ALJDEC

98F-A0422-ROC · Registrar of Contractors · 1999-09-27

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 22, 1999.

APPEARANCES: Complainant, Acklin Brothers Construction, was represented by its attorney, Scott K. Risley, Esq.

Respondent, Progressive Foundations, Inc., was represented by its attorney, John G. Mull, Esq.

Respondent, American Shotcrete Construction, Inc., was represented by its attorney, Craig Mousel, Esq.

ADMINISTRATIVE LAW JUDGE: Robert. I. Worth _____________________________________________________________________

Based upon the entire record, the undersigned Administrative Law Judge hereby submits the following Findings of Fact, Conclusions of Law and Recommended Order for the review, evaluation, approval, and adoption by the Registrar of Contractors.

FINDINGS OF FACT

1. Immediately prior to the formal opening of the scheduled hearing and following a prolonged discussion between the Administrative Law Judge and legal counsel for each of the named parties to the above-captioned consolidated matters, all parties concluded an agreement of mutual understanding, the essential terms of which were read onto the record.

2. Pursuant to the terms of the aforesaid agreed mutual understanding, Complainant, Acklin Brothers Construction (herein called “Acklin”), agreed to withdraw both of its complaints filed, respectively, against Progressive Foundations, Inc. (herein called “Progressive”) in Case Number A98-0416 and against American Shotcrete Construction, Inc. (herein called American Shotcrete”) in Case Number A98-0422. Acklin further agreed to the entry by the Registrar of Contractors (herein called the “Registrar”) of an Order either closing or dismissing the Citations issued based upon the individual complaints filed in the respective administrative actions; expressly provided however, that such withdrawals, closings and/or dismissals would be specifically without prejudice to the future filing by Complainant with the Registrar of separate, new administrative complaints against one or both of the named Respondents involving the same project and underlying issues if the parties are ultimately unable to fully resolve all such issues.

3. It was further mutually agreed, in the event that Complainant, Acklin, should file a future complaint with the Registrar, that neither Respondent, Progressive, nor

Respondent, American Shotcrete, would assert the Statute of Limitations as a possible affirmative defense to any separately filed new administrative complaints by Complainant, and neither Respondent would otherwise oppose the revival of the issues presented under the original complaints or a requested hearing thereon.

4. The entry into the settlement agreement by the respective parties was not and is not to be construed as any form of waiver of future rights to file future complaints or to assert defenses thereto. On the contrary, it was expressly understood by all parties that the termination of the instant actions was in no way an adjudication on all or part of the merits of the underlying issues or on the positions of any of the parties, and thereby was not intended to and did not generate any res judicata or collateral estoppel impact with respect to any subsequently initiated civil or administrative proceedings.

5. The parties acknowledged, and the case records confirmed, that the Registrar’s assigned Inspector had issued a written Corrective Work Order only to Progressive and not to American Shotcrete.[1] Accordingly, the parties further agreed with respect to Case Number A98-0416 filed against Progressive, that the Registrar’s Order should provide for the closing of that Citation and Complaint, and with respect to Case Number A98- 0422 filed against American Shotcrete, that the Registrar’s Order should provide for a dismissal of that Citation and Complaint.

6. The terms of the foregoing agreement of mutual understanding 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 or resolutions of disputes, and adverse parties should be free to adjust their differences by entry into agreements, stipulations or mutual understandings which should be recognized and given effect by all tribunals.

2. The mutual understanding reached and submitted during the hearing of these matters, having been found to be reasonable and voluntarily made, warrants the termination of the instant consolidated hearing and the closing or dismissal, as appropriate, of the charges contained in both of the respective Citations and Complaints.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Registrar fully approve and adopt the terms of the parties’ agreement of mutual understanding.

It is further recommended, in accordance with the aforesaid terms of the parties’ agreement, that the entire Citation and Complaint in Case Number A98-0416 against the Class L-09 license of Respondent, Progressive, be closed without prejudice to the filing by Complainant, Acklin, of a separate future complaint against such Respondent.

It is further recommended, also in accordance with the aforesaid terms of the parties’ agreement, that the entire Citation and Complaint in Case Number A98-0422

against the Class L-05 license of Respondent, American Shotcrete, be dismissed without prejudice to the filing by Complainant, Acklin, of a separate future complaint against such Respondent.

Dated: October 1, 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, 6th Floor Phoenix, AZ 85007

ATTN: Joyce Armijo ----------------------- [1] Although the Citation issued in Case Number A99-0422 against American Shotcrete included a charged violation of the provisions of A.R.S.§32-1154(A)(23), such inclusion was apparently an error, since the assigned Inspector, upon consideration and evaluation, decided to issue a form letter (FL-7) that required no remedial or other action on the part of American Shotcrete.

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