ALJDEC

99F-S0147-ROC · Registrar of Contractors · 1999-12-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|MONTEGO BAY INVESTORS |§|CASE NO.: S99-0147 | |LIMITED PARTNERSHIP, |§| | | |§|DOCKET NO.: 99F-S0147-ROC | |Complainant, |§| | | |§| | |-v- |§|RECOMMENDED | | |§|DECISION AND ORDER | |License No078856, Class B-01 of |§| | |COHEN CONTRACTING INC. (CORP), |§| | | |§| | |Respondent. |§| | | |§| | | |§| |

HEARING: December 10, 1999, at 8:30 a.m. APPEARANCES: The Complainant appeared through its attorney, Lane Oden. The Respondent appeared through its authorized representative, Ed Trybula. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for hearing on December 10, 1999. The Complainant appeared through its attorney, Lane Oden, and the Respondent appeared through its authorized representative, Ed Trybula. Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. Respondent is the holder of a Class B-01 License issued by the Registrar of Contractors.

2. This is a commercial matter where the Respondent operated as a general contractor for the construction of a 192 unit apartment complex for the Complainant.

3. The Complainant was dissatisfied with numerous areas of the Respondent’s workmanship and failure to correct its work despite repeated requests that it do so. The Complainant then filed a formal complaint, against the Respondent, with the Registrar of Contractors.

4. Pursuant to the filing of the formal complaint, an assigned Agency Inspector conducted an on-site inspection and issued a lengthy written corrective work order directing the Respondent to perform designated corrective work on the Complainant’s apartment complex.

5. The Respondent failed to comply with the corrective work order asserting that it should not have to do the corrective work because the parties were involved in a dispute regarding payment for the construction project. As a result of the Complainant’s alleged failure to pay moneys due to the Respondent, the Respondent was in receivership and incapable of performing any corrective work.

6. The parties’ dispute regarding the alleged non-payment for work that the Respondent performed is found to be a good faith dispute which should be resolved, if at all, in a civil court of competent jurisdiction.

7. The parties’ good faith money dispute does not affect the Respondent’s responsibility to perform corrective action on construction items that have been shown to be deficient or unworkmanlike.

8. The following items were shown to constitute deficient workmanship, and require proper corrective action, by the Respondent:

i) Portions of the interior sidewalks are buckling, sinking and cracking. The Respondent shall properly repair or replace the affected sidewalks. j) Several of the utility trenches were not properly filled and compacted. The Respondent shall properly fill and compact all utility trenches. k) The irrigation lines and heads are below ground level. The Respondent shall properly repair or replace the irrigation lines and heads. l) The scuppers have not been properly caulked and leak. The Respondent shall properly caulk the scuppers. m) Several areas of the roofs in the apartment complex leak. The Respondent shall inspect all of the roofs and cause all leaks to be properly repaired. n) Several of the apartments have suffered interior drywall and ceiling damage as a result of the roof leaks. The Respondent shall cause all interior drywall and ceiling moisture damage to be properly repaired. o) Several of the apartments have defective or improperly installed smoke detectors. The Respondent shall inspect all of the smoke detectors and properly repair or replace all defective or improperly installed smoke detectors. p) The site lighting posts have paint and stucco over-spray on them. The Respondent shall properly repair or replace the lighting posts. q) There are numerous areas of touch-up required on the interior doors and walls. The Respondent shall cause all interior touch-up to be properly performed. r) Numerous areas of the vinyl flooring throughout the apartment complex were improperly applied and the floor vinyl has failed. The Respondent shall cause the vinyl flooring throughout the complex to be properly repaired or replaced. s) The railing around the swimming pool area has not been properly sealed. The Respondent shall cause the swimming pool area railing to be properly sealed. t) Thirteen living room window frames were improperly installed. The Respondent shall properly repair or replace the thirteen living room window frames. u) The replacement curbs in the fire lane areas have not been painted. The Respondent shall properly paint the replacement curbs. v) The apartment complex mailboxes are not level. The Respondent shall properly repair or replace the mailboxes. w) There are unacceptable cracks and several sunken areas in the asphalt areas of the apartment complex. The Respondent shall properly repair or replace the cracked and sunken portions of the asphalt areas. x) Several apartment entry doors require weather-stripping. The Respondent shall inspect all of the entry doors and ensure that all have proper weather-stripping. y) Several of the apartments have poorly installed back-splashes and cabinet drawers. The Respondent shall inspect all of the back- splashes and cabinet drawers and ensure that all back-splashes and cabinet drawers are properly repaired or replaced. z) The Respondent installed the wrong medicine cabinets in the 3 bedroom units in the apartment complex. The Respondent shall properly replace the medicine cabinets in the 3 bedroom apartment units. aa) The paint is flaking on the railing throughout the apartment complex. The Respondent shall properly correct the paint on the railing. ab) The asphalt on the north-west side of the property has failed. The Respondent shall properly correct the asphalt on the north-west side of the property. ac) The main water valve is leaking. The Respondent shall properly repair or replace the main water valve.

30. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors.

CONCLUSIONS OF LAW

1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. (32-1154 (A) (7) (Wrongful Act), (23) and (3); namely, Rule R4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Respondent’s Class B-01 License shall be revoked unless the Registrar of Contractors receives proof that the Respondent has properly caused the accomplishment of the corrective action set forth above in Finding of Fact Nos. 8(a) through 8(u), inclusive.

It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License revocation shall not take place and Citation No. S99-0147 shall be closed.

Dated this 23rd day of December, 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ M. DOUGLAS Administrative Law Judge

Original mailed this day of December, 1999 to:

Michael P. Goldwater, Director Attn: Joyce Armijo Registrar of Contractors 800 W. Washington, 6th Floor Phoenix, AZ 85007

Transmitted by:

----------------------- Office of Administrative Hearings 100 North Stone, Suite 704 Tucson, Arizona 85701 (520) 628-5488

Office of Administrative Hearings 100 North Stone, Suite 704 Tucson, Arizona 85701 (520) 628-5488