Vacate: Settlement Recommendation

06F-F0232-ROC · Registrar of Contractors · 2006-11-15

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 2, 2004 APPEARANCES: Complainants: Brian and Michelle Nehls appeared, pro per. Respondent: Brent Ford, owner and qualifying party, appeared on behalf of The Landscaping Edge, Inc. 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. These consolidated matters convened for hearing at the time, date and place set forth in the respective Registrar of Contractors’ Notice of Hearing each dated October 3, 2006. 2. Prior to the presentation of any testimony or evidence, a discussion ensued off the record by and between the parties and counsel under the direction of the Administrative Law Judge. Thereafter, further discussion took place between the parties and counsel outside the presence of the undersigned. As a result of such 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 terms of the settlement agreement are as follows: a. Heath Christopher Ironside dba Ironside Electric (Complainant in Docket No. 06F-F0222-ROC and Respondent in Docket No. 06F-F0232-ROC) and On Pointe Development Inc. (Complainant in Docket No. 06F-F0232-ROC and Respondent in Docket No. 06F-F0222-ROC) stipulate to vacate the hearing in these consolidated matters contingent upon the following: i. On or before the close of business on November 17, 2006 and, more specifically, by 5:00 p.m., Ironside Electric either through its principle, Heath Ironside, or counsel, Keith Hammond, will pick up a check drawn on the account of On Pointe Development Inc. and made payable to the order of Ironside Electric in the amount of Five Thousand Dollars ($5,000.00) at the office of On Pointe Development’s accountant, Wes Christensen & Associates, located in Flagstaff, Arizona. ii. The above-referenced check will be provided to Ironside Electric and/or its counsel upon the receipt by On Pointe Development and/or its designated representative from Ironside Electric of a statutory final and unconditional lien waiver signed by a duly authorized representative of Ironside Electric. b. Upon the mutual satisfaction of the terms of paragraph (a) (i) and (ii) above, the parties waive all rights and defenses which arise from and relate in any way to the facts set forth in Cases F06-0222 and F06-0232 and include, without limitation, the right to bring and/or assert any cause of action in any superior court, justice court or other forum. It is further agreed that the payment made by On Pointe Development herein is made without admitting any liability for the claims asserted by Ironside Electric and is made only for the purpose of settling this disputed claim. 4. In the event the parties satisfactorily complete their respective obligations under paragraph 3 hereof, both parties shall be deemed to have withdrawn his/its underlying disciplinary complaint and consented to the entry of an Order by the Registrar closing the respective issued citations with prejudice as resolved/settled/withdrawn. 5. Both parties acknowledge that they are authorized to enter into the settlement agreement and do so voluntarily and upon a presumption of good faith. 6. 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 between the parties and/or their respective counsel. 7. The parties agreed that all rights and defenses were to be merged into this settlement agreement and if any petition for rehearing of this matter was to 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. 8. The parties were advised of the Registrar of Contractors’ license record keeping policies and procedures and agreed that, as a result of the settlement and withdrawal of the complaint, Respondent’s official public record with the Registrar of Contractors will reflect the instant matter as a closed complaint under the category settled, withdrawn or resolved. 9. The Administrative Law Judge determined that the terms of the settlement agreement were reasonable under the circumstances and were to the product of a knowing and voluntary act of the part of each party. 10. 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 these consolidated matters, having been found to be reasonable and voluntarily made, warrants the termination of the instant hearing.

ORDER In view of the foregoing, IT IS ORDERED vacating the hearing in these consolidated matters from the docket of the Office of Administrative Hearings. IT IS FURTHER ORDERED remanding these consolidated matters to the Registrar of Contractors for further appropriate action. Done this day, November 30, 2006.

_______________________ Brian E. Smith Administrative Law Judge

Copy transmitted by mail this _____ day of _________, 2006 to:

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

By _________________________ -----------------------

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