Any license issued by the division shall be revoked or suspended by the commission for any of the following causes:
A. if the licensee or qualifying party of the licensee willfully or by reason of incompetence violates any provision of the Construction Industries Licensing Act or any rule or regulation adopted pursuant to that act by the division;
B. knowingly contracting or performing a service beyond the scope of the license;
C. misrepresentation of a material fact by the applicant in obtaining a license;
D. failure to maintain proof of responsibility as required by the Construction Industries Licensing Act;
E. unjustified abandonment of any contract as determined by a court of competent jurisdiction;
F. conversion of funds or property received for prosecution or completion of a specific contract or for a specified purpose in the prosecution or completion of any contract, obligation or purpose, as determined by a court of competent jurisdiction;
G. departure from or disregard of plans or specifications that result in code violations;
H. willful or fraudulent commission of any act by the licensee as a contractor in consequence of which another is substantially injured, as determined by a court of competent jurisdiction;
I. failure to maintain workers' compensation insurance as required by the Workers' Compensation Act [Chapter 52, Article 1 NMSA 1978];
J. aiding, abetting, combining or conspiring with a person to evade or violate the provisions of the Construction Industries Licensing Act by allowing a contractor's license to be used by an unlicensed person, or acting as agent, partner, associate or otherwise in connection with an unlicensed person, with the intent to evade the provisions of the Construction Industries Licensing Act; or
K. acting in the capacity of a licensee under any other name than is set forth upon the license.
History: 1953 Comp., § 67-35-26, enacted by Laws 1967, ch. 199, § 26; 1977, ch. 245, § 185; 1989, ch. 6, § 21; 1993, ch. 193, § 13.
ANNOTATIONSThe 1993 amendment, effective June 18, 1993, made a stylistic change in Subsection H, inserted present Subsection I, and redesignated the remaining subsections accordingly.
"Conversion." — Section 60-13-23F NMSA 1978 creates a technical trust within the meaning of 11 U.S.C. § 523(a)(4), and that for purposes of the New Mexico statute, "conversion," like "diversion," means the failure by the contractor who is entrusted with funds to be used for a specific project to use the funds for their intended purpose. Crossingham Trust v. Baines (In re Baines), 337 B.R. 392 (Bankr. D.N.M. 2006).
Notice of contemplated action sufficient. — The notice of contemplated action in this case was sufficient to provide the licensee with notice, even though it did not state that the qualifying party certificate was in jeopardy; the licensee knew the general nature of the proceedings against him and that is all that notice pleading requires. Further, the licensee waived the lack of notice issue by appearing at the administrative hearing and defending on the merits. Oden v. State, Regulation & Licensing Dep't, 1996-NMSC-022, 121 N.M. 670, 916 P.2d 1337.
Contractor's fiduciary capacity imposed by law binding on him. — Fiduciary capacity of contractor who was advanced money pursuant to construction contracts was imposed by law, rather than implied by law, and existed independent of any express understanding he had with the owner governing the same obligation. Since obtaining state license by contractor is prerequisite to entering construction industry in New Mexico, obligation and duties imposed under this section were binding upon contractor prior to any dealings he had with the owner, and a bankruptcy court's finding that the contractor was acting in a fiduciary capacity within the meaning of federal bankruptcy law, is not clearly erroneous. In re Romero, 535 F.2d 618 (10th Cir. 1976).
This section imposes fiduciary duty upon contractors who have been advanced money pursuant to construction contracts. In re Romero, 535 F.2d 618 (10th Cir. 1976).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 51 Am. Jur. 2d Licenses and Permits §§ 59 to 62; 58 Am. Jur. 2d Occupations, Trades and Professions §§ 8, 9.
Stay, pending review, of judgment or order revoking or suspending a professional, trade or occupational license, 166 A.L.R. 575.
Bias of members of license revocation board, 97 A.L.R.2d 1210.
53 C.J.S. Licenses §§ 50 to 53.