ALJDEC decisions subject to certification as final

07F-Y0127-ROC-COM-RHG · Registrar of Contractors · 2009-12-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 10, 2009. APPEARANCES: Alfredo and Beatriz Cruz appeared personally. Santa Clara Construction, Inc. was represented by its attorney, Art Villarreal, Esq. Sylvia Gallegos served as interpreter. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. The Registrar of Contractors (“Registrar”) forwarded the above- entitled matter to the Office of Administrative Hearings, an independent agency, for conducting a compliance rehearing. The sole issue at the compliance rehearing is whether the parties have complied with their respective obligations under their prior settlement agreement. 2. On September 9, 2009, a compliance hearing was conducted before the Office of Administrative Hearings. During the compliance hearing, the parties reached a settlement, the terms of which were read into the record. 3. A review of the audio record of the prior hearing reveals that the terms of the parties’ settlement agreement are as follows:

1. Respondent agreed to allow Complainants to pick a substitute contractor to redo the tile floor throughout Complainants’ entire residence at Respondent’s expense. 2. Respondent agreed to repair three cabinets that had suffered minor damage. 3. Respondent agreed to rent a storage unit for Complainants to place furniture. 4. Respondent agreed to vacuum Complainants’ furniture in storage.

4. Neither party has complied with item number 1 of the above-described settlement agreement. Complainants were obligated to hire a substitute contractor to redo the tile floor throughout Complainants’ residence. Respondent was obligated to pay for such work. Complainants failed to hire a properly licensed contractor to perform such work. Respondent attempted to perform and/or coordinate those repairs. 5. Pursuant to the terms of the settlement agreement, Respondent cannot perform the required remedial work but may only pay for such work to be performed by a substitute contractor selected by Complainants. 6. There is no dispute that items numbered 2 and 3 of the above-described settlement agreement have been resolved. 7. It is not timely for Respondent to comply with item 4 of the settlement agreement. The remedial work has not yet been performed. CONCLUSIONS OF LAW 1. The parties mutually breached the terms of item 1 of the settlement agreement. 2. Respondent completed its contractual obligations under items numbered and 3 of the settlement agreement. 3. Respondent’s performance of item number 4 of the settlement agreement is not yet required. RECOMMENDED ORDER Respondent’s License No. 173024 shall be suspended on the effective date of the Order entered in this matter until the Respondent files written proof with the Registrar, and the Registrar accepts such proof, that Respondent has fully complied with the obligations in item number 1 of the parties’ settlement agreement. Respondent’s compliance with those obligations is conditioned upon Complainants’ obligation to hire a properly licensed substitute contractor to perform the required repairs and that Complainants properly submit an invoice for the substitute contractor to Respondent. If Respondent fully complies with its obligations under item number 1 of the parties’ settlement agreement as above provided on or before the effective date of the Order entered in this matter, then the above-provided license suspension shall not take place and the Citation and Complaint in Case No. Y07-0127 shall be closed.

Done this day, December 29, 2009.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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