{ "id": 793209, "name": "FLORENCE CONCRETE PRODUCTS, INC., a South Carolina Corporation, Petitioner v. NORTH CAROLINA LICENSING BOARD FOR GENERAL CONTRACTORS, Respondent", "name_abbreviation": "Florence Concrete Products, Inc. v. North Carolina Licensing Board for General Contractors", "decision_date": "1995-07-28", "docket_number": "No. 70PA94", "first_page": "134", "last_page": "141", "citations": [ { "type": "official", "cite": "341 N.C. 134" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "437 S.E.2d 877", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": -1 }, { "cite": "113 N.C. App. 270", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521832 ], "year": 1994, "opinion_index": -1, "case_paths": [ "/nc-app/113/0270-01" ] }, { "cite": "19 ALR3d 1407", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "133 So. 2d 44", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 5292709, 5288734 ], "weight": 2, "year": 1961, "pin_cites": [ { "page": "132-33" } ], "opinion_index": 0, "case_paths": [ "/ala/272/0640-01", "/ala/272/0703-02" ] }, { "cite": "272 Ala. 640", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 5292709 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/ala/272/0640-01" ] }, { "cite": "340 P.2d 929", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10493057 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/p2d/340/0929-01" ] }, { "cite": "188 S.C. 288", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 2046130 ], "weight": 3, "year": 1938, "opinion_index": 0, "case_paths": [ "/sc/188/0288-01" ] }, { "cite": "177 S.E.2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1970, "pin_cites": [ { "page": "281" }, { "page": "281" }, { "page": "280" }, { "page": "281-82" }, { "page": "282" } ], "opinion_index": 0 }, { "cite": "277 N.C. 119", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563328 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0119-01" ] }, { "cite": "426 S.E.2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 441", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545380 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0441-01" ] }, { "cite": "437 S.E.2d 877", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "880" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 270", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521832 ], "year": 1994, "pin_cites": [ { "page": "274" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0270-01" ] } ], "analysis": { "cardinality": 729, "char_count": 17694, "ocr_confidence": 0.757, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.028538536416601895 }, "sha256": "9663f3d3448c022e619cb93489d6b891d0a2bdaf5c4383988af34c7a56221338", "simhash": "1:2d29164b2478a9b2", "word_count": 2770 }, "last_updated": "2023-07-14T22:14:42.837437+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "FLORENCE CONCRETE PRODUCTS, INC., a South Carolina Corporation, Petitioner v. NORTH CAROLINA LICENSING BOARD FOR GENERAL CONTRACTORS, Respondent" ], "opinions": [ { "text": "ORR, Justice.\nPetitioner Florence Concrete is a South Carolina corporation engaged in the manufacture and installation of prestressed concrete components for highway bridges. As such, petitioner has bid on past projects with the North Carolina Department of Transportation (\u201cDOT\u201d), supplied prestressed concrete components for more than two hundred North Carolina bridges, and installed these components in North Carolina bridges after bidding on these projects and being awarded the contracts.\nIn 1990, DOT issued invitations to petitioner to bid on fourteen DOT projects to supply and place prestressed concrete bridge components in North Carolina bridges. Upon receipt of petitioner\u2019s bids, the Department of Administration Division of Purchase and Contract (\u201cDOA\u201d) raised questions regarding licensing requirements for petitioner and other companies supplying prestressed concrete beams for these bridges. In a letter dated 6 February 1991, the State Purchasing Officer for DOA requested an opinion from respondent, the North Carolina Licensing Board for General Contractors, regarding the licensing requirements for bidders under these types of contracts. In a letter dated 13 February 1991, the secretary for respondent informed DOA that the total contract price would be the determining factor for licensing requirements. At that time, the statutory minimum was $45,000. See N.C.G.S. \u00a7 87-1 (1989). Thus, the secretary informed DOA that \u201csuch persons, firms or corporations bidding upon or contracting for projects costing $45,000 or more are required to be licensed general contractors.\u201d\nAfter receiving respondent\u2019s letter, DOT disqualified petitioner and its bids on the DOT projects. In order to continue to bid on bridge projects, petitioner obtained a general contractor\u2019s license; however, this action was taken \u201cunder protest\u201d because of the increased liability and insurance costs involved with being a general contractor. Prior to this time, petitioner had not received notice from any North Carolina department or agency that a general contractor\u2019s license was required for bidding on or performing its bridge work.