ALJDEC

98F-2479-ROC · Registrar of Contractors · 1999-05-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

The above-entitled matter came on for hearing on for seven separate sessions of hearing commencing on December 10, 1998 and concluding on May 10, 1999. On each occasion, the Complainant was represented by its attorney, Stephen I. Dokken, Esq. and the Respondent was represented by its attorney, James B. Rolle III, Esq.

FINDINGS OF FACT

1. At the outset of the seventh session of hearing, and after lengthy discussions between the parties and their respective attorneys, with the Administrative Law Judge remaining present for a substantial portion of such discussions, the parties concluded an agreement or stipulation of settlement, the essential terms of which were read onto the record.

2. Pursuant to the terms of the parties’ settlement agreement, and motivated by some realistic progress demonstrated by both parties since the last hearing session in resolving some or all of their pending disputes, the Complainant agreed to withdraw its Complaint (Number 98-2479) filed with the Registrar and to consent to the entry of an

Order by the Registrar of Contractors closing the Citation; as subsequently amended; provided however and subject to the condition that such withdrawal and closing would be expressly without prejudice to the future filing by Complainant of a timely petition for rehearing or the filing by Complainant of a new, separate administrative complaint if the parties became unable to substantially resolve their conflicting positions or if the manner and progress of any attempts by Respondent to resolve issues was deemed inappropriate, unresponsive or unacceptable to Complainant.

3. It was further mutually agreed that Respondent would not oppose any action by Complainant seeking to revive any or all of the issues presented under the original complaint, thereby restoring same to the hearing process, whether by way of a rehearing petition filed before the effective date of the Order to be entered hereunder or by separately filed complaint if after such date, nor would Respondent assert the Statute of Limitations as an affirmative defense to any new complaint. It was expressly understood that the contemplated Closing of this matter was to be provisional, and conditioned upon Complainant not seeking to reopen or revive the issues within a reasonable time period, mutually determined by the parties to be not later May 10, 2000, which date is one year after the date of the last hearing session.

4. It was additionally mutually agreed, as part of the overall settlement agreement, that in the event this administrative matter is reopened or revived, the record already compiled in this case consisting of all testimonial and documentary evidence presented, admitted or objected to during the course of all prior hearing sessions shall be preserved and utilized in the ultimate decision-making process, and that any future hearing or rehearing would consist of the resumption of the parties’ evidentiary presentations from and after the point at which the instant hearings

terminated. Similarly, it was further understood that if the Registrar rejects the below recommendation to close this case subject to the above- described applicable conditions, as agreed, this matter shall be returned to the hearing calendar and shall resume at the point at which the proceedings were interrupted and terminated as a results of the parties’ stipulated settlement.

5. Complainant’s entry into the settlement agreement and the withdrawal of its underlying complaint was not and is not to be construed as any form of waiver of its future rights either to timely seek a rehearing or to file a new complaint if the provisional Closing Order is allowed to become final.

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 provisional closing of the charges contained in the Citation and Complaint.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that on the effective date of the Registrar’s Order (35 days after the date of mailing by the Registrar) the entire Citation and Complaint in Case Number 98-2479 shall be closed without prejudice to either the timely filing by Complainant of a petition for rehearing prior to the Order’s effective date or to the separate filing by Complainant of a separate complaint against the Class B license of Respondent no later than May 10, 2000.

Dated: May 14, 1999. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert. I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Michael P. Goldwater, Director Registrar of Contractors 800 West Washington Street (6th Floor) Phoenix, AZ 85007

ATTN: Joyce Armijo -----------------------

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