Vacate: Settlement Recommendation

07F-0262-ROC · Registrar of Contractors · 2007-04-03

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 20, 2007 APPEARANCES: Complainant: Bill and Mary Zongas appeared, pro per. Respondent: Mark Stephen Speers, corporate officer and qualifying party, and John Crawford, designated representative, appeared, pro per. ADMINISTRATIVE LAW JUDGE: Brian E. Smith ________________________________________________________________ Having read and considered the entire record in this matter, 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 this tribunal’s December 26, 2006 Order Granting Continuance. 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. 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 Registrar of Contractors, are binding on one another. 3. The terms of the parties’ settlement agreement are as follows: a. Mark Stephen Speers (“Speers”), corporate officer and qualifying party, and his designated agent, John Crawford (“Crawford”), agreed and stipulated on behalf of Respondent that Respondent violated A.R.S. §32- 1154A (1) and (7) as alleged in the CITATION AND COMPLAINT issued by the Registrar of Contractors on September 14, 2006, as those statutory sections pertain to a pool remodel performed and/or to be performed by Respondent on Complainants’ premises. b. Speers/Crawford further stipulated and agreed that as a result of such violations, Respondent’s Arizona Contractor’s License No. 118744, Class B-05 shall be suspended or revoked, as determined by the undersigned taking into account the current status of such license, on the effective date of the Order issued by the Registrar of Contractors in this matter which shall enable Complainants to file a claim with the Registrar of Contractors’ Recovery Fund.[1] 4. 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. 5. 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. 6. 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 in addition to the above-referenced self- operating revocation set forth in paragraph 3. 7. 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. 8. 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 this matter. 3. Given that Respondent, by and through its designated and authorized representatives, Speers and Crawford, acknowledged and stipulated under oath to the violations of A.R.S. §32-1154A (1) and (7), this tribunal determines and concludes that Complainants have established by a preponderance of competent, probative and substantial evidence that Respondent violated the above-referenced statutory provisions. In light of the foregoing, and Respondent’s prior revocation which shall serve as a factor in aggravation herein, this tribunal recommends that Respondent’s Arizona Contractor’s License No. 118744, Class B-05 be revoked commencing on the effective date of the Registrar’s Order entered in 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.[2] Done this day, April 3, 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] It must be noted that a review of the licensing database maintained by the Registrar of Contractors indicated that the subject license was suspended November 1 – 8, 2004 (non-renewal), February 12, through March 7, 2006 (lack of bond) and April 28 through October 12, 2006 (G05-0750). Respondent’s license was revoked April 28, 2006 for failure to pay a $275.00 civil penalty (G05-0750). [2] 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