Vacate: Settlement Recommendation

07F-M1909-ROC-rhg · Registrar of Contractors · 2008-09-09

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 9, 2008 APPEARANCES: Complainant: Jan Pendergast, corporate officer, appeared, pro per. Respondent: Wayne Shill, corporate officer and qualifying party, 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 Rehearing dated July 30, 2008. 2. Prior to the presentation of any testimony or evidence, 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 upon one another. 3. The terms of the settlement agreement are as follows: a. On or before 5:00 p.m. on September 10, 2008, Respondent shall remit to Complainant the total sum of Two Thousand Four Hundred Seven and 50/00 Dollars ($2,407.50).[1] b. Payment of the above-referenced amount shall be made in the form of cashier’s check or other certified funds and shall be picked up by a representative of Complainant at Respondent’s office located at 1444 N. Higley Rd., Gilbert, Arizona 85234. c. In the event Respondent timely remits the above-referenced settlement agreement sum as set forth in subparagraphs (a) and (b) hereof, Complainant shall be deemed to have withdrawn its underlying complaint and consented to the entry of an Order by the Registrar of Contractors closing the issued Citation with prejudice as resolved/settled/withdrawn. 4. Both parties acknowledge that they are authorized to enter into the settlement agreement 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. 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 the settlement agreement. 7. 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. 8. 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. 9. 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. 10. 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, September 9, 2008.

_______________________ Brian E. Smith Administrative Law Judge

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

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

By __________________________ ----------------------- [1] The parties agreed and stipulated that the actual amount due Complainant from Respondent on the subject “Ritz” project set forth in the complaint was $3,595.00. An additional $610.00 was due Complainant from Respondent on a “Biltmore” project which Respondent agreed to include in this settlement agreement. The parties agreed to divide equally the $3,595.00 Ritz amount. As a result, Respondent is to remit to Complainant $1,797.50 (Ritz) plus the referenced $610.00 Biltmore sum for a total of $2,407.50. [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