Vacate: Settlement Recommendation

06F-2367-ROC · Registrar of Contractors · 2007-01-18

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 17, 2007 APPEARANCES: Complainant: Mark Harroff, Director of Operations, appeared, pro per. Respondent: Larry Stuart, project manager, appeared and was represented by counsel, Michael A. Schern. 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 Order issued:

FINDINGS OF FACT 1. The hearing convened at the time, date and place set forth in this tribunal’s October 24, 2006 Order Granting Continuance. 2. Prior to the presentation of any testimony or evidence, a discussion ensued off the record by and between the parties and counsel for Respondent under the direction of the Administrative Law Judge. Thereafter, further discussion took place between the parties and Respondent’s counsel outside the presence of the undersigned. As a result of these discussions, the parties concluded 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 Arizona Registrar of Contractors, are binding on 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 written document by counsel for Respondent. The terms of the Settlement Agreement, the original of which was executed by the duly authorized representatives of both parties, was submitted by the parties and made a part of the record as Exhibit “A”, are as follows: A. Recitals. i. A dispute arose between Bob’s Barricade, Inc. (“Complainant”) and Shannon Construction, L.L.C. (“Respondent”) resulting in a certain complaint being filed with the Arizona Registrar of Contractors (“ROC”), Case No. 06-2367 and Docket No. 06F-2367-ROC before the Office of Administrative Hearings. ii. The parties to the aforementioned complaint now seek to fully and completely settle their dispute as a compromise of all claims whether known or unknown, from the beginning to the end of time. B. Terms. i. Now, therefore, for the sum of One Thousand Dollars ($1,000.00) in the form of check number 11810 made payable to Complainant drawn on Respondent’s account the receipt of which is hereby recognized by Complainant, Complainant hereby withdraws the aforementioned ROC complaint and forever releases and waives any and all claims against Respondent, whether known or unknown, from the beginning to the end of time. ii. For good and valuable consideration the receipt of which is hereby recognized, Respondent hereby waives and releases any and all claims against Complainant, whether known or unknown, from the beginning to the end of time. C. Closing. i. The parties are aware that the aforementioned ROC case shall be reflected as having been withdrawn, settled or closed on the records of the Registrar of Contractors for a period of two (2) years. ii. The undersigned parties/individuals swear and affirm that they have authority to enter into this Settlement Agreement. iii. Dated and signed this 17th day of January, 2007 by Mark Harroff, on behalf of Complainant, and Larry Stuart on behalf of Respondent. 4. Based upon Respondent’s satisfactory completion of its payment obligation under the instant Settlement Agreement as set forth in Paragraph 3 hereof, Complainant shall be deemed to have withdrawn its underlying disciplinary complaint and, together with Respondent, consented to the entry of an Order by the Registrar of Contractors closing the issued Citation as resolved/settled/withdrawn. 5. Both parties acknowledge that they are authorized to enter into the Settlement Agreement and do so knowingly and voluntarily. 6. The parties agreed 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 agreed that, as a result of the settlement, Respondent’s official record with the Registrar of Contractors will reflect the instant matter as a closed complaint under the category of resolved/settled/withdrawn. 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 act 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 termination of the 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 further appropriate action.[1] Done this day, January 18, 2007.

_____________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

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