STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD )

)

Petitioner, )

)

vs. ) CASE NO. 84-0691

)

FRED PERRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with an order issued by the undersigned on May 23, 1984, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, on June 25, 1954, in Lake City, Florida. The issue for consideration at the hearing was whether the Respondent's license as a registered building contractor in the State of Florida should be disciplined because of the allegations of misconduct contained in the Administrative Complaint filed in this case on January 18, 1984, and amended on June 18, 1984.

APPEARANCES

For Petitioner: Douglas A. Shropshire, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Terry McDavid, Esquire

Post Office Box 1328 Lake City, Florida 32056

BACKGROUND INFORMATION

An Administrative Complaint dated January 18, 1984, alleging that the Respondent willfully or deliberately disregarded and violated the appropriate building codes of Suwannee County, Florida, was served on the Respondent sometime thereafter. On February 1, 1984, the Respondent executed an Election of Rights form in which he disputed the facts contained in the Administrative Complaint and requested a formal hearing. The hearing was originally scheduled for May 21, 1984; however, on May 16, 1984, Respondent moved for a continuance on the basis that the owner of the property in question was unwilling to allow Respondent's experts to make an inspection of the roof. Based on this information and the concurrence of Petitioner's counsel, on May 23, 1984, the undersigned granted a continuance and rescheduled the hearing for June 25, 1984.

On June 12, 1984, Petitioner submitted a motion to amend the Administrative Complaint to allege that the facts previously contained in the original

Administrative Complaint also showed evidence of misconduct or incompetence and that the Respondent failed to properly supervise work that was his responsibility. On June 14, 1984, Respondent indicated he had no objection to granting of Petitioner's amendments so long as additional time was provided him to prepare a defense to the additional allegations. By order dated June 18, 1984, the undersigned granted the motion to amend the Administrative Complaint but denied the motion for a continuance on the basis that the proposed amendment contained no additional evidentiary matters, but merely alleged additional statutory violations based on the same factual information.

At the hearing, Petitioner introduced the testimony of Michael D. Allen, the owner of the property in question, and Patrick J. Sura, Chief Building Official for Suwannee County, Florida. Petitioner also introduced Petitioner's Exhibits numbered 1-5. Respondent testified in his own behalf and presented the testimony of Gordon J. Perry and Frederick L. Perry, his sons and employees who were involved in installing the roof in question on the Allen house, Ron Williams, an independent building contractor in Lake City; B. "Bud" Espenship, a building contractor in Lake City for 35 years; and Daniel Morgan, a licensed roofing contractor. Respondent also introduced Respondent's Exhibit A.

Petitioner submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.

FINDINGS OF FACT

1. At all times pertinent to the allegations obtained herein, Respondent was a registered building contractor holding license number RV0010136 issued by the State of Florida. His address was Route 4, Box 48-M, Lake City, Florida.

   
   

2. On April 4, 1982, Respondent entered into a contract with Michael D. Allen of Route I, Box 453, Live Oak, Florida, for the construction of a single- family residence on the Allen property for a contract price of $75,476. The contract was finished sometime in January 1983, and the Allens moved in that month. During some high winds shortly after they moved in, several shingles blew off the roof, exposing the underlying tar paper. The next day after the storm, Allen went out and saw approximately three or four shingles on the ground. When he picked them up and looked at them, he saw that they had no nail holes or staple holes in them.

   
   

3. Allen immediately pulled his tractor up to the house and stood on the seat so he could take a close look at the roof. When he did so, he found that he could not see a nail, staple or hole in the roof where these particular shingles had come from. In addition to that area denuded of shingles by the storm, Allen also lifted up a few other shingles and found what to him was evidence of improper installation. As a result, Allen went to a building supply house in the area and bought a package of the same shingles previously installed on his house by the Respondent in order to get the nailing instructions that came with them. Allen bought the shingles from the same supply house where Respondent had purchased the ones installed on his property. After examining the instructions which came with the shingles he purchased, Allen then called the office of the building inspector and spoke with the Chief Building Inspector, Mr. Pat Sura, who came out to inspect the roof. Allen went up on the roof with Sura and lifted several shingles in different places to see how they were affixed. In most cases, he found two staples in each shingle, but in some cases he found none. Of the 20 or so tabs he lifted (each shingle having three tabs), he found that some, but not many, were nailed in three places.

