NORTH CAROLINA
COUNTY OF WAKE
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
FILE NO. 06 LBC 0827
NORTH CAROLINA LICENSING
BOARD FOR GENERAL
CONTRACTORS,
Petitioner,
)
)
)
)
)
PROPOSAL
v.
)
FOR DECISION
)
S.N. DAVIS COMPANY, INC.
)
(License No. 49245) and
)
SHELBY G. DAVIS, as Qualifier,
)
Respondent.
)
________________________________________________________________________
This matter came before the undersigned Administrative Law Judge, pursuant to
G.S. § 150B-40(e), on January 9, 2007, for a hearing on the merits of this action. The Petitioner
was represented by attorney David S. Wisz of the firm of Bailey & Dixon, L.L.P.; and the
Respondent failed to appear for the hearing. The issue before the undersigned ALJ was whether
the certificate of license issued by the Petitioner North Carolina Licensing Board for General
Contractors to Respondent Licensee S.N. Davis Company, Inc., as well as the qualifying
examination credentials of Respondent Qualifier Shelby G. Davis, should be revoked,
suspended, or restricted pursuant to G.S. § 87-11(a) as a result of gross negligence,
incompetency, or misconduct by the Respondent in the practice of general contracting and/or a
willful violation by the Respondent of any provision of North Carolina General Statutes Chapter
87, Article 1. After considering the testimony of the witnesses, the documentary evidence
presented at the hearing, and the arguments of the parties, the undersigned makes the following
proposed findings of fact and conclusions of law.
FINDINGS OF FACT
1.
Petitioner North Carolina Licensing Board for General Contractors
(Petitioner or Board) is an occupational licensing agency created pursuant to the authority of
Article 1, Chapter 87 of the North Carolina General Statutes to regulate the practice of general
contracting in the State of North Carolina.
2.
S.N. Davis Company, Inc. (Respondent Licensee) is licensed to practice
general contracting in North Carolina and holds Board License No. 49245. S.N. Davis
Company, Inc. has held that license since August 10, 2001.
3.
Shelby Davis (Respondent Qualifier) is the license qualifier for Board
License No. 49245. Shelby Davis has served as the sole qualifier for License No. 49245 since its
time of issuance.
4.
S.N. Davis Company, Inc. is a corporation formed under the laws of the
State of North Carolina whose principal place of business is located at 1548 Tower Road,
Norlina, Warren County, North Carolina, 27589. The registered agent for S.N. Davis Company,
Inc. is Shelby G. Davis, and the registered mailing address is Post Office Box 662, Warrenton,
North Carolina 27536.
5.
Petitioner instituted this matter by the filing of a Petition for Contested
Case Hearing on May 5, 2006.
6.
Respondent was properly served with the Petition by both certified mail
and personal delivery, as evidenced by an Affidavit of Service filed on June 12, 2006.
7.
Respondent originally entered an appearance in this matter through legal
counsel, but said counsel was allowed to withdraw by Order issued by this office on November
16, 2006.
8.
The January 9, 2007, hearing was duly noticed, as evidenced by a Notice
of Hearing and Notice of Hearing Reminder sent to the parties on September 12, 2006, and
December 11, 2006, respectively.
Perry Residence – Petitioner File No. 05 C 138
9.
During fall 2003, Respondent entered into a construction agreement with
George and Clarrisa Perry for the construction of a residence to be located at Hillside Way, Lot
18 of the West Hills subdivision, in Henderson, Vance County, North Carolina (the Perry
Residence).
10.
On or about November 23, 2003, Respondent applied for and was issued a
building permit for the construction of the Perry Residence.
11.
On April 19, 2005, based on information received from Vance County
Code Enforcement, Petitioner initiated a complaint against Respondent in the form of an
Affidavit in Support of Preferring Charges Against Licensed General Contractor.
12.
In its construction of the Perry Residence, Respondent violated the North
Carolina State Building Code in one or more of, but not limited to, the following particulars:
a. there were numerous locations where the joists framing into the side of a
wood girder were not supported by joist hangers or on ledger strips;
b. the first floor construction was not capable of accommodating all loads and of
transmitting the resulting loads to supporting structural elements;
c. the deck floor joists were not properly attached; and
d. the adjustable metal support columns in the basement were not properly
fastened and supported.
