Vacate: Settlement Recommendation

08F-M0921-ROC · Registrar of Contractors · 2008-12-31

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 16, 2008 APPEARANCES: Complainant: Karen S. Kramer appeared, pro per. Respondent: Brian Ray Bailey, owner and qualifying party, appeared, pro per. Registrar of Contractors: Inspector Jack Clark 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 November 10, 2008. 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 Jack Clark 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 January 15, 2009, Respondent will perform and/or cause to be performed by a duly licensed subcontractor, as necessary, corrective work on the following items delineated in the Registrar of Contractors’ December 27, 2007 Corrective Work Order: (1) Shower walls uneven: Respondent shall install trim down the shower walls from the top of the tile to the floor on the east and west sides of the shower. (2) Shower threshold uneven and leaking: Respondent shall address two tiles on the west end of the curb in the shower. b. At the time of completion of the above-referenced corrective work, Respondent will remit to Complainant by cashier’s check or other certified funds the sum of Two Hundred Dollars ($200.00) payable to Complainant which will serve as restitution for the work performed by third party contractors in the shower area attendant to Corrective Work Order Item (2). Complainant shall provide Respondent with a receipt acknowledging such payment. 4. Respondent and/or its subcontractor, as applicable, shall complete any required corrective work provided for hereunder in accordance with Registrar of Contractors minimum workmanship standards. 5. The parties shall give each other at least forty-eight (48) hours notice of the scheduling of any meeting, work to be performed and/or any problems and/or issues regarding compliance with their respective obligations under this settlement agreement. 6. All communications between the parties regarding performance of the terms and conditions of the settlement agreement shall be memorialized in writing via facsimile and/or email. 7. Complainant shall provide Respondent and/or its subcontractor, as applicable, with reasonable access to the property in order to perform all required corrective work. 8. The parties agree to act in good faith toward the accomplishment of each of their respective obligations under the terms of the settlement agreement. 9. With the express exception of the remedial work to be performed pursuant to paragraph 3 (a) hereof, the parties agree that their entering into this settlement agreement constitutes a full settlement, release and waiver of any and all actual and/or potential claims or causes of action each party has and/or may have against the other party arising out of the subject matter of the instant complaint including, without limitation, those before the Registrar of Contractors, in civil court and/or any other court, forum and/or tribunal. 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 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, the Respondent’s official record with the Registrar of Contractors will reflect the instant matter as a closed complaint under the category of settled/withdrawn/resolved. 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 action on the part of each of 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 the matter to the Registrar of Contractors for further appropriate action.[1] Done this day, December 31, 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