HB 456 Needed To Protect Consumers From Unlicensed Contractors

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The 2019 New Mexico State Legislature in considering House Bill 456 proposing changes to the Construction Industries Licensing Act.

HB 456 is proposing to clarify statute of limitations and criminal penalties on violations and give limited law enforcement powers to Construction Industry Division inspectors.

NEW MEXICO CONSTRUCTION INDUSTRIES DIVISION

The New Mexico Construction Industries Division is one of the more important New Mexico agencies protecting consumers.

The Division oversee the entire construction industry in New Mexico and ensures that people are licensed contractors and that construction projects are done properly so as not to endanger the public health and safety.

The activities that are considered to be contracting in New Mexico are defined in the Construction Industries Licensing Act, NMSA 1978, Section 60-13-3, and includes general construction work, electrical, mechanical and plumbing and gas line work and remodeling and repair work to structures, including roofs.

http://www.rld.state.nm.us/construction/constructions-industries-overview.aspx

The General Building Bureau adopts and enforces building codes that provide structural strength, stability of structures, sanitation, light and ventilation, energy conservation, affordability and safety of life and property from fire and other hazards including weather and the environment.

The General Building Bureau of the Construction Industries Division adopts and enforces building codes, does inspections and investigates violators that who are not licensed contractors and files the criminal charges.

If a contractor is working without a license, the New Mexico Construction Industries Division may stop the construction project and file a criminal charge of unlicensed contracting in Metropolitan or Magistrate Court.

EXISTING PENALTIES UNDER CONSTRUCTION INDUSTRIES LICENSING ACT

Any one engaged in construction-related contracting and activities in New Mexico must be licensed and contracting without a license in New Mexico is against the law.

If convicted of construction code violations or not securing mandatory building permits, violators can lose their licenses or not permitted a construction license for a full year from date of conviction and face jail time.

Any person who acts in the capacity as a contractor without a contractor’s license and any person who holds himself out as a sales representative of a contractor who does not have a contractor’s license can also be found guilty of a misdemeanor.

Where the dollar value of the contracting work is $5,000 or LESS, upon conviction, the judge can sentence the violator to jail for 90 days or order the payment of a fine of not less than $300 nor more than five $500 or both jail time and a fine.

Where the dollar value of the contracting work EXCEEDS five $5,000 upon conviction the judge can sentence the violator to jail for a term of 6 months or order the payment of a fine of 10% of the dollar value of the contracting work, or to both jail time and a fine.

Any person who acts in the capacity as a journeyman within the meaning of the Construction Industries Licensing Act without holding a valid certificate of competence issued by the division is also guilty of a misdemeanor, and upon conviction the judge can sentence the person to jail for 90 days or to payment of a fine of not less than one hundred dollars ($100) nor more than three hundred dollars ($300), or to both.

(New Mexico Statutes, Chapter 60: Business Licenses Article 13: Construction Industries Licensing, 60-13-1 through 60-13-59, Section 60-13-52: Penalty; misdemeanor.)

COURT RULING AFFECTING ENFORCEMENT

A New Mexico Court of Appeal ruling created ambiguity as to the full misdemeanor status of the Construction Industries Licensing Act.

(State v Trevizo, 2011-NMCA-069, 150 N.M. 158, 257 P.3d 978.)

Under New Mexico Criminal Code, one, two, or three-year statute of limitations applies to petty misdemeanors and misdemeanors:

For a full misdemeanor, charges must be brought within two years from the time the crime was committed.

For a petty misdemeanor, within one year from the time the crime was committed

For any crime not contained in the Criminal Code or where a limitation is not otherwise provided for, within three years from the time the crime was committed, which applies to violations of the Construction Industry Licensing Act.

(NMSA 1978, Section 30-1-8 (2005) (amended 2009) of the Criminal Code.)

The Court of Appeals ruling affected the misdemeanor status of violating the Construction Industries Licensing Act when charges must be filed and the varying penalties under the act.

The Court of Appeals ruling resulted in reducing the amount of time to bring charges under the Construction Industries Act for violations from 3 years to 1 year, which severely hampers the divisions chances of helping home owners or other consumers injured by unlicensed contractors.

