ALJDEC decisions subject to certification as final

2012A-3297-ROC · Registrar of Contractors · 2013-02-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 5, 2013, at 1:00 p.m. APPEARANCES: Madelyn (“Lynne”) Mary Peterson (hereinafter “Complainant”) appeared on her own behalf. David Richard Tribolet dba Tribolet Roofing Company (hereinafter “Tribolet”) appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Tribolet is the holder of License No. C-42.056674-R issued by the Registrar of Contractors. 2. This is a residential matter where Tribolet installed a new roof on Complainant’s residence. 3. Complainant was dissatisfied with Tribolet’s workmanship and filed a formal Complaint against Tribolet with the Registrar of Contractors. 4. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Richard Allen (hereinafter “Inspector Allen”), conducted an onsite inspection on August 10, 2012. Inspector Allen’s notes of the onsite inspection provided, in pertinent part, as follows:

Complainant – present: Lynne Peterson (H/O-comp.) Bob Barnes (neighbor/friend)

Respondent – present: David Tribolet (owner-Tribolet Roofing Company)

Notes: Tribolet was not happy that Barnes was present. Barnes took me onto roof (Ms. Peterson did not go onto roof) to point out Peterson’s allegations. Tribolet would not go on roof while Barnes was on roof. When Barnes climbed down, Tribolet climbed up.

1. sm. ponding in several areas; large ponding in 2 areas (N/W corner approx. 10’x10’ and N/E area approx 6’x6’) both appear to be in [excess] of ½” deep per the residue marks/ discoloration. Tribolet claims that ponding was worse than this to begin with; claims that there was several inches thick of existing roofing materials; confirms that he took roof down to sheathing and replaced quite a bit of wood; claims that the 2 deck roof drains were existing (N/W has grate and N/E has no grate-existing); claims that there is a “double” roof under the ponding; claims that he has returned to find the scuppers clogged w/ debris (there [are] some leaves on the roof now-minor). I see that the scuppers in these 2 areas appear to be too high to drain all of the ponding. The deck drains appear to be too high also. Tribolet claims that he did not change any of the drains or scupper locations. The grate is probably damming some of the water as the drain w/out the grate appears to drain better. 2. Tribolet claims that most of the parapet tiles were broken prior to removal and because they were embedded into parapet, several broke upon removal; claims that he did tell comp. that he’d work on the porch to make it better (not correct-no charge) but that it really needed a new roof; claims that he used approx. tiles on front porch and stacked the remaining approx. 20 tiles just inside the gate in the east yard. Comp. disagrees claiming he did a poor job on the front porch and only used 4 tiles and removed the remainder from her property. 3. There are gaps/separations up to 3/8” on the parapets below the tiles at each of the inside corners of the parapets; gaps and “fish mouth” gaps in other areas. Tribolet agreed to correct. 4. There is a shut –off valve located on the water line just below the cooler. Tribolet claims that someone else installed this valve , he did not; claims that when he returned to coat roof, the cooler pan was full of water and suddenly the H/Os started having cool air; claims that the 2” PVC deck drain downspout was unattached and the ext. house was discolored prior to starting the new roof. I see the unattached downspout and the black discoloration. Tribolet claims that when he came to investigate the “leak”, the N/W scupper was clogged w/debris so he unclogged. 5. There are some cords that appear to be embedded under the parapet tiles and some that run over the tiles. Tribolet claims he left cords in the existing locations to avoid breaking any cords.

5. Inspector Allen issued a written Corrective Work Order on August 13, 2012, directing Tribolet to perform designated corrective work on Complainant’s residence. 6. The Corrective Work Order repeated the allegations set forth in the Complaint and provided, in pertinent part, as follows: #1. The jobsite inspection found unacceptable ponding near the deck drains. Contractor to correct by appropriate means. #2. The jobsite inspection found no written agreement regarding the front porch or what was to become of the removed parapet tiles and I am unable to verify the verbal agreement. This agency lacks jurisdiction regarding monetary disputes. No action required. #3. The jobsite inspection found gaps/separations of the material on the parapets below the tiles and gapping at some of the flat laps. David Tribolet of Tribolet Roofing Company agreed to correct. Contractor is to correct by appropriate means. #4. The jobsite inspection found a shut-off valve at the water line below the cooler. Tribolet claims that he did not install the shut-off valve, but someone else installed the valve. I cannot confirm. The jobsite inspection found the deck drain downspout unattached at/near the exterior wall and there is a discoloration/water mark on the exterior wall below the drain penetration. Tribolet claims that this was the condition of the downspout and the wall prior to re-roofing. I cannot confirm. No action required. #5. The jobsite inspection found some cables under the parapet tiles and some over the tiles. Tribolet claims that he left all cables in their existing locations to prevent damage to the cables. I cannot confirm who or what caused damage to the phone line. No action required.

