ALJDEC

99F-2426-ROC · Registrar of Contractors · 1999-10-04

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 4, 1999.

APPEARANCES: Complainant was represented by her attorney, James V. McMahon, Esq.

Respondent, House of 21 Repairs, Inc. and the potential interests of Tom Hale were represented by attorney, Thomas A. McCarthy, Jr., Esq.

The potential interest of Respondent’s former qualifying party, Iain Findlay, was represented by attorney, John D. Herbert, Esq.

ADMINISTRATIVE LAW JUDGE: Robert. I. Worth _____________________________________________________________________

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

FINDINGS OF FACT

1. Following an extended recess taken shortly after the formal opening of the scheduled rehearing, and after prolonged discussions between all interested parties,

with the Administrative Law Judge remaining present for most of the discussions, the parties confirmed that they had concluded a settlement agreement, the essential terms of which were read onto the record.

2. Pursuant to the provisions of the parties’ settlement agreement, Respondent agreed to properly accomplish or to cause the accomplishment of all described remedial work set forth in the sixteen-item written directive issued by the Registrar’s assigned Inspector no later than a stated deadline date, one such item being partially modified by confining the work to only a portion of the specified construction feature and another item being wholly eliminated in return for Respondent’s agreement not to pursue any potential claims for extra work performed but not previously paid for by Complainant. One further roofing repair item, not in the Inspector’s directive, was also encompassed within the overall agreed work by Respondent under the parties’ settlement. Respondent additionally agreed to pay or tender, and Complainant agreed to accept, a specified total monetary amount by way of satisfying the balance of the administrative complaint presently pending before the Registrar of Contractors.

3. Conditioned upon the full appropriate and timely performance of the agreed items of work as well as the timely transmittal of the agreed payment by Respondent, Complainant agreed to withdraw her complaint and to consent to the entry of an Order closing the within Citation. Complainant also agreed to provide reasonable and timely access to the premises so as to enable Respondent to perform all of the contemplated work under the settlement.

4. Respondent further agreed, for the purposes of proper disposition of this proceeding, to the entry of a finding of a violation by Respondent of at least one of the code sections charged in the within Citation, and to the entry of a provisional Order revoking its Class B license number 138975, with the express understanding that no

license revocation would be imposed if the terms of the settlement agreement were properly and timely complied with by or on behalf of Respondent. Instead, upon the filing with the Registrar of proof that Respondent has complied with its obligations under the parties’ settlement, the entire Citation and Complaint in this action would be closed and the Respondent’s now canceled Class B license against which the instant complaint had been filed would be deemed to have terminated in good standing.

4. All rights and defenses of the respective parties are deemed to have been merged into the settlement agreement, and if any new complaint is filed in the future, the sole issue for determination shall be whether Respondent has performed its obligations under the terms of the aforesaid settlement agreement

5. 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 agreements or stipulations which should be recognized and given effect by all tribunals.

2. The entire record in this matter, including the contents of the settlement agreement, supports a determination that Respondent has violated the workmanship provision of A.R.S. §32-1154(A)(3); namely, Rule R4-9-108, as charged herein.

RECOMMENDED ORDER ON REHEARING

In view of the foregoing, it is recommended on Rehearing that Respondent’s Class B license number 138975 be revoked on the effective date of the Registrar’s Order (thirty-five [35] days after the date of mailing by the Registrar).

It is further recommended that if Respondent accomplishes all identified corrective work and makes the agreed payment to Complainant, as envisioned by the settlement agreement, on or before the effective date of the Registrar’s Order, then no license revocation shall take place and the entire Citation and Complaint in Case Number 99-2426 shall be closed, thereby enabling Respondent’s license to have terminated in good standing.

This Order on Rehearing, if and when approved and adopted by the Registrar of Contractors, constitutes a final administrative decision, reviewable pursuant to the provisions of A.R.S. §12-901.

Dated: October 12, 1999.

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: Joyce Armijo -----------------------

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