Vacate: Settlement Recommendation

07F-M1232-ROC · Registrar of Contractors · 2007-08-14

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 7, 2007 APPEARANCES: Complainant: Randy Mullen appeared, pro per. Respondent: Brent Ford[1] appeared, pro per. 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. The matter convened for hearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing date June 18, 2007. 2. Prior to the presentation of any testimony or evidence at the hearing, a discussion ensued off the record by and between the parties under the direction of the Administrative Law Judge. As a result of such 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 on one another. 3. The terms of the settlement agreement are as follows: a. Respondent shall take whatever steps necessary to reinstate its Class K-21 contractor’s license, No. 219765, which was suspended July 18, 2007 for lack of bond. b. Respondent shall refund to Complainant the $2,712.01 down payment made by Complainant pursuant to the October 19, 2006 contract between the parties. Payment of the entire sum shall be made on or before the expiration of sixty (60) days from the date of the hearing, or by September 6, 2007. c. Payment of the above-referenced settlement agreement sum and/or any part thereof, shall be made in the form of cashier’s check or other certified funds and shall be remitted to Complainant at Respondent’s bank, the Bank of America branch located at the corner of Greenfield Road and Chandler Blvd., Gilbert, Arizona. Communications regarding Respondent’s payment(s) shall be made through Brent Ford and/or with said bank through its branch vice president, “John.”[2] d. In the event Respondent fails to remit the entire amount due Complainant hereunder by September 6, 2007 as above-provided, Respondent’s Class K-21 license, No. 219765, shall be suspended until such time as the entire amount is remitted to Complainant. e. Upon Respondent’s remitting the entire amount due Complainant hereunder, Complainant shall notify the Registrar of Contractors and Office of Administrative Hearings in writing of such compliance. 4. The parties shall give each other at least twenty-four (24) hours notice regarding payments to be made hereunder and/or of any problems 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. In the event Respondent satisfactorily completes its obligations set forth in paragraph 3 hereof within the stated period, 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. 7. The parties agree to act in good faith toward the accomplishment of each of their respective obligations under the terms of the settlement agreement. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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 agreement 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.[3] Done this day, August 14, 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] At the hearing, Mr. Ford advised that he was the vice president of and qualifying party for Respondent. A subsequent review of the Registrar of Contractors database by the Administrative Law Judge indicates that Scott Anthony Ford is a member and the designated qualifying party for the license. [2] At the time of the hearing, Mr. Ford did not recall “John’s” last name but indicated that he (John) was the banker with whom Respondent routinely does business. [3] 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