in this state or directly solicits clients located or domiciled within this state; and
  4. Does not have more than fifty (50) covered employees employed or domiciled in this state.
2. Limited registration is valid for two (2) years and may be renewed.
3. An applicant seeking limited registration under this subsection (f) shall provide the department with information and documentation necessary to show that the applicant qualifies for a limited registration.
4. Subdivision (b)(8) and subsection (c) shall not apply to applicants for limited registration.
Notwithstanding § 62-43-104, the department shall maintain a list of registrants that is readily available to the public by electronic or other means.
1. The department shall to the extent practical, permit the acceptance of electronic filings in conformance with the Uniform Electronic Transactions Act, compiled in title 47, chapter 10 and as amended, including applications, documents, reports and other filings required by this chapter.
2. The department may provide for the acceptance of electronic filings and other assurance by an independent and qualified assurance organization approved by the department that provides satisfactory assurance of compliance acceptable to the department consistent with or in lieu of the requirements in subsections (b) and (c), and other requirements of this chapter or the rules promulgated pursuant to it.
3. The department may permit an applicant to authorize such an approved assurance organization to act on the applicant's behalf in complying with the registration requirements of this chapter, including electronic filings of information and payment of registration fees; provided, that use of such an approved assurance organization shall be optional and not mandatory for an applicant.
4. Nothing in this subsection (h) shall limit or change the department's authority to register or terminate registration of a registrant or applicant or to investigate or enforce this chapter.
A registrant shall:
1. Submit to the department, within ninety (90) days of the end of each calendar quarter, a statement by an independent certified public accountant or independent public accountant that for the quarter all applicable payroll taxes have been paid on a timely basis. Upon a showing of reasonable cause, one (1) thirty-day extension per quarter shall be granted by the department;
2. Maintain and make available for the department's inspection any and all records concerning the registrant's conduct of business under its registration, which records shall be maintained for a period of three (3) years after termination of the professional employer agreement;
3. Notify the department in writing of a change in the information submitted under subdivisions (b)(1)-(7) within thirty (30) days of such change;
4. Post the registration issued under this chapter in a conspicuous place in the principal place of business and display in clear public view in each registrant's office in this state a notice stating that the professional employer organization is licensed and regulated by the department and that any questions or complaints should be directed to the department; and
5. Submit a written response to a written inquiry from the department within thirty (30) days of receiving the inquiry.

Acts 2012, ch. 1081, § 1; 2018, ch. 745, § 21.

62-43-107. Fees.

The department may establish the following fees by rule:
1. Initial application fee;
2. Initial registration fee, which includes a fee for limited registration, as applicable; and
3. Renewal registration fee.
No fee charged pursuant to this section shall exceed the amount reasonably necessary for the administration of this chapter. All fees collected by this state pursuant to this chapter shall be used by the department to implement and administer this chapter. The fees shall be deposited in a reserve for such purposes and the principal and interest of the reserve shall not revert on June 30 of any year.
Fees under this section shall be:
1. Remitted with the application or with the hearing request;
2. Payable to this state; and
3. Nonrefundable.

Acts 2012, ch. 1081, § 1.

62-43-108. Basis of co-employment relationship.

1. The co-employment relationship shall be based on a written professional employer agreement between the client and the professional employer organization setting forth the responsibilities and duties of each co-employer. The professional employer agreement shall disclose to the client the services to be rendered, including charges and fees, the respective rights and obligations of the parties and provide that the professional employer organization:
  1. Reserves a right of direction and control over covered employees of the client; however, the client may retain sufficient direction and control over covered employees that is necessary to conduct the client's business and without which the client would be unable to conduct its business, discharge any fiduciary responsibility that it may have or comply with any applicable licensure, regulatory or statutory requirement of the client;
  2. Pursuant to this section, assumes responsibility for the payment of wages of its covered employees, its payroll-related taxes and its employee benefits from its own accounts without regard to payments by the client to the professional employer organization; and
  3. Retains a right to hire, terminate and discipline covered employees.
2. A professional employer organization shall give written notice of the general nature of the relationship between the professional employer organization and the client to each covered employee.
3. A professional employer organization shall be deemed an employer of its covered employees and shall pay wages to covered employees; withhold, collect, report and remit payroll-related and unemployment taxes; and, to the extent the professional employer organization has assumed responsibility in the professional employer agreement, make payments for employee benefits for covered employees. As used in this section, the term “wages” does not include any obligation between a client and a covered employee for payments beyond or in addition to the covered employee's salary, draw, or regular rate of pay, such as bonuses, commissions, severance pay, deferred compensation, profit sharing or vacation, sick or other paid time off pay, unless the professional employer organization has expressly agreed to assume liability for such payments in the professional employer agreement.
Except to the extent otherwise expressly provided by the applicable professional employer agreement:
1. A client shall be solely responsible for the quality, adequacy or safety of the goods or services produced or sold in client's business;
2. A client shall be solely responsible for directing, supervising, training and controlling the work of the covered employees with respect to the business activities of the client and solely responsible for the acts, errors or omissions of the covered employees with regard to such activities;
3. A client shall not be liable for the acts, errors, or omissions of a professional employer organization, or of any covered employee of the client and a professional employer organization when such covered employee is acting under the express direction and control of the professional employer organization;
4. A professional employer organization shall not be liable for the acts, errors, or omissions of a client or of any covered employee of the client when such covered employee is acting under the express direction and control of the client;
5. Nothing in this subsection (b) shall serve to limit any contractual liability or obligation specifically provided in the written professional employer agreement; and
6. A covered employee is not, solely as the result of being a covered employee of a professional employer organization, an employee of the professional employer organization for purposes of general liability insurance, fidelity bonds, surety bonds, employer's liability which is not covered by workers' compensation, or liquor liability insurance carried by the professional employer organization unless the covered employees are included by specific reference in the professional employer agreement and applicable prearranged employment contract, insurance contract or bond.
1. A professional employer organization may sponsor and maintain employee benefit and welfare plans for the benefit of its covered employees. Any of those plans that are plans of insurance shall comply with the applicable provisions of the insurance laws of this state. The self-insured plans developed under this section are not subject to premium taxes. The department may promulgate rules regulating self-insured plans under this section.
2. An applicant or registrant shall disclose to the department, to each client company and to all eligible covered employees the following information relating to any benefit plan of insurance provided for the benefit of its covered employees:
  1. The type of coverage and a copy of the insurance policy or certificate or summary plan description;
  2. The identity of each insurer for each type of coverage;
  3. The amount of benefits for each type of coverage and to whom or on whose behalf benefits will be paid; and
  4. The policy limits on each insurance policy.
3. Nothing in this subsection (c) shall require a professional employer organization to provide comparable benefits to covered employees located at different clients.
4. The sale of professional employer services in conformance with this chapter shall not constitute the sale of insurance within the meaning of applicable state law.

