ALJDEC

99F-2272-ROC-rhg · Registrar of Contractors · 2000-06-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 26, 2000 APPEARANCES: Jack Klausner, Esq. for Complainants; Eric Mark, Esq. for Respondent ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________

FINDINGS OF FACT 1. A Notice of Rehearing was issued by the Registrar of Contractors on April 14, 2000, setting this matter for a rehearing on June 26, 2000, under the same docket number as the original matter, Docket Number 00F-2272- ROC. 2. At the commencement of the hearing, the Administrative Law Judge informed the parties that the Office of Administrative Hearings docket number of this matter is 99F-2272-ROC-RHG and that this matter is a rehearing. Consequently, the Notice of Hearing is amended to reflect the docket number of this matter as being 99F-2272-ROC-RHG. 3. Prior to the commencement of the rehearing, the parties entered into a settlement outside of the Administrative Law Judge’s presence. When the rehearing convened, the parties presented to this tribunal a settlement agreement between the parties regarding the issues contained in the filed complaint. 4. The terms of the settlement agreement are as follows: e) Exhibit 1, attached hereto is incorporated by this reference, depicts the work to be completed by Respondent on Complainants’ driveway approach; f) the agreed upon work will result in having the average slope angle of Complainants’ reconfigured driveway approach to be no greater than that of Lot 36 as depicted in Exhibit 1; g) the first front ten feet of the existing driveway crossing will be tipped a minimum of six inches. However, when in the field, that portion of the driveway crossing can be tipped more or, if the Complainants decide it should be tipped less, such changes shall occur upon Complainants’ written approval; h) Respondent will concrete the driveway approach twelve feet wide from the asphalt of pavement to the center of the joint of the bridge (from the street to the driveway crossing); i) before the above -mentioned concrete pour, Respondent will grade the existing dirt on the driveway approach as a straight grade. Complainants will then have the option of modifying that grade to their liking by being given three attempts- that is, Respondent will re-grade the approach up to three times so that Complainants may determine which grade can accommodate their vehicles; j) the above-mentioned re-grading shall occur within the parameters set forth in Exhibit 1 with each re-grade having no greater a variance of six inches at any point of the existing approach; k) Prior to the concrete pour, if Complainants have not designated the grade of the approach, Respondent shall provide seven days notice to Complainants after the third re-grade attempt and request that Complainants designate the grade. If no such designation is made by Complainants within those seven days, Respondent is to designate the grade of the approach; l) the above-mentioned work is to be accomplished by no later than August 31, 2000, weather permitting and subject to Complainants’ availability to meet with Respondent in the field; m) Respondent is to make a $3,000.00 payment to Complainants that is to be accomplished by tendering $3,000.00 to the law firm of LLP (“Bryan Cave”) Bryan Cave upon issuance of an order from the Director of the Registrar of Contractors adopting this settlement agreement ,with such money to be held in Bryan Cave’s trust account; n) within five days from completion of the above-mentioned work, Complainants will execute a release with respect to the driveway or execute a document representing that the above-mentioned work has been accomplished and Respondent’s counsel shall release the to Complainants the $3,000.000 held in Bryan Cave’s trust account; o) within two weeks of completion of the straight line re-grade, Respondent shall provide Complainants with an as built profile survey of such re-grade; p) within two weeks of completion of the final re-grade, Respondent shall provide Complainants with an as built profile survey of the final re-grade; q) Respondent shall warranty the workmanship of the reconfigured driveway, but expressly disclaims any and all warranties and representations as to which vehicles will or will not make it up the reconfigured driveway; and r) the citation and complaint issued in this matter shall be dismissed. 5. During the hearing, the parties agreed that all rights and defenses were to be merged into the settlement agreement and if any hearing requests relating to this matter are filed and granted, or if any new complaints are filed concerning this matter, the sole issues for determination shall be whether the parties have performed their respective obligations under the terms of the above-mentioned settlement agreement. 6. The terms of the foregoing settlement appeared to be 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 agreements or stipulations of settlement 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 rehearing. RECOMMENDED ORDER In view of the foregoing, it is recommended that the above-mentioned settlement agreement be approved and that the citation issued in this matter, together with the complaint upon which it is based, be dismissed. Done this day, June 29, 2000.

______________________________________ Lewis D. Kowal Administrative Law Judge

Original transmitted by mail this ____ day of June, 2000, to:

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

By _______________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826