Vacate: Settlement Recommendation

07F-G0124-ROC-COM · Registrar of Contractors · 2008-03-11

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 27, 2007 and March 11, 2008 APPEARANCES: Complainant: Dorothy Phillips appeared at both hearings, pro per. Respondent: Rebecca Avelar appeared at both hearings; Jimmy Frank Borbon, owner and qualifying party, appeared at the March 11, 2008 hearing, 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. This matter convened for hearing at the time, date and place set forth in this tribunal’s December 4, 2007 Order Granting Continuance.[1] 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. Such discussion proved unsuccessful and the hearing proceeded on the merits. Subsequently, further discussion took place between the parties in the presence of the undersigned. As a result of this further discussion, the parties concluded and stipulated to a settlement agreement the essential terms of which were then read onto 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 settlement agreement are as follows: a. Respondent remitted to Complainant at the hearing the sum of Six Hundred Fifty Dollars ($650.00) in the form of Arizona Federal Cashier’s Check No. 021340 dated March 11, 2008. b. Based on Respondent’s payment of the above-referenced sum to Complainant, Complainant shall be deemed to have withdrawn her underlying complaint and consented to the entry of an Order by the Registrar of Contractors closing the issued Citation with prejudice as resolved/settled/withdrawn and the parties agree that this agreement shall constitute a full settlement, release and waiver of any and all actual and/or potential claims or causes each party has and/or may have against the other party arising out of the subject matter of the instant complaint. 4. Both parties acknowledge that they are authorized to enter into the settlement agreement on behalf of themselves and/or their company 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. 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.

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, March 11, 2008.

________________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By _________________________ ----------------------- [1] The matter was originally scheduled to convene November 27, 2007 but was continued by stipulation of the parties at that time. [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