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HomeMy WebLinkAbout0737 MAIN STREET (COTUIT) i c ' r . �'. i COMMONWEALTH OF MASSACHUSETTS.. : SUFFOLK, sse Board of.Building Regulations and.Standards'.,:, . Docket No. 2013427. Town of Barnstable, ) Complainant ) o- 3 a v ) . o 1 Christopher C. Peterson; RespondentZIP ) , HEARING DECISION : ,. . Procedural History This matter is before the Board:of Building Regulations and Standards("Board")as a result of a complaint filed by Thomas Perry("Perry"), in his capacity as Building Commissioner for the Town of Barnstable, alleging-that Christopher C. Peterson ("Peterson') (Unrestricted CSL Number 102975)violated 780 CMR,with,respect to wood- burning stove installation in a building located at 737 Main Street,Barnstable (Cotuit), MA ("Complaint"): In accordance:with 780 CMR,notices of the Complaint and notices of hearing were provided to the parties:. Perry and Peterson appeared at the hearing,which was held on May 14,201.3. Exhibits The following Exhibits were entered into evidence: Exhibit 1 T he Co,lip lainnt Exhibit2 Eleven(11).photographs of various aspects of the.wood-burning stove installation in the building located,at 737 Main Street, Barnstable -(Cotuit),MA taken. : by Perryton January28,2013:` Exhibit.3: Peterson's response tot he Complaint. Findings 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). The facts were not in dispute.. 1. On January 28,2013,Perry received a telephone call from the Centreville Osterville-Marston Mills Fire District dispatcher, requesting him to go to 737 Main Street in the Cotuit part of the Town of Barnstable. The Fire District had been responding to a complaint about.smoke at that location. (Exhibit 1;. Perry's testimony). 2. .The wood-burning stove, shown in Exhibit 2,was found in operation, causing smoke to back up 'inside the building. I(Perry's testimony). 3; By way of background,-the buildings at this location consisted of a grocery store,which dates back to 1850, located close to.Main Street, and a 32'x 50' two-story building, which Perry described as a contractor's bay, where equipment and tools related to Cotuit Solar's business were stored. This.., building/warehouse was located approximately 100 feet set back from Main Street. Upon arrival;Perry found that the overhead garage door for the building was,open. (Exhibit 2,parties' testimonies). 4. The wood-burning stove was found to consist of a former, 275-gallon,heating oil tank,which had been retrofitted with various Teatures so it.could accommodate the burning of wood:pallets (or wood similarly sized). For . example, one end of the.tank had been cut open, a band had been welded_ around the edge of.the tank opening, and the end was re-attached with hinges and a clamp to create a door. A vent with.a handle was added to the door. A chimney was installed near the opposite end of the tank.'_The chimney ran from the tank up through the ceiling of the room. The stove was located near a corner of the'room. Shelves_holding boxes and other items were located a-short distance from the closed stove.end. (Exhibit 1; Exhibit 2;parties' :testimonies): 5. Perry found that flammable liquids were stored in the building;including antifreeze used in hot-water solar panel installations. (Perry's testimony). 6. Peterson has worked for Cowit Solar for approximately nine years. The business has been located in this building for approximately four years. (Peterson's testimony). 7. Peterson estimatedthat the wood-burning stove was installed approximately - two.years prior to the hearing. (Peterson's testimony): 8. Peterson did not know whether the wood-burning stove had been permitted or inspected; he did not install it;he did not ask his employer:about it. (Peterson's testimony). 9.' Peterson recalled that the owner,of the business had, at some point,placed a'eall -to the Building Department to ask about installing the wood=burning.stove. (Peterson's testimony). On October-17, 2011, a_Local Building Inspector received a telephone call from the business owner about whether'this type of stove could be built and installed and the Inspector informed the caller why this type of installation'could not be done. :(Exhibit 1). 10. Peterson���or> s in the building almost daily; as part of his fob perfcrmir�g solar energy installations. As part of his work,he is often the CSL holder of record for:building permits for solar.installations.. Another individual(unnamed) working for the business also held.a CSL. (Peterson's testimony). - 2 ; 11. Peterson recalled that the-employees were not allowed to use the-gas-fired heating system that also'provided heat to the building and were instructed, instead,to use the.wood-burning stove. (Peterson.'s:testimony) 12. As of the date.o.f.the hearing,the wood-burning stove,had been removed- (although the-chimney remained in place). The owner had quickly acted upon a call from Perry about the stove.. (parties' testimonies). 13 Perry noted that,with respect to Peterson's solar installations,,there have not been Building Code problems. (Perry's testimony). Discussion The general issue is whether Peterson failed to_ensure compliance with 780 CMR, meaning the 8th Edition of the Massachusetts State Building Code (780 CMR) ("Code"). 780 CMR I IO:R5.2.8(3). (Given when the events took place, it is possible that the.7th Edition might be applied to the installation and removal of the wood-burning stove. But, as discussed below, the basic rules obligating the CSL holder are essentially the same under either edition°'of the.State Building Code.). The main.issue is the extent of a CSL holder's responsibilities in these circumstances. 