ALJDEC decisions subject to certification as final

2022A-00640-CHC-ROC · Registrar of Contractors · 2022-11-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jolene Conley ,

COMPLAINANT,

Lee Lawrence Fairbanks

dba Barrio Design,

License No. ROC 177697,

RESPONDENT.

No. 2022A-00640-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

VIRTUAL HEARING: October 31, 2022

APPEARANCES: Complainant Jolene Coley appeared, representing herself. Lee Lawrence Fairbanks appeared, representing Respondent. Manny Bermudez, Registrar Investigator, appeared as a witness for the parties.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

____________________________________________________________________

FINDINGS OF FACT

Respondent is the holder of License No. 177697, CR-21, Hardscaping and Irrigation Systems, issued by the Arizona Registrar of Contractors (“Registrar”) on September 21, 2002.

On or about January 25, 2022, the Registrar received Complainant’s Licensed Complaint Form (“Complaint”) containing multiple concerns regarding her project and Respondent’s construction work. The concerns were: (a) trenches had not been dug to the correct measurements or at the correct location; (b) homeowner’s internet/phone cable had been severed in the process of the trenching; (c) the dirt that was dug out was dumped on top of a graveled area and not in the pre-prepared dumping area; (d) contractor abandoned the project from June 2021 and forward, although he had repeatedly indicated he would come out to place the forms and pour the concrete; and (e) contractor failed to replace the ruined gravel. Complainant gave the contract date as April 29, 2021, noting that the work started on June 4, 2021 and stopped on June 25, 2021. Complainant further noted that $1,950.00 had been paid on the $3,000.00 contract amount.

On April 7, 2022, Registrar’s Investigator Manny Bermudez conducted a jobsite inspection and thereafter issued a Written Directive (“Directive”), dated April 11, 2022, directing that corrective action was necessary as to the following: (a) the trenches had not been dug to the correct measurements and location; and (b) the dirt had been dumped onto gravel and not at the agreed prepared location. The Registrar set May 4, 2022 as the deadline for Respondent’s compliance with the Directive.

The hearing record does not demonstrate any Registrar-granted extensions to the deadline.

At the time of the compliance inspection on June 2, 2022, Investigator Bermudez found that corrective work had not been completed by Respondent.

On June 7, 2022, the Registrar issued its Citation charging Respondent with possible violations of: Ariz. Rev. Stat. § 32-1154(A)(22) and Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code Section R4-9-108.

Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”

Ariz. Admin. Code Section R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

Ariz. Rev. Stat. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.”

The Registrar noticed the matter for hearing.

At hearing, Complainant indicated that Respondent had not come back to complete the work which, even as of the day of the hearing, remained uncompleted by Respondent; additionally, Complainant had not hired-in another contractor to complete the project.

Complainant stated that, during the Directive period, people would come out to do work but did not stay very late to do work and that Respondent had wanted his workers to move the dirt first. Complainant noted that, at that time, she agreed to have the dirt/gravel be placed on the driveway.

Overall, Complainant argued that Respondent had abandoned the project since June 2021 and had not followed the Directive to complete the work. Further, Complainant argued that Respondent’s failure to have completed the work meant that the remainder of the project could not be done.

At hearing, Respondent indicated that Registrar had given him 31⁄2 weeks to do the corrective work and that, at that time, there was no concrete available in Tucson.

Respondent stated that the trench was actually “in the right position or we corrected it by inches.” Regarding the dirt, Respondent indicated that Complainant did not let him use a Bobcat and that they had to move the dirt by hand/shovel which had been a monumental task. Respondent believed that they got alot, “but not all,” of the dirt out [of the gravel] and moved it to the driveway.

In response to cross-examination about a lack of concrete to pour in the trench, Respondent indicated that he had reached out to the Investigator about the concrete issue and indicated that the Investigator told him that if he could get Complainant to agree, he would give Respondent more time.

The hearing record does not evidence any agreement by Complainant in regard to an extension of time due to “concrete” issues.

While Respondent argued that it was “well-known” that there was a concrete shortage, Respondent presented no evidence in support of his assertion that there was no concrete available in Tucson.

The hearing record indicates that construction work performed by Respondent failed to meet workmanship standards. Therefore, based on the hearing record, and as had been determined by Investigator Bermudez, Respondent violated Ariz. Rev. Stat. § 32-1154(A)(3), specifically Ariz. Admin. Code Section R4-9-108.

The hearing record indicates that work had been done by Respondent but that Respondent had not completed his portion of the project work. Based on the hearing record, Respondent failed to complete corrective action as had determined was required by Investigator Bermudez, pursuant to the Directive, by the May 4, 2022 date. Therefore, Respondent violated Ariz. Rev. Stat. § 32-1154(A)(22).

Administrative notice is taken of Respondent’s License record with the Registrar, which reflects that this is the only open case regarding Respondent. The Registrar’s public records document that, as of November 9, 2022, Respondent’s License is suspended.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. § 32-1101 et seq.

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code section R2-19-119.

In this case, Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code Section R2-19-119(A) and Ariz. Admin. Code Section R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

8. Construction is not a perfect art and, normally, contractors must be allowed an opportunity to correct poor workmanship before their licenses may be suspended or revoked as a result of a failure to comply with workmanship standards.

9. Regarding the Complainant’s Complaint, Investigator Bermudez found items that needed to be addressed by the Directive deadline and, further, found that as of the date of the compliance inspection, those items remained uncorrected. Therefore, the Administrative Law Judge concludes that the Investigator-determined workmanship issue existed and, thus, Respondent is in violation of Ariz. Rev. Stat. § 32-1154(A)(3), specifically Ariz. Admin. Code Section R4-9-108 for failure to perform all work in a professional and workmanlike manner, and Respondent was in violation of Ariz. Rev. Stat. § 32-1154(A)(22) for failure to take appropriate corrective action to comply with the Directive by the Directive deadline.

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that the Registrar impose discipline on Respondent’s ROC License 117697 as follows:

once the license is renewed, a five-business-day suspension on the effective date of the Registrar’s Order in this matter;

require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 32-1154(E); and,

if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar shall revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification.

Recommended this date, November 9, 2022.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

Manny Bermudez, Investigator

[email redacted]

Lee Lawrence Fairbanks

DBA: Barrio Design

3121 N Swan Rd Apt 225

Tucson, AZ 85712

[email redacted]

Jolene Conley

5642 E Kelso St

Tucson, AZ 85712

[email redacted]

By Miranda Alvarez

Legal Secretary