DISREGARD OF PLANS, SPECIFICATIONS, LAWS OR REGULATIONS
Nevada, like most other states, has an administrative board that is responsible for the licensing and oversight of persons or entities (contractors) that perform construction work in this state. The board is referred to as the Nevada State Contractors Board and is governed by Chapters 624 of the Nevada Revised Statutes (NRS) and Nevada Administrative Code (NAC). The provisions of NRS 624 relating to the discipline of licensees are intended to promote public confidence and trust in the competence and integrity of licensees and to protect the health, safety and welfare of the public. The same is true about Uniform Building Codes, and while not every potential complaint against a contractor constitutes grounds for disciplinary action by the Contractors Board, a violation of NRS 624.3011, for disregarding plans, specifications, laws or regulations can result in the imposition of severe disciplinary action.
NRS 624.3011 states that the willful and prejudicial departure from or disregard of plans or specifications in any material respect without the consent of the owner or the owner’s authorized representative and the person entitled to have the particular construction project or operation completed in accordance with the plans and specifications is grounds for disciplinary action. It is also grounds for disciplinary action, subject to rebuttable presumption, if a contractor performs construction without obtaining any necessary building permit. The presumption is that the contractor knew that that a building permit was required and chose to perform the work without obtaining the permit. This presumption can be rebutted by the licensee upon presentation of credible evidence that a permit was not required.
In one case presently before the contractors board the board claims that the licensee:
Entered into a written proposal/contract for the remodel of the kitchen, laundry, mud room with a toilet and storage area with washer/dryer and cabinets at the project. Respondent completed the installation of all work described above without securing a building permit from the building department. A building permit is required by the County’s adoption of the International Residential Building Code. Based on the foregoing, Respondent violated NRS 624.3011(1)(b)(1) by willfully or deliberately disregarding and violating the building laws of the state or any political subdivision thereof.
In this case, the contractor’s board took the position that a remodel of a kitchen required the issuance of a building permit and sought to impose disciplinary action against the contractor based on a “rebuttable” presumption that the contractor willfully and deliberately violated the law by failing to obtain a permit.
Rebuttable
Sometimes a violation of the law can be inferred by the licensee’s conduct. However, that is not the case in this instance. Here, it is important to note that the presumption is “rebuttable” because an “inference” and “rebuttable presumption” are not the same thing. A rebuttable presumption is a rule of law by which the finding of a basic fact gives rise to the presumed fact’s existence, unless the presumption is rebutted. In contrast, an inference is a logical and reasonable conclusion of a fact not presented but which, by process of logic and reason, a trier of fact may conclude exists from the established facts. Although an inference may give rise to a rebuttable presumption in appropriate cases, and inference simply allows the trier or fact to determine, based on evidence, that a fact exists. An inference is permissible, not required, and it does not shift the burden of proof. Bass-Davis v. Davis, 122 Nev. 442, 134 P.3d 103 (2006). Thus, it is imperative that if a licensee can reasonably rebut a claim, they should do so.
The statute also states that a cause for disciplinary action exists where there is a willful or deliberate disregard for and violation of the building laws of the state or of any political subdivision thereof (building codes), laws regarding industrial insurance, labor laws, any provision of the Nevada health and safety laws, or regulations relating to the digging, boring, or drilling of water wells.
Because there are limits to the authority and enforcement of the provisions of Chapter 624 by the Contractors Board, and there are certain “rebuttable” presumptions involved, it is imperative that the licensee obtain the services of an experienced attorney if any claims are brought against them. The Wright Law Group, P.C. has decades of experience defending claims before the Contractors Board and is well equipped to assist you in handling your case. Please call us at 702-405-0001 to schedule a consultation or email us.