Vacate: Settlement Recommendation

06F-2461-ROC · Registrar of Contractors · 2007-02-26

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 20, 2007 APPEARANCES: Complainant: Douglas Green, member, appeared, pro per. Respondent: Charles Tinney, owner and qualifying party, appeared, pro per. 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 matter convened for hearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated January 5, 2007. 2. Prior to the presentation of any testimony or evidence, a discussion ensued off the record by and between the parties under the direction of the Administrative Law Judge. Thereafter, the parties were afforded an opportunity to craft a settlement outside the presence of the undersigned. As a result of these discussions, the parties concluded and stipulated to 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 terms of the parties’ settlement agreement are as follows: a. Respondent shall remit to Complainant the total sum of Fourteen Thousand Four Hundred Dollars ($14,400.00) on or before February 1, 2009. Payment of said sum shall be made as follows: i. Commencing March 1, 2007, and continuing the first of each month for a period of twenty-four (24) months, or until February 1, 2009, Respondent shall remit to Complainant the sum of Six Hundred Dollars ($600.00). ii. Respondent shall have a five (5) day grace period, or until the fifth (5th) day of each month, in which to remit that month’s payment. Should Respondent fail to remit any portion of a month’s payment within the five (5) day grace period, Respondent shall be liable for the payment of a penalty in the amount of Fifteen Dollars ($15.00) per day, retroactive to that month’s due date, and accruing until that months’ payment and all penalties are paid. b. Payment of the above-referenced settlement agreement sum and/or any part thereof including penalties, if any, shall be made in the form of cashier’s check or other certified funds and shall be mailed and/or hand- delivered by Respondent or paid carrier to the residence of Complainant’s principle, Doug Green, located at 12223 North 60th Lane, Glendale, Arizona 85304. c. In the event Respondent fails to remit to Complainant any monthly payment, plus accrued penalties, within thirty (30) days of that payment’s original due date hereunder, Complainant shall be entitled to file a request for a compliance hearing with the Registrar of Contractors. d. Respondent’s early payment of any monthly payment due hereunder shall not accelerate the payment of any subsequent monthly payment(s). e. Upon Respondent’s remitting the entire amount due Complainant hereunder pursuant to subparagraph (a) above, Complainant shall notify the Registrar of Contractors and Office of Administrative Hearings in writing of such compliance. 4. The parties shall give each other at least twenty-four (24) hours notice of any problems regarding compliance with their respective obligations under this settlement agreement. 5. All communications between the parties regarding performance of the terms and conditions of the settlement agreement shall be memorialized in writing by facsimile and/or email. 6. The parties agreed that their entering into this settlement agreement constitutes a full settlement, release and waiver of any and all actual and/or potential claims or causes of action each party has and/or may have against the other party arising out of the subject matter of the instant complaint including, without limitation, those before the Registrar of Contractors, in civil court and/or any other court, forum and/or tribunal. The parties further agreed that by this settlement agreement neither party acknowledges any responsibility and/or fault arising out of the contract between the parties. 7. In the event Respondent satisfactorily completes its obligations set forth in paragraph 3 hereof within the stated period, Complainant shall be deemed to have withdrawn its underlying complaint and consented to the entry of an Order by the Registrar of Contractors closing the issued Citation with prejudice as resolved/settled/ withdrawn. 8. The parties agree to act in good faith toward the accomplishment of each of their respective obligations under the terms of the settlement agreement. 9. Both parties acknowledge that they are authorized to act on behalf of themselves and/or their company and enter into the settlement agreement and do so knowingly, voluntarily and on a presumption of good faith. 10. The parties agree 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. 11. The parties were advised of the Registrar of Contractors’ license record keeping policies and procedures and agree 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 settled/withdrawn/resolved. 12. 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 action on the part of each party. 13. 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 the termination of this 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 the matter to the Registrar of Contractors for further appropriate action.[1] Done this day, February 26, 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