46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO CONSTRUCTION INDUSTRIES; ABOLISHING THE CONSTRUCTION INDUSTRIES COMMISSION AND THE CONSTRUCTION INDUSTRIES DIVISION OF THE REGULATION AND LICENSING DEPARTMENT; PROVIDING THAT CONSTRUCTION, CONTRACTING AND CONTRACTORS SHALL BE REGULATED BY LOCAL GOVERNMENTS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 3-18-1 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-17-1, as amended) is amended to read:

"3-18-1. GENERAL POWERS--BODY POLITIC AND CORPORATE POWERS.--A municipality is a body politic and corporate under the name and form of government selected by its qualified electors. A municipality may:

A. sue or be sued;

B. enter into contracts or leases;

C. acquire and hold property, both real and personal;

D. have a common seal [which] that may be altered at pleasure;

E. exercise such other privileges that are incident to corporations of like character or degree that are not inconsistent with the laws of New Mexico;

F. protect generally the property of its municipality and its inhabitants;

G. preserve peace and order within the municipality; [and]

H. establish rates for services provided by municipal utilities and revenue producing projects, including amounts [which] and the governing body determines to be reasonable and consistent with amounts received by private enterprise in the operation of similar facilities; and

I. regulate all aspects of construction, contracting and contractors, including the examination and licensure of contractors, the establishment of codes and standards that govern contracting and construction and the inspection of construction."

Section 2. A new Section 4-37-1.1 NMSA 1978 is enacted to read:

"4-37-1.1. [NEW MATERIAL] REGULATION OF CONSTRUCTION INDUSTRIES.--A county may enact ordinances that regulate all aspects of construction, contracting and contractors, including the examination and licensure of contractors, the establishment of codes and standards that govern contracting and construction and the inspection of construction."

Section 3. Section 9-16-4 NMSA 1978 (being Laws 1983, Chapter 297, Section 20, as amended) is amended to read:

"9-16-4. DEPARTMENT ESTABLISHED.--There is created in the executive branch the "regulation and licensing department". The department shall not be a cabinet department. The department shall consist of but not be limited to [six] five divisions as follows:

A. the administrative services division;

[B. the construction industries division;

C.] B. the financial institutions division;

[D.] C. the securities division;

[E.] D. the manufactured housing division; and

[F.] E. the alcohol and gaming division."

Section 4. Section 9-16-8 NMSA 1978 (being Laws 1983, Chapter 297, Section 24, as amended) is amended to read:

"9-16-8. BUREAUS--CHIEFS.--The superintendent shall establish within each division such "bureaus" as he deems necessary to carry out the provisions of the Regulation and Licensing Department Act. He shall appoint a "chief" to be the administrative head of any such bureau. The positions so appointed may be exempted from the Personnel Act by action of the superintendent [except for the construction industries division trade bureaus created pursuant to Section 60-13-31 NMSA 1978. The chiefs of those bureaus shall be covered positions under the Personnel Act]."

Section 5. Section 9-16-14 NMSA 1978 (being Laws 1987, Chapter 298, Section 1, as amended) is amended to read:

"9-16-14. REGULATION AND LICENSING DEPARTMENT OPERATING FUND.--

A. There is established in the state treasury the "regulation and licensing department operating fund" to be administered by the department.

B. All money received by the administrative services division, [the construction industries division] the financial institutions division, the securities division and the manufactured housing division, other than money earmarked for revolving funds, shall be deposited with the state treasurer and held in a separate suspense account for each division. [In the seventy-sixth fiscal year, all money deposited in the suspense accounts shall be transferred monthly to the general fund until the sum of all money transferred to the general fund equals the total amount deposited and transferred to the general fund from those divisions in the seventy-fourth fiscal year. All additional money deposited in the divisions' suspense accounts during the seventy-sixth fiscal year shall be transferred to the regulation and licensing department operating fund on June 30, 1988.]

C. [In the seventy-seventh fiscal year and each fiscal year thereafter] On the last day of each month, the department shall transfer all money received during the month from the divisions' suspense accounts to the general fund."

