ALJDEC

99F-M1203-ROC · Registrar of Contractors · 2000-02-08

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

The above-entitled matter came on for hearing on February 8, 2000. The Complainant was represented by its attorney, John Randall Jefferies, Esq., and the Respondent appeared through its President and authorized employee, Donald Duane Brown.

FINDINGS OF FACT

1. Shortly after the formal opening of the scheduled hearing, and following a recess during which the parties conferred, it was confirmed to the Administrative Law Judge that the parties had concluded a settlement agreement, the essential terms of which were read onto the record.

2. Notice had been taken of the Registrar’s license records which revealed that Respondent’s Class L-08 license has been suspended since April 3, 1999 for lack of a qualifying party and since October 31, 1999 for non-renewal. Such suspensions do not

preclude the conducting of these administrative disciplinary proceedings against the licensed entity. Moreover, the present suspended status of such license, as well as the admission by Respondent at the hearing that the corporate entity has permanently ceased all construction-related activities, served as legitimate factors for consideration by the parties in formulating the contents of their settlement agreement.

3. Pursuant to the provisions of the parties’ settlement agreement, Respondent agreed to cause the appropriate performance of certain specified remedial work in an identified location on the jobsite through another properly and currently licensed specialty contractor, also agreeing to assure that any and all individuals or entities furnishing labor or materials would be paid so as to keep this work free of any liens. Respondent further agreed to commence and to complete the contemplated tile removal, leveling and replacement corrective work no later than stated deadline dates and to take adequate steps to reasonably protect the premises and its occupants from excessive exposure to construction dust and debris. Complainant agreed to pay or tender to Respondent a specified monetary amount promptly after the completion and inspection of all agreed work on the jobsite, such amount representing full payment of all subcontract balances under the parties’ original agreement. As part of the concluded settlement, Complainant also agreed to withdraw its pending complaint without prejudice to the timely filing of a petition for rehearing or to the filing of a new complaint in the event of any future alleged breach by Respondent of the work performance terms of the agreement.

4. Respondent additionally agreed, solely for the purposes of the proper disposition of this proceeding and for effectuating the parties’ above-described settlement agreement, to the entry of a finding of a violation of at least one of the code provisions charged in the within Citation so as to enable the entry of an Order by the

Registrar of Contractors imposing a provisional revocation of its contracting license, specifically conditioned upon the proper performance by Respondent of the contemplated removal, leveling and replacement work. In the event Respondent fails to comply with its obligations under the terms of the settlement by the mutually agreed extended deadline date (which was understood to be after the anticipated effective date of the Registrar’s Order for appeal purposes), then its license would be revoked and any other licenses on which the same individuals appear as principals would be subject to appropriate future administrative actions. If, however, Respondent properly complies with its obligations under the settlement no later than the extended deadline date, then no license revocation would be imposed and this case would be closed.

5. 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 the parties have performed their respective obligations under the terms of the aforesaid settlement agreement

6. It was mutually understood that the entry by the respective parties into the settlement agreement was without any specific admission of fault, liability or obligation on the part of Respondent, and correspondingly without any admission by Complainant that it was not entitled to greater benefits.

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 entire record in this matter, including the contents of the parties’ settlement agreement, supports a determination that Respondent has violated the workmanship provisions contained in A.R.S. §32-1154A(3), specifically Rule R4-9-108, as charged hereunder.

2. 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.

3. 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 entry by the Registrar of Contractors of an Order provisionally revoking Respondent’s contracting license on a stated future date unless, on or before such date, Respondent has filed proof with the Registrar that it has fully and properly complied with its corrective work obligations under the parties’ settlement agreement, in which event all charges contained in the Citation and Complaint shall be closed.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class B license shall be revoked on April 15, 2000, which is shortly after the deadline date for performance by Respondent of all contemplated work under the parties’ settlement agreement.

It is further recommended that if Respondent has timely and properly accomplished the agreed remedial work, as envisioned by the aforementioned settlement agreement, then no license revocation shall take place, but instead, the entire Citation and Complaint in Case Number M99-1203 shall be closed.

For the purposes of further administrative or judicial review, the Registrar’s Order becomes effective thirty-five days after the date of entry by the Registrar.

Dated: February 10, 2000. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

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

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

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