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Robert, I have taken the liberty to move your discussion here so as not to disturb the train of thought in the other posts.
I would like to debate the definitions of:
Service Provider (Independent)
Employee (Servant)
Sub-Contractor
Mechanic’s Lien
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In your last post you had drawn a distinction of a doctor as an independent service provider instead of a W-2 employee. Please carry the idea further and explain how a W-2 employee who is a journeyman carpenter can also be an independent service provider?
*Thanks, Peter.
*Peter,If you are successful in convincing Robert to confine his looney arguments to this thread and to stay out of the others, I will see that you have a lifetime unlimited tab at the Tavern. I warn you, don't try to engage in a logical discussion on this topic. He reminds me of the people that claim we have no constitutional requirement to pay income taxes. He is totally obsessed(to an unhealthy degree) with this topic.Good luck, John
*Here here all hail Peter...I can't wait till this thread develops...then I am going to ask Bobby how to rewire a main panel so as to develop perpetual energy.near the stream anxiously awaiting the start of debate,aj
*PeterYou say you would like to debate the definitions of subcontractor and mechanic's liens. That is fine with me and I hope you would like to include the definition of contractor in this discussion.I would like to have you start the debate since you indicated you would like to debate this topic.I feel a good starting point would be to identify what a contractor or subcontractor proposes to do by virtue of his contract. For our purposes we can use a basic definition of what a contract is - that is an agreement between two or more competent parties to do or not to do a specific legal act for consideration. From this beginning we can identify just what the contractor or subcontractor shall do for his compensation.I think that it would also be useful to understand that in many cases, especially earlier cases, courts did not allow contractors to have liens pursuant to mechanics' and materialmen's lien laws. In Winder v. Caldwell, the U.S. Supreme Court denied a contractor a lien on the grounds that a contractor is neither a mechanic nor a materialman and that only mechanics and materialmen who furnished labor and materials were entitled to the lien established by Congress under which the contractor was trying to seek a lien.It is self evident that if mechanics furnish laborand materialmen furnish materials, then contractors furnish neither of these things. It might also prove useful to see that Texas uses the title "Contractors, Mechanics' and Materialmen's Liens" in their lien statutes thereby indicating that there is a difference between a contractor and a mechanic. Any person who would like to join in with their definition is welcome but I would Like Peter to give his opinions to get the debate going.
*Thanks guys! Here goes.Robert, Since you would like me to start this discussion, I would like to extend our current topic of who a "service provider" is, as opposed to an "employee". Once we can come to an understanding of "who" the parties are that are involved in the process, then we can move on to topics such as liens.You seem to be talking, from your perpective, as a resident of Arizona. I, on the other hand am a resident of Tennessee. There may be peculiarities in the laws specific to our geographic locations. It is essential none the less that we come to some understanding of the parties involved before we get mired up in case law. Therefore, I ask that you extrapolate on your current definition of "employee" and "service provider". If we are in agreement, we can proceed to more detailed issues. If not, we must reach an understanding before going on. I agree to hold an open mind, if you agree to the same terms.
*Definitions are just that...Each law passing entity also will define many words that are encompassed in their legislation...They can for instance in my case, define residential and commercial storage of boats to depend on the number of boats stored verses the Webster definitions of residential and commercial. So for now, I am just...Off on my first tangent,aj
*PeterAt the start of this post you used the term service provider (independent). It is my contention that an independent service provider can be a person of any number of different occupations. Certainly we can agree that doctors, dentists and lawyers can provide independent services to those who employ their services. But these are not the only occupations which render independent services. There certainly can be no doubt that a painter, carpenter, floor finisher or janitor can provide an independent service to those in need of their services. As you stated, we live in different states and in Arizona there are certain statutory definitions which apply. For example, under Arizona law any employee who follows a trade or profession independent of the direction and control of his employer is not considered an employee for purposes of unemployment compensation. You also used the term employee (servant) in the beginning of this post. You see examples of this type of employee every time you go to a retail store or to a restaurant or in many other situations. These employees work under the direction of their employer. It is a far different situation than a homeowner employing a plumber because he needs plumbing work done or a carpenter because he needs carpentry work done. The plumber or carpenter is left to his own devices as to how the result will be accomplished and must be guided by building codes and in some cases legal regulations by statute or ordinance. In such cases, the carpenter or plumber employed acts independently of the direction of his employer. One would hardly expect a homeowner to be considered an employer in the same light as Sears or Microsoft is an employer.Actually, in the beginning of this post you reiterated what I had stated previously in that there are two types of employees - those who render services independently and those who are servants. I think we both mean the same thing except that many people do not like to refer to an independent employee as an employee. It is my perspective that any person employed is an employee and the difference is whether he is an independent employee or a servant employee. The statute law in Arizona uses the same reasoning and this same reasoning has been used by courts. I will post a direct quote from the highest court in Michigan explaining it this very way. I do not have the case in front of me at this moment. I hope I have been clear and courteous in this response and that you can understand how my views have been shaped.
*Robert,I think we are in agreement with the term "service provider (independent)". Our first hurdle seems to be the term "employee (servant)". Although you seem to hold a separate distinction for a W-2 employee, you still apply the term to anyone accepting payment for their services. And hold that the W-2 employees of a construction contractor are especially privileged in your definition, while the W-2 employees of a doctor or lawyer are not? It is my contention that individuals working under the umbrella of an independent service provider and meeting the guidelines of the IRS are W-2 employees. They are employees of the service provider and not the home owner.I think part of our confusion comes from the fact that the word employee is a noun while the word employ is a verb. I will agree that in a sense we are all employed by the home owner. We are not however, all employees. At least in the sense as we all understand the IRS to define the term. If we follow a dollar across the breadth of our country it will change hands dozens of times in its travel from east to west. One could hardly say that a person in California is the employee of a person in Connecticut. Time, location, and independence of actions are the standards that we may measure these distinctions by. Example;A home owner wants an addition to his home so he employs the services of a licensed general contractor (independent service provider). The contractor, as agent for the owner, in turn has individuals of varying skill levels on his payroll (employees) that work under his (the contractors) direction. The contractor here is the professional. Although the home owner might request an addition, it is the contractor that directs how it will be put together. He is licensed in this capacity/knowledge to access his ability. The rewards as well as the risks are his. If one of his W-2 employees gets hurt or causes damage to the home owner's property, it is the general contractor that is held liable/accountable. He carries insurance for this purpose. This is the nature of the independence that is held in the relationship. Location of the services also has a lot to do with it. Different standards are held for services provided in an individual's home as apart from those that are provided in a professional's office. So we have time, location, and independence. When we measure the accountability of an individual, it must pass through this sieve.If you have specific case law examples, I would like to review them with you using these standards.
*PeterYou used the term agent in your response to refer to a contractor. An agent works for a principle and the principle is liable for the acts of his agent.The mechanics' and materialmen's lien law in Arizona states that every person shall have a lien for labor or materials furnished whether furnished at the instance of the property owner or the property owner's agent and that all contractors and subcontractors are agents of the property owner. It further states that the property owner shall be liable for the labor and materials furnished at the instance of the owner.Clearly this means that there are two conditions under which labor and materials may be furnished by mechanics and materialmen - first at the instance of the property owner who contracts directly with the mechanics and materialmen or second at the instance of an agent.Suppose the property owner contracts directly with the mechanics and materialmen and no contractors and subcontractors are employed to act in an agency capacity. It is apparent that the cost to the owner would not include any agency fees but only the cost of the labor and materials furnished by mechanics and materialmen. Logic dictates that if agents are employed to act on behalf of the property owner as contractors or subcontractors, then the cost to the property owner must increase by the respective amounts of their contracts.You state that the risks and rewards are the "general contractors". That situation would presume that the person you are defining as the "general contractor" has a contract to procure and pay for labor and materials. But how would the cost of labor and materials be determined? Certainly the "general contractor" would not be in a position to be involved in the negotiation process. He would just say that nobody could work on the job unless they agreed to work for less so that he could profit. But let's take this a step further. It is already acknowledged by the U.S. legal system that contractors and mechanics are different classes of persons. This is why states and cities can discriminate pursuant to the police power or pursuant to the taxing power as far as license fees for regulation or license taxes for revenue. And it is further acknowledged, pursuant to the 13th Amendmendment of the U.S. Constitution, that one class of persons shall not be required to work for the benefit or pleasure of another class. In City of Milwaukee v. Rissling, 184 Wis. 517, 199 N.W. 61, the Supreme Court of Wisconsin stated that the occupation of journeyman electrician and the occupation of electrical contractor are different classes and the fact that the journeymen electricians were not required to obtain a license while electrical contractors were, was a valid exercise of the police power of the city of Milwaukee. You live in Tennessee. You should read State ex rel. Grantham v. City of Memphis, 151 Tenn. 1, 266 S.W. 1038. An ordinance of the city of Memphis required licenses of all persons who followed the occupation of journeyman plumbers as well as licenses of all those who followed the occupation of master plumber (plumbing contractor). That ordinance was upheld by the Supreme Court of Tennessee.
