Vacate: Settlement Recommendation

08F-RF0263-ROC · Registrar of Contractors · 2008-12-30

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 17, 2008 APPEARANCES: Plaintiff: Rony and Margarita Ghanooni appeared, pro per. Defendant: Peter Sorace, corporate officer and qualifying party, appeared and was represented by counsel, Timothy Ducar. Registrar of Contractors: Inspector Phil Coscia appeared on behalf of the Registrar of Contractors Recovery Fund and was represented by Assistant Attorney General Mona Baskin. ADMINISTRATIVE LAW JUDGE: Brian E. Smith ________________________________________________________________ Having read and considered the entire record, the following Findings of Fact are made, Conclusions of Law rendered 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 November 10, 2008. 2. Prior to the presentation of any testimony or evidence, a discussion ensued off the record by and between the parties, Defendant’s counsel, Assistant Attorney General Mona Baskin and Registrar of Contractors Inspector Phil Coscia outside the presence of the Administrative Law Judge. Thereafter, further discussion occurred under the direction of the undersigned. As a result of such 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 upon one another. 3. The parties provided the Administrative Law Judge with the terms and conditions of the resolution of their dispute which were reduced to a hand-written document by the parties. The terms of the settlement agreement, the original of which was executed by the duly authorized representatives of both parties and made a part of the record as Exhibit “A”, are as follows: “WHEREAS several disputes have arisen between Rony and Margarita Ghanooni (“the Ghanoonis”) and PBS Construction Management, Inc. which have given rise to disputes heard before the Arizona Registrar of Contractors, Office of Administrative Hearings and Superior Court; In lieu of proceeding to a hearing, the Ghanoonis and PBS Construction Management, Inc. (“the parties”) agree to settle their differences as follows: i. PBS Construction Management, Inc. (“PBS”) will pay to the Ghanoonis $3,750.00 via certified funds. Said payment must be made on or before Tuesday, December 30, 2008 and shall be delivered to 9015 N. 43rd Ave., Phoenix, Arizona 85051 after 11:00 a.m. ii. Within five (5) days of receiving the payment, the Ghanoonis will cause a letter to be delivered to the Arizona Registrar of Contractors advising that all issues with PBS have been resolved and that the Ghanoonis have no complaints with PBS. The Ghanoonis will also advise the Arizona Registrar of Contractors that they have no objection to the Registrar reinstating as active status the contractor’s license of PBS. iii. The parties understand that this settlement agreement is a public document. iv. The parties understand and agree that, by entering into this settlement agreement, they are waiving all right to appellate review, hearing and rehearing. v. In the event that one of the parties breaches this settlement agreement, the parties are limited to litigating the terms of this agreement. All arguments regarding workmanship and further work are waived. vi. The parties agree to memorialize all communications between themselves and/or their attorneys in writing. vii. This settlement agreement does not affect the State of Arizona’s position that the Ghanoonis are ineligible as claimants of the Recovery Fund. viii. This settlement agreement settles all matters pending in RF08- 0263, Docket Number 08F-RF0263-ROC, and Case Number M05-1685, and any and all other cases between the parties.” 4. The parties agree to act in good faith toward the accomplishment of each of their respective obligations under the terms of this settlement agreement. 5. 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. 6. In conjunction with the provisions of subparagraphs 3 (iv) and (v) hereof, 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. 7. The parties were advised of the Registrar of Contractors’ license record keeping policies and procedures and agree that, as a result of the settlement, the 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. 8. 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. 9. 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.[1] Done this day, December 30, 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] 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