ALJDEC

99F-M0618-ROC · Registrar of Contractors · 1999-05-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 17, 1999.

APPEARANCES: The Complainant appeared in his own behalf.

The Respondent appeared through its qualifying party and corporate officer, Kenneth Clifford Winham.

ADMINISTRATIVE LAW JUDGE: Robert. I. Worth _____________________________________________________________________ Based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. Prior to the formal conclusion of the scheduled hearing, after most all of the evidence and testimony had been presented, the parties confirmed to the Administrative Law Judge that they had concluded a settlement agreement, the essential terms of which were read onto the record.

2. Pursuant to the provisions of the parties’ settlement agreement, Respondent agreed to return to the jobsite and, without cost to Complainant, to properly perform appropriate remedial measures on identified portions of the tile floor installation that contained visible tile or grout cracks. Complainant agreed to provide reasonable and timely access to the premises, to withdraw his pending Registrar’s complaint and to consent to the entry of an Order closing the within Citation without prejudice to the reopening of same or the filing of a new complaint in the event of any breach by Respondent of the corrective work terms of the agreement.

3. The respective parties further agreed that their entry into the above-described settlement agreement was expressly understood to be without any admission of fault or obligation on the part of Respondent and without any admission by Complainant that he did not have greater entitlements.

4. The administrative disciplinary proceedings hereunder are effectively cut short by the entry into the parties’ 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 breach of the terms of the settlement agreement will not only constitute grounds for the filing of a new complaint but also shall warrant treatment as a circumstance in aggravation.

5. All rights and defenses of the respective parties are deemed to have been merged into the settlement agreement, and if any timely petition for rehearing of this matter is to be filed and granted, or if any new complaint is filed in the future, the sole issue for determination shall be whether Respondent has performed its obligations under the terms of the aforesaid settlement agreement

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 closing of the charges contained in the Citation and Complaint.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the entire Citation and Complaint in Case No. M99-0618 be closed.

Dated: May 19, 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert. I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

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

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

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