Vacate: Settlement Recommendation

09F-L0226-ROC · Registrar of Contractors · 2009-11-04

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 3, 2009 APPEARANCES: Complainant: John Jehle, corporate officer, appeared, pro per. Respondent: Cory Simoneau, managing member and qualifying party, appeared telephonically[1] and was represented by counsel, Kenneth L. Gregory. 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 via videoconference at the time, date and place set forth in the September 25, 2009 Notice of Hearing issued by the Registrar of Contractors. 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.[2] Thereafter, additional discussion took place between the parties and Respondent counsel outside the presence of the undersigned.[3] Subsequently, further discussion occurred between the parties, Respondent counsel and Mr. Simoneau (telephonically) under the direction of the Administrative Law Judge. 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. Respondent will remit to Complainant the sum of Four Thousand Dollars ($4,000.00) as and for full and complete payment of all presently outstanding balances due for work performed and/or materials provided Respondent on various projects as set forth in the instant Complaint; b. Payment of the above-referenced sum shall be made in two (2) equal installments of Two Thousand Dollars ($2,000.00). The first installment shall be made on or before thirty (30) days from the date of the hearing, or by December 3, 2009; the second shall be made on or before the expiration of sixty (60) days from the date of the hearing, or by January 2, 2010; c. Payment of the above-referenced $4,000.00 settlement amount and/or any part thereof, shall be made in the form of a cashier’s check or other certified funds and picked up by Complainant at Respondent’s office located at 2440 Adobe Road, Ste. 101, Bullhead City, Arizona; 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 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 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 by the terms hereof they hereby fully settle, release and/or waive 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 various projects and/or invoices referenced therein including, without limitation, those before the Registrar of Contractors, in civil court and/or any other court, forum and/or tribunal. 10. 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. 11. 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. 12. 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. 13. 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.[4] Done this day, November 3, 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] Respondent’s belated motion to allow Mr. Simoneau to appear telephonically filed October 30, 2009, was addressed prior to the hearing and granted. [2] Participating in the initial discussion were John Jehle on behalf of Complainant, Adele Christoffersen, bookkeeper and officer manager, for Respondent and counsel for Respondent. [3] During the course of the further discussion off the record, counsel for Respondent related that he had been in telephonic conference with Cory Simoneau, Respondent’s managing member and qualifying party, who participated indirectly in the negotiations. [4] 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