Vacate: Settlement Recommendation

2008A-29470192-ROC · Registrar of Contractors · 2010-07-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: July 9, 2010 at 8:00 a.m. APPEARANCES: Complainant Phoenix Caulking and Glazing Co. appeared through Gerald Rockley, its President; Respondent Troon Construction L.L.C. appeared through Raymond Garcia, its Managing Member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky ________________________________________________________________

FINDINGS OF FACT 1. The Registrar of Contractors (“the Registrar”) has issued licenses to both Complainant and Respondent. 2. Complainant made a complaint against Respondent’s contractor’s license for alleged nonpayment of monies due under several subcontracts. 3. The complaint proceeded to hearing on January 21, 2009, in the Office of Administrative Hearings before Administrative Law Judge (“ALJ”) Allen Reed. At the hearing, the parties negotiated a settlement that required Respondent to make certain payments to Complainant. 4. Based on the parties’ settlement, ALJ Reed vacated the hearing. 5. On February 24, 2009, the Registrar accepted the terms of the settlement, finding them to be fair and reasonable under the circumstances, and ordered the case be closed as settled. 6. On April 27, 2010, the Registrar reopened the complaint due to Complainant having informed the Registrar that Respondent had breached the settlement agreement by failing to make the payment due for the month of September. The Registrar ordered that a compliance hearing be scheduled in the expedited course of docketing. 7. A compliance hearing was held on July 9, 2010. 8. At the compliance hearing, the parties agreed that Respondent had paid Complainant $55,000.00 of the $183,283.45 that was due under the original settlement agreement. In September 2009, Respondent had stopped making payments. 9. The parties also agreed that Respondent breached the agreement due to economic conditions in the construction industry that were beyond Respondent’s control. 10. The parties agreed to modify the original settlement agreement. The terms of the modified settlement were read onto the record, as follows: (1) Respondent would resume making the $5,000.00/ month payments required by the original settlement agreement on or before January 9, 2011;

(2) Respondent would submit monthly written reports to Complainant by facsimile or e-mail on the status of its contracting business and prospects for paying Complainant, starting on August 1, 2010; and

(3) Respondent would solicit bids from Complainant for possible subcontracts on any construction project that Respondent undertook, until Respondent had paid the full amount due under the modified settlement agreement.

11. Complainant’s representative agreed that the Registrar should close the complaint for nonpayment, without prejudice to Complainant’s right to request another compliance hearing if Respondent breaches the terms of the modified settlement agreement. 12. According to the Registrar’s record, Respondent’s license was suspended by operation of law on November 13, 2009, for lack of bond. Respondent’s representative avowed that it was in the process of obtaining a new bond and that it would not submit bids for or perform contracting work until its license was reinstated. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. The law favors settlement of disputes. Adverse parties may adjust their differences by entering into settlements at any stage of a proceeding prior to the final judgment or decision. The parties’ agreement to modify the settlement agreement was voluntary and reasonable under the circumstances. The modified settlement agreement warranted termination of the hearing on the merits and warrants closure of this case. ORDER VACATING HEARING ON THE MERITS Based on the foregoing IT IS ORDERED vacating the hearing on the merits that had been scheduled in this matter. IT IS FURTHER ORDERED remanding Case No. 2008-29470192 (formerly 08- 2947) under A.A.C. R2-19-111(3) to the Director of the Arizona Registrar of Contractors for further action. Done this day, July 26, 2010.

_________________________________ Diane Mihalsky Administrative Law Judge Copy transmitted by mail this _____ day of July, 2010 to: William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012 Gerald Rockley, President Phoenix Caulking Glazing Co. 14820 N. 31st Dr. Phoenix, AZ 85053-4808 Raymond Garcia, Managing Member Troon Construction L.L.C. 1515 N. Greenfield Rd., Ste. 101 Mesa, AZ 85205-4003

By _______________________________

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