Vacate: Settlement Recommendation

07F-H0125-ROC · Registrar of Contractors · 2007-09-20

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 11, 2007 APPEARANCES: Complainant: Gary and Polly Grassi appeared, pro per. Respondent: James H. Maberry, corporate officer and qualifying party, appeared, pro per. Registrar of Contractors: Inspector William Redman 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 rendered and Order issued:

FINDINGS OF FACT 1. The matter convened for hearing via videoconference at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated August 3, 2007. 2. Prior to the presentation of any testimony or evidence at the hearing, a discussion ensued off the record by and between the parties and Registrar of Contractors Inspector William Redman under the direction of the Administrative Law Judge. As a result of this discussion, the parties concluded and stipulated to a settlement agreement the essential terms of which were then 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 settlement agreement are as follows: a. Respondent will perform and/or cause to be performed by a duly licensed contractor, as necessary, corrective work on the front door/entry way of Complainants’ residence as follows: i. Properly repair screw holes at the right hand sidelight; ii. Repair trim as needed at the right hand sidelight; iii. Stain and seal the exterior side of the front door and sidelights. In that Respondent is not licensed to perform the corrective work on this item, Respondent shall retain the services of a duly licensed painting contractor to address this item. The paint/stain shall match the existing color as close as possible. Toward this end, Respondent shall arrange for the painting contractor to meet with Complainants to select the appropriate stain/paint for the front door and sidelights which selection shall be evidenced in writing by Complainants and the painting contractor. b. All corrective work referred to in subparagraph (a) above shall be completed within thirty (30) days of the hearing, or on or before October 11, 2007. c. If an issue arises regarding workmanship, not including the color selection, either party may obtain a compliance inspection by submitting a written request to Inspector Redman with at least one week’s notice with a copy provided to the other party. d. Respondent and/or its subcontractor shall complete all required corrective work hereunder in accordance with Registrar of Contractors minimum workmanship standards. e. Complainants shall provide Respondent and/or its subcontractors with reasonable access to the property in order to perform all required corrective work. f. 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. 4. In the event Respondent satisfactorily completes and/or causes to be completed its obligations set forth in paragraph 3 hereof within the stated period, Complainants shall be deemed to have withdrawn their complaint and consented to the entry of an Order by the Registrar of Contractors closing the issued Citation with prejudice as resolved/settled/withdrawn. 5. 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. 6. The parties agree 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 son 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 the termination of this matter.

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 this matter to the Registrar of Contractors for further appropriate action. Done this day, September 20, 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