ALJDEC decisions subject to certification as final

08F-0272-ROC · Registrar of Contractors · 2008-09-02

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 26, 2008 APPEARANCES: Attorney John Lohr appeared for, and with, Complainants; Attorney Thomas Luikens appeared with CEO and Qualifying Party Daniel Meador and Secretary-Treasurer Joel Fredericks for Respondent ADMINISTRATIVE LAW JUDGE: Michael G. Wales _____________________________________________________________________ Based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT 1. Following prolonged discussions prior to the presentation of evidence and testimony at the scheduled hearing, the parties confirmed that they had concluded a settlement agreement, the essential terms of which were set forth in a written settlement agreement executed by the parties and attached hereto as “Exhibit A”. 2. Pursuant to the provisions of the parties’ settlement agreement, the parties and their attorneys agreed to create, and circulate for signature, a comprehensive settlement agreement that accomplishes termination of all disputes between the parties, including the following agreements: a. Complainants agreed to withdraw their instant complaint and to consent to the entry of an Order closing the within Citation; b. Complainants agreed to withdraw all complaints against Respondent and its qualifying party and agreed not to file any further complaints with the Registrar against Respondent and its qualifying party; c. Complainants agreed not to file a complaint against Joel Fredericks with the Arizona Department of Real Estate; d. Respondent will provide Complainants with an unconditional lien waiver; e. Respondent will release its Notice and Claim of Mechanic’s Lien and Notice of Lis Pendens filed in Maricopa Superior Court upon receipt of payment of $97,500.00 by Complainants; f. The parties shall dismiss the Complaint and Counterclaim filed in Maricopa County Superior Court as to all parties. 3. Additionally, the parties mutually agreed that their respective entitlements and obligations with respect to future warranty work as to the framing work, retaining wall construction and pad construction would remain unchanged. 4. Respondent was advised that a breach of the terms of the settlement agreement could constitute grounds for the filing of a request for a compliance hearing or a new complaint, as well as a factor in aggravation, if sustained. 5. The administrative disciplinary proceedings hereunder are effectively cut short by the entry into the above-described settlement agreement. 6. All rights and defenses of the respective parties are deemed to have been merged into the settlement agreement, and if any request for a compliance hearing or new complaint alleging a breach of the settlement agreement is filed in the future, the sole issue for determination shall be whether Respondent has performed its obligations under the terms of the aforesaid settlement agreement. 7. 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. 8. The terms of the foregoing settlement agreement, summarized above and attached hereto as “Exhibit A”, 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 closing of the charges contained in the Citation and Complaint.

RECOMMENDED ORDER In view of the foregoing, it is recommended that the entire Citation and Complaint in Case Number 08-0272 shall be closed as settled.

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 will be forty (40) days from the date of that certification.

Done this day, September 2, 2008.

Office of Administrative Hearings

__________________________ Michael G. Wales 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 ___________________________

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