Vacate: Settlement Recommendation

08F-3221-ROC · Registrar of Contractors · 2009-08-03

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 27, 2009 APPEARANCES: Complainant: Julianne Bogers appeared and was represented by counsel, John C. Marcolini. Respondent: Debbie Sorensen, member, and James Sorenson, member and qualifying party, appeared and were represented by counsel, Michael W. Thal. Registrar of Contractors: Inspector Randy Cason 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. This matter convened for hearing at the time, date and place set forth in this tribunal’s April 16, 2009 Order Granting Continuance. 2. Prior to the presentation of any testimony or evidence, a discussion ensued off the record by and between the parties, their respective counsel and Registrar of Contractors Inspector Randy Cason under the direction of the Administrative Law Judge. Thereafter, the parties and counsel engaged in further settlement discussion 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 one another. 3. The terms of the settlement agreement are as follows: a. Complainant and Respondent agree that by entering into this settlement agreement Complainant shall be deemed to have withdrawn the instant Complaint/Citation and Complaint and Respondent agrees to dismiss with prejudice its complaint against Complainant in Maricopa County Superior Court Case No. CV2008-054043, with each party to bear their own attorneys’ fees and costs. In addition, the parties further 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 and including, specifically, Maricopa County Superior Court Case No. CV2008-054943. 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 which gave rise to this matter and the above- referenced Superior Court case; and, b. Respondent shall provide to Complainant a full and unconditional waiver and release of all liens it placed and/or caused to be placed upon the subject property. 4. The parties agree to act in good faith toward the accomplishment of each of their respective obligations under the terms of this settlement agreement. 5. 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. 6. 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 is filed, the sole issue for determination shall be whether the parties have performed their respective obligations under the terms of the aforesaid settlement agreement. 7. 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 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. 8. 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. 9. 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, August 3, 2009.

______________________ Brian E. Smith Administrative Law Judge

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

William A. Mundell, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

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