7. Inspector Allen testified that he performed a pre-hearing inspection on Complainant’s roof on February 4, 2013. Inspector Allen stated that he performed a water test on Complainant’s roof and found that the ponding on Complainant’s roof was within applicable workmanship standards as set forth in the Workmanship Standards for Licensed Contractors.[2] Inspector Allen opined that Tribolet had fully complied with the terms of the Corrective Work Order. Inspector Allen testified that Tribolet had failed to place his license number on the parties’ contract and that the contract prepared by Tribolet failed to contain a date of completion, failed to contain Tribolet’s contractor’s license number, and failed to inform Complainant of her right to file a complaint with the Registrar of Contractors.[3] 8. Inspector Allen’s testimony is found to be credible. 9. Complainant testified that she believed that her roof displayed unacceptable ponding and required replacement. Complainant stated that she believed that Tribolet had installed a water cut-off to her cooler without her authorization and that she wanted Tribolet to properly remove the water cut-off. Complainant testified that Tribolet broke a float on her cooler and that Tribolet should be responsible for her damages. Complainant stated that Tribolet removed decorative parapet tiles from her residence without her permission. Complainant testified that Tribolet’s gratuitous work on the roof tile on her front porch roof was uneven and that the front porch should be re-roofed. Complainant stated that her telephone went out after Tribolet completed roofing work on her residence and that she believed that Tribolet damaged her telephone line. Complainant testified that Tribolet’s owner, David Richard Tribolet (hereinafter “Mr. Tribolet”), behaved in an unprofessional and intimidating manner around her. Complainant stated that Tribolet failed to include a contractor’s license number on her contract and that there was no contractor’s license number on Tribolet’s business cards. Complainant testified that she had concerns about the ponding on her roof.[4] 10. Mr. Tribolet testified that Complainant’s roof had been fully corrected. Mr. Tribolet stated that Tribolet had not removed any decorative parapet roof tile from Complainant’s residence. Mr. Tribolet testified that Tribolet had not installed a cut-off valve on Complainant’s roof. Mr. Tribolet acknowledged that a cut-off valve had been “professionally” installed on Complainant’s roof. Mr. Tribolet stated that other people had been on Complainant’s roof besides Tribolet’s employees and that he had no knowledge as to who installed the cut-off valve.[5] 11. Mr. Tribolet testified that he corrected the ponding and unacceptable fish mouthing on Complainant’s roof and then resealed the entire roof. Mr. Tribolet stated that Tribolet had nothing to do with Complainant’s downspout and that Complainant’s telephone was working properly when Tribolet completed roofing work at Complainant’s residence. Mr. Tribolet testified that Tribolet had “straightened out” the tiles on Complainant’s front porch roof. Mr. Tribolet denied that Tribolet had performed any work on the porch roof other than to attempt make it more aesthetically appealing for Complainant. Mr. Tribolet acknowledged that Tribolet had failed to include its contractor’s license number on Tribolet’s contract with Complainant. Mr. Tribolet stated that he was not aware that Tribolet’s contractor’s license number was required to be included on the contract.[6] 12. Administrative notice is taken of Tribolet’s prior license record as reflected on the Registrar of Contractors’ public website on February 20, 2013. Such prior license record reflects that License No. C-42.056674-R was canceled on November 14, 2012, and assumed by License No. C-42.281629- R of D R Tribolet LLC on November 14, 2012. License No. C-42.281629-R of D R Tribolet LLC is current. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. There was no credible evidence that Tribolet, rather than another, installed the cut-off valve on Complainant’s residence or removed the decorative parapet tile from Complainant’s residence. There was no credible evidence that Tribolet damaged Complainant’s telephone line, Complainant’s downspout, Complainant’s front porch roof, or the float in Complainant’s cooler. Credible testimony and evidence established that Tribolet fully complied with the terms of the Corrective Work Order. This Tribunal concludes that Complainant failed to meet her burden of proving a violation of the charged provision of A.R.S. § 32- 1154(A)(3),[7] namely, A.A.C. R4-9-108.[8] 4. There was no dispute that Tribolet failed to include Tribolet’s contractor’s license number in the parties’ contract and that Tribolet failed to display Tribolet’s contractor’s license number on Tribolet’s business card. This Tribunal concludes that Tribolet violated the charged provision of A.R.S. § 32-1154(A)(13),[9] namely A.R.S. § 32- 1124(B).[10] 5. There was no dispute that Tribolet failed to include its contractor’s license number, an estimated date of completion, or notice to Complainant of her right to file a complaint with the Registrar of Contractors in the parties’ contract. This Tribunal concludes that Tribolet violated the charged provision of A.R.S. § 32-1154(A)(13), namely A.R.S. § 32- 1158.[11] 6. Credible testimony and evidence established that Tribolet fully complied with the terms of the Corrective Work Order. This Tribunal concludes that Complainant failed to meet her burden of proving a violation of the charged provision of A.R.S. § 32-1154(A)(23).[12] RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. C-42.056674-R of Tribolet shall be revoked unless the Registrar of Contractors receives and accepts written proof that Tribolet and its successor D R Tribolet LLC have brought all business forms, including business cards and contracts, to within full compliance with the applicable provisions of A.R.S. § 32-1124(B), and that Tribolet and D R Tribolet LLC have corrected all of their contracts to bring the contracts to within full compliance with the provisions of A.R.S. § 32-1158. It is further recommended that if on or before the effective date of this Order, Tribolet fully accomplishes the above described corrective actions, then the above provided License revocation shall not take place and that this matter shall be closed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification. Done this day, February 15, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] Robert Peterson is now deceased. [2] The Workmanship Standards for Licensed Contractors 2009 (page 22) provides, in pertinent part, as follows: Minor ponding (up to 1/2" deep in small areas equivalent to no more than 1/3 of span) is acceptable providing roof is dry within hours after rainfall.