Section 6. Section 13-4-36 NMSA 1978 (being Laws 1988, Chapter 18, Section 6, as amended) is amended to read:

"13-4-36. SUBSTITUTION OF SUBCONTRACTOR.--

A. [No] A contractor whose bid is accepted shall not substitute any person as subcontractor in place of the subcontractor listed in the original bid, except that the using agency shall consent to the substitution of another person as a subcontractor in the following circumstances:

(1) when the subcontractor listed in the bid, after having had a reasonable opportunity to do so, fails or refuses to execute a written contract, when such written contract, based upon the general terms, conditions, plans and specifications for the project involved and the terms of such subcontractor's written bid, is presented to him by the contractor;

(2) when the subcontractor listed in the original bid becomes bankrupt or insolvent prior to execution of a subcontract;

(3) when the using agency refuses to approve the subcontractor listed in the original bid, provided such approval has been reserved in the bidding documents;

(4) when the subcontractor listed in the original bid fails or refuses to perform his subcontract;

(5) when the contractor demonstrates to the using agency or its duly authorized officer that the name of the subcontractor was listed as the result of an inadvertent clerical error;

(6) when a bid alternate accepted by the using agency causes the listed subcontractor's bid not to be low;

(7) when the contractor can substantiate to the using agency that a listed subcontractor's bid is incomplete;

(8) when the listed subcontractor fails or refuses to meet the bond requirements of the contractor; or

(9) when it is determined that the listed subcontractor does not have a proper license to perform the work and the contractor has submitted the name of the subcontractor along with proof that the subcontractor bid work for which he was not licensed by the [construction industries division of the regulation and licensing department] appropriate municipal or county agency, if any, authorized by the governing body of the municipality or county to regulate construction and contractors within that municipality or county.

B. Prior to approval of the contractor's request for substitution of a subcontractor, the using agency shall give notice in writing to the listed subcontractor of the contractor's request to substitute and of the reasons for the request. The notice shall be served by certified or registered mail to the last known address of the subcontractor. The listed subcontractor who has been so notified has five working days within which to submit written objections to the substitution to the using agency. Failure to file written objections shall constitute the listed subcontractor's consent to the substitution. If written objections are filed, the using agency shall give at least five working days notice in writing to the listed subcontractor of a hearing by the using agency on the contractor's request for substitution.

C. [No] A contractor whose bid is accepted shall not permit any subcontract to be voluntarily assigned or transferred or allow it to be performed by anyone other than the original subcontractor listed in the original bid without the consent of the using agency.

D. [No] A contractor whose bid is accepted, other than in the performance of change orders causing changes or deviations from the original contract, shall not sublet or subcontract any portion of the work in excess of the listing threshold as to which his original bid did not designate a subcontractor unless:

(1) the contractor fails to receive a bid for a category of work. Under such circumstances, the contractor may subcontract. The contractor shall designate on the listing form that no bid was received; or

(2) the contractor fails to receive more than one bid for a category of work. Under such circumstances, the contractor may subcontract. The contractor shall state on the listing form that only one subcontractor's bid was received, together with the name of the subcontractor. This designation shall not occur more than one time on the subcontractor list."

Section 7. Section 22-24-6 NMSA 1978 (being Laws 1975, Chapter 235, Section 6, as amended) is amended to read:

"22-24-6. COUNCIL CREATED--ORGANIZATION--DUTIES.--

A. There is created the "public school capital outlay council", consisting of the:

(1) secretary of finance and administration or his designee;

(2) state superintendent or his designee;

(3) [the] governor or his designee;

(4) president of the New Mexico school boards association or his designee;

[(5) the director of the construction industries division of the regulation and licensing department or his designee;

(6) the] (5) president of the state board or his designee;

[(7) the] (6) director of the legislative education study committee or his designee;

[(8) the] (7) director of the legislative finance committee or his designee; and

[(9) the] (8) director of the legislative council service or his designee.

B. The council shall investigate all applications for assistance from the fund and shall certify the approved applications to the secretary of finance and administration for distribution of funds.

C. The council shall elect a chairman from among the members. The council shall meet at the call of the chairman.

D. The department of education shall account for all distributions and shall make annual reports to the legislative education study committee and to the legislative finance committee."

Section 8. Section 40-5A-3 NMSA 1978 (being Laws 1995, Chapter 25, Section 3, as amended) is amended to read:

"40-5A-3. DEFINITIONS.--As used in the Parental Responsibility Act:

A. "applicant" means an obligor who is applying for issuance of a license;

B. "board" means:

[(1) the construction industries commission, the construction industries division and the electrical bureau, mechanical bureau and general construction bureau of the construction industries division of the regulation and licensing department;

(2)] (1) the manufactured housing committee and manufactured housing division of the regulation and licensing department;

[(3)] (2) a board, commission or agency that administers a profession or occupation licensed pursuant to Chapter 61 NMSA 1978;

[(4)] (3) any other state agency to which the Uniform Licensing Act is applied by law;

