Vacate: Settlement Recommendation

06F-2089-ROC · Registrar of Contractors · 2007-03-13

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 13, 2007 APPEARANCES: Complainant: Krystyne Szmit appeared, pro per. Respondent: Costel Scherban, corporate officer and qualifying party, appeared, pro per. Registrar of Contractors: Inspector Scott Deering appeared on behalf of the Registrar of Contractors. ADMINISTRATIVE LAW JUDGE: Brian E. Smith ________________________________________________________________ Having read and considered the entire record, the following Findings of Fact are made, Conclusions of Law entered and Order issued:

FINDINGS OF FACT 1. The hearing convened at the time, date and place set forth in this tribunal’s Order Granting Continuance dated December 26, 2006. 2. Prior to the presentation of any testimony or evidence, a discussion ensued off the record by and between the parties and Registrar of Contractors’ Inspector Scott Deering under the direction of the Administrative Law Judge. As a result of this discussion, the parties concluded and stipulated to a settlement agreement the essential terms of which were then read into the record. For purposes of determining this matter, the obligations of the parties under the settlement agreement set forth below, if accepted by the Director of the Arizona Registrar of Contractors, are binding on one another. 3. The terms of the parties’ settlement agreement are as follows: a. The parties stipulate and agree that, as of the date of hearing, the total sum of Six Thousand Dollars ($6,000.00) remains due and owing Respondent from Complainant under the parties’ contracts dated November 1, 2005 and December 5, 2005 for materials and/or services provided and/or to be provided Complainant by Respondent on Complainant’s residence. b. Respondent shall forgive the above-referenced $6,000.00 owed it by Complainant under the parties’ contracts c. In addition to the above-referenced forgiveness, Respondent shall remit to Complainant the sum of Three Thousand Five Hundred Dollars ($3,500.00) on or before Tuesday, March 27, 2007 at 5:00 p.m. Payment shall be made in the form of cashiers’ check or other certified funds and hand-delivered by Respondent and/or its duly authorized representative to the office of Complainant’s real estate agent, MJ Jones, located at 8510 E. Shea Blvd., Suite 100, Scottsdale, Arizona. d. Costel Scherban (“Scherban”), corporate officer and qualifying party, represented and avowed on behalf of Respondent that all of Respondent’s subcontractors, suppliers and/or materialmen have been paid for all work performed and/or supplies and/or materials provided to Complainant’s project and that no liens have been filed and remain in effect against Complainant’s subject premises. Scherban further represented and avowed that, in the event any lien remains in effect against Complainant’s property, Respondent will take all steps necessary to satisfy any outstanding amounts due said subcontractors, suppliers and/or materialmen and cause to be released any attendant liens and provide Complainant with copies of such lien releases. e. The parties further agreed that the forgiveness and payment above- referenced in subparagraphs (b) and (c), respectively, are made in full settlement of and in exchange for the release of any and all actual and/or potential claims or causes of action the parties have and/or may have against each other arising out of contracts for work done or to be done by Respondent on Complainant’s residence including, without limitation, any obligation of Respondent to perform warranty work on the project, and including matters before the Registrar of Contractors, in civil court and/or any other court or forum. 4. The parties shall give each other at least forty-eight (48) hours notice of any problems regarding compliance with their respective obligations under this settlement agreement. 5. All communications between the parties regarding performance of the terms and conditions of the settlement agreement shall be memorialized in writing by facsimile and/or email. 6. Based upon Respondent’s satisfactory completion of its obligations under this settlement agreement as set forth in Paragraph 3 hereof, Complainant shall be deemed to have withdrawn her underlying disciplinary complaint and, together with Respondent, consented to the entry of an Order by the Registrar of Contractors closing the issued Citation as resolved/settled/withdrawn. 7. The parties agree to act in good faith toward the accomplishment of each of their respective obligations under the terms of the settlement agreement. 8. Both parties acknowledge that they are authorized to act on behalf of themselves and/or their company and enter into the settlement agreement and do so knowingly, voluntarily and on a presumption of good faith. 9. The parties agree that all rights and defenses were to be merged into the settlement agreement and if any petition for rehearing of this matter was filed and granted, or if any new complaint was filed, the sole issue for determination shall be whether the parties have performed their respective obligations under the terms of the aforesaid settlement agreement. 10. The parties were advised of the Registrar of Contractors’ license record keeping policies and procedures and agree that, as a result of the settlement, Respondent’s official record with the Registrar of Contractors will reflect the instant matter as a closed complaint under the category of settled/withdrawn/resolved. 11. The Administrative Law Judge determined that the terms of the settlement agreement were reasonable under the circumstances and were the product of a knowing and voluntary action on the part of each party. 12. Based on the settlement agreement, the hearing was vacated.

CONCLUSIONS OF LAW 1. The law favors the settlement of disputes and adverse parties should be free to adjust their differences by entry into agreements and stipulations of settlement that should be recognized and given effect by the tribunal with jurisdiction over the issues and that possesses statutory enforcement authority. 2. The settlement reached and submitted during the hearing of this matter, having been found to reasonable and voluntarily made, warrants the termination of this matter.

ORDER In view of the foregoing, IT IS ORDERED vacating the hearing from the docket of the Office of Administrative Hearings. IT IS FURTHER ORDERED remanding the matter to the Registrar of Contractors for further appropriate action.[1] Done this day, March 13, 2007.

________________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By _________________________ ----------------------- [1] In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forth (40) days from the date of that certification.

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