Vacate: Settlement Recommendation

09F-2095-ROC · Registrar of Contractors · 2009-09-09

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 21, 2009 APPEARANCES: Complainant: Curtis Wall, homeowner association president, appeared, pro per. Respondent: Lawrence Paul Hutcheson, corporate officer and qualifying party, appeared, pro per. Registrar of Contractors: Inspector Randy Cason appeared on behalf of the Registrar of Contractors. ADMINISTRATIVE LAW JUDGE: Brian E. Smith ________________________________________________________________ Having considered the entire record, the following Findings of Fact, Conclusions of Law and Order are issued:

FINDINGS OF FACT 1. The matter convened for hearing at the time, date and place set forth in the Registrar of Contractor’s Notice of Hearing dated July 13, 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 Randy Cason 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 onto 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 September 30, 2009, the parties will contact and schedule American Leak Detection company (“ALD”) to perform a test to determine if there is a leak in the subject homeowners association’s pool located at 16400 E. Arrow Drive, Fountain Hills, Arizona (“premises/project”); b. If no leak in the pool is determined to exist, Respondent shall bear the cost of the leak testing and will proceed to perform, within thirty (30) days of the date of the ALD report, the appropriate repairs by minimum workmanship standards pursuant to the Corrective Work Order issued by the Registrar of Contractors on December 16, 2008, and amended February 26, 2009; c. If a leak in the pool is determined to exist, Complainant shall bear the cost of the leak testing and cause the leak to be remedied by a duly licensed contractor at its cost within thirty (30) days of the ALD report. Upon completion of such remedial work by said third party contractor, Complainant shall notify Respondent of same and Respondent shall thereafter have three (3) weeks to complete all corrective work pertaining to the staining in the pool as set forth in the above-referenced corrective work orders as well as any plaster repair caused by the third party contractor engaged by Complainant to repair the pool leak provided such area does not exceed twenty-four square inches (24”) in size based on Respondent’s standard fees for patching. 4. The parties shall give each other at least forty-eight (48) hours notice of the scheduling of corrective work to be performed and/or any problems regarding compliance with their respective obligations under the settlement agreement. 5. All communications between the parties and/or their representatives regarding performance of the terms and conditions of the settlement agreement shall be memorialized in writing by facsimile and/or email. 6. Complainant shall provide Respondent and/or its subcontractor(s), as necessary, with reasonable access to the property in order to perform all required corrective work hereunder, if any. 7. Respondent and/or its subcontractor(s), as applicable, shall complete all required corrective work hereunder in accordance with Registrar of Contractors minimum workmanship standards. 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. 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. 10. By entering into this settlement agreement, 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. 11. The parties further agree that all rights and defenses were to be merged into the settlement agreement and if any petition for rehearing of this matter is 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. 12. 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 matter as a closed complaint under the category of resolved/settled/withdrawn. 13. 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. 14. 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 hearing.[1] Done this day, September 9, 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