[(5)] (4) a licensing board or other authority that issues a license, certificate, registration or permit to engage in a profession or occupation regulated in New Mexico;

[(6)] (5) the department of game and fish;

[(7)] (6) the motor vehicle division of the taxation and revenue department; or

[(8)] (7) the alcohol and gaming division of the regulation and licensing department;

C. "certified list" means a verified list that includes the names, social security numbers and last known addresses of obligors not in compliance;

D. "compliance" means that:

(1) an obligor is no more than thirty days in arrears in payment of amounts required to be paid pursuant to an outstanding judgment and order for support; and

(2) an obligor has, after receiving appropriate notice, complied with subpoenas or warrants relating to paternity or child support proceedings;

E. "department" means the human services department;

F. "judgment and order for support" means the judgment entered against an obligor by the district court or a tribal court in a case brought by the department pursuant to Title IV-D of the Social Security Act;

G. "license" means a liquor license or other license, certificate, registration or permit issued by a board that a person is required to have to engage in a profession or occupation in New Mexico; "license" includes a commercial driver's license, driver's license and recreational licenses, including hunting, fishing or trapping licenses;

H. "licensee" means an obligor to whom a license has been issued; and

I. "obligor" means the person who has been ordered to pay child or spousal support pursuant to a judgment and order for support."

Section 9. Section 52-1-66 NMSA 1978 (being Laws 1988, Chapter 119, Section 1, as amended) is amended to read:

"52-l-66. NONRESIDENT EMPLOYERS EMPLOYING WORKERS IN STATE--REQUIREMENT FOR INSURANCE--ENFORCEMENT.--[A.] Every employer not domiciled in the state who employs workers engaged in activities required to be licensed [under the Construction Industries Licensing Act] by a municipality or county that regulates construction and contractors and every other employer not domiciled in the state who employs three or more workers within the state, whether that employment is permanent, temporary or transitory and whether the workers are residents or nonresidents of the state, shall comply with the provisions of Section 52-l-4 NMSA l978 and, unless self-insured, shall obtain a [worker's] workers' compensation insurance policy, or an endorsement to an existing policy, issued in accordance with the provisions of Section 59A-l7-l0.l NMSA l978. An employer who does not comply with the foregoing requirement shall be barred from recovery by legal action for labor or materials furnished during any period of time in which he was not in compliance with the requirements of this section, and, if the noncomplying employment is in an activity for which the employer is licensed [under the provisions of the Construction Industries Licensing Act] by a municipality or county that regulates construction and contractors, the employer's license is subject to revocation or suspension for the violation.

[B. The construction industries division of the regulation and licensing department shall promulgate rules and regulations to insure compliance with Subsection A of this section.]"

Section 10. Section 52-3-57 NMSA 1978 (being Laws 1990 (2nd S.S.), Chapter 2, Section 43, as amended) is amended to read:

"52-3-57. NONRESIDENT EMPLOYERS EMPLOYING WORKERS IN STATE--REQUIREMENT FOR INSURANCE--ENFORCEMENT.--[A.] Every employer not domiciled in the state who employs workers engaged in activities required to be licensed [under the Construction Industries Licensing Act] by a municipality or county that regulates construction and contractors and every other employer not domiciled in the state who employs three or more workers within the state, whether that employment is permanent, temporary or transitory and whether the workers are residents or nonresidents of the state, shall comply with the provisions of Section 52-3-9 NMSA l978 and, unless self-insured, shall obtain an occupational disease disablement compensation insurance policy or an endorsement to an existing policy, issued in accordance with the provisions of Section 59A-l7-l0.l NMSA l978. An employer who does not comply with the foregoing requirement shall be barred from recovery by legal action for labor or materials furnished during any period of time in which he was not in compliance with the requirements of this section and, if the noncomplying employment is in an activity for which the employer is licensed [under the provisions of the Construction Industries Licensing Act] by a municipality or county that regulates construction and contractors, the employer's license is subject to revocation or suspension for the violation.

B. [The construction industries division of the regulation and licensing department, or a local government that is carrying out those duties] A municipality or county that regulates construction and contractors shall not issue any permit required for a contractor to undertake a construction contract if that contract is for an amount in excess of one hundred thousand dollars ($l00,000) unless the contractor has filed with the [division] municipality or county proof of compliance with Subsection A of this section."

