ALJDEC decisions subject to certification as final -- findings and

06F-2250-ROC · Registrar of Contractors · 2006-11-28

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 28, 2006.

APPEARANCES: >The Complainant was represented by his attorney, Ivan Kolesik, Jr., Esq. >The Respondent appeared through Kent Vernon Brady, its qualifying party and a member of the LLC entity.

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 at the outset of the scheduled hearing, and prior to the introduction of any evidence or testimony, 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. It was not disputed that the records of the Registrar of Contractors presently reflect that Respondent’s license has been and still is suspended by operation of law for lack of a bond. By way of a preliminary matter and as a required condition precedent to Respondent’s promised performance under the parties’ settlement agreement, the Respondent agreed pursuant to the provisions of such settlement agreement, to promptly cause the removal of the bond suspension prior to commencing any of the envisioned additional work.

3. Respondent agreed to return to the jobsite and to properly accomplish certain identified remedial work, to specifically include a complete removal and replacement of all porcelain tile flooring, no later than the stated future extended deadline date of January 15, 2007, and Complainants agreed to accept the proper performance of such remedial work in full satisfaction of their filed complaint. Complainants agreed to the entry of an Order by the Registrar provisionally closing the Citation issued herein, conditioned upon the proper completion of the agreed further remedial work, and also agreed to make prompt selections of available similar tile materials as well as to grant reasonable and timely access to the premises to Respondent and its representatives so as to enable the performance of such contemplated work.

4. Respondent further agreed to cause the filing of appropriate documents so as to effectively prompt the dismissal with prejudice of a presently pending civil lawsuit between the parties. Additionally, conditioned upon the Respondent’s proper and timely performance of the agreed additional jobsite work, both parties expressly agreed to mutually release each other from any and all claims arising out of their prior construction contract relationship. Respondent also agreed to pay or to provide Complainant with proof of payment for the work or materials furnished by subcontractors and suppliers either as part of the original contract work or as part of corrective work efforts, as well as for the work envisioned under the settlement agreement.

5. Respondent further agreed, solely for the purposes of proper disposition of this proceeding and for effectuating the parties’ above- described settlement agreement, to the entry of a finding and conclusion of at least one workmanship violation, one of the contracting law provisions charged in the within Citation, so as to enable the imposition of a provisional license revocation, [1] expressly conditioned upon Respondent’s proper and timely compliance with its obligations under the settlement by undertaking and completing the specified remedial work. The revocation penalty, if any, would be imposed no earlier than January 16, 2007, which is the day following the mutually agreed extended deadline date.

6. In the event Respondent fails to properly and timely comply with its corrective work obligations, the parties additionally stipulated, as part of the overall settlement terms that the agreed quantum of monetary damages sustained by Complainant was in an amount not less than $75,000.00.

7. Irrespective of any earlier effective date of the Registrar’s Order for purposes of further administrative or judicial review, if Respondent fails to comply with its settlement obligations, as agreed, then its license would be revoked on a fixed future date. If however, Respondent is in compliance with its settlement obligations on or before the agreed extended deadline date, then no license revocation would be imposed, and the within Citation and Complaint would be closed.

8. 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 entire record in this matter, including the express contents of the parties’ settlement agreement, supports a determination that Respondent has violated the workmanship provisions set forth in A.R.S.§32- 1154(A)(3); namely, Rule R4-9-108, A.A.C., as charged in the Citation and Complaint.

2. 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.

3. 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 entry by the Registrar of Contractors of an Order provisionally revoking Respondent’s contracting license unless, on a stated future date the Registrar receives written confirmation that Respondent is in compliance with its remedial work obligations under the parties’ settlement agreement, in which event all charges contained in the Citation and Complaint shall be closed.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class B license shall be revoked on January 16, 2007.

It is further recommended that if the Registrar receives written notification on or prior to the above-specified extended deadline date that Respondent has fully, properly and timely complied with the terms of the parties’ settlement agreement, then no license revocation shall be imposed, but instead the entire Citation and Complaint in Case Number 06-2250 shall be closed.

Notwithstanding the above-provided extended deadline date for the imposition of a disciplinary penalty, if at all, against Respondent’s license, the Registrar’s Order in this matter shall become final and effective, for the purposes of further administrative or judicial review, thirty-five (35) days after the date of entry and mailing by the Registrar.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.

Dated: December 1, 2006. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

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

----------------------- [1] Since little or no motivation would exist for Respondent or any contractor to undertake and complete remedial work so as to avoid a suspension of an already and presently suspended license, the imposition of a provisional license revocation penalty must be deemed to be more appropriate in this case as part of the overall settlement terms and conditions.

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