[3] 2/5/13 Hearing Record (hereinafter “H.R.”) at 14:14-23:14. [4] H.R. at 23:22-53:19. [5] H.R. at 53:45-59:30. [6] H.R. at 59:31-1:41:42. [7] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. [8] A.A.C. R4-9-108 provides, in pertinent part, as follows:

A. A contractor shall perform all work in a professional and workmanlike manner.

B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards.

C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[9] A.R.S. § 32-1154(A)(13) includes among the grounds for disciplinary action against a contractor’s license, failure in any material respect to comply with this chapter. [10] A.R.S. § 32-1124(B), provides, in pertinent part, as follows: Licenses issued under this chapter and any renewals shall be signed by the registrar or the registrar's designated representative and by the licensee. The license shall be nontransferable, and satisfactory evidence of possession shall be exhibited by the licensee upon demand. The license number appearing on any licenses held by the licensee shall be preceded by the acronym "ROC" and shall be posted in a conspicuous place on premises where any work is being performed, shall be placed on all written bids submitted by the licensee and shall be placed on all broadcast, published, internet or billboard advertising, letterheads and other documents used by the licensee to correspond with the licensee's customers or potential customers in the conduct of business regulated by this chapter. A violation of this subsection relating to posting and placement of license numbers shall be, at the discretion of the registrar, grounds for disciplinary action pursuant to section 32-1154, subsection A, paragraph 13, but not grounds for preventing the award of a contract, voiding an awarded contract, or any other claim or defense against the licensee. For the purposes of this subsection, advertising does not include a trade association directory listing that is distributed solely to the members of the association and not to the general public.

[11] A.R.S. § 32-1158(B) requires contractors to include in contracts with property owners in an amount of more than $1,000.00 entered after December 31, 2007, the following terms: 1. The name of the contractor and the contractor's business address and license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365.

[12] A.R.S. § 32-1154(A)(23) includes among the grounds for disciplinary action against a contractor’s license, failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

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