Vacate: Settlement Recommendation

06F-RF0318-ROC · Registrar of Contractors · 2007-04-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 21, 2007, at 9:00 a.m. APPEARANCES: The Plaintiff appeared on his own behalf. The Defendant failed to appear. The Registrar of Contractors appeared through Assistant Attorney General, Kathryn Winters. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT

1. Defendant was Larry Allen Alvarez dba Territorial Plumbing (Indiv.) was given notice of the hearing but did not appear or participate at the hearing. 2. There was no dispute that the Plaintiff is an “injured person” as defined by statute and is found to be entitled to receive payment from the Contractors’ Recovery Fund for damages sustained as a result of the Defendant’s acts or omissions. 3. There was no dispute that the Defendant’s Contracting License has been previously revoked by Order of the Registrar of Contractors. Such revocation is determined to render this Defendant unable to remedy the violations of the State’s contracting laws which gave rise to the instant claim for damages. 4. The record in this matter was held open until April 20, 2007, to allow sufficient time for the Recovery Fund to file a brief pertaining to a legal issue raise at the hearing and to allow the parties an opportunity to conclude their settlement negotiations. 5. On March 20, 2007, the parties filed a Settlement Agreement, a copy of which is attached hereto and incorporated herein, as Exhibit No. “A.” 6. The Settlement Agreement provides, in pertinent part, as follows: “Upon receipt of an Order from the Director of the Registrar of Contractors in the above captioned matter, the Recovery Fund agrees to pay Plaintiff the sum of Five Thousand Nine Hundred Seventy-Severn Dollars ($5,977.00) in Case No. RF06-318. This payment is based on itemized receipts for a tub ($619.00), two Toto toilets ($858.00) and $4,500.00, or one-half of the $9,000.00 bid dated September 23, 2005 from Qualified Mechanical Contractors Inc. Plaintiff agrees that acceptance of the Recovery Fund payout of $5,977.00 will be in full satisfaction of his Recovery Fund claim in the pending matter. Plaintiff agrees that by accepting the terms of this Agreement he waives his right to further hearing, rehearing, and all appellate review in Case No. RF06-0318/Docket No. 06F- RF0318-ROC.”

CONCLUSIONS OF LAW 1. A general policy of 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. A.R.S. 32-1132(A) provides, in pertinent part, as follows: “The residential contractors’ recovery fund is established, to be administered by the registrar, from which any person injured by an act, representation, transaction or conduct of a residential contractor licensed pursuant to this chapter that is in violation of this chapter or the rules adopted pursuant to this chapter may be awarded in the county where the violation occurred an amount of not more than thirty thousand dollars for damages sustained by the act, representation, transaction or conduct. An award from the fund is limited to the actual damages suffered by the claimant as a direct result of the contractor’s violation but shall not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines.” 3. Under the facts and circumstances of this matter, the Registrar of Contractors is empowered to determine and award proper payment to the Plaintiff from the Contractors’ Recovery Fund pursuant to A.R.S. 32- 1154(E). 4. The credible evidence of record supports an award from the Contractors’ Recovery Fund to the Plaintiff in the sum of $5,977.00 all of which shall be appropriately chargeable against the Defendant and/or persons on the Defendant’s license as set forth in A.R.S. 32-1139(B) RECOMMENDed order In view of the foregoing, it is recommended the Registrar of Contractors shall commence and finalize payment procedures from the Contractors’ Recovery Fund to the Plaintiff in the total amount of $5,977.00 for damages. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification. Done this day, April 23, 2007. ______________________________________ M. Douglas 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 ___________________________ -----------------------

Office of Administrative Hearings 100 North Stone Avenue, Suite 704 Tucson, Arizona 85701 (520) 628-5488