2018 New Mexico Statutes
Chapter 60 - Business Licenses
Article 13 - Construction Industries Licensing
Section 60-13-12 - Contractor's license required.

Universal Citation: NM Stat § 60-13-12 (2018)
60-13-12. Contractor's license required.

A. No person shall act as a contractor without a license issued by the division classified to cover the type of work to be undertaken.

B. No bid on a contract shall be submitted unless the contractor has a valid license issued by the division to bid and perform the type of work to be undertaken; provided this subsection shall not prohibit a licensed contractor from bidding or contracting work involving the use of two or more trades, crafts or classifications if the performance of the work in the trades, crafts or classifications other than the one in which he is licensed is incidental or supplemental to the performance of the work in the trades, crafts or classifications for which he is licensed; and further provided that work coming under the jurisdiction of the mechanical bureau or the electrical bureau of the division must be performed by a contractor licensed to perform that work.

C. Any contractor may bid on a New Mexico highway project involving the expenditure of federal funds prior to making application to the division for a license. The contractor, if he has not previously been issued a license, shall upon becoming the apparent successful bidder apply to the division for a license. The director shall issue a license to the contractor in accordance with the provisions of the Construction Industries Licensing Act [60-13-1 NMSA 1978].

History: 1953 Comp., § 67-35-15, enacted by Laws 1967, ch. 199, § 15; 1969, ch. 224, § 5; 1977, ch. 245, § 174; 1983, ch. 105, § 5; 1989, ch. 6, § 11.

ANNOTATIONS

Contractor must have a license. — An individual who qualifies as a contractor under the definition of "contractor" in the Construction Industries Licensing Act is required to have a contractor's license when performing the specific acts described in the Construction Industries Licensing Act, regardless of whether the individual can be classified as an employee of a licensed contractor under the common law control test. Reule Sun Corp. v. Valles, 2010-NMSC-004, 147 N.M. 512, 226 P.3d 611, rev'g 2008-NMCA-115, 144 N.M. 736, 191 P.3d 1197, overruling Latta v. Harvey, 1960-NMSC-046, 67 N.M. 72, 352 P.2d 649 and Campbell v. Smith, 1961-NMSC-059, 68 N.M. 373, 362 P.2d 523.

Common law control test does not apply. — The common law control test for determining whether an individual is an employee does not apply to determine whether an individual is required to have a license under the Construction Industries Licensing Act. An unlicensed contractor's classification as an employee of a licensed contractor under the common law control test does not exempt the unlicensed contractor from the licensing requirements of the Construction Industries Licensing Act. Reule Sun Corp. v. Valles, 2010-NMSC-004, 147 N.M. 512, 226 P.3d 611, rev'g 2008-NMCA-115, 144 N.M. 736, 191 P.3d 1197, overruling Latta v. Harvey, 1960-NMSC-046, 67 N.M. 72, 352 P.2d 649 and Campbell v. Smith, 1961-NMSC-059, 68 N.M. 373, 362 P.2d 523.

Construction work performed by an employee contractor. — Where a licensed general contractor employed an unlicensed individual to stucco defendants' home; the general contractor did not pay the individual a salary, but on a contract-to-contract basis; the general contractor did not withhold taxes from the individual's compensation; the individual had tax identification numbers and paid the individual's own taxes; and the individual performed the work under the complete direction and control of the general contractor, the individual was a contractor under the Construction Industries Licensing Act and was required to possess a contractor's license to perform the work. Reule Sun Corp. v. Valles, 2010-NMSC-004, 147 N.M. 512, 226 P.3d 611, rev'g 2008-NMCA-115, 144 N.M. 736, 191 P.3d 1197, overruling Latta v. Harvey, 1960-NMSC-046, 67 N.M. 72, 352 P.2d 649 and Campbell v. Smith, 1961-NMSC-059, 68 N.M. 373, 362 P.2d 523.

Purpose. — The purpose of the former Contractors' License Law was to require licensing of those engaged in the contracting business to protect the public from unqualified contractors. Cancienne, Inc. v. Southwest Cmty. Inns, Inc., 1969-NMSC-110, 80 N.M. 512, 458 P.2d 587.

Licensed contractors only. — Reading the Procurement Code, Section 13-1-28 NMSA 1978 et seq., and the Construction Industries Licensing Act, Chapter 60, Article 13 NMSA 1978, together, it is clear that the legislature intended (1) that public contracts should be awarded only to licensed contractors and (2) that purchasing authorities should be relieved from the necessity of making an independent investigation into the qualifications and fiscal responsibility of a contractor who is not licensed at the time of bidding. Thus, the doctrine of substantial compliance does not apply to the requirement of Section 60-13-12B NMSA 1978 that a contractor have a valid license when submitting a bid on a public contract. BC&L Pavement Servs., Inc. v. Higgins, 2002-NMCA-087, 132 N.M. 490, 51 P.3d 533.