Acts 2012, ch. 1081, § 1.

62-43-109. Professional employer organization deemed employer.

A professional employer organization shall be deemed an employer of its covered employees and shall pay state unemployment premiums as required by the Tennessee Employment Security Law, compiled in title 50, chapter 7 and as amended.
A professional employer organization shall keep separate records and submit separate state unemployment insurance wage and premium reports with payments pursuant to title 50, chapter 7, part 4 and as amended, to report the covered employees of each client by using the client's state employer account number as provided for in subsection (c) and using the premium rate based on the aggregate reserve ratio of the professional employer organization as provided in subsection (d).
1. For each professional employer organization having one (1) or more covered employees with a client in this state, such professional employer organization shall file an application with the chief administrative officer of the division of employment security of the department of labor and workforce development for an account number for each client having one (1) or more covered employees in this state; provided, the application shall include:
  1. The aggregate state number assigned to the professional employer organization, along with the name, address and phone number of the professional employer organization;
  2. The name, physical address and phone number of the client;
  3. The name of the client's owner, partners, corporate officers, limited liability company members and managers, if board managed, or general partners;
  4. The federal identification number of the client;
  5. The signature of the client's principal or attorney in fact;
  6. A brief description of the client's major business activity, listing any products produced or sold, or service provided; and
  7. Any other information which may be required by the department of labor and workforce development.
2. The professional employer organization shall notify the department of labor and workforce development in writing of any additions or deletions of clients during the quarter in which such changes occur.
3. All information furnished to the department of labor and workforce development under this subsection (c) shall be treated as confidential information as provided in § 50-7-701 and as amended.
A professional employer organization shall determine the aggregate reserve ratio of a professional employer organization by using one (1) of the following two (2) methods:
1. 1. Total all the state unemployment premiums paid on both the state taxable wages of a professional employer organization and on the state taxable wages of all the clients of such professional employer organization for all years during which the professional employer organization has been subject to title 50, chapter 7 and all the years each individual client has been a client of the professional employer organization as of the computation date, as provided in § 50-7-403(k)(1) and as amended;
  2. Subtract therefrom the total of all benefits charged to the aggregate reserve account of the professional employer organization for all years, including the benefits charged resulting from benefits paid to covered employees of each individual client for all the years each client has been a client of the professional employer organization as of the computation date;
  3. Divide the difference determined in subdivision (d)(1)(A)(ii) by the average taxable payroll for the three (3) most recently completed calendar years, ending on the computation date, of the professional employer organization, plus the average taxable payroll of each client for that portion of the three-year period during which such client was a client of the professional employer organization;
  4. The resulting quotient shall be the aggregate reserve ratio of the professional employer organization beginning the July 1 following the computation date; and
  5. The employer premium rate for the professional employer organization shall be determined by matching its aggregate reserve ratio to the appropriate premium rate table pursuant to title 50, chapter 7 and as amended; or
2. In cases where the aggregate reserve account of a professional employer organization has not been chargeable with benefits for thirty-six (36) consecutive months ending on the computation date, the professional employer organization shall be assigned the new employer premium rate based upon the reserve ratio of the professional employer organization's industrial classification as determined pursuant to § 50-7-403(b)(1)(B) and as amended.
A professional employer organization shall not be considered a successor employer, within the meaning of title 50, chapter 7 and as amended, to any client and shall not acquire the experience history of any client with whom there is not any common ownership, management or control. The client, upon terminating its relationship with the professional employer organization, shall not be considered a successor employer, within the meaning of title 50, chapter 7 and as amended, to the professional employer organization and shall not acquire any portion of the experience history of the aggregate reserve account of the professional employer organization with whom there is not any common ownership, management or control. For purposes of this subsection (e), the existence of professional employer agreement, without other evidence of common control, shall not constitute common ownership, management or control.
1. A client shall be jointly and severally liable with a professional employer organization for state unemployment premiums for each of the client's covered employees; provided, however, that a client shall be relieved of joint and several liability for state unemployment premiums if the professional employer organization has posted a corporate surety bond, as described in this subsection (f), with the administrator of the division of employment security of the Tennessee department of labor and workforce development in the amount of one hundred thousand dollars ($100,000) for so long as the bond remains in force.
2. The corporate surety bond shall be in form and content approved by the department of labor and workforce development as evidenced by the department's written consent thereto, and shall be issued by an organization currently licensed and authorized to issue the bond in this state.
3. The bond shall be conditioned for the benefit of the department of labor and workforce development, who may enforce the bond to collect unpaid unemployment insurance premiums, interest and penalties owed by the professional employer organization pursuant to title 50, chapter 7, part 4 and as amended.
4. Any surety is required to provide the administrator of the division of employment security of the department of labor and workforce development sixty (60) days' notice of cancellation of the bond.
5. If after three (3) full calendar years, throughout which a professional employer organization has paid all unemployment insurance premiums due in a timely manner and has a positive unemployment insurance reserve account, the bond may be reduced to an amount no less than thirty-five thousand dollars ($35,000) as determined and approved by the administrator conditioned upon the total taxable payroll for the previous calendar year and other factors deemed relevant by the administrator.
6. Any reduced bond shall be subject to review on no less than an annual basis by the administrator, who may adjust the required amount of the bond as is deemed appropriate.

