Vacate: Settlement Recommendation

07F-M1223-ROC · Registrar of Contractors · 2008-01-14

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 27, 2007 APPEARANCES: Complainant: Charles and Cindy Greenbaum appeared, pro per. Respondent: William John Myler, owner and qualifying party, appeared, pro per. Registrar of Contractors: Inspector Jack Clark 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 at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated November 11, 2007. 2. Prior to the presentation of any testimony or evidence, an extensive and protracted discussion ensued off the record by and between the parties under the direction of the Administrative Law Judge.[1] As a result of that 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. The parties stipulated that complaint/Corrective Work Order[2] Item No. 6 (molding around 10 doors) had been resolved. b. On or before February 15, 2008, Respondent will cause to be performed the following corrective work for Complainants in a workmanlike manner using a duly licensed subcontractor(s): i. Item 1. Replace Glue Lamb Beam support for the roof – Respondent will cause the proper permit to be obtained and an inspection by an inspector and engineer to occur to insure that the roof framing of the premises is appropriate and meets all applicable codes. If the inspector and engineer determine that the subject roof framing is appropriate and meets all applicable codes, no further corrective work will be required of Respondent. In the event further corrective work is required, Respondent will cause such work to be performed as indicated above. ii. Item 2. Nails broke in wood and are sticking out, along with broken wood. iii. Item 3. No Face plates on electric boxes. The leaning board depicted in photographs C-6 and C-9 will be attached to the Glue Lamb Beam. In addition, with respect to the 2x6 board depicted in said photos, Respondent will cause his subcontractor to determine if such board is part of the support structure and, if so, such board and/or a replacement board will be properly attached so as to function as intended. iv. Item 4. Trim around kitchen windows uncompleted. v. Item 5. Attic stairs –door doesn’t open or close correctly and is not finished. (As depicted in photograph C-13) vi. Item 7. Incompleted [sic] shelves outside kitchen window. As depicted in photograph C-1, two side shelves shall be added under the granite countertop to conform to the granite’s shape. vii. Item 8. Custom Wall Unit all shelves not square and are uneven no glass doors were put on and wall unit is incompleted [sic]. No sliding drawer. Referencing photograph C-11, two (2) drawers will be installed in each of the sections under the arch and to the right of the arch and cabinet doors will be installed on the two (2) sections under the television on either side of the sub-woofer and under the Christmas tree. In addition, the parties will review the section under the television which houses the sub-woofer to determine whether a screen could be placed at that location so as not to interfere with the function and esthetics of the sub- woofer and cabinet section. Also, tinted doors will no longer be required at the stereo component and Christmas tree sections of the wall unit. viii. Any dispute between the parties regarding money claimed due under the parties’ contract is outside the scope of the settlement agreement and will be addressed by the parties in a civil action, as necessary. ix. Upon completion of all corrective work by Respondent’s subcontractor(s), Complainants will send a letter to Registrar of Contractors Inspector Jack Clark confirming such fact. 4. Respondent shall insure that all work performed by his subcontractor(s) shall be completed in accordance with Registrar of Contractors minimum workmanship standards. 5. Complainants shall provide Respondent and/or its subcontractor(s) with reasonable access to the property in order to perform all required corrective work. 6. The parties shall give each other at least forty-eight (48) hours notice of the scheduling of corrective work to be performed and/or any other problems regarding compliance with their respective obligations under the settlement agreement. 7. 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. 8. The parties agree to act in good faith toward the accomplishment of each of their respective obligations under the terms of the settlement agreement. 9. In the event Respondent’s subcontractor(s) completes Respondent’s obligations as 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. 10. 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. 11. 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, of 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. 12. 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. 13. 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. 14. 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.[3] Done this day, January 14, 2008.

______________________ 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] Respondent William Myler appeared approximately thirty (30) minutes after the hearing was scheduled to commence. Although the hearing had already begun, no testimony or evidence had been presented on the record. Upon Mr. Myler’s appearance, the parties began the referenced off record settlement discussion. [2] Enumerated Corrective Work Order items are taken directly from the complaint. [3] 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