2020 New Mexico Statutes
Chapter 60 - Business Licenses
Article 13 - Construction Industries Licensing
Section 60-13-3 - Definition; contractor.

Universal Citation: NM Stat § 60-13-3 (2020)

As used in the Construction Industries Licensing Act, "contractor":

A. means any person who undertakes, offers to undertake by bid or other means or purports to have the capacity to undertake, by himself or through others, contracting. Contracting includes constructing, altering, repairing, installing or demolishing any:

(1) road, highway, bridge, parking area or related project;

(2) building, stadium or other structure;

(3) airport, subway or similar facility;

(4) park, trail, bridle path, athletic field, golf course or similar facility;

(5) dam, reservoir, canal, ditch or similar facility;

(6) sewerage or water treatment facility, power generating plant, pump station, natural gas compressing station or similar facility;

(7) sewerage, water, gas or other pipeline;

(8) transmission line;

(9) radio, television or other tower;

(10) water, oil or other storage tank;

(11) shaft, tunnel or mining appurtenance;

(12) leveling or clearing land;

(13) excavating earth;

(14) air conditioning, conduit, heating or other similar mechanical works;

(15) electrical wiring, plumbing or plumbing fixture, consumers' gas piping, gas appliances or water conditioners; or

(16) similar work, structures or installations which are covered by applicable codes adopted under the provisions of the Construction Industries Licensing Act;

B. includes subcontractor and specialty contractor;

C. includes a construction manager who coordinates and manages the building process; who is a member of the construction team with the owner, architect, engineer and other consultants required for the building project; and who utilizes his skill and knowledge of general contracting to develop schedules, prepare project construction estimates, study labor conditions and advise concerning construction; and

D. does not include:

(1) any person who merely furnishes materials or supplies at the site without fabricating them into, or consuming them in the performance of, the work of a contractor;

(2) any person who drills, completes, tests, abandons or operates any petroleum, gas or water well; or services equipment and structures used in the production and handling of any product incident to the production of any petroleum, gas or water wells, excluding any person performing duties normally performed by electrical, mechanical or general contractors; or who performs geophysical or similar exploration for oil, gas or water;

(3) a public utility or rural electric cooperative that constructs, reconstructs, operates or maintains its plant or renders authorized service by the installation, alteration or repair of facilities, up to and including the meters, which facilities are an integral part of the operational system of the public utility or rural electric cooperative; provided that the construction of a building by a public utility or rural electric cooperative or the installation or repair of any consumer gas or electrical appliance not an integral part of the operational system makes a public utility or rural electric cooperative a contractor for that purpose;

(4) a utility department of any municipality or local public body rendering authorized service by the installation, alteration or repair of facilities, up to and including the meters, which facilities are an integral part of the operational system of the utility department of the municipality;

(5) any railroad company;

(6) a telephone or telegraph company or rural electric cooperative that installs, alters or repairs electrical equipment and devices for the operation of signals or the transmission of intelligence where that work is an integral part of the operation of a communication system owned and operated by a telephone or telegraph company or rural electric cooperative in rendering authorized service;

(7) a pipeline company that installs, alters or repairs electrical equipment and devices for the operation of signals or the transmission of intelligence where that service is an integral part of the operation of the communication system of that pipeline company and is not for hire or for the use of the general public, or any pipeline company which installs, alters or repairs plumbing fixtures or gas piping where the work is an integral part of installing and operating the system owned or operated by the pipeline company in rendering its authorized service;

(8) any mining company, gas company or oil company that installs, alters or repairs its facilities, including plumbing fixtures or gas piping, where the work is an integral part of the installing or operating of a system owned or operated by the mining company, gas company or oil company; provided the construction of a building by a mining company, a gas company or an oil company is required to be done in conformity with all other provisions of the Construction Industries Licensing Act and with orders, rules, regulations, standards and codes adopted pursuant to that act;

(9) a radio or television broadcaster who installs, alters or repairs electrical equipment used for radio or television broadcasting;

(10) an individual who, by himself or with the aid of others who are paid wages and who receive no other form of compensation, builds or makes installations, alterations or repairs in or to a single-family dwelling owned and occupied or to be occupied by him; provided that the installation, building, alteration or repair is required to be done in conformity with all other provisions of the Construction Industries Licensing Act and with the orders, rules, regulations, standards and codes adopted pursuant to that act;

