Vacate: Settlement Recommendation

06F-2222-ROC · Registrar of Contractors · 2006-11-23

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 9, 2006 APPEARANCES: Complainants: Jeff Balzer appeared on behalf of Lexington Homes, pro per. Respondent: David Aguilar, owner and qualifying party, appeared, pro per. 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 the Registrar of Contractors’ Notice of Hearing dated October 3, 2006. Prior to the presentation of any testimony or evidence, a discussion ensued off the record by and between the parties under the direction of the Administrative Law Judge. Thereafter, the parties were afforded the opportunity to craft a settlement outside the presence of the Administrative Law Judge. During the discussion, the parties concluded 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. 2. The terms of the parties’ settlement agreement are as follows: a. The parties stipulate and agree that as of July 7, 2005, Respondent owed Complainant the sum of Ten Thousand One Hundred Five Dollars ($10,105.00) pursuant to a judgment obtained by Complainant in Scottsdale Justice Court Case No. CV05-1797RA. Said judgment also provides for interest to accrue at ten per cent (10%) per annum until paid. b. The parties further stipulate and agree that Respondent began making payments on the above-referenced judgment on or about April 25, 2006 through a collection agency retained by Complainant. Respondent asserted that his current monthly payment is One Hundred Sixty-Five Dollars ($165.00) and that as of the hearing date he had paid approximately One Thousand One Hundred Thirty-Five Dollars ($1,135.00) toward the outstanding balance although no documentation was presented to verify such payments. The parties further agree to exchange financial documentation via facsimile on or before November 23, 2006 to verify the exact amount owed as of the hearing date taking into consideration accrued interest and any collection agency fees paid. c. The parties further stipulate and agree that once the outstanding balance is ascertained as provided in subparagraph (b) above, Respondent will continue to make minimum monthly payments of One Hundred Sixty-Five Dollars ($165.00) through the aforementioned collection agency and will increase such payments as additional funds become available through the satisfaction of other debts by Respondent. d. The parties further stipulate and agree that, in order to further reduce Respondent’s outstanding debt to Complainant, Complainant will retain the services of Respondent under Complainant’s license to perform construction services for Complainant, most notably as a finish carpenter, on Complainant’s projects. Respondent is to be paid at the going rate per industry standards and/or based on a competitive bid presented to Respondent by Complainant. Once the compensation rate is agreed to by the parties and the work completed by Respondent, Complainant will credit that amount toward the reduction of Respondent’s outstanding debt. e. The parties also stipulate and agree that as of the effective date of the Registrar’s Order issued herein, Respondent’s C-30 License No. 196880 shall be suspended until such time as Respondent’s outstanding debt is satisfied and verified as paid in writing to the Registrar of Contractors by Complainant. 3. 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. 4. In the event Respondent satisfies the outstanding debt set forth in this settlement agreement, Complainant agrees to withdraw its underlying disciplinary complaint and consent to the entry of an Order by the Registrar closing the issued Citation with prejudice as Resolved/Settled/Withdrawn. 5. Both parties acknowledge that they are authorized to enter into the settlement agreement and do so voluntarily and upon a presumption of good faith. 6. The parties agreed that all rights and defenses were to be merged into this settlement agreement and if any petition for rehearing of this matter was to 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. 7. The parties were advised of the Registrar of Contractors’ license record keeping policies and procedures and agreed that, as a result of the settlement and withdrawal of the complaint, Respondent’s official public record with the Registrar of Contractors will reflect the instant matter as a closed complaint under the category settled, withdrawn or resolved. 8. 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 act of the part of each party. 9. 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 be reasonable and voluntarily made, warrants the termination of the instant hearing.

ORDER In view of the foregoing, IT IS ORDERED vacating the hearing in this matter from the docket of the Office of Administrative Hearings. IT IS FURTHER ORDERED remanding this matter to the Registrar of Contractors for further appropriate action. Done this day, November 27, 2006.

______________________ Brian E. Smith Administrative Law Judge

Copy transmitted by mail this _____ day of _________, 2006 to:

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

By _______________________ -----------------------

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