TITLE 14: HOUSING AND CONSTRUCTION

CHAPTER 5: CONSTRUCTION INDUSTRIES GENERAL PROVISIONS

PART 8: INVESTIGATIONS AND ENFORCEMENT

14.5.8.1 ISSUING AGENCY: The Construction Industries Division of the Regulation and Licensing Department.

[14.5.8.1 NMAC - N, 12-13-2014]

14.5.8.2 SCOPE: Discipline for all licensees, applicants, certificate holders and unlicensed contractors.

[14.5.8.2 NMAC - N, 12-13-2014]

14.5.8.3 STATUTORY AUTHORITY: Sections 60-13-23, 60-13-23.1, 60-13-24 and Subsection C of 60-13-27 NMSA 1978.

[14.5.8.3 NMAC - N, 12-13-2014]

14.5.8.4 DURATION: Permanent.

[14.5.8.4 NMAC - N, 12-13-2014]

14.5.8.5 EFFECTIVE DATE: December 13, 2014, unless a later date is cited at the end of a section.

[14.5.8.5 NMAC - N, 12-13-2014]

14.5.8.6 OBJECTIVE: To provide administrative procedures for the discipline of licensees, applicants, certificate holders and unlicensed contractors.

[14.5.8.6 NMAC - N, 12-13-2014]

14.5.8.7 DEFINITIONS:

A. Authority Having Jurisdiction (AHJ): means the entity with permitting authority in the political subdivision where the property is located, which may be the division, a municipality or a county.

B. Code: means the statewide construction codes adopted by the commission.

C. Code Bond: means the construction license bond required in Section 60-13-49 NMSA 1978, for correction of code violations certified by the division.

D. Completion: means the date of the issuance of a certificate of occupancy or the date of the final inspection by the governmental entity having jurisdiction over code enforcement.

E. Informal Hearing: means a hearing held pursuant to Subsection C of Section 60-13-27 NMSA 1978.

F. Formal Hearing: means a hearing held under the ULA, Section 60-1-1 through 60-1-33 NMSA 1978.

G. Notice of Contemplated Action (NCA): means the official notice to a licensee that the commission is seeking to take action against a licensee for alleged violations of the CILA or rules promulgated by the commission.

H. Prime contractor: means the licensed contractor who contracted with the property owner to oversee the construction project and act as the owner’s agent as defined in Subsection B of 14.6.6.8 and Subsection A of 14.6.6.9 NMAC.

I. Sub-contractor: means a licensed contractor who is hired by the prime contractor, regardless if the sub-contractor obtains its own permit or works under the permit obtained by the prime contractor.

J. Surety: means the insurance company authorized by the NM department of insurance to transact business in New Mexico and acts as the underwriter of a contractor’s code bond.

K. CVD: means a code violation determination report prepared by a division employee.

L. NOI: means a notice of investigation prepared by a division employee.

M. ULA: means the Uniform Licensing Act, Sections 60-1-1 through 60-1-33 NMSA 1978.

N. Gross incompetence or gross negligence: means, but shall not be limited to, a significant departure from the prevailing industry standard, manufacturer specifications or any provision of CILA, ULA or rule adopted by the commission.

[14.5.8.7 NMAC - N, 12-13-2014]

14.5.8.8 VIOLATIONS:

A. An action by a licensee that is contrary to any of the following provisions, the CILA, the Liquefied Petroleum Gas and Compressed Natural Gas Act, Sections 70-5-1 through 70-5-23 NMSA 1978, the Manufactured Housing Act, Sections 60-14-1 through 60-14-20, NMSA 1978, or any rule promulgated by the commission, may subject the licensee to disciplinary action.

(1) Gross incompetence or gross negligence.

(2) Failure to maintain financial responsibility.

(3) Failure to maintain worker compensation insurance.

(4) Performing, or holding one- self out as able to perform, professional services beyond the scope of one’s license and field or fields of competence.

(5) Contracting without displaying his/her full name as it appears on the license issued by the division.

(6) Advertising a classification or trade in which a contractor is not licensed by the division.

(7) Advertising a service in a false, fraudulent or misleading manner.

(8) The use of a false, fraudulent or deceptive statement in any document connected with construction bids, licensing, inspections or permitting.

(9) Fraud, deceit or misrepresentation in any application.

(10) Violation of any order of the commission.

(11) Cheating on an examination for licensure.

(12) Failure to cooperate in an investigation.

(13) Aiding and abetting unlicensed contracting.

(14) Contract or job abandonment activity as determined by a court of competent jurisdiction.

(15) Failure to meet and maintain requirements for crossover licensure for multidisciplinary registration, certificates or licenses.

(16) Failure to be in compliance with the Parental Responsibility Act.

