Vacate: Settlement Recommendation

09F-2418-ROC · Registrar of Contractors · 2009-10-07

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 1, 2009 APPEARANCES: Complainant: Rebecca Lucas appeared, pro per. Respondent: Kenneth Marcel Thibert, owner and qualifying party, appeared and was represented by counsel, John G. Ryan. Registrar of Contractors: Inspector Mark Alyea appeared on behalf of the Registrar of Contractors. 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’ July 29, 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, counsel for Respondent and Registrar of Contractors Inspector Mark Alyea under the direction of the Administrative Law Judge. Thereafter, further discussion took place between the parties, Respondent counsel and Mr. Alyea outside the presence of the undersigned. As a result of these discussions, 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. In exchange for Complainant’s withdrawal of her Complaint, Respondent shall pay Complainant the sum of Fifteen Thousand Dollars ($15,000.00);[1] b. Payment of the above-referenced sum shall be made in monthly installments of One Thousand Dollars ($1,000.00) commencing November 1, 2009, and continuing on the first of each month for fourteen months or through January 1, 2011; c. Payment of the above-referenced settlement sum and/or any part thereof shall be made in the form of cashier’s check or other certified funds and delivered to Complainant in a manner sufficient to evidence payment as agreed to by the parties, e.g., hand-delivery to Complainant at her residence located at 5018 N. 77th Street, Scottsdale, Arizona 85250, certified mail, return receipt requested, wire transfer, etc.; and, d. This settlement agreement constitutes a full settlement, release and/or waiver of any and all actual and/or potential claims or causes of action each party has and/or may have against the other party arising out of the subject matter of the instant Complaint pertaining to the subject property including, without limitation, those before the Registrar of Contractors, in civil court and/or other court, forum and/or tribunal. The parties further agree that by this settlement agreement neither party acknowledges any responsibility for and/or fault arising out of the contract between the parties which gave rise to the instant Complaint. 4. The parties shall give each other at lease twenty-four (24) hours notice of any problems regarding the compliance with their respective obligations under this settlement agreement. 5. All communications between the parties and counsel 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 themselves and/or 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 her 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 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. 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.[2] Done this day, October 7, 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] The parties represented that, post-hearing, they intended to prepare and execute a short form settlement agreement to evidence the terms of their agreement. At that time, the Administrative Law Judge advised the parties and Respondent’s counsel that, for purposes of resolving the instant matter, the record herein and this settlement agreement, will govern. [2] 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