Hawaii's contractor licensing laws already make it a criminal misdemeanor to act as if one is a licensed contractor without a contractors' license.  However, the penalty is up to one year in prison and it is not, as stated above, a felony.  In a recent ICA decision, the court upheld a trial court's indictment of an unlicensed contractor who extracted monies from an owner by, inter alia falsely representing himself as a licensed contractor.  The case, found here, is State v. Atwood, 127 Haw. 241 (Haw. Ct. App. 2012). 

The facts of the case are not cited in detail, but it appears that Atwood falsely represented himself as a licensed contractor to two homeowners, and upon the strength of that lie, entered into a construction contract, took their money, started construction, then used the start of construction to demand more monies.  He then basically pocketed the money.  Atwood was indicted for theft at the trial court level, and sought interlocutory appeal of the indictment.   Atwood argued that the trial court's indictment was predicated upon civil claims for fraud, and were improperly used to claim theft.  Atwood also argued that unlicensed contracting is already policed by regulatory agencies and further convictions outside the prescribed criminal penalties identified in the licensing statute, are now allowed.

The ICA upheld the indictment and rejected Atwood's arguments, holding that Hawaii's contractor licensing laws already recognize acting as an unlicensed contractor as a criminal act, and that nothing in the statute precludes further conviction for crimes committed by the unlicensed contractor.  Here, Atwood obtained monies from the homeowners through his false licensing representations, then obtained further sums by continuing the falsehood.  This was enough to support the indictment.  Moreover, even though the  trial court couched its language in civil terms, the actions complained of were properly laid out as a crime of theft by deception, thus the indictment must stand.

Many times when clients complain about unlicensed contractors who have stolen money from them, they want to approach the police and demand that the contractor be criminally prosecuted for his actions.  In most instances, where there is a civil dispute, the police will not get involved and take criminal action.  This case provides a vivid example of what can happen when they do — most unlicensed contractors find themselves brought before the contractors license board and required to pay restitution plus a fine for their actions — actual time served for unlicensed activity is rare.  But in this case, the unlicensed contractor is now subject to a felony claiim for theft, and serves notice that the State of Hawaii takes unlicensed contracting very seriously, especially when it involves homeowners.