Acts 2012, ch. 1081, § 1.

62-43-110. Duties of professional employer organization.

A professional employer organization shall:
1. Ensure that its Tennessee covered employees are covered by workers' compensation insurance provided in accordance with title 50 and the applicable Tennessee insurance laws and regulations as amended;
2. Notify the department and its clients within ten (10) days of any notice of cancellation of its workers' compensation coverage; and
3. Notify the department and its workers' compensation carrier, if applicable, of the termination of the professional employer organization's relationship with any client with covered employees in this state.
The professional employer organization shall be entitled along with the client to the exclusivity of the remedy under both the workers' compensation and employer's liability provisions of a workers' compensation policy or plan that either party has secured.

Acts 2012, ch. 1081, § 1.

62-43-111. Collecting and assessing sales tax.

Covered employees whose services are subject to sales tax shall be deemed the employees of the client for purposes of collecting and levying sales tax on the services performed by the covered employee. Nothing contained in this chapter shall relieve a client of any sales tax liability with respect to its goods or services.
Any tax or assessment imposed upon professional employer services or any business license or other fee which is based upon “gross receipts” shall allow a deduction from the gross income or receipts of the business derived from performing professional employer services that is equal to that portion of the fee charged to a client that represents the actual cost of wages and salaries, benefits, workers' compensation, payroll taxes, withholding or other assessments paid to or on behalf of a covered employee by the professional employer organization under a professional employer agreement.
Any tax assessed or assessment or mandated expenditure on a per capita or per employee basis shall be assessed against the client for covered employees and against the professional employer organization for its employees who are not covered employees co-employed with a client. Benefits or monetary consideration that meet the requirements of mandates imposed on a client and that are received by covered employees through the professional employer organization either through payroll or through benefit plans sponsored by the professional employer organization shall be credited against the client's obligation to fulfill such mandates.
In the case of a tax or an assessment imposed or calculated upon the basis of total payroll, the professional employer organization shall be eligible to apply any small business allowance or exemption available to the client for the covered employees for purpose of computing the tax.
Except to the extent provided otherwise in the professional employer agreement with a client, a professional employer organization is not liable for the general debts, obligations, loss of profits, business goodwill or other consequential special or incidental damages of a client with which it has entered into a professional employer agreement.
This section applies to this state and local governmental entities.

Acts 2012, ch. 1081, § 1.

62-43-112. Violations — Grounds for action.