(11) a person who acts on his own account to build or improve a single-family residence for his personal use, including the building or improvement of a free standing storage building located on that residential property; provided that the construction or improvement is required to be done in conformity with all other provisions of the Construction Industries Licensing Act and with the orders, rules, regulations, standards and codes adopted pursuant to that act; and provided further that he does not engage in commercial construction;

(12) a person who, by himself or with the aid of others who are paid wages and receive no other form of compensation, builds or makes installations, repairs or alterations in or to a building or other improvement on a farm or ranch owned, occupied or operated by him, or makes installations of electrical wiring that are not to be connected to electrical energy supplied from a power source outside the premises of the farm or ranch owned, occupied or operated by him; provided that the state codes and any local codes adopted pursuant to Subsection F of Section 60-13-44 NMSA 1978 shall not require any permits or inspections for such construction on a farm or ranch except for electrical wiring to be connected to a power source outside the premises;

(13) an individual who works only for wages;

(14) an individual who works on one undertaking or project at a time that, in the aggregate or singly, does not exceed seven thousand two hundred dollars ($7,200) compensation a year, the work being casual, minor or inconsequential, such as handyman repairs; provided that this exemption shall not apply to any undertaking or project pertaining to the installation, connection or repair of electrical wiring, plumbing or gas fitting as defined in Section 60-13-32 NMSA 1978 and provided:

(a) the work is not part of a larger or major operation undertaken by the same individual or different contractor;

(b) the individual does not advertise or maintain a sign, card or other device which would indicate to the public that he is qualified to engage in the business of contracting; and

(c) the individual files annually with the division, on a form prescribed by the division, a declaration substantially to the effect that he is not a contractor within the meaning of the Construction Industries Licensing Act, that the work he performs is casual, minor or inconsequential and will not include more than one undertaking or project at one time and that the total amount of such contracts, in the aggregate or singly, will not exceed seven thousand two hundred dollars ($7,200) compensation a year;

(15) any person, firm or corporation that installs fuel containers, appliances, furnaces and other appurtenant apparatus as an incident to its primary business of distributing liquefied petroleum fuel;

(16) a cable television or community antenna television company that constructs, installs, alters or repairs facilities, equipment, cables or lines for the provision of television service or the carriage and transmission of television or radio broadcast signals;

(17) any weatherization project not exceeding two thousand dollars ($2,000) that has been approved and is administered by a federal or state agency; or

(18) a person who performs work consisting of short-term depreciable improvements to commercial property to provide needed repairs and maintenance for items not covered by building codes adopted by the construction industry commission if the total amount paid the person for the work on a single undertaking, including materials, services and wages of those who work for him, does not exceed the sum of five thousand dollars ($5,000).

History: 1953 Comp., § 67-35-3, enacted by Laws 1978, ch. 66, § 1; 1979, ch. 46, § 1; 1979, ch. 49, § 1; 1986, ch. 107, § 1; 1987, ch. 283, § 1; 1989, ch. 6, § 4; 1997, ch. 181, § 2; 1997, ch. 235, § 1; 1999, ch. 130, § 1.

ANNOTATIONS

Repeals and reenactments. — Laws 1978, ch. 66, § 1, repealed former 67-35-3, 1953 Comp. (former 60-13-3 NMSA 1978), as amended by Laws 1977, ch. 377, § 1, relating to definition of "contractor," and enacted a new 67-35-3, 1953 Comp.

The 1999 amendment, effective June 18, 1999, added Paragraph D(18); deleted "but not limited to" preceding "constructing" in Subsection A, preceding "plumbing fixtures" in Paragraph D(8), and preceding "handyman repairs" in Paragraph D(14); and made minor stylistic changes throughout the section.

The 1997 amendments. — Laws 1997, ch. 181, § 2, amending this section effective July 1, 1997 by adding a new Paragraph D(17) relating to persons performing needed repairs or maintenance to commercial property when the total amount paid for a single undertaking does not exceed $5,000, was approved April 10, 1997. However, Laws 1997, ch. 235, § 1, amending this section by adding new Paragraph D(17) relating to weatherization projects not exceeding $2,000, but not giving effect to the changes made by the first 1997 amendment, was approved April 11, 1997. This section was set out as amended by Laws 1997, ch. 235, § 1. See 12-1-8 NMSA 1978.

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.

Former Contractors' License Law of 1939 was not unconstitutional as a denial of due process since the legislature could enact laws in the exercise of its police powers, provided only that the exercise was not so unreasonable as to amount to confiscation of property or a denial of the right to engage in a particular trade, occupation or profession. Kaiser v. Thomson, 1951-NMSC-037, 55 N.M. 270, 232 P.2d 142.