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13.
In its construction of the Perry Residence, Respondent committed
numerous other construction errors including, but not limited to, the following particulars:
a. several of the adjustable metal support columns were not of adequate length or
were missing;
b. the garage door header was not properly installed and was damaged; and
c. the foundation wall was cracked at the beam bearing point in the basement.
Smith Residence – Petitioner File No. 05 C 259
14.
On or about August 17, 2004, Respondent entered into a construction
agreement with Darryon and Gwen Smith for the construction of a residence to be located at 467
Greentown Avenue, Warrenton, Warrren County, North Carolina (the Smith Residence).
15.
On or about November 5, 2004, Respondent applied for and was issued a
building permit for the construction of the Smith Residence.
16.
On or about July 5, 2005, Darryon and Gwen Smith filed a Complaint
with the Petitioner arising out of Respondent’s conduct in connection with the construction of the
Smith Residence.
17.
In its construction of the Smith Residence, Respondent violated the North
Carolina State Building Code in one or more of, but not limited to, the following particulars:
a. the footings were out of level and improperly constructed;
b. the foundation wall was improperly constructed;
c. the footing and foundation walls did not align;
d. the wall framing did not align with the foundation wall;
e. the wood roof trusses were missing required bracing; and
f. Respondent failed to call in for the required inspections.
18.
In its construction of the Smith Residence, Respondent committed
numerous other construction errors including, but not limited to, the following particulars:
a. the foundation was not built in accordance with the approved building plans;
b. the first floor was out of level and sagged in several locations;
c. the stairwell walls were framed out of alignment;
d. the roof trusses were bowed in several locations; and
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e. end sections of the roof trusses were cut off and used for hip framing in
locations for which they were not designed.
19.
Based on the severity and number of Building Code violations and other
construction errors at the Smith Residence, an experienced engineer and building contractor
determined the work performed by Respondent could not be completed but rather the unfinished
house needed to be dismantled and construction needed to start over.
20.
On June 20, 2005, Darryon and Gwen Smith commenced a civil action
against Respondent in Warren Superior Court; 05 CVS 170 (the Smith Lawsuit); and
subsequently obtained a judgment against Respondent in an amount in excess of $70,000.
21.
Respondent failed to disclose the existence of the Smith Lawsuit on its
2006 Renewal Application to the Petitioner as required by G.S. § 87-13.
22.
Respondent has failed to make any payments to the Smiths to satisfy the
judgment entered against it in the Smith Lawsuit.
Wadsworth Congregation Church – Petitioner File No. 05 C 384
23.
On or about November 8, 2001, Respondent entered into a construction
agreement with the Wadsworth Congregation Church (the Wadsworth Church) for the
construction of a 2,500 square foot addition to the Wadsworth Church’s existing structure
located on Rock Creek Dairy Road, Whitsett, Guilford County, North Carolina.
24.
Respondent subsequently commenced construction of the Wadsworth
Church without applying for or securing a proper building permit, in violation of the applicable
North Carolina State Building Code.
25.
On or about April 30, 2002, Respondent applied for and secured a building
permit limited to the construction of the footings only for the Wadsworth Church. Despite this,
Respondent continued with the construction of the Church without securing the proper building
permit or requesting or obtaining the proper inspections, in violation of the applicable North
Carolina State Building Code.
26.
Respondent unilaterally changed the type of framing used in the
Wadsworth Church project from metal studs to wood studs without submitting new plans to the
Guilford County Building Inspection Department for approval.
27.
In its construction of the Wadsworth Church, Respondent committed
numerous construction errors including, but not limited to, the following particulars:
a. built an entrance/exit door in a location contrary to what was showed on the
submitted plans;
b. failed to properly flash between the new addition and the existing church
building; and
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c. oversized the bathroom walls;
28.
On or about February 3, 2003, the Wadsworth Church commenced a civil
action against Respondent relating to its construction of the Church styled in Guilford Superior
Court; 03 CVS 3908 (the Church Lawsuit).
