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November 22, 2005, 7:00 P.M.

Cowboy Contractors: Although the concept of licensing construction contractors has been considered on several occasions by our state legislature, recent attempts at passing a licensing statute have not met with success. I have heard several reasons why these bills have been unsuccessful, but the two main reasons that I regularly hear are that administration is difficult at a state level because there is currently no bureaucracy in place that can administer the licensing procedure and that there is no mechanism for enforcement.

The State of New Hampshire currently licenses plumbers, electricians, septic system installers, engineers and architects, to name a few. General and sub-contractors are not licensed, as they are in many states, including Massachusetts. While I accept that there will be added expense in the creation and administration of contractor licensing, and that enforcement of rules and regulations regarding good building practices may present some challenges, I feel compelled to argue in favor of licensing. I do arrive at this conclusion lightly, but I have come to realize that less competent, less honest competitors are harming the good, honest and competent contractors working across this state.

Much of my business is involved, in one way or another, with the construction industry. For many years the principal focus of that business was the negotiation and creation of residential and commercial contracts and the resolution of disputes relative to projects ranging from small residential to large commercial and industrial jobs. In the past several years, I have seen a disturbing trend in the industry, especially in the residential end of the industry, to matters involving truly bad building practices.

This problem has several facets. The lack of a comprehensive, uniform and enforceable residential building code has been one problem. The lack of any basic requirements or standards for operating as a builder or contractor is another. As of September 1, 2002, the International Building Code (IBC) became the new state building code, replacing the Building Officials and Code Administrators (BOCA) Code. The IBC replaced the BOCA code for all municipal and commercial construction commencing September 1, 2003, but the state legislature specifically declined to adopt a standard residential code at that time.

The state building code is a minimum code and municipalities are free to adopt any code or provision that is more strict than the IBC, however, if a town does not adopt a code, the IBC will apply to all construction codes in that town. In the case of a conflicting provision between the IBC and local codes, the more strict code will prevail. The statute which was enacted to change the code, RSA 155-A, specifically excludes the IBC single and two family codes from the legislation, so there is still no state building code relative to this type of construction.

Enforcement of the state building code lies with local code administrators. In the event that there is no local code administrator in a particular town, the State Fire Marshal is responsible for administration of the code.

Familiarity with local codes and consistency of enforcement are problems plaguing the industry. By far the larger and more problematic development, however, is the proliferation of unqualified builders. When I came into the building trades as an apprentice mason in 1977, I served a three-year apprenticeship, which included a classroom component in addition to my work, with journeyman masons. Before being turned loose as masons, we were trained in the fundamentals of our trade as well as aspects of all related trades. We learned layout, blueprint reading, drafting, estimating, carpentry, welding and basic contracting as prerequisites to being accepted as tradesmen. There is currently no requirement that “contractors” or “general contractors” demonstrate any familiarity with standard practices or codes before they are allowed to work for the general public. In fact, many general contractors or builders that we encounter today lack any experience in the trades at all. The result is that there are some poorly constructed, even dangerous structures being sold for top dollar to an unsuspecting public. This not only hurts the public, but it hurts those contractors who do have experience and skills, because their prices are often undercut by their less scrupulous counterparts.

So why licensing? Currently, there is no mechanism for regulating who can be a builder or who can be a contractor. Licensing would enable the licensing authority to set a minimum standard of knowledge and competence. With uniform state residential and commercial codes (I am told that the state legislature intends to adopt the IRC, or International Residential Code, and I strongly support that move), a baseline for competence, at least in terms of codes and standards can easily be established. Violations of licensing requirements or of acceptable building practices should carry reeducation requirements, fines and eventual loss of license. Working without a license should be prosecuted as a misdemeanor with restitution available to customers injured as a result of bad building practices. I suggest misdemeanor prosecution for unlicensed contractors because with a criminal conviction the restitution order, unlike a civil judgment, would not be dischargeable in bankruptcy.

Good and competent builders are not harmed by the licensing requirement. In fact, they are assured of a more level playing field in the competition for available work. Contractors who build to a high standard understand that good building may come at a premium, but the rewards can last a lifetime. Licensing is not a panacea, but something needs to be done to regulate the Wild West atmosphere that currently pervades the industry.

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Copyright 2005 Edward Philpot

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