Vacate: Settlement Recommendation

07F-2042-ROC · Registrar of Contractors · 2008-04-24

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made: FINDINGS OF FACT

1. Following a discussion with the parties, prior to commencement of the instant hearing, the parties concluded a settlement agreement, the essential terms of which were read upon the record.

2. Pursuant to the terms of the aforementioned settlement agreement, Respondent agreed to perform all work required by the May 3, 2007 Corrective Work Order no later than June 15, 2008 as follows: A. Kitchen Sink Respondent agreed replace Countertop and repair gap between wall and backsplash.

B. Mold Testing and Remediation Respondent will employ an industrial hygienist, to conduct intrusive mold testing in the hallway and master bathroom walls and air sampling in adjacent bedrooms. Respondent agreed to hire a mold remediation company (Emergency Specialists) to remediate all mold where the mold is determined to be in excess of acceptable health levels. Respondent agreed to hire an independent industrial hygienist to provide a written clearance report after remediation.

C. Hallway Bathroom Respondent agreed to remove and replace the shower pan in accordance with manufacturer’s requirements, and during such removal and replacement, repair the corrective work required concerning the claims of: (1.) Film on wall tile; (2.) Voids in grout; (3.) Water getting into grout; (4.) Spongy shower pan (to be replaced); (5.) Mis-matched paint; (6.) Broken wood trim pieces; (7.) Stained shower pan; (8.) Grout cracking at shower pan to tile joint.

Respondent also agreed to make his best efforts to correct the ticking noise in the shower walls, which Inspector Duncan opined was caused by the holes in framing, through which shower hot water pipes pass, not having sufficient size diameter.

D. Master Bathroom Respondent agreed to remove and replace the shower pan in accordance with manufacturer’s requirements, and during such removal and replacement, repair the corrective work required concerning the claims of: (1.) Film on wall tile; (2.) Grout not properly sealed; (3.) Handrail not properly sealed; (4.) Grout at shower pan to tile joint cracking; (5.) Stained shower pan; (6.) Toilet not properly installed; (7.) Hole cut-out in drywall; (8.) Remove and replace shower seat with proper handicap seat (9.) Water getting into grout; (10.) Mis-matched paint; (11.) Broken wood trim pieces; (12.) Missing insulation;

Respondent also agreed to remove and replace the existing shower drain and call for appropriate inspections. Respondent also agreed to make his best efforts to correct the ticking noise in the shower walls.

E. Other (1.) Respondent agreed to inspect and provide necessary termite treatment by a licensed treatment professional in areas in which concrete has been removed by Respondent during the course of construction. (2.) Respondent agreed to obtain all appropriate permits and call for appropriate inspections; to operate within the scope of his license; and, if any subcontractors are to be used, all subcontractors will be licensed, bonded and insured. Respondent agreed to perform all work in a workmanlike manner. (3.) Complainants agreed to provide reasonable access to Respondents to complete the above repairs. (4.) Respondent agreed to pay Complainants $350.00 no later than April 26, 2008. (5.) Complainants agreed to withdraw the filed complaint.

3. The parties agreed that all rights and defenses were to be merged into the settlement agreement and if any request for a compliance hearing in this matter was to be filed and granted, or if any new complaint was filed alleging a breach of the settlement agreement, the sole issues for determination shall be whether the parties have performed their respective obligations under the terms of the aforesaid settlement agreement.

4. The terms of the forgoing settlement were determined to be the product of knowing and voluntary action on the part of each party.

5. Based on the settlement agreement, the hearing was vacated. CONCLUSIONS OF LAW

1. 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 of settlement which should be recognized and given effect by all tribunals. 2. The settlement reached and submitted during the hearing of this matter, having been found to be voluntarily made, warrants the termination of the instant hearing. // // // // // // // ORDER

In view of the foregoing, it is recommended that this matter be vacated from the calendar of the Office of Administrative Hearings and remanded to the referring Agency for appropriate disposition.

Done this day, April 24, 2008.

_________________________________ Michael G. Wales Administrative Law Judge

Copy transmitted by mail this _____ day of _________, 2008 to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By _______________________________

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