24A-143 SO ORDERD
BOARD OF BUILDING REGULATIONS AND STANDARDS
By its designee,
CHRISTOPHER N. POPOV
Hearings Officer
DATED: July 13,2010
In 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.
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Although only a few days passed between when Helems began construction
activities and when he obtained a building permit,he did not comply with 780 CMR 110.1.
The next issue is whether the actual work Helems performed also failed to comply
with the Code. The basic premise for all types of floor construction is that is must"be
capable of supporting all loads imposed according to 780 CMR 3603.1 and transmitting the
resulting loads to other supporting elements." 780 CMR 3605.1.2.
Here,there was no doubt about the importance of the columns in the basement with
respect to meeting the structural requirements of 780 CMR 3605.1.2 (among other parts of
the Code). But there was not substantial evidence that the wood columns, as Helems
worked with them through the issuance of the certificate of occupancy on May 1, 2007,
failed to meet the Code's load-bearing requirements. Although the installation of steel lally
columns,if done correctly, could also have met(or possibly exceeded)the Code's load-
bearing requirements, the fact that the lally columns were not installed by Helems did not
provide substantial evidence of a Code failure.
Similarly,while there may have been concern about the rear deck, there was not
substantial evidence that the work failed to meet the Code.
Administrative Penalties
After finding that the CSL holder has violated any part of 780 CMR or 780 CMR
780 CMR 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 revoke the CSL holder's license. See
780 CMR R5.2.9.6.1. In addition, the license holder may be ordered to take or retake the
CSL examination. Id.
Compliance with the building permit process is, obviously, one of the most
important parts in ensuring that the goals of the Code are met. Helems should have had
the building permit before commencing any demolition activities. But I also consider the
facts that the building permit process soon got"back on track" and that the City has not
brought any other concerns to the Board's attention. Further, there was no evidence that
the time between when construction activities began and when a building permit was
issued was associated with any other problems under the Code.
Conclusion
In accordance with 780 CMR R.5.2.9.6.1 and R.5.2.9.8, and considering the facts
and conclusions described above, Construction Supervisor License number 93395 issued to
James A. Helems, is hereby issued a REPRIMAND for his failure to comply with 780
CMR 110.1, as described above.
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I
approximately 50 screws into the deck boards to secure them to the
supporting elements. (Helem's testimony).
13. Although Helems had concluded most, if not all, of his work on the project
in May 2007,there were other items (such as the installation of the lally
columns) which became part of the parties' contractual dispute. The
parties,however, agreed that Helems work stopped as of May 2007
(Exhibits 3, 3A; Helem's testimony; Martinez' testimony).
14. Sometime in July 2007,Martinez hired another contractor to, among other
things, install the lally columns. (Martinez' testimony).
Discussion
The general issue is whether Helems violated 780 CMR, meaning the Sixth
Edition of the Massachusetts State Building Code (780 CMR) ("Code"), given when the
work took place. "The license holder shall be fully and completely responsible for all
work for which he is supervising. He shall be responsible for seeing that all work is done
pursuant to 780 CMR and the drawings as approved by the Building Official." 780 CMR
R5.2.15.1. It is unlawful for anyone to perform construction"in conflict with or in
violation of any of the provisions of 780 CMR." 780 CMR 118.1. Any violation of the
Code may be cause for suspending or revoking a CSL. 780 CMR 85.2.8; 780 CMR
R5.2.9.6.1.
The first sub-issue is whether there was substantial evidence showing that Helems
failed to comply with the Code's permitting requirements. The Code specifies:
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 780 CMR
without first filing a written application with the building official and
obtaining the required permit therefor. 780 CMR 110.1.
Thus, even demolition, alone, may not commence before having a building permit in hand.
Here,the evidence shows that Helems commenced demolition work prior to having
obtained the building permit. While he may have recalled that another contractor was
involved in demolition work, and that the City ordered the other contractor to obtain a
permit,Helems submitted bills for his own demolition work, which showed that a
significant number of hours were devoted to demolition, a few days before the City issued
the building permit.
But is also appears that the City was aware of the construction activities as of
January 16, 2007, and the evidence is clear that the City did not issue the relevant building
permit until January 26, 2007. The evidence shows that the City ordered a building permit
to be obtained,but there were no records that the City issued any type of stop-work order.
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occurred in the second floor wall over the same area. (Exhibit 1;
Martinez' testimony).
7. By the time the building official performed a rough frame inspection, which
was approved as of February 13, 2007,the scope of work had grown to
the point where much of the interior framing was fully exposed from the
basement to the attic, according to Helems. (Helem's testimony).
8. During this stage of the work, Helems recommended that steel lally
columns replace wood columns in the basement because, eventually,the
wood columns could rot. But Helems recalled that the building official
inspected the existing wood columns in the basement and deemed them
to be structurally sound as part of his framing inspection. (Helems'
testimony).
9. As part of preparing for the installation of lally columns, Helems had the
existing concrete floor in the basement cut in the areas where new
concrete footings were to be installed to support the lally columns.
(Helem's testimony).
10. Although the installation of lally columns was not part of the original
contract,the parties agreed to add that change. The Lally columns were
purchased. (Helem's testimony; Martinez' testimony). But, as Helems
recalled, there was the dead-line of May 1, 2007 by which Martinez had
to be able to occupy the home. Helems concluded that the lally columns
could have been installed at a later time because the basement area was
unfinished and fully exposed for such work. (Helem's testimony).
