Tennessee Code Annotated

Title 39: Criminal Offenses

Chapter 14: Offenses Against Property

Part 1: Theft

TCA 39-14-154: Actions by home improvement services provider that constitute offense.

(a) For purposes of this section, unless the context otherwise requires:

(1) "Contract for home improvement services" means a contractual agreement, written or oral, between a person performing home improvement services and a residential owner, and includes all labor, services and materials to be furnished and performed under such agreement;

(2) "Home improvement services" means the repair, replacement, remodeling, alteration, conversion, modernization, improvement, or addition to any residential property, and includes but is not limited to, the repair, replacement, remodeling, alteration, conversion, modernization, improvement, or addition to driveways, swimming pools, porches, garages, landscaping, fences, fall-out shelters, and roofing;

(3) "Home improvement services provider" means any person or entity, whether or not licensed pursuant to title 62, chapter 6, who 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 home improvement services for a fee. "Home improvement services provider" specifically includes but is not limited to a "residential contractor" as defined in SC 62-6-102 when such contractor is performing home improvement services and a "home improvement contractor" as defined in SC 62-6-501;

(4) "Possession" means actual care, custody, control, or management of residential property, but shall not include occupancy of residential property through a lease or rental agreement;

(5) "Residential owner" means a person who has legal possession of residential real property, including any person authorized by such residential owner to act on the residential owner's behalf; and

(6) "Residential property" means the building structure where a person abides, lodges, resides or establishes a living accommodation, or where a residential owner intends to abide, lodge, reside or establish a living accommodation following the completion of home improvement services made pursuant to a contract for home improvement services, and includes the land on or adjacent to such building structure.

(b) It is an offense for a home improvement services provider with intent to defraud to:

(1) (A) Fail to refund amounts paid under a contract for home improvement services within ten (10) days of:

(i) The acceptance of a written request for a refund either hand delivered or mailed certified mail return receipt attached;

(ii) The refusal to accept the certified mail sent to the last known address of the home improvement services provider by the residential owner; or

(iii) The return of the certified mail to the residential owner indicating that the addressee is unknown at the address or a similar designation if the provider failed to provide to the residential owner or the United States postal service a correct current or forwarding address;

(B) A violation of subdivision (b)(1)(A) is an offense only if:

(i) No substantial portion of the contracted work has been performed at the time of the request;

(ii) More than ninety (90) days have elapsed since the starting date of the contract for home improvement services; and

(iii) A copy of the written request for a refund was sent by the residential owner to the consumer protection division of the office of the attorney general;

(2) Deviate from or disregard plans or specifications in any material respect that are contained in a contract for home improvement services. Such deviation includes, but is not limited to:

(A) The amount billed for the home improvement services is substantially greater than the amount quoted in the contract;

(B) The materials used in the project are of a substandard quality but the residential owner was charged for higher quality materials; or

(C) (i) The residential owner did not provide written consent for the home improvement services provider to deviate from or disregard plans or specifications in the contract; and

(ii) Such deviation or disregard caused substantial damage to the residential owner's property.

(c) (1) A violation of subsection (b) is punishable as theft pursuant to SC 39-14-105. "Value" for a violation of subsection (b), shall be determined by the monetary amount of the contract for home improvement services that is paid, minus the value of any work performed, plus the cost to repair any damage to the residential owner's property caused by the home improvement services provider.

(2) If a person is convicted of a violation of subsection (b), the court may order the person to make restitution to any residential owner that has suffered injury resulting from the crime. Vehicles used to commit this offense are subject to seizure and forfeiture under the same procedures used for forfeitures set out in chapter 11, part 7 of this title.

(3) All fines collected as a result of a violation of subsection (b) shall be allocated as follows:

(A) First to remaining unpaid court costs assessed in the case;

(B) Then to restitution ordered by the court pursuant to subdivision (c)(2); and

(C) Any remaining money shall be transmitted to the state board of licensing contractors for purposes of carrying out the provisions of SC 62-6-139.

(4) In addition such a violation 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, 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 such violation.

(d) Upon a conviction for a violation of this section, the court shall notify the state board of licensing contractors of the home improvement services provider's conviction. If the home improvement services provider is licensed by the board, the board shall revoke the home improvement services provider's license pursuant to SC 62-6-118.

(e) Prosecution under subsection (b) shall not bar prosecution under any other applicable criminal statute nor shall it bar the commencement of any applicable civil cause of actions, including but not limited to, violations of the Tennessee Consumer Protection Act of 1977, compiled in title 47, chapter 18, part 1 or title 62, chapter 6.

(f) The district attorney in conjunction with any law enforcement agency shall have the authority to investigate and to institute criminal proceedings for any violation of subsection (b) regardless of any actions taken or not taken by the board of licensing contractors.

History: Acts 2010, ch. 1055, SC 1; 2012, ch. 802, SC 1.