No person shall:
1. Submit false information to the department;
2. Make a materially false entry in the records of a professional employer organization; or
3. Violate this chapter.
The following constitute grounds for which the department may take action under subsection (c) against a person subject to this chapter:
1. Being convicted of an offence or disciplined as described in § 62-43-106(b)(7);
2. Committing a prohibited act under subsection (a);
3. Making, issuing, circulating or causing to be made, issued or circulated, any estimate, illustration, circular, statement, advertisement, sales presentation, omission or comparison that misrepresents the benefits, advantages, conditions or terms of any professional employer services or is otherwise untrue, deceptive or misleading;
4. Entering into any agreement to commit or, by any concerted action, committing any act of boycott, coercion or intimidation resulting in or tending to result in unreasonable restraint of or monopoly in the business of employee leasing; or
5. Permitting to be used or using, permitting to be filed or filing, any name, trade name, fictitious name or business identity which is the same as, similar to or may be confused with the name, trade name, fictitious name or business identity of an existing licensee, any governmental agency or any nonprofit organization.
For violating subsection (a) or when grounds exist under subsection (b), the department may:
1. Issue an order:
  1. To comply with the chapter; or
  2. To cease and desist;
2. Impose an administrative penalty not to exceed one thousand dollars ($1,000) for each set of facts constituting a separate violation;
3. Restrict or suspend a registration;
4. Place the registrant on probation for a period of time not to exceed the next full term of registration where the registrant is subject to the terms and conditions determined by the department;
5. Deny an application or revoke a registration; or
6. Enjoin or restrain by bringing an action in the chancery court of Davidson County.
If the department finds that a violation has occurred or that grounds exist to take an action under subsection (c), the department shall consider the following when determining what action to take:
1. Whether the person committing the act or failing to act did so:
  1. Knowingly;
  2. Recklessly;
  3. Repeatedly; or
  4. Relying on information of another person or was subject to an illegal act;
2. The materiality and severity of the violation; and
3. The person's actions to cure the violation.
If the action under subdivision (c)(5) is taken by the department:
1. The department shall notify:
  1. The department of labor and workforce development; and
  2. Each client of which the department has knowledge of the department's action; and
2. The person with a revoked registration shall:
  1. Immediately cease soliciting clients for professional employer services;
  2. Not execute additional professional employer agreements or enter into any arrangement wherein it agrees to provide professional employer services;
  3. Wind down the operations of the professional employer organization so that the professional employer organization will no longer be in operation sixty (60) days after the effective date of the revocation; and
  4. Return the registration that was revoked to the department.
1. The department may make or cause to be made investigations, audits or reviews within or without this state as the department deems necessary:
  1. To determine whether a person has violated or is in danger of violating this chapter, including any regulation or rule promulgated under this chapter; or
  2. To aid in the enforcement of this chapter.
2. All material compiled by the department in any investigation, audit or review under this section shall be confidential and exempt from public disclosure pursuant to title 10, chapter 7 and as amended, until ten (10) days after a finding of probable cause resulting from the investigation, audit or review; however, financial information, including, but not limited to, client lists, obtained by the department in connection with investigations, audits or reviews shall be kept confidential and exempt from the public disclosure requirements of title 10, chapter 7.
3. The department may impose upon the person found to have violated this chapter the cost of investigation and prosecution, including reasonable attorney fees.
The Uniform Administrative Procedures Act, compiled in title 4, chapter 5 and as amended, governs all matters and procedures regarding the hearing and judicial review of any contested case arising under this chapter.

Acts 2012, ch. 1081, § 1.

62-43-113. Severability.

The provisions of this chapter are severable. If any provision of this chapter or application thereof to any person or circumstance, is held invalid, such invalidity shall not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application.

Acts 2012, ch. 1081, § 1.

62-43-114. Rules of the former Tennessee Employee Leasing Act remain in effect — Effect of current licenses — Recent appointments to advisory board.

Rules promulgated pursuant to the Tennessee Employee Leasing Act, that are in effect prior to May 21, 2012, shall remain in effect unless such rules are in conflict with this chapter or until modified or repealed by the department.
A plan, adopted by a study committee establishing criteria for a staff leasing company sponsoring and maintaining a plan for self-insurance for health benefits on or before January 1, 1998, shall be deemed a rule of the department and shall remain in effect unless such rule is in conflict with this chapter or until modified or repealed by the department.
A current license in effect at May 21, 2012, shall remain in effect until one hundred eighty (180) days after the close of the licensee's current fiscal year.
The most recent appointments to the advisory board under the Tennessee Employee Leasing Act shall be considered appointments to the advisory council unless the governor appoints a successor to an expired term.

Acts 2012, ch. 1081, § 1.

Chapter 44
Salvage House Operators

62-44-101. Recordkeeping requirements.

Any person, firm, corporation or other entity operating a salvage house, by which is meant all persons in any way buying, selling, exchanging, trading or dealing in surplused or used building materials of any sort within the state, shall keep a record of the names of all persons from whom the person, firm, corporation or entity buys or gets surplused or used building materials of any sort, the date of purchase, the amount paid for the building materials, the kind of building materials purchased or gotten and the amount of each kind. The records shall be kept in chronological order from day to day, as the business is transacted. The records shall at all times be open to inspection of the police or other officer or any person who may desire to see the records and shall be in good faith kept and preserved by the dealers for convenient inspection.

Acts 1997, ch. 132, § 2.

62-44-102. Identification of seller.

All dealers in used or surplused building materials shall obtain from the seller of the used or surplused building materials proper identification consisting of the seller's name and address and the seller's driver license number or vehicle license plate number or social security number.
In lieu of obtaining any of the above identification, if the seller is a building materials dealer who has registered with the county clerk in accordance with § 67-4-706, the seller shall provide an invoice, which shall include the name and address of the dealer or provide a sworn affidavit, including the name and address of the seller, the name and address of the person, firm or source from whom or which the seller acquired the used or surplused building materials and the condition and quantity of the used or surplused building materials.
All dealers shall keep the records for a period of three (3) years and the records shall be filed by date of purchase.

