Vacate: Settlement Recommendation

09F-2228-ROC · Registrar of Contractors · 2009-08-31

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 12, 2009 APPEARANCES: Complainant: Brian K. Brown, member, appeared, pro per. Respondent: David A. Monk, corporate officer and qualifying party appeared, pro per. Registrar of Contractors: Inspector Beau Cruz appeared on behalf of the Registrar of Contractors. ADMINISTRATIVE LAW JUDGE: Brian E. Smith ________________________________________________________________ Having 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 June 19, 2009. 2. Prior to the presentation of any testimony or evidence, a discussion ensued off the record by and between the parties and Registrar of Contractors Inspector Beau Cruz 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 upon one another. 3. The terms of the settlement agreement are as follows: a. On or before May 31, 2010, Respondent will remove and replace the asphalt on the subject property located at 1435 E. Old West Highway, Apache Junction, Arizona (“project”) in the following location: from the second gate back to the retention; b. In conjunction with subparagraph (a) above, on August 13, 2009, Complainant will place a cargo trailer on the area of asphalt between the first and second gates to determine whether that area will fail. In the event the subject trailer causes the asphalt to sink and/or otherwise fail, Complainant will notify Respondent and Respondent shall then visit the project, review the situation and thereafter remove and replace the asphalt in the area between the first and second gates within the above-referenced time frame. Absent any such failure, Respondent shall not be required to perform any repair and/or replacement work in that area; and, c. On or before September 2, 2009, Respondent will perform and/or cause to be performed any remedial work regarding any presently existing portions of asphalt that have sunk and/or been displaced. 4. The parties shall give each other at least forty-eight (48) hours notice of the scheduling of corrective work to be performed, inspections to be done and/or any problems regarding compliance with their respective obligations under the settlement agreement. 5. All communications between the parties and/or the representatives regarding performance of the terms and conditions of the settlement agreement shall be memorialized in writing by facsimile and/or email. 6. Respondent shall utilize only duly licensed subcontractors to perform work on the project. 7. Complainant shall provide Respondent and/or its subcontractor(s) with reasonable access to the property in order to perform all required corrective work. 8. Respondent and/or its subcontractor(s), as applicable, shall complete all required corrective work hereunder in accordance with Registrar of Contractors minimum workmanship standards. 9. The parties agree to act in good faith toward the accomplishment of each of their respective obligations under the terms of the settlement agreement. 10. 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. 11. Both parties acknowledge that they are authorized to act on behalf of themselves or their company and enter into the settlement agreement and do so knowingly, voluntarily and on a presumption of good faith. 12. 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. 13. The parties were advised of the Registrar of Contractors’ license record 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. 14. 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. 15. 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, August 31, 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