*Robert,go back to..."Certainly the "general contractor" would not be in a position to be involved in the negotiation process. He would just say that nobody could work on the job unless they agreed to work for less so that he could profit." I don't see how you made that jump.Ken
*robt....both of your case citations dealt with electricains.. & plmbrs..In City of Milwaukee v. Rissling, 184 Wis. 517, 199 N.W. 61, the Supreme Court of Wisconsin stated that the occupation of journeyman electrician and the occupation of electrical contractor are different classes and the fact that the journeymen electricians were not required to obtain a license while electrical contractors were, was a valid exercise of the police power of the city of Milwaukee. (((( You live in Tennessee. You should read State ex rel. Grantham v. City of Memphis, 151 Tenn. 1, 266 S.W. 1038. An ordinance of the city of Memphis required licenses of all persons who followed the occupation of journeyman plumbers as well as licenses of all those who followed the occupation of master plumber (plumbing contractor). That ordinance was upheld by the Supreme Court of Tennessee. )))))both are trades regulated and licensed for health and safety .. those two trades are almost universally required to be licensed.. use some other example or you just cloud the issue.. try and stay with carpenters and general contractorsand try and stay with employees as defined by the IRS.. since that is the definition we all have to deal with....
*KenPeter's previous response stated that the risks and rewards were the general contractors. In order for this to be, I assumed that he is under the impression that his contract is to procure and pay for labor and materials. Anyone who would have a contract to pay for labor and materials should not be allowed to negotiate the costs of the labor and materials with the mechanics and materialmen who furnish them.Suppose I am in a room with 20 carpenters and the property owner. In front of all the carpenters I make a contract with the property owner that for $200 I will choose one of the carpenters to hang a door on the property owner's house and I will pay his labor bill. What I am saying is that I should not then be allowed to negotiate the amount of the bill with the carpenter employed.
*MikeIt is unconstitutional under U.S. law to license and regulate journeyman carpenters pursuant to the police power since they do not pose a danger to the public health and safety. Dasch v. Jackson, 170 Md. 251, 183 A. 534The difference between a journeyman carpenter and a master carpenter is that a journeyman is skilled and knowledgeable about carpentry and uses his hands and tools. A master carpenter does not use his hands and tools. This is the criteria that is used in U.S. law for all trades when licensing laws are passed. For the purposes of health and safety, is it more important to license and regulate the mechanic who performs the labor in the capacity of a journeyman or to license and regulate the person who doesn't do the work. In the City of Milwaukee v. Rissling case cited earlier, one of the arguments made by the losing side was that the ordinance did not provide for the licensing of the men who do the work - that is to say the journeymen. I am trying to prompt some of you to look at the legal meanings and reasoning rather than your preconceived notions.In Arizona and in very few states are journeyman electricians or journeyman plumbers licensed.
*Actually, I would assume that the contract is to provide a finished product to the owner, that finished product being the completed room addition or completed kitchen remodeling project rather than to "procure and pay for labor and materials". How the "contractor" accomplishes this finished product is not necessarily something that the property owner is aware of or concerned about. You seem to be basing your arguments entirely on whether the person contracting with the property owner has lein rights. You haven't addressed the issue assuming I don't care whether I have a lein right or not. In fact, if you look at Maryland's lein laws, you will find that once the property owner has paid the general contractor for the work, the tradesman who did the actual work has very limited lein rights, if any. About... "What I am saying is that I should not then be allowed to negotiate the amount of the bill with the carpenter employed."Why not? You still are not clear on this issue.
*robt... what does this mean ?""In Arizona and in very few states are journeyman electricians or journeyman plumbers licensed. ""does it mean that most journeymen ARE licensed.. or are NOT..the only distinction is that the two trades (E&P) are licensed because what they do could constitute an imminent danger to the public if it is done incorrectly..the law does not recognize the same inherent danger in the carpentry trade.. so you are tilting at windmills...isn't your whole arguement simply that no one has the right to employ anyone else and profit off that labor?..isn't that what you are saying ?. why do you keep beating around the bush?..it comes down to this.. either companies exist and can profit off the labor of their employees .. or there can be no employees...is that it ? no bullsh*t now.. no case law.. is that your position or not ?if it isn't .. why don't you restate it....
*In Maryland, under home improvement law, the licensing goes to the person who is dealing directly with the property owner and is basically a financial and business responsibility law rather than a trade knowledge and implementation regulation and testing system. The state is apparently concerned with individuals and businesses who would take the consumer's money and/or agree to perform work on their property and not complete their obligations. Does this agree with or conflict with your thinking?
*Another question. Corporations have been recognized as individual entities, as their "own person" so to speak. Are these "persons" entitled work for property owners? What if the property owner is also a corporation (lots of individual people?)
*Robert,Tennessee law (62-6-102) defines "contractor" as any person that does work in excess of $25,000. The conditions of licensure are predicated on that fact. Therefore, it is the scope of the project and not the trade knowledge involved that warrants the safety of the public by the establishment of the law.Electricans and plumbers doing work under this dollar limit do not have to be licensed. Electricans are registered for $25. Unless the muncipalities have specifically adopted a code and inspection system there is none. Inside the city limits of Gatlinburg, Pigeon Forge, and Sevierville we have codes and inspection. Outside those city limits, the only inspections we have are the septic system and electrical. Electrical is inspected even though you are not licensed.I believe that a general contractor assumes responsibility for the labor and materials as cooridinator of the project involved. He may or may not be involved in a "hands on manner". As coordinator his responsibilty is to orchestrate resources. This is what he is paid for. The work entails more than just the hanging of a door, the installation of an outlet, or the installation of a faucet. There are support services that are utilized as well. Tennessee law realized this, and when one applies for a license not only is he examined for the Southern Standard Building code, he is also examined for business accumen and law. There is also an annual financial statement (balance sheet) that is reviewed on your renewal date.The welfare and safety of the public is not limited to the physical work performed but also the support services provided by the circumspect knowledge of the contractor in the application of all components in the project. And.... a person is an employee of the contractor if the contractor supports and monitors his efforts.
*... i suspect that the majority of jurisdictions require the licensing of ""journeymen""electricians and journeymen plumbers"", that they are limited to certain aspects of the their respective trades... and that the term"Master..plumber & Master Elect. is the license required for unlimited scope of work in those trades...also.. most jurisdictions allow homeowners to do these installations in electicity and plumbing.. but require inspections...some work for hire is done under this blanket to avoid the need for license..... in the meantime.. robt...am i right in understanding you to be opposed to the concept of employee and the profiting therefrom ?....
*MikeSorry about the wording of the statement. In Arizona and in many states journeyman plumbers and journeyman electricians are not required to obtain a license.Could you please make clear what you believe a general contractor does. Keep in mind that a general contractor is not a carpentry contractor, plumbing contractor, electrical contractor, painting contractor, masonry contractor or any other type of trade contractor.Under Arizona law, carpentry contractors, plumbing contractors, electrical contractors, painting contractors, masonry contractors and the like are deemed specialty contractors. Any contractor other than a specialty contractor is deemed a general contractor. General contractors cannot contract for carpentry labor and materials, plumbing labor and materials, electrical labor and materials, etc. because that is the exclusive province, by statute, of specialty contractors.
*other than law books ... which were never meant to be clear (see mess fl.)...the defintion of Contractor is hard to find...here's webster..1.one of the parties to a contract..2.a person who contracts to supply certain materials or do certain work for a stipulated sum, especially, one whose business is contracting to erect buildings..no listing for general contractor..here's commonly accepted useage around here (heah)..a contractor is one who writes contracts as per webster.....a General Contractor is one who writes contracts to encompass all or most of teh scope of the work for any given building project...a sub-contractor is a specialty contractor who will take care of a category of work within the General scope....a sub-contractor can deal directly with the OTHER party to the contract.. or work for and write a sub-contract with the General....An independent contractor is the one in the danger zone that you are referring to...by IRS standards he must provide his own tools , materials, set his own hours, is usually not paid by the hour...and can make a profit or loss on the job..the independent contractor is the most abused category and the one that the irs and the workmen's comp boards are always trying to regulate...many sole-proprietors work as independent contractors for different contractors and general contractors..many so-called independent contractors work for the same company all the time... they do not comply with the 20 question rule of the IRS.. they get a check every pay period from the same company...they get a 1099 at the end of the year..regular employees get a W-2...when WC reform comes to a state... the main thing they have to wrestle with is the definition of an employee... who is.. and who isn't...many individulas find themselves in serious difficulty with the IRS because an independent contractor doesn't pay the taxes they are obligated to pay... so the IRS goes after both parties..if the company cannot prove that the individual does meet the 20 question rule... the company winds up on the obligation end for SS and withholding for tehy years they were not paid....it is my understanding that MOST of the states and jurisdictions operate as described above... not as you say they do in AZ.....the IRS is far reaching in their grasp... and the WC lobby is not far behind...
