Vacate: Settlement Recommendation

08F-H0215-ROC · Registrar of Contractors · 2009-01-28

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 28, 2009 APPEARANCES: Complainants: Michael and Vickie Ramirez appeared, pro per. Respondent: Gary Lawson, corporate officer and qualifying party 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 Recommended Order are made:

FINDINGS OF FACT 1. The matter convened for hearing via videoconference at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated December 24, 2008. 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 that 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 settlement agreement are as follows: On or before February 28, 2009, Respondent shall perform and/or cause to be performed by a duly licensed contractor, as necessary, all required corrective work on Item (1) of the Registrar of Contractors’ December 14, 2007 Corrective Work Order, i.e., “properly grade the rear and side yards to provide proper drainage.” To further delineate the scope of this item, the parties agreed and stipulated that the area to be graded includes the entire rear/side yards contained within the area enclosed by the blocked fence wall. In addition, the above-referenced corrective work shall include that area on the North side of Complainants’ residence under the gate where Respondent had previously performed corrective work at the block wall footer.[1] 4. Complainants shall provide Respondent and/or its subcontractors with reasonable access to the property in order to perform all required inspections and/or corrective work. 5. 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. 6. 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. 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. Respondent and/or its subcontractors, 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 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 stated period, Complainants shall be deemed to have withdrawn their 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 was filed, the sole issue for determination shall be whether the parties have performed their respective obligations under the terms of the 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 appropriate further action.[2] Done this day, January 28, 2009.

______________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

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

By _________________________ ----------------------- [1] Before and after photographs of this area were provided to the Administrative Law Judge by Complainants as proposed exhibits C-1 and C-15 which were used for demonstrative purposes only and not made a part of the settlement agreement. [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