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1 WOODSIDE STREET - BUILDING INSPECTION I 1r�loc�c��o S i ib. affdK4Ta Fdd" 40%largerlabefAm •••• SMEA76 KEEPING YOU ORGANIZED No. 10301 PNWFENM %m• wmmum GET ORGANIZED R SrEAD.COM COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. Board of Building Regulations and Standards Docket No. 2015-507 City of Salem, ) Complainant ) V. ) Robert Kneeland, ) Respondent ) HEARING DECISION Procedural History This matter is before the Board of Building Regulations and Standards ("Board") because a complaint was filed by Thomas St. Pierre ("St Pierre"), in his capacity as Building Commissioner for the City of Salem, MA, alleging that Robert Kneeland (Unrestricted CSL Number 107611) ("Kneeland") violated 780 CMR with respect to an exterior stair and vestibule repair/reconstruction project located at 1-A Woodside Street, Salem, MA ("Complaint"). In accordance with 780 CMR I I O.R5.2.9.1.2, 110.R5.2.9.1.3, 110.R5.2.9.1.4, and I I O.R5.2.9.1.11,notices of the Complaint and notices of hearing were provided to the parties. St. Pierre and Kneeland appeared at the hearing, which was held on July 21, 2015. Exhibits The following Exhibits were entered into evidence: Exhibit 1: The Complaint; Exhibit 1A: Estimate by"Wing T Construction," dated 04/06/2015; Exhibit 2: Three (3)photographs of parts of stair work,provided by the City (taken in May 2015); Exhibit 3: Kneeland's response to the Complaint; Exhibit 4: Two (2)photographs of the stair work, provided by Kneeland(taken in May 2015). Findings The following findings of fact and conclusions of law are supported by testimony, documents entered into evidence, and administrative records of the Board. G. L. c. 30A, §11(2), §14(7). The facts were not in dispute. 1. On May 1, 2015, Sharon Pederson, the owner of the single-family dwelling located at IA Woodside Street, Salem, MA, contacted the City of Salem Building Department. She told St. Pierre her concerns about work being done on a set of exterior stairs and side-entry vestibule for her house, as shown by the photographs in Exhibit 2. 2. As a result of Ms. Pederson's call to St. Pierre, he visited the site, took photographs, then wrote a letter, dated May 5, 2015,to Ms. Pederson, which summarized his findings. (The letter is part of the Complaint .) 3. St. Pierre reviewed Building Department records and found no record of applications or permits for the work Ms. Pederson described. 4. New stringers for the exterior stairs were cut from 2 x 10's and did not squarely fit. (See Exhibit 2). The faces of the stringers were not on the same plane, so the riser/kickboard was not on the same plane. 5. Four new stringers had been installed to replace existing stringers and new stair treads and risers had been partly installed. (See Exhibit 4). 6. A window had been removed from the rear of the vestibule,the opening had been filled in, and new shingle siding had been partly installed(partly covering the former window opening. No type of underlayment had been installed before installing the new shingle siding. (See Exhibit 2). 7. On or about April 6, 2015, Ms. Pederson hired Kneeland(d/b/a Wing T Construction)to replace exterior stair treads and lattice, in fill a window, and upgrade the interior of a non-insulated vestibule (shown in Exhibit 4). (See also Exhibit IA). The original intent was to perform repairs/cosmetic work, rather than make the vestibule habitable and/or replace the exterior stairs. The total estimate for the work was $2,100. Kneeland dealt with Ms. Pederson and her daughter, Jennifer. 8. When Kneeland commenced work(with one other individual who did not hold a CSL),the interior of the vestibule already consisted of exposed studs. Ms. Pederson wanted the interior covered with T-111 siding, (which is shown in Exhibit 4)and did not want the walls to be insulated. The interior work was performed during the first day of work. 9. On the second day, work began on the stair treads and risers. Kneeland explained to Ms. Pederson and/or Jennifer that, if the stairs were in worse condition than they appeared, he would need to obtain a building permit for the work. 10. The other individual involved, who was a carpenter Kneeland was supervising, began working on the stringers,and ended up installing them as shown in Exhibit 2 and Exhibit 4. As Kneeland described it, his carpenter"hung them as poorly as the pictures show." Jennifer called Kneeland,who was not on site at that time, and was upset. 11. Kneeland recalled that he went to the site on the same day Jennifer called him,he stopped the work, and attempted to, as he put it, "talk her down." He instructed the carpenter to leave the site. He explained to Jennifer that he would have to obtain a building permit, remove all the stair work, and start over. He agreed with her concerns that the work was not done properly. He left the site, understanding that 2 Ms. Pederson and Jennifer agreed with what he would do next(i.e. obtain a building permit and correct the work). 