Filing requirement does not bar eligibility for exemption. — The filing requirement in this section is directory, not mandatory, and as such does not to constitute a bar to the plaintiff's eligibility for the intended exemption. Stokes v. Tatman, 1990-NMSC-113, 111 N.M. 188, 803 P.2d 673.

"Contractor" status requires control of installation. — The ordering and delivering of materials or the mere arranging for their installation does not bring suppliers of materials into the realm of the definition of "contractor" under subsection A where they are not, and their contracts do not place them, in control of the installation. Verchinski v. Klein, 1987-NMSC-003, 105 N.M. 336, 732 P.2d 863.

"Contractor" status requires control of employees. — Where an employee leasing contractor that provided construction workers to the general contractor and the general contractor supervised and controlled the workers on the construction site, the employee leasing contractor did not act in the capacity of a contractor. Eastland Fin. Servs. v. Mendoza, 2002-NMCA-035, 132 N.M. 24, 43 P.3d 375.

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 67-16-2, 1953 Comp. (now repealed). Salter v. Kindom Uranium Corp., 1960-NMSC-040, 67 N.M. 34, 351 P.2d 375.

Contractor when no hourly wage, time slips, or employee tax forms. — Defendant was not an employee of the person for whom he had contracted to construct a trailer park, and was therefore required to obtain a contractor's license, where he never received an hourly wage, did not submit time slips or employee tax forms, and the evidence was uncontroverted that the work performed fell within the requirements of Subsection A. Mascarenas v. Jaramillo, 1991-NMSC-014, 111 N.M. 410, 806 P.2d 59.

Contracts for "incidental" work exempted under former law. — Failure to reemploy the word "incidental" in the 1945 amendment did not leave the former Contractors' License Act applicable to contracts for work which was only "incidental" to the occupations or pursuits named as being exempted from the act. B. & R. Drilling Co. v. Gardner, 1951-NMSC-004, 55 N.M. 118, 227 P.2d 627.

Test as to independent contractor or employee. — The principal test to determine whether one is an independent contractor or an employee is whether the employer has any control over the manner in which the details of the work are to be accomplished. Mere suggestions by the employer or the "directing control essential to coordinate the several parts of a larger undertaking" does not affect the relationship. It is the right to control, not the exercise of it, that furnishes the test. 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.

Independent contractor for assessment work. — Where plaintiff, an expert miner, who was working his adjoining claims was hired to watch defendant's claim and to do defendant's assessment work to consist of 70 feet of tunnel for an agreed price per foot, the details of the work to be left entirely to plaintiff, plaintiff was acting as an independent contractor in the assessment work. 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.

Removal of structures included. — Although the removal of structures is not specifically included within the items named, the section provides that contracting includes the altering of buildings, and altering has some meaning other than constructing, repairing, installing or demolishing; otherwise, all of the words would not have been used in the section. Fleming v. Phelps-Dodge Corp., 1972-NMCA-060, 83 N.M. 715, 496 P.2d 1111.

Neither the asserted contract for removal of a structure from plaintiff's land nor the removal process itself involves building or improving the structures (Subsection D(11)), or building, installations, repairs or alterations on a farm or ranch owned, occupied or operated by plaintiff (Subsection D(12)). Therefore, these exclusions do not exclude the asserted contract of removal from the meaning of "constructing." Fleming v. Phelps-Dodge Corp., 1972-NMCA-060, 83 N.M. 715, 496 P.2d 1111.

No license required for contract to drill well. — A contract for drilling a well to supply water for agricultural purposes fell within the exceptions to which the former Contractors' License Act of 1939 did not apply. B. & R. Drilling Co. v. Gardner, 1951-NMSC-004, 55 N.M. 118, 227 P.2d 627.

No license requirement for cleaning activity. — Where construction work had been completed without objection and the only dispute centered around the amount of offset defendant should be allowed as costs for cleaning up the work site, the cleanup activity involved did not require a contractor's license according to the definitions of this section. Olivas v. Sibco, Inc., 1975-NMSC-027, 87 N.M. 488, 535 P.2d 1339.

License required in partnership's name. — Contractors' License Law, 67-16-2, 1953 Comp. (now repealed), and the rules and regulations issued pursuant thereto, compelled partnerships 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.

