vs. ) CASE NO. 87-4392
RICHARD T. HENNEBERY, )
Respondent. )
vs. ) CASE NO 87-4393
RICHARD T. HENNEBERY JR., )
Respondent. )
vs. ) CASE NO. 87-4398
RICHARD T. HENNEBERY, JR., )
Respondent. )
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on November 16, 1988, in Fort Lauderdale, Florida.
For Petitioner: Michael J. Cohen, Esquire
For Respondent: John C. Moppert, Esquire
By separate Administrative Complaints, Petitioner charged Respondent with various violations of the construction contracting laws, and Respondent requested formal hearings on those allegations. The matters were referred to the Division of Administrative Hearings, and all three cases were consolidated. Accordingly, the issues for consideration herein are whether Respondent is guilty of the allegations contained with the Administrative Complaints filed against him, and if so, what disciplinary action should be taken against him, if any.
Petitioner presented the testimony of Michael Cirulnick, Virginia A. Phillips, Eugene M. Gardner, Robert B. Hilson, Sandra Roberts, Rolden Jones, Michael Brodbeck, Samuel Weiss, Andrew Jackson, and Hugh Jones. Additionally, Petitioner's Exhibits numbered 1-22 were admitted in evidence.
Respondent Richard Hennebery testified on his own behalf and presented the testimony of Kirk Keuter, Wayne Roper, and Walter Harris. Additionally, Respondent's Exhibits numbered 1-9 were admitted in evidence.
Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.
At all times relevant hereto, Respondent was licensed as a roofing contractor by the Construction Industry Licensing Board, having been issued license number CC CO24406.
Respondent contracted with Michael Cirulnick on or about June 21, 1986, to replace his flat tar and gravel roof. The contract was for $900 and provided a five year guarantee against leaks.
The City of Sunrise required a permit for this job, having adopted by local ordinance sections 301 et seg. of the South Florida Building Code.
Prior to contracting with Respondent, Cirulnick had obtained a bid from Code Three Roofing Company. He did not sign a contract with Code Three and did not know that Code Three had applied for a permit.
Cirulnick did not tell Respondent that he already had a permit on the
job.
Respondent performed the job without obtaining a building permit or
inspections.
Approximately two weeks after the job was finished, at the first hard rain, the roof began to leak in new areas. After the job, leaks developed twenty-four feet from the valley of the adjoining sloped roof to the right and twelve feet to the left, corresponding to the kitchen sliding door and the dining room sliding door.
Cirulnick called Respondent for 6 to 8 weeks before finally reaching him in response to the leaks, at which time Respondent promised to repair them.
Respondent claimed that he was contacted approximately two weeks after the job was completed. He blamed the new leaks on the sloped shingle roof and refused to repair them under his guarantee.
Cirulnick contacted the City of Sunrise after repeated unfulfilled promises from Respondent that he would attend to the problem. When Cirulnick learned that no permit or inspections had been obtained, he contacted the Department of Professional Regulation.
In 1987, in response to Cirulnick's complaints, Respondent sent Walter Harris, who told Cirulnick he was with "American Roofing". He told Cirulnick that the problem was with the way the flat roof was tied into the sloped roof, and called the job "terrible." He made repairs to the tie-in where the flat tar and gravel roof connected to the sloped shingle roof, which repairs stopped the leaks over the living and dining room sliding doors, but not the leak by the kitchen doorway beneath the area where the valley of the sloped roof ties in with the flat roof.
Respondent obtained a permit and final inspection based upon his affidavit filed with the City of Sunrise in December of 1987, 1-1/2 years after he completed the Cirulnick job.
Eugene Gardner, Building Official for the City of Sunrise, had inspected the Cirulnick roof when the shingle roof had been installed. This was shortly before Cirulnick purchased the property. When Gardner was there, there was no black roof cement in the valley of the sloped shingle roof. Cirulnick examined the roof both before and after Respondent worked on the roof. The black substance over the shingles was put there by Respondent.
The leaks which developed after Respondent finished the job related directly to the areas where the flat roof joins or ties into the sloped shingle roof. Leaks developed in both the kitchen and dining eating areas, by the sliding glass doors. These are situated where the flat and sloped roofs meet. The leaks continued from June of 1986 until Walter Harris was sent out to do repairs, approximately February of 1987. His repairs stopped these leaks but not the leak in the kitchen doorway, situated under the area where the valley in the sloped roof joins the corner of the flat roof. That leak still exists.
Petitioner called Robert Hilson as its expert. Respondent called Kirk Keuter. Both experts examined the roof in May of 1988. Keuter found the work to be within professional standards and blamed the leaks on the shingle roof valley. He was unable to explain the cause of the leaks. He testified that "As near as I can ascertain" the base sheet of the flat roof was properly tucked under the existing old material on the sloped shingle roof. He admitted that the leaks complained of by Cirulnick were coming from the valley which tied into the flat roof, but claimed that the leaks were above the tie-in. Although Walter Harris admitted making repairs well after the original job was done, Keuter claimed that had repairs been made after a couple of months from the original work, he would have been able to detect them. Yet, Keuter failed to see the repairs made by Walter Harris in approximately February of 1987.