B. If the commission or an informal hearing officer determines that a licensee violated any provision of this subsection, the commission or an informal hearing officer may: issue letter of reprimand, deny, revoke, suspend, or otherwise limit a license; assess an administrative penalty; require licensees to fulfill continuing education hours within limited time constraints; or any combination of the above.

[14.5.8.8 NMAC - N, 12-13-2014]

14.5.8.9 ADMINISTRATIVE INVESTIGATIONS AND ENFORCEMENT:

A. Complaints: Administrative disciplinary proceedings may be initiated by the filing of a complaint by any person, including members of the commission or division staff, against any licensee, registrant or certified holder. The division will assign an employee to investigate the alleged violations.

B. Notice of Investigations (NOI): A NOI shall be sent to the address on record according to the licensee’s file. The licensee is required to respond within 15 calendar days from the date the NOI was sent by the division and provide the information or documents requested by the commission or division. Failure to respond in writing and supply information or documentation requested may subject the licensee to disciplinary actions.

C. Investigative subpoenas: The division director or the commission is authorized to issue investigative subpoenas and to employ experts with regard to pending investigations. The recipient of an investigative subpoena is obligated to reply with the requested information no later than 30 calendar days after receipt of the subpoena unless otherwise specified in the subpoena. Failure to comply with the subpoena may subject a licensee or certificate holder to disciplinary action or be cause for the division or the commission to seek enforcement of the subpoena in a court of law.

[14.5.8.9 NMAC - N, 12-13-2014]

14.5.8.10 INFORMAL HEARING:

A. Requesting an informal hearing: Pursuant to the CILA, complaints may be resolved at the request of the complainant, the licensee or the commission through an informal hearing. Although a complainant is not a party to the matter, the complainant may request an informal hearing.

B. Acceptance of an informal hearing:

(1) The commission and licensee must agree to the hearing.

(2) The commission and licensee must agree that the decision of the hearing officer is final and not subject to review by the commission or a court of law.

(3) Written acceptance must be received by the division within 30 calendar days of approval of the informal hearing by the commission. Failure to provide written acceptance will result in the issuance of a NCA against the licensee or the qualifying party.

C. Notice:

(1) Upon receipt of a written acceptance of the informal hearing, the division shall issue a notice of informal hearing.

(2) The informal hearing will be set within 15 and 90 calendar days of the receipt of the written acceptance.

D. Venue: The informal hearing will be held at the department office in Albuquerque or Santa Fe. The licensee may request to appear telephonically or to have the informal hearing in the county in which the licensee resides by submitting such a request in writing within 15 calendar days of receipt of the notice of hearing.

E. Informal hearing procedures:

(1) The commission shall designate a hearing officer to preside over the informal hearing.

(2) The division employee presenting the case may also be the investigator assigned to the complaint and shall be allowed to testify.

(3) The hearing officer will rule on the admissibility of all evidence and testimony and those rulings shall be final and not subject to review.

(4) The hearing officer may ask questions of either party or the witnesses at any time during the hearing.

(5) The hearing officer may request a recess at any time during the proceedings to discuss the possibility of resolving the matter by agreement. The hearing officer will attempt to facilitate a binding resolution that is acceptable to both parties, however, if an agreement cannot be reached, the hearing officer’s decision will be final and not subject to the commission’s review or judicial review.

F. Final Decisions: The hearing officer will announce the terms of the agreement or the hearing officer’s final decision orally at the conclusion of the informal hearing. A written decision that includes all terms to be fulfilled as stated at the conclusion of the hearing shall be sent to the licensee and the division within 30 days. At the next regularly scheduled commission meeting, the division staff shall inform the commission of the final decisions for each informal hearing. The written decision shall state that the terms of the agreement or the hearing officer’s final decision is final and not subject to the commission’s review or judicial review pursuant to Subsection C of Section 60-13-27 NMSA 1978.

G. Disciplinary Authority: A hearing officer may, in the hearing officer’s discretion, asses any discipline, administrative penalty or combination thereof allowed under the ULA, CILA or rules promulgated under the CILA.

[14.5.8.10 NMAC - N, 12-13-2014]

14.5.8.11 FORMAL HEARING: Every licensee, certificate holder or applicant shall be afforded notice and the opportunity to be heard in accordance with the ULA before the commission may take any adverse action against the licensee, applicant, or certificate holder, or before an application may be denied.

[14.5.8.11NMAC - N, 12-13-2014]

14.5.8.12 UNLICENSED ACTIVITY: If the division does not criminally prosecute an individual suspected of unlicensed activity under Section 60-13-52 NMSA 1978, the commission may take administrative action under the ULA and seek an administrative penalty in the amount of $1,000.00 per violation.

[14.5.8.12 NMAC - N, 12-13-2014]

HISTORY of 14.5.8 NMAC: [RESERVED]