4. Sura confirms the fact that he was called by Allen. After the call, Sura checked his files and found that the permit for construction of the house was issued to Allen with Respondent listed as the contractor. When the complaint came in from Allen, Sura asked Mr. Cherry, a Department investigator, to go out and look at it with him, as is his standard practice. Sura does not recall exactly when this was done, but it was shortly after the call from Allen.

   
   

5. Sura went up on the Allens roof with Cherry and pulled up a few tabs to look for the nailing pattern. He found that the nailing pattern was misaligned, that a stapling gun was used, and that both staples and nails were, in his opinion, too short. Based on this viewing, Sura called a Mr. Canepa, who was a representative of the shingle manufacturer at the time, and asked him to inspect the roof himself. Canepa also found both nails and staples and pulled at least one of each out of the roof. He did not take many, however, because most of the shingles had only one or two fasteners per shingle. The ones that were pulled, however, were pulled from shingles that had four nails or staples in them.

   
   

6. Sura also went into the attic on the first visit with Cherry and examined the roof from the inside. He found very few staples or nails protruding through the inside of the subroof. Approximately 40 percent of the nails were not showing through.

   
   

7. Based on his examination, Sura concluded that approximately 70 percent of the shingles were not properly fixed, having three or less fasteners per shingle. Only 30 percent had four. These figures were based on spot samples from different sections of the roof. In Sura's opinion, it appeared to him that the staple gun used to apply the staples was out of order. The top of the staple is supposed to be horizontal to and flush with the top surface of the top shingle. Many of the staples and nails which he observed were not horizontal. In some cases, the cross piece on top of the staple extended as much as an eighth of an inch above the tab and had not been hammered down. In Sura's opinion, at least 70 percent of the staples he examined were in that condition. Unless the staple is flush with the roof, the result is that the staple does not go in far enough and also makes a raised area on the shingle.

   
   

8. According to the standards of the National Asbestos Roofing Manufacturer's Association (NARA), either nails or staples are supposed to be inserted below the glue tab on the shingle approximately five-eights inch above the top of the cut-out. A fastener is supposed to be above the top of the cutout and on each end. This would result in four fasteners per shingle. Sura found that in most cases the fasteners were on the glue tab or above it, very few were below it. An examination of 24 separate shingles revealed that those which had four fasteners were either crooked, raised or in the wrong place and, of these, 40 percent were in the wrong place.

   
   

9. The building code of Suwannee County does not contain detailed specifications of how shingles are to be installed. The code refers to other specifications, such as the NARA standards, and incorporates them by reference.

   
   

10. On one of the visits Sura made to the Allen home, the Respondent was also present with at least one of his sons. At Sura's request, Respondent or his son gave Sura some staples which he said are the type used on this job.

    However, Sura's examination revealed that these staples are not like the ones he took out of the roof. The staples used in the roof were three- quarter inch staples. Sura contends the ones given him by the Respondent were one-inch staples. At the hearing, Respondent and both his sons testified that they used three-quarter inch staples and did not give Sura one inch staples. The likelihood is that the proper sized staples were used.

    
    

11. The roofing of the Allen house was accomplished by using a one-half inch plywood decking (actually 15/32 inch). A sheet of felt is laid over the decking and the shingles laid over the felt. In some cases, the fastener is driven through all of that plus an additional tab as well. As a result, the fact that no staple or other fastener was protruding through into the attic is not necessarily pertinent, and the use of a three-quarter inch staple could be acceptable if it was installed properly.

    
    

12. As to the flush nature of the staple, a slight variance is accepted. It was recognized that it is impossible to get an exactly flush installation. The degree of acceptable variance is a subjective call, however.