\nOn 9 April 1991, petitioner sought a declaratory ruling from respondent requesting a ruling that petitioner did not need a general contractor\u2019s license to bid on DOT projects because, under these facts, petitioner did not meet the definition of a general contractor under N.C.G.S. \u00a7 87-1 and the case law interpreting this section. Respondent failed to issue a ruling within sixty days, which, under then-existing N.C.G.S. \u00a7 150B-17 (recodified as N.C.G.S. \u00a7 150B-4), was tantamount to a denial of the request on its merits.\nPetitioner filed a verified petition for judicial review in Superior Court, Wake County. On 2 January 1992, Judge Barnette entered a judgment containing findings of fact which tend to show the following:\nThe bidding procedure regarding these contracts with DOT, which petitioner has followed in the past and is expected to follow in the future, begins when DOT issues invitations for bids. Petitioner then returns its bid to DOT, and DOT opens the bids and tabulates the results. Thereafter, DOT mails a notice of intent to award the contract to the lowest responsible bidder. DOA then issues purchase orders with regard to the contract. As found by the trial court,\nIn the past, all purchase orders issued by DOA have required, in one form or another, that:\nBeams, caps, & rails to be delivered by truck, unloaded & put in place by supplier,.. .\nDelivery will be made from Sumter, SC within 45 consecutive calendar days after receipt of order.\nAll necessary trucks, cranes, operators, labor & other equipment & material necessary for complete job to be furnished by Beam manufacturer.\nThe duties petitioner performs pursuant to these purchase orders have not changed in the past and are not expected to change in the future.\nAfter petitioner receives a signed purchase order from DOA, it begins fabricating the concrete bridge components in its South Carolina plant. At this time, petitioner provides a DOT inspector with an office in its plant, and the inspector supervises the manufacture of the concrete components. When the bridge components are completed, the DOT inspector inspects the completed bridge components for project specifications and stamps the components indicating such approval before they are shipped out of petitioner\u2019s plant to the project in North Carolina.\nAfter fabrication of the concrete components is completed and these components are inspected and approved, petitioner holds the components in its plant in South Carolina until the North Carolina Division of Bridge Maintenance (\u201cDOM\u201d), a division of DOT, requests delivery to North Carolina. Before DOM requests delivery of these concrete components, DOM\u2019s maintenance crews excavate the site for the bridge pilings by removing any existing bridge. The DOM crews then drive the pilings into place. Thereafter, DOM notifies petitioner to proceed with delivery and installation of the bridge caps, bridge beams, and barrier rails, pursuant to the purchase order.\nPetitioner then proceeds to the project site where it installs the bridge caps and the first span of bridge components, consisting of eight to twelve concrete slabs. DOM controls and supervises this process. After petitioner completes this step, DOM crews, under DOM supervision, backfill the approach of the first span. Thereafter, petitioner places mats, which are owned and supplied by the State, on the approach and first span and then moves its crane to begin span two, if necessary. After the span or spans are in place, petitioner installs its barrier rails. Once the barrier rails are installed, petitioner\u2019s work is completed, and petitioner removes its equipment from the project site. State crews then complete all backfilling, wing wall installation, and pavement preparation. The pavement is placed by either DOM crews or other subcontractors. The entire project takes from one week to ten days to complete, and petitioner\u2019s portion of the project amounts to approximately six to eight hours.\nBased on these findings, the trial court concluded that petitioner \u201cdoes not meet the definition of a general contractor set forth in G.S. \u00a7 87-1 and does not require a North Carolina general contractor\u2019s license to bid and perform the work on behalf of the North Carolina Department of Transportation\u201d and reversed respondent\u2019s \u201cdecision.\u201d Respondent appealed to the Court of Appeals, and on 4 January 1994, the Court of Appeals reversed the trial court\u2019s decision. Pursuant to N.C.G.S. \u00a7 7A-31, petitioner filed a petition for discretionary review with this Court, which was allowed 7 April 1994.\nThe sole issue before us is whether, under the facts of this case, petitioner is a \u201cgeneral contractor\u201d as defined by N.C.G.S. \u00a7 87-1 and is therefore required to obtain a general contractor\u2019s license to perform its contracts with DOT. For the reasons stated below, we conclude that petitioner is not a general contractor, and we therefore reverse the decision of the Court of Appeals.\nN.C.G.S. \u00a7 87-1 states in pertinent part:\n[A]ny person or firm or corporation who for a fixed price, commission, fee, or wage, undertakes to bid upon or to construct or who undertakes to superintend or manage, on his own behalf or for any person, firm, or corporation that is not licensed as a general contractor pursuant to this Article, the construction of any building, highway, public utilities, grading or any improvement or structure where the cost of the undertaking- is thirty thousand dollars ($30,000) or more . . . shall be deemed to be a \u201cgeneral contractor\u201d engaged in the business of general contracting in the State of North Carolina.