Vacate: Settlement Recommendation

06F-M2518-ROC · Registrar of Contractors · 2007-02-07

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 6, 2007 APPEARANCES: Complainants: Chris and Jamie Dinsmore appeared, pro per. Respondent: Aaron Edward Zepeda, member and qualifying party, and Edward Zepeda, member, 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 matter convened for hearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated January 5, 2007. 2. 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 undersigned. As a result of these discussions, 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. Respondent shall remit to Complainants the sum of Five Thousand Two Hundred Eighty Dollars ($5,280.00). Payment of said sum shall be made as follows: i. Respondent remitted to Complainants at the hearing the sum of Five Hundred Dollars ($500.00) in the form of Respondent’s company check number 1092 receipt of which was acknowledged by Complainants. ii. Respondent shall remit to Complainants on or before March 6, 2007 the minimum sum of One Thousand Dollars ($1,000.00). iii. Respondent shall remit to Complainants on or before April 6, 2007 the minimum sum of Two Thousand Dollars ($2,000.00). iv. Respondent shall remit to Complainants on or before May 7, 2007 the balance due under the settlement agreement of One Thousand Seven Hundred Eighty Dollars ($1,780.00), or any lesser amount of the total settlement agreement sum, as applicable, that has not already been paid to Complainants by Respondent. v. Payment of the above-referenced total settlement agreement sum and/or any part thereof shall be made in the form of cashier’s check or other certified funds and shall be ready for pick up by Complainants at Respondent’s offices located 3130 N. Arizona Avenue, Ste. 110, Chandler, Arizona, on the dates indicated. 4. The parties shall give each other at least twenty-four (24) hours written 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. In the event Respondent satisfactorily completes its obligations set forth in paragraph 3 hereof within the stated period, Complainants shall be deemed to have withdrawn their underlying complaint and consented to the entry of an Order by the Registrar of Contractors closing the issued Citation with prejudice 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 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 resolved/settled/withdrawn. 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 act 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 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 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, February 7, 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 forty (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