    
    

13. The staple that was removed by either Sura or Canepa (there is some uncertainty as to who pulled the staple but no uncertainty that one of the two actually accomplished that task) was protruding approximately one-eighth inch above the surface of the shingle.

    
    

14. Gordon K. Perry, Respondent's son and employee, worked on the Allen house as the roofer. He, another brother, and a third employee worked as a team to install the roof, with his brother on the lower line, himself in the middle, and the other employee-on the upper line. As he and his associates laid the shingles, Perry, as the man in the middle, affixed them to the roof with a stapling gun. Perry indicates that he installed the shingles exactly as called for in the instructions contained on the wrapper around the shingles as they come from the manufacturer. Perry contends he used four staples to each shingle, and always does, but admits he might have missed one once in a while. Perry tried to affix the staples so they are flush with the shingles, but admits he might have missed one once in a while. If the gun misfires and leaves it protruding above the shingle, he and his team members all had hammers with which they would hammer the protruding staple down flush with the shingle. He contends he had no trouble installing this roof and that the gun he used was working properly.

    
    

15. This testimony was confirmed by that of the other son, Frederick L. Perry, who also indicated that the crew followed the instructions on the wrapper for the installation of the shingles with one exception at the corner a staple was driven through two shingles instead of one. This procedure would however, in his opinion, at least meet the requirements and he feels even exceed them.

    He observed the way his brother was stapling the shingles on the Allen roof and could see nothing wrong with the procedure followed. His father, the Respondent, came to the job site frequently during the three days it took to install the Allen's roof and actually came up on the roof to observe but did not do any of the actual installation work.

    
    

16. He explains the reason for the four or five loose shingles dislodged by the wind as being the result of the air hose for the staple gun getting caught under the tabs of these several shingles while the crew was working with the gun on the other side of the roof. When Mr. Perry observed what had happened he told the employee to go back to that area, put the tabs down and tack them down. Unfortunately, he did not check to see if that was done. He

    subsequently found out that the employee put the tabs back down but did not affix them as instructed. When he, on this later occasion, checked this area, he saw that where the shingles had broken loose, the nails were still in the roof and the felt was still there. Finding some broken shingle pieces on the lawn, he used them to make a temporary patch for the roof fully intending to report this situation to his father immediately. He did not have an opportunity to make the permanent repair did not feel he should do so without his father's instructions. Not withstanding his father's knowledge of the situation, he received no instructions from his father to make the repairs.

    
    

17. The final and permanent repair was accomplished approximately a week prior to the hearing after the granting of the first continuance. On that occasion when he checked the other shingles, Perry found four staples in every shingle that he checked and they were, for the most part, properly flushed.

    
    

18. Ron W. Williams, a building contractor registered in Lake City and coincidently a member of the Board of County Commissioners, also examined the Allen's roof on June 19, 1984. Independently he went up on the roof, pulled back tabs and looked at the shingles and their method of affixing in five different locations on the roof. He could see nothing wrong with how the shingles were installed and attempted to pull several staples using a pair of pliers and screwdriver. The difficulty he experienced in extracting the shingles is, in his opinion, an indication of how well they were installed. None that he saw were raised up. Some were at a permissible angle. Mr.

    Williams found anywhere from 7 to 8 staples in each shingle consisting of 3 or 4 staples across the top of each shingle plus fasteners from the higher shingle as well. In his opinion the roof looked good. The lines were straight, there was no waving. He could see no indication of any problem with the shingles or of weakness or that the shingles would be subject to wind removal.

    
    

19. Another contractor who made his inspection at the same time was D. B. Espenship, a 35 year building contractor in Lake City, who has during his career constructed in excess of 500 homes. Mr. Espenship also independently went to 5 or 6 different areas on the Allen roof and pulled up the shingle tabs. He saw nothing to indicate any problems with the way the shingles were applied. The roof looked good, the lines were straight, staples flush and the angles not bad.