*PeterYou are correct in the statement that a contractor gets paid to orchestrate resources. That is what he is paid to do. By virtue of that statement it is clear that he does not actually perform labor as a mechanic or furnish materials as a materialman. A question I have for you is as follows: What if the general contractor is a W-2 employee. Under Arizona law and California law, as well as other states in the West, a general contractor can be a W-2 employee of his employer. In such a case he receives a paycheck with taxes deducted. If he is paid $50.00 per hour to orchestrate for resources, then that is his compensation. There may be 100 mechanics simultaneously on the job site and 100 different material suppliers. Based on a 40 hour week his check is $2000 minus deductions. Please address how the mechanics and materialmen get paid in such a situation. By statute, under Arizona law, a contractor must work strictly for the benefit of the property owner and may not profit from labor and materials furnished by mechanics and materialmen. A.R.S. section 32-1101.
*If the General Contractor is a W-2 employee... he MUST be wearing two hats...1. he is an employee of the Corporation that executed the contract with the other party...2. he is the officer of the corporation responsible for signing the contracts of the corporation...that is the only way he can be a w-2 employee and aslo be the General Contractor..but in reality.. he is not the GC.. the corporation is......
*So what you are saying, Robert, is that according to your interpretation of Arizona statute, a person, corporation, or whatever other entity who is orchestrating a project cannot profit directly from a mechanic's labor. I certainly wouldn't want to disagree with you until I have read the section you are citing. Perhaps you could scan in some of those paragraphs you are citing and post them here by attachment so we also can see how you came up with some of the technical nuances of your argument.And I haven't heard you cite anything yet that wouldn't allow a person to profit from their own labor and expertise required to put that project together; neither have you shown an argument that they are not allowed to use the total cost of the job or the job size - inclusive or exclusive of their own labor, or that of others - in the computation of their own personal compensation. In this case they are not profiting from the labor of others, but have used the size and complexity of the job to determine their rate rather than the number of hours they worked.You are also jumping to a conclusion and assuming statements not based in fact when you say "By virtue of that statement it is clear that he does not actually perform labor as a mechanic or furnish materials as a materialman." This statement is simply circular logic to back up your claims. While the person orchestrating the job MIGHT not work on the job, there is no reason to assume that that person (entity) cannot and does not also provide mechanic's labor.
*Robert, I said that the general contractor may or may not physically work on the job in addition to his capacity for orchestrating resources. I am a general contractor, a sole proprietor, and I physically work on the job providing material and labor.I agree with Mike that the only way a general contractor can get a W-2 is to be employeed by his corporation. I am a sole proprietor as such I generate no W-2 on myself.The only way I can see the law that you cited working in Arizona is if ALL contracts were a Cost-Plus contract. If you are correct then other contracts such as Fixed Cost contracts would be illegal. This seems unlikely. Are you sure you are intrepreting the law correctly?
*I will show you how a general contractor can be a W-2 employee and get a paycheck. A developer intends to build a large development. He plans to build houses and each house will be sold upon completion. He employs a general contractor as a W-2 employee. Section 32-1121 of the Arizona Revised Statutes concerning contractor licensing is a section which has for a heading "persons not required to be licensed". Under this section, a homeowner who lives in his own dwelling and no commercial or business activity takes place there is exempt from licensing. He is allowed to employ carpenters to perform carpentry labor on his dwelling without first obtaining a carpentry contractor's license. The same section says that owners of property who are acting as developers are exempt from licensing provided that if the developer acts as general contractor, then he must employ only licensed specialty contractors. If the developer does not act as general contractor and employs someone else to act in that capacity, the general contractor employed must have a general contractor's license. The developer, as property owner, is never exempt from contractor licensing if he acts in the capacity of a specialty contractor (carpentry contractor, plumbing contractor, painting contractor, etc.).Under section 32-1121, owners of property are not exempt from licensing so long as business activities take place there and where business visitors or employees of the business enter the structure. In that situation the property owner must obtain a carpentry contractor's license if he contracts with a journeyman to perform labor.Section 32-1121 uses the phrase 'owners of property" to describe which property owners are exempt from licensing - also which agents are exempt.It is true as Mike says that any party to a contract can be deemed a contractor. So if the property owner contracts with a journeyman carpenter, then each is a contractor. However, the one contractor is, in the law known as a mechanic and the other contractor is known in the law as a contractor.We have a section in our statutes called "words and phrases". Under that section it states that in the statutes all words and phrases shall be construed according to their common meaning except that if such words and phrases have a technical meaning within the law then that is the meaning which shall be used. Everybody knows that the technical meaning of contractor is the property owner or his agent.
*robert... you make this stuff up... gimme another contractor in AZ who interprets this the way you do..here's what you said.."It is true as Mike says that any party to a contract can be deemed a contractor. So if the property owner contracts with a journeyman carpenter, then each is a contractor. However, the one contractor is, in the law known as a mechanic and the other contractor is known in the law as a contractor. """NO... the one providing the service is the contractor and the other is the owner or agent of the owner of the property being worked on..then you say....." We have a section in our statutes called "words and phrases". Under that section it states that in the statutes all words and phrases shall be construed according to their common meaning except that if such words and phrases have a technical meaning within the law then that is the meaning which shall be used. i Everybody knows that the technical meaning of contractor is the property owner or his agent. """NO.. everyone knows that the technical meaning of "contractor " is the one providing the service...you made a wrong turn in the fork in the road at contracting 101.... your interpretation is skewed and not in accord with the contracting world..do you ever .... do you ever ... do you ever .. actually work for hire ? or as a contractor ?to enter into a CONTRACT ther must be two parties.. referred to as the CONTRACTOR and the OWNER... there must be an agreement as to the considerations.... the CONTRACTOR wil provide such and suchand the OWNER will pay a stipulated sum of money...all the rest is dependent on state and federal law..if you don't have the two parties and the consideration.. you do not have a contract, written .. or unwritten.....that's it ......
*Here is how Arizona's licensing scheme works.First, the type of license must be designated - whether it is for general contracting or specialty contracting.Second, for a specialty contractor such as a carpentry contractor (I will use a carpentry contractor as an example but the same applies to other trades), one individual must be designated as the qualifying party for the license. Section 32-1122. The qualifying party must have 4 years of practical trade experience as a journeyman carpenter (mechanic) or 4 years of management trade experience as a master carpenter (contractor). The qualifying party must also take an examination. Section 32-1122, subsection F.The qualifying party (QP) represents the entity to whom the license is issued. The QP can represent himself as an individual, a partnership in which he is a partner or a corporation in which he is a corporate officer. Section 32-1127 also allows the QP to represent an individual, partnership or corporation as a "responsible managing employee".There are statutory requirements for the QP. First, he must actually, directly and continuously supervise all the licensee's projects at the job site. Second, he is the only individual who can contract with mechanics and materialmen to furnish carpentry labor and carpentry materials. Whenever the QP disassociates himself from the licensee, the licensee must qualify through another individual within 60 days or the license is suspended. Section 32-1167.It is a criminal offense punishable by fine and imprisonment for any person to supervise construction unless named as a QP for a contractor"s license. For carpentry, it doesn't matter if you call an individual a foreman, lead carpenter or any other name. If he is acting in a supervisory capacity, he must be on file with the Registrar of Contractors as a QP.The entire portion of contractor licensing laws make numerous references to supervision (management) throughout as far as licensing. But section 32-1122, subsection F, which refers to the experience requirement for the QP makes the distinction between carpentry mechanic and carpentry contractor by using the phrase "practical or managemement trade" experience. The statutes also make a distinction between the contracting business and the construction business. Contractors are involved in the contracting business. Mechanics are involved in the construction business. They are separate and unrelated businesses.For any person who wants to read these statutes, any University law library should have the statute law of all the states. I use the University of Arizona law library and I formerly used the University of Illinois law library. Both have the statute laws of all the states.I'm sure there is probably a web site somewhere that can also provide this information.
*strange.. the AIA document A101 -"The Standard Form of Agreement between the Owner and Contractor".. doesn't have a caveat about how this don't apply in AZ...lemme ask you again..""do you ever .... do you ever ... do you ever .. actually work for hire ? or as a contractor ? ""and when you go to the UofA Law library.. why? is it so you can bolster your presentation here.. or is it to help you in your contracting business..... i suspect you are NOT a QP... nor an employer...and you don't work for hire.....i've still not figured out what your goal is... but your premise is wrong......here's an anlogy... you are from mars.... and you are arguing that we don't execute contracts correctly here on earth.. based on your interpretation of martian law.....what you describe is so foreign that i'm sure i would have read a notice of the peculiar state of contracting under AZ law... i've been reading trade journals since 1970.. and i've never seen mention of it... is it me? or is it you ?b but hey, whadda i no ?i been wrong before.. i'll be wrong again... but probably not on this one.....
