ALJDEC

98F-1955-ROC · Registrar of Contractors · 1998-12-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 28 and December 1, 1998 APPEARANCES: COMPLAINANTS: by their attorney, Michael Gertell RESPONDENT: by its attorney, William Gates ADMINISTRATIVE LAW JUDGE: Anthony Halas _____________________________________________________________________

This matter proceeded to hearing for the purpose of determining whether Respondent violated state law as alleged by Complainants and as cited by the Registrar of Contractors. However, at the time the continued hearing was convened on December 1, 1998, but prior to the presentation of evidence or any further action by the undersigned, the parties mutually agreed to the terms of a settlement. Based on review of the record and consideration of the terms of that settlement agreement, this Administrative Law Judge now makes the following Findings of Fact, Conclusions of Law, and Recommended Decision: FINDINGS OF FACT

1. This matter came to hearing after Respondent timely answered CITATION AND COMPLAINT No. 98-1955, issued by the Registrar of Contractors on July 15, 1998, which in turn arose from the Complaint filed by Complainants with the Registrar on or about February 11, 1998, regarding defects in their residence, built by Respondent’s predecessor in interest. 2. Prior to the presentation of evidence or formal completion of these proceedings, the parties reached a good faith settlement of those issues raised in the Complaint, the terms of which settlement were read into the record by counsel, and confirmed by Steve

and Rhonda Ross, individually, as Complainants, and Nick Dodson, as Qualifying Party for Respondent. 3. The essential terms of the settlement agreement are as follows: A. The two test holes dug within the residence will be immediately plugged and sealed, in accord with appropriate workmanship and termite control standards;

B. Prior to close of business on Monday, January 4, 1999, Respondent will take all appropriate measures to determine the cause of the moisture leakage/expansive soil condition resulting in foundation heaving and settling, and associated structural and other related problems;

C. Then, prior to close of business on Thursday, February 4, 1999, Respondent will take all appropriate measures, within applicable standards of workmanship, to correct the moisture leakage/expansive soil condition and the damage to the residential property resulting from that condition;

D. Upon reasonable notice, Complainants will provide Respondent reasonable access to the residential property for conducting and performing testing and corrective actions. Such notice by Respondent shall specifically be of at least 24 hours for any access necessary to the back yard, in order that Complainants have sufficient time to move their dogs elsewhere;

E. Respondent will provide Complainants reasonable accommodations elsewhere during the course of the corrective work if such accommodations are reasonably necessary, based on the good faith determination of the parties;

F. Complainants agree the Registrar of Contractors shall close the subject Complaint and charges alleged in the CITATION AND COMPLAINT; and,

G. Either party shall retain the right to report the other party’s noncompliance with any of the foregoing terms to the appropriate authority.

4. The parties were advised by the undersigned that, by virtue of the settlement agreement, all rights and defenses of each party would be merged therein, and if any petition for further hearing or rehearing was to be granted, or if any new complaint was filed, the sole issues for determination shall be whether the parties have performed their respective obligations under the terms of the settlement agreement. 5. The agreement appears to the undersigned to be fair and reasonable under all the circumstances and upon review of the entire record, and is found to have been the product of knowing and voluntary action on the part of each party.

CONCLUSIONS OF LAW

1. The law favors settlements of disputes. The parties to a proceeding such as this should be free to resolve their differences by entering into settlement agreements or stipulations, and such agreements should be recognized and given effect by all tribunals. 2. The settlement terms as read into the record, and as set forth, in essence, above, having been found reasonable and voluntarily made, and reached in good faith and without coercion, now warrant termination of the hearing in this matter, and closing of the Complaint and charges made in CITATION AND COMPLAINT No. 98-1955.

RECOMMENDED DECISION

In view of the foregoing, IT IS RECOMMENDED that the settlement agreement be adopted by the Registrar of Contractors, and that CITATION AND COMPLAINT No. 98-1955, together with the Complaint upon which it is based, be closed. Done this day, December 1, 1998.

_________________________________ Anthony Halas Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, to:

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

ATTN: Joyce Armijo

By _______________________________

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