Vacate: Settlement Recommendation

06F-M2120-ROC · Registrar of Contractors · 2007-06-11

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 5, 2007 and June 6, 2007.

APPEARANCES: >The Complainant appeared in his own behalf. >The Respondents were represented by their attorney, William J. Simon, 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. Following discussions between the parties during a prolonged recess taken after the presentation of a significant amount of evidence and testimony at both the first and the second session of the scheduled consolidated hearing, the parties advised the Administrative Law Judge that they had concluded a settlement agreement, the essential terms of which 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 these administrative matters.

2. Pursuant to the terms and conditions of the concluded settlement agreement, both of the parties agreed to be mutually bound by the communicated determination of the Registrar’s assigned Inspector, after another scheduled jobsite viewing with both parties attending, as to those interior locations presently in need of drywall remedial work. Respondents agreed (a) to cause the proper accomplishment of additional drywall work in all designated household locations, (b) to pay Complainant an amount equal to the costs of painting all the repaired areas, including the roller painting of the ceilings in several identified rooms or areas by a specified individual, and (c) to accomplish other specified work relating to the repair of the doorbell and the removal and replacement of the kitchen sink, all such work or payments to be completed no later than a stated deadline date after receipt of the communicated determinations by the Registrar’s Inspector. Respondents also agreed to pay Complainant a specified monetary sum in addition to the painting cost payment. The Complainant agreed to grant reasonable and timely access to the premises

for Respondent or its representatives, to withdraw his filed complaints against both named Respondents in this consolidated administrative action and to consent to the entry of an Order by the Registrar closing both of the issued Citations as resolved and settled. Complainant also agreed to release Respondent from any and all claims, known or unknown, arising out of their previous dealings, whether or not included in the filed complaints, as amended, except for Respondent’s obligations under the concluded settlement agreement.

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, Respondents must be and hereby are advised that any future alleged and proven breach of the work or the payment terms of the settlement agreement will not only constitute grounds for the filing of new complaints or timely petitions for rehearing but also shall warrant treatment as a circumstance in aggravation.

4. It was mutually understood that the entry by the respective parties into the settlement agreement was without any admission of fault, liability or obligation on the part of either Respondent, and correspondingly without any admission by Complainant that he was not entitled to greater benefits.

5. The entry by all parties into the above-described settlement agreement effectively results in a merger of all of their respective rights and defenses, and in the event that a timely petition for rehearing or a new complaint is filed, the sole issues for determination shall be whether the parties have complied with their respective obligations arising under the settlement agreement.

6. 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 consolidated hearing and the remanding of the matters to the forwarding agency for further appropriate action.

ORDER VACATING BALANCE OFCONSOLIDATED HEARING AND REMANDING MATTERS TO FORWARDING AGENCY

In view of the foregoing, IT IS ORDERED that the balance of the consolidated hearing in this matter be and hereby is VACATED, and IT IS FURTHER ORDERED that these cases be REMANDED TO THE REGISTRAR OF CONTRACTORS for appropriate action.

Dated: June 13, 2007. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

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

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