Vacate: Settlement Recommendation

08F-0927-ROC · Registrar of Contractors · 2008-11-25

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 13, 2008 APPEARANCES: Complainant: Theresa M. Alejo appeared, pro per. Respondent: Jose Villenueva Jaime, corporate officer and qualifying party, and Abe Jaime, general manager, appeared, pro per. Registrar of Contractors: Inspector Rick Oelke appeared on behalf of the Registrar of Contractors. 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 October 10, 2008. 2. Prior to the presentation of any testimony or evidence, a discussion ensued off the record by and between the parties and the Registrar of Contractors Inspector Rick Oelke (“Oelke”) under the direction of the Administrative Law Judge. Thereafter, further discussion took place between the parties and Inspector Oelke outside the present 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 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. On or before January 15, 2009, Respondent shall perform and/or cause to be performed by a duly licensed contractor, as necessary, all required corrective work on the following enumerated items as set forth in the Registrar of Contractors’ November 14, 2007 Corrective Work Order: i. (1) West side yard gate latch: fix and/or adjust gate and/or latch, as necessary. ii. (3) Concrete overage/squeeze out at east edge of patio slab. iii. (10) Kitchen cabinet tops at two (2) forty-five (45) degree miters to be repaired, replaced or refinished and corrected and approved by both parties. iv. (5), (8) and (9) Drywall repairs at master bedroom ceiling, garage ceiling and one-year required dry wall touch up throughout the entire home which period shall end November 30, 2008.[1] Respondent shall also provide a five (5) gallon bucket of paint, materials and labor with which it shall paint the garage ceiling. The remainder of the five gallon bucket and materials shall be left with Complainant for the purpose of painting and repairing the remainder of the home including its ceiling by Complainant. v. (2), (3) and (4) Grade issues shall be the responsibility of Complainant; Respondent shall have no further obligation to perform any corrective work on these items except as set forth in subparagraph (ii) above. vi. (6) and (7) Respondent shall have no further obligations to perform any corrective work on these items. 4. The parties shall give each other at least forty-eight (48) hours notice of the scheduling of any inspections, corrective work to be performed and/or 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. Due to Complainant not having personal facsimile or email capabilities, all communications to and from Complainant shall be sent through her boss’s facilities to satisfy this provision of the settlement agreement and Respondent shall telephone Complainant to advise of a forthcoming facsimile/email. 6. Complainant shall provide Respondent and/or its subcontractor with reasonable access to the property in order to perform all required corrective work. 7. The parties agree to act in good faith toward the accomplishment of each of their respective obligations under the terms of this settlement agreement. 8. Respondent and/or its subcontractor(s), as applicable, shall complete any required corrective work provided for hereunder in accordance with Registrar of Contractors minimum workmanship standards. 9. 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. 10. In the event Respondent satisfactorily completes and/or causes to be completed its obligations as set forth in paragraph 3 hereof within the sated period, Complainant shall be deemed to have withdrawn her complaint and consented to the entry of an Order by the Registrar of Contractors closing the issued Citation with prejudice as resolved/settled/withdrawn. 11. 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 were filed, the sole issue for determination shall be whether the parties have performed their respective obligations under the terms of the aforesaid settlement agreement. 12. 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 public record with the Registrar of Contractors will reflect the instant matter as a closed complaint under the category of resolved/settled/withdrawn. 13. 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. 14. 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 this matter to the Registrar of Contractors for further appropriate action.[2] Done this day, November 25, 2008.

_____________________ Brian E. Smith Administrative Law Judge

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

Registrar of Contractors Armando Contreras 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ ----------------------- [1] The parties acknowledged that the one-year post move-in period ended November 30, 2007. However, Respondent agreed to repair all drywall problems and nail pops throughout the house by November 30, 2008 which will, for the purpose of this settlement agreement, serve to be the end of said one-year period. [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