ALJDEC - Licensing
2023A-04448-CHC-ROC · Registrar of Contractors · 2023-09-01
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Ann Anderson
COMPLAINANT,
v.
Lee Lawrence Fairbanks
DBA: Barrio Design
License No. ROC 177697
RESPONDENT.
No. 2023A-04448-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 1, 2023
APPEARANCES: Complainant Ann Anderson appeared on behalf of herself. Respondent Lee Lawrence Fairbanks DBA: Barrio Design License No. ROC 177697 appeared on behalf of himself.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Respondent Lee Lawrence Fairbanks DBA: Barrio Design holds license number 177697 issued by the Arizona Registrar of Contractors (Registrar).
2. On December 22, 2022, Respondent agreed to perform the following work at Complainant Ann Anderson’s home for the amount of $23,039.10:
Paver work 660
Side pavers 150
Prep, level, grade
Add 15 tons D.G.
Prep stucco, original patio
Landfill trips
Remove old paver and conduit
3. On January 9, 2023, Respondent started work.
4. On March 8, 2023, Respondent stopped work.
5. Complainant subsequently filed a complaint with the Registrar alleging abandonment on the part of Respondent.
6. On May 22, 2023, Investigator Smith conduced a job-site inspection. Investigator Smith substantiated the complaint and observed that Respondent’s contract did not include the following information:
The contractor’s business address
An estimated date of completion
Information about the customer’s right to file a complaint with the registrar
Contact information for the registrar
A signature of the contractor
7. On May 25, 2023, the Registrar issued a Directive to Respondent that provided as follows:
Complaint Item 1: “Abandonment Pavers, Pulverized-Gravel material never delivered; Non-demolition work incomplete. Work incomplete includes prep/level/grade, add pulverized gravel, install pavers (side or other), remove old pavers and conduit.; Land fill trips (old pavars and conduit to land-fill) never attempted ”
Investigator’s Observations: Verified. Due to some changes in the scope of work, there are a total of three contracts for this project. The first contract is dated 6/2/2022 The second contract is dated 10/6/2022 The most recent and current contract is dated 12/22/2022. The signed contract dated 12/22/2022 includes: • Paver work 660 $13200
• Side pavers 150 $3000
• Prep, level, grade $680
• Add 15 tons D.G. $1645
• Prep stucco, original patio $1240
• Landfill trips $600
• Remove old paver and conduit $290
• Terms
Cancel all previous contracts
Customer (Ann Anderson) credit = $17,250
Grade, Remove Grass, PreEmerge = $1890 CR
Due after completion = $23039 + $1890
Progress payment due before completion
The respondent confirmed the contracted work is not complete, and has not progressed in a timely manner.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Governing Rule: A.R.S. § 32-1154(A)(3) – R4-9-108(b): Violation of any rule adopted by the registrar; Namely R 4-9-108(b): A contractor shall perform work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity
8. Respondent failed to correct Complaint item 1 listed in the Directive.
9. On June 27, 2023, the Registrar issued a Citation against Respondent’s license alleging that Respondent violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(1),(A)(3), (A)(12), and (A)(22); A.R.S. § 32-1158; Arizona Administrative Code (A.A.C.) R4-9-108(A).
10. Respondent filed a timely answer to the Citation.
11. On July 25, 2023, the Registrar issued a Notice of Hearing (NOH) setting the matter for hearing on September 1, 2023.
12. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
13. A hearing was held on September 1, 2023.
14. At hearing, Complainant testified on behalf of herself. Respondent testified on behalf of himself.
15. Complainant explained that Respondent failed to perform all of the work specified under the contract.
16. Respondent did not dispute that he failed to complete all of the work.
17. Administrative notice is taken of Respondent’s license as reflected on the Registrar’s public website on September 1, 2023. Such license record shows that Respondent’s license was first issued on September 21, 2002, and is active. Such license record further shows that the one complaint has resulted in discipline against Respondent’s license, and one complaint was resolved or settled.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
The burden of proof at an administrative hearing falls to the party
asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.
3. The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.
4. 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).
5. The preponderance of the evidence does shows that Respondent abandoned the contract, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(1).
6. The preponderance of the evidence shows that Respondent failed to
perform work in a professional and workmanlike manner, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(A).
7. The preponderance of the evidence shows that Respondent failed to
correct the items listed in the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).
8. The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(12), namely Ariz. Rev. Stat. section 32-1158(A).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Lee Lawrence Fairbanks DBA: Barrio Design License No. ROC for three days.
It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).
It is further recommended that no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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 forty (40) days from the date of that certification.
Done this day, September 1, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
Lee Lawrence Fairbanks
DBA: Barrio Design
3121 N Swan Rd Apt 225
Tucson, AZ 85712
[email redacted]
Martín Quezada
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
John Smith
[email redacted]
Ann Anderson
1205 W. Santo Domingo Pl.
Tucson, AZ 85704
[email redacted]
By: OAH Staff