ALJDEC

00F-2540-ROC · Registrar of Contractors · 2000-11-20

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

The above-entitled matter came on for hearing on November 20, 2000. Force Contracting, aka Force Foundation of Arizona, (herein called (“Force”) was represented by its attorney, Marshall C. Sanders, Esq. Heller Construction, Inc. (herein called “Heller”) was represented by its attorney, Gretchen B. Friedlander, Esq. Based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. At the outset of the hearing formally noticed and scheduled for Case Number 00-2540, it was confirmed that the matters involved in the complaint filed by Force against Heller were closely related to, if not identical to, the matters involved in Cases Numbered 01-0970 and 01-0970X based upon a complaint filed by Heller against the two contracting licenses held by Force (thereby necessitating the use of two separate case numbers). A previously filed motion for consolidation filed by Heller could not properly be entertained by this tribunal since the second case was still in the pleading stages and had not yet been the subject of a hearing request from the Registrar of Contractors to the Office of Administrative Hearings.

2. In the interests of quasi-judicial economy as well as for the convenience of the parties and their witnesses, Force agreed to waive the remaining time allowed for the filing of a formal answer to the Citation issued against its licenses, effectively entering a general denial on the record. Both Force and Heller also mutually agreed to waive the applicable advance 30-day notice of the hearing in that matter and to proceed with the hearing of all matters on a consolidated basis. The Administrative Law Judge accepted the waivers and the answer, also granting the request to consolidate the hearings. OAH Docket numbers for the respective cases would be assigned in due course.

3. Following prolonged discussions between the parties and their respective counsel during an extended recess taken immediately prior to the presentation of any evidence or testimony at the now-consolidated hearing, with the Administrative Law Judge remaining present for a significant portion of such discussions, the parties confirmed that they had concluded a stipulation of settlement, the essential terms of which were read onto the record.

2. Pursuant to the provisions of the parties’ stipulation of settlement, both Force and Heller mutually agreed to withdraw their respective complaints presently pending before the Registrar and to consent to the entry of an Order by the Registrar dismissing all such complaints. The dismissals were to be with prejudice to any and all future administrative disciplinary actions based upon the underlying allegations of the various complaints, but without prejudice to assertion by either or both parties of potential claims, counterclaims, defenses or set-offs before a civil tribunal or, as specifically contemplated, as part of a binding arbitration proceeding.

3. Since none of the pending consolidated cases appeared to involve the issuance of any written directive from an assigned Inspector from the Registrar’s office, nor was a charged violation of the provisions of A.R.S. §32-1154(A)(23) included in any of the issued Citations hereunder, no valid reason is found to exist that would operate to preclude the entry of dismissal Orders by the Registrar.

4. The terms of the foregoing stipulation of settlement, reflecting an election by both parties to resolve all issues in another, perhaps more appropriate forum, appeared to be fair, reasonable and perhaps prudent under all the circumstances, and the agreement was determined to be the product of knowing and voluntary action on the part of each party.

CONCLUSIONS OF LAW

1. The policy of the law favors settlements of disputes, and adverse parties should be free to adjust their differences by entry into agreements or stipulations which should be recognized and given effect by all tribunals.

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 the instant consolidated hearing and the dismissal with prejudice of the above-captioned administrative actions based upon the allegations and charges contained in the respective Citations and Complaints; provided however, that such dismissals would be specifically without prejudice to the assertion of potential rights, entitlements and defenses against each other in future binding arbitration or in civil litigation.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the entire Citations and Complaints in Cases Numbered 00-2540, 01-0970 and 01-0970X be dismissed with prejudice as to the filing of future administrative disciplinary complaints by or against either named party arising out of the same subject matter, but without prejudice with respect to asserting the same or similar underlying claims, counterclaims, defenses or set-offs in a binding arbitration proceeding or before a civil tribunal.

Dated: November 22, 2000.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Michael P. Goldwater, Director Registrar of Contractors 800 West Washington Street (6th Floor) Phoenix, AZ 85007

Attn: Joyce Armijo -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826