\nN.C.G.S. \u00a7 87-1 (1994). When an entity falls under this statutory definition, it must be licensed as a general contractor. See Baker Construction Co. v. Phillips, 333 N.C. 441, 426 S.E.2d 679 (1993).\nBased on our holding in Vogel v. Reed Supply Co., 277 N.C. 119, 177 S.E.2d 273 (1970), and the specific facts of the present case, we conclude that petitioner is not a general contractor as defined under N.C.G.S. \u00a7 87-1. In Vogel, the issue presented was whether a subcontractor, Reed Supply Company, was a general contractor as defined by N.C.G.S. \u00a7 87-1. Under the facts of Vogel, Reed Supply Company undertook \u201cto furnish labor and materials in excess of $20,000.00[, the statutory minimum at'that time,] to construct integral parts of a large building complex.\u201d Id. at 131-32, 177 S.E.2d at 281. Specifically, Reed Supply Company was required to\n\u201cfurnish and erect exterior and interior wall panels, wood floor system subfloor, roof sheathing, bridging, trusses. Furnish and install windows, doors, base, shoe, soffit trim, plywood closures, masonite siding and louvers. Furnish only roofing and felt. Furnish and install shelving, door locks, door knockers. Furnish and complete painting. Furnish only entrance door frame.\u201d\nId. at 132, 177 S.E.2d at 281. \u201cA few minor items, including painting of the interior ceilings, were specifically excluded from the subcontract.\u201d Id.\nIn determining whether Reed Supply Company qualified as a general contractor under N.C.G.S. \u00a7 87-1, we reviewed the language of the statute as follows:\nIt is apparent, and we think significant, that Reed did not undertake to construct a building or structure. Completion of the above items leaves much to be done before a building or a structure results. ... A building is defined as \u201can edifice ... a structure\u201d; and a structure is defined as \u201cthat which is built or constructed; an edifice or building of any kind.\u201d Black\u2019s Law Dictionary, 4th Ed. Rev. 1968; Brown v. Sikes, 188 S.C. 288, 198 S.E. 854 (1938). So when the words building and structure are strictly construed, in context with the remainder of G.S. 87-1, they do not embrace parts or segments of a building or structure.\nId.\nSimilarly under the facts in the present case, petitioner does not undertake to bid upon or construct \u201cany building, highway, ... or structure.\u201d Petitioner constructs and installs prestressed concrete components for highway bridges. Specifically, under its contracts with DOT, petitioner only undertakes to construct and install bridge caps, bridge beams, and barrier rails. Building the entire bridge takes from one week to ten days, and petitioner\u2019s portion of the project amounts to approximately six to eight hours. According to the facts as found by the trial court, either DOM crews or other subcontractors complete the rest of the bridge, which includes backfilling, wing wall installation, pavement preparation, and paving. Thus, installation of petitioner\u2019s prestressed components leaves much to be done before a bridge results. Under our holding in Vogel, therefore, petitioner\u2019s job of manufacturing and installing these prestressed concrete components does not constitute the construction of a \u201cbuilding,\u201d \u201cstructure,\u201d or \u201chighway\u201d under the statute.\nIn determining that petitioner qualified as a general contractor under N.C.G.S. \u00a7 87-1, however, the Court of Appeals stated,\nthe work performed by Florence Concrete involved the manufacture of prestressed concrete components for highway bridges. This constitutes an improvement to a highway and is thus the type of work referred to in G.S. \u00a7 87-1. Furthermore, all Florence Concrete\u2019s contracted work appears to exceed the statutory $30,000 limit. Under these circumstances, we hold Florence Concrete is required to possess a general contractor\u2019s license when performing DOT bridge construction projects if the cost of the undertaking exceeds the statutory minimum.\nFlorence Concrete v. N.C. Licensing Bd. for Gen. Contractors, 113 N.C. App. 270, 274, 437 S.E.2d 877, 880 (1994).\nAgain, based on our holding in Vogel and the underlying policy reasons behind the licensure requirement, we disagree with the holding of the Court of Appeals. In Vogel, we stated that the purpose behind N.C.G.S. \u00a7 87-1 is to protect the public from incompetent builders. Vogel, 277 N.C. at 130, 177 S.E.2d at 280. Further, we defined an \u201cimprovement\u201d under the statute as follows:\nThe term \u201cimprovement\u201d does not have a definite and fixed meaning. Cities Service Gas Co. v. Christian, 340 P.2d 929 (Okl. 1959). . . . The word is sometimes used to refer to any enhancement in value, particularly in relation to non-structural changes to land. Mazel v. Bain, 272 Ala. 640, 133 So. 2d 44 (1961). But where, as here, it is used in context with the words building and structure, its meaning is otherwise. As used here it connotes the performance of construction work and presupposes the prior existence of some structure to be improved... . The construction in this case \u201cstarted from scratch.\u201d There was no existing building or structure to be improved, and in our view the term \u201cimprovement\u201d as used in G.S. 87-1 has no application to the facts in this case.