Vacate: Settlement Recommendation

06F-2108-ROC · Registrar of Contractors · 2006-12-05

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 5, 2006.

APPEARANCES: >The Complainant appeared through Gary L. Lahr, its General Manager and its authorized employee. >The Respondent was represented by its attorney, Craig L. Keller, Esq.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth ________________________________________________________________

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

FINDINGS OF FACT

1. Following discussions between the respective parties at a recess taken at the outset of the scheduled hearing, and before the presentation of any evidence or testimony, the parties informed the Administrative Law Judge that they had concluded a settlement agreement, the essential terms of which were

read upon the record. The balance of the hearing was thereupon recessed with the mutual understanding that this tribunal shall enter its Order vacating the balance of the administrative hearing and remanding this matter to the Registrar of Contractors, as the forwarding Department, for appropriate further action in terminating this administrative matter.

2. Pursuant to the provisions of the concluded settlement agreement, the Respondent agreed to pay or tender and Complainant agreed to accept a specified monetary sum, payable on or before a stated deadline date, in full satisfaction of any balances potentially payable under the parties’ prior contractual arrangements relating to work previously performed by Complainant for Respondent on several identified projects. Both parties expressly agreed to exchange mutual releases with respect to any and all claims arising out of their previous dealings, and the Complainant agreed to sign and deliver appropriate full and final lien releases as applicable with respect to the various projects. Complainant additionally agreed to withdraw its filed complaint in this administrative action as well as to consent to the entry of an Order by the Registrar closing the within Citation as resolved and settled.

3. All rights and defenses of the respective parties were deemed to have been merged into the concluded settlement agreement, and if any timely petition for rehearing of this matter is filed and granted, or if any new complaint is filed in the future, the sole issues for determination shall be whether Respondent has complied with its payment obligations under the terms of the aforesaid settlement agreement.

4. These administrative disciplinary proceedings are effectively cut short by the parties’ 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 alleged and proven breach of the payment terms of the settlement agreement will not only constitute grounds for the filing of a new complaint or a timely petition for rehearing but also shall warrant treatment as a circumstance in aggravation.

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

6. 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 remanding of the matter to the forwarding agency for further appropriate action. ……. ……. …….

ORDER VACATING BALANCE OF HEARING AND REMANDING MATTER TO FORWARDING AGENCY

In view of the foregoing, IT IS ORDERED that the balance of the hearing in this matter be and hereby is VACATED, and IT IS FURTHER ORDERED that this case be REMANDED TO THE REGISTRAR OF CONTRACTORS for appropriate action.

Dated: December 6, 2006. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Fidelis V. Garcia, Acting Director Registrar of Contractors Legal Department 800 West Washington Street (6th Floor) Phoenix, AZ 85007 -----------------------

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