*MikeLet me ask you this. Why would Arizona's statute law exempt the property owner from contractor licensing under certain conditions but not others if the legislature were not deeming him a contractor.In section 32-1101, which is the beginning section of our contractor licensing statutes, said section states that it shall not apply to owners of property making improvements to their own property if they fall within the exemption category of section 32-1121 which section uses repeatedly the term owners of property. What part of the phrase "owners of property" do you not understand? Remember Mike, as I said before, I wish to challenge your preconceived notions. It is the legislative (legal) definition to which citizens must adhere and not their own definition. If Arizona's legislature includes in their definition of contractor any person who is a property owner, are the citizens of that state supposed to object. Mike, I suggest before you call me crazy, that you read Arizona"s statute law (A.R.S. section 32-1101 et seq.) and see how many times the phrase "owners of property" is used. To me that phrase has only one meaning.
*Tennessee law 62-6-103 also exempts property owners from licensing requirements as long as they are building "single residences, farm buildings or other similar buildings for individual use, and not for resale, lease, rent or other similar purpose". He also can not construct more than 1 single residence within a period of two years.For the span of the project of working on his own house, the owner is acting in the capacity of contractor. That however, is not his profession, as he certainly couldn't make a living at it since he could not sell or barter his product.For the sake of our discussion, the term contractor should mean "any person or entity who undertakes to, attempts to, or submits a price or bid or offers to construct, supervise, superintend, oversee, schedule, direct, or in any manner assume charge of construction, alteration, repair, improvement, movement, demolition, putting up, tearing down, or furnishing labor to install material or equipment for any building, highway, road, railroad, sewer, grading, excavation, pipeline, public utility structure, project development, housing, housing development, improvement, or any other construction undertaking". It is also stipulated that such person or entity shall earn a "livelyhood" in such undertaking.
*robt...here it is again..""""do you ever .... do you ever ... do you ever .. actually work for hire ? or as a contractor ? "" and when you go to the UofA Law library.. why? is it so you can bolster your presentation here.. or is it to help you in your contracting business... .. i suspect you are NOT a QP... nor an employer...and you don't work for hire... ..i've still not figured out what your goal is... but your premise is wrong...... ""and another thing... don't confuse licensing law with contract law...they ain't the same thing.....
*Robert...take up paragliding....way more of a thrill and zen thing too...What a waste of precious minutes on the planet.near another stream,aj
*Peter"submits a bid to supervise, superintend, oversee, direct, schedule, or assume charge". "For X amount of dollars, I will supervise the construction of your house." (contract between property owner and contractor)I guess Mike is going to be calling you an idiot now because Tennessee law defines the property owner as contractor when he employs mechanics and materialmen to furnish labor and materials by entering into contracts with them and supervising his own project.
*Robert....what items do you put where as far as building materials?Answer in my C thread thanks...I need input from the masses.near the stream,aj
*Who's on first, What's on second, Third base?-I Don't Know!John
*"Everybody knows that the technical meaning of contractor is the property owner or his agent."NOPE, apparently you are the only one around who interprets it this way.And since this one interpretation is the key to your arguments, your conclusions are incorrect because your premise is flawed.Ken
*Yes, but where does it EXCLUDE contractors other than the property owner from hiring others to work on said owner's property and making a profit from said venture?Again, you are using flawed logic to prove your point by conveniently overlooking options that do not agree with your premise, and taking statements out of context. My guess is that you have done the same with your readings of the law. I'm curious why you continue to devise additional flawed arguments rather than address the issues I have brought up. Maybe you can't.
*Robert, when I change the oil on my truck or effect other repairs I am acting in the capacity of auto mechanic, but I am not a mechanic. When I pay the bills and do the budgeting for our household I am acting in the capacity of CPA or Financial Planner, but I am neither. When I comfort my sick grandson I am acting in the capacity of doctor, but I am not one.I am none of these because I don't earn my livelihood performing these tasks. The affects of my actions influnence only myself and my immediate family. Once other third parties become the recipent of these services and I begin to profit by providing them, then I begin to own the title.The same holds true for a homeowner/contractor. He can work in the capacity of contractor for the purpose of his own home, but he is not making a living doing so. It is not his profession. I could also represent myself in court, and be my own lawyer, but remember the old cliche "a man that represents himself in court has a fool for a client". The same can be said for the homeowner/contractor.
*Dasch v. Jackson, 170 Md. 251, 183 A. 534. The city of Baltimore enacted an ordinance with two types of licenses - a contractor's license for paper hanging contractors and a journeyman's license for journeyman paper hangers. A property owner was allowed to work as a journeyman paper hanger on his own residence without a license or he could act as paper hanging contractor without a license on his own residence.Ordinance declared unconstitutional on grounds that paper hangers cannot be licensed and regulated pursuant to police power.
*Your point is ..... what? ....., and how does this apply to general contractors dealing with property owners? And what does this have to do with making a profit on labor? And how does this affect the legality of subsequent legislation that has been held valid? You are again evading the questions you raised by bringing in another isolated incident and an incomplete line of reasoning.
*KenFirst you say the property owner is not the contractor and then you say what about contractors other than the owner. No logic.I assume when you ask about contractors other than the owner from hiring others to work on the owners property and making profit from said venture that you mean the contractor other than the owner is paying for the labor.Remember that the Constitution and the valid statutes of a state enter into all contracts. That is you cannot make a contract in violation of law. Based on that premise, let's assume that by your logic the contractor other than the owner enters into a contract that he will procure and pay for all labor and materials. The 13th Amendment of the U.S. Constitution enters into the contract. That means that the men employed to do the work do not have to do it for the benefit of the contractor. Any contract between the contractor and a man employed to do the work whereby the contractor made profit from his labor would be void. One of the property rights of labor is to enjoy the fruits of the labor and to prevent others from profiting without consent.If, according to your premise, the mechanic cannot work on the owner's property unless authorized by the third party contractor, and the third party contractor is going to pay for the labor, the third party contractor cannot use that position to the disadvantage of the mechanic.I think Ken that I will stick with the definition of contractor as used by the U.S. Supreme Court and all the state Supreme Courts as well as Congress. You have already seen Peter give you Tennessee law that the property owner can be the contractor on his property. I have cited Arizona law saying the same thing.When the property owner is not the contractor, then obviously someone else must be.In Winder v. Caldwell, the U.S. Supreme Court stated that mechanics and materialmen were entitled to the lien enacted by Congress and not the contractor, supervisor, undertaker or agent who employed them. The Court used those terms as synonyms. That is why you will see the term undertake as well as supervise in the Tennessee definition Peter gave.In Arizona, the mechanics' lien law states specifically that contractors and subcontractors employed are agents. Further, Arizona's contractor licensing laws state that no contractor shall act as agent without license unless he falls into an exemption category of section 32-1121. What part of the term agent do you not understand? What part of the term property owner do you not understand?
*ROBT.... what is the difference between an employee in a gas station... or a factory.....or a steel mill....or a retail store.. or a job site building homes...?they are all W-2 employees ...each business MUST make a profit on their labor or cease to exist..you still haven't answered this one....""""do you ever .... do you ever ... do you ever .. actually work for hire ? or as a contractor ? "" and when you go to the UofA Law library.. why? is it so you can bolster your presentation here.. or is it to help you in your contracting business... b ???? do YOU ever work for hire ??????
*"One of the property rights of labor is to enjoy the fruits of the labor and to prevent others from profiting without consent."This statement in itself implies that the person providing the labor can also consent to another profiting from his (or her) labor.
*The 13th Ammendment states:"Neither slavery nor involuntary servitude, except as a punishment for a crime whereof the party shall be duly convicted shall exist in the United States."Servitude refers to compulsory labor or service for another. Slavery implies absolute subjection to another person who owns and completely controls one.A W-2 employee is not forced to provide services as long as he has the right available to him to walk out the door. He works for his employer by consenting to the terms of his employment. If he doesn't like the terms he can leave at any time. Therefore the 13th Ammendment is not a valid source of argument in this line of reasoning.There must be other laws that allow for lien rights. What other laws can we review?
*robt ?.....robt? where are u ?u over the Law Library ?you gonna 'fess up what you do for a livin ?robt ?
*robt..?
*I'm not sure how to paste a link so I'm going to type in a location:www.fullertonlaw.comClick on the section entitled:New Chapter on Mechanic Lien Rights & General PrincipalsI think it will aid our discussion if everyone has a better understanding of exactly what is occurring.
*peter.. here's the link.. good site..should be in every Contractors Bookmarks..http://www.fullertonlaw.com/scroll down in the main body to the 2d red bullet to find ""New Chapter""what terms do you think need defining ?
*Mike, I think the article does a good job of defining all terms. I was especially interested in the section about "security".It's more about the solvency of the debtor and the security of the lender. In this case, the lender is any one providing goods or services. And their rights to be commensated for them.The timing of the notice of lien is critical and differs from state to state. Some have to be placed before work starts, others are good until 90 days after completion.
*peter... sometime in the '90's a clarification came down thru the builder's asscn. about prior notice in RI with this suggested language...((A LIEN may be filed in accordance with the RI Mechanic's Lien Act if payment is not made.))We have that notice right across the bottom of every Proposal.
