Vacate: Settlement Recommendation

09F-2734-ROC · Registrar of Contractors · 2009-11-05

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 5, 2009.

APPEARANCES: >The Complainants were represented by their attorney, Patricia A. Premeau, Esq. >The Respondent appeared through its President and qualifying party, Ronald August Wehe, Jr.

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 mid- day recess taken during the presentation of Complainants’ case-in-chief, the parties advised 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 no later than a stated deadline date, in full satisfaction of any and all claims arising under the parties’ prior dealings. Such total sum was to and did include the additional separate payment of Complainants’ attorney’s fees up to a maximum dollar amount as will be communicated to Respondent shortly after the hearing date. 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. 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 except with respect to latent defects.

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 Complainants’ 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 Complainants that they were 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 be and hereby is VACATED, and IT IS FURTHER

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

Dated: November 6, 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