Vacate: Settlement Recommendation

06F-F0196-ROC · Registrar of Contractors · 2006-11-28

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 13, 2006 APPEARANCES: Complainant: Jean Buillet, manager, and Phillippe Buillet appeared, pro per. Respondent: Jim Midkiff, corporate officer and qualifying party appeared, pro per. Registrar of Contractors: Inspector Mark Schweiger 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 hearing convened via videoconference at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated October 3, 2006. 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 Mark Schweiger under the direction of the Administrative Law Judge. Subsequently, further discussion took place between the parties and Inspector Schweiger 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 Arizona 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, 3, 7 and 8 of the Corrective Work Order issued May 15, 2006 have been resolved. b. Respondent will perform all necessary and required work on the following items of the May 15, 2006 Corrective Work Order as follows: i. Item 2 – Spa Jets: Respondent will adjust spa jets by restricting the strong flowing jet. ii. Item 4 – Auto Clean System: Respondent will install a second pump sized appropriately to utilize the existing suction returns for circulation. Complainant acknowledges that such remediation is against Respondent’s professional recommendation and upon said pump’s installation Complainant will relieve Respondent of any further obligations for this item. During the course of installing the second pump, Respondent shall inspect and straighten all pipe work in the equipment area and insure that there are no leaking pipes. iii. Items 5 and 6 – Pool Cover: The parties agree to schedule and coordinate a meeting with Cover Pools of Arizona and the Yavapai County Inspections Department by the end of November 2006 for the purpose of resolving the outstanding safety issues and confusions pertaining to the pool cover’s cover. Once a mutually acceptable resolution to the safety issues of the pool cover’s cover has been reached and approved by the Yavapai County Inspections Department, Respondent will perform and/or cause to be performed and Complainants will accept any corrective work required to conform to such mutually acceptable and Yavapai County approved resolution. In addition, one or both of the parties shall secure from the Yavapai County Inspection Department written verification and approval of the acceptable resolution of the safety concerns pertaining to the pool cover’s cover. c. All corrective work referred to in subparagraph (b) above shall be completed on or before January 31, 2007. d. Respondent agrees and warrants that all work to be performed under the settlement agreement shall meet the minimum standards of workmanship as adopted in Arizona subject to the limitations pertaining to the second pump referenced in subparagraph 3 (b) (ii) above. e. Complainant shall provide Respondent and/or its subcontractors with reasonable access to the property in order to perform all required corrective work. f. Complainant agrees to accept all work performed by Respondent as described herein that meet the minimum standards of workmanship as adopted in Arizona. g. 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. h. 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, Complainants agree to withdraw their underlying disciplinary complaint and consent 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 to 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 to the product of a knowing and voluntary act of 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, November 28, 2006.

_________________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2006, to:

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

By _________________________ -----------------------

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