I questioned whether to even write this post.
Because, of course, YOU would never find yourself hightailing it out of town with the California Contractor’s State License Board (“CSLB”) sniffing down your tail pipes.
Then again, mistaken identities occur all the time. So, here’s what you need to know if the CSLB mistakes you for one of “those” contractors.
What violations are subject to CSLB enforcement actions?
The CSLB can take enforcement actions based on any one of numerous violations set forth under the California Business and Professions Code (“B&P Code”), including:
- B&P Code §7107: Abandonment of a construction project or operation without legal excuse.
- B&P Code §7108: Diversion or misapplication of funds or property received for prosecution or completion of a construction project or operation.
- B&P Code §7108.5: Failure to pay a subcontractor not later than 7 days after receipt of each progress payment, unless otherwise agreed to in writing or in the absence of a good faith dispute over the amount due.
- B&P Code §7108.6: Failure to pay transportation charged submitted by a dump truck carrier, unless otherwise agreed to in writing or in the absence of a good faith dispute over the charges claimed.
- B&P Code §7109: Willful departure from or disregard of accepted trade standards or plans and specifications.
- B&P Code §7109.5: Violation of a safety provision under the California Labor Code (Labor Code section 6300 et seq.) resulting in death or serious injury to an employee.
- B&P Code §7110: Willful or deliberate disregard of building, safety, labor, workers compensation, unemployment, the Subletting and Subcontracting Fair Practices Act, or violation of the California Health and Safety Code or California Water Code relating to digging, boring, or drilling of water wells.
- B&P Code §7110.1: Requiring a release from an unpaid laborer in violation of the California Labor Code (Labor Code section 206.5).
- B&P Code §7110.5: Being found by the California Labor Commissioner to have willful or deliberately violated the Labor Code.
- B&P Code §7111: Failure to make and keep records showing all contracts, documents, records, receipts and disbursements for a period of 5 years after completion of a construction project or operation.
- B&P Code §7111.1: Failure or refusal to respond to a written request by the CSLB to cooperate in the investigation of a complaint against the licensee.
- B&P Code §§7112 and 7112.1: Omitting or misrepresenting a material fact when obtaining or renewing a license or adding a classification to an existing license.
- B&P Code §7113: Failing to complete a construction project or operation for the price stated in the contract or in any modification to the contract.
- B&P Code §7113.5: Avoiding or settling of an obligation for less than the full amount through: (a) composition, arrangement, or reorganization with creditors under state law; (b) composition, arrangement, or reorganization with creditors under any agreement or understanding; (c) receivership; (d) assignment for the benefit of creditors; (e) trusteeship; or (f) dissolution, unless discharged or settled in bankruptcy under federal law.
- B&P Code §7114: Aiding or abetting an unlicensed person with an intent to evade the License Law.
- B&P Code §7114.1: Signing a falsified certificate of experience or certifying false or misleading experience.
- B&P Code §7114.2: Displaying a canceled, revoked, suspended, or fraudulently altered license, using a fictitious license or document simulating a license, lending a license to another person, or knowingly permitting the unlawful use of a license.
- B&P Code §7115: Failure to comply with the License Law or engaging in collusion under California Public Contracts Code section 7106.
- B&P Code §7116: Willfully or fraudulently injuring another.
- B&P Code §7116.5: Engaging in conduct that subverts or attempts to subvert an investigation by the CSLB.
- B&P Code §7117: Acting in the capacity of a contractor under a license that is not his or hers or with personnel not identified under the license.
- B&P Code §7117.5: Acting in the capacity of a contractor under an inactive, suspended, or expired license.
- B&P Code §7117.6: Acting in the capacity of a contractor in a classification other than a classification currently held.
- B&P Code §7118: Entering into a contract with an unlicensed contractor.
- B&P Code §7118.4: Failure, by a contractor who has made an inspection to determine the presence of asbestos, to disclose orally and in writing that there is an ownership or financial relationship with a contractor performing corrective work.