The testimony of Hilson was persuasive. In comparison with Keuter's eight years of experience, Hilson has been in the roofing business for 25 years and has been the chairman of various technical and roofing code committees. He was able to determine that the shingle roof had been applied over the original shingle roof, a fact which came out at the hearing during the testimony of the Sunrise Building Official, Eugene Gardner. He was also able to explain why the roof leaked after Respondent replaced the flat roof.
The flat roof was not properly tied into the sloped roof, allowing water to run under the roofing material where the two roofs joined. Additionally, the black cement Respondent had placed above the shingles in the valley of the sloped roof in the corner where the flat roof joined the sloped roof was trapping water, causing water pockets to form, from which leaks developed.
This explanation is consistent with the history of the leaks. They developed only after the flat roof was replaced. The leaks coming from the tie- in stopped when Walter Harris made his repairs. The leaks originating from the valley came from the black cement which was improperly applied above the shingles in the valley.
Wayne Roper was called by Respondent to testify that he saw areas of leak damage in the kitchen and back porch. He hesitantly remembered damage in the dining area as well. However, this testimony had little meaning since the entire shingle roof had been replaced shortly before Cirulnick purchased the property. There was no evidence as to the cause of or age of the interior damage described by Roper.
Respondent failed to respond to the complaints of the homeowner until the Department of Professional Regulation and the City of Sunrise got involved. Cirulnick had been calling Respondent for over a month and a half. When (and if) Respondent did look at the job, he blamed the new leaks on the shingle roof and refused to repair any of them under his guarantee. Although he sent Walter Harris out to make repairs in approximately February of 1987, he did not repair the leaks associated with the water pocketing in the valley of the sloped roof where he had placed the black roof cement.
Despite Respondent's contractual guarantee, the leaks in the kitchen emanating from the area where the valley ties into the flat roof, were not repaired.
Respondent entered into a contract with Rolden W. Jones in April of 1986 to repair several leaks at his house and recover the breezeway between the house and garage for $750.
The Jones house was located in Delray Beach. In Delray Beach, any roofing contractor must hold an occupational license. Respondent did not hold an occupational license in Delray Beach under his own name or "American Roofing".
A permit was required for this job under the applicable building code and ordinances then in effect.
Respondent did not obtain a permit or call for inspections for the Jones job.
Respondent told Jones that Respondent held a "tri- county license" and was authorized to work and pull permits in the City of Delray Beach.
Respondent operated under the name "American Roofing", which appears prominently on his contract with Jones. Respondent never placed "American Roofing" on his license or otherwise qualified said company.
Before Respondent commenced work on the residence, and pursuant to the agreement between Jones and Respondent, Jones took off the existing tar paper but did not remove the nearby tile. Respondent began the job by tearing off the garage roof tile by the breezeway and putting down new tar paper. He did not repair the leak at the northeast corner of the house or by the front door.
The leaks persisted with the rain since they had not been repaired. In response to Jones' calls Respondent did come out one time to place some compound on the roof to help stop the leaks, but thereafter failed to return to finish the job.
Jones paid Respondent $500 the day Respondent commenced working. Jones never paid Respondent the additional $250 called for by their contract since Respondent failed to return to complete the job and failed to return Jones' phone calls or to claim the registered letter Jones sent to him.
Respondent admitted that he did not finish the job, stating: "Because it was not real high priority, undoubtedly, I didn't give it priority."
E. J. Brodbeck & Sons, Inc., finished the work on Jones' roof for a cost of $1077.65. Michael Brodbeck, who performed the work, found that the only area which had been worked on was the breezeway. He found the job incomplete.
On September 25, 1986, Andrew Jackson, an unlicensed contractor doing business as Jackson Renovation Enterprises, entered into a contract with a company known as Madco. The contract was for $7,000 to install a new roof system on the roof of a commercial building owned by the company.
Respondent knew that Jackson was not a licensed roofing contractor.
Jackson had previously made an arrangement with Respondent whereby Jackson would pay the cost of permits and 10% of the contract price to Respondent in return for having his company qualified by Respondent and having Respondent pull the necessary permits. Respondent's only duty was to pull the permit.
Pursuant to this arrangement Jackson contacted Respondent and, in Respondent's words, told him "I got a $7,000 contract and let's go ahead and do it."
Respondent obtained the building permit. He listed the owner as "Jackson" and the job as "roof repairs & coating" for $6,500.
On one occasion Respondent went to the job site. While he was there, he took a photograph of Jackson installing Madco's new roofing system. Respondent did not supervise or in any way participate in installing Madco's roofing system.