Section 11. Section 61-1-2 NMSA 1978 (being Laws 1957, Chapter 247, Section 2, as amended) is amended to read:

"61-1-2. DEFINITIONS.--As used in the Uniform Licensing Act:

A. "board" means:

[(1) the construction industries commission, the construction industries division and the electrical bureau, mechanical bureau and general construction bureau of the construction industries division of the regulation and licensing department;

(2)] (1) the manufactured housing committee and manufactured housing division of the regulation and licensing department;

[(3)] (2) a board, commission or agency that administers a profession or occupation licensed pursuant to Chapter 61 NMSA 1978; and

[(4)] (3) any other state agency to which the Uniform Licensing Act is applied by law;

B. "applicant" means a person who has applied for a license;

C. "license" means a certificate, permit or other authorization to engage in each of the professions and occupations regulated by the boards enumerated in Subsection A of this section;

D. "revoke a license" means to prohibit the conduct authorized by the license; and

E. "suspend a license" means to prohibit, for a stated period of time, the conduct authorized by the license. "Suspend a license" also means to allow, for a stated period of time, the conduct authorized by the license, subject to conditions that are reasonably related to the grounds for suspension [and

F. "emergency" includes any man-made or natural disaster causing or threatening widespread physical or economic harm that is beyond local control and requires the resources of the state]."

Section 12. Section 61-15-9 NMSA 1978 (being Laws 1931, Chapter 155, Section 8, as amended by Laws 1999, Chapter 263, Section 7 and by Laws 1999, Chapter 272, Section 29) is amended to read:

"61-15-9. PROJECT EXEMPTIONS.--

A. The state and its political subdivisions are not exempt from the requirements of the Architectural Act.

B. A person who is not an architect may prepare building plans and specifications, unless the building plans and specifications involve public safety or health, but the work shall be done only on:

(1) single-family dwellings not more than two stories in height;

(2) multiple dwellings not more than two stories in height containing not more than four dwelling units of wood-frame construction; provided, this paragraph shall not be construed to allow a person who is not registered under the Architectural Act to design multiple clusters of up to four dwelling units each to form apartment or condominium complexes where the total exceeds four dwelling units on any lawfully divided lot;

(3) garages or other structures not more than two stories in height [which] that are appurtenant to buildings described in Paragraphs (1) and (2) of this subsection; or

(4) nonresidential buildings, as defined in the uniform building code, unless the building code official having jurisdiction has found that the submission of plans, drawings, specifications or calculations prepared and designed by an architect or engineer licensed by the state is necessary to obtain compliance with minimum standards governing the preparation of building plans and specifications adopted by [the construction industries division of the regulation and licensing department. The construction industries division shall] a municipality or county. A municipality or county may set, by [regulation] rule, minimum standards for preparation of building plans and specifications pursuant to this paragraph.

C. Nothing in the Architectural Act shall require the state or a political subdivision of the state to secure the services of an architect or engineer for a public work project that consists of repair, replacement or remodeling if the alteration does not affect structural or life safety features of a building and does not require the issuance of a building permit under any applicable code.

D. A New Mexico registered professional engineer who has complied with all the laws of New Mexico relating to the practice of engineering has a right to engage in the incidental practice, as defined by rule, of activities properly classified as architectural services; provided that the engineer does not hold himself out to be an architect or as performing architectural services; and further provided that the engineer performs only that part of the work for which the engineer is professionally qualified and uses qualified professional engineers, architects or others for those portions of the work in which the contracting professional engineer is not qualified. The engineer shall assume all responsibility for compliance with all laws, codes, rules and ordinances of the state or its political subdivisions pertaining to documents bearing an engineer's professional seal."

Section 13. Section 70-5-1 NMSA 1978 (being Laws 1947, Chapter 214, Section 1, as amended) is amended to read:

"70-5-1. DEFINITIONS.--As used in the LPG and CNG Act:

A. "liquefied petroleum gases", "LPG" [and] or "LP gas" means any material that is composed predominantly of any of the following hydrocarbons or mixtures of them: propane, propylene, butanes (normal butane or iso-butane) and butylenes;

B. "compressed natural gases" [and] or "CNG" means mixtures of hydrocarbon gases and vapors consisting principally of methane in gaseous form [which] that has been compressed for vehicular fuel;

C. "product" or "products" of liquefied petroleum gases or compressed natural gases are considered to be liquefied petroleum gases or compressed natural gases respectively;

D. "qualified instructor" means an employee who has passed the required examination and performed for at least one year the work being taught;

E. "inspector" means a person hired by the bureau to enforce under administrative direction the laws and safety rules and regulations of the LP gas industry and the use of CNG in motor vehicles;