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 CSL holder"shall be responsible to supervise" construction activities "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 I10.R5:2.15.2. Further, "the license holder shall immediately notify the.building official in writing of the discovery of any violations which are covered by the building permit." 780 CMR IIO.R5.2:I5.3. Thus, when a CSL holder is on site and involved in:construction activities, either as a supervisor of record, or working for the record permit holder; he has responsibility to ensure Code compliance: He cannot ignore Code failures. Note also: 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' other hazards attributed to the built environment and to provide,safety to fire fighters and emergency,responders during emergency operations. 780 CMR 101.3. Here, there was no dispute about substantial evidence of violations of, among other requirements, 780.CMR 105.1, 109.4, 110, and 1414`(as well as requirements for appliances)pertaining to the installation of the stove. These particular circumstances-were,'however, admittedly different from typical complaints against CSL holders involved in construction projects. There was not substantial evidence that Peterson initiated.the idea to install the wood-burning stove, and there was substantial evidence that someone else, likely his employer, chose to disregard what a building official said'aboutsuch an installation; Thus, it was clear that Peterson did not supervise himself, or anyone else, in creating the hazard and the.Code violations. But the wood=burning stove was not pre-existing condition Peterson first encountered when he began working for the business: , It was added after Peterson had . been working for the business for some time. By his own admission, he chose not to ask his employer about the installation.of the wood-burning stove. Peterson used.the device and had often seen it in operation.. He either assumed that the installation had been, reviewed and approved by a building official,.chose to ignore the hazards,'or concluded . that, after so much time in operation without apparent accidents,this device did not create safety risks. Further, the potential dangers associated with this type of improvised wood- :burning stove were far from subtle. .Common sense alone; without any knowledge of the Code, should have compelled anyone working in that space to questionthe stove's.safety. The existing conditions were obviously dangerous. We expect a CSL holder to display, something greater than only common sense.. This should be especially apparent when hazards are obvious, such as an illegal wood-burning stove,which could ignite much_ more than the wood placed inside it. Here, Peterson did nothing'.to stop this hazard.` When considered all together; 780 CMR 110.R5.2.15.1-R5.2.15.3 and 780 CMR 101:3 obligated Peterson,_in these:. particular circumstances, to do something to ensure.Code compliance. (Note that we offer no opinion about whether Peterson's failures to act or his actions affected the business owner/property owner's legatiesponsibilities with respect to the illegal installation of the stove.;See 780 CMR,105.1; 114.1; 114.3;-114.4.) Administrative Penalties After finding that the CSL holder has violated any part of 780 CMR or 780 CMR 780 CMR I I O.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 110.R5.2.9..5. . In deterninma the peYla,1'ty,the-Boar . onsiders.mltlgatLTicy and exacerbating . . circumstances-=-among other things, credible circumstances that may have reasonably impaired the CSL holder's ability to ensure Code compliance or;by contrast, circumstances which encouraged Code compliance. Further,Code failures that caused harm or have=a: greater likelihood of causing harm may be considered exacerbating. The Board also considers CSL holder's record of conduct on file with the Board. a 4 This is the only complaint against Peterson on record with the Board. Peterson appeared at the hearing and provided testimony. He' did not.dispute the facts. He was an employee of the individual(s)'apparently responsible for first creating the Code violations. The Code, specifically 780 CMR 110.R5, from a CSL holder's usual perspective, generally implicates a CSL holder.engaged in creating the Code errors,rather than outside of the context of a typical building project involving the supervision of a CSL holder: The building official noted that there have not been concerns,about Peterson's Code compliance with respect.to solar energy installations he has supervised in the Town. Although there was no evidence about the wood-burning stove having caused a building fire,the stove was, as discussed during the hearing, an"accident waiting to happen" and a potential tragedy,thankfully avoided, Conclusion Accordingly, CSL Number 102975,issued to Christopher C..Peterson, is hereby. issued a REPRIMAND for his failure to ensure Code compliance as described above. SO ORDERD BOARD OF BUILDING REGULATIONS AND STANDARDS By its designee, CIMSTOPHER N. P PO Hearings Officer. DATED: ,- June 27;2013 Any person aggrieved by this.decision may, in writing,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 inay 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 I10.R5,2.10. 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. 780 CMR I10.R5.2:10:1. " 5