The president of Madco, Samuel Weiss, dealt only with Andrew Jackson. Until a few months prior to the final hearing he had no knowledge of Respondent, never having met with or heard of him.
After the roof was installed by Andrew Jackson it consistently leaked, in one instance causing a fire and major damage.
In accordance with the understanding between Respondent and Jackson, Jackson paid Respondent the cost of the permit fee plus 10% i.e., $700.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.
As to the Cirulnick case, Petitioner has met its burden of proving Respondent violated Section 489.129(1)(d), Florida Statutes, by wilfully and deliberately disregarding local building codes in failing to obtain a building permit and by failing to have his work inspected. Notwithstanding the complaint by the Department, he did not obtain an after-the-fact permit until 1-1/2 years after he performed the Cirulnick job. Similarly Petitioner has met its burden of proving that Respondent violated Section 489.129(1)(m), Florida Statutes.
His failure to properly tie the flat roof into the sloped roof was incompetent. Moreover, his failure to respond to the situation, waiting until a formal complaint had been filed before making some repairs, is both misconduct and deceitful in view of the guaranty contained in his contract with Cirulnick.
However, no evidence was presented with regard to Petitioner's allegation that Respondent failed to supervise the Cirulnick job. Respondent is, therefore, not guilty of violating Section 489.129(1)(j), Florida Statutes, with regard to Cirulnick.
As to the Jones case, Respondent violated Section 489.129(1)(g), Florida Statutes, by operating under the name "American Roofing" without having that name appear on his license and also violated Section 489.129(1)(j), Florida Statutes, by failing to qualify a business through which he was performing contracting activities, in accordance with Section 489.119, Florida Statutes. Respondent also violated Section 489.129(1)(k), Florida Statutes by abandoning the Jones job.
By commencing to perform a roofing contract in Delray Beach without an occupational license, Respondent violated Section 489.129(1)(j), by exceeding the scope of his license in violation of Section 489.117(2). Petitioner has also proven Respondent guilty of violating Section 489.129(1)(d), Florida Statutes, by wilfully violating local laws in that he held no occupational license in Delray Beach, did not obtain a permit and did not have his work inspected. Lastly, Respondent violated Section 489.129(1)(m), Florida Statutes, by advising Jones that he would return to the job but failing to do so and in advising Jones that Respondent held a "tri-county license" and was authorized to work and pull permits in the City of Delray Beach.
Regarding the Madco case, Petitioner has proven that Respondent violated Section 489.129(1)(e), Florida Statutes, by aiding and abetting an unlicensed person to evade the provisions of Chapter 489, Florida Statutes, and violated Section 489.129(1)(f), Florida Statutes, by knowingly combining and conspiring with an unlicensed person and allowing his license to be used by an
unlicensed person with intent to evade the provisions of Chapter 489. Petitioner has failed, however, to prove that Respondent violated Section 489.129(1)(g) by operating under a name not appearing on his license or Section 489.129(1)(j) by failing to qualify a firm he was operating through, since
Petitioner proved that Respondent did not supervise or in any way participate in the installation of Madco's new roofing system.
Respondent once before was disciplined by the Construction Industry Licensing Board. In that case he was ordered to pay a $1,500 fine for not obtaining a building permit and inspection and for operating under the name "American Roofing" without properly qualifying under that name.
In the instant cases, Respondent has demonstrated his inability to conduct his contracting activities within the confines of the law. In the Cirulnick and Jones cases, he misrepresented his intentions to the homeowners and failed to honor his contracts. In both cases he failed to obtain permits and inspections, and in Jones he lied about his licensure status. His work in Cirulnick was deficient and in Jones incomplete. Both homeowners were left with worse problems than before they contracted with Respondent.
In Madco Respondent conspired with a person he knew was not qualified by license or experience to do roofing. Yet, he pulled the permit for a $7,000 job and allowed it to be completed by this person. The owner was damaged as a result, having had to suffer from continual leaks and damage.
Rule 21E-17.002, Florida Administrative Code, provides for aggravating and mitigating circumstances to be used in determining an appropriate sanction. Subsections (a) and (h) are concerned with injury to the customer. In each of the foregoing cases the customers were injured and had not been made whole as of the time of the final hearing in these cases. Subsection (c), severity of the offense, is also applicable. Although the Cirulnick and Jones contracts were for relatively small sums, the customers were harshly treated. These cases did not involve "technical" violations which were quickly remedied. They involved work deficiencies and abandonment without cause. Subsection (e) applies as to the permit and inspection violations, as well as use of the name "American Roofing".
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered revoking Respondent's roofing
contractor's license number CC C024406.
DONE and RECOMMENDED this 25th day of January, 1989, at Tallahassee, F1orida.
LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building
Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 1989.
APPENDIX TO RECOMMENDED ORDER, CASE NOS.
Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2
Michael J. Cohen, Esquire
George W. Harrell, Esquire Department of Professional
John C. Moppert, Esquire
