Vacate: Settlement Recommendation

07F-M2311-ROC · Registrar of Contractors · 2008-09-24

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 15, 2008 APPEARANCES: Complainant: Ed and Bernice Sexton appeared, pro per. Respondent: Tom Kokallares, member and qualifying party, appeared, pro per. Registrar of Contractors: Inspector Geoff Galgan 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 matter convened for hearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated August 12, 2008. 2. Prior to the presentation of any testimony or evidence, an extensive discussion ensued off the record by and between the parties and the Registrar of Contractors Inspector Geoff Galgan under the direction of the Administrative Law Judge. As a result of that discussion, the parties concluded and stipulated to 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 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 subcontractor, as necessary, all required corrective work on the following items: i. October 25, 2007 Corrective Work Order: items 11b, 11c, 11d, 12, 13, 14, 15, 19, 22, 38 and 49.[1] ii. February 14, 2008 Amendment to Complaint: items 1, 2, 3, 4, 5, 6, 7, 8 and 9. With respect to Amendment item 1 (and those attendant Corrective Work Order items as noted above), Respondent, at its own expense, will be responsible for “shooting the grade” of the subject areas of the premises and compare its results with the grading requirements of the Town of Queen Creek (“TQC”) and the Home Owner Association Architectural Landscape Committee (“ALC”) to determine what remedial work is required, if any. The parties will be responsible for obtaining the written approvals of the TQC and ALC regarding what standards and/or calculations are to be followed when performing the requisite corrective work on the subject grading and related issues. The parties shall immediately exchange via facsimile and/or email the referenced written approvals upon that party’s receipt thereof.

iii. February 14, 2008 Amendment to Complaint: item 11 which will include Corrective Work Order items 19, 22 and 38. With respect to these items, Respondent shall address all referenced nail pops as well as those drywall cracks located in the rear hallway, Westside master bedroom windows, garage and master shower area one additional time. Once such repairs are completed, all painting of these subject areas shall be performed by Complainants with paint provided by Respondent. Complainants acknowledge that Respondent will not be required to provide an additional two (2) year warranty on these items as they fall into the Registrar’s category of a “one-time fix within the first year of occupancy” and Respondent has previously performed the necessary remedial work on these items as required. b. Except as set forth below regarding Amendment item 1 as referenced in subparagraph (a)(ii) above, all corrective work referred to in subparagraph (a) above shall be completed on or before October 31, 2008. With respect to Amendment item 1, Respondent shall perform all such corrective work on or before October 31, 2008 or on or before the expiration of twenty (20) days from the receipt by both parties of the written approval of TQC and ALC, whichever is later, weather permitting. c. Complainants shall provide Respondent and/or its subcontractors with reasonable access to the property in order to perform all required corrective work. Complainant also agrees that Respondent and/or its subcontractor(s) have permission to access Complainants’ water supply in order to perform the corrective work required hereby. d. The parties shall give each other at least forty-eight (48) hours notice of the scheduling of any inspections, corrective work to be performed and/or any problems regarding compliance with their respective obligations under this settlement agreement. 4. 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. 5. The parties agree to act in good faith toward the accomplishment of each of their respective obligations under the terms of this settlement agreement. 6. Respondent and/or its subcontractor(s), as applicable, shall complete any required corrective work provided for hereunder in accordance with Registrar of Contractors minimum workmanship standards. 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 so knowingly, voluntarily and on a presumption of good faith. 8. In the event Respondent satisfactorily completes and/or causes to be completed its 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. 9. 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. 10. 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. 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 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 appropriate further action.[2] Done this day, September 24, 2008.

_______________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Armando Contreras 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ ----------------------- [1] It must be noted that Corrective Work Order items 11b, 11d, 12, 13, 14, and 49 will addressed by Respondent as part of Amendment item 1. In addition, Corrective Work Order item 11c will be addressed by Respondent as part of Amendment item 2. [2] 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