- B&P Code §7118.5: Knowingly or negligently entering into a contract with a person who is not certified to engage in asbestos-related work.
- B&P Code §7118.6: Knowingly or negligently entering into a contract with a person who is not certified to engage in hazardous waste remediation.
- B&P Code §7119: Willful failure or refusal to to diligently prosecute a construction project or operation without legal excuse.
- B&P Code §7120: Willful or deliberate failure to pay money when due for materials or services rendered or false denial of any amount due or the validity of a claim with intent to secure a discount or delay.
- B&P Code §7121: Employing or associating as an officer, director, partner, manager, qualifier or one of the personnel of record of a licensee, a person whose license was previously denied, suspended, or revoked, or who had knowledge of or participate in acts of an organization which had its license previously denied, suspended, or revoked.
- B&P Code §7121.5: Employing or associating as an officer, director, partner, manager, or qualifier, a qualifier of an organization which has had its license revoked or suspended, regardless of whether he or she had knowledge of or participated in any acts of the organization which led to its license being revoked or suspended.
- B&P Code §7123: Being convicted of a crime substantially related to the qualifications, functions and duties of a contractor.
- B&P Code §7123.5: Overpricing work following an emergency or major disaster.
What happens when a complaint is filed or enforcement action initiated against my license?
The CSLB may initiate enforcement action on its own. However, more typically, a complaint is filed against a license. The License Law states that “any person” may file a complaint against a license. Usually, however, a complaint is filed by an owner or another contractor, subcontractor, material supplier or employee.
Complaints based on patent defects must be filed within 4 years after the act or omission. Complaints based on latent defects must be filed within 10 years after the act or omission. And complaints based on misrepresentations of material facts, or based on criminal conduct, must be filed within 2 years of discovery.
When a complaint is filed it is processed at the CSLB Intake and Mediation Center nearest the location where the alleged violation occurred. If the complaint is found to fall within the CSLB’s jurisdiction the CSLB will send confirmation of receipt of the complaint to the complainant and a notice to the contractor.
- Notice of Possible Violation: The notice to the contractor will usually request information as to whether a settlement has been reached, whether a settlement was offered but not accepted, whether the contractor contends that no violation exists, or if there is further information the contractor would like to share with the CSLB.
- Investigation: If a complaint is not resolved, a CSLB consumer services representative (CSR) will contact the complainant and the contractor to request additional information and documentation and attempt to mediate the dispute. If the CSR determines that further investigation is necessary, he or she can assign the case to an enforcement representative (ER) who will conduct an investigation by requesting further information and documents, and conducting interviews, to determine whether there is clear and convincing evidence of a violation of the License Law.
- CSLB-Sponsored Arbitration: In certain cases, the CSLB can refer the parties to the CSLB-sponsored arbitration program. The CSLB-sponsored arbitration program is only available if: (a) the dispute involves damages greater than $12,500 but less than $50,000; (b) the contractor has a license in good standing; (c) the contractor does not have a history of repeated or similar violations; (d) the contractor does not currently have a disciplinary action pending against him or her; and (e) the parties have not previously agreed to arbitrate or are willing to waive a contractual agreement to arbitrate. The CSLB-sponsored arbitration program is voluntary, unless the damages are equal to or below $12,500, in which case arbitration can be mandated. If the parties participate in the CSLB-sponsored arbitration the arbitrator’s decision is binding.
- CSLB Enforcement Action: Once an investigation is concluded the CSLB may take one or more of the following actions: (a) issue a warning letter; (b) issue a citation; (c) file an accusation; or (d) close the complaint because the parties’ settled, for lack of evidence, or because it found no violation. In rare instances, the CSLB may seek injunctive relief with the courts or refer the matter to a local prosecutor for the filing of criminal charges.
What is a warning letter?
