Vacate: Settlement Recommendation

06F-A0319-ROC-com · Registrar of Contractors · 2007-06-20

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 20, 2007 APPEARANCES: Complainant: Michael and Karen Viscardi appeared, pro per. Respondent: John Mosely, member 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 compliance hearing via videoconference at the time, date and place set forth in the Registrar of Contractors’ Notice of Compliance Hearing dated May 11, 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. As a result of this discussion, 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 Complainants the total sum of Eleven Thousand Dollars ($11,000.00) on before 5:00 p.m. June 22, 2007. Payment of said sum shall be made as follows: i. Respondent shall attempt to hand-deliver said payment to Complainants by 5:00 p.m. Wednesday, June 20, 2007 as arranged in good faith by the parties through use of their cell phones while Respondent remains in Prescott, Arizona.[1] The parties avowed to the undersigned that they had exchanged cell phone numbers while present at the compliance hearing. ii. In the event Respondent is unable to make the necessary financial arrangements to make such payment on June 20, 2007, Respondent shall cause the payment to be delivered via overnight delivery service to Complainants’ residence located at 835 Happy Valley Road, Prescott, Arizona 86305 (“premises”) on or before 5:00 p.m. on Friday, June 22, 2007. b. Payment of the above-referenced settlement agreement sum shall be made in the form of cashier’s check or other certified funds. 4. Payment of the above-referenced sum is made in full settlement of and in exchange for the release of any and all actual and/or potential claims or causes of action Complainants have and/or may have against Respondent arising out of Respondent’s work on Complainants’ premises involving those items set forth in the complaint and this tribunal’s Administrative Law Judge Decision and Order Vacating Hearing Based on Settlement Agreement (“Decision and Order”) dated September 11, 2006 as adopted by the Registrar of Contractors in its Order of Closing Dated October 5, 2006 (“Order”); those additional items set forth in Exhibit C-1 attached hereto and incorporated by reference; the sliding screen bedroom door; and, the stain/clear coating specifically referenced in Paragraph 3 (a) (iv) of the Decision and Order. 5. The waiver and release set forth in Paragraph 4 above shall not include any actual and/or potential work pertaining to warranty(s) in effect on the premises including, without limitation, those regarding the structural integrity of the premises. 6. Based upon Respondent’s satisfactory completion of its obligations under this settlement agreement as set forth in Paragraphs 3 and 4 hereof, Complainants shall be deemed to have withdraw their 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. 7. The parties agree to act in good faith toward the accomplishment of the respective obligations under the terms of the settlement agreement. 8. Both parties acknowledge that they are authorized to enter into the settlement agreement and do so knowingly and voluntarily. 9. 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. 10. 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 o f resolved/settled/withdrawn. 11. 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. 12. 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 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 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 this matter to the Registrar of Contractors for further appropriate action.[2] Done this day, June 20, 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] Due to Respondent being located a significant distance from the Prescott area, it was uncertain at the time of the hearing and settlement whether financial arrangements could be made to remit the settlement sum to Complainants on June 20, 2007. [2] 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 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