12. But, later that same day,Jennifer called Kneeland and told him not to return to her mother's house to continue working on the project. 13. The next day he returned to the site to retrieve materials. (He recalled having been paid$700 and having purchased all the materials for the project.). But the materials had been locked in a trailer on site. Jennifer appeared and was visibly angry with Kneeland. Kneeland left the site,for good, leaving behind materials. 14. During the hearing, St. Pierre first learned about Kneeland's discussions with the Pedersons about obtaining a building permit and correcting the work. St. Pierre noted that, had he known about Kneeland's efforts, he might not have filed a complaint and would have worked with Kneeland to ensure Building Code compliance. 15. Approximately one week after Kneeland was terminated from the work, someone else completed the work, according to Kneeland. Discussion The Complaint raised the following issues: (1)whether work was performed without a building permit (780 CMR RI05.1); (2) whether the work performed failed to comply with certain structural requirements of the State Building Code. The 8th Edition of the Massachusetts State Building Code, also known as the "International Residential Code for One-and Two-family Dwellings 2009 IRC," as adopted and amended by Massachusetts as 780 CMR ("Code") 780 CMR RIO].1, applied to the work. The Code requires the CSL holder"to be fully and completely responsible for all the work" being supervised and to "be responsible for seeing that all work is done pursuant to 780 CMR." 780 CMR IIO.R5.2.15.1. The license holder shall be responsible to supervise the construction, reconstruction, installation, alteration, repair,removal or demolition for the category of license held involving any activity regulated by any provision of 780 CMR and all other applicable Laws of the Commonwealth even though he, the license holder, is not the permit holder but only a subcontractor or contractor to the permit holder. 780 CMR 110.R5.2.15.2. First, while the project may have initially appeared to have been only cosmetic or possibly involved only ordinary repairs, the work significantly changed. "It shall be unlawful to construct,reconstruct, alter, repair,remove or demolish a building or structure; or to change the use or occupancy of a building or structure; or to install or alter any equipment for which provision is made or the installation of which is regulated by this code without first filing a written application with the building official and obtaining the required permit." 780 CMR R105.1. (Note also that the building permit must"be kept on the site of the work and be posted conspicuously until the completion of the project." 780 CMR R105.7). 3 "Ordinary repairs" are those types of repairs defined as "any maintenance which does not affect the structure, egress, fire protection systems, fire ratings, energy conservation provisions, plumbing, sanitary, gas, electrical or other utilities." 780 CMR R202. (emphasis added). "A building permit is not required for ordinary repairs." 780 CMR R105.2.2. Thus, in this case, if"the structure, egress . . . or energy conservation provisions"- were not affected, it likely could have been deemed to be "ordinary repairs." But removing a window and replacing with infill framing, sheathing, and siding, albeit on a relatively small part of an uninhabitable vestibule, arguably implicated the building structure. However, when the existing stringers had to be removed and replaced with new ones,there was no doubt that the structure and egress were affected. As a result (as Kneeland knew), a building permit was required. Next, the CSL holder must operate under the general rule that"all work shall be conducted, installed, protected and completed in a workmanlike and acceptable manner so as to secure the results intended by"the Code. 780 CMR R105.8.1. The purpose of this code is to establish minimum requirements to safeguard the public safety, health and general welfare through affordability, structural strength, means of egress facilities, stability, sanitation, light and ventilation, energy conservation and safety to life and property from fire and other hazards attributed to the built environment and to provide safety to fire fighters and emergency responders during emergency operations. 780 CMR R101.3. As the Building Commissioner's May 5, 2015 letter to Sharon Pederson made clear, the actual construction work did not meet"workmanlike and acceptable" standards. Note also that the dimensions of what was constructed, ostensibly under Kneeland's supervision, did not comply with 780 CMR R311.7.4.3. Finally, note that the facts here raise issues about adequate supervision by the CSL holder. By qualifying to hold a CSL, one is deemed able"to directly supervise persons engaged in the scope of work." 780 CMR 110.R5.1.2. The CSL holder must"be present on the site at some point to approve construction, reconstruction, alterations, removal or demolition"involving, as applicable in this case, structural frame elements. 