If a violation is found but the contractor’s actions are not egregious and the contractor’s history does not reflect a patter of violations the CSLB may just send a warning letter to the contractor. A warning letter remains a matter of record and could support more serious action against a contractor if further violations occur.
What is a citation?
If a contractor is found to have violated the License Law, the CSLB may issue a citation imposing a civil penalty payable to the CSLB as well as an order of restitution requiring the contractor to either correct deficiencies and/or pay for the damages of the complainant. Civil penalties on a single construction project, no matter the number of violations, cannot exceed $5,000. However, if a contractor is found to have contracted with an unlicensed contractor or have aided and abetted an unlicensed contractor a civil penalty of up to $15,000 may be assessed.
A contractor may appeal a citation by giving notice to the CSLB within 15 days of service of the citation by the CSLB. If a contractor appeals the citation, a hearing is held before the Registrar of Contractors who may revoke, modify, or affirm a citation. A mandatory settlement conference before the hearing may also be conducted.
If a contractor does not appeal or fails to appeal a citation within 15 days of service of the citation by the CSLB, the citation becomes final. If a contractor fails to comply with a citation it will result in the automatic suspension of his or her license 30 days after noncompliance with the terms of the citation. A contractor may contest the determination of noncompliance by giving notice to the CSLB within 15 days of service of a notice of noncompliance by the CSLB. If a contractor continues to fail to comply with a citation it will result in the automatic revocation of his or her license 90 days after the date of automatic suspension.
What is an accusation?
The most serious violations are subject to the filing of an accusation. In an accusation, the CSLB seeks to suspend or revoke a contractor’s license, and begins with the CSLB filing an accusation which is similar to a complaint filed in superior court and includes an allegation of claims. A contractor has 15 days from service of an accusation by the CSLB to file a notice of defense.
The Administrative Procedures Act (Government Code sections 11500 et seq.) govern accusations, including limited discovery of names and addresses of witnesses, statements taken, investigative reports, and documents sought to be admitted as evidence. A mandatory settlement conference before the hearing may be conducted.
At the hearing before the Administrative Law Judge (“ALJ”) the burden is on the CSLB to prove by clear and convincing evidence that a contractor’s license should be suspended or revoked. The rules of evidence, however, are typically more relaxed. Following the hearing, the ALJ will issue a proposed decision.
The CSLB may adopt the proposed decision in whole or in part or may enter its own ruling. The CSLB can also request that additional evidence be heard. The decision of the ALJ becomes a final decision 30 days after service of proposed decision unless reconsideration is requested.
A contractor who is unhappy with a decision can seek judicial relief by filing a petition for peremptory writ of administrative mandamus in the superior court. The peremptory writ provisions of California Code of Civil Procedure section 1094.5 govern writs and require the superior court to conduct an independent review of the record. The parties may also appeal the decision of the superior court to the court of appeal.
Contractors who lose an accusation may be required to pay the CSLB’s investigative and enforcement costs which can be in the tens of thousands of dollars. A contractor whose license is suspended may be reinstated upon proof of the contractor’s compliance with the conditions of suspension or, in the absence of such conditions, the discretion of the CSLB. A contractor whose license is revoked may not reinstate their license for a minimum of one year or up to a maximum of five years. A contractor will also be required to file a disciplinary bond.
How does the CSLB address complaints against unlicensed contractors?
Unlicensed contractors, as opposed to licensed contractors, don’t have a license which can be suspended or revoked. When the CSLB receives a complaint against an unlicensed contractor the CSLB may issue a citation including an order of abatement to cease and desist and a civil penalty up to $15,000, file a criminal action with the local district attorney’s office, or initiate injunction proceedings in the superior court.
Unlicensed contractors have 15 days from service of an administrative citation by the CSLB to appeal a citation. If an unlicensed contractor appeals a citation, a hearing is held before the Registrar of Contractors who may revoke, modify, or affirm a citation. A mandatory settlement conference before the hearing may also be conducted.