Vacate: Settlement Recommendation

06F-1937-ROC · Registrar of Contractors · 2007-09-11

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 23, 2007 APPEARANCES: Complainant: James M. Curley appeared, pro per. Respondent: Joseph Brinkerhoff, corporate officer and qualifying party, appeared, pro per. Registrar of Contractors: Inspector Geoff Galgan appeared on behalf of the Registrar of Contractors. ADMINISTRATIVE LAW JUDGE: Brian E. Smith ________________________________________________________________ Having read and considered the entire record, the following Findings of Fact are made, Conclusions of Law entered and Order issued:

FINDINGS OF FACT 1. The matter convened for hearing at the time, date and place set forth in this tribunal’s June 11, 2007 Order Granting Continuance. 2. Prior to the presentation of any testimony or evidence, a discussion ensued off the record by and between the parties and Registrar of Contractors Inspector Geoff Galgan under the direction of the Administrative Law Judge. Thereafter, the parties and Mr. Galgan were afforded an opportunity to further discuss settlement outside the presence of the undersigned. As a result of these discussions, the parties concluded and stipulated to a settlement agreement the essential terms of which were then read into the record. For purposes of determining this matter, the obligations of the parties under the settlement agreement set forth below, if accepted by the Director of the Registrar of Contractors, are binding on one another. 3. The terms of the parties’ settlement agreement are as follows: a. The parties stipulate and agree that Items 1[1] and 5 of the Corrective Work Order issued April 12, 2006 have been resolved. b. Respondent will perform and/or cause to be performed through duly licensed contractors, as necessary, all required work on the Items 2 (guest house roof leak), 3 (powder room rook [sic] leak), 4 (patio ceiling tongue and groove ruined by misplaced nails) and 6 (flashing and counter flashing missing at front entry way roof elevations) of the April 12, 2006 Corrective Work Order. c. All corrective work referred to in subparagraph (b) above shall be completed on or before October 31, 2007. The parties acknowledged that Complainant will be out of town October 14 through 21, 2007 during which period no corrective work shall be performed unless otherwise agreed to in writing by the parties. d. Respondent agrees and warrants that it will perform all corrective work in good faith and in conformance with the minimum workmanship standards as adopted in Arizona. e. Subject to the terms of subparagraph (c) hereof, Complainant shall provide Respondent and/or its subcontractors with reasonable access to the property in order to perform all required corrective work. f. The parties shall give each other at least forty-eight (48) hours notice of the scheduling of any inspection of the premises, corrective work to be performed and/or any problems regarding compliance with their respective obligations under this settlement agreement including, without limitation, those pertaining to scheduling, materials, etc. g. All communications between the parties regarding performance of the terms and conditions of the settlement agreement shall be memorialized in writing by facsimile and/or email. 4. In the event Respondent satisfactorily completes the work set forth in this settlement agreement, Complainant agrees to withdraw his underlying disciplinary complaint and consents to the entry of an Order by the Registrar closing the issued Citation with prejudice as Resolved/Settled/Withdrawn. 5. Both parties acknowledge that they are authorized to enter into the settlement agreement and do so voluntarily and upon a presumption of good faith. 6. The parties agreed that all rights and defenses were to be merged into this settlement agreement and if any petition for rehearing of this matter was filed and granted, or if any new complaint was filed, the sole issue for determination shall be whether the parties have performed their respective obligations under the terms of the aforesaid settlement agreement. 7. The parties were advised of the Registrar of Contractors’ license record keeping policies and procedures and agreed that, as a result of the settlement and withdrawal of the complaint, Respondent’s official public record with the Registrar of Contractors will reflect the instant matter as a closed complaint under the category settled, withdrawn or resolved. 8. The Administrative Law Judge determined that the terms of the settlement agreement were reasonable under the circumstances and were the product of a knowing and voluntary act on the part of each party. 9. Based on the settlement agreement, the hearing was vacated. CONCLUSIONS OF LAW 1. The law favors the settlement of disputes and adverse parties should be free to adjust their differences by entry into agreements and stipulations of settlement that should be recognized and given effect by the tribunal with jurisdiction over the issues and that possesses statutory enforcement authority. 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.

ORDER In view of the foregoing, IT IS ORDERED vacating the hearing in this matter from the docket of the Office of Administrative Hearings. IT IS FURTHER ORDERED remanding this matter to the Registrar of Contractors for further appropriate action. Done this day, September 11, 2007.

_________________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By __________________________ ----------------------- [1] It must be noted that, at the hearing, Complainant acknowledged that Respondent had undertaken good faith efforts to remedy Corrective Work Order item 1 and, to his best knowledge, it had been corrected. However, the parties also acknowledged that, due to the lack of significant precipitation in the Phoenix area, it could not be conclusively determined that the exact cause of the leak(s) could be identified.

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