ALJDEC decisions subject to certification as final

08F-2612W-ROC · Registrar of Contractors · 2009-03-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 18, 2009 APPEARANCES: Complainants Jerri Diane and Daniel Best appeared on their own behalf. Kevin Giffin appeared on behalf of Respondent Giffin Construction, L.L.C. Orlo Knight appeared on behalf of Respondents O Knight Construction, L.L.C. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The hearing of this matter convened on March 18, 2009. Complainants Jerri Diane and Daniel Best appeared on their own behalf. Kevin Giffin appeared on behalf of Respondent Giffin Construction, L.L.C. (“Giffin”). Orlo Knight appeared on behalf of Respondents O Knight Construction, L.L.C. (“O Knight”). Based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are submitted to the Director of the Arizona Registrar of Contractors. FINDINGS OF FACT 1. Prior to the commencement of the hearing, outside the presence of the Administrative Law Judge, the parties concluded a settlement agreement that was signed by the parties and submitted to the tribunal, the terms of which were read upon the record, a copy of which is attached hereto as Exhibit “A”. 2. The terms of the aforementioned settlement agreement are as follows: This email is to confirm that all parties at the inspection today agreed that the contract was made and the work was performed under the ROC license of O. Knight Construction, LLC, that O. Knight Construction, LLC and Giffin Construction will waive any claim for the remaining balance of the contract (roughly $33,000), and that all ROC complaints against both licenses will be dropped and waived by Daniel and Jerri Best. The contract and relationship between the parties will be deemed closed out, and all parties will be mutually released from any liability to one another. None of the parties will pursue further complaints or legal action against one another. In other words we put this behind us and go on with our lives.

3. The Administrative Law Judge advised the parties that the Registrar of Contractors will close the complaint as having been resolved, settled, or withdrawn. Giffin objected to the closure of the complaint and requested that it be dismissed. The Administrative Law Judge informed the parties that the Registrar of Contractors will not dismiss a matter unless such a recommendation is made after a hearing on the merits. Thereafter, Giffin requested that the matter against its contracting license proceed to hearing. The Bests did not present any evidence in support of the allegations set forth in the complaint herein. 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 of settlement which should be recognized and given effect by all tribunals. 2. The Administrative Law Judge finds the terms of the foregoing settlement as to Case Nos. 08-2612W and 08-2612X to be the product of knowing and voluntary action on the part of each party. 3. By failing to present any evidence in support of the allegations set forth in the complaint herein against Giffin, the Bests failed to sustain the required burden of proving the charges against Giffin set forth in the Citation and Complaint by a preponderance of the evidence, and consequently the instant record does not support any finding that Giffin has violated the provisions of A.R.S. § 32-1154(A). See Arizona Administrative Code Rule R2-19-119. RECOMMENDED ORDER Based on the settlement agreement between the Bests and O Knight, the hearing in Case Nos. 08-2612W and 08-2612X is vacated the matters are hereby remanded to the Registrar of Contractors for appropriate disposition. In light of the lack of prosecution by the Bests, it is recommended that the Citation against Giffin, together with the Complaint upon which it is based, in Case No. 08-2612, be dismissed. 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 40 days from the date of that certification. Done this day, March 30, 2009.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 North Central Avenue Phoenix, AZ 85012

By ___________________________

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