ALJDEC

00F-0228-ROC · Registrar of Contractors · 2000-02-29

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 29, 2000.

APPEARANCES: The Complainants appeared through Gary Rice.

The Respondent was represented by its attorney, Christopher D. Lonn, Esq.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

Based upon the entire record in this matter the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. Following a recess taken during extended discussions between the parties that had commenced immediately after the formal opening of the scheduled hearing, the parties confirmed to the Administrative Law Judge that they had concluded a settlement agreement, the essential terms of which were read onto the record.

2. Pursuant to the terms of the parties’ settlement agreement, Respondent agreed to return to the jobsite and to properly perform, no later than a stated deadline date, certain specified work on one identified area of complaint opposite the kitchen wall in the home, as well as to promptly evaluate and communicate its intentions with respect to further work on another complaint item at a designated upstairs ceiling location, and to thereafter undertake and accomplish appropriate corrective work, if and as may be determined to be necessary and warranted for achieving conformity to prevailing acceptable industry standards and tolerances. Complainants agreed to provide Respondent or its selected representatives reasonable and timely access to the premises for the purposes of accomplishing the agreed corrective work or evaluations.

3. Complainants’ agreement to withdraw their complaints as to either or both of the above referenced items was mutually understood to be expressly without prejudice to re-asserting such complaints in the event Respondent fails or refuses to perform, or unacceptably performs, the agreed remedial work or preliminary evaluation. Complainants also agreed, with respect to this administrative action, to withdraw another separate complaint item relating to completion time under the parties’ construction contract without prejudice to potentially pursuing such complaint before a civil tribunal in the future. Complainants further agreed to withdraw with prejudice all remaining items of complaint appearing in the Inspector’s written directive, including items either referred to or identified when compiling a prior punch list.

4. Complainants additionally consented to the entry of an Order by the Registrar of Contractors closing the within Citation without prejudice to the filing of a timely petition for rehearing or the filing of a new complaint in the event of any breach by Respondent of the corrective work terms of the parties’ settlement agreement, but with prejudice as to all other enumerated or otherwise included items encompassed within the instant administrative action.

5. It was mutually understood that the entry by the respective parties into the settlement agreement was without any admission of fault, liability or obligation on the part of Respondent, and correspondingly without any admission by Complainants that they were not entitled to greater benefits.

6. All rights and defenses of the respective parties as to the known, reported or otherwise identified items of complaint are deemed to have been merged into the settlement agreement, and if any timely petition for rehearing of this matter is filed and granted, or if any new complaint based upon these items is filed in the future, the sole issues for determination shall be whether the parties have performed their respective obligations under the terms of the aforesaid settlement agreement.

7. The terms of the foregoing settlement agreement appeared to be fair and reasonable under all the circumstances, and the agreement was determined to be the product of knowing and voluntary action on the part of each party.

CONCLUSIONS OF LAW

1. The policy of the law favors settlements of disputes, and adverse parties should be free to adjust their differences by entry into agreements or stipulations which should be recognized and given effect by all tribunals.

2. The settlement reached and submitted during the hearing of this matter, having been found to be reasonable and voluntarily made, warrants the termination of the instant hearing and the closing of the charges contained in the Citation and Complaint.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the entire Citation and Complaint in Case No. 00-0228 be closed with prejudice, except with respect to those items of complaint that are the subjects of specifically agreed further work or evaluation or that relate to completion time, which complaint items shall be closed without prejudice.

Dated: March 2, 2000.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Michael P. Goldwater, Director Registrar of Contractors 800 West Washington Street (6th Floor) Phoenix, AZ 85007

ATTN:Griselda Ybarra -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826