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11/04/2011

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It is a right to contract under the Constitution.
if one signs a contract knowing they are going to deny payment to the other party, is that not premeditated fraud? the intent to do harm? or something like it.It might be hard to prove, although there is a signed CONTRACT.
A contract is a contract is a contract...contracts are what court cases are all about these days.
And what you put out you get back ten fold!
I do carry a license in the state of Oregon, although I didn't always have one and I'm sure most in this profession have done some unlicensed work here and there.
And yes I think it is good to have a license most of the time.
Peace

If the unlicensed contractor delivers the project and there is no substantial breach of contract, then I think they're entitled to their payments. The prime contractor should also be held somewhat accountable for not checking to see if they have an active license. But my personal take is that if the materials are purchased and the work is properly installed (w/ the necessary inspections), then the work should be paid for. However, I do believe that an unlicensed contractor should be fined by the CSLB if the work exceeds $500 in value.

What about those situations where no license is required. Texas does not require a license for Stained Glass contractors. All General contractors require liability insurance which protects them from actions that adversely affect them by their subs.

Personally, I have over 40 years experience, hold a Master of Fine Arts degree, am a Professional Affiliate of the American Institute of Architects' Dallas chapter, and have a broad list of references within the Architectural and Construction fields.

I feel it is incumbent upon the General Contractor to ascertain the qualifications of a sub before issuing a contract. His lack of due diligence should not excuse him from selecting someone who is not otherwise qualified.

It is also incumbent upon those of us who are seeking contracts to be fully qualified to do the work under consideration. The lack of qualifications to do the work rather than the lack of licensing should be the determinant in the refusal to pay.

There is good basis for the Court's decision in that the main purpose of licensing statutes is to protect the unsophisticated public from incompetent and unscrupulous contractors by forcing them into compliance with the law, for example, obtaining a minimum level of bonding, insurance, pass a criminal background check, and paying into Workers' Compensation to provide some level of protection to homewners and the contractors' employees.

I think the terms of the contract should matter. If someone takes on the project and signs the affadavit that they are in fact licensed and bonded - and they aren't - it's a breach of contract.

I could think this would push a greater share of the liability of the project onto the shoulders of the client. It would be interesting to hear from an insurance agency about what happens, liability - wise, when the contractor is not a Contractor.

But - on a large project with tons of sub contractors (or sub consultants) - the client should at least keep money flowing directly to the subs; and keep working to resolve the situation with the contractor. The breach of contract due to lack of licensure, if rectified quickly (renewal not paid on time) should just be a hick-up in the project.

It would be fairly easy to settle the issue by the states making regulatory law requiring all general contractors to certify that all subcontracting parties maintain currently valid licenses unless not required by law. Why would any general worth its salt not wish to establish the fact? It is an added responsibility, but one in line with the original and continuing intent of licensing. Trade contracting law is based, somewhat theoretically, on the premise that licensed contractors have demonstrated minimum qualifications for skills expected to protect the public. It is a reasonable notion to expect the general to confirm the minimum qualifications of its subs for a particular project.

I feel that the right and fair solution lies somewhere in the middle. If the sub was and is license eligible, he should be required to pay the licensing board for the whole period from the beginning of his work to the current period AND be required to pay the same amount to the Court, in addition to the regular court filing fee. If the sub is ineligible based upon competence or prior misconduct, the sub should not be able to sue.

Unqualified or rogue subs create an unwanted risk and hazard for the whole society, as well as the construction industry. If the sub can't even get legit after the fact, they should not have access to the legal system they abuse.

It's definitely a ground for no payment since there is no guarantee as to the quality of the work done.

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