Vacate: Settlement Recommendation

06F-M2237-ROC · Registrar of Contractors · 2007-01-04

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 19, 2006 APPEARANCES: Complainant: George and Muriel Arzt, appeared, pro per. Respondent: Donny Holmstrom, corporate director of customer service, appeared on behalf of Respondent Sun Lakes Construction Co. and was represented by counsel, Pamela H. Gulsvig. Registrar of Contractors: Inspector Paul Terek 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 Hearing dated November 9, 2006. 2. Prior to the presentation of any testimony or evidence, a discussion ensued off the record by and between the parties, counsel for Respondent and Registrar of Contractors Inspector Paul Terek under the direction of the Administrative Law Judge. Thereafter, further discussion took place between the parties, Respondent counsel and Inspector Terek 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 on another. 3. The terms of the settlement agreement are as follows: a. The parties agree that the all tile, approximately 1,334 square feet, in Complainants’ residence (“project”) must be replaced. b. Respondent will absorb the cost of all labor to remove and replace the tile. Complainants and Respondent will share equally (50/50) the cost of the replacement tile at Respondent’s cost which will include an additional two (2) boxes of the replacement tile. b. On or before January 8, 2007, Complainants will go the showroom of Respondent’s subcontractor, The Carpet Center/Flooring Gallery at Dobson and Riggs roads, to select a porcelain or ceramic tile style, color, texture and size (not to exceed 20” x 20”). c. On or before the expiration of forty-five (45) days from January 8, 2007, or by February 22, 2007, Respondent shall notify or cause Complainants to be notified of the arrival of the chosen tile and the parties shall meet at The Carpet Center/Flooring Gallery to provide Complainants the opportunity to review the tile and verify in writing that the tile received is what was ordered and has been approved by Complainants. d. Upon receipt and approval of the tile by Complainants, Complainants shall contact Respondent to schedule the tile installation which shall not commence prior to the expiration of two (2) weeks from the date of notification unless otherwise approved in writing by the parties. e. The parties agree that the estimated time for Respondent to perform the corrective tile work in one (1) week. Respondent agrees to incur the cost of one (1) week (seven (7) nights) of lodging for Complainants while the corrective tile work is being done the price of which shall not exceed one hundred dollars ($100.00) per night. The parties further agree that Respondent shall be responsible for an additional one or two nights’ lodging cost in the event the corrective tile work is not completed in the estimated one week time period. Complainants shall be responsible for their own food or other expenses incurred by them during the period of the tile corrective work. f. Prior to Respondent’s commencing the tile corrective work, Complainants, at their discretion, shall remove all items of personal property and disconnect and/or remove all electronic components from the premises to eliminate and/or minimize any damage to such items during the course of the tile removal and reinstallation. In addition, Respondent agrees to retain and incur the cost of an outside company to remove, wrap with plastic as necessary, and place all furniture from the premises in the garage of the premises and return such furniture to the premises upon completion of the tile corrective work. Complainants shall be responsible for clearing sufficient space in the garage to accommodate such furniture. g. The parties further agree that, before Respondent commences the tile corrective work, the parties shall walk the premises and note in writing, by photograph and/or video, all pre-existing damage to the premises. Respondent further agrees to be responsible for any collateral remedial work required to repair any damage to the premises caused by Respondent during the course of its performance of the tile corrective work. h. The parties shall give each other at least twenty-four (24)hours 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 this settlement agreement. i. All communications between the parties regarding performance of the terms and conditions of the settlement agreement shall be memorialize in writing between the parties and/or counsel, as applicable, by facsimile and/or email. 4. In the event Respondent satisfactorily completes the work set forth in paragraph 3 hereof, Complainants shall be deemed to have withdrawn their underlying disciplinary complaint and consented to the entry of an Order by the Registrar closing the issued Citation with prejudice as resolved/settled/withdrawn. 5. The parties agree to act in good faith toward the accomplishment of each of their respective obligations under the terms of the settlement agreement. 6. 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. 7. 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. 8. 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. 9. 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. 10. Based on the settlement agreement, the hearing was vacated as to Respondent Sun Lakes Construction Co., Inc. 11. Robson Ranch Arizona Construction Corp. (ROC License No. 192584, Class KB-01) was named as a respondent in this matter (Docket No. 06F- M2237Y-ROC). However, no evidence was presented regarding Robson’s participation in the instant project or liability for the subject corrective work. Robson did not appear at the hearing through either counsel or authorized representative.

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 termination of this matter. 3. It is determined and concluded that Complainants failed to establish by a preponderance of credible, probative and relevant evidence that Respondent Robson Ranch Arizona Construction Company violated any of the provisions of A.R.S. §32-1154A cited in the instant Citation.

ORDER In view of the foregoing, IT IS ORDERED vacating the hearing from the docket of the Office of Administrative Hearings. IT IS FURTHER ORDERED remanding the mater to the Registrar of Contractors for further appropriate action.[1] Done this day, January 4, 2007.

_______________________ 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 ___________________________ ----------------------- [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 the date of that certification.

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