Vacate: Settlement Recommendation

07F-0195-ROC · Registrar of Contractors · 2007-09-26

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 26, 2007 APPEARANCES: Complainant: Michael Rhodig appeared, pro per. Respondent: Terry Nichols, corporate officer and qualifying party, appeared and was represented by counsel, Chester A. Yon. 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 August 6, 2007. 2. Prior to the presentation of any testimony or evidence, a discussion ensued off the record by and between the parties and counsel for Respondent 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 onto 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 Registrar of Contractors, are binding upon one another. 3. The terms of the settlement agreement are as follows: a. Respondent shall remit to Complainant the total sum of Six Hundred Dollars ($600.00) by 5:00 p.m. September 26, 2007. b. Payment of the above-referenced settlement agreement sum shall be made in the form of cashier’s check or other certified funds and will be available for pick up by Complainant at the office of Respondent’s counsel, Chester A. Yon, located at 13253 N. La Montana, Suite 102, Fountain Hills, Arizona. c. In the event Respondent timely remits the above-referenced settlement agreement sum as set forth in paragraphs (a) and (b) hereof, Complainant shall be deemed to have withdrawn his underlying complaint and consented to the entry of an Order by the Registrar of Contractors closing the issued Citation with prejudice as resolved/settled/withdrawn. 4. The parties agree 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 agree that by this settlement agreement neither party acknowledges any responsibility and/or fault arising out of the contract between the parties. 5. The parties agree to act in good faith toward the accomplishment of each of their respective obligations under the terms of the settlement agreement. 6. 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. 7. 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. 8. 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. 9. 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. 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 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, September 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 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.

-----------------------

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