Vacate: Settlement Recommendation

08F-L0419-ROC · Registrar of Contractors · 2009-05-28

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 19, 2009 APPEARANCES: Complainant: Linda McSweeney, corporate officer, appeared, pro per. Respondent: Christopher John Fee, owner and qualifying party, appeared, pro per. Registrar of Contractors: Inspector Cliff Corlett 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 via videoconference at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated March 16, 2009. 2. Prior to the presentation of any testimony or evidence, a discussion ensued off the record by and between the parties and Registrar of Contractors Inspector Cliff Corlett 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. On or before June 30, 2009, Respondent will perform and/or cause to be performed by a duly licensed contractor, as necessary, corrective work on a residence owned by Diane Wildfang/Withfang, Inc. (“Homeowner”) located at 1706 Sailing Hawks Drive, Lake Havasu City, Arizona (“premises/project”) as set forth in a June 11, 2008 Corrective Work Order issued by the Registrar of Contractors to Complainant herein, as the general contractor and Respondent in Case No. L08-0342. Said Corrective Work Order was referred to and adopted by the Registrar of Contractors in its June 26, 2008 Corrective Work Order issued in the instant matter and provides in pertinent part: i. Item 5 (“Exterior stucco paint sub-standard no clean break lines. Overspray, Etc. [sic] ROC****Some break lines need correction/straightening. Overspray is unacceptable.”); and, ii. Item 9(b) (“Door slats are warping”). With respect to this item, the parties agree that Respondent is responsible only for painting the subject doors including, without limitation, the slats contained therein as well as performing all necessary caulking and other prep work attendant thereto. Complainant agrees that it will assume sole responsibility for addressing the doors’ warping issue with the Homeowner due to the Homeowner’s having issued a cease and desist order to Complainant, as the general contractor, and applicable to all of its subcontractors regarding further work on the premises. 4. 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. 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. 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. This includes, but is not limited to, taking whatever action is necessary to gain access to the premises in light of the aforementioned cease and desist order. Toward this end, Respondent advised that he, heretofore, had been able to gain access to the premises to perform corrective work with little, if any, difficulty. 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 Respondent satisfactorily completes and/or causes to be completed its obligations as set forth in paragraph 3 hereof within the stated period, Complainant shall be deemed to have withdrawn its 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. 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 is filed, the sole issue 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 record with the Registrar of Contractors will reflect the instant matter as a closed complaint 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 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.[1] Done this day, May 28, 2009.

_______________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 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