Vacate: Settlement Recommendation

08F-M0197-ROC-com · Registrar of Contractors · 2009-09-29

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: September 22, 2009 and September 29, 2009.

APPEARANCES: >The Complainants were represented by their attorney, Richard C. Gramlich, Esq. >The Respondent was represented by its attorney, Corey R. Foley, Esq.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth ________________________________________________________________

Based upon the entire record, the following Findings of Fact, Conclusions of Law and Vacating and Remanding Order on Compliance Hearing are made.

FINDINGS OF FACT

1. At the outset of the further Compliance Hearing session in the above-entitled matter, counsel for both parties advised the Administrative Law Judge that the parties had concluded a settlement agreement, the essential terms of which were read upon the record. A written and mutually signed letter

agreement confirming the essential aspects of the parties’ settlement was introduced as a hearing exhibit. The balance of the Compliance Hearing was thereupon recessed with the mutual understanding that this tribunal shall enter its Order vacating the balance of the administrative Compliance Hearing and remanding this matter to the Registrar of Contractors, as the forwarding Department, for appropriate further action in terminating this administrative matter.

2. Pursuant to the terms and conditions of the concluded settlement agreement, the Respondent agreed to pay or tender and the Complainants agreed to accept a specified total monetary sum, payable no later than a stated deadline date, in full satisfaction of any and all claims arising under the parties’ prior dealings. The Complainants also agreed to withdraw their filed complaint in this administrative action and to consent to the entry of an Order by the Registrar closing the within Citation as resolved and settled. Both parties further agreed to the dismissal with prejudice of their pending civil lawsuit as well as of the pending Judicial Review Action. Lastly, the parties’ settlement agreement expressly contemplated that both parties had agreed to mutually release each other from any and all claims, known or unknown, arising out of their previous dealings.

3. These administrative disciplinary proceedings are effectively cut short by the parties’ entry into the above-described settlement agreement which is to be presented to the Registrar of Contractors for approval and adoption. Consequently, Respondent must be and hereby is advised that any future alleged and proven breach of the payment terms of the settlement agreement will not only constitute grounds for the re-opening of the Compliance Hearing but also shall warrant treatment as a circumstance in aggravation.

4. 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.

5. The terms of the foregoing settlement agreement 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. Additionally, the entry by the parties into the above- described settlement agreement must be deemed to be tantamount to compliance by Respondent with the terms and conditions of the previously entered Order by the Registrar in this matter.

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 Compliance Hearing of this matter may and should be properly treated as the substantial equivalent of compliance by Respondent with the terms and conditions of the Registrar’s prior Order.

3. The parties’ settlement agreement, having been found to be reasonable and voluntarily made, warrants the termination of the instant Compliance Hearing and the remanding of the matter to the forwarding agency for further appropriate action. …..

ORDER VACATING BALANCE OF HEARING AND REMANDING MATTER TO FORWARDING AGENCY

In view of the foregoing, IT IS ORDERED that the balance of the Compliance Hearing in this matter be and hereby is VACATED, and IT IS FURTHER ORDERED that this case be REMANDED TO THE REGISTRAR OF CONTRACTORS for appropriate action.

Dated: October 1, 2009. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

William A Mundell, Director Registrar of Contractors Legal Department 3838 North Central Avenue (Suite 400) Phoenix, AZ 85012 - 1906

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