ALJDEC

99F-M1351-ROC-com · Registrar of Contractors · 2000-06-30

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

The above-entitled matter came on for a compliance hearing on June 30, 2000. The Complainant appeared in his own behalf, and the Respondent was represented by its attorney, Jay R. Graif, Esq. Based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance Hearing are made.

FINDINGS OF FACT

1. Immediately prior to the formal opening of the compliance scheduled hearing, 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 release and cancel any and all financial claims of any nature that it has or may assert against Complainant, whether known or unknown, including the release of a lien filed against Complainant’s property and to terminate a counterclaim filed in a related civil action. Complainant agreed to withdraw the underlying complaint in this

administrative action, thereby canceling and releasing any and all claims under the parties’ contractual arrangements, whether known or unknown, and also to withdraw a separate complaint against Respondent recently filed with the Registrar of Contractors, as well as agreeing to terminate a claim filed against Respondent in the aforementioned civil action. The manifest intent of both parties was to execute mutual general releases and to effectively discontinue and to not initiate or further pursue any past, present or future claims, counterclaims and/or set-offs, including warranty claims, that were or could be otherwise asserted against each other.

3. The entry into the above-described mutual settlement of this administrative action as well as other related proceedings may properly be and hereby is viewed as the substantial equivalent of Respondent’s full and satisfactory compliance with the terms and conditions of the prior Order in this case. Moreover, since the parties’ agreement provided for the dismissal with prejudice of the related civil lawsuit, it appears fully appropriate at this time to similarly provide that the proper termination of this administrative action be recorded as a dismissal with prejudice.

4. All rights and defenses of the respective parties are deemed to have been merged into the settlement agreement, and if any new complaint is filed in the future, the sole issue for determination shall be whether the parties have performed their respective obligations under the terms of the aforesaid settlement agreement.

5. It was mutually understood that the entry by the respective parties into the settlement agreement was without any admission of fault, liability or obligation on the part of Respondent, and correspondingly without any admission by Complainant that he was not entitled to greater benefits.

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, not only must be treated as tantamount to substantial compliance by Respondent with the prior Order’s terms but also warrants the termination of the instant compliance hearing and the dismissal 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. M99-1351 be dismissed with prejudice.

Dated: July 5, 2000. 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