Acts 1997, ch. 132, § 6.

Cross-References. Penalty for violation, § 62-44-105.

62-44-103. Dealers to cooperate with officers investigating seller.

Dealers shall promptly give to any officers or other persons inquiring of them information to enable the seller to be identified or any information that the dealer may have that will lead to the identification of the seller.
The failure on the part of the dealer to give the information on demand shall render the dealer guilty of a violation of this chapter.

Acts 1997, ch. 132, § 4.

62-44-104. Materials not to be commingled for ten (10) days after purchase.

The dealers shall keep on hand and in separate packages and not allow to be mixed or confused with other purchases, in order that identification may be easy, all surplused or used building materials bought or gotten from any person, the building materials, to be kept separate and subject to easy and convenient inspection of anyone desiring to investigate for a period of no less than ten (10) days after purchase or in any way acquired.

Acts 1997, ch. 132, § 3.

62-44-105. Penalty.

A violation of this chapter is a Class C misdemeanor.
The court trying the case has the power to remit the term of imprisonment provided for a Class C misdemeanor for the first offense.

Acts 1997, ch. 132, § 5.

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

Chapters 45-49
[Reserved]

Chapter 50
Limitations on Liability

Part 1
Liability of Professional Societies

62-50-101. Limitation on liability of committee members.

No member of a duly appointed committee formed by a professional society to maintain the professional standards of the society as established by its bylaws shall be individually liable for defamation in or arising out of any act or proceeding undertaken or performed unless the member:

Acted outside the scope of functions for which the committee was formed;
Acted with malice;
Was grossly negligent regarding the truth or falsity of any matters; or
Failed to use a reasonable effort to discover the truth.

Acts 1981, ch. 526, § 1; T.C.A., § 62-5001.

62-50-102. Limitation on liability for communications to committee.

No person shall be individually liable as the result of the communication of any information in the possession of the person to any professional standards committee, if the communication is intended to aid the committee in the evaluation of the qualifications, fitness or character of a member or applicant for membership in any professional society unless the person:

Acted with malice;
Was grossly negligent regarding the truth or falsity of any matter; or
Failed to use a reasonable effort to discover the truth.

Acts 1981, ch. 526, § 2; T.C.A., § 62-5002.

62-50-103. Society not immune from liability.

This part shall not be construed to confer immunity from liability on any professional society.
A professional society is liable for the actual damages arising from proceedings of a committee established by the bylaws of the society for any wrongful charge against a member by the committee.
In any case in which, but for the enactment of this part, a cause of action would arise against a professional society, the cause of action shall exist as if this part had not been enacted.

Acts 1981, ch. 526, § 3; T.C.A., § 62-5003.

Part 2
Liability of Sports Officials

62-50-201. “Sports official.”

As used in this part, unless the context otherwise requires, “sports official” means any person who serves as referee, umpire, linesperson or in any similar capacity in supervising or administering a sports event and who is registered as a member of a local, state, regional or national organization that provides training and educational opportunities for sports officials.

Acts 1989, ch. 90, § 1.

62-50-202. Immunity from civil liability.

A sports official who administers or supervises a sports event at any level of competition is not liable to any person or entity in any civil action for damages to a player, participant or spectator as a result of the sports official's act of commission or omission arising out of the sports official's duties or activities.

Acts 1989, ch. 90, § 2.

62-50-203. Intentional conduct or gross negligence.

Nothing in this part grants civil immunity to a sports official who intentionally or by gross negligence inflicts injury or damage to a person or entity.

Acts 1989, ch. 90, § 3.

Chapter 51
Unlawful Representations

62-51-101. Posing as being licensed or bonded — Penalty.

In addition to any other penalty provided by law, it is unlawful for any individual, firm, association or corporation to advertise or otherwise claim to be licensed or bonded to perform any service unless local, state or federal law, in fact, requires licensing or bonding to perform the service, and the person is so licensed or bonded. A violation of this section is a Class A misdemeanor.

Acts 1986, ch. 790, § 1.

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

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

Law Reviews.

Selected Tennessee Legislation of 1986, 54 Tenn. L. Rev. 457 (1987).

Chapters 52-75
[Reserved]

Chapter 76
Miscellaneous Provisions

Part 1
General Provisions

62-76-101. Notice to applicants and holders of licenses, certifications, and registrations — Website links to statutes, rules, policies and guidelines — Electronic notices.

