Vacate: Settlement Recommendation

09F-1253-ROC · Registrar of Contractors · 2009-10-16

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 16, 2009 APPEARANCES: Complainant: Pete Knudson, general manager, appeared, pro per. Respondent: Timothy Dykes, member 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. This matter convened for hearing at the time, date and place set forth in the Registrar of Contractors’ August 3, 2009 Notice of Hearing. 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 Eight Thousand Nine Hundred Seventy- Six and 62/00 Dollars ($8,976.62) for supplies provided Respondent for its excavation business; b. Payment of the above-referenced sum shall be made in monthly installments of at least Five Hundred Dollars ($500.00) commencing April 16, 2010, and continuing on the 16th of each successive month until the entire balance is paid in full, unless otherwise mutually agreed to in writing by the parties; c. In the event Respondent fails to timely make any portion of any month’s payment, Complainant shall notify the Registrar of Contractors in writing of such non-payment and Respondent’s Class C-02 License No. 217259 shall be immediately suspended until the Registrar of Contractors receives written verification from Complainant that the entire balance then due and owing is paid in full by Respondent; d. Any payment by Respondent in excess of the amount due for that particular month does not excuse Respondent from making any following month’s payment unless mutually agreed to in writing by the parties; e. Payment of the above-referenced settlement agreement sum 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 one of its four (4) offices located in Gilbert, Phoenix, Glendale or Avondale, Arizona, the exact addresses of which were set forth in a business card provided Respondent by Complainant at the hearing; and, f. Complainant will notify the Registrar of Contractors in writing of Respondent’s payment of the entire amount due under this settlement agreement. 4. The parties shall give each other at least twenty-four (24) hours notice of any problems regarding compliance with their respective obligations under the settlement agreement. 5. All communications between the parties regarding performance of the terms and conditions of the settlement agreement shall be memorialized in writing by facsimile and/or email. 6. The parties agree to act in good faith toward the accomplishment of each of their respective obligations under the terms of this settlement agreement. 7. Both parties acknowledge that they are authorized to act on behalf of their company and enter into the settlement agreement and do so knowingly, voluntarily and on a presumption of good faith. 8. By entering into this settlement agreement, Complainant shall be deemed to have withdrawn its Complaint and consented to the entry of an Order by the Registrar of Contractors closing the issued Citation with prejudice as resolved/settled/withdrawn. 9. The parties further 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 keeping policies and procedures and agree that, as a result of the settlement, Respondent’s official public record with the Registrar of Contractors will reflect the instant matter as a closed complaint under the category of resolved/settled/withdrawn. 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 act 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.

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 this matter to the Registrar of Contractors for appropriate further action.[1] Done this day, October 16, 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 ___________________________ ----------------------- [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