Transfer of license between contractor and subcontractor prohibited. — This article requires both a contractor and subcontractor to be licensed and prohibits transferring a license or certificate of qualification to another. State v. Jenkins, 1989-NMCA-044, 108 N.M. 669, 777 P.2d 908.

Having an electrical contractor's license did not exempt party from requirements of the former Contractors' License Law. An action is barred under 67-16-14, 1953 Comp. (now repealed), because of the lack of a contractor's license. Chavas v. Esper, 1966-NMSC-169, 76 N.M. 666, 417 P.2d 802.

License required in partnership name. — Former Contractors' License Law (67-16-1, 1953 Comp. et seq.) (now repealed), and the rules and regulations issued pursuant thereto, compel partnerships required to be licensed to hold a license in the partnership name. Crumpacker v. Adams, 1967-NMSC-060, 77 N.M. 633, 426 P.2d 781.

The admission of a person as a partner with a licensed contractor required the issuance of a new contractor's license to the partnership under former law. Nickels v. Walker, 1964-NMSC-177, 74 N.M. 545, 395 P.2d 679.

Type of work to be covered by license. — No person shall engage in business of a contractor unless the construction industries commission (division) has issued him a license which covers the type of work to be undertaken. Peck v. Ives, 1972-NMSC-053, 84 N.M. 62, 499 P.2d 684.

Work done within ambit of party's license. — Defendant's contention that plaintiff's action was barred by 67-16-6 and 67-16-17 1953 Comp. (now repealed), for failure of plaintiff to have contractor's license to perform the work he did was without merit, as plaintiff had a contractor's license which authorized him to do excavating, trenching, welding, water supply, sewage, including disposal and gas lines and the work done involved the cutting and threading of steel braces and welding said braces to steel plates, which fell within that part of plaintiff's contractor's license which authorized plaintiff to contract welding work. Dunson Contractors v. Koury, 1966-NMSC-138, 76 N.M. 723, 418 P.2d 66.

Contractor when promise to mine and move copper ore. — A party who contracts to "perform certain mining work on copper siliceous ores" and to "pay for all labor, work, mining expenses, material, explosives and moving commercial copper ores to specified stockpile location" is a contractor within the terms of 67-16-3, 1953 Comp. (now repealed). Salter v. Kindom Uranium Corp., 1960-NMSC-040, 67 N.M. 34, 351 P.2d 375.

Employee, not independent contractor, when performance controlled. — Where plaintiff was hired by defendant for drilling purposes, and where defendant retained at all times right of control of performance of the work as well as right to direct manner in which the work would be done, the plaintiff was an employee, not an independent contractor and was not barred from recovery under 67-16-3 and 67-16-14, 1953 Comp. (now repealed), for failure to obtain a contractor's license. Latta v. Harvey, 1960-NMSC-046, 67 N.M. 72, 352 P.2d 649.

Agent not personally liable for principal. — This act does not alter the general rule that an agent is not liable on a contract the agent enters into on behalf of a disclosed principal, even if the principal does not possess a contractor's license and the agent does. Kreischer v. Armijo, 1994-NMCA-118, 118 N.M. 671, 884 P.2d 827.

License required maintenance of contract breach action. — Where the work performed was fabricating materials or supplies or using the same in the performance of contracting work and electrical installation, a contractor's license was required under former Contractors' License Law and therefore plaintiff could not maintain an action for breach of contract. Cancienne, Inc. v. Southwest Cmty. Inns, Inc., 1969-NMSC-110, 80 N.M. 512, 458 P.2d 587.

Establishment of necessity for license required before action barred. — Defendant, seeking to prohibit an unlicensed contractor from maintaining an action, was required to establish that plaintiff was required by 67-16-2, 1953 Comp. (now repealed), to be licensed. Crumpacker v. Adams, 1967-NMSC-060, 77 N.M. 633, 426 P.2d 781.

No quantum meruit recovery where license required. — One who has shown himself to be required to have contractor's license cannot recover under quantum meruit in absence of such license. Campbell v. Smith, 1961-NMSC-059, 68 N.M. 373, 362 P.2d 523, overruled on other grounds by Sundance Mech. & Util. Corp. v. Atlas, 1990-NMSC-031, 109 N.M. 683, 789 P.2d 1250.

Allegation of contractor's license treated as tried with parties' consent. — Where appellants made no objection to evidence of contractor's license and raised neither the jurisdiction nor the limitation question at trial, and requested no findings on either question, requirement of allegation of contractor's license was matter of public policy and did not, otherwise, bear any relation to the cause of action; and appellant cannot object to appellate court treating issue tried with consent of the parties as though it had been raised by pleadings. Daughtrey v. Carpenter, 1970-NMSC-151, 82 N.M. 173, 477 P.2d 807.

