Vacate: Settlement Recommendation

09F-2117-ROC · Registrar of Contractors · 2009-10-20

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 20, 2009.

APPEARANCES: >The Complainant was represented by his attorney, Robert L. Stewart, Jr., Esq. >The Respondent was represented by its attorney Geoffrey S. Kercsmar, 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 are made.

FINDINGS OF FACT

1. Following discussions between the parties during a prolonged recess shortly after the formal convening of the scheduled hearing and prior to the introduction of any evidence or testimony, the parties informed the Administrative Law Judge that they had concluded a settlement agreement, the essential terms of which were read upon the record. The balance of the hearing was thereupon

recessed with the mutual understanding that this tribunal shall enter its Order vacating the balance of the administrative 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 Complainant agreed to accept a specified total monetary sum, payable through legal counsel no later that a stated deadline date, plus a further additional monetary amount to become payable within a described time period following receipt of a certain notification from Complainant after having determined the quantum of identified materials and labor charges incurred or to be incurred through a third party. These payments from Respondent to Complainant were deemed to be made and accepted by the respective parties in full satisfaction of all matters and issues involved in the underlying administrative proceedings. The Complainant also agreed to withdraw his 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. Lastly, the parties’ settlement agreement expressly contemplated that both parties had agreed to mutually release each other from any and all claims 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 filing of a new complaint or a timely petition for rehearing but also shall warrant treatment as a circumstance in aggravation.

4. The concluded settlement agreement effectively constituted a merger of all of Complainant’s rights and all of Respondent’s defenses. If any future proceedings should become necessary, the sole issues before the Registrar shall be whether the parties have complied with their respective obligations under the parties’ settlement.

5. 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 Complainant that he was not entitled to greater benefits.

6. 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.

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 hearing of this matter, having been found to be reasonable and voluntarily made, warrants the termination of the instant 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 hearing in this matter shall be and hereby is VACATED, and IT IS FURTHER

ORDERED that this case shall be REMANDED TO THE REGISTRAR OF CONTRACTORS for appropriate action.

Dated: October 21, 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

-----------------------

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