ALJDEC

02F-G0625-ROC · Registrar of Contractors · 2002-04-25

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 25, 2001.

APPEARANCES: Complainant, Rose Marie Ann Denning, appeared in her own behalf. Respondent, Rescue Rooter, L.L.C., appeared through its authorized employee and General Manager, Ron Smith and through its Qualifying Party, Dan Kubicsek.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

Based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. Immediately after a recess taken shortly following the formal opening of the scheduled hearing, the parties confirmed to the Administrative Law Judge that they had concluded a settlement agreement, the essential terms of which were read onto the record.

2. Pursuant to the provisions of the parties’ settlement agreement, Complainant agreed to withdraw her entire complaint as filed with the Registrar of Contractors and to consent to the entry of an Order by the Registrar dismissing the within Citation with prejudice. Complainant also agreed to perform any and all remaining corrective work at her own expense and to waive any claim for reimbursement for expenses paid to others with respect to other jobsite corrections. Respondent agreed to waive and cancel any and all claims for payment from Complainant on the contract between the parties and further agreed not to pursue any collection or lien remedies with respect to such contractual payment claims otherwise assertable against Complainant.

3. Since the Registrar’s assigned Inspector had neither made a jobsite visit nor had ever issued any written directive to Respondent, no valid reason is perceived that would or should prompt the Registrar not to dismiss the instant Citation and Complaint, in accordance with the parties’ express agreement.

4. The administrative disciplinary proceedings hereunder are effectively cut short by the entry into the above-described settlement agreement which is to be presented to the Registrar of Contractors for approval and adoption. Consequently, Respondent must be and hereby is advised that any future breach of the terms of the settlement agreement will not only constitute grounds for the filing of a new complaint but also shall warrant treatment as a circumstance in aggravation.[1]

All rights and defenses of the respective parties are deemed to have been merged into the settlement agreement, and if any timely petition for rehearing of this matter is to be filed and granted, or if any new complaint is filed in the future, the sole

issue for determination shall be whether Respondent has performed its obligations under the terms of the aforesaid settlement agreement.

6. It was mutually understood that the entry by the respective parties into the settlement agreement was without any admission of fault, liability, obligation or lack of monetary entitlement on the part of Respondent, and correspondingly without any admission by Complainant that she was not entitled to greater benefits.

7. The terms of the foregoing settlement agreement appeared to be fair and reasonable 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 hearing and the dismissal of the charges contained in the Citation and Complaint. ……. ……. ……. …….

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the entire Citation and Complaint in Case No. G02-0625 be dismissed.

Dated: April 29, 2002. 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 ----------------------- [1] It must be observed and noted that the extent of duties of Respondent under the settlement terms are all negative in nature, more specifically to waive or cancel certain contract claims and not to initiate or pursue collection or lien remedies.

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