Vacate: Settlement Recommendation

07F-2472-ROC · Registrar of Contractors · 2009-02-12

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 3, 2009 APPEARANCES: Complainants: Alan Garner appeared and was represented by counsel, Robert Stewart. Respondent: Mark Doerflein, corporate officer and qualifying party, appeared and was represented by counsel, Steven C. Lawrence. Registrar of Contractors: Inspector Warren Duncan appeared on behalf of the Registrar of Contractors. ADMINISTRATIVE LAW JUDGE: Brian E. Smith ________________________________________________________________ Having read and considered the entire record, the following Findings of Fact are made, Conclusions of Law rendered and Order issued:

FINDINGS OF FACT 1. This matter convened for hearing at the time, date and place set forth in this tribunal’s October 20, 2008 Order Granting Continuance. 2. Prior to the presentation of any testimony or evidence, a discussion ensued off the record by and between the parties, their respective counsel and Registrar of Contractors Inspector Warren Duncan under the direction of the Administrative Law Judge. Thereafter, further discussion took place between the parties, counsel and Inspector Duncan outside the presence of the undersigned. As a result of those discussions, the parties concluded and stipulated to 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 Registrar of Contractors, are binding upon one another. 3. The parties have agreed to resolve the issues pending before the Registrar of Contractors, Office of Administrative Hearings and related matters as follows: a. Complainants shall withdraw their complaint filed with the Registrar of Contractors against Respondent in this matter. b. On or before February 20, 2009, Complainants[1] shall pay to Respondent MAK Enterprises, Inc. (“Respondent”) or an affiliated party the sum of $15,000.00 in the form of Complainants’ personal check. c. Respondent and related plaintiffs in Arizona Superior Court Case No. CV2008-050194 shall enter into a stipulation with Complainants and their affiliated company, FSTW, LLC, to dismiss with prejudice all claims set forth in that action and/or that could have been brought in that action and shall otherwise notify the Superior Court of the settlement agreement. d. Further, Respondent and/or its related parties shall release any and all liens placed against Complainants’ residence which is the subject of this proceeding. Said release(s) shall be executed on or before February 20, 2009. e. The parties and/or their respective related parties agree that upon the completion of their respective obligations hereunder, they shall be deemed to have withdrawn any complaint in the instant matter as well as any pending matters in Superior Court arising out of the instant dispute and stipulate to the dismissal of those complaints. In addition, the parties and/or their respective related 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 their respective complaints including, without limitation, those before the Registrar of Contractors, in civil court and/or any other court, forum and/or tribunal including, specifically, Superior Court Case No. CV2008-050194. f. The parties shall memorialize the terms of this agreement with a formal written settlement agreement prepared by counsel for the parties which shall be executed by both parties within one (1) week of the hearing date. 4. The parties and/or counsel therefor shall give each other at least twenty-four (24) hours notice of any problems with and/or issues regarding compliance with their respective obligations under this settlement agreement. 5. All communications between the parties and/or their respective counsel regarding performance of the terms and conditions of the settlement agreement shall be memorialized in writing by facsimile and/or email. 6. The parties agree to act in good faith toward the accomplishment of each of their respective obligations under the terms of this settlement agreement. 7. 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. 8. 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 fore determination shall be whether the parties have performed their respective obligations under the terms of the aforesaid settlement agreement. 9. The parties were advised of the Registrar of Contractors’ license record keeping policies and procedures and agree that, as a result of the settlement, the 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. 10. 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 action on the part of each party. 11. 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.[2] Done this day, February 12, 2009.

_______________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

Registrar of Contractors Armando Contreras 3838 N. Central Ave. Phoenix, AZ 85012

By ________________________ ----------------------- [1] It must be noted that Alice Garner was noted as the sole Complainant in the instant matter. However, a review of the complaint reveals that “A. Garner” was the named Complainant and Alan Garner actually signed that document. At the hearing, the parties stipulated to the amendment of the pleadings to list both Alice and Alan Garner as named Complainants. [2] In the event of 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.

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