\nId. at 132-33, 177 S.E.2d at 281-82. Based on the conclusion that Reed Supply Company did not construct a structure, building, or improvement under the statute and \u201cexamining the statute in light of its purpose,\u201d we held that Reed Supply Company was not a \u201cgeneral contractor\u201d as defined by N.C.G.S. \u00a7 87-1 and was therefore not required to be licensed. Id. at 133, 177 S.E.2d at 282.\nSimilarly, in the present case, petitioner\u2019s contracts with DOT do not involve an improvement to a preexisting structure. Petitioner only contracts with DOT to build replacement bridges, and prior to petitioner installing its prestressed concrete components, DOM\u2019s maintenance crews remove any existing bridge. Thus, because the term \u201cimprovement\u201d presupposes the existence of some structure to be improved, the fact that any previously existing bridge is removed before petitioner begins installation of its components leads us to conclude that, as in Vogel, this term does not apply in the present case. Further, because petitioner contracts with DOT to perform only a small portion of the highway bridge construction, which does not include the backfilling, wing wall installation, and especially the paving, we disagree with the Court of Appeals\u2019 classification of petitioner\u2019s work as an improvement to a \u201chighway.\u201d\nAdditionally, the policy reasons behind the licensure requirement of N.C.G.S. \u00a7 87-1 do not apply to require licensure of petitioner under the facts in the present case. DOT supervises and controls every step of the project in which petitioner is involved. In fact, a DOT inspector even inspects the manufacture of the prestressed concrete components in petitioner\u2019s plant and approves them for use in North Carolina bridges. Once on the construction site, DOM supervises and controls petitioner\u2019s installation of bridge caps and components.\nN.C.G.S. \u00a7 87-1 requires licensure of general contractors in order to protect the public from incompetent builders. Where, as here, the public is protected by a State agency which has been delegated the authority to supervise the construction and maintenance of highways and highway bridges, the protection of the public does not require licensure of a subcontractor like petitioner who contracts to perform a small portion of the replacement bridge construction and whose work is closely supervised by the State agency. Thus, we hold that under the specific facts of this case, petitioner is not a general contractor as defined under N.C.G.S. \u00a7 87-1 and therefore is not required to be licensed as such. We note, however, that our holding here today does not necessarily extend to the private sector where a State agency is not required to oversee construction and where the safety of the public would be at issue.\nFor the foregoing reasons, we reverse the decision of the Court of Appeals.\nREVERSED.", "type": "majority", "author": "ORR, Justice." } ], "attorneys": [ "Jordan, Price, Wall, Gray & Jones, by Henry W. Jones, Jr. and Jonathan P. Carr, for petitioner-appellant.", "Bailey & Dixon, L.L.P, by Carson Carmichael, III, for respondent-appellee." ], "corrections": "", "head_matter": "FLORENCE CONCRETE PRODUCTS, INC., a South Carolina Corporation, Petitioner v. NORTH CAROLINA LICENSING BOARD FOR GENERAL CONTRACTORS, Respondent\nNo. 70PA94\n(Filed 28 July 1995)\nContractors \u00a7 4 (NCI4th)\u2014 manufacture and installation of concrete bridge components \u2014 general contractor\u2019s license not required\nPetitioner was not required to possess a general contractor\u2019s license when manufacturing and installing prestressed concrete components for DOT bridge construction projects since (1) petitioner\u2019s job does not constitute the construction of a building, structure or highway within the meaning of N.C.G.S. \u00a7 87-1 because petitioner manufactures and installs only bridge caps, beams and barrier rails, building the entire bridge takes from one week to ten days, petitioner\u2019s portion of the project amounts to approximately six to eight hours, and petitioner thus performs only a small portion of the bridge construction; (2) petitioner\u2019s work does not constitute an improvement to a highway within the meaning of \u00a7 87-1; and (3) the policy reasons behind the licensure requirement of \u00a7 87-1 do not apply because the DOT supervises and controls every step of the project in which petitioner is involved.\nAm Jur 2d, Building and Construction Contracts \u00a7 131.\nWho is a \u201ccontractor\u201d within statutes requiring the licensing of, or imposing a license tax upon, a \u201ccontractor\u201d without specifying the kinds of contractors involved. 19 ALR3d 1407.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a unanimous decision of the Court of Appeals, 113 N.C. App. 270, 437 S.E.2d 877 (1994), reversing judgment on judicial review for petitioner entered 2 January 1992 by Barnette, J., in Superior Court, Wake County. Heard in the Supreme Court 9 May 1995.\nJordan, Price, Wall, Gray & Jones, by Henry W. Jones, Jr. and Jonathan P. Carr, for petitioner-appellant.\nBailey & Dixon, L.L.P, by Carson Carmichael, III, for respondent-appellee." }, "file_name": "0134-01", "first_page_order": 168, "last_page_order": 175 }