Vacate: Settlement Recommendation

08F-F0120-ROC · Registrar of Contractors · 2008-12-17

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 1, 2008 APPEARANCES: Complainant: Lawrence C. Reid, managing member, appeared, pro per. Respondent: Ron Boyer, corporate officer and qualifying party, appeared and was represented by counsel, R. Gehl Tucker. Registrar of Contractors: Inspector Mark Schweiger 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. These consolidated matters convened for hearing via videoconference at the time, date and place set forth in this tribunal’s September 17, 2008 Order Granting Motion to Consolidate Hearings/Order Setting Hearing Date. 2. Prior to the presentation of any testimony or evidence, a discussion ensued by and between the parties, Respondent counsel and Registrar of Contractors Inspector Mark Schweiger under the direction of the Administrative Law Judge. Thereafter, further discussion took place between the parties, counsel and Inspector Schweiger outside the presence of the undersigned. As a result of these discussions, 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. PREAMBLE: The parties agree that the matters at issue in this hearing are not substantial and, therefore, in all parties’ best interest they have agreed to compromise rather than seek a final determination of the issues at this hearing. Further, there is no admission by either party of any fault regarding the matters at issue at this hearing. b. Respondent will perform and/or cause to be performed by a duly licensed contractor, as necessary, all required corrective work on the following items except as otherwise indicated: i. August 10, 2007 Corrective Work Order: item 1. No action is required on items 2, 3, and 4. ii. October 24, 2007 Corrective Work Order (aka “attachments”): item 1. No action is required on items 1 and 3. With regard to item: 4(A) - Complainant will provide calculations underlying engineer’s opinion to Respondent on or before December 8, 2008. Complainant shall ensure that said calculations contain the engineer’s stamp; 4(B) - Respondent may elect any alternative proposed or acceptable to the engineer of record as to corrective action; 4(C) - Respondent shall have the opportunity to inspect, or have Respondent’s agent inspect, the areas of the premises at issue, i.e., the joist and beams, prior to January 15, 2009; and, 4(D) Respondent shall correct as set forth in subparagraph (B) hereof on or before January 15, 2009 or within thirty (30) working days after Respondent has had the opportunity to inspect as set forth in subparagraph (C) hereof, whichever is later. iii. February 8, 2008 Corrective Work Order: items 1, 3 and 4. No action is required on item 2. c. If Complainant and Respondent are not allowed reasonable access to effectuate corrective actions by the homeowner and/or homeowner’s designee, the parties herein shall not have further responsibility or liability under or arising from the above-entitled actions. d. Respondent shall complete all of the above-corrective actions as set forth above on or before January 15, 2009 subject to the foregoing. 4. The parties shall give each other at least forty-eight (48) hours notice of the scheduling of any inspections, corrective work and/or any problems regarding compliance with their respective obligations under this settlement agreement. 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 with copies provided Respondent counsel. 6. The parties agree to act in good faith toward the accomplishment of each of their respective obligations under the terms of this settlement agreement. 7. 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. 8. 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. 9. In the event the parties satisfactorily complete and/or cause to be completed their respective obligations as set forth in paragraph 3 hereof within the stated periods, Complainant will be deemed to have withdrawn its complaints and consented to the entry of an Order by the Registrar of Contractors closing the issued citations with prejudice as resolved/settled/withdrawn. 10. 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 issued for determination shall be whether the parties have performed their respective obligations under the terms of the aforesaid settlement agreement. 11. 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 matters as closed complaints under the category of resolved/settled/withdrawn. 12. 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. 13. 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 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 these matters to the Registrar of Contractors for appropriate further action.[1] Done this day, December 17, 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] 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