    
    

20. David Morgan, a licensed roofing contractor in Lake City for more than

    15 years does mostly residential roofing including shingles. On the same date as the others described, supra, he also went up on the roof .and watched Mr. Williams do his inspection. He also did his own inspection as well. When Mr. Morgan lifted the tabs he saw the staples and could see nothing to indicate that they were improperly installed. He could see no code violations nor could he see any potential problems. The roof was in excellent shape. In fact, "about as good as you could get."

    
    

21. Mr. Perry, Respondent, first learned of the problems with the Allen roof when he was contracted by Mr. Cherry to go out and look at it. This was shortly after the storm which removed the shingles. Cherry asked Respondent to meet with Mr. Allen and Mr. Sura at the premises. When he arrived, no one showed up. However, at approximately a half hour later, Mr. Sura came up without Mr. Cherry. Mr. Sura would not go up on the roof. He said that at that time it was "out of his hands". The matter was in the hands of Mr. Allen and Mr. Cherry. In any case, Respondent went up on the roof as requested and lifted several shingles, but could find no problem.

22. Thereafter, when Respondent called Mr. Cherry, Cherry said he would have to talk to Mr. Sura about it. Mr. Sura indicated he would ;nail respondent a copy of Mr. Canepa's report, but he never received it. In fact until he got the administrative complaint through the mail, he contends he could never get a straight complaint from anyone. He tried to get together with Mr. Allen on several occasions, but in his opinion, could not seem to satisfy him. Respondent also went up on the roof June 19 to make another inspection. At this late date, even in light of the administrative complaint he can still find nothing wrong with the roof. The lines are straight, the proper number of staples are installed and they are installed properly. The roof is in his opinion good and he, on the record, guaranteed to replace it if, with the exception of tornado damage, the roof blows off within the next 18-20 years.

    
    

23. Mr. Perry has been a building contractor since 1966. He does all types of construction including the construction of between 300 and 400 homes over the years. Normally he does all the work within the firm. If they are very busy however, he subcontracts some. In this case, the Allen home was built "in-house" and he, himself, worked along with his workmen. He is, in addition to being a contractor, an ordained minister in the Baptist church in Lake City and has been so for the past 20 years. He does not know Mr. Canepa and knows of no reason Mr. Canepa would have to lie. The same is true of Mr. Sura. He feels that both individuals just did not examine the roof closely enough. He contends they are mistaken in their description of the roof's condition.

    
    

24. Mr. Sura contends that the building code in this case was violated by respondent in the following particulars; violation of the provisions of the Southern Standard Building Codes:

    
    

    1. The use of 3 or less fasteners;

    2. Placing the nails or fasteners either on or above the glue tab,

    3. Failure to have the tops of the fasteners flush with the surface of the shingle; and

    4. Failure to have the top of the staple parallel to the shingle line.

       
       

       All these defects were brought to the attention of the Respondent in August, 1983. No corrective action was taken until one week prior to the hearing.

       
       

25. On balance, considering the relative probabilities and improbabilities of the testimony of the witnesses and their interest in the outcome of the proceedings, or their lack thereof, it is found that Respondent, through his roofing crew, improperly installed a large number of shingles on the Allen roof.

    
    

    CONCLUSIONS OF LAW

    
    

26. The Department of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.

    
    

27. In the Administrative Complaint as originally filed, Respondent is charged with a violation of Section 489.129(1)(d), Florida Statutes (1984) by violating Section 706.1, of the Southern Standard Building Code (1973) which had been adopted into Suwannee County Ordinance Number 74-04, by failing to install the shingle roof on a residence he constructed in a manner consistent with those standards.

28. Section 589.129, Florida Statutes, permits the Petitioner to discipline the license of a licensee upon a showing that the licensee is guilty of:

    
    

    "(1)(d) Willful or deliberate disregard and violation of the applicable building codes

    or laws of the State or of any municipalities of counties thereof."

