Vacate: Settlement Recommendation

07F-1181-ROC · Registrar of Contractors · 2008-10-16

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

LIMITED COMPLIANCE HEARING: October 16, 2008.

APPEARANCES: >The Complainant appeared through Robert E. Ryan, its President and a member of the LLC entity. >The Respondent appeared through its qualifying party, Dennis Duane Hayes.

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. The instant hearing was convened for the express purpose of determining whether or not Respondent has substantially complied with the terms and conditions of the Registrars prior Order, previously entered by default following the Respondent’s failure to timely file an answer to the issued Citation, so as to warrant the lifting of the imposed suspension of Respondent’s license.

2. Following discussions between the parties during a prolonged recess taken during the evidentiary presentation of Complainant’s position, with the Administrative Law Judge remaining present, the parties 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 scheduled compliance hearing and remanding this matter to the Registrar of Contractors, as the forwarding Department, for appropriate further action in terminating this administrative matter consistent with the intent of the parties’ settlement agreement.

3. Pursuant to the terms and conditions of the concluded settlement agreement, the Respondent agreed to pay or tender and Complainant agreed to accept a specified total monetary sum, payable in separate described installment amounts on or before stated deadline dates, in full satisfaction of any and all claims arising under the parties’ prior dealings. Respondent further agreed to promptly renew its contracting license, paying any applicable late fees, and to properly perform certain described work on the jobsite premises no later than an extended deadline date. The Complainant also agreed to arrange for appropriate access to the premises for Respondent, to withdraw its filed complaint in this administrative action and to consent to the entry of an Order by the Registrar closing the within Citation as resolved, settled and withdrawn. Lastly, the parties’ settlement agreement expressly contemplated that both parties had agreed to mutually release each other from any and all claims arising out of their previous dealings.

4. The entry by the parties into a mutual agreement of settlement is found to constitute the equivalent of substantial compliance by Respondent with the

terms and conditions of the previously entered Order of the Registrar, thereby effectively warranting the immediate lifting of the previously imposed license suspension against Respondent.

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

6. The concluded settlement agreement effectively constituted a merger of all of Complainant’s rights and all of Respondent’s defenses. If any future proceedings should become necessary, the sole issues before the Registrar shall be whether the parties have complied with their respective obligations under the parties’ settlement.

7. 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 Respondent, and correspondingly without any admission by Complainant that it was not entitled to greater benefits.

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 compliance hearing in this matter, having been found to be reasonable and voluntarily made, warrants the termination of the instant hearing and the remanding of the matter to the forwarding agency for further appropriate action.

ORDER VACATING BALANCE OF COMPLIANCE HEARING AND REMANDING MATTER TO FORWARDING AGENCY

In view of the foregoing, IT IS ORDERED that the balance of the compliance hearing in this matter be and hereby is VACATED, and IT IS FURTHER ORDERED that this case be REMANDED TO THE REGISTRAR OF CONTRACTORS for appropriate action consistent with the terms of the parties’ concluded settlement agreement.

Dated: October 17, 2008. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Armando Contreras, Director Registrar of Contractors 3838 North Central Avenue (Suite 400) Phoenix, AZ 85012 - 1906

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

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