Evidence as to license. — Evidence of certain receipts and decals issued by licensing authority to plaintiff, along with plaintiff's own testimony that he was licensed, constitutes acceptable evidence, especially when it is joined with testimony from an official of the New Mexico construction industries commission (division), the agency which now licenses contractors, that plaintiff had been licensed at all pertinent times. Kennedy v. Lynch, 1973-NMSC-085, 85 N.M. 479, 513 P.2d 1261.

"Best evidence rule" not applicable to proof of license. — It is plaintiff's licensed status which must be proved and not contents of particular document; therefore, "best evidence rule" or Rule 1002, N.M.R. Evid. (now see Rule 11-1002), does not apply. Kennedy v. Lynch, 1973-NMSC-085, 85 N.M. 479, 513 P.2d 1261.

Same person shall not be designated as supervisor in more than one electrical contractor's license. 1961-62 Op. Att'y Gen. No. 62-77.

Use of unlicensed persons for plumbing and irrigating systems. — Under former law, the New Mexico school for the deaf could employ unlicensed persons for making installation of plumbing in the buildings of a dairy farm located in an unpopulated area; also, an irrigating system could be installed without regard to the licensing requirements of 67-22-2, 1953 Comp., and connections could be made to water tanks, troughs, etc., by licensed plumbers. 1959-60 Op. Att'y Gen. No. 59-61.

Municipality's licensing and regulating rights taken away. — Right of a municipality to both license and regulate resident and nonresident contractors has been taken away by the comprehensive nature of the Construction Industries Licensing Act except in certain minor respects. 1969 Op. Att'y Gen. No. 69-72.

Prior contractors', etc., licenses supplanted. — The Construction Industries Licensing Act provides for issuance of a contractor's license which supplants all prior contractors', plumbers' and electricians' licenses. 1969 Op. Att'y Gen. No. 69-72.

Requirements of electrical contractor's license under former law. — When a business, regardless of the nature of its organization (partnership, corporation, etc.) is formed with the intention of entering into the electrical contracting business, it should obtain an electrical contractor's license by written application stating the name of the business designated as holder and the qualified person named as supervisor. The supervisor must be the master electrician. 1961-62 Op. Att'y Gen. No. 62-77.

Persons, etc., contracting on percentage basis covered by former law. — The contractors' license board (now abolished) could license persons, firms, partnerships and corporations that were contractors on a percentage basis and otherwise were within the coverage of 67-16-2, 1953 Comp. (now repealed). Agents and employees of contractors needed no license, even though they were employed on a percentage basis. 1961-62 Op. Att'y Gen. No. 62-04.

Salesmen taking orders for remodeling on behalf of licensed building concerns were not required to be licensed by the contractors' license board (now abolished). 1961-62 Op. Att'y Gen. No. 62-04.

Special license not required for general contractor. — A general contractor for construction of homes and other buildings, but who was not specially licensed as a painter or decorator contractor, was not required by 67-16-17, 1953 Comp. (now repealed), to subcontract the painting and decorating, as his license as a general contractor enabled him to do the painting or hire help to do it for him. 1959-60 Op. Att'y Gen. No. 59-67.

Law reviews. — For article, "Constitutional Limitations on the Exercise of Judicial Functions by Administrative Agencies," see 7 Nat. Resources J. 599 (1972).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 13 Am. Jur. 2d Building and Construction Contracts §§ 130, 131; 51 Am. Jur. 2d Licenses and Permits §§ 4, 16; 58 Am. Jur. 2d Occupations, Trades and Professions §§ 63 to 75, 90 to 98, 129, 132, 133.

Requiring procurement of license by heating contractors, 33 A.L.R. 146.

Plumbers, provisions as to licensing, 36 A.L.R. 1342, 22 A.L.R.2d 816.

Municipal regulation of electricians and the installation of electrical work, 96 A.L.R. 1506.

Validity, construction and application of regulations of business of building or construction contractors, 118 A.L.R. 676.

Validity, construction and application of license regulations as to masons, plasterers, painters and paperhangers, 123 A.L.R. 471.

What constitutes plumbing or plumbing work within statute or ordinance requiring license for such work, 125 A.L.R. 718.

Validity of regulations as to plumbers and plumbing, 22 A.L.R.2d 816.

Failure of building and construction artisan or contractor to procure business or occupational license as affecting enforceability of contract or right to recover for work done - modern cases, 44 A.L.R.4th 271.

53 C.J.S. Licenses § 34.

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