Vacate: Settlement Recommendation

06F-1183W-ROC-com · Registrar of Contractors · 2007-04-23

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: April 17, 2007.

APPEARANCES: >Complainants appeared in their own behalf. >Respondent appeared through its qualifying party and a member of the L.L.C. entity, Steven M. Clutter.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth ________________________________________________________________

Based upon the entire record, the following Findings of Fact, Conclusions of Law and Vacating and Remanding Order on Compliance Hearing are made.

FINDINGS OF FACT

1. The Registrar of Contractors had requested, by entry of an Order, that the above-entitled matter be scheduled for a hearing to determine whether or not the Respondent had substantially complied with the terms and conditions of the parties’ settlement agreement that had been concluded after almost two days of evidentiary presentations at the original hearing and had prompted the Registrar to enter an Order closing the underlying Citation and Complaint.

2. The testimony at the compliance hearing, detailing the course of events involving the parties since having concluded the settlement agreement tended to demonstrate that the first two of the three separate phases of contemplated work were substantially completed by Respondent except for one relatively minor item consisting of a missing shelf in a kitchen island cabinet.

3. The evidence further indicated that, due to the reported present unavailability of previously designated materials, a proper performance of the third phase of work would necessitate a selection by Complainants of possibly upgraded granite materials that would enable a more acceptable color match in their home, generating somewhat higher slab replacement costs not envisioned under the prior settlement agreement. Despite ongoing efforts to arrive at some mutual understanding with respect to the dollar amount of such higher costs to be paid, the parties were unable to conclude any arrangements prior to the compliance hearing.

4. It became clear that a strict adherence to the terms of the prior settlement with respect to the third phase of work would likely fail to achieve results that would satisfy applicable color matching tolerances as tested by prevailing industry standards for the replacement granite materials as well as generating an understandable overall dissatisfaction on the part of the homeowners. Correspondingly, the absorbing by Respondent of any added costs for different upgraded materials (as distinguished from cost increases for the originally used materials, if still available) did not appear to be encompassed within the prior settlement terms.

5. During an extended recess after several hours of evidentiary presentations, and after lengthy discussions, the parties concluded a further or

supplemental settlement agreement, the essential terms of which were read upon the record. It was understood that the balance of the compliance hearing would be vacated and that the matter would be remanded to the Registrar for appropriate termination of this administrative proceeding.

6. Pursuant to the terms of the further or supplemental settlement agreement, Complainants agreed to make and communicate their selection of replacement granite materials for the master bathroom countertop and back- splash from a designated supplier or from an alternative supplier and to pay Respondent an agreed additional cost, if a stated upgrade was selected. Complainants also agreed to pay a stipulated extra cost for certain described extra work on the master bathroom vanity cabinet, both of such additional payments to be tendered at the time of delivery of the materials. Respondent agreed to complete the third phase of the originally contemplated work, as modified by the supplemental settlement agreement, by furnishing and properly installing the selected materials, to perform the specified extra cabinet work and to install the shelf that was omitted from the earlier phases of the agreed work.

7. Additionally, and in consideration of eliminating the potential filing of another separate complaint against Respondent based upon aspects of the installation work wholly unrelated to any of the items included in the parties’ prior settlement agreement, Respondent agreed to furnish and install certain identified shelving, edging and cabinet doors at specified household locations. Lastly, and upon the proper completion of all contemplated further work, Complainants agreed to pay Respondent a stated monetary amount, mutually agreed to represent the appropriate unpaid balance of the original contract.

8. The parties’ entry into the further or supplemental settlement agreement, made necessary by the subsequently experienced facts and

circumstances, rendered unnecessary any determination by this tribunal as to whether Respondent had breached or had complied with the previously concluded settlement between the parties. Respondent’s duty under the further or supplemental settlement agreement shall consist of its proper and timely compliance with all the terms and conditions of the settlement concluded at the compliance hearing, conditioned upon receipt of agreed payments from Complainants, if and as may be applicable.

9. Under all the demonstrated circumstances relating to the originally contemplated work performance and the present availability of suitable materials for the third phase of the previously agreed work, the terms and conditions of the parties’ further or supplemental settlement agreement are found to be fair and reasonable, and such settlement is additionally found to have been the product of voluntary and knowledgeable action on the part of both parties.

CONCLUSIONS OF LAW

1. The further or supplemental settlement agreement, mutually concluded between the parties, may be and is properly treated as the effective equivalent of substantial compliance with the terms and conditions of the parties’ prior settlement.

2. Respondent remains under a continuing or substituted duty to timely and properly comply with all the terms and conditions of the further or supplemental settlement agreement concluded at the compliance hearing provided that Complainants pay or tender to Respondent the agreed monetary amounts set forth in such settlement.

ORDER VACATING BALANCE OF HEARING AND REMANDING MATTER TO FORWARDING AGENCY

In view of the foregoing, IT IS ORDERED that the balance of the compliance hearing in this matter be and hereby is VACATED, and IT IS FURTHER ORDERED that this case be REMANDED TO THE REGISTRAR OF CONTRACTORS for appropriate action.

Dated: April 24, 2007. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Fidelis V. Garcia, Director Registrar of Contractors Legal Department 800 West Washington Street (6th Floor) Phoenix, AZ 85007 -----------------------

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