Major changes to the Construction Industries Act included in House Bill 456 are:

1. Providing and making it clear that doing construction work without a license as required by act is a misdemeanor and not a just petty misdemeanor.

2. Eliminates any ambiguity in the penalties by adjusting the imprisonment and fines to the appropriate amounts for a full misdemeanor and making the legislative intent clear to the courts.

3. Increases the dollar value of the contracting work to $10,000 or less or $10,000 or more and adjusts and increases the sentencing and fines.

4. Prohibit unlicensed contractors from filing mechanics liens against a property owner.

5. Prohibit and make it a misdemeanor for any contractor reporting an unlicensed contractor employee as an independent contractor.

6. Gives peace officer powers to construction industry investigators giving them the power to arrest and charge violators.

Current investigators whose principal duty is the investigation of criminal violations of the Construction Industries Licensing Act must be New Mexico Law Enforcement Academy certified.

You can read the full HB 456 bill here:

https://nmlegis.gov/Sessions/19%20Regular/bills/house/HB0456.pdf

COMMENTARY AND ANALYSIS

People working on construction projects without a valid contractor’s license is a chronic problem that needs to be curtailed and stopped.

Senior citizens are all too often taken advantage of by the nefarious and illegal actions of unlicensed contractors.

Shoddy roof repairs are a common complaint where senior citizens are scammed out of thousands of dollars.

Most of the work done by contractors who are not licensed takes a while before the defective workmanship becomes noticed or discovered.

A shoddy roof repair or replacement for example usually takes severe rain or snowfall before defective workmanship and material used become noticeable or discovered.

Depending on when a roof is installed or repaired, it could be over a year before the defective workmanship is detected.

Another example would be plumbing.

A defective install or repair to plumbing could result in a slow leak which could go undetected anywhere from several months to a year since most plumbing is covered up.

Home owners and consumers usually do not know when a permit and inspection is required.

Unlicensed contractors do not pull permits nor could they if they tried resulting in Construction Industry Inspectors not being aware of when work is being performed.

HB 456 will allow more time for investigation and officer prosecutions of cases, especially in helping consumers who have not reported unlicensed contracting prior to the one-year statute of limitations on petty misdemeanors.

HB 456 is legislation that will make necessary changes to the Construction Industries Licensing Act to ensure the protection of consumers and prevent people from being preyed upon by unlicensed contractors.

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About

Pete Dinelli was born and raised in Albuquerque, New Mexico. He is of Italian and Hispanic descent. He is a 1970 graduate of Del Norte High School, a 1974 graduate of Eastern New Mexico University with a Bachelor's Degree in Business Administration and a 1977 graduate of St. Mary's School of Law, San Antonio, Texas. Pete has a 40 year history of community involvement and service as an elected and appointed official and as a practicing attorney in Albuquerque. Pete and his wife Betty Case Dinelli have been married since 1984 and they have two adult sons, Mark, who is an attorney and George, who is an Emergency Medical Technician (EMT). Pete has been a licensed New Mexico attorney since 1978. Pete has over 27 years of municipal and state government service. Pete’s service to Albuquerque has been extensive. He has been an elected Albuquerque City Councilor, serving as Vice President. He has served as a Worker’s Compensation Judge with Statewide jurisdiction. Pete has been a prosecutor for 15 years and has served as a Bernalillo County Chief Deputy District Attorney, as an Assistant Attorney General and Assistant District Attorney and as a Deputy City Attorney. For eight years, Pete was employed with the City of Albuquerque both as a Deputy City Attorney and Chief Public Safety Officer overseeing the city departments of police, fire, 911 emergency call center and the emergency operations center. While with the City of Albuquerque Legal Department, Pete served as Director of the Safe City Strike Force and Interim Director of the 911 Emergency Operations Center. Pete’s community involvement includes being a past President of the Albuquerque Kiwanis Club, past President of the Our Lady of Fatima School Board, and Board of Directors of the Albuquerque Museum Foundation.