780 CMR 110.R5.2.12. He or she must actually "supervise"in order to meet the responsibilities.set forth in 780 CMR 110.R5.2.15.1 and 780 CMR 11 O.R5.2.15.2 . While there may be some reasonable debate about how often direct supervision is needed to ensure Code compliance, depending on the circumstances of each particular project, there can be no debate about when the CSL holder never is on site. If the CSL holder never shows up, he cannot comply with 780 CMR 11 O.R5.2.12 and 780 CMR 110.R5.2.15. 4 But simply being present may not be sufficient to show adequate supervision if there are Code errors that could have been avoided and/or readily corrected. Here, Kneeland obviously was on site at certain points, and, when he was not on site while his co-worker performed carpentry, there may have been a somewhat reasonable belief that no building permit was needed. But, as the circumstances changed, it became clear that Kneeland's co-worker needed more direct supervision with respect to how to rebuild a set of stairs. Kneeland was obviously on site to identify the errors and offered to correct them. Administrative Penalties After finding that the CSL holder has violated any part of the Code (including any part of 780 CMR I IO.R5), the Hearings Officer may issue a reprimand to the CSL holder, or suspend the CSL holder's license for a period of time, or permanently revoke the CSL holder's license. See 780 CMR 110.R5.2.8; 110.R5.2.9.5. In addition, "the hearing officer may order the license holder to retake the CSL examination." 780 CMR IIOS5.2.9.5. In determining the penalty,the Board considers mitigating and exacerbating circumstances. Mitigating circumstances may include, among other things, a CSL holder's record with the Board,his response(s)to the Complaint,his actual correction of Code errors, and whether conduct by the customer(or other credible circumstances) reasonably impaired the CSL holder's ability to comply with the Code. Exacerbating (or aggravating) circumstances may include failure(s)to respond to a complaint, actual or potential harm from the Code violations, lack of reasonable explanations (or excuses or justifications)for the Code violations. This is the only complaint against Kneeland on record with the Board. He provided a written response to the Complaint, testified credibly at the hearing, and did not contest the Building Commissioner's determinations. Kneeland made genuine attempts to correct Code'errors. The homeowner did not allow him to continue (although, given the quality of the actual work even partially completed, it might not surprise one that confidence in Kneeland decreased). Kneeland's explanations and excuses were reasonable. But, obviously, his co- worker needed more direct supervision as to how to properly construct a set of stairs. Note that in most circumstances, failing to obtain a building permit justifies a suspension of a CSL. "Any work requiring a building permit which is performed without such permit shall be considered cause for suspension or revocation." 780 CMR 110.R5.2.9.1.1. But, in these particular circumstances, a reprimand is sufficient. However, if another complaint were to be filed against Kneeland and that complaint resulted in finding(s) of failure(s)to ensure Code compliance,the result would likely be, at least, a suspension of his CSL. 5 Conclusion Accordingly, CSL Number 107611, issued to Robert Kneeland, is hereby issued a REPRIMAND. SO ORDERD BOARD OF BUILDING REGULATIONS AND STANDARDS By its designee, �CHRISTOPHER N. POPOV 1 Hearings Officer DATED: July 30,2015 Any person aggrieved by this decision may, in writing,within 30 days after receipt of this decision request review of this decision by the Board. The filing of such a request shall not stay any the disciplinary action specified by the Hearings Officer. The Board may review the decision at its discretion. If the Board decides to review the decision,the review is an administrative review that shall be based solely on the administrative record and is not to be construed as a second hearing on the same complaint. After such review,the Board may either deny the request or remand the matter to the Hearings Officer for further proceedings, as directed. The filing of such a request with the Board shall serve to toll the timing provisions of G. L. c. 30A, §14 until such time as a final decision is rendered by the Board. 780 CMR 11O.R5.2.10. hi accordance with G. L. c. 30A, §14, any person aggrieved by this decision may appeal to the Superior Court within 30 days after receipt of this decision. 780 CMR IIO.R5.2.10.1. 6