    
    

29. The evidence here, in the form of the testimony of Mr. Sura and Mr. Canepa, the former chief county building official and the latter a former, but no longer, employee of the shingle manufacturer involved; and to a lesser degree, that of Mr. Allen, clearly shows at least a great portion of the shingles installed by Respondent of this project were installed in violation of the provisions of the Southern Standard Building Code and the standards of NARA, both of which were made a part of the Suwanee County Building Code. That the roof may have nonetheless been sound goes not to the issue of violation but to the quantum of disciplinary action.

    
    

30. The same evidence referred to above would also serve to establish evidence of incompetence in the practice of contracting in violation of Section 489.129(1)((m), Florida Statutes, but the failure to supervise, alleged as a violation of Section 489.105(4), Florida Statutes, has not been proven.

RECOMMENDATION

Based on the foregoing, it is, therefore.

RECOMMENDED That Respondent, Fred Perry, be reprimanded and pay an administrative fine of $1,000.90 which fine shall be remitted up a positive showing by affidavit of the owner or County Building Inspector that the roof defects have been corrected.

DONE and RECOMMENDED THIS 10th day of August, 1984, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1984.

COPIES FURNISHED:

Douglas A. Shropshire Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301 (904) 488-0062

Terry McDavid

Post Office Box 1328 Lake City, Florida 32056

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

James Linnan, Executive Director Department of Professional Regulation Construction Industry Licensing

Post Office Box 2 Jacksonville, Florida 32202

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 0036932

DOAH CASE NO. 84-0691

FRED PERRY,

License No. RB00136,

Respondent.

/

FINAL ORDER

THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)9, Florida Statutes, on January 10, 1985, in Tampa,

Florida for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the Hearing Officer in the case of Department of Professional Regulation vs Fred Perry, Case No. 84- 0691. The petitioner was represented by Douglas A. Shropshire, Esquire. The Respondent was not present nor represented by Counsel at the Board meeting.

Upon consideration of the hearing officer's Recommended Order, and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings:

FINDINGS OF FACT

1. The hearing officer's findings of fact are hereby approved and adopted.

   
   

2. There is compeent, substantial evidence to support the hearing officer's findings of fact.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.

   
   

4. The hearing officer's conclusions of law, are hereby approved and adopted in toto.

   
   

5. The hearing officer's recommendation with regard to Perry is hereby approved and adopted except that Respondent, Fred Perry shall be granted 90 days to correct the roof defects as stated in the recommended Order, Failure to provide proof of such repair in a form satisfactory to the Executive Director of the Board will result in an administrative fine of $1,000.00 being imposed.

   
   

6. There is competent substantial evidence to support the Board's findings and conclusions,

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

1. Respondent is hereby Reprimanded.

   
   

2. Respondent is hereby granted 90 days to correct the roof defects specified in the Recommended Order.

   
   

3. Respondent shall furnish proof of said repairs in a form satisfactory to the Executive Director of the Board within 90 days.

   
   

4. Should Respondent fail to correct the roof defects and furnish the proof required as provided in Paragraph 3 within said 90 days, an administrative fine of $1000.00 be and the same is hereby imposed.

   
   

5. In the event the fine provided in Paragraph 4 above is imposed and not paid within 30 days thereof, the Respondent's license shall be suspended until said fine is paid.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one (1) copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one (1) copy of a notice of appeal with the District Court of Appeal within thirty (30) days of the date of this order is filed.

This Order shall become effective upon filing with the clerk of the Department of Professional Regulation.

DONE and ORDERED this 3rd day of March, 1985

DONALD W. STOBS, Chairman Construction Industry Licensing Board

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by certified mail to

Fred Perry

Rte #4, Box 48M

Lake City, Florida 32055

Terry McDavid, Esquire

P.O. Box 1328

Lake City, Florida 32056

and by hand delivery/United States mail to the Board Clerk, Department of Professional Regulation and its Counsel 130 North Monroe Street, Tallahassee Florida 32301, on or before 5:00 p.m., this 12th day of March, 1985.

Docket for Case No: 84-000691

Orders for Case No: 84-000691