Attorney General of Arkansas — Opinion
STEVE CLARK, Attorney General
Representative L.L. Bryan 305 South Vancouver Street Russellville, AR 72801
Dear Representative Bryan:
This is in response to your request for an opinion regarding whether any violations occurred with respect to the bidding procedures for the Asbestos Abatement Program at Adams Field in Little Rock, specifically whether any violations of Act 150 of 1965 and Act 394 of 1985 occurred.
Act 394 of 1985, Ark. Stat. Ann. 82-1944 through 82-1950, qualifies the Arkansas Department of Pollution Control and Ecology to administer and enforce a specific licensing program for contractors engaged in the removal of friable asbestos materials from facilities. Act 150 of 1965, Ark. Stat. Ann. 71-701 through 71-720, more generally sets forth licensing requirements for all contractors performing work in Arkansas exceeding $20,000. The statutes are alike in that both provide that contractors must be licensed prior to engaging in operations. The statutes differ in that the enforcement power for Act 394 of 1985 lies in the Arkansas Department of Pollution Control and Ecology whereas enforcement power for Act 150 of 1965 lies in the State Licensing Board for Contractors.
One of the major concerns expressed in the attachment to your request for this opinion is that a contract was awarded to a company who at the time did not have a license as required under either Act 394 of 1985 or Act 150 of 1965. If in fact the company which was awarded the contract did not have the appropriate, required license, then a violation of both Acts may have occurred. However, the proper governing authority, the Arkansas Department of Pollution Control and Ecology or the State Licensing Board for Contractors, respectively, would be responsible for pursuing the matter.
Additionally, cases interpreting contract/licensing law have indicated that unless it appears affirmatively that the Legislature intended to render the forbidden act or contract absolutely void in legal contemplation, it will not be so held. Ottinger v. Blackwell, 173 F. Supp. 817, (E.D.Ark. 1959) citing Woolfort v. Dixie Cotton Company, 77 Ark. 203, 91 S.W. 306 (1905). In both Act 394 and 150, there is no mention by the Legislature that if a contract is awarded to a company which is not licensed, that contract is void. The prohibition goes solely to the remedy and not to the inherent validity of the contract itself. Ottinger, infra.
The foregoing factors therefore indicate that if a contract was awarded to an unlicensed contractor, the appropriate authority must take action; in this case, the Arkansas Department of Pollution Control and Ecology and/or the State Licensing Board for Contractors. The various procedures for such action and possible remedies are administered by that authority according to the respective statutes.
The foregoing opinion, which I hereby approve, was prepared by Rhonda K. Hill, Assistant Attorney General.