Vacate: Settlement Recommendation

06F-G0255-ROC-com · Registrar of Contractors · 2007-06-07

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 22, 2007 APPEARANCES: Complainant: Darlean Sugameli appeared and was represented by counsel, Rick K. Carter. Respondent: Rick Sims, Customer Care Manager, appeared and was represented by counsel, Zahnie L. Soe Myint. Registrar of Contractors: Inspector Jim Hennessy 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 at the time, date and place set forth in the Registrar of Contractors’ Notice of Compliance Hearing dated April 19, 2007. 2. Prior to the presentation of evidence, a discussion ensued off the record by and between the parties and their respective counsel under the direction of the Administrative Law Judge. Subsequently, further discussion took place between the parties and counsel outside the presence of the undersigned. As a result of these discussions, the parties concluded and stipulated to a settlement of their dispute the essential terms and conditions of which were then reduced to a hand-written document entitled “Settlement Agreement” which was marked as Exhibit “A” and read onto 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. Complainant, Darlean Sugameli(“Complainant/Sugameli”), and Respondent, Beazer Homes Holdings Corp. dba Beazer Homes (“Respondent/Beazer”), hereby enter this settlement agreement this 22nd day of May, 2007, and agree as follows: i. Parties, through their respective consultants/experts, will confer and agree upon an independent third-party licensed plumber/plumbing consultant, or other qualified expert, within three (3) weeks from the date of this settlement agreement. ii. That the agreed-to independent licensed plumber/plumbing consultant/expert will investigate the plumbing allegations and issues in ROC matter G06-0255. The parties agree that the independent licensed plumber/plumbing consultant/expert will conduct his/her investigation without limits by either party and will do any inspections, testing or any other item he/she deems necessary to investigate the plumbing allegations and issues in this matter to determine any and all repairs, if necessary, to correct the cause, if any, of the allegations made in this matter. iii. The parties agree that any and all fees, costs and/or expenses of the agreed-to licensed plumber/plumbing consultant/expert will be shared equally among the parties. In the event the licensed plumber/plumbing consultant/expert requires repairs, Respondent will bear the total cost of the third party. iv. The agreed-to licensed plumber/plumbing consultant/expert will issue, following his/her investigation a written report with diagnosis of all plumbing problems, if any, specific repair recommendations, if any are necessary, and recommended time frame for remediation. v. If plumbing related repairs are required by the agreed-to licensed plumber/plumbing consultant/expert, Beazer will make the repairs within a reasonable period of time utilizing licensed contractors, as necessary. Complainant will make her home and property available for any and all investigations deemed necessary by the licensed plumber/plumbing consultant/expert. vi. During any and all investigations and/or visits, the parties agree that only counsel for each party will be present at the home and property. vii. If the agreed-to licensed plumber/plumbing consultant/expert decides, via his/her written report, that no repairs are required, the matter will be closed with prejudice pursuant to settlement. If repairs were required, the agreed-to licensed plumber/plumbing consultant/expert will inspect the repairs and will approve the repairs or require action by written supplemental report, and such actions will be performed within a reasonable period of time. One approved by the agreed-to licensed plumber/plumbing consultant/expert and reported to the assigned Administrative Law Judge and Registrar of Contractors in writing, the matter shall be closed with prejudice pursuant to settlement. viii. The parties hereby stipulate in advance that the findings of the licensed plumber/plumbing consultant/expert are final and binding and are hereby accepted by the Administrative Law Judge as such without further evidentiary hearings or the like. ix. This agreement shall not in anyway act to release Beazer from its existing and continuous express or implied warranty obligations, if any, in any respect. 4. The parties stipulated that the other outstanding compliance issue, the flooring in bedroom 2, was satisfactorily resolved by Respondent and was no longer an issued in this matter. 5. The parties, by and through their respective counsel, shall give each other at least forty-eight (48) hours notice of the scheduling of any corrective work, inspections and/or problems regarding compliance with their respective obligations under this settlement agreement. 6. All communications between the parties and/or counsel regarding performance of the terms and conditions of the settlement agreement shall be memorialized in writing by facsimile and/or email. 7. In the event Respondent satisfactorily completes and/or causes to be completed all of the corrective work set forth in this settlement agreement, Complainant agrees to withdraw her underlying disciplinary complaint and consent to the entry of an Order by the Registrar closing the issued Citation with prejudice as Resolved/Settled/Withdrawn. 8. Both parties acknowledged that they are authorized to enter into the settlement agreement and do so voluntarily and upon a presumption of good faith. 9. 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 be 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. 10. 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 of settled/withdrawn/resolved. 11. 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. 12. 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 agreement 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, June 7, 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 ___________________________ -----------------------

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