Each board, commission, agency or other governmental entity created pursuant to this title shall notify each applicant for a license, certification or registration from the board, commission, agency or other governmental entity where to obtain a copy of any statutes, rules, policies and guidelines setting forth the prerequisites for the license, certification or registration and shall, upon request, make available to the applicant a copy of the statutes, rules, policies and guidelines.
Each board, commission, agency or other governmental entity created pursuant to this title shall notify each holder of a license, certification or registration from the board, commission, agency or other governmental entity of changes in state law that impact the holder and are implemented or enforced by the entity, including newly promulgated or amended statutes, rules, policies and guidelines, upon the issuance and upon each renewal of the holder's license, certification or registration.
Each board, commission, agency or other governmental entity created pursuant to this title shall establish and maintain a link or links on the entity's website to the statutes, rules, policies and guidelines that are implemented or enforced by the entity and that impact an applicant for, or a holder of, a license, certification or registration from the entity.
1. Each board, commission, agency or other governmental entity created pursuant to this title shall allow each holder of a license, certification or registration from the board, commission, agency or other governmental entity to have the option of being notified by electronic mail of:
  1. Renewals of the holder's license, certification or registration;
  2. Any fee increases;
  3. Any changes in state law that impact the holder and are implemented or enforced by the entity, including newly promulgated or amended statutes, rules, policies and guidelines; and
  4. Any meeting where changes in rules or fees are on the agenda. For purposes of this subdivision (d)(1)(D), the electronic notice shall be at least forty-five (45) days in advance of the meeting, unless it is an emergency meeting then the notice shall be sent as soon as is practicable.
2. Each board, commission, agency or other governmental entity created pursuant to this title shall notify each holder of a license, certification or registration of the availability of receiving electronic notices pursuant to subdivision (d)(1) upon issuance or renewal of the holder's license, certification or registration.

Acts 1998, ch. 1088, § 1; 2008, ch. 1070, §§ 1, 2; 2012, ch. 952, § 1.

Compiler's Notes. Acts 2008, ch. 1070, § 13 provided that each entity subject to the act shall promulgate rules to effectuate the purposes of the act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

62-76-102. Members of licensing bodies to be citizens of Tennessee.

All members of any board, commission or council that licenses, certifies or regulates any profession or occupation shall, during the time of their respective appointments, be citizens of this state. The appointment of any member of any board, commission or council that licenses or certifies any profession or occupation shall terminate when Tennessee is no longer the domicile of the member.

Acts 1998, ch. 1088, § 3.

62-76-103. Freedom to Prosper Act.

This section shall be known and may be cited as the “Freedom to Prosper Act.”
Notwithstanding any provision of law to the contrary, on and after July 1, 2017, no political subdivision may:
1. Impose a licensing requirement on an individual's profession, trade, or occupation if the profession, trade, or occupation is subject to state licensing requirements unless the political subdivision imposed the licensing requirement prior to July 1, 2017; or
2. Expand or increase any licensing requirement on an individual's profession, trade, or occupation if the licensing requirement existed prior to July 1, 2017, and the profession, trade, or occupation is subject to state licensing requirements.
The prohibitions set out in subsection (b) do not apply to licensing requirements on or any other regulation of law enforcement officers, firefighters, emergency medical service providers, emergency rescue management providers, or any other type of first responder or emergency service provider.

Acts 2017, ch. 332, § 1.

62-76-104. Denial of license for prior criminal prosecution prohibited.

As used in this section, “licensing authority” means any state department, board, commission, or agency that issues any license, certificate, or registration for an individual to engage in an occupation, profession, business, or trade in this state, including to those licensing authorities that have statutory authority to deny, suspend, or revoke a license for felonies or misdemeanors of moral turpitude.
1. Subject to the exemptions in this section and unless prohibited by federal law, a licensing authority shall not deny an application for a license, certificate, or registration, or refuse to renew a license, certificate, or registration due to a prior criminal conviction that does not directly relate to the applicable occupation, profession, business, or trade.
2. Prior to denying an application for a license, certificate, or registration on the basis of a criminal conviction, or prior to the refusal to renew a license, certificate, or registration, on the basis of a criminal conviction, the licensing authority shall notify the applicant, licensee, certificate holder, or registrant of the licensing authority's determination in writing via certified mail, facsimile transmission, or email. The written notification shall include the licensing authority's justification for denial or refusal to renew in accordance to subdivision (b)(4)(A). The determination must state the earliest date upon which the applicant is eligible to reapply for the license, certificate, or registration.
3. Prior to submitting the application necessary to obtain a license, certificate, or registration, an individual may request written notice from the licensing authority from which they seek to obtain a license, certification, or registration concerning the individual's qualification to obtain the license, certification, or registration based on the individual's criminal history. If the licensing authority determines that an individual is disqualified due to the individual's criminal history, the licensing authority must provide the individual with a written notification that sets forth the reasons for its determination and its justification in accordance with subdivision (b)(4)(A). The written notice as to the individual's qualifications to obtain a license, certification, or registration must be limited to the individual's criminal history and should not be construed as prohibiting the licensing authority from denying an application on other grounds. This determination shall apply exclusively to the individual and shall not be construed as an advisory or formal opinion of the licensing authority.
4. 1. In considering whether to deny an application for a license, certificate, or registration to an applicant, or whether to refuse to renew a license, certificate, or registration, on the basis of a criminal conviction, the licensing authority must consider:
    1. The nature and seriousness of the crime for which the individual was convicted;
    2. The length of time since the commission of the crime;
    3. The relationship between the nature of the crime and the purposes of regulating the occupation, profession, business, or trade for which the license, certificate, or registration is sought;
    4. The relationship between the crime and the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the occupation, profession, business, or trade;
    5. Any evidence of rehabilitation or treatment undertaken by the individual that might mitigate against the relationship of crime to the occupation, profession, business, or trade; and
    6. Any applicable federal laws regarding an individual's participation in the occupation, profession, business, or trade.
  2. If an applicant, licensee, certificate holder, or registrant's prior conviction was for a Class A felony, Class B felony, or Class C felony not defined under title 39, chapter 17, part 4, or if the felony conviction is for an offense for which the offender is required to register under the Tennessee Animal Abuser Registration Act, compiled in title 40, chapter 39, part 1; the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004, compiled in title 40, chapter 39, part 2; or title 40, chapter 39, part 3, there shall be a rebuttable presumption that the conviction relates to the fitness of the applicant, licensee, certificate holder, or registrant engaged in the applicable occupation, profession, business, or trade.
An individual, applicant, licensee, certificate holder, or registrant who receives written notice pursuant to subdivision (b)(2) or (b)(3) may file a petition within thirty (30) business days of the receipt of the notice in Davidson County chancery court. The licensing authority must demonstrate by a preponderance of the evidence that the individual, applicant, licensee, certificate holder, or registrant's conviction is related to the applicable occupation, profession, business, or trade.
Nothing in this section shall be construed to prohibit a licensing authority created by this title from issuing a restricted or conditional license, if otherwise authorized to do so under law.
Nothing in this section shall be construed to create a separate right to a contested case hearing that does not otherwise exist relative to the denial of the license, certificate, or registration under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
Nothing in this section applies to:
1. The board of law examiners, created under § 23-1-101;
2. The board of judicial conduct, created under § 17-5-201;
3. The licensure of services and facilities operated pursuant to title 33, chapter 2, part 4, for the provision of mental health services, alcohol, and drug abuse prevention or treatment; for the provision of services for intellectual and developmental disabilities; and for personal support services;
4. The certification of police officers under title 38, chapter 8;
5. Any licensing authority created under titles 41, 48, 49, 56, and 71;
6. The department of financial institutions, when acting as a licensing authority pursuant to title 45;
7. Any license, certificate, or registration issued pursuant to the rules of the supreme court;
8. The licensure of pain management clinics licensed pursuant to title 63, chapter 1, part 3; and
9. The licensure of physicians under title 63, chapter 6 or 9.