11. Martinez recalled that Helems had cut the wood columns in the basement.
(Martinez' testimony). Helems recalled that the wood columns
supported a center-carrying wall and framing above, and, if he had cut
the columns,the structure above would not have held. Moreover, such a
defect would have been so obvious that the building official would not
have approved the rough framing. (Helem's testimony). While it is
possible that the wood columns could have been altered after the City
completed the rough framing inspection, I do not find that there was
substantial evidence that were defects in the wood columns which also
went undetected by the City between the time of the rough inspection
and when the City issued the certificate of occupancy.
12. Martinez also alleged that"the stairs up from the yard of the back deck were
never finished. The risers were never installed. [S]he was required to
hire another individual to complete the work." (Exhibit 1). Martinez
submitted a copy of a photograph,which shows three steps leading to a
landing to a sliding door, captioned"Rear Deck; Stair Risers never
installed by Helems." (Exhibit 4). Helems, however,testified that he
installed the footings and the deck, which were inspected and approved
by the City. (Helem's testimony). Martinez testified that when she
stepped onto the deck,the boards flexed. She noticed that there were
holes in the deck boards, but some screws for the deck boards were
missing. (Martinez' testimony). Helem's recalled installing
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Findings of Fact
The following findings of fact and conclusions of law are supported by substantial
evidence, based upon testimony, documents entered into evidence, and administrative
records of the Board. G. L. c. 30A, §11(2), §14(7).
1. On or about January 2007,Martinez hired Helems to perform repair and
restoration work in her home, following extensive water damage caused
by plumbing leakage earlier that same month. Among other things,the
work included removing all damaged material down to the existing
framing in the kitchen, living room, upstairs bathroom, damaged areas in
the pantry, and flooring in the downstairs bathroom. The total contract
price was approximately $45,000. (Exhibits 1, 1A;Martinez'
testimony).
2. Martinez recalled that Helems began demolition work on January 14, 2007.
(Martinez' testimony). On or about January 25, 2007, a building official
from the City of Northampton visited the site and ordered a building
permit to be obtained,which was issued on January 26,2007. (Exhibits
2, 2A).
3. Helems recalled that an outfit called"ServPro"began the demolition work
without a permit, and ServPro was ordered by the City to obtain a
permit. Helems believed that the "01/25/07 SITE VISIT, ORDER
CONTRACTOR TO OBTAIN PERMIT LOUIS" entry on Exhibit 2A
applied to ServPro,not to him. He recalled that, apart from reviewing
the damage and planning for the work, he did not begin work until the
end of January 2007. (Helems' testimony). Exhibit 2A also contains an
entry "BP-2007-0741 REPAIR WATER DAMAGE HOLES OK
01/16/07 LOUIS." The number"BP-2007-0741"was also assigned to
the building permit issued on January 26,2007. (Exhibits 2, 2A).
4. On or about January 15,2007, Helems issued a bill to Martinez, which
listed"Demo" as having taken place on January 14, 15, 16, 17, and 18,
2007. The same bill also contains an item for"Building Permits", which
is undated but appears just after the January 15 entry for demolition.
(Exhibit 213). On or about January 17, 2007, Helems issued a bill which
lists entries for demo having taken place on January 23 and 25, 2007.
(Exhibit 213). The bills show that 69.5 hours were devoted to demolition
during those days.
5. Work proceeded, and City building inspections were performed and
approved through the issuance of a certificate of occupancy on May 1,
2007. (Exhibit 2; Martinez' testimony).
6. As part of the contract,Martinez believed that lally columns were to be
installed in the basement,to support a wall in the kitchen/living room.
She believed that,because Helems did not install the lally columns,
cracks occurred in the living room wall and ceiling and a crack also
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d6-A l *3
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. Board of Building Regulations and Standards
Docket No. 2008-534
Marta B. Martinez, )
Complainant )
V.
7 J v t
James A. Helems,
Respondent )
HEARING DECISION
Procedural History
This matter is before the Board of Building Regulations and Standards ("Board") as
a result of a complaint filed by Marta P. Martinez("Martinez"), of 18 Bates Street,
Northampton,MA 01060, alleging that James A. Helems (CSL Number 93395) (d/b/a
Creative Construction) ("Helems")violated 780 CMR with respect to repair and restoration
work at Martinez' home ("Complaint"). In accordance with 780 CMR,notices of the
Complaint and notices of hearing were provided to the parties. A hearing was held on May
26, 2010, in which Helems, Martinez, Stacie A. Stewart(attorney on behalf of Martinez),
and Deresa Helems appeared.
Exhibits
The following Exhibits were entered into evidence:
Exhibit 1: Copy of the Complaint, including narrative Martinez provided.
Exhibit IA: Copy of Creative Construction contract proposal for work at Martinez'
home.
Exhibit 2: Copies of City of Northampton Building Permit BP-2007-0741 and Permit
List Report printed on May 16, 2008.
Exhibit 2A: Copy of building official notes on City of Northampton log for 18 Bates
Street.
Exhibit 213: Copies of Creative Construction Invoices, # 56 and 958, dated 1115 and
1/17/2007.
Exhibit 3: Copy of Helem's response to the Complaint.
Exhibit 3A: Copy of Martinez' further response to Helem's response.
Exhibit 4: Copy of photograph showing rear deck and stairway to Martinez' home.