*Another site with some info that might help on lienshttp://www.e-architect.com/gov/lienlaws/lienmap.asp
*Very interesting site, bobl! Thanks!So I clicked on AZ and found the full text of pertinent sections of law Robert has referred to."A. Every person who labors or furnishes professional services, materials, machinery, fixtures or tools in the construction, alteration or repair of any building, or other structure or improvement shall have a lien on such building, structure or improvement for the work or labor done or professional services performed. B. Every contractor, subcontractor, architect, builder or other person having charge or control of the construction, alteration or repair either wholly or in part is the agent of the owner for the purposes of this article, and the owner shall be liable for the reasonable value of labor or materials furnished to his agent."The understanding I get from this actually suggests that an owner will be hiring professionals such as architects and general contractors who will be responsible for the actual work, including the hiring of workers and purchasing of materials for the job. I read the intent of this section as giving the contractor the status of "agent" of the owner for the "purposes of this article" which is to give the actual suppliers of materials and labor the right to lein the property - even though they were hired by someone other than the actual property owner. I don't see where it would be interpreted to limit the capacity of the contractor as Robert has suggested.
*ken.. my take is that robt is an idividual who has made a determination that having employees is a modern version of slavery.. he searches law libraries for cases and decisions that tend to lend credence to his position.. but he is starting from a wrong premise... and interpreting the cases as he sees fit...AZ is a little bit to the right in politics ...... but not to the extent that they do business differently than the rest of the country.....and.... i don't see how one can differentiate between employees working at will in a typical retail setting and employees working at will as carpenters and tradesmen......b but hey, whadda i no ?
*Another site with more extensive lien law information by state.www.kwik-net.com/lien-st.htmClick on your state and then the "Current Statute" button.What does it mean when it flashes that Arizona is a "Direct Lien" state?
*I agree with you Mike. It's the century old philosophy of making a determination on flawed interpretations or preconceived prejudices, and then finding ways to rationalized or support that determination.It's done routinely on a daily basis, but usually realized by those who would otherwise get caught up in that thought process.Bob is a man. Bob has long hair. Bob is tall and thin. Bill is a man with long hair and is tall and thin. Therefore, all men have long hair and are tall and thin, or conversely, anyone that has long hair and is tall and thin is a man.
*peter... it also said that RI is a direct lien state and then offered this explanation..."" direct lien state. (Owner can be held to pay even if payment has been made to general contractor. ""
*mike, I think that's a pretty good take on the situation. I'm glad we could get this out in the daylight though instead of continuing to run around the issues with half truths. I especially want to thank Peter for that note on the 13th amendment. I had overlooked that entirely. - maybe it was just too obvious.
*Thanks Mike, I missed that. Arizona law must make for a very detailed release of lien process. How would the homeowner know about the multitude of individuals involved in the process and whether they had been paid?
*Peter... by obtaining a release of liens... the onus goes onto the GC to have each sub and material supplier sign off as he pays them .. then he submits that to the homewowner , or copies of them.. the process is cumbersome... and the owner may or may not know if he has received ALL of the releases..and the GC may not know...if a sub is using Independednt Contractors, then he has to get leleases from each ""Independent Contractor"" besides the sub...a lot of this mystery gets cleared up if you are using and obtaining Certificates of Insurance from all of the Subs... here in RI, they now have to give a DWC form stating wether or not they have "EMPLOYEES" and the "Independent Contractors" have to file the names of each company they work for...Workmen's Comp is concerned about the "SUB of the SUB".....
*Peter, about your question of how the owner will know who will be working on his property; in Florida, we use a "Notice to Owner" form which also must be filed with the county by everyone who will provide materials or labor. The GC in turn, fills out and files a "Notice of Commencement" which states that the GC will be providing "X" work on the owner's property. It does not necessarilly state the subs and suppliers.When paid by the GC, the material vendors and subs sign the Lien Waiver, which the GC then gives a copy to the owner. The owner should make sure he gets a Lien Vaiver from the GC for each of those who file a "Notice to Owner". That's the only onus on the owner.It's a relatively simple legal process which covers everyone, including even an employee of us and any of the subs, for even an employee, who will provide labor, can file a Notice to Owner, separate from the company (sub) he works for.If there is a change in material supplier or sub, a new Notice to Owner form is filled out and the previous one voided.Finally, to be legal, liens must be processed with in 90 days after completion of the project
*Tennessee is different in that there is no release of lien to obtain from each worker or supplier. At the end of the job a Notice of Completion is filed at the Registrar of Deeds office in the County Courthouse. They then run a public notice in the local newspaper. Anyone wishing to file claim has 10 days on residential work and 30 days on commerical. They send notice to the person indicated in the paper, usually the loan officer, but it could be the owner, the contractor or a lawyer. If no claims are received the title is clear once more after the time has elapsed.
*PeterOne thing I think has been overlooked in this discussion is that a contractor's license is an occupational license just as any other occupational license. As such, it is only good for one individual. You stated earlier that others work under the umbrella of one licensed individual. There is a lot of case law where ordinances and statutes have been declared unconstitutional because a license to one member of a firm or one corporate officer of a corporation allowed others in the firm or others in the corporation to work under the license issued to such individual. These ordinances and statutes are always defeated on the grounds that individuals, firms and corporations must be treated alike or there is discrimination in favor of firms and corporations as against individuals who work alone. If an individual who works alone, such as a plumber, is required to obtain a license, then all 100% of the plumbers in this sole proprietorship are required to be licensed. If, in the case of a firm or corporation, others who do the same occupation are allowed to work under the license issued to one individual, then not all 100% of those following the same occupation are required to be licensed and that is discriminatory under U.S. Constitutional law.Therefore, your reasoning that others work under the license issued to one person is incorrect. The license issued to any contractor is good for only one individual. No other partners, corporate officers, employees or others who follow the same occupation can do the same type of work as the licensed individual. This does not mean, however, that two persons of different occupations cannot form a partnership. Judge Malone referred to this in State ex rel. Grantham v. City of Memphis, 151 Tenn. 1, 266 S.W. 1038. Judge Malone said that suppose two persons formed a partnership - one a plumber and the other an office man who did not do plumbing. If the law required plumbers to be licensed, it would not be reasonable to require the office man to obtain a plumbers license. Other precedent cases are cited by Judge Malone. Mike, Ken and othersSome of you have the feeling that I am saying that no carpenter can be the W-2 employee of someone else. This is not entirely correct. My question is how do they become such employee?First, all construction jobs are created by property owners who want some type of work done. Suppose, we use this logic. Imagine that the fingers on your left hand represent all those who are carpenters. Imagine that the fingers on your right hand represent those who are not carpenters. It is obvious that those on the left hand could make a contract to perform carpentry labor and to fulfill such contract. But there are members of our society who feel that those represented by the right hand should be able to make carpentry contracts also. They believe that because they are not carpenters, then to fulfill their contract, those represented by the left hand become their employees. I am glad that Ken has posted part of Arizona lien law. However, he failed to post the entirety of subsection A which concludes with the phrase "whether furnished at the instance of the owner or his agent."Subsection B, as Ken points out, states that contractors and subcontractors are agents of the owner. This means that no contractors need be employed to act as agents. Another crucial word here is "person" as far as those who have a lien. "Person" in this context means individuals, partnerships, corporations or other entities. That is from another section of statute law which defines how the word person is to be construed in our statutes. So if a corporation formed by journeyman carpenters is employed at the instance of the owner or at the instance of a carpentry contractor acting in an agency capacity, the owner is liable.I would like you all to do the following. Take a blank sheet of standard 8.5 x 11 typing paper. Two inches from the top and in the center of the paper, write "property owner". Two inches below that and in the center of the paper, write "general contractor". Two inches below that and in the center of the paper, write "specialty contractors". Two inches below that and in the center of the paper, write "mechanics and materialmen". Mechanics shall mean journeyman carpenters, journeyman plumbers, journeyman electricians and all other mechanics who furnish labor.Materialmen shall mean suppliers of carpentry materials, plumbing materials, electrical materials and others who furnish materials.Specialty contractors shall mean master carpenters, master plumbers, master electricians and other similar trade contractors.General contractor shall mean the contractor who employs the specialty contractors.What if the property owner employs no general contractor? Then the owner employs the specialty contractors.What if the owner employs no specialty contractors? Then the owner employs the mechanics and materialmen. What if the owner employs no mechanics and materialmen? Then the owner performs the labor and already owns the materials.You will see from this analysis that labor and materials furnished by mechanics and materialmen can be done exactly as Arizona's lien laws say - at the instance of the owner or his agent.You will also see from this analysis that carpentry contractors and carpentry mechanics have nothing to do with each other. They are different classes (occupations) and as such can never be involved in the same company. If a property owner does not employ a carpentry contractor, the carpenter bills the property owner pursuant to his contract. Many of you believe that if a property owner employs a carpentry contractor, then the mechanic employed receives a paycheck with taxes deducted from the contractor. To me, this is bizarre logic. Using that logic, the carpentry contractor would get a paycheck with taxes deducted from the general contractor.The analysis I have used is the logic that Arizona law uses for contractor licensing. Those statutes, just as Peter's in Tennessee, require the owner to obtain contractor licensing when no agent contractors are employed. In other words, when the owner acts in that capacity. There are certain exemptions, and they can be found in section 32-1121 of Arizona's statute law. If Ken found our lien laws, then he can find our licensing laws which start with section 32-1101.As I stated before to Peter, the contractor's license is good for only one individual. That individual is known as the qualifying party. Only the qualifying party can supervise or negotiate contracts. In this way, individuals, partnerships and corporations are treated alike - each must obtain a license and each must designate the supervisor of the work who is the actual contractor. One supervisor per license.