Necessary to establish that license required. — Defendant, seeking to invoke 67-16-14, 1953 Comp. (now repealed), prohibiting an unlicensed contractor from maintaining an action, must establish that plaintiff was in fact required to be licensed. Crumpacker v. Adams, 1967-NMSC-060, 77 N.M. 633, 426 P.2d 781.

Effect of knowledge of other party's lack of license. — Formerly the fact that defendants in an action to establish and foreclose mechanic's lien knew at the time they entered into contract with plaintiff that latter was not duly licensed did not estop them from asserting plaintiff's noncompliance with former licensing statute. Kaiser v. Thomson, 1951-NMSC-037, 55 N.M. 270, 232 P.2d 142.

Standing to attack constitutionality under former law. — Duly licensed contractors operating unmolested under the former act creating the license board (now abolished) were not in position to question constitutionality of the act where no proceeding was pending, contemplated or threatened by the board to revoke their licenses and no other action was contemplated by the board which would affect them adversely. Brockman v. Contractors Licensing Bd., 1944-NMSC-038, 48 N.M. 304, 150 P.2d 125.

Highway contractors are included within definition of term "contractor" as used in the former Contractors' License Law. 1961 Op. Att'y Gen. No. 61-69.

Hourly worker not necessarily exempt. — The fact that a person undertakes to do work for another at an hourly rate does not necessarily by that fact alone exempt him from the definition of "contractor" under former law. 1955 Op. Att'y Gen. No. 55-6332.

Construction for own use on own land not included. — Under former version of this section (67-16-2, 1953 Comp.), a person constructing billboards for his own use on his own land did not need to be licensed as a contractor, as such person did not "undertake" to construct, alter, repair, add to or improve anything within the meaning of that section. "Undertakes" as used in the statutory definition of "contractor," necessarily meant "undertakes with another," and did not include work done by a person alone for his own uses. 1966 Op. Att'y Gen. No. 66-24.

Bowling alley, related fixtures subject to regulation. — Bowling alleys and fixtures related thereto, as in the installation of a bar, are fabricated into a building under a performance contract and for a lump sum and are not considered to be personalty; therefore, the operation in question is subject to regulation under the former act. 1958 Op. Att'y Gen. No. 58-155.

Mere moving of completed structure is not included under laws applied to contractors' licensing. 1953 Op. Att'y Gen. No. 53-5653.

When completion and moving of house included. — In the event a house had been wholly constructed elsewhere and moved to the site, the person so moving and setting the house upon the site was not within the provisions of the Contractors' Licensing Law (now repealed). In the event the prefabrication took place in sections and the house or structure was completed on the site, then the persons completing it, if all the other provisions of the law were applicable were under the former law pertaining to the contractors' licensing board (now abolished). 1953 Op. Att'y Gen. No. 53-5653.

Sale of prefabricated structure not included. — In view of the rule requiring strict interpretation of licensing statutes, a person who sells prefabricated structures is in no way included in the terms and provisions of the former Contractors' Licensing Law, whether he sells the structure delivered on the building site or whether the structure is sold F.O.B. manufacturer's plant. 1953 Op. Att'y Gen. No. 53-5653.

Installation of turbine water well pump. — A person who installs a turbine water well pump need not obtain a contractor's license. 1988 Op. Att'y Gen. No. 88-28.

Prospect and contract miners not subject to act. — Generally speaking, the term "project" is not specifically applicable to prospect or development mining operations, but more recognizable as used in commercial or domestic realty terminology; accordingly, under former law, prospect and contract miners were not subject to this act. 1957 Op. Att'y Gen. No. 57-105.

Agency or political subdivision of state not covered under former law. — Under former 67-16-3, 1953 Comp. of the Contractors' License Law, an agency or political subdivision of the state was not required to have a contractor's license for any classification as set forth in the rules and regulations of that law. That section confined the necessity for securing licenses to "any person, firm, co-partnership, corporation, association or other organization, or any combination thereof." Neither the state, its agencies or political subdivisions were mentioned in this list of business entities. Furthermore, the state could not be included in any of such business entities because the state was a body politic and not an association, society or corporation. Thus, the contractors' license board (now abolished) had no authority to license a water or soil conservation district in New Mexico. 1966 Op. Att'y Gen. No. 66-48.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Who is a "contractor" within statutes requiring the licensing of, or imposing a license tax upon, a "contractor" without specifying the kinds of contractors involved, 19 A.L.R.3d 1407.

53 C.J.S. Licenses § 34.

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