Acts 2018, ch. 793, § 2.

Compiler's Notes. Acts 2018, ch. 793, § 1 provided that the act, which enacted this section, shall be known and may be cited as the “Fresh Start Act.”

62-76-105. Waiver of initial licensure fees for low-income persons.

As used in this section:
1. “Licensing” means the procedure through which the privilege to engage in a specific profession regulated under this title is granted by a licensing authority;
2. “Licensing authority” means any state agency with the authority to impose training, education, or licensure fees to practice in a profession;
3. “Licensure fee” means a fee imposed by a licensing authority on persons licensed to practice a profession for the privilege of providing goods or services;
4. “Low-income persons” means persons who are enrolled in a state or federal public assistance program, including, but not limited to, temporary assistance for needy families (TANF), medicaid, or supplemental nutrition assistance program (SNAP); and
5. “State agency” means a state board, agency, or commission attached to the division of regulatory boards, as listed in § 4-3-1304(a).
1. Any licensing authority that requires a license for persons to practice in a profession shall waive all initial licensure fees for low-income persons.
2. Persons seeking a waiver of initial licensure fee requirements shall apply to the appropriate licensing authority in a format prescribed by the authority.
3. All licensing authorities to which this section applies shall promulgate rules to effectuate the purposes of this section. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2018, ch. 954, § 1.

Part 2
Apprenticeship Programs

62-76-201. Part definitions.

As used in this part:

“Apprenticeship” means a program that:
1. Meets the federal guidelines set out in 29 CFR Part 29 and 29 U.S.C. § 50; and
2. Complies with this part and the guidelines established pursuant to § 62-76-202;
“Licensing authority” means any state agency with the authority to impose training, education, or licensure fees to practice in a profession; and
“State agency” means a state board, agency, or commission attached to the division of regulatory boards, as listed in § 4-3-1304(a).

Acts 2018, ch. 848, § 1.

Compiler's Notes. Former part 2, §§ 62-76-201, 62-76-202 (Acts 2014, ch. 881, § 1), concerning apprenticeship programs, was repealed and reenacted by Acts 2018, ch. 848, § 1, effective January 1, 2019.

62-76-202. Licensure.