*robt... your 8x11 paper isn't complete yet...one of your categories is naked..""General contractor shall mean the contractor who employs the specialty contractors."" AND employs the mechanics (carpenters) AND supplies the materials furnished by the material men..just like in a factory... just like in a retail store..AND you still didn't answer my question....what is the difference between an employee in a gas station... or a factory.....or a steel mill....or a retail store.. or a job site building homes...? they are all W-2 employees ... each business MUST make a profit on their labor or cease to exist.. you still haven't answered this one.... """"do you ever .... do you ever ... do you ever .. actually work for hire ? or as a contractor ? ""
*MikeI'm confused. You say the general contractor supplies the materials furnished (supplied) by the materialmen. My chart is not incomplete. If the specialty contractors order the labor and materials furnished by mechanics and materialmen, how can the general contractor do that?Also Mike, if the carpentry contractor is the agent of the owner, then he stands in no better position than his principal. If the principal does not know how much carpentry labor and carpentry materials will cost until they are contracted for, then how can his agent know until they are contracted for.Suppose Mike that I am a doctor living in Boston and I want to build some rental apartments in Phoenix as investment property. Suppose I hire someone to obtain labor and materials on my behalf as my agent. My agreement with such person shall be that he is to negotiate all my contracts for me and obtain bills from the suppliers of the labor and materials. What would you call such a person? The law calls him a contractor.Now your state may vary, but in Arizona, to negotiate contracts with plumbers to furnish labor and plumbing suppliers to furnish materials, a specialty license as a plumbing contractor is required. The same holds true for the other trades.Similarly, if I am a doctor in Boston and I want to build rental property in Phoenix, and I know that labor and materials must be contracted for by licensed specialty contractors pursuant to Arizona law, what would you call the person you hire as an agent to negotiate contracts with specialty contractors? In Arizona they are called general contractors. Under Arizona law, general contractors do not deal with mechanics and materialmen at all. That is the exclusive province of specialty contractors.
*no robt... you are still making this stuff up.. i've read the AZ contracting requiremetns and you just don't know how to read..here's my question...""General contractor shall mean the contractor who employs the specialty contractors."" AND employs the mechanics (carpenters) AND supplies the materials furnished by the material men.. just like in a factory... just like in a retail store.. AND you still didn't answer my question.... what is the difference between an employee in a gas station... or a factory.....or a steel mill....or a retail store.. or a job site building homes...? they are all W-2 employees ... each business MUST make a profit on their labor or cease to exist.. you still haven't answered this one.... """"do you ever .... do you ever ... do you ever .. actually work for hire ? or as a contractor ? "" if i moved to AZ.. and passed the test for General Contractor...i would operate my business just as i do now... i would have carpenters on my payroll.. and i would hire subcontractors for the other trades... and i would supply all of the material..what would you do ? would you come work for me ?are you a carpenter robt.?are you a subcontractor... ?or, just a ballbuster ?
*Rob't...You still haven't answered Mike's direct question. In fact, you haven't addressed any of them. It appears that you are avoiding his direct inquiries by snowing us with so called data and attempts at legalese mumbo-jumbo. Problem is that you are still using invalid or incomplete premises and circular logic to attempt to prove your conclusions. And redefining standard accepted terms to your own order to prove your conclusion won't prove your point to me.
*Mike, et al:He's a b nut. You guys are starting to sound like McMurphy in One Flew Over the Cukoo's Nest.Svenny
*swven... but he's our nut....butt out .. or come on down.....
*Robert, Tennessee law says that even though a homeowner may be called a contractor when he undertakes improvements to his own property, he is EXEMPT from licensing as long as he is not making it his livelihood.As to the individual that holds the license, that's a little tricky. Their are three criteria in Tennessee to hold a license. Two are in the form of the tests both trade and business management. The third is in the form of the annual financial statement. In the case of a partnership or corporation, a specific person must take and pass the tests that qualify him as knowledgeable, although the financial statement will be for the partnership or corporation. This can be two separate entities... the individual and the company. Tennessee law 62-6-115 states that if the individual holding the license for a corporation or partnership leaves the firm, the firm has 3 months to find someone else from their business to represent them by taking and passing the test. By the same token, the individual that left will have to file a new financial statement that would reflex his personal financial capacity without the aid of the corporation he worked for.The law is looking to provide for the knowledgeable execution of contracts by financially solvent enitities. Those entities are not always individuals. In the case of the corporation, the entire company works under the umbrella of one license.
*Trying to follow this thread, not easy.Found this on Arizona site ( http://www.rc.state.az.us/License/l_gen.html )"To whom is the license issued?A license may be issued to an individual, a partnership, limited liability company or a corporation. The license belongs to the business and not to the qualifying party."Unless something has changed since my Father-in Law passed away, in Mass. A licensed Master Plumber can have unlicensed helpers. A licensed journeyman can work alone, but no unlicensed helpers.
*i butt out....Didn't realize this was a Sacred Thread, above all comments and asides. Next time please let me know up front.
*swven... sorrrry..didn't want you to butt out... wanted you to come on down and jump in.....get down tonight
*bobl - that part of the regulation doesn't apply to Rob't since it doesn't support his arguments - at least not the way we read it. I think the rest of us find it interesting and informative, though. Rob't - how you going to spin this one? sounds like a direct contradiction to what you just said a few posts back in the last paragraph... ( Robert Haugen 12/19/00 9:55am).Ken
*MikeAre you a contractor for hire? Can someone hire you to be their contractor? If so you are a contractor for hire.PeterThe right to follow a lawful occupation and to make contracts in that occupation is protected by the U.S. Constitution. The state has no right to say that some persons of a particular occupation can make contracts and others can't. It has been said by the U.S. Supreme Court and other courts that one of the identifying characteristics of slavery is the inability to make contracts. Another characteristic is the subjection of one person to another for the benefit or pleasure of a master.A license only grants the right to follow the occupation. The right to follow the occupation brings with it the right to make contracts. If the state were to start selling via licensure a right that already exists, the inevitable conclusion is that others of the same occupation would be denied the same rights. Every carpenter has the same rights as every other carpenter. No carpenter can purchase from the state more rights than other carpenters.
*Robert,A contract whether verbal or written, is merely the mutual consent of two or more parties. If there is no consent by one or more of the parties then the action is one of force. Again, if the employee/employer relationship involves the mutual consent of both parties, then their rights are preserved and no force or coercion is evident.The government's police powers are limited to the health, safety and wellbeing of their citizens. The license serves as a credential of proficiency. Every citizen has a right to drive a car as long as they pass a test and demonstrate their proficiency in doing so. They must demonstrate that ability to ensure that they possess sufficient knowledge of how their actions might affect others, again the health and safety of the public at large. How else could one be found to be negligent unless one was proven to proficient in the first place? States license contractors to ensure the safety and wellbeing of the clients they serve.
*robt... bullsh*t... you are so full of it... and you're a weasel besides...answer the question... will you be my slave , robt?can i hire you? will you write a contract ?have you ever met a payroll? when did you stop beating your wife ?hah, hah, hah... at least don quioxte had windmills to tilt with.... you can't even make a sh*t sandwich....
