ALJDEC

99F-L989017-BFS · Department of Building and Fire Safety · 1999-10-05

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 5, 1999.

APPEARANCES: The Petitioners appeared through Jessica Hawkins, Violet Baird, Chelle Clipper and Charles Hawkins.

Respondents were represented by their attorney, Kenneth W. Miller, Esq.

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. Immediately prior to 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.

2. Pursuant to the provisions of the parties’ settlement agreement, Respondents expressly agreed to undertake and accomplish certain described management actions, to furnish specified equipment, features or personnel and to issue appropriate monetary credits or payments, all as set forth in ten enumerated categories of concern communicated by individual tenants and by the residents’ committee. In several instances, a stated deadline date was made applicable, and where none was set forth, it was mutually agreed that a reasonable time standard would be applied. By entering into the aforesaid settlement agreement, Petitioners were effectively agreeing to withdraw its filed complaint and to consent to the entry of an Order of Closing, which closing would be without prejudice to the filing of a timely petition for rehearing or of a future new complaint in the event of any breach by Respondents of the terms of the parties’ agreement.

3. 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 Director of the Arizona Department of Building and Fire Safety for approval and adoption. Consequently, Respondents must be and hereby are advised that any future breach of the terms of the settlement agreement will not only constitute grounds for the filing of a timely petition for rehearing or of a new complaint but also shall warrant treatment as a circumstance in aggravation.

4. 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 shall be whether Respondents have performed their obligations under the terms of the aforesaid settlement agreement.

5. It was mutually understood that the entry by the respective parties into the settlement agreement was without any admission of fault, liability or obligation on the part of Respondents, and correspondingly, without any admission by Petitioners that they were not entitled to greater benefits.

6. 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 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 all charges contained in the Citation and Complaint.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Director of the Department approve and adopt the settlement of the parties as concluded and confirmed at the administrative hearing of this matter.

It is further recommended, in accordance with the express terms of the parties’ settlement agreement, that the entire Citation and Complaint entered against and served on Respondent in Case Number LTA 98-9/017 be closed.

Dated: October 8, 1999. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert. I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

N. Eric Borg, Director Department of Building and Fire Safety E. Virginia (Suite 100) Phoenix, AZ 85004

ATTN: Michelle M. Castaneda -----------------------

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