ALJDEC decisions subject to certification as final

07F-Y0213-ROC · Registrar of Contractors · 2008-02-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 7, 2008, at 10:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its attorney, Ryan Linder. . ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and, based upon the entire record; the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. Respondent is the holder of a Class KB-01 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed concrete work, including specialty concrete work, at the Complainant’s residence. 3. The Complainant was dissatisfied with the Respondent’s workmanship and failure to correct its work to the Complainant’s satisfaction despite repeated demands that it do so. 4. When the Respondent failed to comply with the Complainant’s repeated demands, the Complainant filed a formal Complaint, against the Respondent, with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector scheduled an on-site inspection. 6. Credible testimony and evidence, presented at hearing, established the day before the scheduled on-site inspection the parties entered into a Settlement Agreement wherein the Respondent issued a deductive Change Order to the contract price reducing the price by $1,200.00 and the Complainant signed a Certificate of Project Completion/Acceptance form. 7. The Certificate of Project Completion/Acceptance form provides, in pertinent part, as follows: “As of todays date 5/7/07, we, the homeowners acknowledge completion of the project as per proposal dated 3/22/06 and subsequent change order dated 4/18/07. With this statement, we are accepting the work as final and complete, we are satisfied with the work and there are no further obligations on the part of TKC Construction LLC.” 8. The Inspector performed an onsite inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 9. The Corrective Work Order provides, in pertinent part, as follows: “THE CONTRACTOR IS TO CORRECT BY APPROPRIATE MEANS THE FOLLOWING ITEMS: “1. The compound cracks by the front door. 2. The expansion joint that is 13’ from front door-should be 10’.” 10. Credible testimony and evidence, presented at hearing, established there are compound cracks near the Complainant’s front door and the expansion joint is 13’ from the front door rather that 10’. 11. There was no dispute that no corrective work was performed. 12. The Respondent declined to perform the corrective work on the basis that (1) the workmanship standards utilized by the Inspector did not properly apply to the Respondent’s specialty concrete work and (2) the Respondent had entered into a Settlement Agreement with the Complainant wherein the Complainant had already received $1,200.00 for any claimed deficits in the Respondent’s workmanship. 13. Credible testimony and evidence, presented at hearing, establish the workmanship standards applied by the Agency Inspector are fully applicable to the Respondent’s workmanship and that compound cracks by the front door and the 13’ expansion joint are unacceptable according to the applicable workmanship standards. 14. Credible testimony and evidence, presented at hearing, established the Complainant knowingly and voluntary entered into a Settlement Agreement with the Respondent prior to the scheduled onsite inspection wherein the Complainant received a benefit of $1,200.00. There was no credible evidence or any type of duress presented at the hearing and the parties are found to be bound by the terms and conditions of their Settlement Agreement.

CONCLUSIONS OF LAW 1. A general policy of law favors the settlement of disputes and adverse parties are be free to adjust their differences by entry into agreements and stipulations of settlement which should be recognized and given effect by the tribunal having jurisdiction over the issues and statutory enforcement authority. 2. Dismissal of the instant Complaint is mandated by the parties having entered a completed Settlement Agreement. 3. DURESS, A. Unlawful constraint exercised upon a man whereby he is forced to do some act that he otherwise would not have done. It may be either “duress by imprisonment,” where the person is deprived of his liberty in order to force him to compliance, or by violence, beating, or other actual injury, or duress per minas, consisting of threats of imprisonment or great physical injury or death.” (BLACK’S LAW DICTIONARY, 4th Edition, page 594.)

RECOMMENDed order In view of the foregoing, it is recommended this matter be dismissed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification. Done this day, February 21, 2008.

______________________________________ M. Douglas Administrative Law Judge

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

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________ -----------------------

Office of Administrative Hearings 100 North Stone Avenue, Suite 704 Tucson, Arizona 85701 (520) 628-5488