F. "division" means the [construction industries division of the regulation and licensing] oil conservation division of the energy, minerals and natural resources department;

G. "bureau" means [the liquefied petroleum and compressed gas bureau of] the division; and

H. "commission" means the [construction industries] oil conservation commission."

Section 14. Section 74-12-8 NMSA 1978 (being Laws 1999, Chapter 197, Section 8, as amended) is amended to read:

"74-12-8. [CONSTRUCTION INDUSTRIES DIVISION] DEPARTMENT OF ENVIRONMENT--DUTIES.--The [construction industries division of the regulation and licensing] department of environment shall review the outdoor lighting provisions in the uniform building codes used in New Mexico and make recommendations for appropriate changes to comply with the provisions of the Night Sky Protection Act and shall permit and inspect to the standards set forth in the Night Sky Protection Act [all construction of and on state-owned buildings that is subject to permit and inspection under the Construction Industries Licensing Act]."

Section 15. [NEW MATERIAL] STATUTORY REFERENCES.--Unless the context requires otherwise, all references in the NMSA 1978 to the construction industries commission, the construction industries division of the regulation and licensing department, the director of the construction industries division or any trade bureau within the construction industries division mean the municipal or county agency authorized by the governing body of the municipality or county to regulate construction and contractors within that municipality or county.

Section 16. TEMPORARY PROVISION--CONTINUATION OF LICENSES AND CONSTRUCTION CODES.--

A. A person who, on the effective date of this act, is engaged in an occupation, trade or activity regulated by the Construction Industries Licensing Act, pursuant to a valid license authorizing the occupation, trade or activity, may continue the occupation, trade or activity, and the license shall continue in effect until the expiration date.

B. A code and minimum standard related to the construction, alteration, installation or repair of a private or public building, or installation on public or private premises, in effect on the effective date of this act shall continue in effect until a municipal or county agency with such authority amends or revises those codes and minimum standards.

Section 17. TEMPORARY PROVISION--TRANSFER--DISTRIBUTION.--On the effective date of this act:

A. all appropriations, money, records, property, equipment and supplies of the construction industries commission and the construction industries division of the regulation and licensing department are transferred to the local government division of the department of finance and administration;

B. all contracts, grants and agreements of the regulation and licensing department relating to the construction industries division are transferred to the local government division of the department of finance and administration; and

C. the local government division of the department of finance and administration shall allocate all property transferred pursuant to Subsections A and B of this section to municipalities and counties for the purpose of regulating construction activities and contractors.

Section 18. REPEAL.--Sections 9-16-12, 60-13-1 through 60-13-3, 60-13-6 through 60-13-13, 60-13-13.2 through 60-13-16, 60-13-18 through 60-13-21, 60-13-23 through 60-13-33, 60-13-36, 60-13-38, 60-13-39, 60-13-41 through 60-13-47, 60-13-48.1 through 60-13-49, 60-13-51 through 60-13-55 and 60-13-57 through 60-13-59 NMSA 1978 (being Laws 1983, Chapter 297, Section 28, Laws 1967, Chapter 199, Section 1, Laws 1967, Chapter 199, Section 4, Laws 1967, Chapter 199, Section 2, Laws 1978, Chapter 66, Section 1, Laws 1977, Chapter 245, Sections 168 and 169, Laws 1967, Chapter 199, Section 12, Laws 1997, Chapter 181, Section 9, Laws 1978, Chapter 73, Section 1, Laws 1975, Chapter 14, Section 3, Laws 1981, Chapter 245, Section 1, Laws 1967, Chapter 199, Sections 14 through 16, Laws 1983, Chapter 105, Section 6, Laws 1967, Chapter 199, Section 17, Laws 1977, Chapter 245, Section 177, Laws 1967, Chapter 199, Sections 18 and 20, Laws 1978, Chapter 78, Section 1, Laws 1967, Chapter 199, Sections 22, 24 and 26, Laws 1987, Chapter 283, Section 6, Laws 1967, Chapter 199, Sections 27 through 36, 39, 41, 42 and 49 through 55, Laws 1983, Chapter 105, Section 22, Laws 1967, Chapter 199, Section 57, Laws 1971, Chapter 233, Section 1, Laws 1977, Chapter 377, Section 6, Laws 1967, Chapter 199, Sections 60 through 62, Laws 1973, Chapter 229, Section 5, Laws 1978, Chapter 194, Section 1 and Laws 1987, Chapter 209, Section 1, as amended) are repealed.

Section 19. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2003.