*PeterI hope by now that you have read State ex rel. Grantham v. City of Memphis, 151 Tenn. 1, 266 S.W. 1038. You will then see how Tennessee law relates to contractors. In that case, plumbing contractors (master plumbers) were required to obtain a license under the Memphis ordinance. And just as Tennessee law and Arizona law do now, the ordinance stated that every master plumber, whether individual, firm or corporation must take an examination. In the case of a firm or corporation, the supervisor was to be examined and as Judge Malone stated no one other than the examined individual could act as supervisor. That is exactly what your state says when one individual shall be examined. No person other than the examined individual shall supervise construction. In that case, you will see how Judge Malone struck down the state law as regards plumbers and plumbing contractors. You will see references to Winkler v. Benzenberg and other cases that were declared unconstitutional. In Winkler v. Benzenberg (Wisconsin), every journeyman plumber was required to obtain a license. But in the case of a firm or corporation, the examination of any one member of the firm or any one corporate officer of a corporation allowed other journeyman plumbers other than the one who stood the examination and received the license to do practical plumbing. Declared unconstitutional because it did not require all plumbing mechanics to be licensed. Same reasoning in Henry v. Campbell (Georgia).The difference between those cases and your contractor licensing statutes is that the contractor licensing statutes require the person who supervises the work, not the person who does the work to obtain a license. Contractor, supervisor and undertaker are synonymous terms. Look up undertaker in the Oxford English Dictionary and the definition will state that an undertaker is a contractor. In your state and mine and many others, instead of requiring all supervisors as individuals to obtain a license and associate themselves as they please, the lawmaking body defines firms and corporations as contractors by representation of the actual supervisor who is the actual contractor. But only that individual can supervise. See how many times your licensing statutes talk about supervision or use the word undertake or manage which are all synonymous.But the supervisor does not supervise persons in his own company. He supervises the job site for the property owner. He works for the property owner. If a property owner hires a carpentry contractor to supervise construction, he hires him to employ the materialmen and mechanics and supervise the site. But the carpenters employed to do the work are in no way associated with the carpentry contractor. As far back as 1851, Winder v. Caldwell, the U.S. Supreme Court stated that "experience has shown that mechanics and materialmen who furnish labor and materials for the construction of buildings are often defrauded by insolvent owners and dishonest contractors". In 1916, Harbridge v. Six Points, the Arizona Supreme Court repeated those words.When contractor licensing first came under review for constitutionality in Arizona, Hunt v. Douglass Lumber Co., the Arizona Supreme Court made numerous references as to how unscrupulous contractors are and how they frequently do dishonest things.It is the provision for supervision which is essential to the validity of any contractor licensing statute. When the electrical contracting for hire business was brought before the courts in New Jersey, the court said that without the provision for site supervision, the law would be unconstitutional. The Registrar of electrical contractors argued that such a provision would prevent contractors from having numerous scattered jobs since a person's physical body could only be in one location at a time. The Registrar tried to argue that the contractor could supervise through others that did not take the examination. Not so said the court and they told the Registrar that he was not enforcing the law. To supervise means to be at the site. Compare to City of Shreveport v. Bayse, 166 La. 689, 117 So. 775, where the words of the ordinance were that the master electrician who qualified for the license must actually, directly and continuously supervise work. Again, in that ordinance, every master electrician, whether individual, firm or corporation was required to obtain a license issued in the name of the actual master electrician who took the examination. It is a well understood principle that if a statute or ordinance is susceptible of two or more interpretations - one which makes it constitutional and one which makes it unconstitutional, the one that makes it constitutional is the one the court goes by. When you read your statutes Peter, ask yourself at every turn or doubt about a meaning. Ask yourself what meaning makes it constitutional and abide by that meaning. Remember also that if the administrative agency (registrar of contractors or similar body) interprets the law wrong and you abide by their interpretation, you do so at your own peril.
*Robert,When I quoted the definition of a contractor earlier in this thread I quoted from the Tennessee license law. If you read through it again you will see the words "in any manner assume charge". Your contention appears to be that one can only have charge of the project unless he is physicially on it. Mine is that one can have charge by employing or directing others to carry out your wishes.In the "Notes to Decisions" regarding 62-6-103 License Requirement, it says:1. Unlicensed ContractorsWhere duty devolved on the builder whether or not his foreman was a licensed contractor, action in tort would lie against the builder regardless of the foreman's being unlicensed.Wilson v. Page, 45 Tenn. App. 475, 325 S.W.2d 294 (1959)
*Edith Wharton once said, "There are two ways of spreading light: to be the candle or the mirrorthat reflects it."Make no mistake. If the candle goes out....... there is darkness.
*deep thoughts , peter....who's holding the candle..?who's spreading the light ?robt... did you ever have an employee?since most of the working world are employees, why are you trying to eliminate this class ?
*Well Mike, one possible meaning could be that the employer (license holder) is the candle and the employees are the mirror.But hey, what to I know?
*Robert....> "But the supervisor does not supervise persons in his own company. He supervises the job site for the property owner. He works for the property owner. If a property owner hires a carpentry contractor to supervise construction, he hires him to employ the materialmen and mechanics and supervise the site. But the carpenters employed to do the work are in no way associated with the carpentry contractor"How the h*** did you jump from licensing and lein law to this presentation of the "facts"? Certainly this is not written in the legislation nor is it a proper interpretation of the law. Neither do any of the judgments you cite support this idea as the standard. Surely it is one situation that could occur, though I think it is one of the most unlikely of many possibilities, but that does not make it the exclusive option, except, of course in your myopic view of this subject. You just can't get past the idea that the term "agent" as used in the limited way shown in the legislation can be used to simply guarantee the collection rights of those who would supply materials and labor to a property owner rather than limit the rights and powers of others as you propose, can you.Still waiting for you to address Mike's questions...regards and have a happy holiday all, Ken.
*Citations of authority:City of Louisville v. Coulter, 177 Ky. 242, 197 S.W. 819 on the examination and licensing of journeyman plumbers and not master plumbers. "... This creates a distinct class to be dealt with by the law, and is founded upon the distinction between the persons who actually perform the work of plumbing and those who merely contract to do plumbing and employ other persons to do the work, the latter class being the employing or master plumbers. In the opinion of the Legislature the necessity existed for restraining and regulating the one and not the other. ..."In Felton v. City of Atlanta, 4 Ga. App. 183, 61 S.E. 27, the Supreme Court of Georgia defined master plumbers and employing plumbers to be one and the same, and to be those who did not hold themselves out as personally doing the work, but as contracting to furnish the material and to do the work through others, while journeyman plumbers were defined to be those skilled in the business and holding themselves out as able and willing to do the work themselves.In Trewitt v. City of Dallas, 242 S.W. 1073, an ordinance of the city of Dallas required master plumbers and journeyman plumbers to stand an examination and receive a license. Journeyman plumbers were required to stand an examination as to how to do plumbing while master plumbers were examined as to how to supervise plumbing. The ordinance defined a master plumber to be an employing plumber and a person who does not hold himself out as personally doing plumbing work, but as contracting to furnish the material and doing the work through others. A journeyman plumber was defined as a person skilled in the calling, and holding himself out as being able and willing to do the work of a plumber.In State v. Malory, 168 La. 742, 123 So. 310, the court said: "There is a well-recognized difference between a master plumber and a journeyman plumber, and this distinction is noted by the trial judge. The former is a plumber who employs plumbers, and the latter is one who does the actual work of plumbing." In that case journeyman plumbers were required to obtain a license but not master carpenters.In City of Shreveport v. Bayse, 166 La. 689, 117 So. 775, section 7 of subsection F of the city ordinance read: "Every master electrician, or his qualified representative who shall be a master electrician shall actually and continuously supervise, direct and superintend all electrical work installed by him in the city of Shreveport." The act provided that before any person, firm or corporation engaged in the electrical contracting business in Shreveport, they were to secure a master electrician's certificate in the name of the person who qualified for the certificate. Alan Bayse was convicted of supervising electrical work without first having qualified for the certificate.In City of Milwaukee v. Rissling, 184 Wis. 517, 199 N.W. 61 (affirmed Roy Rissling v. City of Milwaukee, 271 U.S. 644, 46 S.Ct. 484, 70 L.Ed. 1129), an ordinance was upheld requiring examination and licensing of electrical contractors. The Supreme Court of Wisconsin said: "The ordinance in question by its terms is made applicable only to those who are engaged in the contracting business in the electrical field, whether they be individuals, partnerships or corporations. It thus recognizes a distinction between contractors in this line and journeymen. The council therefore, acting in its legislative capacity, duly created two classes - contractors on the one hand, and journeymen on the other. This classification is based upon a marked and proper distinction between the classes so created, considering the purpose of the law. The test to be applied is to ascertain whether all those included in the class are treated alike under like circumstances and conditions. ... In the instant case, individuals, firms and corporations are treated alike; each is required to obtain a license, and each must file a certificate naming the person who shall be the supervisor of the work." In this case, the designated supervisor was subject to examination. An objection to the validity of the ordinance was made on the grounds it failed to license the journeyman electricians who did the actual electrical work.In State ex rel. Grantham v. City of Memphis, 151 Tenn. 1, 266 S.W. 1038, a Memphis ordinance required all journeyman plumbers and master plumbers to take an examination and be licensed. For a master plumber, the supervisor who was the actual master plumber was required to be examined and licensed. The Supreme Court of Tennessee said: "...Nobody but the licensed 'manager' of a corporation or the licensed 'superintendent' of a firm can even supervise the plumbing work such firm or corporation may do. It is only upon this construction that we sustain the ordinance, which would otherwise be unreasonable and unconstitutional."In Dasch v. Jackson, 170 Md. 251, 183 A. 534, a statute required all paper hanging contractors and all journeyman paper hangers in the city of Baltimore to be licensed. The statute allowed a homeowner to act as a journeyman paper hanger on his own property without a journeyman's license or act as a paper hanging contractor on his own property without a contractor's license. The statute was declared unconstitutional on the grounds that paper hanging has no relation to the public health and safety and therefore cannot be regulated under the police power. The court said: "The art of paper hanging is one that requires manual dexterity, skill, and some experience. It differs in that respect not at all from other similar occupations, such as house painting, carpentry, stone cutting, bricklaying, horseshoeing, repairing machinery, wood carving, plastering and the like, which men have from time immemorial followed without regulation or interference as a matter of common right and which have no substantial relation to the public health and safety."I hold myself out to the public to be a journeyman carpenter (carpentry mechanic). You should now know what that means.
