Vacate: Settlement Recommendation

07F-G2032-ROC · Registrar of Contractors · 2008-03-26

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 26, 2008 APPEARANCES: Taylor Development Company LLC dba J E T Development: James E. Taylor, Jr., member and qualifying party, appeared and was represented by counsel, Richard A. Alcorn. Commercial General Development LLC: Ken Campbell, member and qualifying party, appeared, pro per. Registrar of Contractors: Inspector Jim Hennessy 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. These consolidated matters convened for hearing at the time, date and place set forth in the Registrar of Contractors notices of hearing dated February 21, 2008 (Docket No. 07F-G2032-ROC) and February 29, 2008 (Docket No. 08F-G0085-ROC). 2. Prior to the presentation of any testimony or evidence, a discussion ensued off the record by and between the parties, Respondent’s counsel and Registrar of Contractors Inspector Jim Hennessy under the direction of the Administrative Law Judge. Subsequently, further discussion took place between the parties, Respondent’s counsel and Inspector Hennessy outside the presence of the undersigned. As a result of these discussions, 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 on upon one another. 3. The terms of the settlement agreement are as follows: a. Commercial General Development LLC, Respondent in Docket No. 07F- G2032-ROC and Complainant in Docket No. 08F-G0085-ROC (“Commercial”), shall remit to Taylor Development Company LLC dba J E T Development LLC, Complainant in Docket No. 07F-G2032-ROC and Respondent in Docket No. 08F- G0085-ROC (“J E T”), the total sum of Twenty-Two Thousand Dollars ($22,000.00) as follows: i. Seven Thousand Five Hundred Dollars ($7,500.00) on or before June 1, 2008; ii. Seven Thousand Five Hundred Dollars ($7,500.00) on or before August 1, 2008; and, iii. Seven Thousand Dollars ($7,000.00) on or before October 1, 2008. b. Payment of any of the above-referenced payments and/or any part thereof shall be made in the form of cashier’s check or other certified funds and shall be hand-delivered to J E T’s office located at 8147 N. 5th Street, Phoenix, AZ 85020. c. In the event Commercial fails to remit to J E T in a timely and proper fashion any of the above-referenced payments, the balance of the full settlement amount then outstanding shall immediately become due and payable to J E T. d. The parties agree that by entering into this settlement agreement they shall be deemed to have mutually withdrawn their respective complainants in Case Nos. G07-2032 and G08-0085 and stipulate to the dismissal of those complaints. In addition, 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 their respective complaints 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 for and/or fault arising out of the contract between the parties. 4. The parties shall give each other at least forty-eight (48) hours notice of any problems and/or issues regarding compliance with their respective obligations under this settlement agreement. 5. All communications between the parties 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 for 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 parties’ respective official records with the Registrar of Contractors will reflect the instant matters as closed complaints 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.[1] Done this day, March 26, 2008.

_______________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By _____________________ ----------------------- [1] 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