Notwithstanding any law to the contrary and in addition to any other process by which a person may be granted a license pursuant to state law, a licensing authority shall also grant a license, unless other cause for denial of the issuance of the license exists, to any applicant who:
1. Possesses a high school diploma or its equivalent, which shall include a general educational development (GED(R)) certificate;
2. Has completed an apprenticeship that requires the applicant to learn the skills and knowledge relevant to the chosen profession under the direct supervision and instruction of a person duly licensed, registered, or certified to practice in the applicant's chosen profession and provides sufficient documentation to the licensing authority of completion of the apprenticeship;
3. Has passed any examination required under law to become licensed, registered, or certified to practice in the applicant's chosen profession; and
4. Has paid any fees required by the licensing authority for the license.
1. Each licensing authority may limit the amount of time or number of attempts following completion of an apprenticeship that an applicant has to pass any required examinations. However, the amount of time or number of attempts to pass any required examination must not be more restrictive than any limits placed on any other person attempting to pass the examination after otherwise qualifying to take the examination.
2. If the relevant licensing authority does not require an examination of any other person applying to practice in that profession, no examination is required for applicants who complete an apprenticeship under this part.
Each licensing authority shall determine the duration of any apprenticeship for the profession that the authority regulates. A licensing authority shall grant apprentice status to a person only once under this part.
Each licensing authority shall require that an apprentice register with the licensing authority and may set reasonable fees for registration or other transactions, such as changes of address or issuance of duplicate credentials. An apprentice is authorized to engage in acts requiring licensure by the licensing authority under the direct supervision and instruction of a professional licensed to practice in the applicant's chosen profession. However, the licensing authority may set limits on the apprentice's practice as are reasonably necessary to protect the health, safety, and welfare of the public.
Any licensing authority creating an apprentice program under this part shall promulgate rules to effectuate this part, including guidelines for any apprenticeship program created pursuant to this part. All rules must be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
Nothing in this part requires any state agency to create an apprenticeship.
A licensing authority may refuse to issue an apprentice registration to any person for any reason, other than experience or education, that the licensing authority could deny issuance of a regular license in the apprentice's chosen profession. Further, no apprentice registration may be issued to any person who could not be issued a regular license in the apprentice's chosen profession.
This section does not apply to licensing authorities providing licensure pursuant to the Contractors Licensing Act of 1994, compiled in chapter 6, part 1 of this title.

Acts 2018, ch. 848, § 1.

62-76-203. Applicability.

Nothing in this part overrides any of the requirements of the following:
1. Instructor trainee programs, junior instructor programs, or apprenticeships under the Tennessee Cosmetology and Barbering Act, compiled in chapter 4 of this title;
2. Apprenticeships under chapter 5 of this title;
3. Apprenticeships under the Locksmith Licensing Act of 2006, compiled in chapter 11 of this title;
4. Affiliate broker programs under the Tennessee Real Estate Broker License Act of 1973, compiled in chapter 13 of this title;
5. Apprenticeships under chapter 19 of this title;
6. Apprenticeships under the Private Investigators Licensing and Regulatory Act, compiled in chapter 26 of this title;
7. Internships under the Polygraph Examiners Act, compiled in chapter 27 of this title; or
8. Appraiser trainee programs under the State Licensing and Certified Real Estate Appraisers Law, compiled in chapter 39 of this title.
If a program, apprenticeship, or internship as described in subsection (a) or by rule exists for a profession, then a licensing authority shall not create a separate apprentice program under this part for that profession.

Acts 2018, ch. 848, § 1.

Chapter 1 Tennessee Accountancy Act of 1998

Part 1 General Provisions

62-1-101. Short title.

NOTES TO DECISIONS

Decisions Under Prior Law

1. Constitutionality.

62-1-102. Legislative intent.

NOTES TO DECISIONS

1. Police Power.

62-1-103. Chapter definitions.

NOTES TO DECISIONS

1. Representation to Public.

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

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

NOTES TO DECISIONS

1. Practice of Public Accountancy.

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

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

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

NOTES TO DECISIONS

1. Admission Without Examination.

2. Experience Requirement.

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

NOTES TO DECISIONS

1. Admission Without Examination.

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

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

NOTES TO DECISIONS

1. Police Power.

62-1-112. Injunctions and restraining orders.

62-1-113. Prohibited activities.

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

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

62-1-116. Confidential information.

NOTES TO DECISIONS

1. Privilege.

62-1-117. Reciprocity.

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

62-1-119. [Reserved.]

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

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

62-1-123. Contingent fee arrangements.

62-1-124. [Reserved.]

Part 2 Review Committees

62-1-201. Peer review.

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

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

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.

NOTES TO DECISIONS

1. Constitutionality.

2. Applicant Swearing Falsely.

3. Architecture.

4. —Practice.

5. Purpose of Section.

6. Single Instance Violates Section.

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

NOTES TO DECISIONS

1. In General.

62-2-103. Persons exempt from chapter.

62-2-104. Employees of licensees.

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

NOTES TO DECISIONS

1. Advertisement As Engineer.

62-2-106. Enforcement.

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

62-2-108. Hearings and judicial review.

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.

62-2-110. Exemptions from part.

Part 2 State Board of Examiners

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

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

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

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

62-2-205. Executive director.

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

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

Chapter 1
Tennessee Accountancy Act of 1998

Part 1
General Provisions

Part 2
Review Committees

Chapter 2
Architects, Engineers, Landscape Architects and Interior Designers

Part 1
General Provisions

Part 2
State Board of Examiners

Part 3
Qualification and Registration Generally

Part 4
Qualifications and Registration — Engineers

Part 5
Qualifications and Registration — Architects

Part 6
Corporations, Partnerships and Firms

Part 7
[Reserved]

Part 8
Qualifications and Registration — Landscape Architects

Part 9
Interior Designers Title Registration Act

Chapter 3
Barbers