*you do know robt.... that all your citations do not answer my question..also i note that none of your citations have EVER noted the date of the citation.. i think it is because you are pulling them out of sequence.. because case law has moved beyond them... and also.. because they do not represent modern legal finding..so.. back to the law library with you.. to find some more stifling citations.... that make you sound more like a gilbert and sullivan character than a carpenter...lord high admiral of the hms nonsequitur....merry christmas....
*Y'know, I actually read that entire last post of Robert's (skimmed it, really, 'cause it's still more of the same runaround) and I have to agree with you, Mike. Lots of words, no answers. Honestly, I think he's trying to snow us with his verbage. I like the white stuff better. We only got about 4" last week, though... just enough to shut schools down and lighten traffic for the day. Robert, in all these opinions,etc., you haven't shown where one person cannot act in the capacity of mechanic, supervisor and contractor - all at the same time or at different times. Only that the capacity within which he operates at the time and on a specific job will determine which portions of the regulations may or may not apply. And several different rules may apply when he takes on the responsibilities of different capacities on the same job.Try again.Ken
*MikeArizona has had contractor licensing continuously since at least 1928. I shall compare the 1924 decision of City of Milwaukee v. Rissling, 184 Wis. 517, 199 N.W. 61 with current Arizona law.The Milwaukee ordinance considered in that case required every electrical contractor, whether individual, partnership or corporation to obtain a license and designate the supervisor of the work.Current Arizona law requires every electrical contractor, whether individual, partnership or corporation to obtain a license and designate the supervisor of the work. Under Arizona law the supervisor is known as the QP (qualifying party). Section 32-1122 requires that the QP be designated in the application.Under the Milwaukee ordinance, the designated supervisor was required to take an examination.Current Arizona law requires the designated supervisor (QP) to take an examination.Under the Milwaukee ordinance, the designated supervisor was required to have had at least six years practical experience on electrical work. As is stated in the case, practical electrical work is done by journeyman electricians.Current Arizona law requires the designated supervisor (QP) to have had at least 4 years practical trade experience or 4 years management trade experience in the electrical field. (section 32-1122, subsection F).I find the Milwaukee ordinance and the Arizona law to be virtually the same.Please Mike, tell me the difference between the terms "practical trade experience" and "management trade experience" as used in our statutes.Section 32-1127 of current Arizona law provides that if the individual, none of the partners of a partnership or none of the corporate officers of a corporation can meet the 4 years practical trade experience or 4 years management trade experience requirement, then an individual who does meet those requirements can be employed as a "responsible managing employee" and such responsible managing employee shall act as qualifying party (QP) and supervise all the licensee's projects. This licensing scheme is used for all electrical contractors, carpentry contractors, plumbing contractors, painting contractors, etc. who are deemed specialty contractors pursuant to section 32-1102.The Shreveport ordinance that was ruled upon in 1928 in City of Shreveport v. Bayse, 166 La. 689, 117 So. 775, and remember Arizona has had contractor licensing since at least 1928, was substantially the same. In that case every master electrician engaged in the electrical contracting business, whether individual, partnership or corporation was required to obtain a certificate (license) issued in the name of the individual master electrician who qualified for the license. That ordinance required every master electrician or his qualified representative who shall be a master electrician to actually and continually supervise, direct and superintend all electrical work done by him in the city of Shreveport.Please Mike, tell me what it means to actually and continually supervise, direct and superintend.By the way, master electrician and electrical contractor are synonymous terms.
*>"By the way, master electrician and electrical contractor are synonymous terms."Not necessarily. They can be the same, but there can also be differences. You just pointed out some in the same post where the laws you cited mentioned firms that operate as electrical contractors who can then hire master electricians. Apparently there is a difference in the use of the terms. Synonymous in that they are similar and may be overlapping in some points, but not synonymous in that they are not b exactlythe same. Websters New World Dictionary c 1968... synonym... a word having the same or b nearly the samemeaning inb one or moresenses as another in the same language.This has been part of the problem all along, that you are defining terms to fit your arguments.Keep trying.
*KenYou misconstrued my last post. In the City of Shreveport v. Bayse case, the ordinance read: "Every master electrician or his qualified representative who shall be a master electrician...".In that case, every individual, partnership or corporation engaged in the electrical contracting business was required to obtain a master electrician's certificate (license) issued in the name of the individual master electrician who qualified for the certificate.As you see, electrical contractor and master electrician are used to mean the same thing. Think of one individual who has a one man operation. He is engaged in the electrical contracting business. Pursuant to the ordinance, he was required to obtain a master electrician's certificate before he could engage in the electrical contracting business in the city of Shreveport.You see the phrase "master electrician or his qualified representative who shall be a master electrician". This is just a legislative method of defining a firm or corporation as a master electrician by representation of one individual who actually follows that occupation. The term "qualified representative" bears that out. It must be remembered that individuals, partnerships and corporations must be treated alike. Otherwise there is discrimination. Thus the rule is that there is one supervisor per electrical contractor (master electrician) license. When the legislative body defines an entity such as a partnership or corporation to be a master electrician by representation of a qualifird representative, it is nothing more than the legislative body saying that such partnership or corporation shall have no greater rights than individual master electricians. Otherwise, there would be discrimination in favor of partnerships ar corporations as against individuals. If a license to a partnership or corporation allowed more than one individual per license to supervise, it would be discriminatory in that in the case of a license to an individual, only such individual could supervise. Therefore, the legislative method for guarding against the unconstitutionality is to allow only one individual associated with a partnership or one individual associated with a corporation to do what an individual does. The license is, in effect, only good for one individual to do something, even though it may be issued to a partnership or corporation.In Arizona, an employee can represent an individual, partnership or corporation as an electrical contractor. He is called the qualifying party which has the same meaning as qualified representative used in the Shreveport ordinance. That employee has all the power. The employer he represents can neither supervise electrical construction nor contract with mechanics and materialmen to furnish labor and materials. Of course, an individual can represent himself in which case he is the electrical contractor (master electrician) or he can represent a partnership in which he is a partner or he can represent a corporation in which he is a corporate officer.As Peter stated pursuant to Tennessee law, and which is also the law in Arizona, when the individual who qualifies for a license disassociates himself from the licensee, the license becomes void unless another individual qualifies for the license.If you study the other posts in which I cited case law, the ordinances or statutes involved in plumbing always defined a master plumber as not personally doing the plumbing work but as contracting. Contracting is what a contractor does. Therefore, it can be stated that a master plumber is a plumbing contractor.You may ask yourself why the lawmaking body defines partnerships and corporations to be contractors instead of just requiring all individual electrical contractors (master electricians) to be licensed. The answer is to make all the partners or corporate officers or others accountable. If a license to a partnership or corporation is revoked or suspended, sanctions for future involvement with contracting can be prevented. In Arizona, if a license is revoked, no person associated with the license can be involved in contracting until certain conditions are met. If the license were simply issued to the individual, then any partners or other associates of the individual would escape sanction. It is to cast a wide net that lawmaking bodies make a legislative definition of a partnership or corporation as a contractor even though in effect one individual is.
*robt.... you weasel..here's where you started...""Journeyman carpenter A is the only person who has the legal right to charge for his labor. At least this is so in the United States. Labor is property and the property owner is the only one who can charge for it. ""you just keep slippin and slidin....employees are a legal concept in all systems of govt. in the US...including AZ..and your case law dates from before the Great Depression....too bad .. you're boring.. good by...
*WOW Robert. What a spin! You can make words and phrases just dance to your jig! That doesn't make your interpretation correct. At this point I think no one here knows exactly where you stand except that you disagree with any conventional thinking of how the construction industry is structured; and to what length you will go to attempt to convince us that yours is the only perspective of value. Several of us have given you the opportunity to back up and 'splain your previous comments, yet instead of addressing the comments directly, you revert to the same old arguments and demagoguery which we have told you that we simply don’t buy into. The assumptions you are making about the legislation and case law that you are citing, and the conclusions you have drawn are yours alone. The definition and association between plumbing contractor and master plumber that you have extrapolated from the laws and that you would have us accept as fact is not the same as the one I would draw in reading the exact same items. There are nuances even in the wording of the legislation that must be taken into consideration, and again you choose to ignore those that do not fit your needs, and expand the bounds of the ones that do. And, no, I didn't misconstrue your last post. I simply disagree with how you interpret the law and the intent of the legislatures. Close in some cases, but always with a twist that is clearly neither the intent nor the established meaning of the legislation. But, enough of this game. I wish you a joyous holiday and a prosperous new year doing whatever it is that you actually do ! G'nite! Ken
*Been off-line for awhile.i Every citizen has a right to drive a car as long as they pass a test and demonstrate their proficiency in doing so. In Mass. it is a PRIVALAGE granted by the state to drive a car. Not a right.
*
Robert, I have taken the liberty to move your discussion here so as not to disturb the train of thought in the other posts.
I would like to debate the definitions of:
Service Provider (Independent)
Employee (Servant)
Sub-Contractor
Mechanic's Lien