Vacate: Settlement Recommendation

06F-G1624-ROC · Registrar of Contractors · 2007-01-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 3, 2007 APPEARENCES: Complainant Hernan Vega appeared on behalf of Complainants Hernan and Jeannette Vega; Salvador Escarcega, Respondent’s president, qualifying party, and authorized representative, appeared on behalf of Respondent Fresca Pools Inc. ADMINISTRATIVE LAW JUDGE: Marianne T. Bayardi ___________________________________________________________

FINDINGS OF FACT 1. This matter came on for a regularly scheduled administrative hearing. At the beginning of the hearing, but before the presentation of evidence, the parties commenced a discussion outside the presence of the Administrative Law Judge. During this discussion, the parties concluded a Settlement Agreement, the essential terms of which were read upon the record. 2. Both Hernan Vega (“Complainants”), on Complainants behalf, and Salvador Escarcega, on Respondent’s behalf, testified that they were authorized to enter into the settlement agreement. 3. Pursuant to the terms of the aforementioned Settlement Agreement, the parties agreed as follows: a. The payment Complainants made to Respondent in December, 2006, constitutes full and final payment. No money is due and owing to Respondent from Complainants.

b. Respondent will honor the warranty on the pool and flagstone cool decking, originally beginning from the completion of work and including full warranty on any corrective work performed. The warranty on the pool is three years; the warranty on the deck is two years.

c. Complainants will call Respondent to make repairs. Within two weeks of Complainants’ call, Respondent will be on site to make corrections. Respondent will complete corrections within 30 days of arriving on scene. The items requiring correction were listed as Items 1 & 4 in Complainants’ July 30, 2006 letter to the Registrar of Contractors. Namely, Respondent will repair or replace defective materials and repair cracks and chips in flagstone.

d. Work performed by Nick’s Pool Repair Service will be the responsibility of Nick’s Pool Repair Service and not Respondent.

e. Complainants agree to withdraw their Complainant and vacate the hearing in this matter.

4. The parties have agreed that all rights and defenses relating to this matter were to be merged into the Settlement Agreement and that should hereafter any petitions for rehearing be filed and granted, or if any new complaint was filed, the sole issue for determination shall be whether they have performed their respective obligations under the terms of the Settlement Agreement. 5. The parties were advised 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. 6. The Administrative Law Judge determined that the terms of the Settlement Agreement were the product of knowing and voluntary action on the part of each party. 7. In light of having entered into a Settlement Agreement, the parties agreed to vacate the hearing in this matter. 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 which should be recognized and given effect by the tribunal having jurisdiction over the issues and statutory enforcement authority. 2. The settlement reached at the instant hearing of this matter, having been found to be knowingly 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 disposition. Done this day, January 3, 2007.

_________________________________ Marianne T. Bayardi Administrative Law Judge

Copy transmitted by mail this _____ day of _________, 2007 to:

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

By _______________________________

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