29.
Respondent failed to disclose the existence of the Church Lawsuit on its
2003 or 2004 Renewal Applications to the Petitioner as required by G.S. § 87-13.
30.
On February 6, 2006, the Wadsworth Church obtained a judgment against
Respondent in the Church Lawsuit in an amount in excess of $150,000.
31.
Respondent has failed to make any payments to the Wadsworth Church to
satisfy the judgment entered against it in the Church Lawsuit.
32.
During the course of investigating the Wadsworth Church matter (05 C
384) referenced herein, the Petitioner further learned that in or around July 2001, Respondent
entered into an oral agreement with Johnson Chapel AME Church (the Johnson Church) to
construct a church building on two acres of land owned by the Church in Alamance County,
North Carolina. Subsequently, Respondent commenced grading of the land for the construction
of the building without first having submitted an erosion and sedimentation control plan to, and
securing approval from, the North Carolina Sedimentation Control Commission (or local
government agency authorized under G.S. § 113A-60) in violation of G.S. § 113A-57(4) and
15A N.C.A.C. §§ 04B.0107 and 04B.0118.
Ketcham Residence – Petitioner File No. 05 C 447
33.
On or about December 21, 2004, Respondent entered into an Offer to
Purchase and Contract and New Construction Addendum (the Contract) with Stacey Ketcham
and Thomas Nelson (the Owners) for the construction of a residence to be located at Lot 89 of
the Moss Creek subdivision in Wake Forest, Wake County, North Carolina (the Ketcham
Residence).
34.
The Contract indicated that construction would be completed by July 15,
2005.
35.
On or about July 16, 2005, Respondent having failed to complete any
construction of the Ketcham Residence apart from digging a hole for the basement, Respondent
and the Owners entered into a Termination of Contract agreement whereby Respondent agreed to
return to the Owners certain deposits totaling $3,602 on or before July 20, 2005.
36.
On March 3, 2006, the Owners filed a civil action against Respondent in
Vance County; 06 CVM 407 (the Nelson Lawsuit) to try and recover the amount owed them
under the Termination of Contract agreement. On June 26, 2006, the Owners obtained a
judgment against Respondent in the Nelson Lawsuit, yet Respondent has failed to make any
payments to satisfy the same.
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CONCLUSIONS OF LAW
1.
The Office of Administrative Hearings and the undersigned ALJ properly
exercised jurisdiction in conducting the hearing in this matter pursuant to G.S. § 150B-40(e).
2.
Respondent Licensee S.N. Davis Co., Inc. is guilty of gross negligence,
incompetency, and misconduct in the practice of general contracting, in violation of G.S. § 8711(a).
3.
The gross negligence, incompetency, and misconduct of Respondent
Licensee S.N. Davis Co., Inc. are directly attributable to, and were committed by, Respondent
Qualifier Shelby G. Davis.
4.
Respondent Licensee S.N. Davis Co., Inc. willfully violated the provisions
of G.S. § 87-13 by giving false information to the Petitioner in its Renewal Applications to
maintain its certificate of license, in further violation of G.S. § 87-11(a).
5.
The willful violation of Respondent Licensee S.N. Davis Co., Inc. of the
provisions of G.S. § 87-13 was directly attributable to, and was committed by, Respondent
Qualifier Shelby G. Davis.
PROPOSAL FOR DECISION
Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned
proposes that:
1.
Board License No. 49245 issued to Respondent Licensee S.N. Davis Co.,
Inc. be revoked pursuant to G.S. § 87-11(a); and
2.
The qualifying examination credentials of Respondent Qualifier Shelby B.
Davis be revoked pursuant to G.S. § 87-11(a).
NOTICE
The agency that will make the final decision in this matter is the Petitioner North
Carolina Licensing Board for General Contractors. Pursuant to 26 N.C.A.C. § 03.0127(c)(9),
Respondent is hereby notified that it has the right to file exceptions to this Proposal for Decision
with the North Carolina Licensing Board for General Contractors as well as the right to present
written arguments on this Proposal to that Board.
This the 24th day of January, 2007
______________________________
Joe L. Webster
Administrative Law Judge
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