ALJDEC

01F-A0326-ROC · Registrar of Contractors · 2002-01-29

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 29, 2002.

APPEARANCES: The Complainants appeared in their own behalf. Respondent, Chartier Gypsum Floors, Inc. (“Chartier”), appeared through its President and qualifying party, Robert E. Chartier. Respondent, Floorworks, Inc. (“Floorworks”) was represented by its attorney, Michael W. Wright, Esq.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

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

FINDINGS OF FACT

1. Following a prolonged recess taken shortly after the formal opening of the scheduled consolidated hearing during which all parties participated in extensive discussions, the parties concluded a settlement agreement, the essential terms of which were read upon the record.

2. Although not a named party in these administrative proceedings, the project’s general contractor, Peregrine Builders, Inc. (“Peregrine”), appearing at the hearing through its President and qualifying party, Michael D. Marks, actively participated in all settlement negotiations and ultimately joined in the implementation of the overall terms of the concluded agreement. It is deemed appropriate to cause a copy of the Registrar’s Order in these consolidated matters to be sent by the Registrar to Peregrine at its address of record.

3. Pursuant to the terms of the aforementioned settlement agreement, Complainants agreed to provide reasonable and timely access to their residence so as to allow the performance of all contemplated remedial work, also agreeing to promptly communicate their selection of replacement tile materials to Floorworks. Complainants additionally agreed to withdraw the complaints filed against Chartier and Floorworks, consenting to the entry by the Registrar of an Order respectively closing and dismissing the citations issued against each such licensee.

Peregrine agreed to compensate Complainants for reasonable expenses incurred while unable to remain in occupancy at the residence during performance of the contemplated work as well as to contribute a portion of the monetary cost for certain identified tile materials. Peregrine additionally agreed to provide and install plywood

materials if and as may be needed for achieving a level underlayment for the tile surface and also to perform all necessary clean-up and touch-up work after the envisioned performances by Chartier and Floorworks.

5. Chartier agreed to fully remove all existing tile and gypsum materials presently installed in specified household locations, exercising appropriate care with respect to protecting nearby or adjacent household features and articles during such removal work. Chartier additionally agreed to contribute a portion of the monetary cost for certain identified tile materials and also pay the entire specified cost for the installation by Floorworks of certain designated underlayment materials.

Floorworks agreed to accept the above-referenced contributions from Chartier and Peregrine for the anticipated cost of the replacement tile materials, and Floorworks also agreed to provide and install, in specified household locations, the designated underlayment as well as all new tile materials, to be selected promptly by Complainants from available materials comparable in quality and cost, exercising appropriate care with respect to protecting nearby or adjacent household features and articles during such replacement work.

7. All performances contemplated under the parties’ settlement agreement, whether consisting of selection of materials, remedial work, or payment responsibilities were to be completed no later that the effective date of the Registrar’s Order.

8. In the absence of any written directive issued to Floorworks by the Registrar’s assigned Inspector, no valid reason is perceived for not dismissing the Citation and Complaint issued against such named Respondent.

9. The parties agreed that all rights and defenses were to be merged into the settlement agreement and if any petition for rehearing of this matter was to be filed and granted, or if any new complaint was to be filed, the sole issues for determination shall be whether the parties have performed their respective obligations under the terms of the aforesaid settlement agreement.

10. The settlement agreement, as concluded, was expressly entered into without any admission of fault, obligation or responsibility on the part of any of the three licensed contractors, and correspondingly without any admission by Complainants that they were not entitled to greater benefits.

11. The terms of the forgoing settlement 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 of settlement which should be recognized and given effect by all tribunals.

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 consolidated hearing and the entry by the Registrar of an Order closing the Citation and Complaint filed against Chartier and dismissing the Citation and Complaint filed against Floorworks.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the entire Citation and Complaint in Case Number A01-0326 against the Class C-05 license of Chartier be closed.

It is further recommended hat the entire Citation and Complaint in Case Number A01-0375 against the Class C-48 license of Floorworks be dismissed.

Dated: February 5, 2002. 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: Joyce Armijo -----------------------

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