ALJDEC

00F-H0021-ROC · Registrar of Contractors · 2000-03-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 29, 2000, at 11:00 a.m. APPEARANCES: The Complainant appeared through its president, James Smerdell. The Respondent appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for hearing on February 29, 2000. The Complainant appeared through its president, James Smerdell, and the Respondent appeared on his own behalf. 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 C-17R License issued by the Registrar of Contractors. 2. This is a residential matter where the parties entered into an agreement for the Respondent to construct and install one large metal spiral staircase in a new residence being constructed by the Complainant. 3. Credible evidence, produced at hearing, established that the Respondent failed and was unable to construct the large metal staircase and the Complainant filed the complaint at issue. 4. Credible evidence, produced at hearing, established that after the filing of the complaint at issue the parties entered into an agreement wherein the Respondent agreed to construct and install two smaller metal staircases in the new residence. The Complainant agreed to accept the two smaller metal staircases in place of the one large metal staircase that the Respondent was unable to construct. 5. There was no dispute that the Respondent did construct the two smaller metal staircases and that the two staircases were installed in the new residence. 6. There was no dispute that the Complainant assisted the Respondent in the installation of the two metal staircases in the new residence. 7. After the two metal staircases were installed the parties became involved in a money dispute regarding payment for the two metal staircases and Speer Welding Service filed a complaint against the Fountain Homes Construction Co. Inc., in the Lake Havasu office of the Registrar of Contractors alleging non-payment . 8. The complaint at issue is specifically based upon the Respondent’s failure to properly complete the one metal staircase in a timely fashion as required by the parties’ original agreement. Credible evidence established that the Respondent did fail to comply with the original agreement and was unable to fabricate and install the large metal staircase as originally agreed. However, credible evidence also established that the parties entered into a settlement agreement wherein the Respondent fabricated the two smaller metal staircases which were then installed, jointly, by both parties. The parties are found to be bound by the terms and conditions of their settlement agreement. 9. The Respondent’s claim of various offsets for the Respondent’s alleged failure to comply with the terms and conditions of the parties’ settlement agreement by causing the Complainant to assist in the installation of the two metal staircases are found to be items which should more properly be set forth in its defense against the claim of non-payment filed by Speer Welding. 10. The parties are found to be bound by the terms of their prior settlement agreement the terms of which are found to resolve the issue of the Respondent’s admitted failure to construct the large metal staircase. 11. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors.

CONCLUSIONS OF LAW

1. Credible evidence supported findings that the parties voluntarily, and knowingly, entered into a settlement agreement to substitute two smaller metal staircases for the one large metal stair case that the Respondent was unable to complete. 2. The credible evidence of record failed to establish violations, by the Respondent, of the charged provisions of A.R.S. §32-1154(A).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Citation No. H00-0021 be dismissed. Done this day, March 14, 2000.

______________________________________ M. DOUGLAS Administrative Law Judge

Original transmitted by mail this ____ day of March, 2000, to:

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

By ___________________________ -----------------------

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