Vacate: Settlement Recommendation

06F-F0221-ROC · Registrar of Contractors · 2007-02-01

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 29, 2007 APPEARANCES: Complainant: John F. Farnol, Chief Building Official, and Tiffany Antol, appeared, pro per. Respondent: Ralph Gavin Ramsey, Jr., owner and qualifying party, appeared and was represented by counsel, Richard M. Grimsrud.

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 at the time, date and place set forth in this tribunal’s Order Granting Continuance dated October 30, 2006. 2. Prior to the presentation of any testimony or evidence, a discussion ensued off the record by and between the parties and counsel for Respondent under the direction of the Administrative Law Judge. Thereafter, further discussion took place between the parties and Respondent counsel outside the presence of the undersigned. As a result of these discussions, the parties concluded 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 upon one another. 3. The terms of the settlement agreement are as follows: a. Stop Work Order. Ramsey acknowledges and stipulates that he, as Respondent, continued to perform work on the subject project identified as APN# 404-02-009 and/or Lot 2 in the Elk Park Meadows Subdivision, Flagstaff, Arizona (“premises/project”) on behalf of its owner, Cortez, in violation of the initial stop work order issued by the Coconino County Community Development Department in April 2004. With regard to such acknowledgment and stipulation, the parties further stipulate that any discipline to be imposed on Respondent’s Class B, General Residential, License No. 105717 shall be left to the sole discretion of the Administrative Law Judge. b. Septic System. The parties stipulate and agree that due to the absence of any evidence that Respondent installed or constructed and/or caused to be installed or constructed a septic system on the subject project, any allegations and/or alleged violations of A.R.S. §32-1154A regarding such work should be dismissed with prejudice. c. Timetable for compliance with all Coconino County requirements including, without limitation, those relating to floodplain regulations and health codes. i. Complainant, in conjunction with it consultant, Sheppard, will seek approval of engineer Bob Richard’s 70% flood study by April 1, 2007. ii. On or before November 1, 2007 and subject to and contingent upon the written approval of the premises’ owner, Cortez, the parties hereto, in conjunction with either Respondent’s or Cortez’s septic system specialist, will achieve agreement to secure approval for an acceptable septic system to be installed on the project. iii. Once the type of septic system has been determined, the parties shall secure on or before December 1, 2007, all permits and/or written approval, as required, from Coconino County for the septic system and any work to be done on the premises’ buildings as well as the Federal Emergency Management Agency (“FEMA”) which must approve said septic system’s intrusion into the floodplain attendant to the project. iv. Upon issuance of the permits and/or written approval by Coconino County and/or FEMA as above-referenced in paragraph (iii), Respondent shall perform and/or cause to be performed by licensed subcontractors, as necessary, all work on the project pertaining to the septic system and/or buildings thereon by June 1, 2008. The parties further acknowledge that as of the date of this settlement agreement, Respondent’s license is suspended. In the event Respondent’s license remains suspended at the time of the issuance of the above-referenced permits and/or written approvals, Respondent shall remit payment to the premises’ owner, Cortez, to retain those licensed contractors necessary to perform and complete the above- referenced work by June 1, 2008. v. The parties further agree that the timetable set forth above is intended to relate to the steps and procedures set forth in a November 2, 2005 letter from Bill Towler, Administrator, Coconino County Flood Control District, attached hereto and incorporated herewith as Exhibit “A”. vi. The parties further agree that Respondent’s obligation to perform and/or cause to be performed the work on the subject project as detailed above is contingent upon the parties’ receipt of approval of the referenced 70% flood study (paragraph (i) by April 1, 2007; the Cortez’s cooperation and approval of the septic system (paragraph (ii)); and/or FEMA’s approval regarding intrusion into the floodplain (paragraph (iii)). d. The parties shall give each other at least forty-eight (48) hours written notice of the scheduling and/or cancellation of any meeting, inspection of the project, corrective work to be performed and/or any problems regarding compliance with their respective obligations under the settlement agreement. e. All communications between the parties regarding performance of the terms and conditions of the settlement agreement shall be memorialized in writing between the parties and/or counsel, as applicable, by facsimile and/or email. 4. A review of the licensing database maintained by the Registrar of Contractors indicates that at the time of the hearing herein Respondent’s Class B (General Residential) license No. 105717 was suspended August 28, 2006 until compliance with a work order (F06- 0070). 5. In the event Respondent satisfactorily completes the work set forth in paragraph 3 hereof, Complainant shall be deemed to have withdrawn its underlying disciplinary complaint and consented to the entry of an Order by the Registrar closing the issued Citation with prejudice as resolved/settled/withdrawn. 6. The parties agreed to act in good faith toward the accomplishment of each of their respective obligations under the terms of the settlement agreement. 7. Both parties acknowledge that they are authorized to act on behalf of themselves or their company and enter into the settlement agreement and do so knowingly, voluntarily and on a presumption of good faith. 8. The parties agree that all rights and defenses were to be merged into the 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. 9. The parties were advised of the Registrar of Contractors’ license record keeping policies and procedures and agree that, as a result of the settlement, Respondent’s official public record with the Registrar of Contractors will reflect the instant matter as a closed complaint under the category of resolved/settled/withdrawn. 10. 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. 11. 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 termination of this matter. 3. It is determined and concluded by Respondent’s stipulation set forth in Finding of Fact 3 (a) that Respondent’s failure to cease construction work on the project after the issuance of the initial stop work order by Complainant constitutes a wrongful act in violation of A.R.S. §32-1154A (7).

ORDER In view of the foregoing, IT IS RECOMMENDED that commencing on the later of the effective day of the Registrar’s Order entered in this matter or the date the suspension of Respondent’s license is lifted in Case No. F06-0070 or any other case, if applicable, Respondent’s Class B license be place on probation for a period of forty-five (45) due to its violation of A.R.S. §32-1154A (7) as set forth in Conclusion of Law 3 hereof. IT IS FURTHER RECOMMENDED that, in addition to the foregoing and pursuant to A.R.S. §32-1152(H)(1), Respondent shall post, within thirty (30) days of the effective date of the Order entered in this matter, an additional surety bond, cash deposit or alternative deposit in the amount of $1,000.00 for each of the next two renewal periods, such bond, or deposit to be in addition to the required surety bond, cash deposit or recover fund participation set forth in A.R.S. §32- 1152(C) Based on the foregoing and taking into consideration the above- referenced recommendations, IT IS ORDERED vacating the hearing 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 consistent with the foregoing.[1] Done this day, February 1, 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] 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 in this matter will be forty (40) days from date of that certification.

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