ALJDEC

97F-2462-ROC · Registrar of Contractors · 1997-10-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 9, 1997.

APPEARANCES: Complainants, Daniel and Sandra Waldor, were represented by their attorney, Philip R. Rupprecht

Respondent, J. K. Home Builders, was represented by its attorney, Jeremy Toles

ADMINISTRATIVE LAW JUDGE: Robert. I. Worth _____________________________________________________________________

Based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. Following a prolonged recess taken shortly after the formal opening of the scheduled hearing, the parties confirmed to the Administrative Law Judge that they had concluded a settlement agreement, the essential terms of which were read onto the record. With respect to one final, but highly important item in issue, the record was held open until October 14, 1997 to enable the parties to obtain certain necessary information and to enable counsel for both parties to supplement the settlement agreement by way of a conference telephone call between both counsel and the Administrative Law Judge.

2. The contemplated conference telephone call between the Administrative Law Judge and both counsel did not materialize due to the illness of one counsel, and the record was thereupon held open for one additional week, until October 21, 1997. However, such telephone call was not timely initiated by either party, and no documents were filed with this tribunal other than a belated request to continue or reschedule the telephonic conclusion of the hearing. Having held this matter open for more than a reasonable duration following the adjournment of the hearing, it appeared fully appropriate for this case to be terminated without fully incorporating into the parties' settlement agreement the last item in issue which may become the subject of a future complaint if both parties are unable to resolve same.

3. Pursuant to the provisions of the parties’ settlement agreement, as read onto the record, Respondent agreed to properly accomplish specified work on designated items of complaint on or before stated deadline dates after obtaining additional test results, engineering reports and recommended remedial actions, if any. Complainants agreed to grant reasonable and timely access to the premises, to withdraw their pending administrative complaint and to consent to the entry of an Order closing the within Citation without prejudice to the timely filing of a petition for rehearing or of a new complaint in the event of any breach by Respondent of the terms of the parties' settlement and without prejudice to the pursuit of potential rights or defenses in other forums. Finally, the entry into the settlement agreement was expressly without any admission of fault or responsibility on the part of Respondent and without any admission of less than greater entitlements by Complainants.

4. Since some of the agreed items of remedial work may be dependent, at least in part, on the results of professional testing of the underlying soils, the parties' apparent inability to more promptly agree on the extent of the testing procedures to be utilized or the cost sharing arrangements for more elaborate testing methods, if desired, effectively leaves these decisions to Respondent who is the party ultimately responsible for adequately preparing the ground so as to properly support the residential structure. Consequently, Respondent may, in its discretion, select and compensate those professionals who shall perform appropriate testing and submit recommendations.

5. The administrative disciplinary proceedings hereunder are effectively cut short by the entry into the above-described settlement agreement which is to be presented to the Registrar of Contractors for approval and adoption. Consequently, Respondent must be and hereby is advised that any future breach of the terms of the settlement agreement will not only constitute grounds for the filing of a new complaint but also shall warrant treatment as a circumstance in aggravation.

6. All rights and defenses of the respective parties are deemed to have been merged into the settlement agreement, and if any timely petition for rehearing of this matter is to be filed and granted, or if any new complaint is filed in the future, the sole issues for determination, except for the unresolved item in issue between the parties, shall be whether Respondent has performed its obligations under the terms of the aforesaid settlement agreement

7. The terms of the foregoing settlement agreement appeared to be fair and reasonable under all the circumstances, and the agreement was determined to be the product of knowing and voluntary action on the part of each party.

CONCLUSIONS OF LAW

1. The policy of the law favors settlements of disputes, and adverse parties should be free to adjust their differences by entry into agreement or stipulations which should be recognized and given effect by all tribunals.

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 the instant hearing and the closing of the charges contained in the Citation and Complaint.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the entire Citation and Complaint in Case No. 97-2462 be closed.

Dated: October 27, 1997. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ ROBERT I. WORTH Administrative Law Judge

Original transmitted on ____________________

by: ____________________________ , To:

Mr. Michael P. Goldwater, Director Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007

ATTN: Jennifer Varela -----------------------

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826