Vacate: Settlement Recommendation

08F-5127-ROC · Registrar of Contractors · 2009-05-06

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 20, 2009 APPEARANCES: Complainant: Dean Mundy, steel manager, appeared, pro per. Respondent: Karl David Maerz, 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 Hearing dated March 5, 2009. 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 on one another. 3. The terms of the settlement agreement are as follows: a. The parties stipulated and agreed that, as of the date of the hearing, Respondent owed Complainant Five Thousand Five Hundred Ninety-Two and 58/00 Dollars ($5,592.58) for steel provided to Respondent plus applicable interest (finance charges); b. The parties further stipulated and agreed that interest (finance charges) has accrued, and shall continue to accrue, on any outstanding balance due. c. Payment of the above-referenced sum shall be made in monthly installments of at least Two Hundred Fifty Dollars ($250.00) commencing May 15, 2009, and continuing on the fifteenth (15ht) of each successive month until the entire outstanding balance, plus any applicable interest (finance charges), is paid in full. d. Payment of the above-referenced settlement agreement and/or any part thereof shall be made in the form of a cashier’s check or other certified funds and hand-delivered to Complainant at its offices located at 2607 N. Country Club Drive, Scottsdale, Arizona 85256; e. Commencing the end of May, 2009 and continuing each successive month, Complainant shall submit to Respondent a written statement reflecting the then existing balance due hereunder plus any accrued interest (finance charges) and taking into account any payment(s) made by Respondent. 4. Upon Respondent’s satisfactory completion of its obligation under this settlement agreement as set forth in Paragraph 3 hereof, Complainant shall be deemed to have withdrawn its underlying disciplinary Complaint and, together with Respondent, consented to the entry of an Order by the Registrar of Contractors closing the issued Citation as resolved/settled/withdrawn. 5. The parties shall give each other at least forty-eight (48) hours notice of any problems regarding compliance with their respective obligations under the settlement agreement. 6. All communications between the parties regarding performance of each of their respective obligations under the terms of this settlement agreement shall be memorialized in writing by facsimile and/or email. 7. The parties agree to act in good faith toward the accomplishment of each of their respective obligations under the terms of this 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 is 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. 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, 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. 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 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.

RECOMMENDED 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. Done this day, May 6, 2009.

________________________ Brian E. Smith Administrative Law Judge

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

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

By ___________________________ -----------------------

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