Vacate: Settlement Recommendation

07F-1426-ROC · Registrar of Contractors · 2007-10-24

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 23, 2007.

APPEARANCES: >The Complainants appeared in their own behalf. >The Respondent appeared through its President and qualifying party, Timothy Michael Mullooly.

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 at the outset of the scheduled hearing, 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 administrative hearing and remanding this

matter to the Registrar of Contractors, as the forwarding Department, for appropriate further action in terminating this administrative matter.

2. Pursuant to the terms and conditions of the concluded settlement agreement, the Respondent agreed to properly perform certain specified replacement work on a portion of the jobsite project in a maximum number of individual locations, as visibly to be identified by Complainants, no later than a stated deadline date. Respondent further gave assurances that the product manufacturer’s warranty would remain in effect after performance of the contemplated replacement work. The Complainants agreed to allow Respondent to utilize their extra product materials for the specified work and additionally acknowledged their understanding that, when the agreed work was completed, the ultimate visual appearances of the newly replaced areas and the previously existing unreplaced areas would probably differ to some extent. Complainants further agreed to grant reasonable and timely access to the premises to Respondent or its selected representatives for purposes of work or inspection and also agreed to withdraw their filed complaint in this administrative action and to consent to the entry of an Order by the Registrar of Contractors closing the within Citation as resolved and settled.

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, Respondent must be and hereby is advised that any future alleged and proven breach of 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.

4. The concluded settlement agreement effectively constituted a merger of all of Complainants’ 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.

5. 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 Complainants that they were 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 hearing of 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 HEARING AND REMANDING MATTER TO FORWARDING AGENCY

In view of the foregoing, IT IS ORDERED that the balance of the 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.

Dated: October 31, 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 -----------------------

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