Problems in State Contractor's Licensing Laws Part One
Georgia Contractor Licensing LawGeorgia's contractor's licensing laws are found in the Official Code of Georgia Annotated, Title 43 Professions and Businesses. Chapter 14 Section 2 (O.C.G.A. 43-14-2) governs electrical and conditioned air contractors.
1) Minor Work Exemption: Georgia's licensing law does not provide for a minor work exemption with a dollar amount cap for projects not requiring a licensed contractor. It merely provides that certain persons are exempt.
2.) Other Licensing Exemptions/Exceptions:
In Georgia an employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and the employer does not direct or control the employee in the business. O.C.G.A. Section 51-2-4 (Liability for torts of independent employee -- independent contractor). Under this section and Section 51-2-5, the employer can still be held liable for his own conduct. The issue of control is key in determining independent contractor status. Bentley v.
Georgia Contractor Licensing LawJones (1934) 48 Georgia App. 587, 173 S.E.2d 737. Under this section the "independent business" of the independent contractor must be separate and independent from that of the employer. Buchanan v. Canada Dry Corp. (1976) 138 Georgia App. 588, 226 S.E.2d 613. In determining independent contractor status control is key, meaning the trier of fact must look to whether the employer has assumed control of the "time and manner of executing the work" as distinguished from "the right merely to require results in conformity to the contract." Buchanan v. Canada Dry Corp., supra. The employer cannot shield himself from liability by hiring an independent contractor and giving him a general authority to hire others to perform work which requires no care or skill or experience. Swift & Company v. Alston, (1934) 48 Georgia App. 649, 173 S.E.2d 741.
Georgia Contractor Licensing Law cont'dExceptions to O.C.G.A. Section 51-2-4 are found in O.C.G.A. Section 51-2-5. Section 51-2-5 provides that an employer is liable for the negligence of an independent contractor under six circumstances:
1. When the work is wrongful in itself or, if done in the ordinary manner, would result in a nuisance;
2. The work is inherently dangerous;
3. The work involves a non-delegable duty;
4. The work involves a duty imposed on the employer by the terms of the contract;
5. The employer retains the right to direct or control the time and manner of execution of the work or assumes control; and
6. If the employer ratifies the unauthorized wrongdoing of the independent contractor.
Under this section the fact that an independent contractor hired by an employer
hires others to aid in carrying on the business does not make the employer liable for the acts of the sub-agents or servants of the independent contractor. Sinclair Refining Co. v. Veal, (1935) 51 Georgia App. 755, 181 SE 705.
Georgia Contractor Licensing Law cont'dIn Georgia the employer has the right to presume that the independent contractor will do the work in a prudent and proper manner and is not bound to supervise progress or the contract work for the purpose of preventing a tort. Dekle v. Southern Bell Telephone & Telegraph Co., (1951) 208 Georgia 254, 66 S.E.2d 218. In Georgia an employer's liability for contractor's torts is limited by statute therefore if an independent contractor violates a duty imposed under common law the employer is not liable. UniRoyal Inc. v. Hood, (1979) 588 F.2d 454. In determining independent contractor status versus master servant relationship, specialization of the contractor alone is not the only factor considered. Federated Mutual Implement & Hdwe. Insurance Co. v. Elliott, (1953) 88 Georgia App. 266, 76 S.E.2d 568. The employer's right to control can be inferred in certain cases, for example: where the contractor is employed "generally" to perform certain services for another as opposed to being
Georgia Contractor Licensing Law cont'dasked to perform a certain piece of work.
O.C.G.A. Section 43-14-8 requires electrical contractors and conditioned air contractors to have a valid license and certificate of competency to engage in the business of electrical contracting, plumbing or air-conditioning contracting and each is required to have a full time validly licensed employee on staff in the performance of such business. Once that person leaves, the licensing entity must be notified immediately. The licenses are renewed annually and the licensing entity requires accurate information regarding names and addresses of sole proprietors, partners, officers, when the entity was formed or incorporated and other information including, whether the licensed individual is still connected with the entity engaged in the business. O.C.G.A. Section 43-14-8.
Georgia Contractor Licensing Law cont'dThe licensing exemption contained in O.C.G.A. Section 43-14-13(D) which permits individuals to repair electrical or air-conditioning or plumbing on their own single family dwelling does not permit them to hire unlicensed persons to perform these activities. 1988 OP. Atty. Gen. 88-29.
Georgia Contractor Licensing Law cont'd4) Penalties: Any violations of the licensing code result in conviction of a misdemeanor. O.C.G.A. Section 43-14-14. Licensees are required to be bonded and in certain cases local additional compliance bonds can be required. O.C.G.A. Section 43-14-12.
5) Insurance/Bond: In Georgia while the state legislature can require insurance as a condition for licensure of a profession, local or municipal governmental entities cannot.
6) Reciprocity: Georgia permits reciprocity provided the applicant's state required licensees to pass an exam and to demonstrate work experience equal to that required in Georgia. Reciprocity with Florida, North Carolina, South Carolina exists for electrical and with South Carolina and Texas for conditioned air licensees.