Vacate: Settlement Recommendation

06F-2379-ROC · Registrar of Contractors · 2007-02-20

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 20, 2007.

APPEARANCES: >The Complainant was represented by his attorney, Renee Gerstman, Esq. >The Respondent was represented by its attorney, Monica K. Lindstrom, 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. At the outset of the scheduled hearing, and prior to the introduction of any evidence or testimony, counsel for both parties notified the Administrative Law Judge that they had concluded a settlement agreement that effectively resolved all matters in issue. A written copy of the mutual settlement agreement

was presented to the tribunal, marked as an Exhibit, and the essential terms of the said settlement 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 terms and conditions of the concluded settlement agreement, the subject residential property was to be repurchased from Complainant by his Seller at a stated price no later that a specified future date. Respondent agreed to join in transmitting and Complainant agreed to accept certain described monetary sums, to include estimated taxes and costs of preparing necessary documents, in full satisfaction of any and all claims. Related civil litigation in which both parties are presently engaged would also be terminated. The Complainant also agreed to withdraw his filed complaint in this administrative action and to consent to the entry of an Order by the Registrar closing the within Citation as resolved and settled. Lastly, the parties’ settlement agreement expressly contemplated that both parties to this proceeding were effectively confirming that they were mutually releasing one another from all claims set forth or which could arise in the civil and administrative actions.

3. 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 terms of the settlement agreement on the part of or attributable to Respondent 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.

4. It was mutually understood, as expressly stated under the terms of the concluded written settlement agreement, that the entry by the respective parties into the settlement agreement was without any admission of fault, liability wrongdoing on the part of Respondent, and correspondingly without any admission by Complainant that he was not entitled to greater benefits.

5. 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: March 7, 2007. 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