The Utah attorney general says a law that makes it a crime for a contractor not to pay his subcontractors and suppliers doesn't violate the state's Constitution - although it is "less than ideal in its clarity."
"I believe that as long as the elements of theft are included and established in the prosecution, the statute is constitutional," said Attorney General Paul Van Dam in an opinion released last week.State regulators hope the opinion will allow them to move forward in disciplining the licenses of crooked contractors convicted of felony theft under the statute. But Salt Lake County Attorney David E. Yocom, who requested the opinion, said his prosecutors will proceed with caution.
"I don't think we will charge everyone who doesn't pay under these (the statute's) circumstances. We still have to prove elements of theft," Yocom said.
The law says a general contractor, who has been paid for labor and materials, must pay those who supplied the labor and materials within 120 days or face second-degree felony theft charges.
It was passed by the Legislature two years ago to stem the tide of liens filed against homeowners by unpaid subcontractors and suppliers. In many cases the homeowner, who has already paid the general contractor for subcontracted services, ends up paying twice to keep his house and avoid a lengthy court battle.
While Utah and Davis counties have filed cases under the law, Yocom questioned its constitutionality. He asked Van Dam to determine if the statute violates the Utah Constitution, which prohibits imprisonment for debt.
Van Dam said the statute isn't as clear as it could be, but it is constitutional as long as the prosecution can prove the contractor's intent to commit theft in not paying those who supplied labor and materials.
Yocom explained that although it may be tough to prosecute someone under the new law, "it should send up a warning to contractors."
Licensing regulators says it has. "In many cases they (contractors) find out we are looking into it and they straighten things out before the 120-day limit," said Bill Essex Jr., investigations supervisor of contractors in the state Division of Occupational and Professional Licensing.
Yocom added that getting a conviction under the new law would give it more clout in preventing liens on innocent homeowners.
And that may happen next year. Essex said he plans to hand six cases to the county attorney early next year.